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ELEMENTS
MEDICAL  JURISPRUDENCE.
BY
y
     THEODRIC ROMEYN BECK,
              m. l., ll.d.,   ^"
PROFESSOR OF MATERIA MEDICA IN THE ALBANY MEDICAL COLLEGE; MEMBER OF
   THE AMERICAN PHILOSOPHICAL SOCIETY; HONORARY MEMBER OF THE
     MEDICAL SOCIETIES OF RHODE ISLAND AND CONNECTICUT,
                &C, &C;

                 AND

       JOHN  B. BECK,/M. D.,
PROFESSOR OF MATERIA MEDICA AND MEDICAL JURISPRUDENCE IN THE COLLEGE

  OF PHYSICIANS AND SURGEONS OF THE CITY OF NEW-YORK; CORRESPOND-

   ING MEMBER OF THE ROYAL ACADEMY OF MEDICINE OF PARIS ;

     CORRESPONDING MEMBER OF THE MEDICAL SOCIETY OF

            LONDON, ETC., ETC., ETC.
TENTH EDITION.
VOL.  I
             ALBANY:

LITTLE & COMPANY, LAW BOOKSELLERS,
           53 STATE STREET.
        H. H. VAN BYCK, PRINTER.
               1850. 
w
 600
 B393e
   v.   I
       Entered according to Act of Congress, in the year 1850,
                   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,
<El)i0  iDork
IS RESPECTFULLY INSCRIBED 
 
ADVERTISEMENT.
  The present Edition3 although announced, and originally
so intended, as a reprint from the last London, has been sub-
sequently carefully revised  and enlarged  to  the  extent  of
several hundred pages.  Numerous and important additions
will be found in every chapter, and the whole is  again ten-
dered to the Medical and Legal Professions throughout the
Union, for their consideration,  and, it is hoped, approval.
  August,  1850. 
 
PREFACE
TO  THE FIFTH  EDITION.
  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 Jurisprudence 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 favor 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 acknowledging the use of
the Manuscript Lectures of the  late  Professor Stringham,
and of Dr. William Dunlop.  For the former, I am indebted
to the kindness of his surviving relatives, M. Hunt and Jos.
Stringham,  Esquires; and  for the latter, as delivered at
Edinburgh, to their author.
  Drs. Dunlop and Darwall, the successive editors of the
English editions, also enriched the work with numerous and
valuable notes.  These I have preserved in the present edi- 
 viii                     PREFACE.
 tion, not only for  their intrinsic worth, but as a  mark  of
 respect and gratitude for their labors.
   I have continued to derive much assistance from the New-
 York State Library, and the Libraries of the Western Medi-
 cal College and the  Albany Institute; while  many of my
 legal and medical friends have allowed me the freest access
 to their private collections.
   The chapter on  Infanticide, originally contributed by my
 brother, has been again furnished by him in an enlarged and
 greatly improved form.  I have  considered it a bare act of
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.
		xi
Chap. I.	Feigned Diseases, -	1
II.	Disqualifying Diseases, -	63
III.	Impotence and Sterility, -	85
IV.	Doubtful Sex, -	127
V.		149
VI.	Pregnancy, _____	203
VII.	Delivery, ______	279
VIII.	Infanticide, (by Dr. J. B. Beck,)	371
IX.	Legitimacy, ------	569
X.	Presumption of Survivorship, -	619
XL	Age and Identity, -	645
XII.	Insurance upon Lives, -	675
XIII.	Mental Alienation,	703
 
 
INTRODUCTION.
  Medical  Jurisprudence, Legal Medicine,  or  Forensic
Medicine, as it is variously termed, is that science which
applies the principles and practice of the different branches
of medicine to the elucidation of doubtful questions in courts
of justice.   By some authors, it is used in a more extensive
sense, and  also  comprehends  Medical  Police,  or those
medical precepts which may prove useful to the legislature
or the magistracy.  I shall employ it at this  time  in its
restricted meaning.*
  Traces of this science are to be found as early as the insti-
tution of civil society.   Thus in the Jewish law, indications
of it may be observed in the distinction established between
mortal wounds,  and  those not  so,  and in  the  inquiries
prescribed in cases of doubtful virginity.   Among the Egyp-
tians,  according  to  Plutarch, it was  ordained, 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
auctoritatem doctissimi Hippocratis is a phrase frequently met
with in their decisions,! and the Emperor Adrian, in extend-
ing the term of  legitimacy from ten months,  (the period
fixed by the Decemvirs,)  to eleven,  was influenced in so
doing, by the prevailing sentiments  of the  physiologists of
that day.J   Some detached, but striking medico-legal facts,
are also mentioned by the Roman historians.   Thus, the

  * If a general term be necessary to include both these sciences, I should
prefer that used by the Germans, viz. State Medicine.
  t Belloc, p. 6.                 X Fodere. Introduction, p. sit. 
Xll
INTRODUCTION.
bloody remains of Julius  Caesar, when exposed to public
view, were examined by one Antistius, who declared, that
out of twenty-three wounds which had been received, but
one was mortal, and that had penetrated the thorax, between
the first and second ribs.  The body of Germanicus was also
inspected, and by indications conformable to the  supersti-
tions of the age, it was decided that he had been poisoned.*
  The code of Justinian contains  many  provisions  apper-
taining 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  know-
ledge  too, founded  on the imperfect diagnostics  which
medicine  afforded  at  that early  period.  It  was never
ordained that  physicians should  be examined on any trial,
until after the middle ages, and we  are  indebted  to  the
Emperor Charles the Fifth of Germany, for the first public
enactment, prescribing it as  necessary, and thereby  recog-
nizing  its value and importance.  In the celebrated criminal
code which was framed by him  at Ratisbon, in 1532, and
which is known by the name of the " Constitutio 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,  drown-
ing, the procuring of abortion, and the like.f
  " The publication of such a code very naturally awakened
the attention  of the medical profession, and  summoned
numerous writers from its ranks."J  It wTas the first regular
commencement and origin of legal medicine, and it  required

  * Fodere.  Introduction, p. xxx.
  f " George Bishop of Bamberg in 1507, proclaimed a penal code, drawn
up for his States by Baron Schwartzemberg, in which the necessity of medi-
cal evidence  in certain  cases, was recognized."  The Caroline Code  was
founded on this. Dr. Trail in Encyclopedia Brittanica, 7th edit., vol. 14, p. 490.
  X Paris' Med. Jurisprudence, vol. 1, p. x. 
INTRODUCTION.
Xlll
 only such an enactment to apprehend the utility of which it
 was susceptible.
   The kings of France soon became aware of the  value of
 similar institutions.  In 1556, Henry the II. promulgated a
 law, by  virtue of which, death was inflicted on  the female
 who should conceal her pregnancy, and destroy her offspring.
   In 1606,  Henry the IV. presented letters patent to his
 first physician, by which he conferred on him the privilege
 of nominating  two surgeons in every  city  and important
 town, whose duty it should exclusively be to examine all
 wounded or murdered persons, and to make reports thereon;
 and  in  1667, Louis the XIV.  formally declared,  that no
 report should be valid unless it had received the sanction of
 at least  one of these surgeons.*   At a subsequent period
 (1692,)  physicians were by law associated with surgeons in
 these examinations.
   The writers who have investigated the science of Medical
 Jurisprudence, are numerous, and many of them have display-
 ed great talent and acuteness.  Some  have noticed it  as
 a  system, while others  have examined detached parts.   I
 shall content myself with mentioning  the more distinguish-
 ed, 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 Relationi-
bus  Medicorum,"  was  published  in 1598,  at  Palermo.!
Paulus Zacchias soon followed him, in his great wTork, enti-
tled,  "Questiones Medico-Legales,"  which appeared  at
 Rome between  1621 and 1635.J  This distinguished man
rose  to great eminence in his profession, and was physician
to Pope  Innocent the  X.  He died in 1659,  in the 75th
year of his  age.   His treatise on legal  medicine, although
partaking of the superstition of the age in which he lived,
is  still a most valuable record of facts, and a  permanent
  * Fodere, vol. 1.  Introduction, p. xxxii.
  t Dr. Cummin considers Condronchus as an earlier writer on Legal Medi-
cine than Fidelis. He  published at 1597, at Frankfort, his tract  Methodus
 Testificandi. According to Dr. Cummin, Fidelis published in 1602. (London
Med. Gazette, vol. 19, p. 3.)
  X Life of Zacchias, prefixed to his Questiones Medico-Legales. 
XIV
INTRODUCTION.
monument of the talents of the author.   The following is a
general outline of the contents of the first volume :  First
book.   Age :  Legitimacy: Pregnancy:  Superfcetation and
Moles : Death  during Delivery:  Resemblance of children
to their parents.  Second book.  Dementia : Poisoning.  Third
book.   Impotence : Feigned  diseases : The plague and con-
tagion.  Fourth book. Miracles:  Rape.  Fifth book.  Fast-
ing : 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 appear-
ed in this country, although its physicians  have not been
deficient in the  investigation of particular subjects.   Torto-
sa, 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
treatise is confined to a  consideration of wounds.  The Pan-
dects of Valentini, which appeared in 1702, and which were
shortly followed by his  Novella, form a very complete and
extensive retrospect of the  opinions  and decisions of pre-
ceding writers  on legal medicine.  They consist indeed of
medico-legal cases, and the consultations of distinguished
physicians, and of medical and  legal  faculties  on them.
Alberti,  Zittman, Teichmeyer,  Fazelius. Goelicke, Heben-
streit,  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 by  Schlegel.  It con-
sists of upwards  of forty dissertations on various parts of
medical jurisprudence,  written by his countrymen at differ-
ent periods  during  the eighteenth century,  and is  alike
honorable to the national character, and  the individuals
whose  investigations  appear  in it.
  In our  own days,  the indefatigable industry  and  great
learning of the  Germans have furnished important contribu-
tions 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. 
INTRODUCTION.
XV
  Fodere, in his sketch  of the history  of the science in
France, considered Ambrose Pare as the earliest writer on
it in that country.  His chapter on Reports, and his obser-
vations on feigned diseases, indicate the talents for which
he is still famous at the present day, and in such estimation
were his works  held  in his native country, that  for  more
than a century,  they formed the sole guide of the French
surgeon.  To him, succeeded Gendri in 1650; Blegni in
1684, and Deveaux in 1693 and  1701.   Their works  were
particularly intended for the benefit of surgeons, from whom,
as I have already stated,  the examiners in  medico-legal
cases were selected.
  Louis is, however,  considered, and with great justice, as
the individual who first promulgated a just idea of the sci-
ence to his countrymen.   He investigated several important
points  with great ability—such as the certainty of the signs
of death, protracted gestation, drowning, and the proofs that
distinguish hanging through suicide, from hanging as an act
of murder.   His consultations  also in various cases, and
which  are preserved in the Causes Celebres, abound in vari-
ous  and instructive learning.   Some of his opinions gave
rise  to animated discussions, and thus excited public atten-
tion to these subjects generally.  Winslow, Lorry, Lafosse,
Chaussier, also  deserve notice among the French writers,
while towards the conclusion of the eighteenth century, Pro-
fessor  Mahon, with several  others, published in the " Ency-
clopedic  Methodique," copious  dissertations  on  Medical
Jurisprudence.*
  In 1796, Fodere published the first edition of his work in
three octavo  volumes, under the title of " Les his eclairees
par  les sciences  physiques,  ou Traite  de  medecine  legale et
d'hygiene publique."  This learned physician was a resident
of Strasburg, and  the  author of several other treatise of
deserved reputation.  In  1807, the system of Mahon, late
Professor of  Legal Medicine, and the History of Medicine
in the  school of Medicine at Paris, appeared, with notes, by
* Fodere, vol. 1, Introduction, p. xxxvii., etc. 
xvi
INTRODUCTION.
M. Fautrel, and about the same time, Belloc,  a surgeon at
Agen, published 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, besides adding two
most instructive dissertations—one on the docimasia pulmo-
num, and the other on death by drowning.  In  1812, Ballard
published a translation, also from the German, of Metzger's
Principles  of Legal  Medicine.   This work  is  peculiarly
valuable for the great learning  displayed in  its notes, and
the opportunity thus afforded, of becoming acquainted with
the sentiments of authors whose writings are either inacces-
sible, or in some degree antiquated.
  After bestowing great labor during several years, a second
edition of his treatise  was published by Fodere in 1813.  It
was now extended to  six  volumes—four on legal medicine,
and two on  medical  police, and  was undoubtedly, at the
time of  its 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
original publications that the present age has yet afforded.
I refer to the system of Toxicology by Orfila, a Spaniard by
birth3 but naturalised  and  permanently resident in  France.
This  is  copious, beyond  all  former treatise,  in  original
experiments, and it has done much to increase our knowledge
of the  action  and  the tests of individual poisons.   The
career of Orfila, so splendidly commenced, has  been  success-
fully and ardently pursued ;  and his lectures on Legal Medi-
cine, his work on Judicial Disinterments, and  his numerous
essays on detached subjects, have all served to improve and
advance his favorite science.
  In 1821, Professor Capuron  published  on legal medicine
so far as it relates to midwifery.  Briand, Biessy, Esquirol
Georget, Falret, 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
  * Professor Fodere died at Strasburg in February, (1835,) in the 72d vear
of his age.                                             J 
INTRODUCTION.
XV11
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 medical
men in the  nation.  In 1836, Dr. Devergie published an
elaborate and able treatise on Legal Medicine.   It is pecu-
liarly interesting on the subject of persons found dead.
   The  first  work, professing to treat of Medical Jurispru-
dence, that appeared in  England, was the production of  Dr.
Farr.   This was in 1788,  and in his preface he mentions
that  it is  derived from  Fazelius' Elements of Forensic
Medicine.   It is brief and imperfect, extending only to  one
hundred and forty duodecimo pages.  It arrived at a  second
edition in  1814.   The  " Medical Ethics," of Percival, con-
tain some useful facts, and Dr. William Hunter, in his essay
" on the uncertainty  of  the  signs  of murder in  the  case of
bastard children," examined a most important and  leading
subject in medical jurisprudence.   In 1815, Dr. Bartley of
Bristol, published a few essays on some points connected
with midwifery.
   Dr.  Male of  Birmingham,  in  1816, presented the first
English original work of any magnitude or value, on medi-
cal jurisprudence.  A second edition appeared in 1818.  In
1821, Dr.  John Gordon Smith published his excellent trea-
tise, entitled  " The Principles of Forensic Medicine, systema-
tically arranged and applied to British practice."  This work
has passed through several editions.  Dr. Smith also publish-
ed separate treatises on Medical Evidence, and on the exami-
nation of witnesses, and was much engaged as a lecturer on
the science.*
   In 1823, an elaborate and able work on " Medical Juris-
prudence," 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

  * 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
show, and zealously to advocate, what all.now acknowledge, its usefulness  and
dignity."  (Transactions Provincial Med.  and Surg. Association, vol. 3, 
XV1I1
INTRODUCTION.
valuable and copious Treatise of  Professor Christison on
Poisons, undoubtedly the  best in  the language, and the
contributions of the writers in the  Cyclopedia of Practical
Medicine, are among the most important additions  to our
knowledge  of the subject.  I must now (1838,) subjoin  to
these, the treatises of Dr. Montgomery, Mr. Taylor and Mr.
Watson, and the  lectures of Drs. Cummin, A. T. Thomson
and Southwood Smith, and again (1850,)  I have to refer  to
the  works of Dr. Traill, Dr. Guy, and  Mr. Taylor, as con-
tinuing the list of English systematic writers on the science.
  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 pro-
ductions of Drs. Andrew Duncan, jun.  and Christison are to
be found, illustrating every subject on  which they touch.
  Dr. Andrew Duncan, jun. was the first professor of Medical
Jurisprudence in  any  British   University.   His venerable
father had, for some years previous, urged its importance on
the public, and even  delivered, I believe, a course of private
lectures,* but it was not until 1806, that  Dr. Duncan, jun.
received his appointment.!
  On  the  removal of Dr. Duncan to the  chair  of Materia
Medica, he was succeeded  by Dr. Christison, who again, on
  * A sketch of the subjects included in the sciences  of Medical Jurispru-
dence and Medical Police, may be found in an Analysis of Dr. Duncan, Sen'rs
Memorial, presented to the Patrons of the University at Edinburgh, in
1798.  (Coxe's Medical Museum, 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, (Intro-
duction, 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 contemporary publication, will explain the
nature of the attacks.  In the House of Commons, June 30, 1807, Mr. Perci-
val, in moving for the renewal of the Finance Committee, 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 nomination, by
supposing, that after some long debate,  in the swell of insolence, and to show
how far they could go, they had said, ' we will show them what we can do—
we will create  a professor of Medical  Jurisprudence.'"  (Stockdale's New
Annual Register, 1807, pp. 206, 210.) 
INTRODUCTION.
XIX
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 Brit-
ain, may be named Dr. George Pearson, W. T. Brande, Esq.,
Dr.  Harrison,  Dr.  Elliotson, Dr. Gordon Smith, and  Dr.
Ryan.   By  a  regulation of the Society of Apothecaries,
adopted a few  years  since, an  attendance  on  a course of
lectures on  Forensic  Medicine was  made a requisite for
examination, and the result has been a large increase in the
number of teachers.  Every Medical school had its lectures
on this branch and continues to retain them up to the present
time.
   In  turning to my native country, I must premise, that as
our literature has been in a great degree derived from that
of Great Britain, so the objects of study will frequently be
those which are there the most popular.   Hence, probably,
the reason why medical jurisprudence attracted but little
attention until  of late  years.  In 1810, the  venerable  and
distinguished Dr. Rush delivered an introductory lecture in
the University  of Pennsylvania, (and  which was published
in 1811,) in which he  dwelt in an eloquent and impressive
manner on the importance of the study.  In the conclusion,
he thus forcibly establishes the utility of the science : " To
animate you to apply  to the study of all the subjects enu-
merated  in  the  introduction to our lecture, I  beg you to
recollect the extent of the  services  you will   thereby  be
enabled to render to individuals and the public: fraud  and
violence  may be detected and punished; unmerited infamy
and death may be prevented; the  widow and  the orphan
may be saved from ruin; virgin purity and innocence may
be vindicated;   conjugal harmony  and happiness  may  be
restored;  unjust and oppressive demands upon  the services
of your fellow citizens  may be obviated;  and the sources of
public misery in epidemic  diseases may be removed, by
your testimony  in courts of justice."*
* Rush's Introductory Lectures, p. 392. 
XX
INTRODUCTION.
  In 1819, Dr. Thomas Cooper, formerly a judge in Penn-
sylvania,  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 publica-
tion of the different editions of the present work, the reprints
of Ryan and Chitty, the former with notes by  Dr. Griffiths,
Professor DucatePs  Manual of Toxicology, and the manual
of Dr. Williams, I shall have noticed  (1838,) the principal
American  publication  on the science.   Several valuable
inaugural  dissertations, with numerous cases and essays in
the medical journals must, however, be also mentioned, in
order to complete the enumeration of what has  been  done in
the United States.
  I must now (1850,) add to the above, the reprint of Guy's
Principles of Forensic Medicine, and edited by Professor
Charles A. Lee, of two editions of Taylor's Medical Juris-
prudence with notes  and additions by  Dr.  Griffiths, the
republication of Dr. Christison's and Mr. Taylor's treatises
on Poisons, and also of Dr. Traill's outlines of his Lectures
on Medical Jurisprudence.
  During the current year, Professor Dean has published a
volume entitled,  " Principles of Medical  Jurisprudence."
  The individual who first delivered a course of lectures on
Medical Jurisprudence in this country, was the late James
S. Stringham, M. D., of New York.  Having been a pupil of
this  gentleman, and thus  derived my first impulse to the
study, I may be  indulged in adding  a few particulars of his
life.
  Dr. Stringham wTas a native of the city of New York  and
received there the elements of a classical education.  He
graduated at Columbia College in  1793.  Having selected
Medicine  as  his profession, he became a pupil of the  late
Dr. Samuel  Bard and Dr. Hosack, and diligently attended
to all the  branches of  Medicine  then taught in New York. 
INTRODUCTION.
XXI
He subsequently repaired  to Edinburgh, became a student
in the University, and in  1799 received from it the degree
of M. D.
  Shortly after his  return to  his native country, he was
elected Professor of Chemistry in Columbia College,  and
for several  years delivered lectures on  that science.   In
1804, he voluntarily added to these  a course on legal medi-
cine.  The  popularity of this secured its repetition during
each succeeding session until his resignation.
  In 1813,  he  was appointed  Professor  of  Medical  Juris-
prudence 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 sys-
temate," Dr. Stringham  was the author  of  several essays
and papers in the  medical journals of the day.   He published
in the  New York Medical  Bepository  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 violent
effects of corrosive sublimate, and a  case of hydrocephalus :
in the Philadelphia Medical Museum, a paper  on the diuretic
effects of mercury in a case of syphilis, and in the Edinburgh
Medical and Surgical Journal, a paper on the  yellow fever of
America.
  A  syllabus of the Lectures of Professor Stringham is con-
tained in the American Medical and Philosophical Register.*
The  subjects noticed  by him were as follows : Age, propri-
ety of the csesarean operation, virginity and rape, concealed
pregnancy,  pretended  pregnancy,  quickening,   abortion,
superfcetation, monstrosity, hermaphrodites,  impotence and
sterility,  feigned diseases, concealed   diseases,  poisons,
medico-legal dissection, wounds, infanticide, death  from
hanging and drowning, medical etiquette, effects of particu-
lar manufactories on health, salubrity of water.
* Vol. 4, p. 614. 
XX11
INTRODUCTION.
  In 1812-13, Dr. Charles Caldwell (late of the Louisville
Medical College, Kentucky,) delivered a course of lectures
on Medical  Jurisprudence at Philadelphia.  In 1815, I was
appointed to  this duty  in  the  Western Medical  College.
Not long after, Dr. Walter Channing was appointed Profes-
sor of Midwifery and Medical Jurisprudence in  Harvard
University.   Dr. Williams,  late Professor in the Berkshire
Medical Institution,  and Dr. Hale of Boston, each lectured
on the science in the winter of 1823.   Since that period, all
our medical shools have more  or less made it a subject of
instruction.
  It only remains to offer some observations on the arrange-
ment that has been adopted  in the present work.
  Some writers endeavor to divide  the subjects, according
to the  courts before which they may rise, and thus devote
separate chapters to civil and criminal cases.  It will, how-
ever, be readily perceived that  this  must render the study
confused.   Pregnancy, for example,  may be a subject of in-
quiry on a plea for a delay of execution, or on the applica-
tion of an heir for his property.   In  both instances its signs
require  examination.  So also  with insanity and  several
other topics.  It will hence  only lead to repetition to adopt
this division.  Fodere has escaped from the difficulty by in-
cluding these  subjects  under the title  of " Medecine Legale
Mixte," applicable both to civil  and  criminal cases, but this
is evidently an  evasion.  Dr. Gordon Smith arranges  his
subjects into three parts.  1. Questions that regard the ex-
tinction 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  attempts at arrangement, which  is probably insur-
mountable.  The subjects comprehended under the science
are not of a nature to  admit of a  division  similar  to that
proposed by either of the above writers.  I have  preferred
noticing each head of discussion separately and independ-
ently.   Before a legal tribunal they  must be thus investiga- 
INTRODUCTION.
xxiii
ted, 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 mat-
ter 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 oj this point come be-
fore a judicial tribunal?  Having ascertained and stated*this,
I proceed to notice the physiological, pathological, or chemi-
cal facts, that  are  necessary to be known in the  supposed
case—advert to the difficulties to be  encountered in the
investigation—and offer, if necessary, some observations on
the conformity of the  law  to  the  present state of medical
knowledge.  A  collection  of  detached  essays of  this de-
scription  (for they evidently are detached in their subjects
and in their application,) must prove  in a great degree use-
ful, both  to  the lawyer and the physician, since it enables
them, in their respective capacities,  to review the informa-
tion that is immediately applicable to a particular instance
before them.   That our former  attempts have met in some
degree with the approbation of the learned and wise in both
professions, is the best reward of the authors for the labor
bestowed by  them on it. 
MEMORANDUM.
  As the present edition, is according to the approved sense
of the term,  correctly stated on  the title  page to  be the
tenth, it has  been suggested as proper to  designate each,
with its place of publication, viz.:
  Albany, 1823 and 1835.
  London, edited by Dr. Dunlop, 1825.
  Weimar, 1827.
  London, edited by Dr. Darwall, 1829.
  Philadelphia, 1838.
  London,  1836,  1838, 1842. 
medical   jurisprudence.
                       CHAPTER I.


                     FEIGNED DISEASES.


Objects for which diseases are feigned. Diseases most readily feigned.  Gen-
  eral 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—haema-
  temesis—bloody urine—haemorrhoids—menstruation—jaundice—paleness
  of the  skin—cachexia—diarrhoea—dysentery—involuntary stools—vomit-
  ing—apoplexy—vertigo-—paralysis—epilepsy—convulsions—chorea—cata-
  lepsy—syncope—hysteria—somnolency—hydrophobia—tetanus—nostalgia
  —scrofula—scurvy—cutaneous affections—incontinence of urine—gonor-
  rhoea—stricture—excretion of calculi—near-sightedness—ophthalmia—am-
  aurosis—night-blindness—deafness—deaf and dumb—stuttering and stam-
  mering—tumors—hydrocephalus—emphysema—dropsy—tympanitis-phys-
  conia—prolapsus of rectum and uterus—polypus of the nose—hydatids—
  Barbadoes leg—hydrocele—hernia—contractions and deformity—lameness
  -distortions—ulcers—cancers—petechiae—ozcena—fistula in ano—wounds,
  fictitious and factitious—fractures—maiming. Of impostors—feigned absti-
  nence.

   Diseases  are generally feigned from one of three causes—

fear, shame, or the  hope of gain.   Thus the individual or-

dered on service, will  pretend being afflicted with various

maladies, to  escape the performance of military duty;  the

mendicant, to avoid labor, 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 re-

ceiving exhorbitant damages, have also induced  some to

magnify slight ailments into serious and alarming illness.

   The  extent and  finish to which the  art of feigning dis-

eases is carried, are various, and differ in different countries.

Of his own nation, Fodere observed^ at the time when the

conscription was in full force in France, " that it is at pres-

ent  brought to such perfection as  to render it as difficult to

detect  a feigned disease, as to cure a real one."*  So  also

                     * Foder., vol. 2, p. 452.
                      1 
2                   FEIGNED DISEASES.

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 with-
out a pension.*
  Against  such impositions, the police of every well-regu-
lated country should direct its energies.  A severe injury
may not only be inflicted on  individuals through them, but
the public morals  may be  deteriorated.   In almost every
age, impostors have sprung up,  who affect various maladies,
and operate on  the superstition or the curiosity of the vul-
gar.  And even the higher ranks of society, from motives
as unworthy, have  occasionally, like the courtiers of Dio-
nysius and Lewis XIV., given a sanction to such practices.
  It will readily be observed, that a knowledge  of this sub-
ject 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 vari-
ous secretions 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 opin-
ion depends much on  the statement which the patient may
give, are most liable to be feigned.   Of the first class, may
be named inflammations, continued fevers, purulent expec-
toration, &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
  * Mr. Lane, in his account  of the Modern Egyptians, observes : " There is
now (in 1834) seldom to be found in any of the villages, an able bodied youth
or young man, who has not one or more  of his teeth broken out, (that he may
not be able to bite a cartridge,) or a finger cut off, or an eye put out or blind-
ed, to prevent his being taken for a recruit.  Old women and others make a
regular trade of going about from village to village, to perform these opera-
tions upon the boys; and the parents themselves are sometimes  the opera-
tors."   Vol. 1., p. 270.                                     p ra 
                    FEIGNED DISEASES.                    3

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 so discriminating as to have received the sanction
of  most succeeding writers.   A detail  of these  will illus-
trate their universality of application, and the ingenuity of
their author.*
   1.  The first is, that  the  physician must, in all suspected
cases, inquire of the relatives and friends of the suspected
individual, what are his physical and moral habits.  He must
ascertain the state of his affairs, and inquire  what may pos-
sibly be the motive for feigning disease—particularly wheth-
er he is not in immediate danger of some  punishment, from
which this  sickness may excuse him.   It was on this prin-
ciple, he observes, that Galen detected the imposture of his
servant, who, when ordered to attend his master for a long
journey, complained of an inflammation  of  the  knee.  He
inquired into the habits and character of the slave, and as-
certained that he was much attached to  a  female, whom this
journey would  compel him to leave.   This,  combined with
the little alteration that so painful an  affection as the one
named  induced, led him to examine the part, and at last as-
certain that the swelling was occasioned by  the application
of  the thapsia or bastard turbith, and which being prevented,
the tumor 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 suddenly fall into dropsy or cachexia; and again, if

  * A writer in the London Medical Gazette (vol  17, p.  989) has shown by
a translation of Galen's Observations " how to detect those  who feign disease,"
that he, instead of Zacchias, deserves the honor of first proposing these rules:
*• It is the oldest treatise extant, expressly devoted to a medico-legal subject."
  The remarks of Galen relate to feigned hcemoptisis, insanity and pain, and
their symptoms.  One observation deserves mention.  "  When a feigner is
asked  about the pain he feels, he always describes it as settled in the part
which he says is affected."   This is not always the case.  The pain is some-
times fixed and confined to one part, and sometimes felt extensively over ad-
joining and even distant parts. 
4                  FEIGNED DISEASES.
insanity should suddenly supervene, without any of its pre-
monitory 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 gener-
ally acceptable 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  com-
plained of a violent colic, on being summoned to attend an
assembly of the people.  Suspecting artifice, he prescribed
only a few fomentations, although this same person had not
long before been cured of the same complaint by the use of
philonium.   Of this, however, he never spake, nor indeed
seemed the least anxious for medical aid.
  4. Particular attention should be paid to the symptoms
present, and whether they necessarily belong to the disease.
An expert physician may thus  cause a  patient to fall into
contradiction,  and lead him to a  statement  which is incom-
patible with the nature of the  complaint.  To effect this, it
is necessary to visit him frequently and unexpectedly.
  5. The last  direction is to follow the  course of the com-
plaint, and attend to the circumstances which successively
occur.  Thus  the inflammation  of the knee above  noticed
should have produced fever, and increased in violence, ac-
cording to the common course, when no remedies are ap-
plied.!
  Before proceeding to  notice separately the various  disea-
ses that may be feigned, it will be proper to advert to a spe-
cies of simulation  mentioned  by Zacchias, under the name
 of  simulatio latens.  By this he understands a case in which
 disease is  actually 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  no-
* Mahon, vol. 1, p. 332.               j Zacchias, torn. 1, p. 289. 
                     FEIGNED  DISEASES.                    5

ticed, the skill of the physician, and that too of one expe-

rienced  in the history of disease, to guide aright.   Gener-

ally 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 af-

fected, to lean towards the  patient.   I can, however, imag-

ine that cases have  occurred in which disease has been mag-

nified in  order  to  increase damages, or  to  revenge insult.

Here the  conduct of the medical examiner must be cautious,

and he should carefully apply the rules already laid down.*

   Several divisions of feigned diseases have been suggest-

ed.   Thus Marc proposes  to  arrange them under the heads

of imitated and produced diseases ; {par imitation et  par pro-

vocation.)  The authors of  the article on this subject in the

■Cyclopedia of Practical Medicine,  say that they are refera-

ble to four groups: feigned, or  altogether fictitious; exag-

gerated ; factitious,  being wholly  produced by the patient,

or with his concurrence ; and lastly, aggravated, or real pos-

sibly 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

principal diseases that have been feigned,  somewhat in the

usual nosological order, although it will hardly be possi-

ble to preserve this strictly;  and shall then state under each

the most approved mode of detection.!


  * " Flagrantior equo.
   " Non debet dolor esse viri, nee vulnere major."  Juvenal, Sat. 13.
  f The greatest diffiulty 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 sys-
tematic 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 Medi-
      cine, by Drs. Scott, Forbes and Marshall. And,
    Sir George Ballingall's Military Surgery.
    Marshall on the Enlisting, Discharging and Pensioning of Soldiers, 2d
      edit: Edinburgh, 1839.
  Professor Dunglison, in his Medical Dictionary, vol. 1, Art. Feigned Dis- 
6
FEIGNED  DISEASES.
  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 re-
quisitions, or the performance of work in prisons.   Fodere
states  that he has observed a feverish state of the system
thus induced by violent exercise ; and then^calling for the
physician, has noticed the 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  bed-clothes, he
was seen, not in the cold, but in the sweating  stage, produced
by his exertions.  Of all  cases  of feigned fever, it may be
remarked that they are ephemeral.  A day or two's exami-
nation generally developes the deceit, as a  frequent repeti-
tion of the use of stimulants is too hazardous, and real disease
might then be the consequence.   In doubtful cases, the re-
marks of Dr. Hennen should be remembered :  " Neither the
quickness of the pulse, nor the heat of the  skin, are infal-
libly 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.  Hutchison
saw a French  prisoner,  with an extremely small  and rapid
pulse;  his tongue was covered with a brown coating, the
eighth of an inch thick, and withal he was  vomiting.   The
smell alone of the ejections  proved that he had swallowed
tobacco; and  on removing the  matter from the  tongue, it
was found to be common brown soap. After this,  he reco-
vered in a few hours.   Chalk,  pipe clay, brick dust, flour,
have all been used for this purpose.   I may also add,  that

eases, has given a tabular  view of them, wth  the mode of excitation and de-
tection.
  * Hennen, p. 198.  "Scrubbing the skin with a hard  brush, gives a flush
difficult to distinguish from the color caused by fever, and only to be detected
by waiting patiently by the bedside until it subsides."—Dunlop. 
FEIGNED DISEASES.
7
those feigning  intermittents, often pretend that the  chill
comes on during the night.  This is a  very uncommon cir-
cumstance 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 ex-
amine whether ligatures have not been  applied to interrupt
the pulsation, and he should also ascertain whether the ar-
teries 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 heath,
who had formerly been a patient there.  The attending phy-
sician examined the pulse at the right wrist, but found none;
he then tried the left, but with similar  success.   The  trick
was carried on for several days ;  at the end of which time,
it was discovered that the patient was in  sound health, but
that whenever the pulse was to be examined, he pressed his
finger on  the artery under the armpit.f
  Ligatures  have sometimes been applied, to produce the
appearance 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,
  * Marshall, p. 110.
  t " 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 wrist; 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 present in the possession of my
friend Mr. G. S. Pattison, of Baltimore, U. S., where a slip of muscle passed
across the humeral artery, and impeded its action.  On inquiry being  made,
it was found that the subject had been a servant girl; and though strong and
healthy in other respects, she could never, for any length of time, pump a
well or switch a carpet.
  " In the army hospital, where I have been accustomed to skulkers of all
kinds, whenever I suspected a man of deceiving me as to his pulse, I  felt it
at the temporal or carotid artery, under the pretext of saving him  from the
trouble of taking his arm from under the bedclothes."—Dunlop. 
8
FEIGNED DISEASES.
this purple and swollen state of the face disappeared,  and
the irregular action of the heart ceased.*
  Internal remedies have  also been used to produce palpi-
tation 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 in himself, but sold his secret  and his
drugs to others, so that many in the same corps (the  marine
artillery) were  affected with it, and in consequence invalid-
ed, before the deception was discovered.!   Dr. Quarrier,
who has given  us this account, states that  suspicion was at
length excited, and the secret was discovered by the  con-
fession of the individual.  When a sudden and decisive re-
sult was sought for, as much as a drachm was given, and it
caused vomiting, purging, syncope, tremors, and great nerv-
ous irritability, which were followed by great and inordinate
action of the heart  and arteries; and  this in its turn was
succeeded by great debility,  or a disposition 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 instan-
ces were nearly fatal.J  Garlic, tobacco, and other irritating
substances, introduced into the rectum, have been known to
cause violent palpitations and fever.

   Consumption.  This is sometimes feigned by men desirous
of obtaining a discharge.   They complain of pain  in  the
chest, and cough,  produce  emaciation by abstinence  and
drinking vinegar; and mix up the expectoration, it may be
  * Scott. Cyclop. Prac. Med., Vol. 2, p. 138
.-LnfAt Sf Gei\eralHo?Pital at Chatham, this was lately practiced to aereat
extent.  The mode employed was, to take fifteen grains Kellebore 3Eh
produced great excitement, and which was maintained by taking four Irakis
SiLy^uS "onTman^r6" '* Tn Wh° had b'en s^anTto^aT
Dunlop                 °k aQ overdose> a»d died in consequence."-
soldSjsW^he' I™ i?"  ^ C^y\e ?XPresses his conviction thatmany
Thus he has fmfJfth  kofqulckenmg their pulse, when they expect a visit
Ihus he has found the beats as frequent as 120 or 130 in a minute  • and in
STir^ in a l^er of an hour, they wer?reduced 30 or 
FEIGNED  DISEASES.
9
of catarrh, with pus obtained from others, and tinge it with
blood from the gums.*  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
enumerate most of the symptoms correctly.  One recruit,
however, was so unfortunate as to refer his pain in the liver
to the left side, and was cured by the mistura diabolica regu-
larly exhibited.!  The case however requires close exam-
ination, as to the pulse, local enlargement, secretions and ex-
cretions ; 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 malin-
gerer.J

   Pain, under all its forms of rheumatism, lumbago, sciatica,
or in the  hip  and  knee joints, &c, is one of the most  fre-
quently simulated diseases ; and in proportion to the facility
of assuming it,  must be the vigilance of those whose duty
it is to detect the fraud.  The inquiry should be made in all
suspicious cases, where the disease is seated—what is pro-
bably its  cause—the nature of the pain—its duration—its
symptoms and effects, and what remedies have been already
usedl
   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
generally of that  kind  which is  deemed  a slight disease.
Pain in the external parts  is, moreover, often  accompanied
with heat, redness,  change of color, or  tumour.  Gout is
sometimes pretended, and above all, rheumatism, for which
the soldier is  always ready to assign sleeping on the ground

  * Marshall, p. 120.
  f Marshall, p.  114.  This consists of Glauber's salts, infusion of tobacco,
assafoetida, &c, given in small quantities, but so frequently repeated as to
keep the taste in  the mouth.
  X Cheyne, p. 173. 
 10                FEIGNED DISEASES.
 as the cause.  Both of these diseases have diagnostic symp-
 toms—redness, &c, in the one; and tumefaction, or dimi-
 nution 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 symp-
 toms 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 respi-
 ration ;  so  also in the bowels and kidneys.   Each has its
 peculiar symptoms; which,  if the disease  be  real, are not
 periodical or occasional in their attack,  but incessant, and
 their severity is generally greater during the night.  Inquiry
 ought also to be made concerning the cause of sickness, and
 a comparison drawn between it and the violence of the ma-
 lady.  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, impor-
 tant 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  vio-
 lent pain is  stated to be present, and the  patient notwith-
 standing enjoys a good appetite, and sleeps well, we have
reason to doubt  its severity.  Much may  also be learned
from the remedies 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 in-
 duced, 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 com-
 plained of violent  pain,  sometimes in one limb, and  some-
 times m another,  and occasionally in the thorax or pericra- 
                    FEIGNED DISEASES.                  11
nium,  without any external sign to indicate  its existence.
He died at last in the hospital, from the effects of the mala-
dy, 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 was destroyed  solely from the repetition and dura-
tion of these pains."*  This case  induced a determination
in our author to  be more lenient in future.  Its  success will
be seen in the following instances :  An artillerist from the
garrison  of Fort de Bouc,  was  brought to the hospital at
Martigues, with  a violent pain in the left leg, and which was
attributed to sleeping on  the damp ground.  During  the
space  of eight months, a variety of antimonial preparations,
together with  mercurials and tonics, when indicated, were
administered, along  with local  remedies,  but without any
relief.   The leg, from the repeated use of epispastics and
cauteries, became thin, and rather shorter  than the other;
while from the low diet ordered, there  was a general pale-
ness and lankness of the system.  Under these  circumstan-
ces,  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,  walking without his crutch.  On being put in
prison, he avowed the fraud.
  Another case was that of a deserter,  a Piedmontese, con-
demned to hard  labor.  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 hos-
  * Fodere", vol. 2, p. 471.  Dr. James Johnson relates of a man who com-
plained 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 discover-
ed in the shoulder joint, from which large quantities of pus were evacuated.
Anchylosis of the joint followed.  Medico-Chirurgical Review, vol. 4, p.
596.  Probable the same case is given in the Cyclopedia of Practical Medi-
cine, vol. 2, p. 250. 
12                  FEIGNED DISEASES.

pital, where he remained thirteen months.  He supported
during that time, with the greatest fortitude, the application
of epispastics, moxa, and cupping ;  asked earnestly for the
trial of new remedies, and excited the commiseration of all
who saw him.   At the end of the above period he was  dis-
missed.   In a short time  he abandoned the use of his
crutches, and never employed them except when he expect-
ed to be observed.*
  It is evident from these cases, that the difficulty of detec-
tion is often great.   " The imposition is more frequently dis-
covered 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 posi-
tively to deny, may be discovered to  be feigned by exami-
nation 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 exhib-
ited.   About midnight he was visited by the medical officer,
and found sound asleep.   Pressure was made  on the abdo-
men, and  afterwards considerable  kneading, before  he
awoke.§
  Lumbago,  where the  body  has been bent nearly double,
has been repeatedly removed in a moment, by Baron Percy,
holding the individual in an interesting conversation, whilst
an  assistant approached insidiously  and pierced him behind
with a long needle.
  Chronic rheumatism,  according to Dr. Cheyne, is distin-
guished by some disorder of the  digestive organs, impaired

  *  Fodere, vol. 2, p. 437, 474.             f Marshall, p. 115
  X  In the case of a deserter, who feigned rheumatism of the  legs, and on
whom, blisters, and moxa produced no effect, a cure was speedily effected bv
resorting to  the prescription of Cadet De Vaux,  viz: drinking large quanti-
ties of warm water.  In a few days he declared himself well. Fallot p 37
  Dr.  Coche relates the case of a French soldier who feigned lumbago'   Six
moxas were in succession applied during the ten  months that he was in the
hospital; and he only yielded when he saw the physician was about recom-
mencing 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 dis-
ease, psoas abscess for example, for a feigned one
  § Marshall, p. 118.               5 
FEIGNED DISEASES.
13
appetite, a degree of pyrexia  in  the evening, yielding du-

ring the night to perspiration.  There is also some emacia-

tion, wasting of the muscles of the affected limbs, and puf-

finess  of the joint.   The feigned, on the  contrary,  do not

lose their healthy appearance—have no fever—do not be-

come worse with  damp weather, but are complaining at all

times—and even allege that  they have entirely lost the use

of  the  part affected,  which seldom happens in real rheuma-

tism.*

   An  interesting case of feigned  tic douloureux, or neural-

gia, is  mentioned by Dr. A. T. Thomson  in his Lectures.

It occurred in the person of  a  young girl aged fifteen, who

pretended to suffer great pain just back of  the symphysis of

the lower jaw.  It produced her removal  from school, the

object  she had in view.   On a subsequent attack, Dr. Thom-

son resolved to try the effect of a strong mental impression;

and understanding that she  entertained  great  antipathy

against a dog, informed her that the  only remedy remaining

was to rub  the affected part over the back of that  animal.

The consequence was, an immediate  removal of the disease

and its continued absence for eighteen  months.   This case

according to Dr. Thomson, has been published in the medi-

cal journals  as an illustration of the effect of mental im-

pressions on  the  nervous  system.   Yet, eight years after-

wards, when this female had become a wife and mother, she

wrote to him,  stating that the  whole course of the  disease

had been a deception.!

  * Cheyne, p. 170.  A female presented  herself, some years since, at Mr.
Wardrop's Hospital of Surgery in London.  She complained of most excru-
ciating pain at the inner part of the right arm, in the situation of the biceps
muscle; and this she  said extended m 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 un-
dergo any thing in order to be rid of this complaint, under which she had la-
bored for five years.  It was ascertained that she had already been in four hos-
pitals on a similar story.   There was no fever, and her health and appearance
were good.—Lancet, vol. 12, p. 603.
  Another illustration is given by Sir Benjamin Brodie, in the case of a young
lady of distinction, who complained of pain in the knee of an hysterical char-
acter, but yet with such swelling, that it induced him to suppose that there
 must be some structural mischief.  It was, however, found that a ligature had
 been tied around the thigh every night, in order to produce the effect. Medi-
 co-Chirurgical Review, vol. 29, p. 245.
   f London Medical and Surgical Journal, vol. 7, p. 101. 
14                 FEIGNED DISEASES.

  It is  easy  to feign hemoptysis,  by pretending to cough,
and then spitting out the blood which comes from pricking
the gums;  or it may be assumed by constantly holding some
armenian bole or vermilion  paint  under the tongue, which
tinges the saliva of a red color.  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 florid  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
hamatemesis,  or  vomiting of blood; and  for  this purpose,
drink the blood of some animal, or use some colored liquid,
and then throw it up in the presence of spectators.  Sauv-
ages, in his Nosology, mentions of a  young lady, who, be-
ing 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 was suspected, he
stated that she was really ill, and she thus obtained her lib-
erty.*  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 urine has been frequently feigned,  either by adding
blood to the  excretion, or by using substances that have the
quality of reddening it,  such as  the prickly pear (Indian
fig,)t the  beet  root, madder, &c.  The Spaniards, on their
discovery  of America, ate largely of  the Indian fig, and
were much  alarmed at the consequence.   It only requires
  * Mahon, vol. 1, p. 361.
  t Metzger, p. 462. Hutchison mentions  a case where  a man had blood
brought to him from the butcher's, and which he swallowed, (p. 178 ) The
slaves in the West Indies have been known  to swallow their own blood
 Scott, vol. 2, p. 143.
  X Zacchias, lib. 3, tit. 2, p. 290.             ' 
                     FEIGNED DISEASES.                  15

 cautious examination  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 be-
 fore and during the process.  The blood in real cases, when
 subjected to heat,  furnishes a  brown  coagulum.  The  at-
 tendant symptoms, also, can hardly be mistaken.*  Hennen,
 in his  Military Surgery,  quotes a similar example from El-
 licot's Travels for determining  the boundary of the United
 States.  He says, " his people ate very plentifully of this
 substance at an island of the Mississippi,,and were not a
 little surprised the next morning at finding their urine ap-
 pear as if it had been highly tinged with cochineal.  No in-
 convenience resulted from it."
   Another vegetable substance,  with which we are more fa-
 miliar, and which  will produce the same effect,  is beet root.
 Desault relates the case of a person who  noticed that he
 every morning voided urine  of a deep red color, exactly
 such as would result from adding fresh blood to that liquid,
 except  that no  deposit took   place.   The man  became
 frightened and consulted M. Roux, who, after some  exami-
 nation,  began to suspect that the color  was owing to some-
 thing else than the admixture of blood.  It turned out that
 his patient  was in the habit of  supping every night upon
 the red beet root, and as soon as he relinquished this as an
 article  of diet, the  supposed bloody urine was wanting.
 High colored urine may be  produced 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 appearance  of disease.!

  * Dr. Watson on Hematuria, in the Medico-Chirurgical Review, vol. 21,
p. 491.  Dr Watson's Lectures in London Med. Gazette, vol. 30, p. 546.
  f A boy at Bilson, (Staffordshire,) A. D. 1617, accused a women of having
bewitched him, and succeeded so well in feigning convulsions, etc., that she
was tried and condemned to die.  Dr. Morton, the bishop of the diocese, sus-
pected imposture, and caused him to be confined and watched.   He grew ap-
parently worse, and the urine which he openly voided was black.  The good
bishop almost despaired of saving the life of the female, in consequence of
this dangerous situation of the boy.  A vigilant spy, however, detected him
in dipping a small piece of cotton  in an ink bottle placed at the side of his
bed. . This he put inside of the prepuce, in order to give the urine its color
when he excreted in public.  Memoirs of Literature, vol. 4, p. 357. 
16                 FEIGNED DISEASES.
  Hemorrhoids have been imitated, like other hemorrhagic
complaints.   So also  has  menstruation,  by  staining  the
clothes and body with  borrowed blood.  Baron Percy says
that haemorrhoidal  tumours have been very  artfully  con-
structed, 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 colored 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 accom-
panied with vomiting,  pain and  sleeplessness.  The most
unequivocal  symptom, and  therefore the most to  be  relied
on, is the color of the adnata.  If yellow, jaundice is pres-
ent, originating either from disease or some artificial cause.
A French conscript, however, always  put snuff in his eyes
before the  surgeon'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 sys-
tem does not correspond with the appearance.J

   Cachexia and great weakness are also  often  feigned, by
using  substances to make the face appear pale and  livid.
In these  instances,  inquire whether there is a loss  of  appe-
tite, or of  strength, or swelling of the legs.   Examine also

  * Scott, vol. 2, p. 143.
•  t P^y.qu-ted bv s<r0.tt> &c-  " 1° jaundice, the urine colors linen dipped
in it.  This is observed in no  other disease."  Quarterly Journal of Foreign
Medicine and Surgery, vol. 4, p. 340.
  X Orfila, Lecons, vol. 1, p. 422. 
                      FEIGNED DISEASES.                   17


 the pulse and'the skin, whether the first be strong, and the

 latter hot.*


   Diarrhea  and  Dysentery.  The  former of these has been

 excited, 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  substan-

 ces have been introduced into the rectum, to imitate the  mu-

 cous  discharges  in  dysentery; and  with  such persons, of

 course  it  is not  difficult to procure  the addition of blood.

 The stools have  been broken  down with  their own urine.

 It requires watchfulness  to detect these,  and particularly

 they  should  be  obliged to  use a night chair.  Many  fine

 young men are said to have lost their lives in  consequence

 of the use of the above substances.!


   Involuntary  stools.  If these be  solid, and the sphincter

 contracts on the finger, opium and  solid food should be giv-

 en, and a  careful watch preserved.    Such individuals  are

 generally  subjects for a  court-martial.   On one of these,

 (who also pretended sciatica and loss of the use of his lower

 extremities,)  in the  General Hospital  at Lisbon, it was de-

 termined to  apply the actual cautery.   He was laid on his

 face,  and  held  by  three  men.    When the  surgeon  ap-


  * A very curious work was published at New Haven in 1817, under the ti-
 tle of " The Mysterious Stranger, or Memoirs of Henry More Smith." It
 purports to be written by  the Sheriff of King's county, New Brunswick; and
 I have repeatedly understood that there is no doubt of the authenticity of all
 the material facts.  The hero of the story was a  most accomplished villain.
 While in the prison at Kingston (New Brunswick,) he began to spit blood,
 had a violent cough and fever, and gradually wasted away, so that those who
 visited him supposed that his death was rapidly approaching.  This continued
 for a fortnight, and his weakness was so great that he had to be lifted up in
 order to take medicine  or nutriment.  A turnkey 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 ma-
 ny adventures and hair-breadth escapes, he was now a prisoner in the New-
 gate of Connecticut.  There also he has feigned cachexia, haemoptysis, and epi-
 lepsy, but with no success.  He confessed that he pretended to raise blood by
pounding a brick into powder, putting it in a small rag, and chewing it in his
mouth.   He contrived to  vary his pulse by striking his elbows; and said he
had taken the flesh off his body in ten days,  by sucking a copper cent in his
mouth all night, and swallowing the saliva.
  t Hutchison, p. 181.  Cheyne, p. 171.
                      2 
18                  FEIGNED DISEASES,

plied the red hot spatula to his  hip, he kicked  down one of
the men who held him, and declared that he had been sham-
ming*
  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, fre-
quent  vomiting is  a symptom  of  organic  disease.   Dr.
Hutchison had a case in the  Baltic, where it occurred  so
frequently as to become alarming.  It was soon observed,
however, that the vomiting was periodical, occurring  when
the  physician paid his morning or evening visit; and in the
interval, the patient ate  his usual allowance of food, with-
out 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  bed-clothes.   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 watched, to  avoid mistakes.  The  stomach may be dis-
eased.  The  absence of  emaciation, and the continuance of
a good appetite, are, however,  circumstances indicating a
healthy state of that organ.J  To  vomiting, some, accord-
ing to Orfila, have added the  complaint of difficult  degluti-
tion.

  Apoplexy will only be  feigned by those who hope for im-
mediate 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

  *  Cheyne, p. 147.
  t  Hutchison, p. 168.
  X  Cheyne, p. 167. A remarkable  case of voluntary vomiting occurred
some years since in this country, in a distinguished public individual. I for-
bear relating any of the particulars, lest I might unwittingly trench on  the
sacred privacy of domestic affections  and sorrows.  "Nonsibi, sed patriae
vixit." 
FEIGNED DISEASES.
19
that feigned apoplectics cannot resist the action of sternu-
tatories.

   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 particu-
 larly examined z  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 ; andthe existence of the disease is to be doubt-
ed, 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 reme-
dies 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 ac-
cident has  succeeded in developing the fraud.  Dr. Davies,
at Chatham, (England,) knocked gently,  at the dusk of the
evening, on the window of one who could not move,  and
had lain in bed for a month.   On  calling him  gently by
name, he was at the window in an instant.!
  Dr. Hutchison gave to one, who said he had a paralysis
of the right arm, fifty drops of laudanum in his tea.  When
sound asleep, the doctor went into his apartment, and tickled
his right ear with a feather, when instantly the lame hand
was raised.   A repetition of this, caused more active exer-
tion.   In another instance, the right hand was  said to be
powerless.   The patient was brought before a board of me-
dical  officers, for the purpose of being invalided, if found

  * Cheyne, p. 150.                t Scott, vol. 2, p. 134. 
20                   FEIGNED  DISEASES.

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 un-
der the hand.  As it came nearer and nearer, the hand grad-
ually 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. Mar-
shall, 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 inva-
lided.   While in the harbor, an  alarm of fire was given on
board ship.  All hurried to the boat alongside,  and on reach-
ing the quay, the passengers were mustered.  It was found
that the invalid had  saved not only himself, but his trunk
and clothes.!
  In these and  similar cases,  it is remarkable how parts  of
the body can be kept for so long a time (two or three years)
in a state of inactivity, with hardly any diminution of mus-
cular power.  Dr. Cheyne relates some laughable instances
of agility, immediately consequent on  successful  deception.
When the malingerers were  sure of their discharge, they
threw their crutches before them,  and  disappeared in a mo-
ment.J

  * Hutchison, p. 164.  " Simulators  are commonly not aware  that paralytic
limbs are very pliant,  and they occasionally offer some resistance when any
attempt is made to bend them.  A healthy arm trembles when a heavy weight
is appended to it—a circumstance which does not take place when it is para-
lytic."  Marshall on Enlisting and Discharging Soldiers, p. 152.
  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 detection had failed, the fraud was discovered by rubbing cowhaze
(Dolichos prunens) on the  soles of the  feet, at bedtime.  He walked and
groaned all night, and the next morning reported himself fit for duty.  Page
  X 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 
FEIGNED  DISEASES.
21
   In only one case (says Mr. Marshall) has he seen palsy of

the upper eyelid attempted; and here the muscular  resist-

ance to every effort to raise it, showed the deception.*

   In  some  recent cases, ether has been employed  as the

detecting agent.  M. Baudens  states two instances,  one of

 simulated and  the other real  infirmity,  in which its inhala-

 tion determined the nature  of each.

    A soldier of the 25th regiment,  who had been in service

 for eighteen months,  presented  himself with an apparently

 severe  spinal disease.   The back  was  bent  almost in the

 form of a semi-circle,  and  when placed on a  table,  in the

 recumbent posture,  the lumbar region was the only part that

 touched it.    Possibly by allowing him to remain a sufficient

 length  of  time  in this state, the contractility  might  have

 yielded; but M. Baudens forbade that he should be handled,

 and even directed a bolster to be placed under his  head, as

a means of  support  against fatigue.

   In four minutes after inhaling  the ether, insensibility came

on, and to this soon succeeded a complete relaxation of the

limbs.   The  bolster was gently withdrawn, and the  head,

neck, shoulders  and back in  regular  succession descended


time appointed, had a severe paralytic stroke, which rendered one  side en-
tirely powerless.  In this helpless condition, he was carried from the prison
into court on tt 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 recess was granted, to enable him to be reconveyed to his apartmeht 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 tribu-
nal, 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 pro-
secuting attorney encountered the  fellow at the foot of Courtlandt street, in
New-York, who told him laughingly that he had recovered;  and then, drop-
ping his arm and contracting his leg, in true paralytic style, hopped dff, leav-
ing the learned counsel to his own reflections !"
  * So far as I am enabled to judge, the case noticed by Dr. McLoughlin, of
Paris, in  his  " Consultation Medico-legale  sur quelques signes de Para-
lysies vraies, et sur leur vateur relative," Paris, 1841, is, to a great extent, one
of feigned paralysis, although the opinion of Cruveilhier was to the contrary.
The details are too voluminous to be here given, but the pamphlet deserves
a perusal.
    See also Medico-Chirurgical Review, new series, vol. 2, p. 559, for a still
later analysis of the case.  The woman is (1845) alive and well,  at  Naples,
although Cruveilhier, years ago, predicted her speedy death, from disease of
stbe brain. 
22
FEIGNED  DISEASES.
 in close contact with the table, by their own weight, so that
 he lay, in the  words of the reporter, a-plomb.  The deceit
 was manifest.
  In the second case, a new recruit applied for a discharge,
 on the ground of having a complete anchylosis of the-coxo-
 femoral articulation of the left side.  On moving the limb,
 there was  a  spontaneous contraction, which seemed to be
 voluntary, and this caused  suspicion.   The patient readily
 submitted to the test of the ether.   In five minutes,  symp-
 toms of somnolency began to show themselves, and in eight
 the  insensibility was complete; but the contraction  still
 continued, nor was there a complete relaxation of the mus-
 cular system, until at the end of  twelve minutes.  On mov-
 ing the limb  at this time, the fact of a complete anchylosis
 was  perfectly established.   It was, in fact, perfectly impos-
 sible to make any motion with the femur, without embracing
 that of  the whole pelvis.  No question remained as to the
 propriety  of discharging  this  person.—{Comptes Rendus,
 March 8, 1847.)
  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  affect-
 ed—whether the face is livid, 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 feeling, so that sternutatories,.

 * Fallot remarks (p. 23), that in the real epileptic, the pulse is often small
and hard, and sometimes slow in the midst of the most horrid convulsions •
while in the dissembler, it necessarily, from his violent efforts, is always full
and quick. The heart, however, beats rapidly and violently in real cases.
and this is with great difficulty imitated.
 t In the epileptic fit, there is an entire loss of consciousness.—Waxsow, 
                    FEIGNED DISEASES.                  23

and even the  actual  cautery,  produce no  effect during the
paroxysm.  This immediately gives us a mode of detecting
artifice.   An  artillerist at Martigues had acquired, from fre-
quent practice, such skill in feigning this disease, as almost
to deceive  Fodere;  and this  indeed would have been the
case, had he been also able to resist the application of fire.
This always recovered him, though he lay apparently with-
out sense, his eyes starting from their orbits, and his mouth
foaming.  He afterwards confessed, that he never counter-
feited a  paroxysm without feeling for several days a violent
pain  in the head.*
   De Haen was  consulted  by a mother,  whose daughter,
after being cured of deafness,  became epileptic.  He direct-
ed 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 resem-
bled a Deal  one,  as the hands  were 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 drawn, the pupil
of the eye was dilated, and when opened, 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  attend-
ants 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  fe-
male, aged  twenty, confined in prison for a murder,  had on
her the marks of  three successive  burnings,  which  she re-
sisted without confessing the  deceit.  De Haen, and many
  * Foder6, vol. 2, p. 464. " A case is related of a country boy, who 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 occasions of this kind,  it is proper to ex-
amine  the  mouth for soap, which is easily done by pressing the cheeks
against the grinder teeth.  1 once saw a pseudo-epileptic in Edinburgh, re-
covered by the simple expedient of  calling a police officer."—Dunlop.
The soap is put into the mouth to produce frothing. 
24
FEIGNED DISEASES.
others, saw her imitate a paroxysm of epilepsy with  such

horrible accuracy, that the feigned was supposed to be real,

until in the midst of it, being ordered to rise, she got up and

walked away.  In such an instance, our author recommends

the remedy used  at Paris.  A beggar there  often  fell into

fits in the street.   A bed of straw, through compassion, was

prepared,  on which he might be laid,  to  prevent injury

to himself.   When next attacked, he was laid on it, and the

four corners set on fire.  He sprang up and  fled.*

  Various substances have been successfully applied to de-

tect the imposition, as  snuff blown into  the nostrils, (and

Dr. Hutchison  remarks that he  had tried this  on the  real,

without any effect;)  flannel dipped into hot water,  and ap-

plied to the  side; a drop of alcohol  poured into  the eye,

and pouring a small stream of water on the face.  Aloes and

salt insinuated into the mouth,  have  broken up a feigned

paroxysm.!  A few drops of hot water suddenly thrown on

the legs, may also recover the individual.

   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

correctly, 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

  * De Haen's Ratio Medendi, vol.  2, p. 56, &c.  The following case  should
not be omitted:  " Maturam virginem procorum penuria torquet, angitque.
Forte casu audit a garrientibus inter sese  matronis epilepsiam  matrimonio
nonnunquam curari.  Ergo earn artificiose fingere discit, quo cogat parentes
se viro jungere."  (Ibid., p. 55.)  The following is a case in point, with re-
spect 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 inquired whether, on the access of the disease, she felt
pain extending  from her arm to her shoulder, and from thence to the oppo-
site 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 Blatch-
ford's Dissertation, already referred to.
   f Mr. Marshall mentions 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.
   X Medico-Chirurgical Review, vol. 4, p. 598.   The impostor cannot, how-
ever, render his eyes altogether insensible to light, and if narrowly watched,
he will be found to open them occasionally, so as to observe the  effect pro-
duced on those around him.  (Marshall.)
   § Marc.  Orfila's Lemons, vol. 1, p. 414. 
                     FEIGNED DISEASES.                   25

always come on simultaneously in the real;  nor is there any
regular  period in the  return of the  fits.  Thus, Vaidy, a
French surgeon, detected a case by stating to the individual
that the real disease always came on in the morning.  He
swallowed the bait, and the attack always  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.!

   Convulsions, when feigned, do not present that stiffness of
the muscles, or that resistance and rapidity of action, which
appear in the real.  The treatment must be similar to that
of epilepsy.   Twenty years ago, says Fodere, I proved, by
the aid of fire and force applied to  the antagonist muscles,
that a woman,  who  had imposed on  a  good  curate in the
Alps, was an impostor.   She was  supposed to be possessed
—fell down apparently without sense, and made frightful
contortions.  She could not, however, withstand the above
tests, and rose  up, to her great confusion, and the astonish-
ment of the  spectators.§   In feigned cases, the muscles do
not stiffen and contract  as in real ones.   Hence, continued
action of the antagonist ones will develope the fraud.

  * Marshall, p. 178.
  t Dictionnaire des Sciences Medicales, Art. Epilepsie simulee, (by Marc.)
Dr. Watson (London Med. Gazette, vol. 28, p. 372) disputes this, and states
that directly the opposite occurs.  In a real and most severe case of epilepsy
occurring in a criminal at Paris, Var&iaud, the medical examiner found the
teeth worn at every point where the upper had come in contact with the low-
er 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 D'Hygiene, vol. 3, p. 429.
  | Dumas of Montpelier, in his work on the Physiognomy peculiar to some
chronic diseases, mentions, that in constitutional epileptics, the facial angle
is always under 80°, and recedes from that to 70°.  He found this to be the
case in many instances, at the hospital in Toulouse.  (London Medical and
Physical Journal, vol. 27, p. 38.)
  § Fodere, vol. 2, p. 468. 
26                 FEIGNED  DISEASES.

  The followingls a ludicrous feigned case of a minor form
of convulsive action, confined to a particular part.  A sea-
man pretended  to have a convulsive motion of the muscles
about the neck and  upper part of the trunk, so as to pro-
duce an involuntary and  incessant shrugging of the shoul-
ders.   The surgeon under pretence  of being very desirous
to ascertain how often  the  alternate  elevation and  depres-
sion of the scapula occurred in the day, set  some of his
comrades to watch him; one  of whom made a mark upon a
board with a piece of chalk, for every shrug of the impos-
tor.   He held out nearly twenty-four hours, and then ex-
claiming, "You have done me!" offered to return to duty.*
  " A young person of hysteric disposition was bled and
soon afterwards became affected with contraction of the fin-
gers into the  palm of the hand.  Under the idea  that the
nerve had  been wounded, the cicatrix left by the venesec-
tion was removed; the spasmodic action of the fingers im-
mediately became relaxed, and their use was restored.   By
degrees, the spasm returned,  and the operation  was repeat-
ed with the same good effect, less prompt but not less per-
fect than before.  The spasm returned a third time.
  " I now began to suspect that even this  strange degree of
spasm, during which the  nails actually  grew into the palm
of the hand, was not altogether real.  I suggested that the
patient should  be  blindfolded, and that a mock  operation
should be  performed.  It was performed:  superficial  but
painful lacerations were made in  the integuments; it was
pretended.that  a nerve was  laid bare, was divided, and it
was loudly said, " Now the spasm will  cease, and she will
open her hand," and  she did open her hand!  Water was
colored with the tinctura lavendulse composita, for the want
of blood.  Again, after a time the spasm  seemed to be re-
turning, but now the whole truth was told, and the patient,
for fear of exposure, took care to remain well."
  This case is quoted from  Dr. Marshall Hall's  Practical
 Observations and Suggestions in Medicine, in the Medico-Chi-
  *  Edinburgh Medical and Surgical Journal, vol. 30, p. 179. A somewhat
umilar case occurred to Dr. Elliotson.  Lancet, N. S. vol. 7, p. 273. 
FEIGNED DISEASES.
2T
rurgical Review, New Series, vol. 1, p. 385, with the obser-
vation, that if Dr. Hall did not vouch for its authenticity, they
would have taken it  for one of the cleverly told stories in
the " Diary of a Physician."

   Chorea is sometimes  attempted by our  mendicants.  It
would tend to discover the reality of the disease, if we ap-
plied the suggestion of Darwin—forcing them to make per-
petual and repeated efforts to move the limb in the designed
direction.  They should be secretly watched.
1   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 becomes suddenly motionless, while  the joints re-
main flexible, and yet external objects make no  impression.
In so mysterious a disease, if there be any  cause for suspi-
cion, the remedies already indicated should be applied.   Dr.
Gooch quotes the following feigned case from Mr. Aberne-
thy's Hunterian Oration:
  "A patient in the  hospital feigned to be afflicted  with
catalepsy; in which  disorder it is  said a person loses all
consciousness 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  latter circumstance;  and  as the man
  * The following references to some  cases may assist in forming an opinion:
  Memoirs of Literature, vol. 3, p. 100,194.  Cases by Deidier.
  Medical Commentaries, vol. 10, p 242.
  American  Medical and Philosophical Register, vol. 1, p. 47.  Case by Dr
Stearns.
  Cyclopedia of  Practical Medicine, Art. Catalepsy, by Dr. Joy.
  Edinburgh Medical and Surgical Journal, vol. 39, p. 409.
  Medico-Chirurgical Review, vol. 8,  p. 201.
  Lancet, N. S. vol. 6, p. 277. A case treated by Dr. Duncan, junior, in the
Edinburgh Royal Infirmary.
  Copland's Dictionary of Medicine, Art. Catalepsy.
  Lancet.N. S. vol. 11, p. 532.  Vol. 16, p. 129, 443.  Vol. 17, p. 23.  Cases
by Mr. G. Burnett, Mr. Ellis, Dr. Hannay, and Dr. Kelso. Vol. 22, p. 725,
By Dr. Imray.  Vol. 32, p. 633.  By Dr. Chowne.
  American Journal Med. Sciences, vol. 26, p. 337, case  by Dr. Isaac Parrish.
  Encyclographie Des Sciences  Medicales, June 1842,  (from Gazette Medi-
cale.)  Case  by  Dr. Duvard. 
28
FEIGNED DISEASES.
 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 sei-
 zure.   I  wonder,' continued  he,  'what  additional  weight
 they would support;'  and so saying, he slipped the noose
 of a cord round the wrist, and hung to the other end  a small
 weight, which produced no  alteration in the position of  the
 hand.  Then, after a short time, with a pair of scissors, he
 imperceptibly  snipped the  cord.   The  weight fell  to the
 ground, and the hand was suddenly raised in the  air, by the
 increased effort which volition had excited for the support
 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
 sternutatories.  In the former, it  is difficult to dissemble a
 small, feeble  and  languishing pulse,  an almost suppressed
 respiration, cold sweats,  coldness of the  extremities  and
 paleness  of the countenance.  Cases are however men-
 tioned, where individuals have possessed the power  of sus-
 pending, or at least moderating the action of the  heart;  as,
 on the contrary, some have been able to increase  it  at will.
 Dr. Cleghorn of Glasgow mentions in his lectures, of a per-
 son whom he knew, who could feign death, and had so com-
 pletely the power of moderating  the aetion 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
  * Transactions of the London College of Physicians, vol 6 p 272
  t Pans' Med.cal Jurisprudence, vol. 1, p. 360. Male, p. 267"; Hennen, p.
466   It must also be recollected that several of the complaints enumerated
in this chapter as hsemoptisis  gravel, &c, are feigned by hysterical females.
See Laycock on Hysteria in Edin. Med. & Surg. Journal, vol. 50, p. 65
   Some of the shapes assumed by this pathological proteus are hideous and
disgusting.  Paralysis of the muscular fibres of the bladder, or spasm of its
sphincters, sometimes really occurs; sometimes it is only aped, in hysteria
It is a common trick with these patients to pretend that they labor under re'. 
FEIGNED DISEASES.
29
 and others, to say the least, doubtful in their nature.  Dr.

 G.  Smith makes mention of a soldier named Drake, who as-

 sumed 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.*

    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 mi-

 litia, aged eighteen years, and confined in gaol for desertion.

 From the 26th of April to the  8th  of July, 1811, he lay in


 tention of urine, and that, although the bladder is full, they cannot make wa-
 ter.  The daily  introduction of the catheter by a dresser or  apprentice ap-
 pears to gratify their morbid or prurient feelings.  Sometimes, no doubt, the
 difficulty is real, but it is oftener feigned or exaggerated.  I have again and
 again known it disappear, upon  the patient's being left, without pity, to her
 own resources.  But girls have been known to drink their urine, in order to
 conceal the fact of their having been obliged and able to void it.  The state
 of mind evinced by many of these hysterical young persons, is such as to en-
 title them to our deepest commiseration.  The deceptive appearances dis-
 played in the bodily functions and feelings find their counterpart in the men-
 tal.  The patients are deceitful, perverse and obstinate, practising or attempt-
 ing to practice the most aimless and unnatural impositions.  They  will pro-
 duce fragments of common gravel, and assert that these were voided with the
 urine, or they  will secrete cinders and stones in the vagina and pretend to be
 suffering under some calculous disease.  A young woman contrived, in one
 of our hospitals, to make the surgeons believe that she had stone in the blad-
 der, and she actually submitted to be placed on the operating table, and to be
 tied up  in the  posture  for lithotomy, before a  theatre full of students, and
 then the imposture was detected.  Sometimes they simulate suppression of
 urine, and after swallowing what they have passed, vomit it up again, to in-
 duce the belief that the secretion has taken place through a new and unnatu-
 ral channel.
  " It is impossible, I say, not to pity the unhappy victims of this wretched
 disorder, when their morbid propensities drive them to such acts as these.   I
 mention them, because you must expect to meet with such  cases, and be-
 cause, while you take care not to express your suspicions prematurely, or on
 light evidence, you should be on your guard against the mortification of being
 deceived, by the  false signals held out, into active and ill directed measures
 of treatment."—Dr.  Watson's  Lectures on the Practice of Medicine,  in
 Lond. Med.  Gaz., vol.  28, .p. 457.
  * 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 Hospital, many of the medical men were then, and still are of opinion,
 that the disease was real.  I attended him at Hillsea, along with Dr. Hennen
 and Dr.  Knox,  now of Edinburgh, who had the immediate charge of him-
and from every thing I saw, and many experiments I made, I have not the
slightest doubt that he was an impostor."  Dunlop. 
30                  FEIGNED DISEASES.

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 countenance extremely pale";  but  his
respiration  continued  free, and his pulse was of a  healthy
tone.   The  sustenance he received was eggs diluted with
wine, and occasionally tea, which he sucked in through his
teeth,  as  all attempts  to  open  his mouth were fruitless.
Pins were thrust under his finger nails to excite sensation,
but in vain.  It  was conjectured that the  present illness
might be owing to a fall; and a proposal was consequently
made by the surgeon to perform the operation of scalping,
in order to ascertain whether there was not a depression of
the brain.  The  operation was described by him to the pa-
rents at the bedside of  their son, and it was  performed ; the
incisions were made, the scalp drawn up, and the head ex-
amined.  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 ap-
peared, 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 pa-
rent ; and the day  after, was observed at two  miles from
home,  cutting  spars, carrying reeds up a ladder, and assist-
ing 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 imme-

  * 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 approach (not the touch) of a hot iron, caused abundant marks of sensi-
bility. 
FEIGNED DISEASES.
31
diately disappeared:  But popular indignation had nearly
ruined the individual in property, and consigned him for a
time to a jail.

  The following is a recent case in which Mesmerism was
invoked, without its usual success :
  Worship  street,  London.—On  Monday,  a  young man,
named William Bowen, was charged at this office with steal-
ing a linen sheet.  The prisoner, who had a somewhat pen-
sive expression of countenance, of a death-like  paleness,
was supported at the bar by a young man somewhat older
than himself, and who was stated to be his brother; his eyes
were entirely closed, and he had every appearance through-
out the examination of being in a profound sleep.   The po-
lice officer stated that he  was sent for on Saturday night to
a pawnbroker's, where he saw  the prisoner, who had just
before presented the sheet produced for pledge, and which,
the pawnbroker suspecting had been stolen, had determined
to give him into custody.  The  officer found that  the sheet
had been stolen from the prisoner's landlady, who was a
laundress.  Mr. Bingham, the  magistrate, noticing the ap-
pearance  of  the prisoner, asked  him if he understood the
nature of the evidence against him.  The prisoner took no
notice of the question, but remained entirely motionless and
silent, and seemed to be in a state of total insensibility.
Mr. Bingham inquired if  any one could give an explanation
of the prisoner's extraordinary conduct.   Sergeant Lambert
said he could, partially.   Almost immediately after the pris-
oner had reached the station on Saturday night, and  had
given a true description of himself, he appeared to receive
a slight shock,  and then fell into his present state of som-
nolency, in which he  had remained ever since.  No notice
was taken of it for some  time, thinking he might be sleepy,
but as it  at length became manifest that it was not the effect
of fatigue, great alarm was excited lest he should be dying,
and Mr.  Coward, the  divisional  surgeon, was  sent for and
promptly attended, but after being with him a  considerable
time,'went away, declaring he could do nothing for him.  At 
 32                 FEIGNED DISEASES.

 length, one of the officers entered the  station, to whom the
 prisoner's family was slightly known,  and suspecting, from
 the circumstance of one of his brothers being a lecturer on
 mesmerism, that he might be in a mesmeric trance  brought
 on by the position in which he was placed, the brother was
 sent for to get him out of it.   On coming to the station, the
 brother expressed  his inability, after a few experiments to
 relieve him, but  entered into conversation with the prisoner,
 who answered the questions put to him readily, although he
 continued apparently in a sound sleep.  The only question
 put by the brother at the station, that the sergeant could
 recollect, was as to when the prisoner felt he should'come
 out of his  trance, to which  the answer was, as he  under-
 stood  it, " Saturday week, eight in the evening," corres-
 ponding with the hour at which he was taken into custody.
 The prisoner had not taken the slightest nourishment, either
 liquid or solid, since he had  been locked up, nor expressed
 a wish, either verbally  or by gesture, for any thing.  Mr.
 Bingham said, that under these circumstances, he should re-
 mand the prisoner.   The prisoner was then supported out
 by his brother and one of the officers,  but in precisely the
 same  state as when he entered the room.
  The young man was again brought  up on Tuesday, and
 having then recovered from his state of mesmeric coma, the
 case was  gone  into and  satisfactorily proved.  A person
 who stated himself to be the  prisoner's brother, stepped
forward, and, with great  gravity, said his brother  was a
 person  peculiarly  susceptible  of the influence  of mesmer-
ism.   If he looked steadfastly  at  any  particular object, he
 was sure to be thrown into a state of mesmeric coma, which
 deprived him of  the use of his  natural senses.   The mes-
 meric influence operated in different ways upon him, for, on
a former occasion,  when the prisoner  was so  affected, he
manifested a disposition to destroy every thing that came in
his way, and his  friends were obliged to put him under re-
straint. His late visitation was produced by some object to
which his  attention was riveted  last Thursday  evening at
the Surrey Theatre, and his friends, who observed  the fit 
FEIGNED DISEASES.
33
 approaching, exerted themselves without effect to avert it,
 as they knew that he was unconscious of what he did when
 under its influence.  It was urged that the prisoner was in a
 state incapable of judging between right and wrong when the
 offence was committed.   Mr. Bingham could not listen to such
 an excuse.   He  required the prisoner to pay a fine of  20s.
 for  unlawfully  pawning the property, and also 2s., the
 amount received upon  it, or be committed in default for 21
 days  to the House of Correction.—London Atlas, Feb. 24,
 1844.

   Even hydrophobia has been attempted to be feigned both
 in  England  and France3 but with little success.*  And I
 have seen it stated in an extract from the United Service Jour-
 nal, that a beggar once attempted  tetanus at St. Bartholo-
' mew's Hospital.   Mr. Abernethy, however, suspected the
 imposition;  and turning to one  of the surgeons, as if in
 consultation, remarked what a remarkable symptom, in the
 last stage of this  disease, incessant  winking  of the eyes
 was.  The patient immediately began  to wink with both his
 eyes.

  Nostalgia, or maladie  du pays, is a disease common in mili-
 tary 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
 advanced in life, villagers  more than citizens; and among
 nations, it is found to  prevail most in the Swiss, the Savo-
 yards, 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 ad-
 ded,  that " pretenders  generally  express a great desire to
 revisit their native country, whilst those who are really dis-
 eased, are taciturn, express themselves obscurely  on the
 subject of their malady, dare not make an avowal, and are

  * Orfila, Lecons, vol. 1, p. 425.  Medico-Chirurgical Review, vol. 9, p. 261.
                   3 
34                 FEIGNED DISEASES.

little affected by the consolations which  hope or promises
offer to them."*   The healthy color, the strength and regu-
larity of the pulse, and the aversion to low diet and setons,
also serve to distinguish the one from the other.!

   It has been attempted to imitate scrofula, by exciting ul-
cers 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, in-
duced by  potash, &c.%  Various cutaneous affections, as tinea
capitis, pompholyx, &c, have been produced by the applica-
tion 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
perinEeum—a remedy which he in previous cases had found
useful—but without success.  They were discharged; but
it  was shortly discovered that they had  feigned the disease.
The consequence was  an epidemic incontinence  of urine
among their companions  that  remained.  This awakened
the suspicion of our author; and  above all  surprised  that
his remedy produced no effect in any case, he ordered  that
the penis  of every patient should be tied, and on  the knot
a seal placed, which none but the gendarme who  guarded
them should have power  to break, at  such times as they
wished  to urinate.   He charged the guard to visit them from
time to  time, to observe whether the penis was inflated, and
also whether the  urine was not discharged  guttatim.   He
did this from having observed, that in real incontinence of
  * Fodere, 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 Lincolnshire, 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.
   X Orfila, Legons, vol. 1, p. 426. 
FEIGNED DISEASES.
35
urine, the penis becomes enlarged, so as to render it  neces-
sary to remove the ligature in a very short time.   The ex-
pedient succeeded;  it was removed  only at the ordinary pe-
riod, and in twenty-four hours the epidemic vanished.*
   Dr. Hennen observes  that this disease is almost always
detected  by  giving  a full dose of opium at night, without
the  knowledge of the individual, and introducing the cathe-
ter 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 reten-
tion.!  Dr. Comyns cured  its epidemic appearance in an
Irish regiment, by prescribing a  cold  bath every morning
and evening in Lough Neagh.J  In  ordinary practice, it is a
very rare  disease.   The prepuce  and glans penis are found
to be  pale  from its  continuance, and the  clothes exhale an
ammoniacal odor.
   Gonorrhoea has  been  imitated by soldiers,  with caustics
applied to the prepuce.§  Stricture also would seem to be a
complaint with naval officers who wish to leave their ship.
Dr.  Hutchison detected   several, by engaging them in con-
versation, while he  succeeded in introducing the bougie.

   Chemistry supplies us with the means of ascertaining de-
ceit, when  the excretion  of calculi is  feigned.   It teaches the
characters  which designate their animal origin.||   A physi-
  * 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 fre-
quent use of the catheter obviated all the  evil effects that a voluntary sup-
pression might have  produced, and also indicated when  the complaints of
pain and distress were groundless.  (Pages 71 and 74.) By a reference to old
registers, he found that this was a common complaint immediately after the
initiation of every " Resident Physician."
  X Cheyne, p. 150.
  § Dr. De Brus. American Journal of Medical Sciences, Vol. 1, p. 378.
  || " Dr. Thomson, of Edinburgh, while a young man, as a chemical expert
ment, examined 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 pounded coals for a similar purpose."—
Dunlop. 
36
FEIGNED DISEASES.
 cian was  consulted by the friends of a young  lady of high

 respectability, concerning a very painful  disease to which

 she was subjected.   She was said to be frequently ill, and

 during the attack, to void, with agonizing pain, concretions

 in her urine.  A certain number of these being, discharged,

 she felt relief.  A parcel of these urinary concretions was

 handed to a physician, who instituted experiments on them,

 and found, what indeed wTas obvious on inspection, that they

 were nothing but common sand and pebble  stones.  Of these,

 it was asserted, she had excreted not less than several pint

 measures  in the course of two or three years.   No motives

 were assigned for this lady's extraordinary conduct.*

  Mr. James Wilson mentions a, case where pieces of slate

 had been introduced into the uretha 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 gave her great pain.  They were found to be solely car-

bonate 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.J   Soldiers have

  * Edinburgh Medical and Surgical Journal, vol. 7, p. 488.
  f 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 the alleged gra-
 vel.   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 gallstones. Medico-Chirur-
 gical Review, vol. 22, p. 231.—By Dr. F. H. Ramsbotham, of a female, pre-
 tending to discharge pieces of common chalk by the urethra.   London Medi-
 cal Gazette, 16, 615.—By Sir Benj. Brodie. Lectures in Medical Times, Jan.
 20, 1844.—By Dr. Christison, mentioned in Dr. Golding Bird's work on Uri-
 nary Deposits, p. 213.
  X London Medical Gazette, vol. 7, p. 239.  Siliceous matter, in very minute
 quantities, has been found in gravel by Dr. Venables, and by other chemists.
 Journal of the Royal Institution, vol. 2, p. 256. The most remarkable case,
 however,^is that given in  the Edinburgh Medical and Surgical Journal, (vol.
 41'.P- 12' >) hy Dr. Hill, of Greenock.  Several minute calculi were passed,
 which Dr. Wm. Gregory ascertained by chemical experiment to consist of sili- 
FEIGNED DISEASES.                  37
frequently taken scrapings  from the wall, or a stone, and
mixed it with their urine.

   " It is curious to  observe," says Fodere, " how many young
men have, during the last twenty years, worn convex glass-
es, in order to  acquire myopia  or near-sightedness; which,
however, is not the certain  consequence, but more common-
ly this practice leaves a weakened and defective sight, dif-
fering 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 pre-
senting 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 fre-
quently urged by  those who wish to avoid military duty,
than  near-sightedness.

   Ophthalmia has  often been artificially excited  by the  ap-
plication of  various stimulant remedies.  It is, however, de-
tected 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 sys-
tem of deception  prevailed in the British 28th regiment of
foot, Dr. Vetch observed that the counterfeit inflammation
was almost solely  confined to the right eye.!  A left-hand-
ed man would probably inflict the injury on the left eye.J
  * 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.
  t Edinburgh Medical and Surgical Journal, vol. 4, p. 158.  The suggestion
of Air. Mackenzie is also deserving of attention.  It is quite suspicious, if, in
a prevalent ophthalmia, the privates almost exclusively are affected, while
.the commissioned officers, or the women and children escape.
  t Hennen, p. 465. 
38
FEIGNED  DISEASES.
  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 hun-
dred men, in various British regiments, have been  afflicted
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 pro-
gress 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 ap-
pears 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 pre-
vent the hands from doing injury.
  Dr. Villards, a  French writer on the diseases of the eye,
states, that he knows a physician, who had made an enor-
mous fortune, by producing, artificially, specks on the cornea
in young persons liable to be drawn into the military ser-
vice.§
  That species of blindness which originates from amaurosis,
is strongly characterized by  the dilated and fixed pupil.
Tfyere are, however,  cases in which the pupil  retains some
contractile 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 pursued, the deceit is often detected.  The fol-
lowing case, however, occurred to Mahon:  A young con-
script was sent to the corps blockading Luxemburg.  Hav-
ing passed the night at the advanced posts, he, on the next
morning, declared himself blind, and was sent to the hospi-
tal.   The surgeons  used the  most powerful remedies, and
  *  Scott, p. 148.
  t  Edinburgh Medical and Surgical Journal, vol. 38, p. 139.  Scott, Cheyne,
  X  Cheyne, p. 130.
  §  British and Foreign Med, Review, vol. 10, p. 25. 
FEIGNED DISEASES.
39
were convinced  that the disease was feigned, as the pupil
contracted perfectly.  He assured 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 for-
ward.   He did  so, and fell into  the  water; from  which,
however, he was immediately taken by  two boatmen sta-
tioned  for that  purpose.  Convinced of  his blindness, but
unable to explain the dilatation and contraction of the pupil,
the surgeon  gave him a discharge, but warned him, at  the
same time, that if his disease was  feigned, it would prove of
no avail, as it would sooner or later be ascertained  that he
was not blind.   They offered him  another, if he would con-
fess 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 characteris-
tics of amaurosis, have been produced by the application of
the extract of belladonna or hyoscyamus to the skin around
the eye; and  above two hundred  conscripts in France suc-
ceeded, 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 applica-
tions,  and we should  also  remember that  their effects  are
temporary.!   But in real  amaurosis, the dilatation  seldom
totally disappears.^

  * Mahon, vol, 1, p. 360.
  t Marshall, p. 112.  The effects of henbane do not last, according to Orfila,
beyond twenty-four hours ; and those of belladonna, beyond six.
  X Devergie, vol. 2, p. 914. 
40
FEIGNED DISEASES.
   Nyctalopia (night-blindness) was much feigned by the sol-
 diers in the expedition to Egypt under Sir Ralph Abercrom-
 bie.  It was difficult to detect it, as the disease in that coun-
 try is epidemic.  All inconvenience was, however, obviated
 by joining a blind man with a seeing one in the works ; and
 when the  sentries were doubled, a similar arrangement was
 made—hearing being often more important on an outpost
 than seeing.*

   Pretended deafness may be detected by making a noise at
 a moment least expected.   This excites a sensation which
 it  is difficult  to  conceal.   Acute persons will also always
 find some  mode of ascertaining the truth.   A deserter, con-
 demned to labor on the canal at Aries, said he was deaf, and
 passed for such  with his  comrades  and guards.  Being
 brought before the inspector to be examined, he appeared
 such as he stated, until Fodere spoke to him in  a low voice,
 saying, "You cannot persuade me that you are  deaf; but if
 you will confess the truth, you shall  have your discharge."
 To the astonishment of all, he answered, " Very well; I am
 not deaf."!  Again, a conscript stated that he was  deaf.
 The general who  visited for  the purpose of examination, let
fall a piece of silver behind him.  The deaf  person turned
his head round towards the place from which the noise pro-
ceeded, and by this means was detected.%
   " Who would believe," says Baron Percy, " that by ex-
ercise, some young  men  have so successfully affected deaf-
ness, that  a fire  of musquetry exploding  suddenly at their
side could not draw from them the least mark of fear or sur-
prise 1"  " I knew one, however," he adds, " who betrayed
himself at last before his judges, at the  sound of a small
piece of money designedly dropped on  his foot,  while it was
whispered in his hearing, that he was surely going to be dis-
charged."§
  * Cheyne, p. 146.
 t Fodere, vol. 2, p. 475.
 X Belloc, p. 252.
 § New York Medical Repository, vol. 17, p. 359. 
FEIGNED DISEASES.
41
  Deafness cannot long be present, without producing a pe-
culiar cast of countenance.   It also, in real cases, comes on
vastly slower than with the simulated.*
  Some of the  French conscripts  excited diseases  of the
ear, and  particularly  fcetid discharges, by introducing blis-
tering plasters, peas and other substances into it.

   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 who are  really in that unhap-
py  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 re-
viewing  the histories  of  those  pretending deafness and
dumbness, it has been found, says Fodere, that  women have
been  the  most successful; and  the sex fondest of talking,
are the most capable of feigning dumbness.
   The Abbe De L'Epee was deceived  by a pretended deaf
and  dumb person, who feigned  to be the son  of Count De
Solar. Sicard, however, his successor, was  more fortunate
in detecting the villany of another, whose ingenuity resist-
ed, 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 Lu-
zarche, six leagues from  Paris;  but called  himself  Victor

   *  " 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 af-
ter he had been put to sleep by opium, and he started out of  bed."  Dunlop.
  Mr. Marshall in his last work on the Enlisting and Discharging of Soldiers,
has some capital narratives  of the detection of simulated  deafness, one of
which I extract:   " A recruit from Cork, who joined the depot of the East
India Company at  Chatham, alleged that he had almost totally lost the sense
of hearing, and the testimony of his comrades from Ireland served to support
his statement. Dr. Davies, surgeon to the depot, admitted him into the hos-
pital and put him upon spoon diet. For nine days, Dr. Davies passed his bed
during his daily visit to the Hospital, without seeming to notice him.  On the
tenth day, he felt his pulse and made signs to him to put out his tongue; he
then asked the hospital sergeant what diet he gave the man.   Spoon diet, re-
plied the sergeant.  The Doctor affected to be displeased, and in a low voice
said,  are you not ashamed of yourself, the poor fellow is almost starved to
death.  Let him instantly have  a beef steak and a pint of  porter.  The re-
cruit could contain himself no  longer.  With a countenance expressive of
gladness and gratitude, he addressed Dr. Davies by saying, God Almighty
bless your honor;  you are the best gentleman I have seen for many a day." 
42
FEIGNED DISEASES.
 Travanait—travelling, as he said, in search of his father, but
 in reality to avoid military duty.
   He was imprisoned in various countries, watched closely,
 and  examined most rigidly, without being  detected.  So
 perfectly indeed had he accustomed himself to his part, that
 when he avowed the fraud, to  use  his own expression, he
 had unlearnt how to hear. In Switzerland, he was tempted
 by a young and beautiful woman, who offered him her hand,
 but without effect.   In the prison at Rochelle, the turnkey
 was ordered to sleep with him, to watch, and never to quit
 him.  He  was  repeatedly awakened in  a violent manner,
 but his fright was expressed by a plaintive noise, and in his
 dreams guttural sounds alone were heard; and the hundred
 prisoners, who were  all ordered to detect him if possible,
 could discover nothing from which  they could imagine  de-
 ceit.   At last the officer charged  with  the police of  the
 prison of Rochelle,  became satisfied, after  many  examina-
 tions, that he was really deaf and dumb, and declared this
 in the public journals, so as to obtain  his liberty.  Victor
 unhappily, at this period, went beyond his  capacity.   He
 stated himself in writing to be an eleve  of the Abbe Sicard.
 This ingenious and worthy individual denied the fact without
 seeing him, and proved it from the writing.  " I cannot tell,"
 said he in a letter to the counsellor of state, Real, " wheth-
 er this person, confined at Rochelle, be really Victor  Tra-
 vanait, or not; but I can say positively that he was not born
 deaf and  dumb." The reason  which he  assigned for this
 opinion, was,  that he wrote from sound, while the deaf and
 dumb  write only as  they see.   In his letters, he appeared
 so ignorant as to divide some words, and annex prepositions
 to others as if they were  constituent parts.   The following
 extract will serve as a specimen: " Je jur de vandieux ;  ma
 mer et ne en Nautriche ; quhonduit (pour conduit;)  essepoise
 (pour espoir ;) torre (pour  tort ;)  ru S. Honoret; jai tas pre-
 sent (pour fetais present;) jean porte en core les marque (pour
fen porte encore les marques.")  It will be observed, that in
 this letter, Victor uses q instead of c; and from this Sicard
 inferred that he had heard, and knew that the sound of these 
FEIGNED  DISEASES.
43
gutturals was similar.  He concluded by stating his convic-
tion 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.  Si-
card had taught his pupils to articulate sounds, and  he  had
done this by showing them the words, as it were, by the ap-
parent effects of touches on a musical instrument, and then
pressing their arms more or less strongly.  During this op-
eration, he obtains at pleasure the hard or soft consonant,
which serves as a sign for the required articulation.  Victor,
when  put  to this  proof, instead  of the  syllable  pa, pro-
nounced only the vowel a, and never uttered the labial con-
sonant, which all the  deaf and dumb easily articulate.  He
was then put to the  last test.  When asked how he  had
been instructed, he answered by signs, and promised to  ex-
plain by them such words as they might write on the black
board, but  could not do so.  He was  then placed  among
those who  were really deaf and dumb, but understood noth-
ing 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 ta-
ken this case, that it  was Victor's folly alone which detect-
ed 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.!
  * 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- 
44                  FEIGNED DISEASES.

   If the tongue retains its muscular power and is otherwise
healthy, and deafness is not present, the person pretending
to be dumb is doubtless an impostor.*  Orfila recommends
that such should be made to sneeze and  the sonorousness of
the sound noticed.

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

   The number and  variety of feigned  diseases connected
with tumours and enlargements, are really remarkable.   The
following can hardly  be characterized, but it  shows how
much we ought to distrust that affectation of modesty which
will not  permit a complete investigation.   A  young female
at Strasburg,  from the enlargement of her abdomen, had led
the  public  to doubt the purity  of her character.  The dis-
tension continued so long as to dissipate the suspicion; and
for thirty-nine years she continued to increase in bulk, and
excited  the commiseration and  charity  of all  who saw her,
in such a manner as to lead a highly comfortable life.  Her
case excited the attention of the physicians and surgeons;
the National Gazette, September 14,1822.)  Other cases of pretended deaf-
ness and dumbness are related by Marshall, p. 156; and Cheyne, p. 143.
  " Fodere says, that a good way to deteet 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 Unknownk&a
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.
    So say Percy and Laurent.  This, however, has been questioned by  Dr.
Chowne, in eonsequence of a case that occurred in London in 1838.  A po-
lice-man suddenly lost his voice—but he was not  deaf.  He could move his
tongue perfectly. He was actively purged, and after three days his speech
was as suddenly restored.  Some  physicians supposed him an impostor, but
Dr. Burne, his medical attendant, doubts this.  He deems  it an " accidental
dumbness." London Med. Gazette, vol. 23, p. 312, 452.
  t Marshall, p. 130.                     J Fallot, p. 76. 
FEIGNED DISEASES.
45
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, to-
gether with the appearance of the most hideous  deformity,
in a child, by means of the introduction of  air, and the ap-
plication of ligatures on various parts of the body ;! and
not long  since, a female in France by the same mode, caused
an emphysema of the abdominal  parietes, so as to resemble
dropsy.J  Tumours  of this  nature  are  readily produced,
since the cellular texture is spread over the  whole surface of
the body, and the air may be introduced through the small-
est  possible aperture.  We must, however, recollect that
dropsy,  hydrocephalus  and  emphysema  are  marked  by
stronger  and more conclusive symptoms than the mere ex-
istence of tumour.  A French conscript is  said by Beaupre
to have excited ascites, by injecting water 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 was stated, dropsy and intermittent
fever.  The abdomen was greatly distended and tympanitic,
and they complained of great  thirst; but  the tongue was
clean, pulse regular,  and  urine  natural.  They  were soon
cured by the mixtura diabolical  Tympanites of the stomach

  * Mahon, vol. 1, p. 362, from the Acta Naturae Curiosorum.
  t Fodere, vol. 2, p. 485, quoted from the Bulletin of the Society of Emula-
tion.
  X Fodere, ibid.       § Marshall, p. 153.        || Cheyne, p. 169. 
46                 FEIGNED DISEASES.

and enormous distension of the abdomen, may also be in-
duced by swallowing air.   A French conscript had the pow-
er of thus inducing it, and Dr. Thomson in his lectures re-
lates  the following instance:  " A  young boy about ten
years of  age was apparently attacked with tympanites, which
recurred  at intervals  of  nearly two years.   He had  been
seen by several physicians and been treated in various ways,
without any beneficial result.   At the period  which I  have
mentioned, I was called to see him and attended him  for a
month, without being able to form any idea of the nature of
the  attack.   When, one  day, sitting in conversation with
his mother, the boy being opposite to me, I perceived him
making efforts of deglutition, and in a short time the abdo-
men became distended  and tympanitic.   These circumstan-
ces  led me to suspect a fraud, and I accordingly watched
him again on two separate occasions and I became convinced
that he filled his stomach and bowels with  common air, by
swallowing it in  mouthfuls.  I communicated  the fact to his
father, who soon cured the disease, by giving the young im-
postor a  severe flogging.   The boy afterwards explained to
me  the mode in which  he  effected his object, and he ac-
knowledged that he suffered great pain from the distension
which followed."*

  Physconia was  also at one time very prevalent as a feigned
disease in India, and supposed to have been caused by 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
* Lancet, N. S., vol. 19, p. 804.      f Marshall, p. 151,152. 
FEIGNED  DISEASES.
47
of its  extremities was left hanging  out.*   Polypus of the
nose was simulated, according to Percy, by introducing the
testes  of cocks, and hares' kidneys, into the nostrils :!  Hy-
datids  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.§

   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| inches,
the calf of the leg \1\, and the ancle 15 inches.  Insi  x
days  after  the  removal of the ligature, the thigh  had de-
creased 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
convicted of doing this and severely punished.  In the  first
case, the fraud may be detected by the lightness of the tu-
mour,  its sonorousness and the crepitation on pressure, but
an  accurate discrimination is more difficult in the case of in-
jected  fluid.   It will, however, be more generally diffused
than in the  real disease, and if the patient be secluded and
attentively  watched,  early absorption  is found to  occur.IF
The appearance of hernia has  been produced in the same
way, or its  sac  imitated  with the bladder of an ox.  A re-
ceipt 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 mista-
ken for hernia.  An  individual of this description  was de-

  *  Mahon, vol. 1, p. 357.             f Scott, p. 151.
  X  Ibid. p. 142.  Detected by Professor John Thomson in Edinburgh.
  §  Medico Chirurgical Review, vol. 21, p. 153.  Detected by Mr. Lawrence
in London.
  ||  Scott, p. 154.
  If  Devergie, vol. 2, p. 919.
  ** Sir A. Cooper's Lectures, vol. 1, p. 75. Cheyne, p. 129. 
48
FEIGNED DISEASES.
tected 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 scrotum was an empty bag.  The
man,  on being detected, acted  like a philosopher, and " see-
ing no longer any chance of eluding the king's service, dis-
played 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 con-
siderable  force, and again dropped them into their  proper
places with incredible facility.  He then pulled up one tes-
tis, and after some pause the other followed, as the word of
command was given; he  then let them both  drop into the
scrotum simultaneously.   He  also pulled one gradually up,
whilst the other was as gently descending; and he repeated
this latter experiment as  rapidly as the eye could well fol-
low the elevation and descent of the organs, so that my as-
sistant and myself were not only  surprised, but so exceed-
ingly 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 maintain particular joints for so long a  time  in one po-
sition, that they  assume the appearance, on a superficial ex-
amination, of being anchylosed.   In  consequence of inac-
tion also, and the use of ligatures, these parts often become
thin.   Patient and long continued watching, combined with
the use of appropriate remedies, and  at the same time dis-
guising the  appearance of suspicion, will often  succeed in
detecting the real nature of the case.  An emetic has been

  * Hutchison, p. 187.  In Vidocq's Memoirs, (which I presume are to be ta-
ken with a grain of allowance,) frequent allusions are made to the  talents of
Freneh rogues and villains, in counterfeiting diseases.  Tobacco juice was
swallowed by them to produce fever ; and at the Bicetre, they taught one an-
other 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 con-
finement, in order to obtain a moment's sunshine, counterfeited death so well
and so often, " that when he actually  breathed his last sigh, two days passed
before they took off his iron collar." 
FEIGNED  DISEASES.
49
given, and during the sickness produced by it, the contract-
ed  limb has been found  to  yield  to  a  very slight force.
Electricity has been effectual with some ; a pulley with oth-
ers.  The French surgeons attached a weight  to a riband
placed around contracted fingers, and in a few minutes (not
exceeding ten) the disease was removed.  They also made
those who complained  of  contraction of the lower extremi-
ties, support themselves  for some time on the  healthy leg
alone.  The trembling and  elongation of the othe%  soon
manifested the deceit.*   " A tourniquet may be placed on
the limb above the joint, by which the  muscles are prevent-
ed from acting, and the joint becomes in consequence movea-
ble."!
   Again, feigned  cases have  been detected by an examina-
tion of the part during sleep; or by engaging the person in
interesting conversation; or by making continued flexion of
the healthy extremity.   The diseased one has thus been for-
gotten,  and it insensibly returns to its natural  state.  Yet
with all the keenness that long experience may be expected
to produce, there are many who succeed in deceiving the
examiner.  " A convict who was confined on board  the Re-
tribution hulk at Woolwich during the period of his sentence,
which was seven years, kept his  right knee  bent so as not
to touch the ground with his foot all that time ; and he was,
on  that account, not  sent  to hard labor with the other con-
victs.  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,  ' I will try to put down my leg—it may be of use
to  me now.'   He did so ;  and walked off with a firm step,
without his stick, which he had previously thrown away."!

  *  Orfila, Lecons, vol. 1, p. 408.           f Scott, vol. 2, p. 139.
  X  Scott, vol. 2, p. 138.  A writer in the Boston Medical and Surgical Jour-
nal, (vol. 8, p. 284,) suggests the idea, that the sudden recovery of lost pow-
ers 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 oppo-
site  description. A man is struck with a stick  or hammer, about the hip. 
50                  FEIGNED DISEASES.

  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 op-
posite side is not tense ; but in feigned  ones it is.  The im-
postor, also, cannot readily turn  his eyes  to the  side oppo-
site 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 rub-
bing the part, and they  have been known to keep up irrita-
tion by thrusting pins through the bandages.   Besides noti-
cing 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 dis-
tinguished from real  ones, since  their borders are less cal-
lous, their surfaces more superficial, and generally less pain-
ful ; 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 the performance of  labor
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

joint.  He recovers from the external bruises, but continues lame. Nothing
that indicates injury can be  discovered on examination ; but  remedies pro-
duce little or no effect, and the individual walks  with a orutch.  A case of
this kind became the subject of a law suit in Glasgow some years since.  The
injured thigh had sensibly diminished in size; but this was attributed, by the
witnesses on one side, to the prosecutor not giving the limb its due share of
motion.  It is, however, well put, that if  this was a case of feigned disease,
the inactivity being only for the public eye, would have been so trifling as not
to cause this extenuation.  The probability was therefore in favor of its re-
ality.   (Lancet, N. S. vol. 8, p. 740, from Glasgow Medical Journal.)
  * Orfila, Le§ons, vol. 1, p. 409. 
FEIGNED  DISEASES.
51
avoid going on duty, he had made an  incision in the flesh

just upon the shin bone, and put a copper half-penny on the

wound, which almost immediately caused a violent inflam-

mation.   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 Hos-

 pital, 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  dissec-

 tion, a piece  of copper coin was discovered, imbedded be-

 tween the gastrocnemius and  soleus muscles, nearly three

 inches  from the margin of the ulcer.  He then confessed

 that he  had thrust it into  the  ulcer about nine months be-

 fore, with a  view of obtaining 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,"

   * Edinburgh  Annual Register, 1810, part 2, p. 105.
   f Hutchison,  p.  143.
   " During the war, ulcers were feigned to a prodigious extent in the army,
 for the sake of procuring discharge, and getting a fresh bounty for enlisting.
 A scoundrel of  the name of Noble, in the neighborhood 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 ourselves against the pa-
 tient tampering with the sore.
   " On a late visit to Sheerness, my friend Mr. Robertson, surgeon to the con-
 vict 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 Department would take it up.  But suspecting some fraud, he
 employed spies, when he found that all this disease was occasioned by a pro-
 cess 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.
   X Dr. Ferguson, in his " JVotes and Recollections of a Professional Life,"
 speaking of the late war between England and France, says, " artificial ul-
cers of the legs were all but universal amongst young recruits, and spurious
 ophthalmia was organized in conspiracy so complicated and extended, that at
 one time it threatened seriously to affect the general  efficiency of the forces,
 and was in every respect so alarming that the then military authorities durst
 not expose its naked  features to the world.  These are the results and ever
 will be the results, whilst human nature is constituted as it is, of service for
 life."—Blackwood's Magazine, August, 1846. 
52                 FEIGNED DISEASES.

says Pierre Pigray, "a  woman present herself to the late
king of France, to be touched by him," (as the former kings
of 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 re-
moved,  the  nipple remained  white, healthy, and  well
formed."*
  A  false eruption of petechice or pustules, may be detected
by examining the patient perfectly naked.

  Ozcena 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 ex-
amine 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 exist-
ence, or are very slight, it would seem that they are most com-
monly 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 men-
tioned, 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 pre-
vious.!

  Fractures of the thigh have been feigned; but it is found,
on examination, that the muscles of the injured leg are hard

  * Quoted from his Surgery.  Mahon, vol. 1, p. 358. Fodere, vol. 2, p. 486.
  t Scott, vol. 2, p. 156. 
FEIGNED DISEASES.
53
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.*

   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
irritation and inflammation ran so high, as to render ampu-
tation near the shoulder joint necessary.  The other was at
Copenhagen.  As the needles were extracted,  others were
inserted in different  places—so that no less than four hun-
dred  were removed from  various abscesses in about three
years.  In the first instance, the individual made a confes-
sion ; 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
off 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 extremi-
ties.  In one regiment, at the Cape of Good Hope, nine dis-
abled themselves in six weeks, for the purpose  of being dis-
charged.§
   Each  case demands a separate investigation.  A dragoon
said that his horse had  bitten off his finger, but he forgot to

  * Marshall, p. 173.             t Scott, vol. 2, p. 148.
  } Scott, vol. 2, p. 156.           § Marshall p. 177. 
  54                  FEIGNED DISEASES.

  wipe his bloody sword  which lay in the manger.  Another
  came running with 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 cart-
 ridge.
   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, par-
 ticularly in the  hands and' fingers.  On  investigation, nearly
 three thousand  were found thus injured.   They were col-
 lected together, and a medical  jury was  appointed, over
 which Larrey presided.   On examination, it was found that
 nearly all the wounds had  been inflicted by contusing bod-
 ies, propelled by fire arms, and but a few, by polished weap-
 ons.  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

  * Marshall, p. 179. It is nowprovided that in all eases of maiming, wheth-
 er the injury occurred on or off duty, whether accidentally or intentionally,
 the soldiers shall be tried by a district court martial, as soon after the event
 as possible.  Balhagall's Military Surgery, p. 597.   No  pensions are granted
 except the injuries occur in the performanee of military duty.  In France,
 any individual drafted to perform military duty, who incapacitates himself
 either temporarily or permanently,  is liable to imprisonment for any time be-
 S4,^. &nd-?I™rl and,a hiSher deSree of Punishment is directed
 against accomplices,  if they be medical men. Law on the Recruiting of the
 Army, passed in 1832. Briand, 3d  ed., p. 789           pruning oi tne
m,'iJiie^read f conscr1iPtion  is painfully illustrated  by the number of
5T^lfZ   i ^TJH™-   At  least two-t»irds of the male population
 Si  dX1Ved themselv^ of the right eye, or of the forefinger of
the evT which theJ Z J*Z ™ZPr.ofessional. Pe™ons, who go about to poison
consisted of twelv? ml  ^dlgnS' ?r SGW h Up altogeth*r■  Our equipment
seven of thUwlr!.^5 °f these ?nl?  ten were liable  to conscription, and
c?n?andfhecZs  "^ ^"^ °r ^^^^."-WarburL's Ores- 
FEIGNED DISEASES.
55
 occupied the summits of several hills,  and of course fired
 down upon the French, who in return, would have their
 hands constantly raised  to their guns.*
   A case in  civil life was investigated by Dr. Marc.   The
 individual, under the idea,  as it would seem,  of rendering
 himself of importance to a relative, or to  secure his grati-
 tude, pretended to have  had a murderous conflict with some
 assassins,  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 cotton
 bonnet  and a silk handkerchief, which he  wore under his
 hat, were also divided.   Dr. Marc observes,  that a blow so
 powerful as to divide all these, should  have inflicted a less
 superficial lesion.
   As collateral evidence, the appearance of the knife used in
 killing the assassin,  was adduced.   It had a thick covering
 of 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 stria?.  Dr. Marc was of opinion, that it had
 been 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,  prin-'
 cipally from the slightness of the wounds.   They were not
 such as a robber or a murderer would inflict.  The celebrated
 Dupuytren was called as an  examiner in one of them; and
 he related before the  detected individual the following cir-
 cumstance :
   As Napoleon was one  evening  in the park of St. Cloud, a
 young man rushed towards him, with the cry of " Assassins!

  * Larrey's Surgical Memoirs, translated by Dr. Mercer, p 107   Chaus
Bier, p. 487  The reader of French history will find an instance of factitious
wound in the case of Joly, during the quarrels of the Fronde
  f Annales D'Hygiene, vol. 1, p. 257. There is another doubtful case of as-
sassination 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. 
56                  FEIGNED DISEASES.

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
attack, and on being discovered, was thus wounded by them.
The gates were instantly closed, but no conspirators could
be found.  During many examinations, he persisted in this
story;  and it was only at the end  of fifteen years,  that  he
confessed that he  had inflicted the wounds  with  his  own
hands.*
   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
sailors, and the duty of the  medical officer thus becomes a
highly responsible one.  He is to guard against fraud on the
one  hand, and severity on the other.  Nothing can  compen-
sate 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 enume-
rated 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  lumbar abscess appeared, of which he died.!   In reflect-
  * Annales D'Hygiene, vol. 11, p. 188.  Devergie, vol. 2, p. 159.
  t Cheyne, p. 137.  " I received, (says a writer in the Glasgow Medical
Journal, August, 1831,) an impressive lesson of caution in these matters, by
my acquaintance with a case which occurred in the Infirmary of Edinburgh
nearly thirty years ago. A street porter, after a fall, began to complain of
pain stretching along the whole outside of the thigh.  The pain was much ag-
gravated by motion, so that he could not walk across the ward without a
crutch. The case being supposed to be sciatica, he was under the care of the
late Dr. Duncan, assisted by my lamented friend Dr. Bateman, who acted as
clinical clerk. The most attentive examination, scrupulously and laboriously
made, could discover nothing deviating from the ordinary structure and ap-
pearance ; 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 com-
fortable, and the aliment from a benefit society was accumulating in his fa-
vor.  He readily submitted to the most violent counter-irritants, but without
acknowledging any relief.  Perkins' metallic tractors, then in high vogue,
were applied with due solemnity ; and this was  the only application which re-
lieved the pain.  This admission on the part of the patient, however,  only 
FEIGNED DISEASES.
57
ing on these circumstances, and the many obstacles to a full
detection,  I am very ready to withdraw a somewhat rash
assertion which I made in a previous edition, that it is dis-
graceful 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.*  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
physicians are not unfrequently called upon to examine im-
postors,  or those who feign diseases  which can have no exist-
ence.  The full  consideration  of these, however,  belongs
strictly to  medical police ; since they are seldom subjects of
legal investigation.

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

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 de-
stroyed ;  and purulent matter, to the amount of two ounces, was found in the
cavity of the joint."  Lancet, N. S. vol. 8, p. 737.
  * Cheyne, p. 179. 
58
FEIGNED DISEASES.
  Abstinence for a great length of time, is the most frequent,
as well as the most successful of these deceptions;  and the
reason is  obvious.   It is practicable to a certain extent, and
the most constant and minute attention is requisite to detect
the falsehood.  The  most  noted,  because it  is  the most
modern case, is that of Ann Moore,  the  fasting woman of
Tutbury,  (England.)   According to her account,  she com-
menced in March, 1807, and continued fasting for six years.
At the end of that period, the imposture was discovered, in
consequence of a watch placed over her ;  and it was ascer-
tained that  her daughter secretly gave her food and drink.
The cui bono is readily explained, from the statement of Dr.
Henderson, who observes that she made so much by the ex-
hibition of her person, as to place X400 in the stocks.   She
had, however,  the power of abstaining from food for a con-
siderable  length of time.  During the last watch,  she received
none for nine days and nine nights.*

  I  wrill  add only  one case to the preceding.  Cicely De
Rydgeway, in the 31st year  of Edward III., was indicted, and
condemned 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  a miraculous power, and  adds :
" Nos ea de causa pietate moti ad  laudem  Dei, et gloriosae
Virginis Marise, matris suae, unde dictum  miraculum proces-
sit,  ut creditur."  It  concludes  with a full pardon  of the
criminal.!

  * Observations on this case may  be found in the 5th and 9th volumes of the
Edinburgh  Medical and Surgical  Journal;  and also in the  London Medical
and Physical Journal, vols. 21, 24, 29 and 30.
  t London Medical and Physica.1 Journal, vol. 31, p. 50.  I add the follow-
ing references for the use of those who may be desirous of examining the sub-
ject of abstinence:
    A female in Germany, who imposed on  the public for two years.  Lon-
      don Medical 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. 
FEIGNED  DISEASES.                      59
Cases are also recorded in Stelpart Van Der Wiel, vol. 2, observ. 15—
  Holler's Physiology, vol. 5, p. 168— Schurigius' 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 Riehard Hathe-
  way, for  a cheat and  impostor, at Surrey assizes, Mareh  24, 1702.
  Among other things, he said that he had been bewitched by one Sarah
  Murdock; and in consequences of this, he could not eat, but fasted ten
  weeks.
Harleian Miscellany, vol. 4, p. 41.   A discourse upon abstinence, occa-
  sioned by the twelve months' fasting of Martha Taylor, the famed Der-
  byshire damsel; by John Reynolds, surgeon.
Memoirs of Literature,  vol. 3,  p. 112. Account of a Swedish damsel,
  who has lived six years without food t attested by the Bishop of Skara,
  (West Gothland.)
Republic of Letters, vol.  2, p. 439.  History of a singular and extraordi-
  nary distemper in a woman, by Dr. Miehelletti.
Philosophical Transactions, vol. 14,  p. 577; vol. 28, p. 265; vol. 31, p.
  28; vol. 42, p. 240; vol. 67, p.  1.
Medical Commentaries, vol. 14, p. 360.
Medical Communications, vol. 2, p. 113.  Dr. Willan's case.
Quarterly Journal of Foreign Medicine and Surgery, vol. 5, p. 190.
References in Elliotson's  Blumenbach, p. 301-3.
Two cases of females, one in Holland, and the other  in Italy.  Medieo-
  Chirurgical Review, vol. 23, p.  204.
A case, supervening  on  Chlorosis, by Dr. Forry of Maryland.   North
  American Archives, vol. 2, p. 365.
                                NOTE.

   Dr. Beck has noticed mental alienation as a feigned disease,  in the ninth
 chapter.  In this view, however, it is intimately eonnected with the first sec-
 tion; and the following cases, taken from Mr. Marshall's Hints to Medical
 Officers, will well illustrate the difficulty of detecting imposture, and the ne-
 cessity of extreme caution in coming to a decision.
   " Some time ago a man enlisted in a regiment at present (December, 1827)
 quartered in the garrison (Dublin), who,  after being at drill an unusually
 long period, could not be taught his duty.  Every exertion was made by the
 adjutant and drill-sergeant to make him comprehend the manwal and platoon
 exercise, but apparently without success.  In  consequence of this  corps
 having been joined by another regiment, the presumed idiot was discovered
 to be a deserter, and a very clever fellow."
   The following, however, is a more melancholy instance of imposition being
 suspected, where it was not practised, and will show with what anxious cau-
 tion a decision should be made, that may render an individual liable to pun-
 ishment.  It is copied from the same work:
   " Private Charles Louis, aged 31,----regiment of foot, complained, during
 the month of December, 1825, of pain in the loins, occasioned, as he said, by
 a sprain, received the preceding July, while drawing water from a well, but
 which he did not mention when the accident happened.  As the  ailment was
 considered very slight, he was not admitted into the hospital.  He continued,
 however, to complain of pain in the loins,  and about the site of the caecum.
 On the 26th of January, 1826, he went on furlough, and returned to  the regi-
 ment 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 admit-
 ted into hospital, where he was kindly treated, but carefully observed.  His
appetite and other functions of the body were  natural, and no trace of dis-
ease could be detected.   He sometimes complained of uneasiness in the region
 of the liver,  but never represented the pain as urgent; and, indeed, seldom. 
60
FEIGNED  DISEASES.
  He
more
said any thing respecting his ailments, unless m "P1^^^Jto te'.-
was in Jeneril rei-arkably taciturn; and his manner appeared[to beu
indicative of moroseness than of mere lowness of spir to   ^v^tually he was
dischareed from hospital, but still persisted m  refusing to do his duty,   lie
waftrifdbvneSental  court-martial, for disobedience of orders  which
rentenc7dSmatroeguSergo  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 cell.  When released from confinement, he was ordered to pull up
the grass between the stones in the barrock-yard—an employment which an-
noyed him more than any other punishment,  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 suggesstion 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 re-
joined his regiment.   During the time he was  in Dublin,  he  preserved his
usual gloomy, discontented manner.  The greatest care was taken to investi-
gate his case, but no  trace of disease, either physical  or  mental, could be
satisfactorily observed; and a certificate to that purport, signed by Dr. Peile,
deputy-inspector of hospitals, Dr. Brown, surgeon to the forces, Dr. Cramp-
ton, surgeon-general, and staff surgeon Stringer, was transmitted to the regi-
ment,  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
respecting his  family or early life.  Among many other incoherent notions
which have entered his mind, he conceives that he is colonel of the 15th regi-
ment, and that  he is abounding in wealth,  but that he is deprived of the use
of it by undue  means.  His bodily health continue good."
  The work above  quoted may be consulted with great advantage on the sub-
ject of feigned diseases.  It is entitled, " Hints to Young Medical Officers of
the Army, &c.:" By Henry Marshall, Surgeon to the Forces.
                                                           Darwell.
  Dr. Ollivier, (D'Angers,)  in an elaborate memoir, published some time
since, divides Feigned Diseases into three classes: the pretended, the pro-
duced, (provoquees,) and the feigned, strictly so called.
mTo the first class belong all the varieties of pain, as neuralgia, rheumatism,
&e., lameness and injuries from falls or blows.   The difficulty in deciding on
these, arises from the absence of external indications, and the fact that the
symptoms may long continue, without producing  any manifest change.  In
all cases,  the character of the patient, and the motives by which he may be
influenced, should be considered.
  In induced or produced diseases, the point to be decided by the medical ex-
aminer is,  whether the  complaint which actually exists has been caused by
foul means. Thus, amaurosis has been attempted to be feigned by the re-
peated application of belladonna, ophthalmia by the use of irritants.   Cases
of this description require narrow watching.  The  dilatation of the pupil
will subside in a few hours, unless the belladonna be reapplied, and ophthal- 
FEIGNED  DISEASES.
61
mia will also run its  usual course, if the irritation  be discontinued.  Dr.
Ollivier mentions an affecting case of an individual, who, in order to avoid
the conscription, had his eye cauterized.   It ended in blindness, and the sub-
ject in despair  committed suicide.  Mutilations and  wounds  belong also to
this class.  A female stated that in resisting an  attempted robbery, a pistol
had been discharged  at her at  a very short distance,  and  that she  was
wounded.  She could exhibit no mark except a very  slight one on the chin.
No trace of powder could be discerned on her skin, nor on that of an infant
which she bore on her right arm.  The dress  also where it was injured,  re-
sembled rather the effects of burning than of  a fire-arm.  It was doubtless a
case in which the individual endeavored to excite some interest in her favor,
or to attract notice.
   The following, however, has a more malignant character:  A  female was
accidentally injured by a  carriage in the streets of Paris.  Madame C----,
the owner, removed her immediately to the royal Maison de  Saute", where
she was carefully attended.  The wounds proved to be merely superficial, and
there was a prospect of a speedy recovery.  Meanwhile some kind friend
whispered to her that she should demand damages of Madame C----, and
accordingly the wounds soon became worse.  Some that had  cicatrized now
began to suppurate,  and violent and constant  pain was stated to be present.
Madame C----had offered a liberal sum in compensation, but  a much larger
one was now demanded.
   When the cause came before  the court,  our  author was desired  to visit the
invalid.  He found her in apparent  good health;  but  on examining  the
wounds, they were all ascertained to be  dressed with  epispastic ointment,
and boxes of this medicine were seen in the bed and on the night table.  In
this manner the illness had been prolonged.  The court at once dismissed the
application for  increased damages.
   In the third class, occur those  cases of refined ingenuity which  often baffle
the most acute  observer.   We have cause for  suspicion when  the symptoms
continue most  obstinately stationary, and yet  the individual continues to
enjoy good health-  This to the public would seem to prove the reality of the
disease, although it in fact only shows the perseverance of the simulator.
   Drs. Jacquemin and Ollivier were ordered, in April, 1840, to visit in prison
a man named Guignard,  aged fifty years, who had  been repeatedly found
begging in various parts  of Paris,  and while doing  so was  attacked with
vomiting of blood, swelling of the abdomen and epilepsy,
   It would seem that some weeks previous, being taken in the street with
hsematemesis, he was conveyed to the Hospital of Charity.  Bouillaud, after
attending him for some days, became convinced that the disease was feigned.
On his report, Guignard was sent to prison, and when there, was  recognized
as having been  committed in 1828, and repeatedly since,  for street begging
and pretending disease.  He was  a shoemaker by trade, and lived in an ob-
scure part of the town, yet he was always seized in some of the rich districts,
and at those hours (from two to four P. M.) when the streets were  most filled.
The attacks usually came on near the gate of some wealthy resident; epileptic
convulsions seized him, blood was discharged in pools, and his abdomen
swelled.  A crowd naturally gathered around, and when he had gradually
recovered, he stated that he had received a blow on the stomach with the butt-
end of a gun, in 1815.   He had been in the hospital, but was declared incura-
ble, and was now returning home, if he could receive the necessary alms.  In
this way he obtained many donations.
   The medical observers repeatedly witnessed Guignard under his attacks of
epilepsy.  They were admirable imitations of the real  disease.  The eyes and
countenance were distorted, the tongue was locked  between the  teeth, and
there was foaming at the mouth, with the thumbs firmly contracted into  the
palms of the hands.  Yet  he recovered instantly and completely from these,
and on examination the  tongue and teeth were  seen  uninjured, bearing no
trace  of a wound or cicatrix.  Even a mark of the pressure of the teeth on
the tongue could not be discovered.
  The prisoner  ascribed to the blow already noticed, the formation of a swell-
ing at the pit of his stomach. This varied  according to circumstances.  When
he expected a visit, the tumefaction was large and resembled tympanitis, but 
62
FEIGNED  DISEASES.
 when suddenly seen, there was only a hard, knotty, and apparently scirrhous
 swelling.  One day Dr. Ollivier placed himself at a wicket, looking into the
 infirmary of the prison: Guignard was  quietly walking with another indi-
 vidual, when a person previously instructed,  came up to him and said,  Dr.
 Ollivier is in the  house, and will probably visit  the  infirmary.  Guignard
 retired to his bed and commenced drinking his tisan.  In a few moments Dr.
 0. observed movements with the lips and head, resembling those of a person
 making a difficult  and prolonged respiration.  The  abdomen soon began to
 swell, and he was seen to raise his shirt and examine it by touching   When
 satisfied, he leaned against his bed in the attitude of a person suffering.
  Dr. Ollivier caused  him to be brought into his  room at the end of ten
 minutes,  and required  him to sit down, leaning  forwards  with his elbows
 resting on his thighs.   He engaged him in conversation, so as to divert his
 thoughts, and then  applied continued  pressure  to the epigastrium.  The
 swelling soon disappeared, and without any gurgling or eructations.
  When examined during sleep, the abdomen was  flat and soft, without any
 trace of a tumor.
  In the opinion of Dr. Ollivier, the means resorted to, to produce these ap-
 pearances, were as follows :  When  suddenly visited, the partial  effect was
 induced by lowering the diaphragm and contracting the muscles  of the abdo-
 men.   This, by continued habit, he was able to  do quickly, and thus produced
 the semblance of a tumor.  The full distension was undoubtedly caused by
 the swallowing of air.   The muscles  of the face and lips were always, when
 this was present,  in a  state of continued contraction,  and a weeping of the
 eyes, consequent on these efforts, was particularly noticed.
  As to the vomiting of blood, some denied that it had ever actually occurred,
 and asserted that he carried about  with him  a bottle filled with the fluid,
 and scattered it,  when seized,  on the ground. Dr. Ollivier, however,  saw
 him repeatedly discharge blood by  the mouth,  and had no doubt of its
 coming from the stomach.  How was  this to be  explained, in an individual of
 good health,  with an excellent apppetite, and yet suffering under haemate-
 mesis for twenty-five years ?   The mystery was solved by examining the con-
 dition of the veins in his arms.   It was  impossible to  count the number of
 cicatrices.  There were at least one hundred on each  arm.   When asked to
 explain these, he said  that he had been repeatedly bled; but he could not
 name a single physician who had operated,  and the incisions were so large
 and irregular, as scarcely to have been made by any medical man.
  While in prison, the vomiting recurred; ana  as he bore no marks of recent
 bleeding,  it became necessary to ascertain how he had obtained the blood.
 On  one occasion, after being long absent in the water closet, he was suddenly
 stripped of his clothes, and beneath his shirt was found a vine twig,  covered
 with clots.  This he had introduced into his nostrils, excoriating the parts,
 and then by his efforts of inspiration and deglutition, conveyed  the blood
 into his stomach.
  Being satisfied from these investigations, that the diseases were altogether
 feigned, Dr. Ollivier so reported to  the  police, and the prisoner  was con-
demned to prison for a year, and afterwards to be secluded in a poor-house.
  At the date of this report, (six months after the sentence,) Guignard con-
 tinued in perfect health.  In not a single instance had either of his former
maladies recurred.—Annates d'Hygiene, Jan., 1841. 
CHAPTER II.
                 DISQUALIFYING DISEASES.

Disqualifications in civil  cases — in criminal cases.  Disqualifications for
  military service.  Classes exempted by the law of the United States. Law
  of the State of New-York on exemption from military duty.  Regulations
  for exemption in France—in Prussia.  Rules for the inspection of recruits
  in England. Diseases that exempt or disqualify—statistical results. Law
  decisions on pleas for exemption.  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 instan-
ces in civil life, where the  opinion of  the medical man is
required concerning them.  He may be directed, for example,
to ascertain whether  an individual is fit to serve on a jury,
whether he is able to attend as  a witness,  or whether he is
competent to take on him certain offices or duties.  Again,
a physician may be ordered to investigate the  condition of a
criminal, and to report whether he is capable of undergoing
hard labor, or of suffering other severe punishments that are
inflicted by the justice of his country.
  I shall accordingly consider this subject as follows :
  1.  As to the disqualifications in civil and criminal cases.
  2.  As to the disqualifications for military service.

   I. Of disqualifying diseases in civil and criminal cases.

  In civil  cases, the presence of acute  diseases  should 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, to-
gether  with  the weakened  state of the mental faculties,
which generally accompanies these ailments,  renders a de-
mand  for  such  performance cruel and oppressive.   And 
64              disqualifying  diseases.

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 ex-
ertion 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 ob-
serve, that it behooves the examining physician to inquire
into the nature of the particular case, and from his know-
ledge of it, to be guided in his testimony.  Should there be
a patient liable  to  convulsive  affections, and who is only
preserved from  frequent attacks by being kept calm and se-
questered,  he certainly would  not  be a proper person to
serve on a jury, or to be  kept for a length of  time as a wit-
ness before a crowded court.  The same remark applies to
those who are laboring under infirm health, or a predisposition
to consumption, who have symptoms of aneurism, of stone
in the bladder,  &c,  or who  suffer from  periodical or con-
tinued  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
many who  are  unable to  travel without great danger, may
still be examined at their own houses, and that thus the ends
of justice can, in a great degree, be answered.
  In elucidation of these remarks, and as showing that they
are practically observed, a few cases  may be quoted:
  In Andrews v. Palmer  (1812),  depositions taken, de bene
esse,  were presented upon the incapacity of a  witness, from
bodily  injury,  to attend a trial.  Lord  Eldon  remarked:
" This affidavit  is too loose, that the witness will not be able
to travel  for a 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 probability  that the witness  will not be able to attend.
If the affidavit  was  more  precise in that respect, I think I
ought to make such an order as I have mentioned," viz : for
the officer to attend with the original deposition. 
DISQUALIFYING diseases.
65
  An affidavit  was  afterwards  produced, more precisely
worded, and the order was made accordingly.*
  On the trial of Mary Elder or Smith,  for poisoning with
arsenic, (and which will be hereafter noticed,) a juryman was
taken suddenly ill.  Drs. Christison and Mackintosh, who
were in attendance as witnesses, immediately visited him
in an adjoining room, and  on  their return, being sworn,
stated that he had been seized with a fit of epilepsy—that
the convulsions had ceased, but that his  memory was, as yet,
only partially restored.   Both agreed, that he might be able
to return to his duty that night, but it was  not likely.   A
relapse might be the consequence.
  " Lord Gillies had no doubt.  They could not, with pro-
prietys 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.!
  The Queen v.  Sophia Wilshaw.—The prisoner was indicted
for  stealing  money, the  property of  Joseph Wood, her
master.   A surgeon deposed as follows  : "lama surgeon ;
I know Mr. Joseph Wood ; he is 85; he is quite infirm and
bedridden; he  can sit on the side of his bed when he  is
lifted out; he is not able  to bear  a journey to the assizes,
and I think it is not likely that he ever will be so."  The
counsel for the  prosecution proposed on this, to give in evi-
dence the  deposition of the prosecutor,  taken before the
committing magistrate, in the presence of the prisoner; and
this was allowed by the court.  The prisoner was acquitted
on the merits.—1 Carrington and Marshman's Nisi Prius Re-
ports, 145.
  The Queen v.  Marshall.—Indictment for night poaching.
One of the witnesses had made a deposition in the  presence
of the defendant, but was  now ill.  Dr.  Knight was called.
He said, "I  am a physician; William  Rickards has been
under my  care ;  he has  been suffering from  delirium and
depression of spirits, in consequence of a blow on the head;
his  intellects are  affected by the injury.  I think he will
  * 1 Vesey and Beames' Chancery Reports, p. 21.
  t Syme's Justiciary Reports, p. 72.
                   5 
66
DISQUALIFYING DISEASES.
recover, but I cannot say how long it may be before he will
be well."
  Sergeant Ludlow, who tried the cause, (having conferred
with Justice  Coltman,) said:  "Mr. Justice  Coltman is  of
opinion, that if the witness  is actually insane, his deposi-
tion is not receivable in evidence, although the insanity of
the witness  may  be only  temporary."  Dr.  Knight,  in
answer to a question of the learned sergeant, said,, " I can-
not say that Rickards is now in a state of insanity."
  Ludlow: The deposition cannot be received in evidence.
Ibid. p. 147.
  As  to  criminal  cases, it is equally unnecessary for me,
to enlarge, since the well known humanity of our country
renders it superfluous.  I may, however, remark, that while
acute diseases deserve commiseration and attention, as much
as in the preceding instances, there are also some affections
which should prevent or delay the execution of the  higher
punishments.*  We can readily imagine a state  of body in
the criminal, that  would  make the application  of irons to
his limbs, or  the  condemnation  to hard 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
correctness 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 de-
ceived by feigned  representations of imaginary maladies.!

        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

  * Two of these are so important, to be ascertained with certainty, that I
shall treat of them under their respective titles, viz: pregnancy and insanity.
  t See on this subject Fodere, vol, 2, p. 431, &c. 
DISQUALIFYING DISEASES,
67
male  population merely as  the material for armies.  There
must  remain some to renew the waste of war—some to sup-
port the females  and children of the  nation, and others to
protect them from injury.
  The Jewish lawgiver, in his  statutes, mentions several
classes who were exempted from this  duty, and in particu-
lar, all married  persons during the  first year of their mar-
riage.*  And similar provisions are to  he 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 ex-
empted.   The importance of this regulation in time of war
is incalculable,  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.!  It is also understood
that  there  are  many diseases which disqualify or exempt
from military duty.  In this state, the  law formerly directed
that the age and ability of a person enrolled to bear arms,
should be determined  by the commandant of the company,
with  the right to appeal  to the commanding officer of the
regiment, and it added " that the certificate of a surgeon  or
surgeon's mate, shall not be conclusive evidence of the inability
of any persons to bear arms." %  In  the  Revised Statutes, the
phraseology on  this subject  is somewhat altered.    The
enactment stands thus, " Persons  claiming to be exempted
from enrolment, by reason of inability to bear arms, may
produce the certificate of  a surgeon or  surgeon's mate,  as
evidence of such inability, but such certificate shall not be

  * Deuteronomy c.  20, v. 5, 6, 7 ; c. 24, v. 5.  See Michaelis vol. 3, p. 34,
for an enumeration of the classes that were exempted.
  t " After the battle of Leipsic, Napoleon made great exertions to recruit
his army, and called upon the legislative senate to give him their assistance,
to which they showed some reluctance.  ' Shame on you,' cried the emperor,
' I demand a levy of 300,000 men.  But I must have grown men ; boys serve
only to encumber the hospitals and road sides."—Edin. Med. and Surg. Jour-
nal; vol. 36, p. 137.
  In an English regiment, employed in the Burmese territories in 1824, the
ratio of mortality among the  young men was 38 per cent., or 1 in every 2i ;
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 Me-
dico Chirurgical Review, vol  21, p. 261.)
  X See the " Act to organize the militia," passed April 23,1823. 
68
DISQUALIFYING DISEASES.
conclusive, nor shall it be lawful for the person giving the
same to take any fee or reward therefor." *
  If there be any difference between these, of which I am
not very positive, it must  be that by the former law, the
commanding officer  of the regiment had the power of reject-
ing 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 on
this subject would  there be formed;  and accordingly we
find that such were  promulgated at an early period after the
revolution.   A number of the inspector generals, (viz : Coste,
Biron, Heurteloup,  Villars, Parmentier, Bruloy, Imbert  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
during the reign of  the directory, (year 7 of the republic;)
but they were incorporated into the Code de la conscription
by  Bonaparte.
  Among the preliminaries necessary to obtain an exemption,
are the  following :  Every conscript who pleads bad health
or bodily inability,  must appeal in the first instance to his
municipal administration;  and he is not entitled to present
himself for this purpose, unless he bring a certificate from a
health officer, that he is really affected with a disease which
appears to him to authorise  an  application.  He is then to
be  examined by a health officer in presence of the adminis-
tration, 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 dispensation be granted, the commissioner  of
the executive directory must be heard;  and he may, if any
doubts  be   entertained, require  a  counter-examination.
When the municipal administration consider any appeal to
be  without foundation, the  conscript is  obliged to join the
* Revised Statutes of the State of New-York, part 1, chap, x, title 3. 
DISQUALIFYING  DISEASES.
69
army without delay.   When they  consider themselves in-
competent to decide upon the appeal, the conscript is allow-
ed  to  present  himself immediately before  the  central
administration, for their decision.   And the municipal ad-
ministration can  only grant definitive dispensations in cases
of palpable and notorious infirmities.  They may allow pro-
visional ones, not exceeding three months, when acute diseases
or accidents prevent the conscript from presenting himself.
   All the decisions of the municipal, must be sent to the
central administration, for their approbation  or  rejection;
and if they refuse  to ratify them, the conscript must again
be examined.  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, definite  or pro-
visional, for diseases not obvious,  or  which do not prevent
the applicant from attending  at the  capital  of the depart-
ment  in  person,  must be judged by the central  admin-
istration.*
   The officers of health, in giving their opinion, are direct-
ed 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 tlie 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 de-
cision is to be reserved for the central administration.  4.
Voluminous and incurable goitres, habitually impeding res-
piration.   5. Scrofulous ulcers.   6. Confirmed phthisis pul-
* Edin. Med. and Surg. Journal, vol. 6, p. 138,139. 
70  •
DISQUALIFYING DISEASES.
monalis, i. e. in the second or third degrees.  Care  should
be taken to report the symptoms characterizing this state ;
and as they are but too evident they ought to procure an
absolute dispensation.  But for commencing phthisis, asthma
and haemoptysis, the municipal administration ought to grant
only a provisional dispensation, if the person be incapable
of 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 mo-
tion of these parts.  9. An aneurism of the principal arte-
ries.  10. The curvature of the long bones;  rickets and no-
dosities sufficient evidently to impede  the  motion  of  the
limbs.   Other  diseases of  the bones, although great and
palpable, are sometimes  liable  to  doubt,  and therefore are
reserved for the judgment of  the  central  administration.
11. Lameness  (claudication) well marked, whatever be the
cause ; this must be precisely stated.  The same is the case
with considerable and  permanent retraction  of the flexor or
extensor muscles of a limb, or paralysis of these, or a state
of relaxation impeding the free exercise of the muscular
movements.  12.  Atrophy  of  a limb, or decided  maras-
mus, characterised  by marks of hectic and  wasting, which
should be stated in the  report.

Table II.  Infirmities  or diseases which occasion  absolute or
  relative incapacity for military service, and  which are reser-
  ved for the examination and opinion of the  central  admin-
  istrations 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, ner-
vous or spasmodic symptoms,  frequent pains of the head.
2. The loss of the right eye,  or of its  use.  This defect
disqualifies a man for serving in the line, but does not prevent 
DISQUALIFYING DISEASES.
71
 him from being useful to the army in other services, or in the
 marine.  3.  Fistula lacrymalis ;  chronic ophthalmia, or fre-
 quent rheums in the eyes, as well as habitual diseases of the
 eyelids or  lacrymal passages, of  such a nature as  obviously
 to injure the powers  of sight.  4. Weakness of sight; per-
 manent defects of vision,  which prevent objects from being
 distinguished at the  distance necessary for the service of
 the army ;  short-sightedness ; night-blindness ; confusion of
 vision.   In a note it is observed, that these affections of the
 sight are often difficult of  decision; and it is recommended
 to the surgeon to ascertain the effect of glasses on the per-
 sons complaining of near-sightedness.*  Nyctalopia, it adds,
 is rare in youth, and  often  only  temporary; while amblyo-
 pia, or confusion of vision, may be known with some  cer-
 tainty, when we perceive that the pupils have changed their
 diameter, or when they have lost somewhat of their mobili-
 ty or regularity.  This, however, is not always present;
 and  in  doubtful cases, it  is directed that the testimony of
 ten individuals, not  relatives of  the  appellants, should be
 brought, affirming the existence of these defects.   5. Defor-
 mity of the nose, capable of  impeding  respiration to a
 considerable degree; ozcena,  and every obstinate ulcer of
 the nasal passages or palate; caries of the  bones, and in-
 curable 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
 who emit these fcetid  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 ; incurable deformity of either jaw by loss
 of substance, necrosis, or  other cause, hindering the biting
 of the cartridge, or impeding  mastication,  and injuring the
 speech.  A person without canine or incisive teeth, cannot
be a soldier of the  line, but may be employed in other
services.   8. Salivary fistulas, and  the involuntary flux of
saliva, when incurable.   9. Difficulty of deglutition, arising
* See Chapter 1, p. 37. 
72
DISQUALIFYING DISEASES.
from paralysis, or some other permanent injury or incurable
lesion of the organs employed in that function.  10. Perma-
nent and well-established diseases of the organs of hearing,
voice or speech, considerable in degree, and capable of im-
peding their use considerably.  As these diseases  are very
doubtful, and may frequently be simulated, it is advised that
testimony proving their existence should be  obtained,  and
the examination also should be repeated for several months
at stated periods.  An absolute or definite exemption need
not be  given,  as they  yield to  time  and skill. 11.  Ulcers
and  tumors of a decidedly scrofulous nature.  The symp-
toms, if any be present, of a scrofulous 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 habitual, frequent,
and periodical spitting of blood.   The state of patients at-
tacked  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 passa-
ges ; fistulas of  these parts, whether incurable, or requiring
constant medical 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 maybe simulated with less danger of detection;
and apparently in order to avoid the advantage that might
be taken of this, it is directed,  that if the young man has, in
other respects, a healthy and vigorous  look,  he may be sent
to the army without any inconvenience.   16. The permanent
retraction of a testicle ; its strangulation in the ring; sarco-
cele;  hydrocele; varicocele;  all severe  affections  of the
scrotum, testicles or spermatic cords, known to be incurable.
 17.  Ulcerated haemorrhoids; incurable fistula  in ano; peri- 
DISQUALIFYING DISEASES.1
73
odical and incurable hsemorrhoidal flux; habitual and chronic
flux of blood from the intestines; habitual  incontinence of
faeces ; habitual prolapsus ani.  These ought to be stated by
able health officers, who  have for a length of time, treated
and observed the patient; and a provisional  dispensation is
only to be given, until their incurability is established.  18.
The total loss of a thumb or great toe, of the forefinger of
the right hand, or two other fingers of one hand, or two toes
of one foot; the mutiliation  of the last joints  of one or
several toes or fingers; the irremediable loss of motion of
these parts.  These, although they interfere in different de-
grees 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 constitution, he  ought
to be  sent  to  the  army.  19. Incurable  deformities of the
feet, hands, limbs or other parts, which impede marching, or
handling of the arms, or carrying the accoutrements, or the
free  motion of any weapon.  These may produce only  a
relative invalidity, and  hence the physical effects arising
from them  should be stated.   20. Large  and numerous va-
rices.  21.  Cancers  and ulcers, which are  inveterate, of a
bad character, incurable, or whose cure it would be impru-
dent 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  crust,
or attended with varices.  23. Severe diseases of the bones,
such as diastasis or separation, anchylosis,  caries 'or necro-
sis, spina ventosa; osseous tumours, and those of the peri-
osteum, when considerable, or situated so as to impede mo-
tion, and which have been  treated without success.  24.
Diseases of the skin, when they are  capable of communica-
tion ;  when they are old, hereditary or obstinate, as tinea;
acute, moist and extensive herpes ;  obstinate and complica-
ted itch ;  elephantiasis; lepra.  In all these cases, a defini- 
74
DISQUALIFYING DISEASES.
live 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 char-
acterised  by evident symptoms of long standing; dropsies
known to  be incurable.  26. Debility and  extreme extenua-
tion, joined to a diminutive stature, or to a very tall one,
out of the ordinary proportions.  This  case  requires great
judgment in deciding on it;  and it is advised to adjourn the
decision from quarter to quarter.   " When a conscript has
grown very rapidly; when he is tall, lean, and slender made ;
when  he has a long  neck,  arms  and  legs;  and when his
breathing is difficult from the  least exercise: such an indi-
vidual is  out of the  question, until nature has added in
strength what it has hitherto confined to stature." 27. Gout;
sciatica;  inveterate arthritic and  rheumatic pains, impeding
the motions of the limbs  and trunk.   If these are present
in an acute form, the conscript has a right to a provisional
dispensation; but if they be  chronic,  particular  attention
should be paid to the condition of the parts.  Gout seldom
arrives to a high degree of obstinacy, without leaving no-
dosities and sensible contractions; while  protracted rheu-
matism alters  the  form of the muscles and  colour of the
skin, and causes a wasting of  the  part affected.  The sur-
geon is warned, in cases where no sensible appearances prove
the existence of rheumatism, not to mistake a feigned for a
real disease ; and the following acute remark is added : "As
it is but just that in some  other equivocal cases, such as
those respecting the diseases of the breast, humanity should
incline to the conscript's  side; so with respect to  pains and
rheumatism which are not proven, it is equally proper to
prefer severity to indulgence ;  as military exercise, far from
aggravating the predisposition,  if it exist, will only contribute
to  remove  it."   28.  Epilepsy;   convulsions;  general  or
partial convulsive motions ; habitual trembling of the whole
body, or of a limb ; general or partial palsy ;  madness, and
imbecility.  The  surgeon, in  this class of cases, is to be 
DISQUALIFYING DISEASES.
75
particularly  careful  not to be( deceived  by a  simulated
disease.*

  Such were the  rules, devised for  the  conduct of the in-
specting military surgeon, in the days of Napoleon.  They
have been followed, though with greatly diminished severity,
under 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 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 ta-
bles, and find them very similar.  A distinction is, however,
taken between the infantry and cavalry service, and it is
stated that in the latter, the following do not disqualify for
service ;—being considerably in-kneed, cicatrices of ulcers
on the legs, loss  of a great  toe—moderately deformed feet
and  flatness  of the soles of the feet. In  garrison service
also, hydrocele,  if not very large—varices  of the  legs, if
not very severe—a slight degree of contraction of the elbow
joint—shortness of one of the  lower 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
  * These regulations are published in Belloc,  p. 344 to 362; and a transla-
tion of them, which I have used, is contained in the Edinburgh Medical and
Surgical Journal, vol. 6, p. 138, etc.
  t Marshall's Hints on the Examination of Recruits, &c, p. 49. 
76
DISQUALIFYING DISEASES.
by Dr. Marshall, that  in the former  countries, the  regula-
tions  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.*   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 de-
partment.   The following are enumerated  as the more com-
mon causes, for which a recruit should be  rejected :—feeble
constitution, unsound  health, from whatever cause—indica-
tions of  former disease—nodes,  glandular  swellings,  or
other symptoms of scrofula—weak or disordered intellect—
chronic cutaneous affections, especially of  the scalp—severe
injuries  of the bones  of the  head—impaired  vision,  from
whatever cause—inflammatory affections  of  the eyelids—
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 disease—impaired, or
 inadequate efficiency of one or both of the superior extremi-
 ties, on  account of palsy, old fractures, especially of  the
 clavicle, contraction of a joint, mutilation, extenuation, de-
 formity, ganglions, &c.—an unnatural excurvature or incur-
 vature of  the spine—hernia, or a tendency to it from pre-
 ternatural  enlargement of the abdominal ring—a varicose
 state of the veins of  the scrotum  or spermatic cord; sarco-
 cele, hydrocele, haemorrhoids—fistula in  perineo—impaired
 or  inadequate  efficiency of  one or both of the  inferior
 extremities,  on account  of  varicose  veins,  old fractures,
 malformation (flat feet, &c.) palsy or lameness, contraction,
 extenuation,  unequal length, bunions, overlying or super-
 numerary  toes, ganglions—ulcers, or unsound cicatrices of
 ulcers,  likely to  break out afresh—diseases, whether acute
   * Copies of several of these will be  found in Marshall, pages 5 and 12.
 See also Hennen's Military Surgery,  Amer. edit., p.  354. 
DISQUALIFYING  DISEASES.
77
or  chronic, for' which  medical  treatment is required; and

lastly, traces of corporal punishment, which  is declared to

be an unqualified cause of rejection.*

   The  medical officer  is  also directed to attend to all the

circumstances  that indicate  vigorous health, a capacity for

exertion and general  efficiency,  such as a proper proportion

between  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 condition—voice strong.

   The recruit  is  to be undressed before inspection, and is

 to perform before the  medical  officer, a certain  routine of

 actions, such  as walking—extending the  arms—coughing

 while  in that position—standing upon one  foot,  kneeling,

 &c, &c.   A proper manual examination is, of course, made

 during these exercises.   It is, also, to be ascertained, whe-

 ther 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.J


   * " 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.   See also Marshall on the Enlisting, Discharging and Pensioning of
 Soldiers.  2d edition, 1839.
    t " Final approval" refers to the time when the recruit joined 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 commanding 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.
   X " 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 escape a disagreeable duty at home, and
 be sent on a dashing service abroad, where there were some hopes of pro- 
78
DISQUALIFYING DISEASES.
   Dr. Marshall * 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

contrary, in  France, where the object of the  conscript is a

discharge, he has endeavored to diminish his  height by cut-

ting off all his hair, and paring  off the thick cuticle under

the soles of his feet.

   It  is  recommended  by  our author,  as the most  certain

mode of ascertaining  the exact height  of individuals,  to

measure  them extended on their backs.   In 52 cases thus

examined, the perpendicular  was found less  than the  hori-

zontal height, by an average  of T36 of an inch.!

   Of  57,894 recruits  examined in the  Centre  Recruiting

District, Dublin, from Sept. 26th, 1804, to Dec. 24th, 1827,

44,166 were  approved and 13,728 rejected, being a 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 re-

jected 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

motion 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 Stewart, of Garth, they are so exclusively the ornaments."  Dtjni,op.
   Those who are curious on the subject of splay or flat foot, and the dis-
ability  caused by it,  for military life, will see extracts from  Marshall's
last work, (including observations  by  Goercke, the head of the Prussian
military medical department,) in Edinburgh Med. and Surg. Journal, vol.
38, p. 178.
   * Besides Dr.  Marshall's " Hints," he has published another work entitled
" On the Enlisting, the Discharging, and Pensioning of Soldiers, with the
Official Documents on these branches of Military Duty."
   X Hints, p. 62. 
DISQUALIFYING DISEASES.
79
it to be  at the rate of 43.1, being considerably larger than
the other.
  Some of these  tables possess an  interest  beyond  their
applicability to the present subject, in consequence of indi-
cating the frequency of  various diseases.   Thus in Dublin
from 1804 to  1824  inclusive,  out  of 42,740  examined,
10,279 were rejected for the following causes :

    Unhealthy aspect,....................................... 1,792
    Scrofula,...............................................  381
    Defective vision,........................................  441
    Defective hearing,.......................................  136
    Ulcers or cicatrices,..................................... 1,659
    Varices,................................................  816
    Hernia,.............................................•...  920
    Fistula,................................................   31
    Chronic cutaneous  affections,..............................  318
    Congenital deformities,..................................   64
    Chronic enlargement,....................................  473
    Fracture, displacement,.................................  155
    Malformation,..........................................  898
    Syphilis,...............................................  291
    Epilepsy,...............................................   45
    Incontinence of urine,...................................   12
    Fatuous or insane,......................................   67
    Traces of corporal punishment,...........................  185
    Paralysis,..............................................   21
    Anomalous,.............................................  254
    Disabled upper extremities,..............................  493
    Disabled lower extremities,...............................  827

                                                      10,279*

  The  following  is  a tabular view,  by Dr. Casper, of  the
number of  men  rejected  under the  recruiting  system  in
France  in 1831-32-33,  and  the diseases  or defects  under
which they laboured.  The uniformity between the different
years is quite remarkable :
                                        1S31.     1932.     1833.
    Deficiency of fingers,..................   752     647     743
    Deficiency of teeth,....................  1,304    1,243    1,392
    Deficiency of other limbs,..............  1,605    1,530    1,580

  * Edin. Med. and Surg. Journal, vol. 50, p. 16.  Additional tables will be
found in Ibid, vol. 42,  p. 46;  Marshall's Hints, p. 187; London Med. and
Phys. Journal, vols. 50 and 52. 
80
DISQUALIFYING  DISEASES.
                                      1831.     1832.     1833.

Deafness and dumbness,...............    830     736     725
Swellings of the glands of the neck,.....  1,125    1,231    1,298

Lameness,............................    949     912    1,049
Other deformities,.....................  8,000    7,630    8,394
Diseased bones,.......................    782     617     667
Near-sightedness,.....................    948     891     920
Diseases of the eye,...................  1,726    1,714    1,839

Itch,.................................     11      10      10
Scaldhead,...........................    749     800     794
Tetters ? (or Leprosy,)................     57      19      29
Other skin diseases,...................    937     983     895
Scrofula,.............................  1,730    1,539    1,272

Diseases of the chest,.................    561     423     859

Hernia,..............................  4,044    3,579    4,222

Epilepsy,............................    463     367     342
Other diseases,.......................  9,168    9,058   10,286

Debility,.............................  11,783    9,979   11,259
Undersize,...........................  15,935   14,962   15,078

     Totals,.........................  63,459   58,870   63,653

     Force of the class,..........*... 295,978 277,477  285,805*
   Of our own country, I may remark that the  French  and

Prussian rules  are most  applicable to  our militia, and  the

English to our  regular  army.  The American  government

would appear  to have been dilatory in  establishing regula-

tions—at least  those for  the navy were drawn up in 1832,

while those for the  army can scarcely have a  much earlier

date.  The recent publications of  Drs.  Ruschenberger  and

Henderson enable me to quote the  following :!

   As to the military recruiting service :  " Medical officers,

whose duty it may be to examine recruits will be particular

in causing each recruit  to be stripped of his  clothes and to


  * Dunglison's American Med. Intelligencer, vol. 2, p. 13;  British and
Foreign Med. Review, vol. 5, p. 262; London Athenaeum for  Feb'y 27, 1836.
  t Hints on the Medical Examination of Recruits for the Army, and on the
discharge of soldiers from the service, on Surgeon's Certificate : Adapted to
the service of the United States.  By Thomas Henderson, M. D., Assistant
Surgeon United States Army, late Professor of the Theory  and Practice of
Medicine, Columbian College, District of Columbia : 1840. (Published in Bell's
Select Medical Library and Eclectic Journal of Medicine  for August, 1840.)
Marshall on the Enlisting, Discharging and  Pensioning of Soldiers, 2nd edi-
tion—(reprinted in Dunglison's American Medical Library)—with the Regu-
lations for  the Recruiting Service in  the  Army  and Navy of the United
States; and a Preface: By W. S. W. Ruschenberger, M. D., Surgeon  U. S.
Navy, &c.; 8vo.  Philadelphia, 1840. 
DISQUALIFYING DISEASES.
81
 be made to move about and  exercise  his limbs  in  their
 presence, in order to ascertain whether he has the  free use
 of them; that his hearing and vision are  perfect; that he
 has no tumours, ulcerated legs, rupture, or chronic cutaneous
 affections, or other  infirmity or disorder which may render
 him unfit for the active duties of a soldier, or be the means
 of introducing disease into  the  army, and it  shall be their
 duty to ascertain as  far as practicable, whether the recruit
 is an habitual drunkard, or  subject to convulsions of any
 kind, or has received any contusions or wounds in the head
 which produce occasional insanity.  With any of these de-
 fects, the man is to be refused as unfit for service.
   The following Regulation is in force in the  Recruiting
 Service of the Navy : " The surgeon or other medical officer
 who may be appointed to examine persons offering to enter,
 or upon their first joining a receiving  or other vessel,  after
 enlistment, shall not certify to the fitness of any person,
 unless he shall be of sound mind, possess the  power of see-
 ing and hearing distinctly, and  have no serious impediment
 of speech, have the  free use of his muscles and joints, the
 proper use of his hands and feet, be free from external and
 internal tumors, and  from all cutaneous diseases and chronic
 ulcers; nor if his appearance indicates  the presence of or
 danger from consumption, scrofula or dangerous diseases
 from  the  effects  of  intemperance  or  other causes; nor  if
 known to be subject to epilepsy or similar diseases."
  The vagueness and imperfections of this last are severely
 commented upon by Dr. Ruschenberger,  and particularly
 the exclusion in  consequence of cutaneous disease of any
 kind, and of internal tumors.  Nor is the direction as to the
 liability to disease from  various causes less exceptionable.
 The regulations in question  were drawn up by a Board of
 Captains in the Navy.
  The only other American publication with  which  I am
 acquainted, is  a report  made by the late  Dr. Samuel L.
 Mitchill, then surgeon-general  of the  militia  of this state
to his excellency, governor Clinton, and communicated to
                 6 
82
DISQUALIFYING DISEASES.
 the legislature at their session in 1819.*   The bodily disa-
 bilities 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 neces-
 sary 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 exemp-
 tion for a term of time, and not for one day.!
   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 appear-
 ing.  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 disabiliiy continues.!
   I cannot conclude this section, without recommending that
 tables founded  on those which I have given, should be pre-
 pared  for the use  of surgeons, and that they should be
 enjoined to grant certificates according to their specifications,
 and be obliged to report to a superior authority, all cases
 not coming within them.
   As to certificates,  I  have  already  stated  that  in this
 state, "no fee or reward is to be taken for them."
   By the French Law, " all  officers of health and others
 convicted of having given a false certificate of infirmities or
  * Assembly Journal for 1819, p. 25.
  t Howe v. Gregory, 1 Massachusetts Reports, 81.
  J Commonwealth v. Bliss, 9 Massachusetts Reports, 322.  See also the
same vol., p. 11, 456, 540. 
                - DISQUALIFYING DISEASES.                83


disabilities, or of having received presents or gratifications,

shall be  punished by not less than one, or more than  two

years' imprisonment; or, by a.fine of not less than 300, nor

more than 1000 francs."*

  In cases  of discharges for various  disabilities, and where

the  possession  of these entitles the holder to pensions or

gratuities,  it  is  evident, that much care must be  taken to

prevent imposition.   Here, however, the directions given

in the  remarks on feigned diseases, are more particularly

applicable.!


  *  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 requisite 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.   Marshall, quoted in Medico-Chirurgical Re-
view, vol. 21, p. 260. 
 
CHAPTER III.
                 IMPOTENCE  AND  STERILITY.

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

  A knowledge of this subject may become necessary in
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 show the necessity of  a  brief
notice of the  physical signs of impotence, even were they
not connected with the subject of divorce.
  The  laws of  Moses,  and  afterwards the  Roman law,
permitted  divorce  at  the pleasure of  either party.  The
Christian law,  however, declares  marriage to be indisso-
luble ; and  Justinian  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 ordained that if the imbecility continued
for two ye^,rs after marriage, (which period was afterwards
enlarged to three years,) the female  should be  entitled to a
divorce.!
  We are informed, that it was not until the twelfth century
that  this jurisprudence came into general use.   The canon
law, under which these cases were  judged, always  desired
(at least in practice)  that the defect should be shown to

  * Gibbon's Rome, vol. 8, chap. 44, p. 64.    f Code Justinian, lib. 5, tit. 17. 
86
IMPOTENCE AND  STERILITY.
have existed before marriage ; and that after its celebration,

a certain period of time should have elapsed before a  com-

plaint was entertained, in order to  ascertain  whether the

impotence  was absolute, or only accidental.   These  dis-

positions  of the  canon  law were  adopted into  the civil

law of ancient France ; and many arrets of parliament have

admitted the  plea of impotence, and dissolved  marriages

of eight, twelve, and even fourteen years' standing.   Acci-

dental 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  parliament  of France

refused  the application of a female, whose husband  had

been declared  impotent  during  his first marriage, on the

principle, that at his second nuptials, several years after,

the physicians  declared that he appeared to be cured of his

disease.*

  The Napoleon code  does not expressly declare that ab-

solute and incurable impotence is a  dissolving  cause  of

marriage ; but the course of legal proceedings under it leads

to  this  conclusion.   The  court of  appeals at  Treves  in

1808, in the case of a  female, directed that she should be

visited by medical men, who were to report to  that tribunal,

whether  the supposed  injury occurred before or after mar-

riage, 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


  * Fodere, vol. 1, p. 361.  It will astonish those who have not attended to
this subject, to learn that there was a period in French jurisprudence when
actual congress was a judicial proof in cases  of impotence.  At first it was
conducted in a private manner, but afterwards became shamelessly public.
This prevailed from the thirteenth century until the year le^l^when it was
solemnly abolished, in consequence, as  it would seem, of the  case of the
Marquis De Langley.  His wife declared him impotent; the congress was
ordered, but without success; and his marriage was annulled in 1659. He
married again, and had seven children.  (Dictionaire des Sciences Medicales,
Art. Congres, by Marc. Mahon, vol. 1, p. 70.)
  f Fodere, vol. 1, p. 362, 363.  Devergie, and with him are several lawyers
and physicians, is of opinion, that impotence is not a legal  cause of divorce
by the French code, and that the court have not the power to make the above
decree. The intention of this omission, according to him, was to avoid a
repetition  of the scandalous scenes of former times.  The article of the code,
180, is at best equivocal.  I give it in the original.  " Lorsqu'il y a eu erreur
dans la personne, le marriage ne peut etre attaque que par celui des deux
epoux qui a Ste" induit en erreur." Devergie, vol. 1, p. 384. 
IMPOTENCE AND  STERILITY.
87
is proved  that  corporeal imbecility existed  before the
marriage.   In this case, the connexion is declared to have
been null  and void, ab  initio.  Imbecility may,  however,
arise after marriage; but it will not vacate it, because there
was no fraud in  the original contract, 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 Rochester,
(afterwards Earl of Somerset;) and being desirous of a di-
vorce,  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 peeresses and
matrons, who  were directed  to  examine her, corroborated
this  statement, although it is mentioned that she substituted
a young female of her own age and stature in her  place du-
ring the examination.   She was also pronounced to be well
fitted for having  children.  The earl,  in  his answer,  admit-
ted his  inability  to know her; while  he  denies  his  impo-
tence 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 Canterbury, and one  of the king's  delegates
on this trial, on the propriety of dissolving the marriage on
such grounds :  to which the king vouchsafed an  angry re-
ply.  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.!

  * Blackstone's Commentaries, with notes by Christian, vol. 1,  p. 440.
  t Hargrave's State  Trials, vol. 1, p. 315. See also note 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 de-
livered on giving  his  opinion, he relates the case of one Bury, tried  in 1561.
His wife cited him before the ecclesiastical court on the ground of impotence^ 
88
IMPOTENCE AND STERILITY.
   The causes of impotence have been variously divided by
different writers ; but I conceive that I shall be best enabled
to  give  a  comprehensive  view of them, by adopting the
arrangement of Fodere, into absolute, curable, and  accidental
or temporary.
   We shall first notice those in the male.
   The absolute causes of impotence, or  those  for  which
there is no known relief, principally originate in some mal-
conformation or defect in the genital organs ; and these may
be  either  natural or artificial.   To  this  class  we  refer the
following—an absolute want of the penis.   Cases are fre-
quently met with  in medical works, where it is stated that
the  ureters were  found  terminating  in  the  perinseum, or
above the os pubis.   Fodere observes that he cured a young
soldier of incontinence of urine, in whom there was a fleshy
excrescence, like a button, in the place of  the penis, and at
which the ureters terminated:  the testicles were well form-
ed.   Many cases are also  on record of the penis  being im-
pervious.*
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 mar-
riage was utterly void, because the ecclesiastical court had been deceived in
the opinion they had given on the  impoteney of Bury.  (Page 23 of the Ap-
pendix.)
  * 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 systematic account of the  appearances connected with that mal-
conformation of the urinary organs, in which the ureters, instead of terminat-
ing 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 imperforate.—In the other, the uterers end in  a
tumour in the pubic region—penis  imperforate—testicles natural.   (Edin-
burgh Med. and Surg. Journal, vol. 25, p. 31 )  3. By Dr. Vernon, in a child
—the usual tumour.  (Ibid. vol. 27, p. 81.)  4. By Dr. Palmer of Lanes-
borough (Mass.)   The child  was living, aged two  months in November,
1836.  (Boston Med. and Surg. Journal,  vol  10, 377.) 5. A  case quoted
from  the Gazette Medicate of May, 1835.  Pierre L. Vallee aged 10 years.
(London Med. and  Surg. Journal, vol. 7, p. 534.)  6. A case by Velpeau, in
Memoirs of the Royal Academv of Medicine, vol. 3. Edin. Med. and Surg.
Journal, vol. 48, p. 445. 
IMPOTENCE  AND STERILITY.
89
   In addition to this, have been enumerated, an amputation

 of the  virile  organ—a schirrous or paralytic state, induced

 by injury to the nerves or muscles  of the parts—and an un-

 natural  perforation  of the penis,  or  in other words, the

 extremity of the  canal of the  uretha, 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 impo-

 tence.   Thus, Piazzoni relates a case where both the corpora

 cavernosa were destroyed, but  as  the canal of the  urethra

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

   Additional cases are  given by Dr. Schmitt, of Wurzburg, in his essay on
 Congenital Deficiency  of the Urinary Bladder, 1836.  (Amer. Journal Med.
 Sciences, vol. 20, p. 183.)   By Dr. Handyside, (with a figure) in Edinburgh
 Med. and Surg, Journal, vol. 52, p. 422.  This is a curious case.  The testi-
 cles are of the natural  size.  The glans penis alone is  perceptible, an inch
 and half long, cleft and imperforate.  Mr. Earle, Ibid 12, p. 797.  By Messrs.
 Argent and Curtis, Lancet,  N. S.  vol. 26, p. 229, 300. By Dr. Chowne.  Ibid.
 vol. 26, p. 937, and vol. 29, p. 374, Dissection.  Mr.  Grantham, London Med.
 Gazette, vol. 28, p. 791. Dr. Magee  of Patterson, (New Jersey) of a female,
 New-York Lancet, vol. 1, p. 225.
  There are three American cases which have been described and figured.
 One was seen at New-York, where the individual died in the State Prison in
 1S2G, 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  de-
 scribed  and figured by Dr. Hayward of Boston.  This individual came into
 the Massachusetts General  Hospital in June, 1832.   He was a native of the
 State of Maine, aged 21, and in good health.  There was  an  oval fungous
 tumour, six inches in circumference at the base, and projecting one inch and
 a quarter from the abdomen, directly over the ordinary place of'the symphy-
 sis pubis.  The ureters terminated in this, and the urine passed-out in drops.
 The penis was short, only  two inches long,—measuring five inches in cir-
 cumference at its root,  partly divided and united  at  the under surface only.
 The testes were perfect. He has sexual desire, and when  under  the  influ-
 ence 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 opportunity of
 examining it minutely.   (Boston  Med. Magazine, vol. 1, p. 91.)
  The third occurred to Dr. Dunglison in Philadelphia, and is figured by Dr.
 Duffee.  It resembles in most of its characters  the cases above recorded.  The
 individual was about eight years old, and dressed  in female attire.  (Ameri-
 can Med. Intelligencer, vol. 1, p. 138.)  Another case is mentioned by Dr.
 Pancoast.  (Ibid. vol. 1, p.  147.)
  * Paris Med. Jurisprudence, vol. 1, 205.  A case is related by Mr. Hurd in
 the London Med. and Surg. Journal, vol. 4, 323, in which the  patient, after
suffering severe disease, such as  phagedenic  inflammation, with the forma-
 tion 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. 
90                IMPOTENCE  AND STERILITY.
the varieties in the termination of  the urethra.   Belloc says
that  he  knew a person at Agen, in whom the orifice was at
the  bottom  of the frsenum, and  who had four children re-
sembling their  parent, and what  is still more remarkable,
two of them  had  the  same mal-conformation.   The possi-
bility of impregnation may therefore  depend on the distance
to-which the  orifice is thrown back.*
  The inability  to propel  the  semen out of its vessels, is
frequently to be  considered as an  absolute cause;  but  gen-
erally it is a curable  one.!   I mention  it, however, in this
  * Belloc, p. 50. I will mention in this place the cases I have noticed, and
whether they were impotent or not.
  Hypospadias,—a case is mentioned by Zacchias, fruitful.
  Dr. Hosack—the same.  (New York Med. and Phys. Journal, vol. 2, p. 12.)
  Dr. Dewees—the same.  (Coxe's Medical Museum, vol. 1, p. 165.)
  Mr. Syme—the same.  (Edinburgh Medical and Surgical Journal, 33,243.)
  Frank has seen a case transmitted through three generations.  Kopp saw a
peasant near Hanau with five  children, in whom the opening was Hi lines
from the extremity  of-the  glans.  (Diet. Des  Sciences Med. vol. 23, Art.
Hypospadias, where other cases are cited, also vol. 24, Art. Impuissance.)
  The case of Dr. Schweikard  in the same work, Art.  Hermaphrodisme,
doubtless belongs here.  " At the root of the glans was an oval opening; this
was the urethral orifice through which the urine passed.  This man had se-
veral 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 glans."  Dr. Blun-
dell 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, $. 878, a case of hypospadias, cured by Du-
puytren.
  Epispadias, much rarer than hypospadias.   The commandant of the depot
for the examination of recruits  at Paris has not noticed one case, amongst
60,000 inspected.  Dr. Baron, also of great experience,  has met with 300
cases of  hypospadias and two only of epispadias.  Bulletin De L'Academie
Royale de Paris, vol. 9, p. 63.
  Cases.  Dr. Marchal,  (De Calvi.)  The penis when  erect is about two
inches long.  The glans  is divided into two parts, and the urine is discharged
horizontally.  This person is not impotent.  Ibid.,  p. 62.
  Hipp.   Larrey, in a child, two years old.  In his letter on this, he enume-
rates most of the cases recorded, being some ten or twelve.   Some were com-
plicated with extrophy of the bladder, and there are a few stated to have been
impotent.  Ibid., p. 68.
  Dr. Barth. A person aged eighteen years—has erections.  Ibid., p. 81.
  Dr. Cramer.   London Med. Gazette, vol.  13,  p. 875;  (from Hecker's
Journal.)
  t 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 Mis-
cellanea, p. 34.  Responsum Medico-Legale super seminis emittendi Impo-
tentia. 
IMPOTENCE AND STERILITY.
91
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

countries, is  well  understood.  I may  add, that there have

been instances in which these  organs have suddenly dimin-

ished and  disappeared,  as a  consequence  of disease  or

external  injury.*   The  point, however, which excited most

discussion in former  times, was, whether individuals born

without any appearance of  testes, but who in other respects

have the  activity and  strength that belong to the  male sex,

are to be considered impotent.   It is generally believed not;

since  it has been well  ascertained, that in  many instances

these  organs have not descended from the abdomen, and yet

the individual has exhibited every proof of virility.!   Con-

  *  Fodere, vol. 1, p. 369.  He observes that he has witnessed several cases
of this kind  in deserters, condemned to labor  on the canal at Aries.  Larrey
also states, that many soldiers of the army in Egypt, were attacked with a
similar complaint.  The testes lost their sensibility, became soft, and dimin-
ished in size until they were no larger than a white French bean.  No vene-
real 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. l,p. 260.
  Severe blows, fractures, &c, on  the back of the head would  also seem to
cause impotence, see case in Hennen's Military Surgery,  2nd edition, p. 303 ;
also one from Hildanus, quoted in Medico-Chirurgical Review, 4, 969, and
Larrey's Clinique Chirurgicale analysed in the same, vol. 19, p. 16C  Curling
on Diseases of the Testis.
  " The reverse is sometimes  the case—the  patient being occasionally ex-
tremely salacious. In a case reported by Dr. Donne, of Louisville, Kentucky,
in which the cerebellum was wounded by a musket ball, the individual la-
bored under constant priapism, until the very moment he expired." Prof.
Gross in Western Journal Med. and Phys. Sciences, vol.  10, p. 45.
  There is a case related in the Provincial Med. and Surg. Journal, in which
a severe blow on the  lower part of the spine, and also on the occiput, was
followed by an atrophy of the testicles and a great enlargement of the breasts.
Med. Examiner, vol. 8,p. 258.
  f  " During the examination of 10,800 recruits, I  have  found five in whom
the  right, and  six in  whom the left testicle  was not apparent. In two of
those cases,  there was inguinal hernia at the side where  the testicle had not
descended.   I have met with but one instance where both testicles had  not
descended."  Dr. Marshall's Hints, &c, pages, 83, 207.
  In an examination at the Louisville Hospital, of the body of a boatman aged
27, a testis was found in the left iliac region, with  a complete peritoneal in-
vestment, and attached by that membrane to the walls of the abdomen. The
adhesion was firm and without any marks  of recent inflammation.  AH th« 
92
IMPOTENCE AND  STERILITY.
siderable attention should  be  directed  to the external ap-

pearance of the person—his muscular system—the  strength

of  his voice—the presence  of the beard, &c.   The medical

examiner should also examine whether any cicatrix is to be

found in  the scrotum, indicating castration;  or whether, in

the room of the  testes, there do not exist some hard knots

or  lumps,  proving  the  existence  of former disease.*  If

these are wanting, and  the  general  appearance is virile, we

are not  justified  in considering the individual as impotent.

  A  different  opinion, however,  prevailed in former times.

Pope Sixtus the  Fifth declared, in  1587,  in  a letter to his

nuncio in Spain,  that all  those  who  were destitute of them,

should be unmarried; and Philip  II. accordingly  executed

this order, which affected many in that kingdom.   The par-

liament of Paris, also, in  1665, decreed that  they should be

corresponding parts of the opposite side were perfect and in their proper
situations.   From the athletic form of the individual, and the full develope-
ment of the generative organs, it is hardly possible that he could  have been
impotent.  Western Journal of Medicine and Surgery, vol. 2, p. 32 ; case by
Dr.  Bayless.
  Professor Eve of Georgia mentions another case, of a father of children, in
whom the right testicle had not descended, but was  found after death from
strangulated hernia, in the abdominal canal.   American Journal Medical Sci-
ences, vol. 26, p. 355.
  Dr.  John  D. Fisher of Boston relates an interesting case in which on dis-
section both testes were found wanting.  The individual died at the age of
45.  American Journal Med. Sciences, vol. 23, p. 352.
  Mr. Paget of London, one in which the left testicle was wanting, and the
corresponding vas deferens imperfect.  London Medical Gaz., vol. 28, p. 817.
  Dr.  Anderson, of one who had but one testis at birth and no appearance of
the  other—is masculine in appearance, aged  35, he was  married at 26, and
his  wife has been  repeatedly pregnant and  has now one living child.  This
individual's grandfather was a captain in the revolutionary war, the father of
four children,  and was  exactly formed as to testicles,  like his grandson.
Philadelphia Medical Examiner, vol. 4, p. 73.
  *  Dr. Gross  mentions a case where  a too hasty opinion was given.  Two
lads, the one fourteen, and the other eleven years of age, after having resided
about  two years with the Shakers, in Crosby, State of Ohio, returned to their
homes in Kentucky.  It was soon after reported that they had been castrated
by some of their late brethren ; and a practitioner, after examining them,
testified to the existence of distinct and well marked cicatrices in the scrotum
of each.
  An outrage of this  description caused much excitement. Four of the Sha-
kers were imprisoned. Dr. Gross visited and examined all the male children
at the settlement,  (twelve in number,)  aged from two years up to eighteen,
and found nothing wrong.   He was then requested to examine the above indi-
viduals, who had been brought to Cincinnati for that purpose.  The scrotum
of each was empty, but there were no scars or cicatrices present, and after a
little further search, the testicles were found in the groin, a little below the
external ring.   They could be pressed into the scrotum,  but returned when
the  fingers were removed.   (Western Journal  of Medicine and Surgery, vol.
3, p. 355.) 
IMPOTENCE  AND STERILITY.
93
apparent, in order to permit a person to  contract marriage.*

These, however, are the relics of barbarous ages.   Unques-

tionable facts and anatomical examinations have proved that

the conformation in question may be present, without injury

to the generative  power.   Rolfinck relates the  case  of an

individual distinguished  for libertinism, who  was executed

for some crime.   He was,  after  death, consigned to the dis-

secting knife;  and on examination, the testes were found in

the  abdomen.!   The  parents of a  young  man in a similar

situation, consulted the physician as to the propriety of allow-

ing  him to marry.   He  recommended it, and a  numerous

offspring demonstrated the propriety of  his advice.|


  * 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 descend until some months, or even years after birth.  (Brew-
ster's Edinburgh Encyclopaedia, Art. Anatomy, vol. 1, p. 825.)
  X Mahon, vol. 1, p. 55.  Additional cases of fruitful marriages, under these
circumstances, are mentioned by Dr. Geddings.  (Chapman's  Journal, N. S.
vol. 4, p. 34.)
  It is, however, proper to subjoin the remarks of Mr. Jas. Wilson on this
subject.  " When both testicles  have remained in the cavity of the abdomen,
it has been supposed by John Hunter that  they are exceedingly imperfect,
and incapable of performing 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 tumor 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 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 individuals were impotent.  On dissection, the body of the glans was not
more than half its natural size; and the epididymis, which was very imper-
fect, 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.)
  According  to Mr. Curling, there are but three cases in which the anatomical
condition of a testicle situated within the abdomen is described: one by Clo-
quet, in which the part was of its natural  size and shape;  one by Sir A.
Cooper—both testicles were within the abdomen, and nearly, if not quite, of
the natural size; and the third, by Bright, where the testis was much smaller
than natural, but its structure was  perfect.   Mr. Curling has seen a fourth,
in which it was very small. 
94
IMPOTENCE AND  STERILITY.
  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
condition of the other, we have no reason to dread the effects.
This  actually occurs in  some cases of  cynanche parotidea,
where there has been a translation of the complaint from the
neck to the testes.   Dr. Robert Hamilton, in one of the best
histories which we have of that disease, mentions, that when
it was epidemic at Norfolk in England, a patient was seized
with swelling of both the testicles.  One  of them wasted
away, until nothing but its coats was  left.  This occurred in
1762, and in  1769 he had a child, and in 1772 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
increased proportionably in  size; and after this had taken
place, he became the father of five children.!   Sir Astley
Cooper  removed a testes for  an enlargement and great hard-
ness, in January, 1821.   The wife, by whom he had already
had one child, nursed the patient, and in March she proved
pregnent.J  If) however, the remaining testicle be small and
extenuated, or  have become  schirrous 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
exceed that of the  extremity of the finger.  This was con-
genital, and accompanied with a total  want of sexual desire.
Mr. Wilson,  however, relates  the following: " I was some
years ago consulted by a gentleman  on the point of mar-
riage, respecting  the propriety of his  entering into that
state, as his penis and testicles very  little exceeded in size

  He adds that  the only case met with, by John Hunter, contradicted his
doctrine, as both testicles remained in the abdomen, and yet virility was not
impaired.  British and Foreign Med. Review, vol. 17, p. 60.
  * Transactions of the Royal Society of Edinburgh, vol. 2, art. 9.
  t Mahon, vol. 1, p. 52.     X Medico-Chirurgical Review, vol. 18, p. 389. 
IMPOTENCE AND STERILITY.
95
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 erec-
tions, with- nocturnal emissions.  He married, became the
father of a family, and  those parts which at 26  were so
small, at 28 had increased  to  the  usual size of those of an
adult man."*
  A question, connected with  the subject under considera-
tion, 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, sup-
posed that he must be deemed impotent, as the time needed
for curing  the wound, is sufficient to carry the semen into
the blood, and even if capable of two or three emissions,
yet he would afterwards be impotent.   Orfila states  it, as
his opinion,  that  there  may  be temporary power in such
cases, where the  extirpated  testicles are healthy, but not
if 1 tuberculous or  schirrous.!  Sir Astley Cooper, in his
work on the structure and disease  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 testes.  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  erections  were very  seldom, and very
imperfect, and the penis was shrivelled and wasted.J

  * Lectures, p. 424.              f Orfila's Lecons, vol. 1, p.  127.
  X Medico-Chirurgical Review, vol. 18, p.  390.  Sedillot  mentions that he
has heard Boyer relate the case of a man from whom both testicles had been 
96                IMPOTENCE AND STERILITY.
   To the above, Fodere  adds the  following, which  may
possibly  in  some cases  produce  the consequence in ques-
tion,  viz. congenital  tumours  of a large  size;  such, for
example, as  scrotal hernia.   This,  he supposes,  may pro-
duce a hardness of the parts, and prevent a secretion of the
seminal  fluid, by its continued pressure  on the  spermatic
vessels.*  The medical college of Western Prussia, declared
a  voluminous and irreducible  hernia, a  sufficient cause of
divorce.!                       «
   Among the curable causes of impotence may be  enumera-
ted the following : An atony of the parts,  arising sometimes
from local disease  or  external  injury, and at  others from
masturbation—a  retraction of the penis,  originating from
stone in the  bladder,  or  some other urinary diseases;  a
natural  phymosis, which  sometimes confines  the  glans  in
such  a  manner  as  to prevent the   emission  of  semen ;|
obliteration  of the canal of the  urethra,  from  stricture  or
 successively removed, on account of sarcocele.  After the second operation
 his wife became pregnant.  He consulted Boyer, who told him that the child
 was no doubt his own, but that it would be his last.  p. 17.
   Similar results have occurred with animals recently castrated.  American
 Med. Intelligencer, vol. 1, p. 146, 244.  Dunglison's Physiology, 3d edit, vol.
 2, p. 320.
   On diseases of the Testis and its appendages, the  medical and surgical
 reader will  do well to consult Mr. Curling's  valuable  Monagraph, edited in
 this country by Dr. Goddard.
   * Fodere, vol. 1, p. 373.  " In Italy, double hernia by pressing on the sper-
 matic 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 dis-
 coverable 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,"  Wil-
 son's Lectures, p. 423.   Paget in London Med. Gazette, vol  28", p. 818.
  X Observations on  Natural Phymosis  and  its effects, by  Dr. Houston,  in
 Edin. Med. and Surg. Journal, vol  38, p. 266.
  Dr. Marchal,  Bulletin De L'Acad. Royale De Paris, vol. 9, p. 65.  He also
 mentions an instance of extreme narrowness  (natural) of the canal of the
 urethra.
  In Sir George Lee's Ecclesiastical Reports, in a  case (Welde  v. Welde,
 1731) where the husband pleaded capacity, in answer  to a charge of impo-
 tency, one Williams, a surgeon, swore  that Mr. Welde had an external im-
pediment 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.  (Reports, appendix, vol. 2, p 580 ) 
                 IMPOTENCE AND STERILITY.              97

other causes ;* and lastly, the  malconformation, of which
we have spoken, as to the place of the  aperture  of the
urethral canal.  All these have  been  successfully obviated
by modern surgery.!
   Several instances of congenital  closure of the urethra are
recorded in recent German medical journals.   Dr. Zohrer
mentions  one in an infant nine days old, the termination of
whose  glans penis was covered with a thickened membrane,
continuous  with the frsenum  of the  prepuce.   The urine
exuded through  the umbilicus.   To  remedy  this  evil, the
membrane in question was removed with a bistoury, but no
trace  of an orifice was seen; and it was not  till a stiletto
had been plunged to a depth  of two lines, that the urethra
was met with, and the course of this was afterwards found
much  impeded by membranous bands.  The new  passage
was, however, established; the urethra was maintained at
its proper dilatation by means  of a catgut  bougie,  and the
wound  and passage of the urine  at  the  umbilicus  soon
ceased.  A nearly similar case  occurred in a female infant,
in whom  a passage  of  full three  lines in depth, had to be
made,  before  the urethra  was  reached.—Oest.  Med. Wo-
chensch.—Lancet, August 3, 1843.    Vol.  32, 656.
   " Ossification  or  a cartilaginous condition of  the septum
of the  penis, may become a cause of temporary or incurable
impotence, by preventing copulation.  A case of this kind
once accurred to Dr. McClellan, of Philadelphia.   The  in-
dividual,  already considerably  advanced in life, but with

   * Cases of this description will be found in Edin. Med. and Surg. Journal,
vol. 21,  p. 315, by Mr. Maclure of Glasgow—Medico-Chirurgical Transac-
tions, vol. 12, by Mr. Arnott.
   f Bushe's Medico-Chirurgical Bulletin, vol. 2, p. 1. The Editor gives seve-
ral cases of  hypospadias successfully treated.  I subjoin the  following un-
common case, as an illustration of the trophies of modern surgery: In 1830,
a patient aged 26 was admitted into the Edin. Infirmary, under  the care of
Mr. Liston.   The whole extent of the urethra anterior to the pubes was ex-
posed 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 urinated, 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 im-
potent.  It was remedied by paring off the callous edges of the margin of
the fissure, introducing a catheter and uniting the edges by sutures.  The pe-
 nis obtained its natural appearance.  London Med. Gazette, vol. 6, p. 252.
                      7 
98              IMPOTENCE  AND STERILITY.
sexual powers unusually vigorous, was unable to cohabit, in
consequence of the virile  organ being so much arched to-
wards the perineum, as to render  it impracticable, to intro-
duce it into the vagina.  On making  an incision  along the
dorsal surface of the penis, the  pectiniform  septum  was
found to be converted into a plate of  cartilage, the removal
of which was soon followed by a complete restoration of the
functions of the organ."*
  The third class of causes, the accidental  or temporary
ones, is the most important, since they are frequently the
subject of legal investigation.  They are those which affect
an individual during his marriage, and of course, have to be
considered in cases of contested paternity.!  The law pre-
sumes, 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,  whether the plaintiff was  the  son and heir of Caleb
Lomax, Esq.,  deceased, and this depended  on  the question
of his mother's marriage.  And that being fully proved and
evidence given of the husband's being frequently at London,
where the  mother 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 impossibility, but an improbability only, this was
not thought sufficient, and there was a verdict for the plain-
tiff."!

  *Dr. Gross in Western Journal Med. and Phys. Sciences, vol. 10, p. 46.
  11 may mention in this place, a rare case given by Mr. Callaway, of an in-
dividual, who, returning home intoxicated, had several connections 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 inci-
sion with a lancet at the end of this time, produced a copious discharge of dark,
grumous blood, and a solution of the erection.  The individual is impotent,
most probably occasioned, says Mr. C. " by a deposition of coagulable lymph
in the cells of the corpora cavernosa, preventing the admission of blood, and
consequent distension of the organ." London Med. Repository, vol. 21,286.
  X Strange's Reports, vol 2, p. 940. I am indebted to Dr. Male for the refer-
ence to this case. 
IMPOTENCE AND STERILITY.
99
  The proofs of bastardy may be thus, 1. impotence, and 2.
proof of non-access, so conclusive, that it is impossible that
the husband could have been the father of the child.  This
subject, in all its bearings, has of late years been minutely
canvassed,  in consequence  of what is  usually  styled  the
Banbury  peerage case.  Lord Banbury  died in 1632, aged
85.   In 1627, Lady B.  had a son,  and in  1630, another.
They both lived at the house  of Lord Vaux, with whom it
was said, she was in the habit of adultery.   In  an inquisi-
tion held after his death, it was held that  he died without
heirs male of his body.  The son claimed the title in 1646,
and his descendants  also, from time to time, but the House
of Lords either passed resolutions denying the claim, or had
no  proceedings.  In 1806, the lineal descendants 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 Banbury  was proved  to
have been hale and  hearty at  the  time  of his death.   The
House, however, decided in 1813,  that the claim had not
been made out.  The author, from whom I draw this narra-
tive, 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 form-
ed  the  point  upon which the  decision was grounded.*
  * Edinburgh Review, vol. 40,^. 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 Peter's Condensed Chancery Reports, vol. 1,
where the answers of the Judges in the Banbury cause are given.  The same
case, before Lord Eldon, in  1 Turner and Russell's Reports, 138.  Le Mar-
chant's Report of the Gardner Peerage case, Appendix, p. 389. On the sub-
ject of non-access, the following American cases may be quoted, Common-
wealth v. Strieker;  1 Browne's Pennsylvania Reports, app. p. 47; Common-
wealth v. Shepherd, 6 Binney's Pennsylvania Reports, 283; 2 Paige's Chan-
cery Reports, 130, Cross v. Cross.
  By a decision of the House of Lords,  Morris v. Davies, the notion that it
was necessary to show a physical impossibility of access, by the  absence of
one of the parents beyond sea, is exploded.  Access of the husband must
still be distinctly negatived,  but the non-access may be shown, by circmstan-
ces of any kind, sufficient to  establish the fact to the satisfaction of a reasona-
ble mind.  London Law Magazine, vol. 19, p. 115.
  Wiebeking, an eminent Bavarian Engineer,  died at Munich, May 1842, in
his Mist year, leaving two sons, the elder 51 years old, the other, only eleven 
100
IMPOTENCE  AND  STERILITY.
   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
conceived 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 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 de-
stroyed.   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 con-
nexion, are those which do not affect the head and sensitive
system  primarily, and are  not  accompanied  with great de-
bility.   Inflammatory and catarrhal fevers are of this class.
So also in asthma and the early stages of phthisis pulmonalis,
the power is preserved.!  Some diseases  appear to stimu-
months, and a widow only twenty-two.  Foreign  Quarterly Review, vol. 30,
p. 295.
    See Sir Harris Nicolas on Law of Adulterine Bastardy.
    Craili's Romance of the Peerege, vol. 1, p. 375, 386.
   * Fodere, 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  expresses it, within the four seas of the realm.
There is a case at issue in the Court of Session at  this  moment,  where a
Miss McNeil, an heiress,  is claimed by two husbands. The one asserts that
he married many years ago, and cohabited with her, one night only : the other
married her since, and has by her a family.  But it seems to be the general
opinion, that if the first husband proves her to be his wife, the children must
be his, as a matter of course."  Dunlop.
   This case was decided, I believe, as Dr. Dunlop supposed it would be, in
favor of the first husband.  See McNeil, or Jolly, v. McGregor, 1825, cases
in the Court of Session.  Vol. 4, p. 259.
   t Orfila's Lecons, vol. l,p. 136.   Louis, a late writer on consumption, de-
nies the truth of this opinion, so far  as to limit it only to the earliest periods. 
                IMPOTENCE AND STERILITY.             101
late  the generative organs; and others, although accompa-
nied 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 occa-
sional  attacks  of fever,  accompanied with  gouty pains,
which at intervals  made him extremely ill.   For the space
of  two months, however, he appeared on  the  recovery;
when,  being seized with  a  fever  and ague, he died.   His
wife declared herself pregnant, and  six months  after his
death, was delivered of a  healthy child.  Its legitimacy was
contested, on the ground that the husband, before his last
illness, had been incapable ;  and this  opinion was  corrobo-
rated by his own confession to the physicians attending him.
His wife allowed the truth of this statement, but asserted
that his powers had returned some time before his  decease.
In this state of the  case, Zacchias was consulted; and he
 decided in favor of the chastity of the wife, for the follow-
 ing reasons:   Aurelius had been twice married, and by each
 wife has had several children.   The disease under which he
 labored 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 pregnancy in
 the female.   Symptoms of this were present during his life-
 time ;  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 ar-
 guments.  The judges decided in favor of the female.!

 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 propensity and the power 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.
   t Zacchias, Quest. Med. Leg. Consilium, 23. 
102
IMPOTENCE AND  STERILITY.
  In connection  with the facts  already  stated, it may  be
proper to  add a  circumstance suggested  by the author just
quoted.  He deems it possible that certain diseases may so
change the state of the system,  as to produce an alteration
in the generative  power.   He  quotes  the testimony  of
Avenzoar,  who had  no children during the whole period of
youth, but  became a father  shortly after  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 conva-
lescence  from illness, he became  a father, and afterwards
had many children. *
  The diseases which we may rationally suppose will pre-
vent 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 evacuation of blood  or bile, or of the faeces—
scorbutic cachexia—marasmus—peripneumony and hydro-
thorax—anasarca in its perfect state, particularly if accom-
panied with an infiltration into the sexual organs—nervous
and malignant  fevers, particularly if  they affect  the brain,
and are accompanied with  great debility and  loss  of me-
mory—all affections of the head and spinal marrow, whether
from a fall, blow,  wound   or poison;!  or from  internal
causes,  as apoplexy, palsy, or  other comatose  diseases.
If the infant is  conceived   whilst the  husband  has been
known to have labored under either of these maladies, the
presumption is certainly against its  legitimacy.  So also,
if he  be  affected with leprosy,  venereal  ozcena,  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 contamina-
ted, or from the  dread that she  has entertained  of having
communication with the individual.!
  * Zacchias, vol. 1, p. 271.
  t Fodere mentions  the case of a person, aged forty, who laboured under
temporary impotence during the space of six  months, from  exposure to
charcoal vapors.  This state of the system was left  after the recovery from
the immediate danger. Vol. 1, p. 3S2.
  X I have not noticed the moral causes of impotence, which involve the in-
quiry as to the influence of the mind on the generative function, because  I 
IMPOTENCE  AND STERILITY.
103
  We come now to the consideration of impotence in the
female.   And here it is to be observed, that even if the causes
of it be removed, yet sterility, or an inability to conceive,
may still exist.  It will, therefore, be proper to notice the
causes of impotence and sterility in succession.  They may
each be divided into incurable and curable.
  The incurable causes of impotence are, 1. An  obliteration
or thickening of the sexual organs,  so as to prevent any
introduction.
  The vagina and womb have thus been found closed with
a  dense fleshy substance.   Morgagni  mentions  cases in
which there was a continuity oif parts, without any aperture.
A recent case related by Dr. Mott,  as occurring in  this
country, deserves to be stated  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 some slight uneasiness about the pelvis, which
is followed for a day or two by an active diarrhoea.   This
occurrence she has noticed, since about the age of seventeen
or eighteen.
  As no connexion  could be effected by her husband, she
at length consented to an examination.   The external parts
were  fully formed, but no vagina could be  discovered.   On
a plane with  the meatus urinarius, or about the  situation of
the hymen, there is a complete septum or partition.  It has
a firm appearance, though it yields somewhat to the finger.
There is not the least opening into it in  any part.   Imagin-
ing 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 proceeded 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

can hardly suppose how any proof on this point can be brought before a court
of justice.  It is however unquestionable that they may exist, through the
influence of the  imagination, the fear of incompetency, dislike of the indi-
vidual, &c. The " Evil Eye " of the Greeks is an apt illustration. 
104
IMPOTENCE  AND STERILITY.
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 with-
out  consummating 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 menses.  A surgeon named  Dejours was af-
terwards called in;  and  on examination, he supposed  that
an  incision  into this  solid mass  might remedy the incon-
venience ; and he  accordingly  performed  it  in 1734, but
without success ;  as after cutting down  two inches,  he still
found the mass in equal  quantity,  and  the hope of its being
a superficial obstruction was destroyed.   He contented him-
self 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 Saumet, on being
consulted, stated that they had found an aperture of two  or
three inches in length; that the cicatrix of the former op-
  * New-York Med. and Phys. Journal, vol. 2, p. 19.  A case probably of
the same nature, is mentioned in the Lond. Med. Repository,- vol. 8, p. 347.
  Other cases are referred to in Davis' Obstetric Medicine, p. 112. " Richer-
and mentions a similar case, in which nature was periodically relieved by a
discharge of bloody urine."  Dunlop.
  Dr. Lee (Cyclop. Pract. Med., Art. Diseases of the Ovaria,) states the fol-
lowing as communicated to him by Prof. Elliotson.  A young married female
had never menstruated, yet had violent pains every m'onth. Connexion went
on, yet with severe pain. On examination, which was finally consented to,
no vagina could be discovered, " 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 substance,) operated on by Dr. Macfarlane, of Glasgow.  The patient
died, and on dissection no uterus was found, but the ovaries were large and
well formed.  In this female the breasts were fully developed.   Medico-Chi-
rurgical Review, vol. 22, p. 450.
  Dr. Watson_ of  New-York operated on a young German woman  for  con-
genital occlusion  of the vagina.   A passage was obtained as  far as the  os
tmcse, but the whole uterus appears to be atrophied. There was no menstrual
fluid. Forry's New-York Journal of Medicine, vol. 3, p. 338. 
IMPOTENCE  AND  STERILITY.
105
eration still remained; and that either through fear, or the
prudence of the surgeon, it had  not been sufficiently exten-
sive  to  remove  the obstacles.  Ferrin, Petit, and Morand,
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 consti-
tute  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
present, but there was merely a mass of cellular  tissue  in
the  place of the vagina, and by  an  operation, an opening
was  made to the  uterus.!   In anothers 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 formed.J   Professor
Warren of Boston  recently operated  in a case,  where the
vagina  was  wanting, although the  aperture  of the urethra
was  well formed,  and the clitoris  and nymphee appeared as
 usual.   The female was 23 years  old.    The breasts were
natural.   No uterus could be discovered on examination.

   * Fodere, vol. 1,  p. 385.  Still more remarkable cases are on record.  In
 the article Cas rares, in the Dictionaire des Sciences Medicales, vol. 4, p. 166,
 it is  asserted on the authority of Hufeland, that the body of a child three
 years old was lately opened at Berlin, in which there was not the slightest
 trace, either externally or internally, of any part of the genital organs pe-
 culiar to either sex.  (Medico-Chirurgical Review, vol. 4, p. 300.) Another
 resembling  the above,  and occuring in a girl fourteen years old, is quoted
 from  the Jdnrnal de Medecine,  in the American Journal of the Medical Sci-
 ences, 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.  Sometimes the vagina is found ending in a cul de sac, as in case of
 Agatha Melassene, who died, aged 27, at the Hotel Dieu in 1823.  The exter-
 nal organs were well formed, and the breasts full; yet on dissection, no ute-
 rus 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. 114.)  A small orifice leading to the bladder, un-
 accompanied with a vagina, occurred at Mr. Syme's Edinburgh Surgical Hos-
 pital.  (Edinburgh Med.  and Surg. Journal, vol. 37, p. 337.) 
106
IMPOTENCE  AND  STERILITY.
The operation ended favorably, a sanguineous discharge re-
sembling the  catamenia occurred,  and Dr.  Hayward sup-
posed that he could distinguish something like an uterus.*
  2.  Another  cause, (as  assigned  by systematic writers,)
both  of impotence and sterility, is a natural or fistulous com-
munication of the vagina with the bladder or rectum.  Fo-
dere   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  accounts of impregnation in one or two in-
stances, and where delivery was affected by the  malformed
passages.  Louis'  famous  case  was  of  this  description.
The  thesis  that he wrote on  this  subject,  " In uxore sic
disposita, uti  fas  sit3 vel non? judicent  thelogi morales:"
was made the subject of a prosecution 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.!
   3.  A prolapsus or retroversion of the  uterus, or a prolap-
sus 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.t
  * 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 con-
genital deficiency of the vagina are very rare, and quotes three, from Meyer,
Oberteufer, and Howship.
  Another instance occurring to M. Manoury of CBartres (France) is men-
tioned in Medico-Chirurgical Review, vol. 36, p. 531.
  t Medico-Chirurgical Review,  vol. 5.  p. 229.  A late case of the same na-
ture occurred to Prof. Rossi  in  Piedmont.  (Dictionaire des Sciences Medi-
cales, vol. 24, Art. Impuissance.)  Two other cases  are related" by Davis,
(Obstetric Medicine, p. 121,) on the authority of Puzos and Portal.
  X Pregnancy is however possible, even with an external prolapsus of the
uterus.  See cases quoted in the Cyclopedia of Practical Medicine, vol. 3,
p. 493.
  Mr. Guillemot has collected "from various sources, nine cases of the kind,
the first two of which are particularly remarkable, as examples of gestation
accomplished where the prolapse was complete."  Montgomery, Signs of Preg-
nancy, p. 194.
  " There is more than  one case  on record, where impregnatiou was effected,
although the prolapse was irreducible."  Churchill on Diseases of Females,
p. 216. 
IMPOTENCE AND  STERILITY.
107
  4. A cancer of the vagina or uterus, from the pain that
accompanies it, may be  considered as an absolute cause.*
Without this, however,  it would not seem to be incompati-
ble with  impregnation.   Dr. Beatty of Dublin had a preg-
nant  female laboring under the  disease, and  Dr. F.  H.
Ramsbotham observes in  his lectures, that in one case at
least, which he attended, he had an opportunity of knowing
that the disease existed before impregnation.!   Dr. Waller
relates an instance where the female was safely delivered,
but died in six weeks after.J
   Dr.  Lever, also, in his work on Organic Diseases of the
Uterus, mentions six additional cases, and has enumerated
many  other  organic affections of that  organ, which are
shown not to be incompatible with pregnancy.§
   5. Extreme brevity of the vagina (congenital) would  seem
to be  occassionally 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, laboring under
this.   He told her that she was the most unfortunate  part-
ner that a man could have,  as  there was  no cure.||   Dr.
Dewees  appears  to  have met with two cases—in  one,
the whole distance  to which  the  finger could be passed,
did not exceed one inch  or an inch and a half; in the other
it was apparently connected with an absence of the uterus,
as the vagina terminated in a cul de  sac.   This  female had
never  menstruated; yet she had all  the marks of woman-
hood, and enjoyed sexual intercourse.IT

  * In  the New England Journal, vol. 9, p. 161, is a case by M. Lassere,
which evidently proves the position in the text.
  t London Med. Gazette, vol. 16, p. 466.
  X Lancet, N. S., vol. 25, p. 835.
  § See in addition to Dr. Lever's Work, the following:  Mr. Sherwin, Lon-
don Med. Gazette, vol. 33, p. 806.  Two cases of fungoid disease of uterus
complicated with pregnancy.  Edinburgh Med. and Surg. Journal, vol. 61 *
p. 161.
  || Gooch's Midwifery, p. 45.
  if Dewees on the Diseases of Females. 
108
IMPOTENCE AND STERILITY.
   The  curable  causes are,  1.  A  dense  substance covering
the  orifice of the vagina.   Pare,  Ruysch,  Fabricius,  and
many others relate cases  of this  kind ; in some  of which
the membrane, which is generally the hymen, was so strong
that the menstrual blood was accumulated behind it  in large
quantities.  Fodere quotes a case  from Fabricius, where the
husband  demanded a  dissolution  of the marriage, from the
impossibility  of having  perfect  connexion.  The  female,
however, declared herself pregnant;  and by an incision in-
to the membrane, the obstacle  was removed, and the preg-
nancy 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.!
   2. An extreme  narrowness of the vagina.   Should preg-
nancy intervene, no apprehension needs be entertained of the
result in this case, as it has been repeatedly observed  that
a  dilatation gradually takes place before the period of de-
livery.  It may be remarked, however, that this occurs more
readily in young females,  than in  those of advanced years.|
  * Fodere, vol. 1, p. 389.  I shall notice this more in detail in the Chapter
on Rape.
  t Dorsey's Surgery, vol. 2, p. 368.  A remarkable case of a married wo-
man, in whom the fossa magna were closed up to the orifice of the uterus, is
quoted from Fletcher'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.)
  Dr. Coste, of  Marseilles, gives a case where the imperforate vagina  was
covered with an integument.  The clitoris was greatly enlarged.  The mal-
conformation was removed by an operation.   Medico-Chirurgical Review, vol.
29, p. 526.  A still more remarkable case is quoted by Dr. Churchill (Diseases
of Females, p. 48,) from Amusat.  No vagina could be discovered, but alarge
and fluctuating tumor  at the upper part of the pelvis was felt through the
rectum.  As an operation was deemed impossible, on account of the danger
of wounding the bladder  or rectum, Amusat proposed to separate the con-
tiguous organs  by traction and actually succeeded.  With his fingers he de-
pressed the mucous membrane of the vulva until it yielded, and gradually,
with the aid of a sound and a sponge tent, at last reached the tumor.  This
he opened with  a bistoury, and a large quantity of dark jelly-like fluid was
discharged.  The patient aged 15, after this, menstruated regularly, and her
health became perfectly established.
 _ Another case  of complete imperforation of the vagina, cured by an opera-
tion, and succeeded by regular menstruation, is stated by Dr. Kennedy in
Forry's New York Journal of Medicine, vol. 1, p. 207.
  X Dr. Davis mentions a case in whieh the narrowness  returned after the
first  delivery, and was only completely relieved after the second birth.  Ob- 
IMPOTENCE  AND STERILITY.
109
   Sometimes, however, there is a degree of irritability com-
bined with the narrowness,  as to  cause  extreme pain and
fainting,   on  attempting  coition.   Dr.  A.   T.   Thomson
mentions an instance of this nature, where he and Sir Charles
M. Clarke, in consultation, attempted every means  to allay
it and dilate, but without success.
   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  labor.*   A dilatation  of these may be made accord-
ing to the rules of modern surgery.!
stetric Medicine, p. 102.  See also the subsequent pages of his work for addi-
tional cases.  M. Amusat lately removed a congenital occlusion of the vagi-
na, in a vfemale fifteen years of age, and brought from Germany, by gradual
dilatation with a blunt instrument.  There was nothing now to prevent con-
ception, but from the state of the parts, he considered the danger imminent,
should gestation occur.  Medico-Chirurgical Review, vol.  29, p. 522.
  * These are so numerous and various, that I will only refer to some of the
more remarkable:
  Davis' Obstretric Medicine, p. 116 to 120.
  On obliteration of the vagina, by Caesar Hawkins.   (London Med. Gaz.)
  Cyclopedia of Practical Medicine, vol.  2, p. 601,  Art. Impotence, by Dr,
Beatty.
  Appendix to Dr. Hamilton's Practical Observations on Midwifery, Part 2.
  Merriman's Synopsis, Appendix No. 11.
  Of American cases, Dr. AVilliams in American Journal  Med. Sciences, vol.
11, p.  408.   Dr. Hoillemin, Ibid, vol. 15, p. 407.  Dr. Mussey, vol. 21, p. 383.
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 exami-
nation, 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.)  Two cases,  caused by ulceration, by Dr. Carroll  of Ohio,
Ibid. vol. 11, p. 546.  A case by Dr. Hicks of Mississippi, American Med. In-
telligencer,  vol.  2, p. 35. A case by Dr. Pugh, (from Maryland Med. and
Surg. Journal) in Medico-Chir. Review, vol. 40, p. 573. A case by Prof. Mc-
Naughton, in the New York Medical and Physical Journal, vol 6. p. 252.
  Dr. Fish,  in Boston Med. and Surg. Journal, vol. 15, p. 268.
  A case related by Dr.  White of St. Louis.  Here (in 1833) a high state of
inflammation of the mucous membrane of the vagina, and adhesion of  its
parietes were induced by a steam doctor, who injected by mistake, some seven
or eight tunes, an infusion of red pepper, into  the vagina, instead of the rec-
tum.  This heroic remedy was used to prevent an attack of cholera. Dr.
White was obliged to make an extensive incision.  Baltimore Med. and Surg.
Journal, vol. 2, p. 314.
  Dr. Meigs in his work on Midwifery relates  a case which occurred from in-
flammation and sloughing after labor, and which was successfully treated.
  Dr. Trowbridge in Boston Med.  and Surg. Journal, vol. 22, p. 120.
  Dr. Marsh of Philadelphia in Philadelphia Med. Examiner, vol.  5,  p. 1.
Dr. Green in do. p. 68.  Dr. Davezac (from New Orleans Med. Journal) in doJ
vol. 8, p. 2-j-j. This was in a pregnant female, and an operation was necessa-
  [f  See next page.] 
110
IMPOTENCE  AND STERILITY.
  4.  We may add  long continued haemorrhage, recent pro-

lapsus of the uterus or  vagina, and even  protracted fluor

albus,  to the above.   They prevent  connexion from  the

pain  that occurs, or the diseased state that is present.

  5.  Mr. Ingleby  suggests an additional cause in a  protru-

sion  of the bladder into  the vagina.   He has met with  one

case   of this description,  where  this  impediment  arose

several years after  marriage.J

   The  causes   of   sterility,  of  an  incurable  nature,  and

sensible to the sight or  touch  during life, may be  stated

thus: A schirrous  or cartilaginous uterus; stricture  in the

cavity  of that  organ ;§  a polypus  in the  interior  of the


ry to divide the obstruction, which was elastic, but so completely closed the
vagina that the menses had passed merely through a small perforation.
  A case by Dr. Stedman in the Edinburgh Med. and Surg. Journal, vol. 37,
p. 26; by Dr. Turnbull  in do. vol. 39, p. 128 ; by Mr. Inglely in do. vol. 45,
p. 111.
  Dr. Boehm quoted in London and Edinburgh Monthly Med. Journal, vol. 3,
p. 478;  Mr. Square in  Provincial Med. Journal, Medical Times, vol. 10,
p. 378, Artesia Vaginae.
  In the Medico-Chirurgical Transactions, vol. 11, p. 445, a case is related of
a negress in Jamaica, in whom there was a complete adhesion of the labia;
and she asserted that it was owing to an operation performed in Africa, for
the purpose of preserving the chastity of the female.  This appears indeed to
have been an ancient custom, as it is mentioned by Strabo.  That it is the
practice, is proved by  the observations 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 3
to 6 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, be-
come more valuable on account of their unfitness for sexual  connexion.
 (Elliotson's Blumenbach, p. 456.)  See also Browne and Legh's Travels.
  Vagina closed with a  dense cicatrix, with the exception of a canal through
which a small quill might be forced.  Third pregnacy, the female died from
 rupture  of the uterus, undelivered.  Dr. Brainard, Illinois Med. and  Surg.
 Journal, vol. 1, p. 25.
   t Dupuytren, in his Essay on Laceration of the Perineum during Labour,
 mentions two cases, which I extract, for the purpose of caution to the medical
jurist.  He delivered a  young woman secretly.  The perineum was ruptured,
 but by the use of the suture, it again united.  Several years afterwards, a
 man and a woman visited him.  The husband was unable to consummate hi3
 marriage.  On  examination, the aperture of the vagina was found very nar-
 row,  and a cicatrix was on the perineum. It was his old patient.  He advised
 patience; and in a short  time the female became pregnant, and was safely
 delivered.—In  a parallel case, the husband deemed it a most unequivocal
 proof of previous purity.   (London Medical Gazette, vol. 11, p. 128.)
   X Edin. Med. and Surg. Journal, vol. 44, p. 432.
   § Baillie's Morbid Anatomy, p. 371.  " Slight inflammation (he observes)
 may  induce this, and the obliteration particularly occurs in that part where
 the cavity is narrowest." 
IMPOTENCE AND  STERILITY.
Ill
uterus; enlarged and schirrous  ovana.  " It is now believ-
ed," says  Dr.  Churchill  "that  not  only  are  the  ovaries
concerned  in the process of generation, but  that they  are
the  efficient cause of menstruation."
   The  want  of  the  uterus,  should  that occur,  is  seldom
positively  known till after death.*
  * Memoirs  of the Medical Society  of London, vol. 4, p. 94.  See  also
Burns's Midwifery, 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 Ber-
lin, illustrates the variety of external conformation that occurs.  She was
married, aged 24, well formed, slender, and delicate, with full breasts.  The
vagina was imperforate and on operating nothing but a mass of cellular tis-
sue 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  characteris-
tics.  Annals of  Philosophy, vol.  16, p. 114.  This last  opinion is corro-
borated 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 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 tincae and  uterus were
found of the usual form, but they  had never increased beyond their size in
the infant state; the passage into the uterus through the cervix, was oblique;
the cavity of the uterus of the common shape, and the fallopian tubes were
pervious to the fimbroe; the coats of the uterus were membranous; and the
ovaria were so indistinct, as rather to show  the rudiments which ought to
have formed them, than  any part  of  tkeir natural structure.  Edin. Med.
and Surg. Journal, vol. 3, p. 105.   Mr. Pott removed  the ovaria in a case of
inguinal hernia, by a  surgical operation.  (Works, vol.  2, p. 210.)   Before
this period, the female (aged twenty-three)  was stout, large-breasted, and
menstruated regularly; afterwards, although she enjoyed good health, she
became thinner, her breasts were gone, and she never menstruated.
   Additional  cases of the absence  or imperfect state of the uterus or ovaria
and sometimes also of  the vagina may be found in the London Med. Reposito-
ry, vol. 26,  p. 78, by Dr. Renauldin; Lancet, N. S. vol. 10, p. 624, by Dr.
Macfarlane ; Davis's Obstetric Medicine, p. 513; Andral's Pathological Anato-
my, vol. 2, p. 414; Gooch's Midwifery, p. 8.   By Dr. Albers (from Kleinert's
Repertorium, September, 1835.)  This case was examined after death, which
occurred at the age of 47.  Lancet, N. S. vol. 17, p. 570.   A case of a female
aged 19, in the Birmingham Infirmary, August, 1835.  The uterus was want-
ing, and there was no trace of a vagina, but the ovaries were of the natural
size, and the breasts  were small, but decidedly formed.  Transactions  Pro-
vincial Med. and Surg. Association, vol. 3, p. 399.
   American Journal  Med. Sciences,  vol. 20, p. 393.  Case by Dr. J. B. S.
Jackson, of a female examined at Boston, the external organs and breasts
were  fully developed, but the vagina and uterus were wanting.  The fallo-
pian  tubes and  ovaria  were natural.  Ibid. vol. 26, p. 38, by Dr. Chew of
Baltimore; the female living, p.  185 ;  by Dr. Burggrave of Ghent—post mor-
tem examination.
   American Journal of Medical  Sciences, New Series, vol. 1, p. 348, by Dr.
Bennet of New Jersey.  In this,  an  operation proved useless, as the parts
closed again, p. 493; by Dr. Seguin from  Revue  Medicale, p. 494; by Dr.3
O'Bryen from the Dublin Journal, vol. 3, p. 199;  by Dr. Bertani of Milan.
In this, both  vagina and uterus  were  wanting.  She (Caroline  Fossati) had*
never menstruated, vol. 7 ;  p. 489, by Dr. Mondini, from an Italian Journal.
This female had never menstruated, but every month there was bleeding from 
112
IMPOTENCE AND STERILITY.
   The causes which  may be  curable,  are, obliquity in the
position of the uterus; too  great irritability  of that organ;
excessive menstruation;  leucorrhea; retention of the men-
ses.*   This last, however,  is  not by  any means  a certain
cause of sterility, as women have become pregnant without
the menses ever occurring-!
   We  should readily  suppose that an  imperforate  uterus
must be productive of sterility, were  not an opposite case
related on  the highest authority.  A female  in London,  in
labor with  her first child, (November,  1836) was found by
Mr.  Tweedie the  reporter, and Dr.  Ashwell, to have  no
orifice into the uterus, nor was delivery accomplished until
after an operation.J   In  this, and similar cases, it is sup-
the nose.  She died of fever, and on dissection, the ovaries were natural, but
there was no uterus or vagina.
  Medico-Chirurgical Review,  vol. 35, p. 547.  Case by Rayer at the Hospi-
tal de la Charite.
  New York Journal  of Medicine and  Surgery, vol. 3, p. 435, by Dr. Isaac
E. Taylor.
  Medico-Chirurgical Transactions, vol. 24, p. 187.   By Dr. R. Boyd.
  British and Foreign Medical Review, vol. 12, p. 540; by Dr. Wehr of Kas-
sel, vol. 13,  p. 230 ; by Dr. Cramer.  Here the vagina was well formed, but
ending in a  cul de sac with vicarious menstruation and sexual appetite.
  * Mr. Serrurier of Paris has published a case of obliquity  of the os uteri
in a sterile  female, which was accidentally removed  by  a fall from a horse.
Conception subsequently occurred.  He also mentions extreme softness or in-
duration of  the neck,  as  occasionally curable causes.  Amer. Journal Med.
Sciences, vol. 22,  p. 472.
  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-conformation 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-conformation are also con-
tained 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 Lon-
don Med. Gazette, vol. 10, p. 8, by Mr. Earle.  This last writer observes,
that there are but seven or eight recorded cases of such mal-conformations
in the female, while there are at least sixty related of its occurrence in the
male.   It is not incompatible with impregnation. See the case of the Cornish
woman, by Dr. Huxham, Phil. Trans., vol. 32, p. 408; also, vol. 20, p. 56;
and Mr. Earle's Clinical Lecture on this subject, as above.   A very curious
American case, where the Caesarean operation was successfully performed,
and the parts  generally resembled the cases  above enumerated, is related
by Dr. Hamilton, of Enfield,  Connecticut, in Boston Med. and Surg. Jour-
nal, vol. 11, p. 93.                                               •
  X Guy's Hospital Reports, vol. 2, p. 25S.  See also London Med. Gazette,
vol. 20, p. 392, 5S5.  Dr. Tweedie delivered this female a second time, after
an operation.   He considers it ascertained, that in her, the cervix uteri was
wanting and consequently that after  impregnation, adhesive matter,  instead 
IMPOTENCE AND STERILITY.
113
posed, that the  orifice of the  uterus being  exceedingly
minute, maybe obliterated by slight local inflammation after
conception.


  In concluding this subject, it is proper to add, that there
are  many cases of constitutional sterility, which we cannot
explain.   Ashwell in his Treatise on Parturition,  ascribes
it to four principal causes ; too  early marriage—general ill
health—too frequent sexual intercourse, and dy smenorrhoea.*
It is obvious,  however, that these are far from being inva-
riable, 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 ex-
haustion 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 dissec-
of mucus, may have closed up the small opening in the uterus which doubt-
less existed.  Guy's Hospital Reports, vol. 4, p. 117.
  A number of cases of occlusion of the uterus  are referred to by him and
Dr. Ashwell in ibid, p. 120, 126.
  Dr. Webber of New Hampshire relates a similar instance of obliteration of
the os uteri.  A slight scratching with  the finger, aided by  the effect of
labor pains, was however sufficient to produce a successful dilatation.  Amer.
J. Med. Sciences, vol 24, p. 256.  See also Crosse's Address in Transactions
Provincial  Med. Association, vol. 5, p. 94, British and Foreign Med.  Rev.,
vol. 8, p. 55, vol. 9, p. 263.
  Probably Congenital.—A case successfully operated on, in an unmarried
female, by  Professor Delpech, is given in the Medico Chirurgical Review,
vol. 17, p. 553.  Another by Prof. Wattmann, from Gazette  Medicale, in
London and Edinburgh Monthly Journal Medical Science, vol. 2, p. 204.
  In the Amer. Journal Med. Sciences, vol. 22, p. 172, a case is quoted from
a German Journal, in which impregnation occurred, whilst the uterine orifice
was completely filled by a polypus.
  Naegele, the  son, has written an Essay on this subject, (De Mogostocia e
conglutinatione  orificii uteri externi Commentatio, Heidelberg, 1833,) which
is analyzed in the Archives de la Medecine Beige, vol. 4, p.  124.  He as-
cribes the  occleision to  inflammation induced by various irritant causes.  A
case, apparently congenital, and relieved by an operation, is mentioned in
ibid., vol. S, p. 236, by Dr. Becasseau of Leige.
  * Review of his work in Amer. J. Med. Sciences, vol. 4, p. 149.  Sterility
is considered by the laws of various countries, a legal ground of separation.
It is so* among the Hindoos.  By the laws of China, barrenness and talkative-
ness are two among the  seven causes of divorce.  The Koran also permits it.
By the English and Scots law,  sterility is a  ground for divorce, a mensa et
thoro.  Edinburgh Encyclopedia, Art. Barrenness.

                      8 
114             IMPOTENCE AND STERILITY.
tions,  found, the fimbriated  extremities  of the  fallopian
tubes on one or both sides, adherent to some of the  neigh-
boring  parts, and it is evident, that the  constant state of
inflammatory turgesence in the generative organs must lead
to this.*
   M. Donne has investigated this subject in another point
of view.  In a communication to the Royal Academy  of
Sciences at Paris, he states, that he submitted the spermatic
animalcules to the action of  various animal fluids.   Blood,
milk and pus seemed  to have no visible effect upon them,
but the urine  and  saliva  appeared to kill  them at once.
Under certain circumstances, the vaginal and uterine mucus,
even  of females apparently  in good health, was such, as
instantly to destroy them.!  If there be any foundation for
these results, we can readily explain the  cause  of sterility
in diseased females  and in prostitutes.
   From a review of the  causes of impotence in both  the
sexes,  it is evident that the absolute ones are few in num-
ber—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 was
now fifty  years old.  Sir William  Scott,  (Lord Stowell)
denied  the  application.   It  was brought  too  late.  The
   * Medico-Chirurgical review, vol. 4, p. 405; Paris Med. Jurisp., vol. 1, p.
215.  See also Dr. Elliotson's Clinical Lectures, in Lancet, N. S., vol. 8, p.
55; Eberle's Med. Review, vol. 2, p. 394; Medico-Chirurgical Transactions,
vol. 8, p. 505, vol. 13, p. 55.
  It would appear from the observations of Parent Duchatelet, (De la Prosti-
tution, vol. l,p. 230,) that prostitutes are far from being absolutely sterile.
According to him, about twenty-two in the thousand bring forth children, but
these seldom survive. Abortions also are common.  Prostitutes are hence
evidently much less prolific than virtuous females.
  t Medico-Chirurgical Review, vol. 32, p. 529. 
IMPOTENCE AND STERILITY.
115
female also, is beyond the ordinary time of child-bearing;
and  she further swore, that  she had constant connexion
with her first husband until near his death.*
  In the case of Greenstreet v. Cumyns, the husband admit-
ted the  charge,  and two physicians and two surgeons duly
appointed, testified, that though the disease and imperfec-
tion of the  parts were not such as to imply impotence, yet
having heard his own history, they  put faith in his account,
and as he  was in good health, they  could hold out no hope
of  his  weakness  being  remedied.   The  marriage  was
annulled on these  grounds—the  husband  (Sir  Wm.  Scott
observed)  being in utter  ignorance  of his  constitutional
defects at  the time of marriage.!
   In Norton v. Seton,  the husband  instituted  a suit for
divorce after having been seven years married, on the ground
 of his own impotency and defect in his generative organs.
It was with great justice denied by Sir  John Nichol.  "Here,"
says he, "has been  seven  years' cohabitation.   Cur tamdiu
tacuif?"J
   The  doctrine  that the impediment  must have existed at
the time of marriage and must  be incurable, and that even
 if the last be proved, it must  not have been a merely super-
 vening defect, is decisively affirmed by Sir John Nichol in
the case of Brown v. Brown. §
   In Pollard  v. Wybourn, it was  proved by medical cer-
 tificates, that the female,  twelve years after  marriage, was
virgo intacta and apta viro. The  husband had made several
 confessions of his incapacity, and refused, being in France,
 to answer to the complaint.
   The marriage was dissolved.||

   * 3 Phillimore's Ecclesiastical  Reports, p. 425.
   t 2 Phillimore, p. 10.
   X 3 Phillimore, p. 147.
   § 1 Haggard's Ecclesiastical Reports, p. 523.
   || 1 Haggard., p. 725.  It would seem that the canon law in England requi-
 red three years' cohabitation, before the  party could be declared incapable.
 Such at least is asserted 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 phymo-
 sis, and he now believed the defendant capable.   The wife was declared pure
 on the examination of midwives.   Sir George Lee, however, refused to dis-
 solve the marriage. 
116
IMPOTENCE  AND STERILITY.
   In the case of Harrison v. Harrison, the wife  deposed,
 that  during  a marriage of fifteen years, no connexion  had
 ever taken place; she  further presented the following re-
 port made by Sir Charles M. Clarke,  Dr.  Locock and Sir
 Benjamin Brodie.
   " The signs of virginity are in many instances inconclusive.
 In the present case, there are no positive proofs of connexion
 having  ever taken place or the contrary, but  there are de-
 cidedly no physical impediments to physical intercourse."
   The husband denied  his impotence but admitted the non-
 consummation, and urged as an excuse, that the  manner of his
 wife was extremely repulsive  and frigid.   No examination
 was had of his  person.
   The court  dissolved the  marriage.*
   As the present is  truly called a singular, and indeed, is
 almost an unique one, I will present an analysis  of  it, as
 given in Robertson's Ecclesiastical Reports, vol.  1, p. 279.
   The parties, whose names  are concealed, were  married on
 the 3d  of February,  1842, the husband being aged  about
 twenty-six years, and the  wife twenty-five.   The husband
 stated,  in his application for a divorce, that they had lived
 together until  the 11th of November,  1844, when she  re-
 turned to her father's house; that the  marriage  had never
 been consummated, in consequence of a natural mal-conforma-
 tion of  the sexual organs;  that he  for some  time was of
 opinion, that the inability was the  result  of  a  temporary
 obstruction, which would probably yield to simple exercise,
 aided by horse exercise, which he recommended  to her, and
in the use of  which she long persisted;  that, in the months
 of September and October, 1844, she, at his earnest entrea-
ty, submitted to an examination by Drs.  Bird and  Lever, and
upon their concurrent reports, as to her natural and irreme-
diable mal-conformation and bodily defects, he for the first
disclosed to his legal advisers the non-consummation of the
marriage, and now applied  for a divorce.

  * Curteis' Ecclesiastical Reports, vol. 3, p. 16.  This decision was subse-
quently affirmed by the Privy Council, (on confession of non-consummation and
refusal to undergo inspection.) 
IMPOTENCE AND STERILITY.
117
   The answer contained a general denial of the statement
of the mal-conformation and non-consummation, and stated,
that in the months above named, in 1844, she, by reason of
not having any child, and not on account of any natural or
irremediable conformation  or  bodily defects, submitted, at
her husband's earnest request, to medical examination.
   On the 5th of April,  1845, Dr. Bird, Dr. Cape and Dr.
Lever were appointed by the court, inspectors to examine
the female.  Their report is as follows :
   "April 5,  1845.  We,  the  undersigned,  have  this day
particularly examined the parts of generation of Maria  D.,
and we are unanimously of opinion, that she is undoubtedly
capable of performing  the  act of generation, and  of  being
carnally known  by man.   We  are further of opinion, that
although sexual intercourse can occur, yet conception can-
not result."  Signed as above.
   This report leaves the matter rather mysterious, even to
a  medical  man, and it is therefore necessary to  state the
evidence of Dr.  Bird and Dr. Lever.
   It seems the  former  was consulted by the defendant  for
about a year past, for certain ailments,  and in pursuing his
inquiries respecting her indisposition, he found it absolutely
necessary to make an examination, and  the result was, that
he ascertained that the external sexual  organs were imper-
fect, or rather undeveloped ; that she  had the appearance
rather of a girl not having  attained puberty, than an adult;
and internally, the vagina, which ought to have been  of an
internal depth of about three inches, was in fact, as ascer-
tained by admeasurement, only three-quarters of an inch in
depth.  "This was  decidedly a  natural mal-formation of
the parts, but not such, as I was enabled without further in-
vestigation, to pronounce whether remediable or irremedia-
ble, though it was certain, that if the former, it could only
be effected by an operation.  With the view of endeavoring
to ascertain if an operation could be  performed  with a
prospect of success, a more  minute and careful investigation
became necessary, and  such was subsequently made by my-
self in conjunction with  Dr.  Lever,  and it was then ascer- 
118
IMPOTENCE  AND STERILITY.
tained that the internal  structure of the organs of genera-
tion was, in  addition to the deformity already mentioned,
further importantly deficient and imperfect, there not being
any uterus.   This was ascertained by me beyond the slight-
est possibility of a doubt, and that the vagina formed an
impervious cul-de-sac, and that, consequently, any operation
would be wholly ineffective; and I  depose that the said
Maria D. is, therefore, irremediably incapable of procrea-
tion and  conception,  arising  entirely from the organic de-
formities which I have explained, viz., the  absence of the
uterus and the irremediably impervious state of the vagina."
  Dr. Bird further deposed, that on the  examination made
April 5th, 1845, with Drs. Lever  and Cape, he had found
that the vagina had become  considerably elongated, being
now  of the  depth of two inches,  ascertained  by actual
admeasurement.  " I cannot, therefore, depose that it is abso-
lutely impossible for the vagina  to attain a further elonga-
tion, but I am not acquainted with any  means, medical or
otherwise,  capable of improving its existing  condition."
He further stated as his opinion, that the deformity did not
entirely  prevent her from having  connexion, as  it had
undoubtedly taken place, but such connexion must be of an
imperfect character, and allowing only a partial insertion of
the penis.  The  husband had communicated to him the im-
perfect connexion he had had, and with great declared suffer-
ing from pain on her part, but that he had attributed it at
first,  and for  a long time, to  a mere temporary obstruction
capable of being overcome by further intercourse.
  The testimony of Dr. Lever  coincides in all the main
points with that of  Dr. Bird.  He states, however, that the
female admitted to him the total absence of the menses.  As
to the partial extension of the vagina, he was unable to say
whether it had been caused by sexual intercourse or by arti-
ficial  means.
  On this testimony the case came to trial. For the husband
it was urged, that this is not the case of a woman who is
barren ; that undoubtedly would be no ground for a sentence
of nullity—but of one who has no  uterus, and in addition to 
IMPOTENCE  AND STERILITY.
119
that defect, has her vagina so formed as to preclude sexual
intercourse in the proper sense of the term.  If a woman be
umulier  viro inutilis," or,  as  it  is otherwise  expressed,
" inhabilis," arising from a natural irremediable defect, which
is the case here, there is just ground for a sentence of nullity.
  The counsel  for the  wife  insisted that to entitle a party
to a sentence of nullity, there must be an utter impossibility
of sexual intercourse.  This is not proved by the plea.  The
case is one of mere sterility, which is no ground for a sen-
tence.  Besides,  there  has been  an improvement  in the
elongation of the vagina, and they will not undertake to de-
pose that there may not be a further elongation.   To justify
the sentence prayed,  the  defect  must be permanent  and
irremediable.   Again, actual consummation has taken place.
  The judge (Dr. Lushington) took time to consider the case,
and on the 7th  of June  pronounced judgment.
  The inspectors' report, if considered by itself, is  clearly
insufficient to justify a  decree in favor  of the husband.  It
declares the power of consummation, but denies the power of
conception.  But, two of them have been examined, and it
is necessary to consider their evidence.  Mere incapability
of conception is not a sufficient ground whereon to found a
decree of nullity.  " The only question is, whether the lady
is or  is not capable of  sexual intercourse, or if at present
incapable, whether that incapacity can  be removed ]"
  The effect of Dr. Bird's  testimony is, that  there  may be
connexion of a very imperfect character.  He cannot say that
it is  impossible that  the vagina  should obtain  a  further
elongation,  but it must always remain in a deformed and
unnatural state.  The evidence of Dr.  Lever does not ma-
terially differ from this.
   Now the evidence and the report do  not convey the  same
idea.  The latter would induce  a belief, that the act of
generation might take place in its ordinary and perfect form;
the evidence speaks of its  very imperfect character.  The
report is silent as to the possibility of  cure.
  " Certainly, all  the circumstances combined,  form a case
of no ordinary difficulty.  It is no easy matter to discover 
120
IMPOTENCE  AND STERILITY.
and define a safe principle to act upon; perhaps it is impos-
sible  affirmatively  to  lay down any principle, which,  if
carried to either extreme, might not be mischievous.  Very
little assistance  can be obtained from authorities.   I must
rather endeavor to find out what  are  the true  principles of
law and reason applicable to  the case, following as far as
practicable, or rather  not contradicting former  decisions."
Sexual intercourse, present or to come, is necessary to con-
stitute the marriage bond between  young persons.  And
this intercourse must be ordinary and complete, not partial
and imperfect; yet it would not be proper to say, that every
degree  of imperfection would  deprive  it of  its  natural
character.   There must be degrees difficult to  deal with;
but if so imperfect as  to be scarcely natural, I should not
hesitate to say, that, legally speaking, it is no intercourse
at all.
   The evidence of the witness  is  somewhat  ambiguous.
As to conception, there is no doubt  that the mal-formation
is incurable, but it is to me doubtful whether they mean that
it is incurable as to the mere coitus.   If there is a reasona-
ble probability that the lady can be made capable of the
natural sort of coitus, I cannot  pronounce this  marriage
void ; but if she is not, and cannot be made capable of more
than an incipient, imperfect  and unnatural coitus, I would
pronounce it void.  Such an intercourse must cause disgust,
lead to  adulterous connexion, or else force the husband to a
state of quasi unnatural connexion.
   The  discrepance  between the report and the evidence is
such as to prevent a decision until Dr. Cape is examined,
and the following questions, in addition to the  examination
 of the parties, are to be put to him:
   1.  Whether (without regard  to  the impossibility of con-
ception) the lady was, at the time of his examination, capa-
ble  of  the act of generation in its  natural and  ordinary
meaning, or only of incipient and imperfect coition'?
   2.  Whether, if not  capable of generation in its natural
 and ordinary meaning, but only of incipient and imperfect
 coition, such defect arises from  mal-formation  incapable of 
IMPOTENCE  AND STERILITY.
121
cure,  so as  to  allow  of  the natural  and perfect act of
coition'?
  Dr. Cape, after mentioning his examination of the female
in March, 1844,  and his subsequent one  in consultation with
Drs. Bird and Lever, in April, says that during the latter he
found the depth  of  the  vagina increased in depth.  It was
precisely two inches; the natural depth would be from four
inches to four inches and a-half;  and this state of things is
decidedly a mal-formation of  the  sexual organs, positively
irremediable; no operation could be performed  to effect a
cure; that she is  capable of restricted and limited connexion,
and not of one in its natural and ordinary meaning: it can-
not be called  perfect, though it is beyond incipient coition.
It is just possible  that  a further,  but very slight improve-
ment might take place by continual, frequent  sexual  inter-
course, or by mechanical means.   " I will not swear that the
vagina is impossible to be further elongated, but I do swear,
that it could  not be  effected  without endangering life, or
running serious risk of  doing so."
  July 8. The cause came  before the court again, with the
additional evidence of Dr. Cape, and after hearing counsel
thereon, the judge pronounced the marriage null and void.

  I find that I was mistaken in stating, as  I did in a previ-
ous edition, that the English law was in force in this state.
This point was solemnly adjudicated by Chancellor Sanford
in 1825, in the case of Burtis v. Burtis.  Here the wife filed
a bill against her husband, and stated that he was impotent,
and had been so  from his birth.  She, therefore, asked for a
dissolution of the marriage.  The defendant demurred,  on
the ground, that the complainant was not entitled to any re-
lief, and  that he ought not to be compelled to make any
discovery.  His  counsel further urged,  that impotence was
a mere canonical cause of divorce, and that the  English
Chancery never claimed  or 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 grant- 
122
IMPOTENCE  AND STERILITY.
ing divorces and annulling  marriages,  had  devolved upon,
and appertained to, the Court of Chancery in this state.
   The Chancellor, in his opinion, mentioned, that New York
when a colony, was ruled for some years by governors, who
either alone or with the council, assumed executive and ju-
dicial  powers.   During that period,  one of the governors,
Lovelace, granted  four divorces, one in 1670, and three in
1672.*  These  were  the only cases  that occurred,  during
  * 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.
  " Nicholos W----, of Oysterbay, on behalf of Rebekah  his daughter, wife
of Eleazer L----, of Huntington, made complaint unto me of the uncomfort-
able condition wherein his said daughter hath, for divers years past, lived with
her said husband; and there having been formerly several complaints made,
both on the part of the relations of the husband, as well as those of the wife,
suggesting some  notorious  fault or impediment on the one side or the other,
which hitherto hath not been fully or clearly made appear, so that mutual dis-
cords 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 ap-
point, 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 contro-
versy may be decided according to law and good conscience.  Given under my
hand at Fort James in New  York, this 1st day of April, 1670.
                                "FRANCIS LOVELACE, Governor."
  Volume marked " Court of Assize, 1665 to 1672 "—vol. 2, p.  139.

                         A Commission,  Sec.
  " Whereas complaint hath been made unto me by Nicholas W----, on the
behalf of Rebekah his daughter, against Eleazer L----, her husband, and also
by the said Rebekah against him the said Eleazer, that having been joined in
matrimony for the space of  seven years and a half or thereabouts, he the said
husband hath not performed conjugal rights unto his wife, but on the contrary
hath caused  her  to lead a very uncomfortable life with him; and the said fa-
ther 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 before a public court, I  have
therefore thought fit to nominate and appoint, and by these presents do here-
by nominate  and appoint  Thomas Lovelace, Esq.. Mr. Samuel Maverick, Mr.
Matthias Nicolls, Capt. John Manning, and Mr. Humphrey Davenport, to be
commissioners, to meet at  some convenient place this afternoon, then and
there to hear and examine into  this matter in difference 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 you may administer an oath, for the better clearing of the
truth; which oath you are hereby empowered to give;  as  also to employ any
other person or persons skilful in such matters, to make inquiry into the de-
lect and impediments alleged; whereupon you are to give judgment, and ren-
der an account, that I may make some final determination thereupon.  Given
under my hand and seal, this sixth day of May, in the 22d year of his majesty's
reign, A. D. 1670.—Ibid. p.  175. 
                  IMPOTENCE AND STERILITY.              l^O


and through the long period of more than one hundred years,

down to the revolution.   Subsequent to that period, no pro-

vision 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

concerning divorces are original regulations, and they do not

adopt or introduce the  English law of divorces.   We have

no judicature authorized  to  adjudge by a substantive  and

effectual sentence, that  a marriage is illegal, and to separate

the parties.  This court cannot, therefore, dissolve a marriage

or decree a divorce for the cause of corporeal impotence."*

   In our Revised Statutes, however, passed in  1828,  the

omission, if it may be so  styled, was  rectified.  The chan-

cellor has now  the power of declaring the marriage contract

void, for  (among other causes)  physical incompetency in

either of  the parties,  existing at the  time of marriage.  It

is  further enacted, that a suit to annul a marriage on this


      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 complaint 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 hus-
band, according to the true  intention of matrimony, the great end of  which is
not only to extinguish those fleshly desires and appetites incident to human
nature, but likewise for the well ordering and confirmation of the right of
meum and tuum, to be devolved upon the posterity lawfully begotten betwixt
man and wife, according to the laws of the land, and practice of all Christian
nations,  in that case provided ; and did therefore  sue  for a divorce.  Where-
upon, having appointed commissioners to call both parties before them,  and
strictly to examine into the  affair, and to make report of their judgment
thereupon;  the which, after serious inquiry made by them, with the advice
of chirurgeons well skilled, and sober matrons, who privily examined both
the man and the woman, they made report of their  judgment  and  opinion,
that the defect was  in the husband, and not in the wife, and there was a suffi-
cient 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 mar-
riage, or matrimonial ties and obligations between her and the said  Eleazer;
and the said Rebekah hath  likewise free liberty to dispose of herself in law-
ful marriage with any other person, as if the ties and obligations between her
and the said Eleazer had never been.  Given under my hand, and sealed with
the seal of the province, this 22d day of October, in  the 22d year of his ma-
jesty's reign, A. D.  1670."—lb. p. 260.
  * Hopkins' Chancery Reports, vol. 1, p. 557 
124
IMPOTENCE AND  STERILITY.
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.*
  The  late  chancellor  of this state (Walworth) has also
decided that a sentence of nullity on the ground of impo-
tence, cannot be pronounced upon a  bill of confession; but
that the  defendant must be  examined on oath before the
master, and who must also take proof of the facts and cir-
cumstances stated in the complainant's bill.  In the present
case, which was that of a female, charged by her husband
with impotence, he declared that the  court would not decree
the marriage void,  until a surgical  examination  had been
had in  order to ascertain whether the alleged incapacity is
incurable. The master was directed to select surgeons and
matrons for this purpose, and in the choice to have due regard
to the feelings  and  wishes  of the defendant.!
  At a  subsequent  period, this case  again came up on the
master's report. The medical examiner stated that the hymen
was unusually firm, dense and strong.  It was not, however,
imperforate.   " I also infer (says the chancellor) "from what
is stated,  that there have been regular catamenial discharges,
and the defendant appears  to have had no suspicion that she
was not like  other women until some  time  after the marriage.
The physician  also who has been called by the complainant
as a witness, does not even express  a belief that the disa-
bility might  not be  cured by a  proper surgical operation,
although he says the result is doubtful."
  Under  these  circumstances, the chancellor refused the
application for a divorce.!
  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  procre-

  * Revised Statutes, vol. 2, pp. 142,143.
  t 5 Paige's Chancery Reports, 554. 6 Ibid. 175. Devenbagh v. Devenbagh.
The wife refused to submit to the necessary surgical operation.  But the Chan-
cellor stated that this was no ground for annulling the marriage, as the court
has no  jurisdiction in any case to enforce the performance of the  marriage
vows. 
IMPOTENCE AND STERILITY.
125
 ation, it shall and may be lawful for the innocent and injured
 person  to obtain a divorce."*
   Impotence is made a cause of divorce, by the laws of New-
 Hampshire,  Illinois, Indiana,  Tennessee,  and Missouri.!
 And  the  following  case shows that the law is similar in
 Ohio.
   In  the case of Keith v. Keith, the wife plaintiff, and about
 28 years of age, had been married about a year and  a half to
 the defendant, who was  about 35 years old, of common size,
 but without beard, and  with a  fine feminine  voice.  They
 lived together about  a year, when she left him, and went to
 her mother's, with  whom she has  since resided.  Three
 respectable witnesses deposed  that they had  examined the
 defendant a few days previous  to the sitting  of the court,
 and that  he was destitute of virile  organs.   " He had  no
 testicle, only a little  loose  skin, as large as  that containing
 the testicle of a squirrel.  He had no penis.  Between the
 place of one and the navel, there was a teat, about three-
fourths of an inch long,  with a black  spot  in the centre,
 out of which he discharged urine."
  By  the  Court.  Take  a decree for a divorce.  Let each
 keep  the property they have, and order the defendant to pay
 the costs, or be subject to execution for them.J
  I do  not find it mentioned in the laws of  New  Jersey,
 Georgia, and Michigan.

  * Griffith's Ryan. p. 111.
  t Digest of Laws of N. Hampshire, 1830, p. 157.  Revised  Laws of Illinois,
 1833, p. 233. Revised Laws of Indiana, 1831, p. 213.  Digest  of Laws of
 Tennessee, 1831, p. 74.  Laws of Missouri, 1825, p. 329.
  X  Wright's Ohio Supreme Court Reports, p. 518. 
 
CHAPTER IV.
                      DOUBTFUL SEX.

Denial of the existence of hermaphrodites, in the ancient sense of the term.
  Notice of the various mal-conformations that have been observed.  1. In-
  dividuals exhibiting a mixture of the sexual organs, but neither of them
  entire.  2.  Males with unusual formations of the urinary and generative
  organs.  3. Females with unusual formations  of the generative organs.
  Ancient laws concerning hermaphrodites—English common law concerning
  them.  Notice of Geoffroy St. Hilaire's late researches 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 individual.  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 es-
tablished,  that  many cases of extraordinary mal-conforma-
tions 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 hermaphro-
dites, or those  endowed with  the sexual  organs of both
sexes  entire, and  capable of  performing  the  generative
functions, as fabulous, we shall examine  those to whom  the
above  term is  at present commonly  applied, under three
classes.

  1. Individuals exhibiting  a mixture of the sexual  organs,
but neither of them entire.  Examples of  this class are rare;
and even these, when closely examined, show the predomi-
nance  of one or other  sex.   Dr. Baillie mentions  a case
which was communicated to him by Dr. Storer of Notting-
ham.  " The person," he observes, " bears a woman's name, 
128
DOUBTFUL  SEX.
and wears the dress of a woman.  She has a remarkable
masculine look, with plain features, but no beard.  She has
never menstruated ; on this account, she was desired by the
lady with whom she lived as a servant, to become an out
patient  in the Nottingham 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 hy-
men 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  urinse, appeared  as in the natural structure of a  fe-
male ; but there  were no nymphae.   The labia  were more
pendulous than  usual, and  contained each of them a body
resembling a testicle of moderate size, with its cord.  The
mammse 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
appearance was  more delicate  than  that of the  male; and
there was no down on his chin or upper lip.  The breasts
were of the middle size, and had each a large areola.  The
bust resembled  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 indenta-
* Morbid Anatomy, third edition, p. 410. 
DOUBTFUL  SEX.
129
tion.  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 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 nymphee were seen ; and be-
tween these, and at their upper part, the urethra opened as
in the female,  while  below these was a very narrow aper-
ture, covered with a semilunar membrane.   A small excres-
cence, placed laterally,  and having the appearance of a car-
uncula 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 vesiculse seminales.  By making an incision into the
semilunar membrane, a canal one inch in length, and half an
inch in diameter, was seen, situated between the rectum and
bladder.   Its identity with a vagina was however destroyed,
by finding at its lower part the verumontanum and the semi-
nal 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
colored liquor.   From its upper part on the right side, a fal-
lopian 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 im-
perfect 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.
* Mahon, vol. 1, p. 100.
9 
130
DOUBTFUL SEX.
The bust had a masculine appearance ; the chin was  cov-
ered with  firm hairs, very analogous to a beard; the neck
was thick,  the chest broad, the bosom slightly swollen, and
the nipples exactly like those of a man.  The lower half of
the body presented a contrast to these characters.  The soft
and delicate contour of the lower limbs, the rounded hips,
the broad  pelvis,  and the greater separation of the thighs,
approximated decidedly to the female form.  An imperforate
penis, two testicles, and  an appearance of vulva, were the
external generative organs.  The testes were well formed ;
the vesiculse seminales imperfect;  and the urethra opened
at the cul-de-sac which represented the vagina.*
   The following is a 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 as-
sumed  the male attire.   The scrotum is divided along the
median line, resembling the female labia;  and each  of these
contains a testis.  On separating them, the glans penis, re-
sembling  a clitoris, is seen; it is covered with a  prepuce,
and has a  fissure, but is imperforate.  About an inch below,
and nearly half an inch to each side of the raphe, are two
very small orifices, through which, at periods of excitement,
the semen flows.  Still lower is a  canal  three inches long,
impervious except  at a  narrow  orifice, through which the
urine flows..  He had strong sexual desires.!
   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

   * Rees'Cyclopedia, Art. Generation. The case is quoted from the Journal
 de Medecine, par Sedillot.
   t American Journal of Medical Sciences, vol. 16, p. 191, from the Liver-
 pool Medical 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 individual has constant connexion with the male sex. 
Tbtful sex.
131
during life, ami 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 depression where the urethra should have opened.
On raising this cliteroid penis, as he calls it, an opening was
observed, which was the orifice of a canal one inch in length.
The uterus and urethra  opened into the posterior part of this
canal;  and the testicles,  with  their tunicas vaginales, were
found in the labia.  As to the  internal organs, the urinary
bladder occupied 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 re-
sembling 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 deferen-
tia 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
similarity between them is so great as to  render  a  farther
detail unnecessary.  The examples now  given, show the
principal deviations  from  the perfect  structure that have
been observed; and it will lead to clearer views concerning
them, if we adopt the opinions of the reviewer of Ackermann,
in  the  journal already quoted.  "In the two sexes, there
are organs which  correspond  to  each other, and which may
be called analogous  organs—the penis to  the clitoris, the
scrotum to the labia, the  testes to the ovaria, and the pros-
tate  to the uterus; and  it farther  appears,  that  of these
analogous organs, no two were ever found together  in the
same individual.   No monster has been described, having both
a penis and clitoris; nor with a testis and ovarium of the same

  * Edinburgh Medical and Surgical Journal, vol. 3, p. 202. Review of " In-
fantis Androgyni Historia et Ichnographia," &c. Auctore I. F. Ackermann. 
132
DOUBTFUL sex.
side__we may venture to say, with testes and ovaria;  nor one
having a prostate and uterus."  This distinction will invali-
date 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 repeated 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  accounted for
in the hermaphrodite."*  If these views be adopted, it will
follow  as  a result, that beings of this class are  to  be  con-
sidered  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 anato-
mists of the present day.
   The  late  Dr. Handy  of New York,  in a  letter to Dr.
Edward Miller, dated at Lisbon in 1807, states that he saw
at that  place, a Portuguese, twenty-eight years old, of a
tall and slender  but masculine figure.   " The  penis and
testicles with their common covering, the  scrotum, are in the
usual situation, of the form and appearance and very nearly
of the  size of those of an adult.   The preputium covers the
glans  completely, and  admits of being partially retracted.
 On the introduction of a probe, the male urethra appeared
 to be pervious about  a third of its length, 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

   * Edinburgh Medical and Surgical Journal, vol. 3, p. 208,
  _ t To this division, among recent cases, probably belongs that at Guy's Hos-
 pital, 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. 
                     DOUBTFUL  SEX.                  133

female parts do not differ from  those  of the more perfect
sex, except in the size of the labia, which are not so prom-
inent, and also that the whole of the external organs appear
to be situated nearer  the rectum, 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  mis-
carried in  the  third and fifth month of gestation.  During
copulation, the penis becomes erect.  There has. never
existed an inclination  for commerce with the female, under
any circumstances  of  excitement of the venereal passion.
She at  present labors  under the veneral disease, and  has
warts on the labia."*
  Orfila  and Marc  both  notice this case, and  urge  that a
perfect  anatomical  examination  of the supposed  testicles
was wanting.  They incline to the idea  that the  partially
perforated  penis  was  of a  cliteroid  nature.   They agree
however in deeming the subject a female.
  In the following case however, the dissection was  ample.
It was  related  to  the  Academy of Sciences of Berlin in
1825, by Rudolphi.  The body was that of a child, who  had
died, as  it  was said, seven  days after birth; but from  the
developement present, it was probably several weeks old.
" The  penis  was divided inferiorly; the right side  of the
scrotum contained  a testicle, the  left  side  was small  and
empty.   There was a  uterus  which  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 fallopian 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, flat-
tened, ovoid body,  which when divided, exhibited a cavity
with thick parietes.   The uterus terminated above  in  the
parietes of this body, and  at the right, the vas  deferens,
* New York Medical Repository, vol. 12, p. 86. 
134
DOUBTFUL SEX.
without however penetrating into  its  cavity.  Finally,  at
its inferior part, there was a true vagina, which terminated
in a cul-de-sac.   The  urethra  opened  into  the bladder,
which was natural.   The anus, rectum  and the other organs
were naturally formed.  Professor Rudolphi considered the
ovoid body, situated beneath the uterus, as the prostate and
vesiculse seminales  in a rudimental state."*
  Mr. E. Smith relates  the following in the  London  Med.
Gazette, vol. 33, p. 174.   A  child was born, with a  body
much resembling an imperforate penis, two organs analogous
to a  divided  scrotum and  a  urethral  opening at the base
of the penis.   Several skilful  anatomists declared it to be a
malformed male.   It died in about eight weeks after birth,
and  on  dissection, a well  formed uterus, with its fallopian
tubes and ovaries were  found.   There  was no urethra, but
the  neck of the bladder  was  inserted in  the vagina.   No
traces of testes or of spermatic cord could be discovered.

  2.  Male individuals with unusual formation of the urinary
and   generative organs,  (androgyni.)   " The   ambiguity  in
  * American Journal of Medical Sciences, vol. 9, p. 499.
  The case of Maria  Derrier, (Carl Durrge) which in previous editions, I re-
ferred with some hesitation to the second class, must now be arranged under
this.
  Durrge died at Bonn, in March, 1835, of apoplexy, aged 55 years. He
was examined by Professor Mayer,  and from his account I take the following
facts:
  Osiander,  Kopp, Sommering, Cooper, Lawrence, Green, and the Medical
Faculty of Paris, pronounced him during life, a malformed male.  Hufeland,
Gall and Brookes, a female, while some considered him to  belong to neither
sex.  In his 20th year, he had discharges of blood from the genital organs
three times, but none since.  His beard grew sparingly and his breasts were
large.
  The penis (imperforate) was about two inches long, and retracted beneath
the skin of the mons veneris, and immediately at its  lowest surface, was a
small opening of the size of a large quill.  A septum divided this from a large
canal which represents the vagina.  The urethra is thus at the root of the
penis, and immediately surrounded by the prostate gland. Immediately back
of the vagina is the uterus.  The  fallopian tubes open regularly into the
fundus uteri, and upon  the left  side behind and without the corresponding
ostium abdominale of the fallopian tube, is a small, flat, round body, resem-
bling an ovarium. On the right side, close to the abdominal end of the fallo-
pian tube, there is a small flat body, to which a string of vessels and muscu-
lar fibre is attached.
  Dr. Mayer thus supposes this case to present characteristics of both sexes
—the withered testicle—the penis and the prostate gland; and on the other
hand, the uterus, vagina,  fallopian tubes and ovarium-like body.  London
Med. Gazette, vol. 18, p. 217.  Philadelphia Medical Examiner, April 10, 
                      DOUBTFUL SEX.                   135

these cases depends commonly on the testes being contained
in separate  parallel  folds  of the  skin; the penis  being
imperforate, and the urethra  opening in the perineum, on
the  surface of a blind aperture, having a red  and tender
appearance, and easily mistaken for the  vagina.  In such an
individual, the penis being imperforate, and probably smaller
than usual, is considered 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 1799, as a hermaphrodite.  He was about twenty
years of age, with little beard, and breasts resembling those
of a girl  at sixteen.   A discharge from the service  was
procured  for him.!   Individuals of this class, appear  to
have the  testes and vesiculse seminales  perfect,  but  they
must evidently be impotent  from the imperforation  of the
penis, and the opening of the ejaculatory ducts  near the
perineeum.  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 particular 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 func-
tions.  Mr.  Brand relates, that being consulted  in  1779, on
occasion of some complaint in the groin about a  child, seven
 years of  age, he  found a vicious structure  of the  sexual
 organs,  consisting in the presence of such  an unnatural
 integument.  This child had  been baptized and brought up

   * Rees' Cyclopedia, art. Generation.
   X  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 hips straight.  The  genital organs generally resembled the
 labia.  The urine was evacuated at  the perinseum. (Edinburgh Med. and
 Surg. Journal, vol. 4, p. 32.)  There certainly can be no doubt of this per-
 son being a male.
   The Saxon case, that I have described on a previous page, might with pro-
 priety be arranged under this division, were it not for some circumstances,
 mentioned in Dr. Handyside's Narrative. 
136
DOUBTFUL  SEX.
a girl,  bnt it was evident to him erroneously, as the  male
organs  were present.   By a slight incision, he liberated the
restricted parts, and proved  to  the parents,  that they had
mistaken a boy for a girl.*
  Lastly, males  are supposed to be hermaphrodites, when
the urinary bladder is deficient, together with  the lower and
anterior portion of the abdominal muscles, and integuments,
while a red and sensitive mass of an irregular and  fungous
like substance, with the ureters opening on it, is placed at
the lower part of the abdomen.  I have already  referred to
the  elaborate essay of Dr. Duncan, jun. on this  subject.
He  has collected  a great number of  cases,  and from  his
deductions,  it appears that  important 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  vesiculse
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.!
  * Brand, quoted in Brewster's Edinburgh Encyclopedia, art. Hermaphro-
dites.
  " Myself passing by Vitny le Francois, a town in Champagne, saw a man,
the Bishop of Soissons had in confirmation, called German, whom all the in-
habitants of the place had known to be a girl till two and twenty years of
age, called Mary.  He was at the time of my being there very full of beard,
old and not married, who told us, that by straining himself in a leap, his
male instruments came out."—Montaigne's Essays.  Ambrose  Pare also
mentions this case.
  t Edinburgh Medical  and Surgical Journal, vol. 1, p. 54 to 58. The
following  is an exception  of the general rule, unless we suppose the mal-
conformation to have been slight, and the prevalent opinion to have been
drawn from  the appearance.  " In the year preceeding (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 Linlithgow, he
associated in bedding with the goodman's daughter of the house, and made
her to conceive a child; which being divulgate through the conntry, 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.  Edin-
burgh, 1778, p. 104.) 
DOUBTFUL SEX.
137
   They  are  not capable of procreating the species, in con-
sequence  of the  shortness and imperforation of the  penis,
and the  seminal ducts opening externally.*
  * Under this head, I apprehend, must be  arranged  the  case of Sarah
Tibbert, aged six, admitted into St. George's Hospital, London, 1825.  (Lan-
cet, vol. 8, p. 95.)
  That of a negro child, aged six, described  by Dr. Heustis of Alabama, in
whom the penis is perforated, but the urethra opens externally at its root.
The rudiments of testicles are felt in the sacculi on each  side of the scrotum.
(American Journal of Medical Sciences, vol. 7, p. 557.)
  One by Dr. Hervey, of an individual who  died at the Hospital of Bourg in
France, aged seventeen.  (American Journal of Medical Sciences, vol. 3, p.
185, from the Journal General.)
  Mary  Cannon, who died at Guy's Hospital in 1829, aged fifty-five or sixty.
This hybrid formerly wore  man's dress, had worked as a laborer, 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 Medicine in Paris in 1815.   (Dictionnaire des Sciences Medicales, Art.
Hermaphrodite.)
  Fenolio's case of a soldier is similar to the above, except that the breasts
were remarkably developed.  Encyclographie des S. Medicales, vol. 2, p. 234.
  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.   (Med-
ico-Chirurgical Review, vol 21, p. 172, from  the Revue Medicale.)
  And probably the two cases described by Dupuytren to  the Royal Academy
of Medicine at Paris in 1830.  (North American Medical and Surgical Jour-
nal, v. 12, p. 224.)
  A German  recently exhibited to the Royal Academy of  Medicine, by M.
Bally.  The scrotum had a deep furrow, on each side of which  was contained
a testicle.  There was  an imperforate penis, an inch and a half long  and
below it a passage leading to the bladder and  through which the urine flows.
The urethra had become thus enormously distended in  consequence of re-
peated  acts of copulation, to  which  he  had submitted  in consequence of
supposing himself a female.  His  appearance is of that sex and he states that
the enlargement was  gradually made.  When informed that he was a male,
he assumed the proper dress, but found himself impotent.  Amer. Journal
Med. Sciences, vol. 20, p. 479, from Gazette  Des Hopitaux.
  A somewhat similar case related by M. Benoit.  Medico-Chirurgical  Re-
view, vol 39, p. 537.
  Nor can I, in concluding these references, avoid giving an abridged detail
of the following case from Dr. Davis.  A person in London was baptized as
a female—dressed as such, and during the years of childhood and adolescence,
believed herself belonging to that sex.  Her passion 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,  uncovered by
its  prepuce.  Below the root of this cliteroid body, on raising it a little, a
small orifice vyas 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 firm-
ness 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 
138
DOUBTFUL  SEX.
  3. Females with unusual formations of the generative organs,
(androgynse.)   An  enlargement  of the clitoris is probably
the most common cause that has led to mistakes concerning
this sex.  It seldom occurs in Europe, but is quite frequent
in warm climates, insomuch that excision of it is said to be
sometimes practised.
  Sir  Everard Home  relates an  instance in  a  Mandingo
negress, aged twenty-four years.   Her breast was 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 color; but on a  closer
inspection,  was  found  to  be more  pointed than that of a
penis—not flat below, and having neither prepuce nor per-
foration.  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 orifice  of the urethra.  The other
parts  of the female organs were  found  to be in a natural
state.*   It  is  proper to observe in this  place, that in new-
born children the clitoris is proportionably very large.
   The most striking case  of this  description is  one  that
occurred in Pennsylvania and is related by Dr. Wm. Harris.
this opening were two full developed pendulous bodies, evidently testes,
which communicated by spermatic  cords, of the usual bulk and feel, with
the abdominal cavity.  The breasts were not developed, and the voice was
rough.  Dr. Davis very justly considers the sex of this person as masculine.
(Obstetric Medicine, p. 63.)
  * See Home on Hermaphrodites.  (Philos.  Trans,, vol. 89, p. 157.)  Many
other cases are  said to be collected in the work of Dr. Parsons on Herma-
phrodites.  (See a case by him of a French girl, in Philosophical Transac-
tions, vol. 47, p. 142.)
  I have stated in the text, that this malconformation seldom occurs in tem-
perate climates ; but I may add, that a sufficiency of cases are related.  " An
entire quarto thickly printed page of references to cases of monstrous clito-
rides,  is given in the Ephem. Germ."  (Davis' Obstetric Medicine, p. 60.)
This author refers to a case of extirpation by Mr. Richard Simmons, of Lon-
don, in which the length was nine inches, and the circumference of the largest
part of the stem five inches.  Its  general appearance was very smooth and
fleshy, and its upper surface covered with cuticle.  (Ibid., p. 61.)  My col-
league, Professor Delamater, has  mentioned  to me a case within his own ob-
servation, 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 ob-
jections. 
DOUBTFUL  SEX.
139
At birth the clitoris was unusually long, but the child was
declared a female.  It grew rapidly up to the age of puber-
ty, when the individual assumed a masculine  appearance
and delighted only in manly sports and the  labors of the
field.   " At 18 years of age, she  was nearly six feet high
and of vigorous proportions—her head began to grow and
she exchanged her female attire for man's apparel," threat-
ening to take the life of any one who should hereafter  call
her by her former name of Elizabeth.   She now employed
herself  solely in the outdoor work of her farm, acquired
property, was remarkably athletic and indeed considered a
regular bully.  She married at about 25 years of age, and
had great enjoyment in copulation.  The clitoris was now
five or  six inches long—but no semen was evacuated  and
she was aware of her inability to produce conception.   She
threatened her wife with death if she became pregnant.
  Finally at the age of sixty, she died,  but strictly forbade
any examination after death.   " From all I could learn from
her friends," says Dr. Harris, " she differed in  her genital
organs in nothing, but  the elongated  clitoris."  She  had
never menstruated  and it  is  therefore probable that the
ovaria were defective.   The urine was always discharged
as with females.*
  In 1814, a female named Mary  Madeline Lefort, excited
great  attention in Paris, and subsequently in London, as a
reputed hermaphrodite.   She was examined by a committee
of the Faculte de Medicine of that city, (consisting of Chaus-
sier, Petit-Radel and Beclard;) and from their report  and
the remarks  of other observers, the following particulars
are drawn.  The breasts were sufficiently  developed, and
there were perfect areola? on the  nipples.  The upper lip
and chin were covered  with a beard.   The clitoris resem-
bling much a small penis, an inch and  a half long  and
invested with a movable prepuce, emerged from under the
symphysis pubis,  and  shooting  out  from  between  the
superior part  of the labia, terminated  by  an imperforated
* Philadelphia Medical Examiner, vol. 2, p. 314. 
140
DOUBTFUL SEX.
glans.  At the root of the clitoris is an opening, through
which the urine  and menses flowed.  On separating  the
labia, a thick membrane was seen to extend from one to the
other, and from the lower angle formed by their  union,
upwards as far as the prominent clitoris already described.
Dr.  Granville  supposed that  this  membranous   partition
covers the orifice of the vagina, and that an incision made
into it would at once expose that cavity in its natural state.
Mr. Brookes, the anatomist, proposed to effect an enlarge-
ment of the opening of the vagina, but the subject of the
malformation  refused,  calculating  no  doubt that such an
operation might have injured  the  interests of her gainful
vocation.  An incomplete urethra was in this case produced
under the clitoris,  and it was this  circumstance which
constituted its resemblance to a penis.  But the  presence
of organs  essential to the female, such as  the uterus  and
vagina leave no doubt of her sex.*
  A prolapsus of  the uterus  is another circumstance which
has occasioned females to be deemed hermaphrodites.  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 certifi-
cates 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.!
  Sir Everard Home mentions  a  similar  case of a French
woman, whom he  himself examined.  She was shown as a

  *  London Medical Repository, vol. 4, p. 414.  Orfila's Legons, vol. 1, p.
153. Davis' Obstetric Medicine, p. 62.  Elliotson's Blumenbach, p. 420,422.
Cyclopedia of Practical Medicine, Art. Sex (doubtful), by Dr. Beatty.  Me-
dico-Chirurgical Review, vol. 31, p. 120.
  Parent Duchatelet speaks of a large clitoris occurring in a prostitute in
Paris,  It was three inches long, and of the thickness of the ring finger, with
a well formed glans, and covered with a prepuce—" c'etait, a s'y meprendre,
la verge d'un enfant ee douze a quatorze ans, peu avant sa puberte."  De La
Prostitution, vol. 1, p. 220.  This female had never menstruated, and the
uterus was probably wanting.
  t Mahon, vol. 1, p. 96. 
DOUBTFUL  SEX.
141
curiosity ; and in the  course  of a few weeks, made <£400.
The prolapsus  was evident on inspection.  She, however,
pretended to have the power of a male.*
  The following may be subjoined under this division:
  History of a supposed Hermaphrodite.  By Robert Merry,
Surgeon, and its  dissection by Sir Astley Cooper.—Mary
Bennet, aged 86 years,  died in 1840, of a gradual decay of
her natural powers.  She had resided  in Herefordshire for
the greater part of her life, obtained her bread generally as
a straw-plaiter, and occasionally going out as a char-woman.
She was extremely muscular and powerful, capable of severe
labor.  As a girl, previous to puberty,  nothing is positively
known about her,  but there was a rumor, that she was not
formed like other girls.   No menstrual  secretion  ever
appeared during her life ; she  had nipples but no proturbe-
rant breasts.  Her voice was  gruff and masculine, as was
her  general appearance.   She was never married, disliked
the society of men, and shunned that of women, and  during
the greater part of her life, inhabited a cottage by herself.
  Mr. Merry,  soon after death, removed  the parts of gene-
ration, and gave them to Sir Astley Cooper.  " The pudenda
and mons veneris had  their usual clothing, and upon sepa-
rating the labia,  the glands and corpus clitoridis appeared
of a very unusual length,  being elongated to two inches.
The papillae of the glans were particularly large  and con-
spicuous,  and must have possessed  an extreme degree of
sensibility.  There was  a  slight depression  in the  glans
where the urethra might have been supposed to exist,  but
there  no opening existed.  Much nearer to  the pubes, on
the  lower part of the clitoris towards the perinaeum,  the
urethra appeared  open upon its under side, and some lacuna?
were seen there, but under the arch of the pubes, a circular
opening existed, which was the urethra, resembling the ori-
fice of the meatus urinarius."   The labia projected on each
side of the  clitoris, but  they contained no testes, and  the

  * Home ut anter.  A case similar to the above is related in Palentini Pan-
dectse, vol. 1, p. 38. 
142
DOUBTFUL SEX.
projection was found  to  consist of fat.  A bougie  passed
readily from the urethra into the bladder.  In the urethra,
under the pubes, when its canal was opened, there appeared
a  longitudinal  opening between  the  folds of  membrane.
This opening or slit  led  directly into the vagina;  it was
longer from before backwards, than from side to side, and
its size would allow a  common pen to enter it.   The  vagina
had  no os externum, but only this slit from the urethra.  It
terminated in a well  formed os  uteri.   The uterus  was of
its usual form, and had  a Fallopian  tube attached to its
fundus, and the ligaments of the ovaria to its side.  On the
right side, the ovarium remained  and had its usual internal
appearance, but it was not more than half its natural size.
   " This woman, therefore, (concluded Sir Astley,) differed
from others in the  magnitude and  length of the  clitoris,  in
the absence of the external orifice of the vagina, which began
from the  urethra  itself, and in the imperfect developement
of the ovarium."   And to this imperfect developement, he
ascribes the suppression of the menstrual secretion.—Guy's
Hospital Reports, for October, 1840.
   It will readily be observed from the  above illustrations,
that all the cases of supposed hermaphrodites are referable
to the classes now described.   They are either males, with
some unusual 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 developement  of the body.*  Thus it is evident, that
instead of combining  the  powers of both sexes, they are
for the most part incapable of exerting any sexual function.!


  * In a recent  discussion at the Academy of Medicine at Paris, Adelon, a
very high authority, maintained that all the cases were referable to one or
other of the above classes; and that there never was " a coexistence of the
parts belonging to, or characteristic of either sex, in one being." (Med. Chir.
Review, vol. 24, p. 237.)
_  t 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 mistaken for testicles.  He refers to the case of Prof. Mayer
   J3onn> and also one examined by Marjolin. In the former, (a child  six
months old,) there were a uterus, vagina and fallopian tubes ; while on the 
DOUBTFUL SEX.                  143
  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 Roman history,  a  law  was enacted, that every child of
this description should be shut up in a chest, and thrown in-
to the  sea;  and Livy gives  an  instance,  where,  on some
difficulty with respect to the sex of a newly born  infant,  it
was directed to be thrown into the sea—tanquam fcedum  et
turpe prodigium*   The Jewish  Talmud,  we are told, con-
tains many  ordinances  founded on the apparent  predomi-
nance 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
learned opinions on  this  subject may be found in  Valen-
tini.!
   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 en-
 acted that hermaphrodites should choose  one sex, and keep
 to it.t
    The 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
 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.
   f Novellae Cas. 10, de matrimonio hermaphroditi
   X Male, p. 278.
   " The Hindoo Institutes of Menu provide for some rare and singular con-
 tingencies.  For instance, the inheritance of a son being a whole, and that of
 a daughter, a half, there is a peculiar sagacity and foresight in directing that
 the portion of a hermaphrodite shall be half of the one and half of the other, or
 three-fourths."  The Chinese, by J. F. Davis.   London, 1836, vol. 1, p. 221. 
144
DOUBTFUL  SEX.
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 judicial decision concerning  impotence or sterility.
Thus, Mr. Ferrein, a modern  physician, informs us, that he
was  consulted by the relatives of a young nobleman labor-
ing under a dubious conformation, who, if a male, as was
commonly believed 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 masculine.  An  external  sexual organ of
small size was present, but without a urethra.   In the scro-
tum  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, incorrect, at least if we adopt
the views  already laid  down.
  The following  circumstances  are worthy of notice, in
forming our opinions  on  contested cases.   The beard, the
hair  on various  parts  of the  body—the desires excited by
the presence of women—the testes and their cords, and the
comparatively greater  breadth of the  shoulders than of the
pelvis and hips, show us that the 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 men-
strual  discharge—the   want  of testes,  and  the  superior
breadth of the hips, prove the individual to be a woman.
  On proceeding  to the sexual organs, a male with a fissure
in the perinseum, and an imperforate  penis, may be ascer-
tained  by the  size of the  penis; by the different organiza-
tion  of the prepuce from that  which covers the clitoris;  by
the absence of nymphse and  hymen,  and probably by the
presence of testes.  The different  relation of the fissure in
the perinseum to the penis, from  that of  the meatus urinari-
us 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. 
DOUBTFUL SEX.
145
  On the other hand, a female is indicated by the size of the
clitoris, and its  different  shape; by the connexion of its
prepuce  with the  nymphse,  and  the presence of the latter
parts; by  the  separate  opening of the vagina  and meatus
urinarius, and by the presence of the hymen, and the absence
of the testicles.
  All these circumstances now enumerated, tend to assist
us in viewing the adult; but the difficulty is  much increased
with new-born children.  In such instances, a close and ac-
curate 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
Blackstone  and  Coke.   " A monster  having deformity in
any part  of its body, yet if it hath human  shape, may  in-
herit."!  And " every  heir is either a male or a female, or
an  hermaphrodite, that is, both male and female.   And  an
hermaphrodite (which is also called 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." |
The same rule, he observes, {hermaphrodita  tarn masculo
quamfemince comparatum secundum prcevalescentiam  sexus in-
calescentis,) guides  in cases  concerning tenant by  the cur-
tesy.§
   I prefer subjoining the views of Mr. J. G. St. Hilaire on
Hermaphrodism, to incorporating them in the body of this
chapter.   They  are  taken from an  analysis of his work in
the New Edinburgh Philosophical Journal, vol. 15, p.  298 ;
 and the Lancet,  N. S. vol. 12, p. 48.||
   M. St!, Hilaire divides the generative  apparatus into six
different  portions or segments, three  on a  side,  which in

  * I am much indebted, on this subject, to the articles Generation in Rees'
Cyclopedia, and Hermaphrodites in Brewster's.  The former is an elaborate
and able production, from the pen of Mr. William Lawrence. See also the
article on this subject by Marc, in the Dictionnaire des  Sciences Medicales,
vol. 21 ; and for some discussions on the Theory of  Hermaphrodism, by Dr.,
Knox, of Edinburgh, see Dr. Brewster's Journal of Science, N. S.  vol i
p. 323.
  t Blackstone, 2, 247.       X Coke Littleton, 8, a.       § Do. 29, b.
  || See also Mcdico-Chirurg.  Review, vol. 31, p. 114.
                     10 
DOUBTFUL SEX.
several respects are independent  of each other.  1 and 2.
The deep-seated organs, testicles  and ovaries.  3, 4.  The
middle organs; womb or prostate, and vesiculse seminales.
5, 6. The external organs, penis and scrotum, clitoris and
vulva.
  When the number of these parts is not changed, and there
is simply a modification in their developement, we have the
first class, or hermaphrodism without excess.   This again is
subdivided into four orders :   1.  Male Hermaphrodism, when
the generative apparatus, essentially male, presents in some
one portion the form of a female organ—as a scrotal fissure,
resembling in some respects a vulva.  2.  Female H. where
the apparatus, though essentially female, yet offers in some
one portion  the  form of a male organ, as in the excessive
developement of the clitoris.   3. Neutral H. when the por-
tions of the sexual apparatus  are so mixed up, and  so am-
biguous, that it is impossible to ascertain to  what sex the
individual belongs.  4.  Mixed H. when  the organs of the
two sexes are actually united and  mixed  in the same indi-
vidual.  Of this  there are several species :  Alternate, when
the deep  organs belong to one sex, and the middle to the
other, while the external present a mixture of both. Lateral.
In this, the deep and middle organs, when viewed on one
side of the  median line, appear  to belong to  the male sex,
while on  the other  they are 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 MaleH.
where  we find, with an apparatus essentially male, some
supernumerary female organ, as a  uterus, &c.  2. Complex
Female H. with the addition of a male organ,  as a testicle,
&c.  to an apparatus  essentially  female.  3. Bisexual H.
where  a male and female apparatus exist in the  same  indi-
vidual.  M. St. Hilaire allows, however, unequivocally, that
the external  organs (as a penis and clitoris) have never been
found perfectly double.  " The researches of modern anato-
mists have completely set at rest the long debated question 
DOUBTFUL SEX.
147
pf hermaphrodism, in the vulgar acceptation  of the word.
Tt 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
number, structure, and  arrangement, (being either internal
male—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 modifications which they present in other respects,
being intermediate between the male and female sexes, are
included within limits  sufficiently narrow.  It is then im-
possible 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, ac-
cording to  their sex, does not  truly embrace the entire of
the  cases ; for  there are subjects who have really no sex, such
as  neuter hermaphrodites, and hermaphrodites  mixed by
superposition;  and  on the other  hand, certain  individuals,
the bisexual hermaphrodites, who  present the two  sexes
united in the same degree.!

   * The most remarkable instance of bisexual hermaphrodism is said to be
that recorded by Schrell,  a German anatomist, in 1804. " In this case, there
existed beneath a true penis, and independently of the testicles and vasa de-
ferentia, which were naturally formed, a small vulva, furnished with labia
and  nymphae, and  communicating through a true vagina, with a rudimen-
tary uterus, provided with round ligaments and imperfectly developed
ovaries.  Here the two sets of organs were nearly complete, but the male
organs were fully developed, while  the female remained  in a rudimentary
state."  British and Foreign Med. Review, vol. 8, p. 29.
  t 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 appa- 
148
DOUBTFUL SEX.
  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

improvement can be made  in our  existing  law, unless the

mixed  class be actually precluded from the power of inherit-

ing-


rently a male; yet on dissection, a womb and its ovaries were found.  There
was a perfect prostate  gland.  The testicles, vesiculse seminales, and vasa
deferentia were wanting   The penis had  a well formed glans and perpuce.
A vagfna about two inches long, connected the uterus  with the urethra.  The
extemalgenital organs of the female were entirely absent; but the general
conformation (except a thick but soft beard) inclined to  that sex
  GeoSov St Hilaire and  Manec observe on this case, that <  We must dis-
tingSrthe organs of reproduction, and those of mere copulation; there may.
be an amalgamation or co-existence of the latter, but  not of the former
  TherHs an elaborate review of the work of St. Hilaire on Anomalies of
Organization (monstrosities) in the British  & Foreign Medical Review, vol.

8'lP'mu7taisonot omit referring to a very learned and elaborate article on
« Hermaphroditism " by Professor Simpson, of Edinburgh, m the Cyclopedia
of Anatomy and Physiology. 
CHAPTER V.
RAPE.
1. Signs of virginity—opinion of anatomists concerning them. 2. Signs of
  defloration and rape; diseases that may be mistaken for the effects of vio-
  lence; 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 the violation of children under ten years of age.  Credi-
  bility of witnesses in these cases.  Laws of various countries concerning
  the punishment of rape.  Discussion as to the circumstances which consti-
  tute 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 fol-
  lowing rape.  Law on this point.  Of pregnancy following defloration.

  No case can occur, in which public feeling is more warm-
ly or justly excited, than where  an attempt is made to in-
jure or destroy the  purity of the  female.   According to our
system of laws, the testimony of the insulted individual is
sufficient to condemn the criminal;  yet notwithstanding this
correct  disposition,  it not 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 knowledge of these is generally required  in
cases where children of a tender age have been abused; and
again, they need to be known in those instances, where ma-
licious charges have been made by abandoned  females.   No
remark can be more correct than  that of Sir  Matthew Hale,
concerning this crime:   "It is  an accusation," says he,
" easy to be made and harder to be proved, but harder  to
be defended by the party accused though innocent."  The
signs  of rape  will necessarily form the  second  division;
thirdly, the  laws of various countries on that crime, and
lastly,  an  examination  of  some  medico-legal   questions
connected with the subject. 
150                        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
sufficienly large to  permit the menses to pass.*   A great
difference  of opinion has existed concerning its  presence.
Some distinguished  physiologists have denied its existence
altogether, or in the cases  where it is found, consider it a
non-natural  or  morbid occurrence.  Among these,  may be
enumerated,  Ambrose  Pare,  Palfyn,  Pinseus,  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 pre-
sence of the  hymen as contrary to nature; and states, that
he  searched for it in vain in females from  three to twelve
years of age."J  Those on the contrary, who, from dissec-
tion,  have believed in  its  presence previous  to sexual
intercourse, or  some other cause destroying it, are Fabricius,
Albinus, Ruysch,  Morgagni,  Haller, Diemerbroek, Hiester,
Riolan, Sabatier, Cuvier, Blumenbach, and  I may add Den-
man.  Haller appears to have observed it in persons of all
ages.§  Cuvier has not only  found it in females,  but has
also observed a fold answering to it in mammiferous animals
and thus gives  strong  evidence of its existence by analogy.||

  • Dr. Gross states, that in the majority of cases observed by him, it was of
an oblong oval shape.   Western Journal Med. and Phys. Sciences, vol. 10,
p. 56.
  t Zacchias, vol.  1, p. 376.                J Mahon, vol. 1, p. 118.
  § "Ego quidem in omnibus virginibus reperi,  quarum aliquse adultae erant
setatis, neque unquam desideravi, neque credo a pura virgine abesse.  Vidi
hymenem bis in foetu, sexies in recens nata, bis  in puella aliquot septimana-
rum ter in annua, semel mense 18, semel in bimula, bis in sexenni, semel in
decenni, semel in  14 annorum puella, semel in alia 17 annorum, semel in
vetula."  (Elementa Physiologies, torn. 7, pars 2, p. 95 and 91.)  Some sati
rical remarks by Michaelis on the German anatomists finding this membiane,
and the French denying lis existence, may be  found in his Commentaries,
vol. 1, p, 482.  He  quotes also the opinion of Roederer and Wrisberg in favor
of its presence, and also of its being a sign of virginity.
  || See on this point, Godman's Anatomical Investigations, p. 72, &c; Law-
rence's Lectures on Physiology, London edition,  p. 174.  Edinburgh Med. &.
Surg. Journal, vol.  54, p. 506.  Virey on the true nature of hymen. 
                           RAPE.                        151

Gavard, who appears to have dissected a great number of
subjects at the  Hospital de  la Saltpetri'ere, and also  at  the
dissecting room of Desault, states that he constantly found
this membrane  in the  foetus, and in children  newly born.
In  others  of a more advanced age he also observed it; and
in particular in  a female fifty years old, whom he was called
to sound,  he found it untouched; so also, in another, whom
he  attended with Professor Dubois.*
   The weight of testimony is thus evidently in favor of the
affirmative of this question; and  the general  sense of the
profession is certainly decidedly  opposed to considering it
as  a non-natural appearance.  The following circumstances,
however require to be  noted, before  we form an opinion
concerning 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 fall!—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 myrtiformes.
Tolberg, according  to  Fodere, and also Belloc, have made
this observation on dissection.   They were, however, round,
and without a cicatrix, and in this respect very distinct from
the organs usually so termed.J   This membrane may, on the
 other hand, be  present, and  yet the female be unchaste;  nay,

  * Fodere, vol. 4. p. 339.  In a report by L. Senn, of La Maternite at Paris,
 on  the condition of  the genital organs at birth, he states that in examining
 between three and  four hundred children from two to four years of age, he
 did not fail in a single instance to find the hymen   Dewees' Midwifery, 3d
 edition, p. 48.
   " Nous ajouterons que tous les anatomistes modernes  ne mettent plus en
 doute l'existence de l'hymen." Devergie, vol. 1, p. 340.
   f Or as the following case of a young woman admitted  into St. Thomas'
 Hospital, 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 pro-
 truded beyond the  os externum.  The descent was  accompanied by profuse
 hemorrhage.  She recovered and was married, and now came in for prolap-
 sus 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 )
   t Fodere, vol. 4, p. 343.  Belloc, p. 45. 
152
RAPE.
she may become pregnant without having it destroyed.  2iZ.c-
chias remarks, that it will not be ruptured  when it is thick
and hard.  A disproportion between the organs, or connex-
ion during the presence of menstruation, or fluor albus, are
also  mentioned by him.  Gavard,  whom  I  have  already
mentioned, found it perfect in a female of thirteen years of
age, who was laboring under the venereal.*
   In those cases  where this membrane  is found thickened,
an operation has often been  necessary.  Pare relates of a
mother who  applied  to him to examine it;  and on dividing
it,  it was  seen to  be  of the  thickness of parchment.!   A
similar case happened to Ruysch, of a female during labor,
in  whom he  had not only to divide the hymen, but also
another non-natural membrane placed farther back.   Imme-
diately after  the operation, the  child was born.J  Baude-
locque, Mauriceau,  Denman, and other writers on midwifery,
adduce many instances illustrating the same fact.§
  * Fodere, vol. 4, 340.  Ricord, Surgeon to the Venereal Hospital at Paris,
mentions a similar case.  (Monthly Journal Medico-Chirurgical Knowledge,
No. 2, p. 37.)
  t Mahon, vol. 1, p. 118.
  X Fodere, vol. 4, p. 340.  See also vol. 1, p. 389, 390, for similar and even
more extraordinary cases.
  § Capuron states, that a few years ago, he divided this membrane in a fe-
male during labor, and in a short period she was delivered of living twins ,
(p. 32.)
  The following extract from so experienced a practitioner as Baudelocque,
has some incidental interest: *' It is well known that the hymen is not always
torn in the first connexion, and that it has been found entire in some women
8t the time of labor. I can myself adduce two examples." The first was in
a young lady, who assured him that she had merely permitted the semen to be
shed on the  interior parts of the vulva, and did not allow the complete act.
Here the hymen bound  the vagina very closely, and left but a very small open-
ing.  She notwiths'anding became pregnant, and the parts were found thus at
labor. In the other, the membrane alone resisted, for half an hour, all the ef-
forts of the last periods  of delivery.  Midwifery, vol.  l,p. 217.
  Additional cases are recorded,by Mr. Brennard, (London Medical Reposito-
ry, vol. 21, p. 398.)  By Mr. Streeter, Lancet, N. S., vol. 23, p. 356.  By Dr.
Mackinlay, Ibid, vol, 27, p. 847.   By Dr. West, Ibid. vol. 2S, p. 1SS.  By Mr.
Arnott, Ibid. vol. 30, p. 234, (not pregnant.)
  By Dr. Blundell, an eminent lecturer on midwifery in London.  " Four im-
pregnations," (says he,) "in which the hymen remained unbroken, have fall-
en under my notice; the diameter of the vaginal orifice not exceeding that of
the smaller finger, and this too though the male organ was of ordinary dimen-
sions. And again,  " I  know of three cases in which the male organ was not
suffered to enter the vagina at all,  and where nevertheless, I suppose from the
mere deposition of the semen upon the vulva, impregnation took place."  See
his Lectures in the Lancet. N. S., vol. 3, p. 259,260; vol. 4, p. 708.
  By Dr  Davis, particularly a case of cribriform hymen, Obstetric Medicine,
p. 104,105, 110.—By Dr. Kennedy, p. 31. 
RAPE.
153
   These  observations  certainly lead  us to  doubt whether
the  presence  or  absence of  the  hymen  deserves  much
attention;  and  I  believe  the  opinion  of  physiologists
generally is, that it is  an extremely equivocal  sign.    I  am,
however, unwilling to  go as far as most of the  later  writers
on  legal  medicine, who  virtually  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  attaching considerable  impor-
tance to its presence.*   It would be difficult to  support an
accusation  of  rape, where  the hymen is  found  entire.!   I
  By Dr. Montgomery, Cyclopedia of Practical Medicine, vol. 3, p. 495, Art.
Pregnancy.   He quotes  two cases, which  deserve mention at least in this
place.   One is from Marc, (Art.  Violation, in the Dictionnaire des Sciences
Medicales.)  A young female, severely afflicted with syphilis, was brought to
La Pitie.  The hymen was  altogether wanting; the vagina greatly dilated,
and the  external genitals diseased.  She was cured; and to the astonishment
of the medical observers, a well-formed  semilunar hymen was found.—The
other is  from Nysten: A young girl, aged thirteen, had ovarian pregnancy,
but  had  never menstruated;  the vagina was much contracted, and the hymen
was perfect!!
  *  Dr.  Thomson censures me for retaining this sign, but it must be under-
stood, that I go no farther, than to say, that its presence should be regarded.
Such, if I understand him, is also his own opinion.
  t  Smith, p. 397.  A case is, however, given in East's Crown Law, (1,438,)
where two surgeons swore that the hymen was  entire.  " But as this mem-
brane was admitted 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 thtre were any, however small, the rape
was complete in law.  The jury found  the prisoner guilty."  In this case, the
female was ten years of age,  and the parts were stated to be so narrow that a
finger could not be introduced. This decision was, however, at variance  with
the evidence usually required in such cases in England; and according to the
Eresent  statute law of that country, (see section  3 of this chapter,) it would
 ardly 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 re-
cently ruptured, and  that he had no doubt that penetration had taken place.
Baron Gumey, who presided, observed, " I think, that if the hymen is not
ruptured, there is not a sufficient penetration to constitute this offence.   I
know that there have been  cases in which a less degree of penetration has
been held to be sufficient, but I have always doubted the authority of these
cases; and I  have always thought, and still think, that if there is not  a suffi-
cient 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.) And again, a prisoner was indicted  for a rape on a child under
the  age  of ten years.  The surgeon stated that the  private  parts internally
were much inflamed, so  much so, that he was not able to ascertain  whether
the  hymen had been ruptured or not.   The Judge Bosanquet, (two others be-
ing present) in his summing up, observes :  " The surgeon says that he could
not ascertain, in consequence of the inflammation of the parts, whether or
not the hymen was ruptured.  It is not necessary, in order to complete the
offence,  that the hymen should be ruptured, provided, it is clearly proved that
there was penetration; but where that  which is so very near to the entrance, 
154                        RAPE.

feel  therefore  justified  in retaining it among the signs of
virginity, although  it should always be considered in con-
nexion with other physical proofs.*
  2. Narrowness  of the vagina.  In children, this part is
extremely small; but it increases in size as they  approach
to the age  of  puberty.   At that period, the developement
produced  by  the  determination  of blood  to the  sexual
organs, causes a turgescence and enlargement, which natu-
rally 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.
   But we cannot place much reliance on this as a sign.  It
is evident, that it must vary with  the age of the individual,
the  temperament and  the  state of health.   In those  of  a
sanguine habit, the parts will  be  most contracted, while on
the  other hand,  if fluor albus  or  menorrhagia be present,
there will  be  great dilatation.  Parent-Duchatelet  informs
us, as the result of actual inspection, that the genital organs
 of many prostitutes, some  indeed  of advanced years, cannot
be distinguished from  those of the virgin state.   And the
 inference drawn  is " that degrees of amplitude and straitness
 of the vagina are,  to many women, a natural and congenital
 state."!
   3.  I  have already  mentioned,  that in the place of the
 hymen, certain fleshy tubercles, termed caruncula myrtifor-
 mes, have been observed by anatomists; and shall now add,
 that a variety in their  appearance has  been considered in-
 dicative of chastity or unchastity.  Zacchias remarks, that

 has not been ruptured, it is very difficult to come to the conclusion that there
 has been penetration so as to sustain a charge of rape."  (8 Carnngton ana-
 Payne, 641.  Regina v. McRue.)
   * " In examining for the hymen in cases of rape, or for purposes of profes-
 sional opinion or treatment in many other cases, it will be necessary to separ-
 ate 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.)
   t Edinburgh Med. and Surg. Journal, vol. 47, p. 225.  "On ma fait re-
 marquer un jour, dans la  prison de madelonnettes, une fille de 51 ans, qui,
 depuis Page de quinze  ans, se livrait dans Paris a la prostitution, et dont les
 parties genitales auraient pu etre confondues avec celles d'une vierge sortant
 de la puberte."  Parent-Duchatelet.  De  la Prostitution, 1, 215. 
RAPE.
155
in the former  they are red,  tumid, and connected together
by fleshy cords; but in married  women  (being situate at
the entrance of the vagina) they are found pale, flaccid, and
the cords torn asunder.*   They are generally considered as
the remains of the hymen,  " et corruptee  adeo pudiciti® in-
dieia."  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 dis-
appear after frequent connexion or deliveries.
   It has, however, of late  years been  asserted,  with  posi-
tiveness, that the  carunculse  and the hymen may be co-
existent.   Of this  opinion, are Dr. Hamilton of Edinburgh,
Dr. Blundell and Dr. Conquest; all, as it would seem, from
actual observation.!
   In addition  to the above, various signs have been enume-
rated by authors.   These  I  will barely state,  and refer the
inquirer for more minute details to works on anatomy and
midwifery.  Pain during the first connexion,  is  deemed a
proof;  although the presence of menstruation  or of disease
may prevent this in many cases :  so  also blood from the
rupture of  the hymen.J  The red and  tumid appearance of
the labia and  nymphee,  and the rupture of the fourchette,
are each extremely uncertain signs, since the latter does not
  * Zacchias, vol. 1, p. 378.
  t Ramsbotham's Lectures in London Med. Gazette, vol. 13, p. 192; Blun-
der'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.   Or-
fila, however, states, that in more than two hundred dissections made by him
of females from two to fourteen  years of age, and  in whom, of course, the
hymen was present, he could not detect 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 respective diameters  of this opening. Two of these, viz.
that which is near the meatus, and that which is near the fouchette belong
to the middle columns of the vagina, while the other two only are the remains
of the hymen.  They may thus co-exist."  He calls these last lateral carun-
cles.   (Midwifery, p. 55.)
  Devilliers, junr.,in his " New Researches on the Hymen and Carunculce,"
Paris, 1840, states as the result of  his investigations,  that the carunculae,
strictly so called, are the line representing its previous insertion.   Annales
DTIygiene, vol. 25, 475.
  X This is indicated in the Jewish law.  The curious will find some extraor-
dinary discussion on this point in Zacchias, vol. 1, p. 376, and Michaelis, vol
4, p. 192 to 199. 
156
RAPE.
generally occur until delivery, and the former may be pres-
ent in the unchaste.
  It should be observed with respect to  the signs last enu-
merated, that although  they may be present notwithstand-
ing  the  unchastity of the  female, yet their  absence is  a
proof against her.  If the labia  and nymphae have the ap-
pearance which indicates  previous connexion; if the four-
chette be ruptured,  and the fossa navicularis obliterated,
the  only deduction we  can draw, must be an unfavorable
one.  Capuron,  a disbeliever in the physical  signs, indeed
suggested  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 acrimo-
nious, may have eroded it.!  Both  these  suggestions are,
however, equally improbable, and deserve little attention in
forming a general rule.
  Systematic writers have  added to these, other signs, but
they are generally equivocal.   The  bright red color of the
nipples, the hardness of the breasts, and in fine,  the  gene-
ral appearance of the female, all deserve attention, but can
seldom  be of any practical utility in determining on the
point under examination.
  From the above statement, an opinion may be formed
concerning the dependence  that is to be placed on the phy-
sical 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 cannexion
with one another.  It cannot be possible that all those which
we have  mentioned as  present  during the  chaste  state, can
be wanting, without justifying a strong suspicion against
the female.  Midwives  should always  be associated with
physicians in such cases; and they would be the proper
examiners, provided their information  and  knowledge of
the system were  sufficiently extensive.   It  is also necessary
to recollect that  these appearances are  most striking in
females of tender age; and as a general rule, guided how-
t Capuron, p. 29. 
                           RAPE.                        157

ever  by the climate  and the  habit  of the body,  they are
found most perfect in females not farther advanced in life
than twenty or twenty-five years of age.*

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

  * The following remark of Fodere on this subject, deserves quotation: Hav-
ing 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, how-
ever, 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  ) 
158
RAPE,
  It also deserves attention, that disease has produced the
appearance of external injury, and led to suspicions against
innocent persons.   Dr.  Percival relates  a case of  serious
importance in medico-legal investigations.  Jane Hampson,
aged four, was  admitted an out patient  of the Manchester
Infirmary, Feb. 11,  1791.   The female  organs were highly
inflamed, sore,-and 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  during  the night.  Leeches and other
external applications,  together with appropriate  internal
remedies, were prescribed; but the debility increased, and
on the 20th of February the child died.  The coroner's in-
quest was taken; previous to which, the body was inspected,
and the abdominal and thoracic viscera found free of disease.
From these circumstances, Mr. Ward, the surgeon attending
this case, was induced to give  it  as  his opinion,  that the
child's death was  caused by external violence; and a ver-
dict of murder was accordingly returned against  the  boy
with whom she had slept.  Not many weeks elapsed, how-
ever, 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 exter-
nal 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 wTas not sufficient to convict;
and that it would give rise  to  much indelicate discussion,
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 
RAPE.                          159
in these 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 described by Mr.  Kinder Wood.  It is preceded

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

The  patients then call the  attention of  parents to the seat

of the 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, nymphae

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.!

   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

indictment.   The idea was that the complaint was syphilis.


   * Medical Ethics, p. 103  and 231.  Capuron relates two  cases of chil-
dren,  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 prevalent in Paris, and consid-
ered the local complaint as entirely dependent on it.  By the  use of proper
regimen, they readily recovered. (Pages 41 and 42.)
   " Judging from my own experience in  a large town, cases like those related
by Capuron are by no means unfrequent.   I have met with at least a dozen
during the last five or six years, principally in children four  or five years of
age.  They have been various in the severity of the symptoms, and in their
duration, but have always terminated favorably." Dahwall,
   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 Foreign  Medicine, vol.  2, p. 223; Lancet, N. S.  vol. 1, p. 874;
 American Journal of Med. Sciences, vol. 2, p. 468;  North of England Medi-
 cal and Surgical Journal, vol.  1, p. 479.  (Cases  by Mr. Dunn, of mumps
 combined with leucorrhoeal discharge.)  Sir Astley Cooper says that he has
 seen at least thirty cases of this discharge in one year. (London Medical and
 Surgical Journal, vol. 4, p. 48.)   Additional cases are mentioned by Dr. Beat-
 ty 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.
   This disease is noticed by Dr. Churchill  (Diseases of Females, p. 8,) under
the names of Infantile Leucorrhosa, or inflammation of the mucus membrane of
 the vulva.   See also British and Foreign Med. Review, vol. 7,'p. 473.  There
is every probability that this disease may cause closure of the vagina (atresia)
 of which we have given cases.   See Instances in Children by Dr. J. C. Nott.
 of Mobile.  American Jour. Med. Sciences, N. S., vol. 5, 246. 
160
RAPE.
 He remarks that " there is an excessively deep-colored 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 color,
 totally different from the character of any primary venereal
 sore."*
   On  the other hand,  the following case related by Dr.
 Bullen of Cork,  will  show how  consequences  precisely
 similar, may originate from violence.  A servant girl, seven-
 teen years of age,  obtained permission to  go to the races.
 She danced a good deal, drank freely of porter, and becom-
 ing  confused and giddy,  was laid down in a tent to sleep.
 While  in this  situation, she was awoke by several persons
 violating her in succession.  She became  insensible,  and
 was unable to tell how often this had been effected, but
 when examined the next day at the  infirmary,  the genitals
 were found bloody, inflamed and painful—there were marks
 of a recently ruptured hymen—the fourchette was torn, and
 a deep  dusky inflammation affected the labia, nymphae and
 perineum—a bright erythematic inflammation  was diffused
 over the groins, down the thighs and up the abdomen.   She
 was placed in bed—bled—freely purged and cold wash ap-
 plied to the parts, but in spite of the most active treatment,
 ulceration rapidly succeeded,  and the  clitoris,  nymphae,
 perineum,  labia and  mons veneris sloughed away, leaving
 the pubis exposed.  After a long and painful struggle, this
 great ulcer  cicatrized, and she left the hospital with only
 a small orifice preserved  by keeping in a bougie,  to give
 transmission to the menses.  At no period during the pro-
 gress of the case, could  Dr. Bullen recognize symptoms of
 syphilis,  and he expressly states that the aspect  of  the
ulcer and  the  appearance  of the inflammation  were very
 similar  to what  occurs in that mortification of the pudenda,


  * London Medical Gazette, vol. 6, p. 828.  A similar case occurred in Lon-
don in 1829, where the prisoner was convicted of an assault, and sentenced
to six months'  imprisonment.   Dr. Gordon Smith and others interested
themselves in the man's behalf and showed that it was disease, instead of the
result of violence.  (London Medical and Surgical Journal, vol. 4, p. 43.) 
RAPE.
161
which takes  place in eruptive fevers of a peculiar descrip-
tion, as noticed by the above authors.*
  It is hence of great importance that the physician under-
stand the  possibility of such diseases  occurring,  but  we
must at the same time " take care  not to run into the oppo-
site 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 lacera-
tion, 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 opinion.|
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 seve-
ral 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,.
  * Dublin Med. Press, March 25, 1840.
  t Edinburgh Medical and Surgical Journal, vol. 13, p 491.  " Circumstan-
ces, however, sometimes occur to render the diagnosis of this point extreme-
ly perplexing.  We recollect a  case of this sort where two sisters, the one
Bix, the other four years old, were affected with this discharge and where the
extreme youth of the culprit would have led to the same conclusion, had not
the discovery of well marked phymosis placed the matter beyond doubt."
British and Foreign Medical Review, vol. 6. p. 87.
  There is a shocking  case of rape on an infant  11 months old, related in
London Medical Gazette, vol. 26, p. 159.  It occurred in Ireland, and death
followed in 24 hours.  The vagina was found torn from the uterus.
  X Beatty in Cyclopedia of Practical Medicine, Art. Rape.
  In cases of young children supposed to have been violated, it will be well
to remember an observation made by Devergie and verified in repeated exami-
nations of healthy subjects.  And this  is, that at a tender age, the  labia are
at a much greater distance from each other at the upper part,  than in more
advanced  years.  The  opening was in repeated instances found to be trian-
gular, and to expose the clitoris.  Devergie, vol 1, p. 338.
  " II est vrai que l'acte du coit est rarement entierement consomme chezles
tres jeunes enfrans;  nous avons vu dans plusieurs circonstances, des jeunes
filles ayant  €te pendant assez long  temps en but a des  tentatives de viol,
presenter  le perinee en entonnoir refoule en—dedans, c'est a dire, rentrant
vers le vagin, son orifice un peu enlargi et ecarte en bas." Leuret, in An-
nates d'Hygiene, 16, 446.
11 
162
RAPE.
(and this point I shall presently notice) yet there can be no
question but that it can be perpetrated on children of a ten-
der 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 de-
sires.  Again, should a female accuse a man who is cachec-
tic 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 accu-
sed is vigorous, and  the accuser  infirm; and above all,
should the female labor  under imbecility of mind to such a
degree as to render her incapable  of judging concerning the
morality of her actions,  her age ought not to be taken into
account.  An individual of this description at twenty-five,
is less  capable of resistance  than another of sound  mind
and body at fourteen.  We must also add, that all accusa-
tions against persons aged above sixty years of age, should,
as a general rule, be rejected; and if maintained, the  accu-
ser should prove 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
female, however, it must be remembered, that it will be di-
ficult 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 incura-
ble paralysis of the lower extremities.!

  * I have known (says Prof. Amos) a person aged sixty, left for execution
for a rape ; and in 1803, a youth aged seventeen, was convicted of it on a girl
of nine and executed. (London Medical Gazette, vol. 8, p. 33.)
  t MS. Notes of Stringham's Lectures. 
                           RAPE.                       163

  3. A speedy examination of the  parts is all important in
disputed  cases.  The body of the male  should also be in-
spected, whether there be scratches or bruises on it.*
  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
properly resisted, (and this is included in the very definition
of rape,)  can be completed1?  And in  the consideration of
this, it is needless to observe, that those  cases, in which in-
sensibility  by  violence  or soporifics,  has been  previously
produced, or where  many are engaged against one female,
are  of course excluded.!   Some hesitation is  doubtless
proper in deciding  on a  question of this magnitude.  The
opinion of  medical  jurists, generally   is  very decisive
against it.   " En un mot,"  says Mahon, " d'apres la con-
naissance physique  que  les medecins ont de l'homme et de
la femme, relativement a  cet  attrait imperieux qui porte in-
vinciblement les  deux   sexes  Pun  vers  l'autre,  d'apres
surtout l'impossibilite presqu' entiere ou est un homme seul
de forcer une femme  a. recevoir  ses caresses, on doit rare-
ment ajouter foi a l'existence du viol,  je crois  meme  qu'il
seroit prudent de ne l'admettre que lorsque plusieurs hommes
armes  se  sont reunis pour commettre ce crime."J   " 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
complete,  full, and  entire coition, which is made without

  * " The great points to be looked to" (says Mr. Alison) " are 1. Whether
they made resistance and cried  out, before they were discovered. 2. Whe-
ther they had  received blows and actual  injury, it being quite certain, that
at least that violence was inflicted against the will."   (Principles of the Cri-
minal Law of Scotland, p. 187.)
  The difference between an assault with intent to  commit a rape, and an
assault with intent to have an improper connection, is taken very distinctly
by Judge Coleridge in Regina v.  Stanton, 1 Carrington and Kirwen's Reports,
p. 415.
  t We must, however, remember, that the administration of soporific drugs,
for the purpose of the commission of the crime, will justify the charge of rape.
This was the case  of Luke Dillon, at Dublin, 1830, who was convicted and
exchanged execution for transportation, only at the earnest solicitation of
the female and her relations. (Alison, p. 213.)
  X Mahon, vol. 1, p. 136. 
164
RAPE.
any  consent  or permission  of the  woman, seems  to be

impossible, unless some very extraordinary circumstances

occur.  For a woman always  possesses sufficient power, by

drawing back her  limbs, and by the force of her hands, to

prevent the insertion of the penis,  whilst she can keep her

resolution  entire."*  " Independamment  de l'arme  que la

loi met dans la main de la  femme pour repousser l'injure,

elle  a  infiniment   plus  de  moyens  pour   se  defendre  que

l'homme n'en a pour attaquer, ne fut ce que le mouvement

continuel."   And  again, " J'estime  qu'  une  personne du

sexe, qui a atteint  Page  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 against the female—and where

a strong man attacks one who has not arrived  to the age of

puberty.J
   Notwithstanding these united  authorities,  it may  with

justice  be supposed,  that in  addition to the  cases allowed,

fear  or terror may operate  on a helpless  female—she may

resist for a long time, and then faint from fatigue,  or the

dread  of instant murder may lead  to  the abandonment of

active resistance.§


  • Farr, p. 41 and 42.
  f Fodere, vol. 4, p. 359, 360. Capuron advances the same opinion, p. 54;
and Brendelius, p. 96.
  X Metzger, p.  255.  I must  add to the above the following answer given by
the medical faculty of  Leipsic, to the question, whether a single man could
ravish a woman.  " Si circumstantias quae in actu coeundi concurrunt, con-
sideramus, non credibile, nee  possibile videtur, quod unus masculus nubilem
virginem (excipe impubem teneram, delicatam, aut simul ebriam puellam)
absque ipsius consensu, permissione, atque voluntate vitiare, aut violento
modo stuprare possit;  dum foemina cuilibet facilius est, si velit, penis immis-
Bionem reeusare, vel multis aliis impedire, quam viro eidem  invitse plane in-
trudent." (Valentini  Pandectse, vol. 1, p. 61.)
   § I am aware, that in the previous  edition I spoke too strongly and exclu-
sively, and I fully recognise the correctness of Dr. Ryan's criticism.  (Mid-
wifery, p. 157.)  In a trial at Edinburgh, in 1828, where the counsel for the
prisoner did me the honor 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 without assistance, blows, or drugs,
showed that a case had occurred in 1811, "where the woman swore that she
was overcome on the sands, there being no others near.  There was no proof 
RAPE.
165
  Cases in which false accusations of rape have been made
against individuals, are scattered through most of the works
on medical jurisprudence.*  I shall quote one, both from its
having happened  not long  since, and also as it shows the
course pursued  in such instances in  France.   A female at
Martigues,  in 1808,  accused eight or ten  of the principal
persons in the place, of having violated her grand-daughter,
aged about nine years and a half, at an  inn.   She  laid her
complaint before the  justice, (juge  de  paix ;) but stated
that  she  would  withdraw it, provided the accused would
accommodate  the matter with  her.  She  had  procured a
daughter  of the innkeeper,  aged sixteen, and an idiot, as a
witness.   As  the charge  was obstinately  persisted  in,
Fodere, with two officers of health, was ordered to  examine
the child  in the  presence of the judge; and  suspicion was
immediately excited, from the delay used in admitting the
visiters.   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  re-
cently ;  and  this was indeed the fact; for at the end of half
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 punishment
of the law."  (Syme's Justiciary Reports, p. 332.)  I  presume, however,
that there can be no doubt, in cases like that cited by Professor Amos, of a
woman, at Derby, who proved the rape, but on examination, was positive aa
to the time it had lasted—exactly ten minutes.  How did you know it ? She
had counted.  How did you count ?   One, two, three, &c.  Did you count
sixty ten times over ?  I did.  (London Medical Gazette, vol. 8, p. 35.)
  Dr. A. T. Thomson, in his lectures recently published, (London Medical
and Surgical Journal, vol. 6, p. 647, and Lancet, N. S. vol. 19, p. 449,) agrees
in the main with the authors that I have quoted.  He suggests, that  in this
struggle " with a healthy female of adult age, who is really anxious to pre-
serve 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 impossi-
ble for him ever to effect that penetration which constitutes the criminal in-
tent."
  *  See the case of one Stephen JYocetti, which was referred to Zacchias, and
where there was an actual deficiency of parts.  The accusation  was made four
months after the supposed commission of the crime.  (Consilia, No. 34, vol.
3, p. 62.) — Also the case of Erminio.  (Consilia, No.  41, vol. 3,  p. 74.)
—Fodere also quotes a case from Deveaux, where there was nothing  but
a slight excoriation of the parts; and of course it was  decided that there
were no evidences of a rape having been committed.  (4, 371.)—I will only
add a caution, not to mistake menstruation for the effects of defloration. 
166
RAPE.
an hour, the circle had decreased in size, and the redness
disappeared.   Had this been the effect of  great violence, it
is natural to suppose  that it would  have  increased in in-
tensity of color.   A report was prepared,  stating the above
facts; and the consequence was, that the accuser was  put
in prison, and finally ordered out of the city.*
   " It happened at an early period of the  author's life, in a
Welch country town, that a child of about eight years of
age, of low connexions and mendacious habits, was induced
to  prefer against  a respectable minister of religion,  an
accusation of an  attempt to violate  her  person.   It was
averred on  the part of  her friends, that  she became  the
subject of ulcerations of the  pudendum, in consequence of
the imputed assault,  and the gentleman  in  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 evidence.  The
ulcerations  on the child's pudendum, were  proved  not to
have been derived from a venereal source."!
   Instances sometimes occur, in which death has followed
the consummation of  a rape, from the violence  employed.
Here, if the physician be called  on to examine the body, he
should particularly notice the condition of the sexual organs,

   * Fodere, vol. 2, p. 456; and vol. 4,  p. 371.  The distinction made in
Deuteronomy, chap. 22, between the commission of the crime in the city or in
the field, deserves attention in the consideration of this point.
   t Davis' Obstetric Medicine,  p. 78. Mr. Roberton, of Manchester, men-
tions a curious case, of a female found in a field near Warrington, apparently
dying in consequence 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 investiga-
tion ended in proving her, on her own confession, to be an impostor, who pre-
tended these injuries, and also admirably imitated the paroxysms of hysteria,
for the sake of exciting charity.  Whenever she was  hard pressed with un-
pleasant questions, a fit of hysteria came to her relief.
   She was tried and punished as an impostor, but succeeded for years after-
wards in imposing on  individuals.  Another of her devices, was suddenly to
fall down in labor.  (London Medical Gazette, vol. 15, p. 506.) 
RAPE.
167
both  internal and external; and also ascertain whether  no
proofs are present, from which the exertion of violence may
be  presumed, such as the introduction of substances into
the mouth to prevent crying out, contusions, or dislocation
or fracture of the extremities.  He should notice whether
the labia  are dilated and flaccid, the  state of the hymen,
clitoris, nymphae  and vagina generally, and also whether
the fourchette  is ruptured.   The fluid, (if any be present,)
contained in the vagina, should be examined, whether san-
guineous, mucous or purulent, and  the presence or absence
of tumefaction  and extraordinary dilatation, should be  re-
marked.*
   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
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 impression.)  Thornton's shirt and  the flap  of  his pan-
taloons, were bloody.   Indeed, he confessed the connexion,
but said it was  with her consent.  Mr. Freer,  the surgeon
who examined the body, found the parts of generation lace-

  • Fodere, vol. 4, p. 372. There are two cases to which I may particularly
refer, as showing the appearance of the uterus and the other internal organs
of generation such as the fallopian tubes and ovaries,  immediately after de-
floration—/oj/owed probably bv conception.  One is by Dr. Bond,  (American
Journal Med. Sciences, vol. lg, p. 403,) of a female who committed suicide a
few hours after  connexion.  And the other by Dr. Riecke, of another who
destroyed herself two days after, (London and Edinburgh Monthly Journal
Med. Science, vol 2, p. 58.) In each, the above parts  were in a highly red,
and injected state.                                    6  ' 
168
RAPE.
rated, and a quantity of coagulated blood about them.   On
opening the body, these marks were seen still more mani-
fest, and it was also evident  that the menses had been pre-
sent.  In  the  stomach, he  found a portion of duck  weed,
and  about half a pint of a thin fluid, apparently chiefly wa-
ter.   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 distinction between
menstrual and non-menstrual blood, and explained 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
considerable  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 chemi-
cal investigations of Orfila, for the detection of  semen, if its
presence should require to be proved, and I therefore add a
brief notice of them.
  Semen forms, when dry on linen, irregular spots of a light
yellow or grayish color ; 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  in-
  * 1 Barnewell and Alderson, p. 405, Ashford v. Thornton. This case in
all its details is given by Dr. Cummin in the London Med. Gazette, vol. 19,
p. 386.  It excited intense interest in England.
  Mr. Holroyd (son of the judge who tried Thornton,) suggested in a pamph-
let which he published, that her death may have been accidental.  Fatigued
and exhausted, as she undoubtedly was, she passed before morning along the
top of a bank of a very sloping pit-side, and she may have turned faint or
giddy, and thus fallen in.  Dr. Cummin does not think that there was either
rape or murder.   Ibid. p. 390.
  This case was the  last  in which the  trial by battle was tendered.  It is
generally understood that Thornton, borne down by the odium resting on
him, came to this country, and shortly after died, near Baltimore.  I find it,
however, stated, in the Gazette des Tribunaux (Oct. 14, 1845), that in 1820,
Lord  Ellenborough received a letter signed by William Ashford, (the brother)
and dated at a town in California, stating that he had followed the murderer
to America and killed him, and that the Indians had buried  his body on the
road from Mexico to  Vera Cruz.  Ashford added that he was in his last mo-
ments, and would be dead before the letter could reach its destination. 
RAPE.
169
odorous; but as  soon as they are moistened, the spermatic
odor is given out.   If the linen be gently heated, they as-
sume a yellow  fawn color,  and this, indeed,  will indicate
spots, which otherwise would  pass  unnoticed.   This pro-
perty is important  in distinguishing the discharge.   And it
is also found, if the linen be left for some time in distilled
water,  that the above result will not be reproduced on heat-
ing it.   The semen has  become mixed with the water—and
no change of color  is occasioned.
  In water,  the spots become completely moistened;  which
is not the case, if they have been caused by grease ;  and on
being rubbed, give out their peculiar odor.  The fluid itself
is of a flocculent, milky appearance, and on being evapora-
ted, is  found alkaline, and  assumes a mucilaginous appear-
ance ; and if the process be continued to dryness, it leaves
a semi-transparent residue, resembling gum arabic, and of a
light fawn color.   This again  is decomposable in distilled
water, if the mixture be shaken, into two parts ; one solu-
ble, but the  other glutinous, insoluble in water, but soluble
in potash.   The  soluble portion  yields a white flocculent
precipitate with alcohol, chlorine, acetate  of lead, or  corro-
sive 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 fe-
males, was  treated  in  a similar manner, the linen took a
yellowish green color, but the spots do not become yellow,
when held  to  the  fire.  The peculiar odor is wanting, but
the solution  is also alkaline.   When evaporated, the product
is of a white yellowish color, opake and  decomposable by
heat.  It  dissolves with difficulty in distilled  water, but
alcohol and  the other re-agents already named,  yield a white
precipitate; and  nitric  acid also a white one.  Leucorrheal
matter wants many of the characters of the spermatic fluid,
and  the  re-agents  cause but a slight precipitate,  if it be
treated  in the  same manner as already described.  Lastly,
spots of saliva sometimes become yellowish, on exposure to 
170
RAPE.
the fire ; and in some of the experiments of Orfila, the liquid
solution that was obtained was unaltered by nitric acid.  It
is evident from these results, (says Devergie)  that  we are
still in need of more characteristic tests of semen.*
  Orfila was induced from his early examinations, to discour-
age the use of the  microscope, believing that no certain in-
formation  could be obtained  by its use.   The tide of
opinion, however,  is now setting strongly in its favor, par-
ticularly since the  published  results of Donne, Devergie,
Dr. John Davy and Bayard.  They have ascertained through
its means,  the continued presence of spermatic animalculae
in the semen.  Dr. Davy remarks  that the semen soon be-
comes putrid, but the animalculae resist change in a striking
manner.  In  one  instance,  they were observed  in putrid
fluid,  which  had  been kept for ten weeks, and in another
they were discovered under the microscope after having been
applied  to  linen,  wrapped in  paper, and  kept thus for
eighteen days.  In performing this last experiment,  a  small
portion of the linen was moistened  with water, and a drop
forced from it, submitted to  the magnifier.!
   Dr. Bayard with  the usual disregard of his countrymen to
whatever has been done by  other nations,  commences his
memoir by stating that he has examined zoospermes (spermatic
animalculae)  in a  new point of view, viz :  when they are
dead and dried, and when the liquid in which they have been
suspended, is also  dry.
   If the linen containing semen be  rubbed as is usual in
washing, the  animalculae will be broken down and disunited.
Hence he  collected it between plates of  glass, and he no-
ticed  that when the  accompanying mucus  dried, they lost
their  power of motion, but  some were  still visible with  a
microscope of the  power of 350.  On adding a drop of dis-
tilled water  to this seminal dust, and heating it slightly,  a
  * Orfila Lecons, 2d edit., vol. 2, p. 573, translated  by Dr. Gross in the
Western Medical Gazette, vol. 2, p. 244. Sedilot, p. 93. Devergie, vol.  2,
p. 903.
  For cases examined under the direction of the public prosecutor in France
by Chevallier, see Annales D'Hygiene, v. 11, p. 210.  Medico-Chir. Review,
v. 24, p. 516.  Audouard, Journal De Chimie Medicale, April, 1843.
   t Edinburgh Med. and Surg. Journal, vol. 50, p. 15. 
RAPE.
171
large number of animalculaes were observed in the midst of
irregular transparent bodies.  So also when urine or blood
was  added—all that was  necessary to render them clearly
visible, was the addition of a drop  or two of pure water.
Alcohol  contracted the mucus and no animalculae could be
seen ;  the alkalies also when pure produced a similar result,
but when either (alcohol, potash, soda or ammonia) was di-
luted with  water,  then the appearance of them  was very
distinct.
  From these experiments Dr. Bayard deduces the following
practical  directions:  Whenever semen is supposed  to be
on linen, let the linen be allowed to stand in distilled water
for a few hours, and at the end of this time, instead of rub-
bing it,  which will destroy the animalculae,  take up some
drops of the fluid, with the pipette, and place them between
plates  of glass and then use the microscope.   Or add dilu-
ted alcohol, place  the fluid in a watch glass, apply gentle
heat with a  spirit lamp, and then again examine.
  By these processes, he discovered animalculae in vaginal
mucus, taken sixteen  hours after coition;  and also in dried
semen  kept  respectively two months, a year, and two years.
He also detected it on woolen cloth and silk, when similarly
treated.*
  It is  important in this connexion  to know that the sper-
matic animalcules are in consequence of disease or old age,
replaced by pyriform, ovoid or spherical bodies, which are
destitute of  life.  These also occur at puberty, and precede
the living animalculae.

   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.

  * Annales D'Hygiene, 22, p. 134-170. Emploi du Microscrope en Mede-
cine Legale, &c, par M.  Le Docteur H. Bayard. See also Lallemand on the
origin and mode of developement of spermatic animalcules, Edinburgh Med.
and Surg. Journal, vol. 55, p. 547.   It is ridiculous, after  this, to find Dr.
Bayard complaining that Devergie has not noticed his discoveries.—See Bul-
letin De L'Academie Royale De Paris, vol. 3, p. 408. 
172                       rape.

The nature of the crime, betng an offence against the weaker
sex, and committed  in  secrecy.  Being of so detestable a
character, and so difficult to be proved, the law has wisely
ordained that the testimony of the injured person shall be
sufficient,  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 scriptures,  and  the  records of courts in all  countries,
bear testimony to this.*   In this point of view, the  medical
jurist  may often aid the  ends  of justice in punishing the
wicked, and absolving the innocent.!
  I have thought that a sketch of the  laws of various  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 Perci-
val, and I have added to these, the laws  existing in various
states  throughout the union.   I  shall notice, separately, the
laws respecting  the commission of the crime, on the female
of tender  age, and  on the female who has arrived at  matu-
rity.
  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 igno-
rance  of the  consequences  of the  act, the law has wisely
directed that the consent or non-consent of the female under
age is  immaterial, " as by  reason of  her tender age,  she is
incapable  of judgment and discretion."
  In the 3d year of Edward I. by the  statute, Westminster,

  *  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 enormous 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 and
malicious."—Report of the Trial, &c, p.  67.
  t  A man named Stewart, was tried at the Old Bailey in 1704, for  ravish-
ing  two female children.  The evidence being at variance as to the fact of
penetration, the children were sent out of court to be examined, and the eldest
was found to have the signs of virginity."—Smith, p. 397. 
rape.
173
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 Eliza-
beth, chap. 7, carnally knowing and abusing a child under
the age of ten years, was  made  felony, without benefit of
clergy.  Sir Matthew  Hale,  says 'Blackstone, is indeed of
opinion, that such actions committed on an infant under the
age of twelve years, the age  of female  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 offence shall be deemed  a misdemeanor  and liable to
imprisonment.
  In Scotland, it is held that consent cannot be given below
the age of twelve years.!
  The French code of 1810, ordains, that if the crime has
been  committed  on a child under the  age  oi fifteen years
the offender shall be condemned to hard labor for a limited
time, (travaux forces  a temps.)!  But  it would seem that
consent on the  part of the minor female modifies the
nature of  the  crime in France.   At  least such  was the
decision of the Court of Assize at  Strasburg in 1827.  An
individual escaped from the  punishment of  rape for this
reason.§
  In  the  state of  New York, the statute  of the 18th of
Elizabeth, appears to have been  copied.  By an act passed

  * Blackstone's Commentaries, vol. 4, p.  212.
  t Alison, Principles, p. 213.               t Code Penal Arl  W>
  § Briand, 2d Edit. p. 10.                 +         'Art' d32. 
174
RAPE.
Feb.  14, 1787, it was  ordained, that if any person  should
unlawfully or carnally  know a woman child under ten years
of age, such unlawful  or  carnal knowledge should  be  ad-
judged a felony, and the criminal should suffer death.*  But
by an act passed March 21,1810, the above punishment was
changed to that of imprisonment in the state prison, and
continues so at the present time.!   In Massachusetts alone,
so far  as I am able to ascertain, the punishment is death. J
In  Virginia,  Connecticut, New  Hampshire,  Maine, New
Jersey, Illinois, Ohio,  Michigan and Tennessee, the pun-
ishment is either imprisonment for life, or a term of years,
or fine or  imprisonment,  or both.  All these specify the
period of ten years.§    The law in Vermont varies from this.
It directs  that  whenever any  individual over the  age  of
fifteen, shall abuse any female under eleven, with or without
her will, he shall suffer fine and imprisonment.||  In Indiana,
the age of the female  is extended  to twelve years, and the
punishment is imprisonment for a term of years.IT  In Mis-
souri,  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.!!
  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
understanding to know the obligation of an oath, or even to
be  sensible of the  wickedness of  telling  a deliberate lie.
  *  Jones and Varick's edition of the Laws of New York, vol. 2, p. 47.
  t  Revised Statutes, vol. 2,  p. 663.
  X  General Laws of Massachusetts, 1807, vol. 8, p. 340.
  §  Revised Laws of Virginia, 1803, vol. 1, p. 356;  Session Laws of Connec-
ticut, 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.
  IT  Revised Laws of Indiana, 1831, p. 136.
  ** Revised Laws of Missouri, 1825, vol. 1, p. 283,
  tt Revised Laws of Delaware,  1829, p. 129. 
RAPE.
175
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  a 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 to be  admitted, it is much to be

wished,  in order  to  render their  testimony credible, that

there  should be  some concurrent  testimony of  time, place

and circumstances, in order to make out the  fact; and that

the conviction  should not be grounded singly  on the un-

supported accusation of an  infant under years of discretion."!



  * Formerly it was the practice in the English courts to refuse the evidence
of children.  (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 ac-
quitted for the want of evidence.
  t The case above mentioned was as follows : One Brazier was  indicted at
the assizes for York, for a rape on an infant seven years of age.  The informa-
tion 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 pos-
sess 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 ac-
cordingly 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 entertain of the danger and impiety of false-
hood, which is to be collected from their answers to questions propounded to
them by the court; but if they are found incompetent, their testimony cannot
be received."   (East's Crown Law, vol. 1, p. 444.)
  X Blackstone, vol. 4, p.  214.  In South Carolina, a case occurred in 1813,
where the material witness was  the female injured,  of seven years of age.
The prisoner was convicted; and on appeal, the judgment was  held good.
The court remarked, that this testimony was sufficient, if corroborated by
circumstances; and in this instance, both the prisoner and witness had the
same disease.   (State v. Le Blanc.  2  South Carolina Constitutional Reports,
p. 354.) 
176
RAPE.
   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.!   The  latter, however, ordained,  " Rapta raptoris,
aut mortem, aut indotatas nuptias optet;" and upon this, says
Dr. Percival, there arose what was thought a doubtful case.
" Una nocta  quidam duas  rapuit, altera mortem optat, altera
nuptias."X  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  were single, escaped without punish-
ment; but if she  were married, both she and her husband
were  enfranchised.  If he forced the bondwoman of another,
he was subject to  the penalty of twelve, twenty  or  forty
sols,  according to  her  comparative  state.  The ravisher of


  * 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' Commentaries, vol. 4, p. 169 to
174.)
  t Gibbon, vol. 2, p. 252.  Law of Constantine.
  X Medical Ethics, note 17, p. 231.
  §  Fodere, vol. 4, p. 325. 
RAPE.
177
a free woman was mulcted at a much heavier sum—at nine
hundred sols."*
  It would appear that there was  no punishment provided
for this crime,  in the codes  of several of the original Ger-
manic tribes.   At least,  "the  code  of the Bavarians had
none, except 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.J   The Burgundian laws provided
that if  the young woman  carried off, returned to her parents
actually corrupted, the offender should pay six  times her
price or legal valuation, and  also a mulct of twelve shillings.
If he had  not wherewithal to pay these sums, he should be
given up to her parents or near relatives, to take their re-
venge 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 satis-
faction  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

  *  Europe during the Middle Ages, in Lardner's Cyclopedia, vol. 1, p. 16.
  X  Europe during the Middle Ages, in Lardner's Cyclopedia, vol. 2, p. 137.
  X  " Si quis filiam  domini  sui rapuerit,  morte moriatur."  (See Memoirs of
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.") Hallam 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 roof.  In the Establishments of St. Louis,
chapter 51, 52, it is  said, that a lord seducing his vassal's daughter, entrusted
to his custody, lost  his seignory; and a vassal guilty of the same crime to-
wards his family of the suzerain,  forfeited his land. (Hallam's Middle Ages
vol. 1, p.  187, American edition.)
12 
178
RAPE.
who had worked at the plough seven years.   If the offen-
der was not able to  make  such a present, virilia membra
amittat.
  By the law of ^Ethelbert, the first Christian king of Kent,
it was enacted, that if any person takes a young woman by
force, he  shall  pay her parent or guardian fifty shillings,
and shall make  a further compensation for her ransom.   If
she were espoused, he  shall compensate the husband by an
additional  payment of twenty shillings, but if  she were
with  child, the augmented fine shall be five  and thirty
shillings, and fifteen more to the king.
  There is also  an ordinance of Alfred in existence, for the
punishment of rapes committed on  country  wenches who
were servants;  an offence (says Dr. Percival) which may be
supposed to have been prevalent at that time.*  Rape, how-
ever, by the Saxon laws, particularly those of king  Athel-
stan, 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 was  inflicted by William  the Conqueror, who
probably brought the  custom from Normandy, viz:  castra-
tion, 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 accusa-
 tions, it was then law, (and, it seems,  still continued to be
 so in appeals  of rape,) says Blackstone, that the  woman
 should immediately  after,  " dum recens fuerit maleficium,"
 go  to  the  next  town, and there make discovery to some
 credible persons of the  injury she  has suffered,  and after-

   * It is as follows: " Si quis coloni mancipium ad stuprum comminetur, 5
 sol. Colono emendet et 60 sol.; mulcts loco.  Si servus  servam ad stuprum
 coegerit, compenset hoc virga sua. virili. Si quis puellam tenerae aetatis ad
 illicitum concubitum comminetur, eodem modo puniatur quo ille qui adults
 servae hoc facerit."  (Percival, p. 228.) 
RAPE.
179
wards 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 Scot-
land  and Arragon, which require that complaint  must be
made within twenty-four hours;  though afterwards, by Sta-
tute 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 punishment.   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 to only
two years' imprisonment, and a fine at the king's will.   But
this lenity was found productive  of the most terrible conse-
quences ; 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
Orleans and Blois, forbade the  asking of pardon for this
crime.   Henry the Second of  France, by an  ordinance of
1557, condemned those  who had forced a woman or a girl,
to be hung.  Such was  also the edict of Louis XV,  in 1730;
and  such  are  the laws  of various   states in Italy.  The
ancient  parliaments of France,  during the  sixteenth  and
seventeenth centuries^ enforced the law with great severity
on those accused of the crime.!
   The above gleanings  will elucidate, in some degree, the
laws of former times concerning  this  crime.  I now proceed

  * Blackstone, vol. 4, pp. 210, 211,  Percival, p. 100; and note  17, p. 228.
Chitty's Criminal Law, vol. 2,  p. 813.
  t Fodere vol. 1, 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 deemp-
sters (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, Esq., London, 1793, in the
British Critic, vol. 3, p. 408.
  In China, rape is punished with death.  (Edinburgh Review, vol. 16, p.
498.  Review of the Penal Code of China, translated by Sir George Staunton, j
  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.) 
180
RAPE.
to mention those which are,  or  lately have been, in force.
The following maxims, says Fodere, (which he quotes from
Boerius,) have been adopted for  thirty years in  Neapolitan
jurisprudence, viz.  that in accusation 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 vio-
lated.   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  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 punishment  should be twelve  years'
confinement in irons.   The law of 2d Prarial L'an 4, (1796)
prescribed the same punishment for an attempt, if accompa-
nied by violence.  All these  ordinances were, however,
annulled by the Napoleon code, which prescribed imprison-
ment for the crime,  if consummated  or attempted with vio-
lence.   If, however, the criminal  has any authority over the
person  injured,  such as guardian or a teacher, if he be a
servant, public functionary, or  clergyman, and finally, if the
individual, whoever he be,  is aided by  one or more persons,
the punishment shall be imprisonment  for life.*
  In Scotland, according  to   Baron Hume, the following
facts are necessary  to be proved  on a charge of rape.  1.
Penetration, but  there  is  no  distinct  reference made to
emission. 2. Actual force in the consummation, but it is
held to be forcible knowledge if the female discontinue her
resistance out of'fear of death, or be rendered incapable of
it, by the giving of narcotic drugs, or  be  under  the age of
puberty.  So also if she  faint  during the struggle from
terror or fatigue, or is incapable of opposition from natural
infirmity. Thus James Mackie was  condemned in 1650, for
a rape  on a cripple, a lame lass  sixteen years old,  laying
bedridden in her father's house alone.   No  limitation as to
* Fodere, vol. 4, p. 328, 329; Code Penal, art. 331, 333. 
RAPE.
181
the time of making the complaint exists at present, although
a long  delay might  doubtless prejudice  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 declara-
tion, that she went off with him of her own free  will; and
even then he is to suffer an arbitrary  punishment, either by
imprisonment, 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  benefit of  clergy.   It  is  a  necessary  ingredient
in  the  English law, that  the crime should  be against the
woman's will, and in this, it differs from the Roman, which
prescribed the  same punishment, whether the  female con-
sented or not.  The civil law  also,  (as  we have  already
stated) does not seem to suppose 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 complaint is fixed, but the jury will
rarely  give  credit to a stale  accusation.   In addition to
these,  we may  add, that the common law considers a male
infant, under the age of fourteen, as  incapable of committing
a rape, and  therefore  cannot be found  guilty of it.   For
though, (says Blackstone) in some  felonies, malitia supplet
cetatem, yet as to  this particular species,  the law supposes
an imbecility  of body as well as mind.!
  * Hume's Commentaries on the Laws of Scotland, vol. 2, p. 3, 5, 6, 14;
Brewster's Edinburgh Encyclopedia, vol.  11, p. 823; Law of Scotland.
  t 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 judgment,  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 re-
gards infants under fourteen as incapable  of committing rape, was established
in favorem vita, 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 impunity from felonious assaults, as well as from felony itself."  (Com-
monwealth v. Green, 3. Pickering's Massachusetts Reports, p. 3S0.)
  It is mentioned in the Boston Medical  and Surgical Journal, vol. 33, p. 386, 
182                         RAPE.
  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.)*  And  it  was  also
ordained at the  same  time, that  if  a  woman had  been
ravished, and  afterward consented to her ravisher, her hus-
band, 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 prescribe the punishment of imprison-
ment for ten years in the state  prison, on the  offender and
his accomplices, if he  have any, for ravishing  by force any
woman  child  of the age  of ten years or  upwards, or any
other woman.  An assault with an intent to commit a rape,
may be punished by  fine and imprisonment or both.
  The  following enactment has also  been recently added.
" Every person who shall have carnal  knowledge of any
woman above the age of ten years, without her consent, by
administering to her any  substance or liquid, which  shall
produce such stupor, or such imbecility of mind or weak-
ness  of body, as to prevent effectual resistance, shall, upon
conviction, be  punished by imprisonment in a state prison
not exceeding five years."!
that in a case which occurred in the State of Ohio, where a negro boy under
fourteen years was charged with an attempt to outrage a child five years old,
and the crime was proven, it was urged that children of African descent arrive
at puberty earlier than Europeans. Itseems the general law was disregarded,
since the prisoner was found guilty, and sentenced to three years' imprison-
ment.
  * Jones and Varick's Edition of Laws, vol. 2, p. 57.
  t Revised Statutes, vol. 2, p. 663-666.
  It would seem that by the English law the above offence is equally rape.
In 1844, a prisoner was tried at the Old Bailey on an indictment for rape,
committed on the person of a girl thirteen years old. The evidence was, that
the prisoner made her quite drunk, and whilst she was insensible, violated
her.  The jury found that the prisoner gave her the liquor for the purpose
of exciting her, and not intending to render her insensible and then have
connexion with her.  The prisoner's counsel objected that the crime of rape
was not proved, and that point was reserved for the opinion  of the judges.
  On an argument before them (April 26,1845) it was urged, that the defi-
nition of rape is  an unlawful carnal knowledge of a woman, by force and
against her will;  that this did not occur in the present instance, and that it
could not be supplied by any inference whatever. Justice Patteson.—Do you
contend that every woman who is blind  drunk by the way-side is open to a
rape from every person who passes by ?  To this it was replied, that insensi-
bility is contradictory in terms to the definition of rape.  If a man by fraud
has connexion with a married woman, it has been held not to be a rape, and
the recent case of Regina v. Stanton, was also cited.  Lord Denman remark- 
                            RAPE.                         183

  In the States of Massachusetts,  Rhode-Island, Delaware,
and  South Carolina, the punishment prescribed, is death.*
While  in  Connecticut, Georgia,  Illinois,  Indiana,  Ohio,
Maine, New Hampshire, New Jersey, Vermont, Pennsylva-
nia, Virginia and Michigan, imprisonment for a term of years,
or for life, is directed.  In some few cases, fine or imprison-
ment, or both.!   In Louisiana, imprisonment and hard labor
for life, is the punishment.!   In the State of Missouri, and
also in the Territory of Arkansas, the punishment prescribed
is castration.§
   The attempt to commit this crime, or its actual completion,
by a negro or mulatto, is made a subject of special legisla-
tion  in several states.  Thus in Tennessee, Alabama and
Louisiana, even  the  attempt on a white woman, is made a
capital offence.||  In Virginia and  Missouri,  the  same is
punished  by castration.1T
   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 emission, in order to constitute it; and in Indiana and
Tennessee, penetration is  held sufficient.
   The reason on which this change is founded, may deserve
some consideration at the  conclusion of the present section.
ed, It is put as if resistance was essential to rape, but that is not so, although
proof of resistance may be strong evidence in the case.
  The judges affirmed the conviction, and in sentencing the prisoner, it was
stated that the female showed by her word and conduct up to the very latest
moment  at which she had sense or power  to express her will, that it was
against  her  will, that intercourse should take place.  Regina v Camplin, 1
Carrington and Kirwan's Reports, p. 746.  London Medical Gazette, vol. 36,
p. 433.
   * 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 Georgia, 1817, 349.  Laws of Pennsylvania, 1803, vol. 5, p. 2.  Revised
Laws of Virginia, 1803, vol. 1, p. 356. In New Jersey, a second offence is
 punished with death. Laws 1828.
   X Digeste General des Actes de la Legislature de la Louisiana, 1828, vol.
 l,p. 441.
   § Revised Laws of Missouri, p. 125, vol. 1, p. 31.  Nuttal's Journey to the
Arkansas, p. 224.
   || 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 woman by a slave, with death.
   IT 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. 
184
RAPE.
  Rape is the  carnal  knowledge of  a female, forcibly and
against her will.  It has been a subject of some legal dis-
cussion, 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 concur, 12 Cok.  37, though he does not
express himself so clearly  in his  Institutes.   Hawkins,
without citing any  authority, or hinting  a doubt, declares
the  same opinion.  Hale, however, differs from both, and
considers the case in Coke's Reports as mistaken.  In more
modern times, prisoners have  been repeatedly acquitted, in
consequence  of the want of proof  of  emission.   In one
instance, (Rex v. Russen, 14 Petersdorff, 116,) on the other
hand,  the prisoner was found guilty under the direction  of
Justice Bathurst,  who did  not consider this fact necessary
to the consummation of the guilt.  But in Hill's  case, which
was argued in 1781, a large majority of the judges decided
that both circumstances  were  necessary, though  Buller,
Loughborough and  Heath maintained a contrary opinion.
This then,"  he adds, " seems to  be the  stronger opinion,
and at the present day, if no emission took  place, it would
be  more  safe to indict for an attempt to commit, by which
means a severe punishment might  be inflicted."*

  * 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 opin-
ion that has existed amongst the English judges. The leading particulars in
the case of Hill, cited above, are also stated ;  and the great majority of the
judges that deemed both necessary, to constitute the crime, seem to have set-
tled the law in that country.  A decision  conformable to it was made by
Baron Richards at the Northumberland assizes in 1815 ; and  as the case is
interesting, I  shall detail its leading particulars.  The  prosecutrix was a
married woman, apparently between thirty and forty years of age.   The de-
fendants were two brothers, by one of whom the act was alleged to  have been
perpetrated, while the other held the husband forcibly down at not more than
two yards distance from the spot where his wife was said to have been violat-
ed.   The woman swore positively to the penetration, but could not swear to
the emission; and she assigned  as a cause, the agitation and  syncope which 
RAPE.
185
  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  acquitted under the present  charge.   He
said, that he recollected a case where a  man had been  in-
dicted  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 emis-
sion from a man: and that was  ruled not  to invalidate  the
evidence which she gave of a rape  having been  committed
on  her."*   Chitty observes, " It is  certain that  no direct
evidence need be given to the  emission ; but that will be
presumed on proof of penetration, until rebutted by the pris-
oner.   And it will suffice to prove the least degree of pene-
tration,  so that it is not necessary that the marks  of virgin-
ity should be taken  from the sufferer."!   So also  Baron

supervened during the struggle.  She perfectly comprehended the import of
the question put to her ; and declared explicitly, that she had, on every  pre-
vious 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 imme-
mediately 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 credibility;  as the prisoner's counsel, be-
sides the above particulars, showed satisfactorily, 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, '>, p. 812.  I have already quoted the case (p.  138,) on which'the
latter part of this dictum is founded.  This may probably be correct in chil-
dren under ten years of age; but in all others, it will be readily observed 
186                       RAPE.
Richards,  in  the  case cited below,  although  he deemed
emission essential,  and the woman was not sensible of it,
yet told the jury, that it was for them to deliberate whether,
on a careful examination of all the  other collateral circum-
stances of  the case, they had reason to be satisfied that this
part of the crime, as well as every other, had been actually
consummated.*
  If there  be any  truth  in  the views already  intimated
concerning the  possibility of committing this crime,  and
the cases  in which it  may be completed,  certainly the ne-
cessity of  establishing the  fact of emission must  prove an
insuperable barrier to any  conviction.  We  may  divide
females,  with reference to  this subject,  into two  classes—
the young, unmarried  persons ;  and the married, or those
accustomed to sexual  intercourse.   As  to the  first, it  may
be considered very improbable that they could be  conscious
of this, while laboring under the influence of terror, severe
pain, faintness or insensibility.   And to this class also be-
long those of a  very tender age, who are totally ignorant of
the nature of the crime,  and  what  is  necessary to com-
plete 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 poignancy of sensation is requisite.!   I confess,
that language of this kind  appears 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, leaves  us some  reason to
doubt whether this enjoyment can be realized.   And it  also
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 consid-
ered as attempts to commit the crime, than the consummation of it.
  * Edinburgh Medical and Surgical Journal, vol. 12, p. 208.
  t Edinburgh Medical and Surgical Journal, vol. 12, p. 209. 
                           RAPE.                        187

deserves  consideration, that  if  the  resistance  has  been
complete throughout, such pain may ensue from the repeated
attempts to affect 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  extend-
ed to our own country.  In a case tried some years  since at
the Albany Circuit,  in this state, by the  late  Justice  Piatt,
he declared the  law to be  as laid down by the Judges in
Hill's case.   But in Pennsylvania  emission is not  deemed
essential.   In a case tried in 1793, when it was urged that
both penetration and emission should be proved,  the Judge
said—" We  are inclined to the 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.J
   The  difficulties attending such  conflicting decisions in
England,  probably led  to  the enactment of  a  recent law
there, by which it is ordained, that on  trials for the crime of
rape, and of  carnally  abusing girls  under  the  respective
ages of ten  or twelve  years of age, it is not necessary to
prove actual emission  in  order to  constitute  carnal know-
ledge, but this shall be deemed  proved, upon testimony of
penetration  only.§  This law was  passed  in  1828,  9th
   * " Considering the nature of the crime, that it is a brutal and violent at-
tack upon the honor 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 perpe-
trated by actual penetration of the unhappy sufferer's body.  Under what
principle, and for what rational purpose, anyjurther investigation came to
be suppposed necessary, the books which record the dicta to that effect do not
furnish a trace.  (East, 2, p. 436, 437.)
  f 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 repealed.  Acts passed in 1819, p. 219.
  § Professor Amos queries whether, under this law, an eunuch may not be 
188
RAPE.
George IV, and it is often called Lord Lansdowne's act, as
that nobleman introduced it.
  Scarcely, however, had this become the statute law of the
realm, when  difficulties  occurred in its construction.   In
August,  1831, on a trial before Justice Taunton, the female
proved penetration, and also that she felt warmly  in  her
private 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 jury must be satisfied from circumstances that emission
took place, and  although it  was not necessary  specifically
to prove it, yet the circumstances should be such as to infer
it.   The prisoner was accordingly acquitted.*
  I  must  be  permitted to agree with the reporter of  the
case, in  saying  that this decision makes the  statute of
George IV, inoperative.   Even before its enactment, it was
unnecessary to give  direct  evidence of emission.  It was
enough if  the  circumstances  were such as to satisfy that it
had  taken place.  But how can Judge  Taunton's opinion be
reconciled with the statute,  which says, that it  is sufficient
to prove penetration  only ?
  His decision, however, appears to have been subsequently
overruled.  In Rex v. Cox,  at the Worcester  assizes, 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, re-
served the case for the consideration of the fifteen judges.
They held the conviction to be right.!
  In a still later  case, Regina v. Lines, with some curious
incidents, the doctrine wTas still more strongly enforced.  It
appeared from the  examination of Mr. Williams, the sur-

found guilty of a rape; and again he suggests the possible case, where no
penetration is proved, but emission only.  London Medical Gazette, vol. 8,
p. 33-96.  In this last, however, the jury would doubtless infer the one from
the other, particularly as Lord Hale  has pronounced emission an evidence of
penetration.
  * 2 Moody and Malkin, p. 122; Rex v. Russel.
  t 5 Carrington and Payne, p. 297; American Jurist, vol. 11, p. 459; Chitty's
Med. Jurisp. part 1, p. 379. 
RAPE.
189
geon, that the hymen of the child (under ten years) was not
ruptured, but upon it was a venereal sore, which he deposed
must have arisen from actual contact with the virile member
of a man.   It was contended that although this showed
actual contact, yet it did not establish penetration sufficient
to constitute the crime.  But the Judge (Baron Parke) said,
I shall leave it to the jury to say, whether at any time, any
part of the  virile member of the  prisoner was within the
labia of the  pudendum, for if it ever was, (no matter how
little) that will be sufficient to constitute a penetration, and
the jury ought to convict the  prisoner of the complete of-
fence.*
   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  emis-
sion,  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 degree which takes place with a full grown wo-
man."!
   A trial for this crime,  on a girl between  fourteen and
fifteen years of age, was held at Edinburgh, in January,
1841.   She  had  never menstruated.  The  parts of genera-
tion presented no unusual appearance externally ; internally,
there was an excoriation in the lower part of  the vulva,
extending from the fossa navicularis to the fourchette, but
the fourchette itself was uninjured.  The imperfect hymen
or carunculae, that were observed, were uninjured.  No blood
 or seminal spots were seen on the person or dress of the fe-
 male by the medical examiners. Dr. J. A. Robertson and Pro-
 fessor Simpson were examined and concurred in stating, that
the vagina was bounded externally by the  hymen; that the
abrasion in the fossa navicularis was not in the vagina, but
 in the vulva or vestibule of the vagina; that an abrasion in
such a  situation, when the frsenum was uninjured, was more
likely  to have been caused by  a finger or other  pointed
   * 1 Harrington and Kirwan's Reports, p. 393.
   t Alison's Principles of the Criminal Law of Scotland, p. 210. See also
the case of A. Robertson, in Sainton's Judiciary Reports, vol. 1, p. 93. 
190
RAPE.
body, and that if penetration had taken place, they would
have expected injuries of other parts ; and that, at least, the
fourchette would have been injured by the genital organs  of
the criminal, as they were very large.  They also considered
the absence  of ecchymoses on the mons veneris, labia,
thighs, &c, as very important circumstances in a charge  of
violation.  The prisoner's counsel urged, that as there was
no proof of emission, (the female not being able to swear  to
this,) there must be proof of full  and complete penetration,
and this was contradicted by the facts.
  Lord Meadowbank charged the jury to the effect, that the
evidence of the prisoner's guilt was complete ; that scientific
and anatomical  distinctions  as  to  where the vagina com-
menced, were worthless in a charge  of rape; and  that, by
the law of Scotland, it was enough if the woman's body were
entered.  In such a case as this, where there was no evidence
of emission, and where the girl was young, he did not seem
to consider it necessary to show to what extent penetration
 of  the parts had taken place—whether it had gone past the
 hymen, into what was anatomically called the hymen, or
 even only as far as to touch the hymen.  The prisoner was
 found guilty, and condemned to death.—Edin. Mon. Journ.
 of Med. Sciences, Feb. 1841.
   By an enactment  in the  state of New  York, a similar
 provision has been adopted in the following words : " Proof
 of actual penetration into the  body, shall be sufficient to
 sustain an  indictment for a rape, or for the crime against
 nature."*
   The law  as  to what constitutes  this crime is  now the
 same, both in Great Britain and many of our own States.
 It is sufficient if penetration  be proved.  The following
 recent decisions may therefore be mentioned.
    In Regina v. Allen, although it  appears from  evidence,
 that the party was disturbed immediately after penetration,
 and  before the completion of  his purpose, yet he must be
 found guilty of having committed the complete offence  of
 rape.  9 Carrington and Payne's Nisi Prius Reports, p.  31.
                 * Revised Statutes, vol 2. p. 735. 
RAPE.
191
  In Regina v.  Jordan, it was  decided  that a boy under
fourteen years of age, cannot be convicted of feloniously,
carnally knowing and abusing a girl under ten years of age,
even although the surgeon swore that he had arrived at the
full state  of puberty.   The judge also stated, that to con-
stitute penetration, the parts of the male must be  inserted
in those of the female, but as matter of law, it is not essential
that the hymen should be  ruptured.  Ibid. p. 118.
  In Regina v. Hughes, the crime was fully  proved to  have
been committed on a girl  between eleven and twelve years
old, but a surgeon who had examined  her, stated his belief,
that although penetration had taken place, yet the hymen,
which in this case was at  the usual distance up the vagina,
was not ruptured.   The jury found to this effect—that there
had been penetration,  but that  the  penetration   had not
proceeded  to  the  rupture of the hymen.   The case  was
reserved  for the consideration of the  judges, and eleven of
them decided that the verdict was sufficient.  Ibid. p. 752.*
  A curious anatomical  question  appears  to have   been
considered  on this  trial,  originating  in testimony  given a
number of years ago in the case of Rex v.  Russen.  "  Ben-
jamin  Russen was  master of a  charity  school,  and  was
charged with two forcible  rapes on Anne Wayne, one of the
girls of the  said school, the first fact being  just before, the
other just  after she attained her age of ten years.   The
child  swore to a full proof in both respects, (proof of  both
penetration  and emission  being at that time essential,) and
her testimony was corroborated  by marks observed on her
linen  at the time, but she was deterred by the prisoner's
threats from making any discovery till three or four months
after the time.  For the  prisoner,  it was  proved  by two
surgeons, whose testimony was corroborated by four others
who had  examined the child, that the passage of the  parts
was so narrow  that a finger could not be introduced, and
that the membrane called  the  hymen and which crosses the
vagina and is an indubitable mark  of virginity, was perfectly
  * The effect of this decision is to declare the case of Rex v. Gammon, not
to be law- 
192
RAPE.
whole  and unbroken,  so  that she never  could  have been
completely known by a  man.   But as this membrane was
admitted to be in some subjects an inch, in others an inch and a
half beyond the orifice of the vagina, Judge Ashurst, who
tried the prisoner., left it to the jury to say whether any
penetration was proved, for if there was any, however small,
the rape was complete in  law.   The jury found  him guilty
and  he received judgment of death, but before  the  time of
execution, the matter being much discussed,  the learned
judge reported the case to the other judges for their opinions,
whether his directions were proper, and  upon a conference,
it was  unanimously agreed by all assembled that the direc-
tion of the judge was perfectly right.  They  held that in
such cases, the least  degree of  penetration is sufficient,
though it may not be  attended  with the  deprivation of the
marks of virginity.  It was therefore properly left to the
jury by the judge, and accordingly the  prisoner was exe-
cuted."
   The editors, in commenting on this case, show by cases
mentioned in the works of Dr. D. D. Davis and Dr. Paris, that
the  hymen is not an  indubitable mark of virginity, since
that membrane has been found entire during pregnancy, and
remark, " with respect to the second proposition, there may
be some doubt,  as in all the  preparations in the Museum of
the  Royal  College of Surgeons, in which the hymen is
shown, it is not more than a quarter of an inch from the orifice
of the  vagina."

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
notice.
   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 
RAPE.
193
symptoms of  venereal infection  do not commonly make
their appearance until three days after receiving it, while
the examination should be  made within that time.  Should
the appearances indicate any  thing like a  disease of long
standing, they must of couse tend to weaken the complaint
of the female.   The following are cases which will illustrate
these observations.  On the 11th  of Dec. 1811, Fodere was
directed by the imperial  attorney of the court of Trevoux,
to visit a female aged from eleven  to  twelve years, who
accused a man aged fifty,  and of large stature, of having
committed a rape on her.  The crime she stated was con-
summated on the 26th of Nov. preceding.  On  examination,
our author found that in this person, the menses had not yet
appeared, the nymphs were  inflamed,  and the  parts sur-
rounding  the  meatus urinarius discharged  an  acrid gonor-
rheal  fluid, the hymen was ruptured, and  the entrance of
the vagina  enlarged, but the fourchette was  not ruptured
nor were there any signs of great  violence, or such as might
be expected from the disproportion between the individuals.
Fodere reported that the venereal disease in this child was
a proof of connexion, but he did not consider it so of rape.
Her conduct,  he adds, was destitute of all modesty.  The
accusation was, however, persisted in; but on the trial, it
was proved that the parents had  placed her with a woman
who was a prostitute, and also  that the  child  had never
complained  of violence, until after she discovered symptoms
of the venereal. The prisoner was acquitted.*
   A somewhat opposite, but very interesting case, occurred
some  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 phy-
sicians 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

                 • Foder*. vol. 4, p. 365—366.
                    13 
194
RAPE.
color, but particularly so at  the point of the frenulum."
The vagina was dilated, so as to admit a finger with perfect
facility;  and finally, they observed a copious discharge of
purulent and sanguinolent matters.   The medical witnesses
gave it, as their opinion, that the complainant had been re-
cently deflowered, and that the above mentioned flux, by its
quantity and appearance, might be derived from a mechan-
ical 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  antiphlo-
gistic treatment, and two subsequent examinations by the
same physicians 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 Sapi-
enza 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
uncertainty of the proof to be derived from the absence of
the signs of  virginity, and it was argued  that a rape  thus
committed  on a female  under the  age of puberty, should
have left more marked and severe traces.
  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.  Leucorrhcea  is constantly derived
from the uterus, while gonorrhoea  does not extend  farther
than the external organs.  If, therefore, these last be washed
carefully, and inspected, no  mistake could occur.  Again,
he urged that gonorrhoea has  its regular periods of high in-
flammation and decline ; whereas leucorrhcea is often chronic,
and increases and  diminishes at indeterminate times.  The
occurrence of the discharge immediately  after the alleged
violence, is also against the idea of its syphilitic origin.
  Some criticisms on the depositions of the examining phy-
sicians, conclude this work of Prof. Metaxa; such as  their 
RAPE.
195
speaking of most acute inflammation, and yet no pain ap-
pearing to have been present; the vagina was much inflamed,
and  yet  it could be examined with perfect  facility.  No
haemorrhage, nor inability to move, appears to have followed
the crime : Further, no mention was made of the presence of
the carunculge  myrtiformes, which should have been seen
from the laceration of the hymen.
   Our author also brought testimony to prove that the accu-
ser was of a scrofulous habit, and at a very early age had
suffered from leucorrhcea.
   On these grounds Prof. Metaxa, and twenty-eight profes-
sors and physicians at Rome, who approved and signed his
publication, gave an opinion in favor of the convicted crimi-
nal.   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 argu-
ment 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 in-
flammation in parts  previously relaxed by leucorrhcea, but
appearances corresponding to what was observed.   Such in-
deed was probably the truth of the case,  and the Illustrissi-
mo Signor Crispi escaped from a sufficient want  of discrimi-
nation on a collateral point of testimony.*
   I add the following, because it occurred in NewYork: —
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 discolored  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, pro-

  * I have obtained all my knowledge of this case from a review of " Disser-
tazione medico-forense riguardante la causa della Illmo. Sia; Achille Cresni
rZTwa*tuPro,™maturo- _ Autof Luigi Metaxa, public  professore, &c'
ttoma, 1824"—m Chapman's Journal, vol. 9, p. 427. 
196
RAPE.
posed an examination, which he resisted until forced thereto

by the police.   His linen was found discolored, and conclu-

sive  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 explanation, that by using proper

remedies, the  most skilful physician might be deceived by

the patient,  and the disease be  so far removed as  not to be

visible in even much less time than two days.   This opinion

was  concurred in  by Dr. Mott.   The  prisoner was  found

guilty.*


  2.  Can  a female  be  violated  during  sleep,  without  her

knowledge?  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 considered, to all intents, a rape.  In such cases,

  * Wheeler's Criminal Cases, vol. 1, p. 74.
  Diagnosis  of Gonorrhea, in accusation of Rape.—The following is quoted
from a recent work on the venereal disease, by Mr. Acton, late externe at
the Female Venereal Hospital, Paris, of which M. Ricord is the chief medical
attendant.  " Every tyro in medicine will at once distinguish what he calls a
clap, by means of the symptoms above described, but such a person may not
be aware, that a surgeon cannot always decide at once whether a man is suf-
fering under a gonorrhoea or not, provided no discharge be observed,aand the
lips of the urethra be not inflamed and no stains seen on the linen.  M. Ri-
cord gives the following instance of the occasional  difficulty. He was ordered
by a magistrate to give an opinion, whether or not a prisoner,, said  to have
violated a girl, was laboring under gonorrhoea or not.  The%accused pre-
sented no swelling of the lips  of the meatus, on pressure, no discharge came
from the urethra, and there existed no traces of any secretion on the  shirt.
When interrogated, he said that he had made water six hours previously to
his examination.  As M. Ricord had some suspicion, he ordered  him to pass
his urine at once, and desired one of the gaolers to watch his prisoner ; in
six hours after, M. Ricord returned and then found undoubted marks of an
existing gonorrhoea; the prisoner confessed that he had made water previously
to the first examination, and had taken  care to remove the secretion as soon
as formed by a piece of lint which he had concealed for that purpose."
  The Reviewer justly doubts whether gonorrhoea can be present without an
obvious vascular fullness of the mucous membrane. This should be examined
with a lens.  On everting the lips of the urethra, it is either seen florid, with
punctuated redness, and a semi-abraded appearance, as if the epithelium
were partially removed, or the veins of the mucous membrane are enlarged
and tortuous.  Medico-Chirurgical Review, July,  1841. 
RAPE.
197
the quantity  of  stupifying drugs  administered may be  so
great,  as to  render  her unable, even if awakened by the
violence, to withdraw from  it.   The  proof of the crime is
to be obtained from the injury sustained; from the symptoms
attendant on the exhibition of narcotics, (if they have been
given,) and which will be noticed under the head of Vege-
table Poisons ; and finally, by (what may certainly happen)
pregnancy occurring, and its term corresponding to the above
era.   As to natural sleep, I totally disbelieve its possibility
with a pure person.   The medical faculty of Leipsic, how-
ever,  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.!

   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,  suffi-
cient  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
   * The Faculty of Leipsic decided, " 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 dor-
 miunt, qui clausos et conniventes 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. 
198
RAPE.
without knowing or  partaking of  the' enjoyment that is in-

sisted 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 to

ascertain this, the  punishment  of the criminal be delayed

till the requisite time.*
   The  law  is  in accordance  with  the opinion advanced

above.   Fodere  mentions that  there is a decree of the par-

liament of Toulouse, which  decides in  the affirmative  and

that  on  the opinion of physicians  who reported, " Posse

quidem voluntatem cogi, sed non naturam, qua semel irritata

pensi  voluntate fervescit, rationis, et voluntatis sensus amit-

tens."\  The English law anciently appears to have consid-

ered pregnancy as destroying the validity of the accusation.

Dalton quotes Stamford, Britton  and Finch, in favor of this

 opinion; but later  writers,  and  in  particular Hawkins and

 Hale,  question  its  correctness,  and  deny its being law.|

 " It  was  formerly supposed," 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."§


   * 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 impregna-
 tion should take place in the case of a rape, or where there is a great repug-
 nancy on the part of the  female; for there may be so high a tone of constitu-
 tional orgasm as to be beyond the control of the individual who is thus forced,
 and not to be repressed even by a  virtuous recoil, or a sense of horror  at the
 time."  (Good's Study of medicine, vol. 4, p. 100.)
    t Fodere, vol. 4, p.  360.           X Burn's Justice, art. Rape.
   § East's Crown Law, vol. 1, p. 445.
   In  connection with this, it has been inquired  whether pregnancy may fol-
 low defloration?  I apprehend that  this is to be answered in the affirmative,
 although the instances 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 dis-
 believe 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. 
RAPE.                         199
  A few words  are necessary on  the crime against nature,
and they may be properly introduced here.*  It may be re-
quired to examine  the individual on whom it has been com-
mitted.   If without consent, inflammation, excoriation, heat
and contusion will probably be present.   The effects of a
frequent repetition of the  crime, are a  dilatation of  the
sphincters, ulcerations on the  parts, or a livid  appearance,
and thickening.   It  has  been suggested,  that  secondary
symptoms  of lues  might  be mistaken  for  these; but I am
hardly of this opinion.  No man, however,  ought to be con-
demned 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.
  " Ce qui rend un premier coit infructuex, (says Metzger, p. 486,) c'est a
mon avis, la precipitation de l'homme, bien plutot que la douleur qui suit la
defloration.  Knobel  est egalement de cet avis."
  *  The following extract is curious, and for want of abetter place, I subjoin
it here: "De tous les crimes contre les personnes, l'attentat a la pudeur est
celui pour lequel Pinfluence des  saisons est le plus evidente.  Sur 100 crimes
de cet espece, on en compte en 6te, 36; au pnntemps, 25; en automne, 21;
et en hiver, 18 seulement."  (Guerry. Essai sur la Statistique Morale de la
France.  Paris, 1833.  Page 29.)
  t  Zacchias, vol. 1,  p. 382. FoderS, vol. 4, p. 374.  Mahon, vol. 1, p. 138.
                            NOTE.
  Alleged Rape.  I am indebted to the kindness of Dr.  D. B. Bullen, of
Cork, for the narrative of the following case.  He  was pleased to transmit a
copy of it, published in the Dub.'in Medical Press, of March 25,1840, through
my brother,  Dr. John B. Beck, of New York.
  At the Cork Spring Assizes of 1838, two brothers, of the name of Callag-
han, were tried before  Sergeant Greene upon a charge of having violated and
otherwise abused a woman of the name of Sarah Fleming. The accused were
respectable persons.
  The prosecutrix testified that she was married, had a child in the house of
industry and two others (girls) elsewhere. She had been acting in the capaci-
ty of nurse-tender in the North Infirmary, from which place she was return-
ing on the evening previous to the morning of the alleged outrage, when she
was accosted on the North Bridge by a man, who told her, among other things,
that her sister was coming from  Clonmel, and was taken ill on the road, and 
200                           RAPE.
that he was looking for her.  Hearing this, the witness accompanied the man
to several  places and  he entered  a house, from  which returning,  he said
" She is not there."  They walked together until they arrived at Mallow Lane,
when the clock having struck twelve,  she became alarmed, and said she
wished to be at her lodgings.   She  however remained with him, as it appears,
a half an hour, and during all this time his language, as she stated, was pro-
per.  A woman now came up,  and  said,  " Is that  you, Bill ?" to which the
man replied, " This is  my sister,"  adding, " this woman (witness) wants to
sleep  with you;" and she said, " Yes, and welcome." After some further
conversation, the clock struck one, when another man came up, and they
whispered together.  They soon made off, and arriving at a lane near Domin-
ick street, the first man pushed her in, upon which two other men came up,
one of them disguised with  a cap, which nearly covered his face.  Sne
thought of  the Callaghans at this time, one of them being  lame.   Becoming
alarmed, she clung round the first man, when Patrick Callaghan knocked her
down.  Here the prosecutrix described the outrage, which she said was par-
ticipated in by all three.  She swore also,  that not only had the prisoners
committed the offence charged, but that they had subsequently treated her in
a manner the  most brutal.  They  then tied her up to the wall, leaving her
exposed; and that in that state  she was found  in the morning; that she had
lost her senses, which did not return to her until she found herself in the in-
firmary.
  The principal facts elicited on her cross-examination were, that she admit-
ted having acted improperly with three different men.  The present was the
third time she had appeared against the Callaghans in a court of justice; the
first time was when she prosecuted  Patrick for an assault upon her daughter, a
child  eleven years old,  when he  was convicted and sentenced to six months'
confinement.   She had been offered money as an inducement not to prosecute,
but she refused it.  The next prosecution was for an assault on  herself at
Mallow Lane,  when they were acquitted.  During the assault she neither
screamed nor  bawled.   She could not do either, as  they  fastened a rope
around her neck, and stuffed her mouth with hay.
  Nicholas Duggan deposed, that  on the morning in question, between four
and five o'clock, on proceeding from his own house, he saw the prosecutrix
in the position described  in her  own evidence; that he met a woman lower
down  in the lane, whom he begged for God's sake to relieve the prosecutrix from
the state in which she was.  When released, she whispered the  woman to
send for Sergeant Robinson.
  Constable Robinson described the condition of the prisoner.  He had her
removed to the infirmary, and took her statement.   He then  proceeded to
arrest the Callaghans, at seven  o'clock, but did not obtain admission into their
house for half an  hour.  Patrick  appeared  pale  and  frightened.  He took
them  into custody, and gave them in charge to the police.  One of the brothers
said, " I suppose this is Sarah Fleming again."
  The medical testimony is thus  given  by Dr. Bullen.   When this woman
was brought to the North Infirmary, on the 22d of September, she continued
for sometime  in a state  of apparent insensibility.  Her mouth was  stuffed
with a quantity of dry grass, and a piece ot cord was firmly tied across it in
the manner of a gag.  On her  chest were slight contusions, and the wrists
were firmly hound together  with pieces of thick  whip-cord.   On removing
her clothes, the neck of a common black  bottle fell from between her thighs
upon the floor.  When questioned  after some time, as to the cause of being
found  in this situation, she told pretty  nearly the same story as detailed at
the trial, with some particulars which did not appear in her evidence.  She
said that after  each of the three Callaghans had violated her, they forced
either a stick or some other hard substance, and afterwards the neck of a com-
mon black bottle into the vagina; that they stuffed her  mouth with grass and
gagged her; that they bound her wrists together, and having tied her clothes
above  her head, suspended her  by the cords from the railing of the window,
where the  watchman found her.  Dr. Howe, under  whose care she was
placed, made  a strict  examination of her person  a  few hours after  being
brought into the hospital.  There  was no mark of bruises upon her thighs,
nor any appearance of  violence  about the pudenda.  Considerable indenta- 
RAPE.                            201
tions had been left about the wrists where the strings had been  tied, and
when a hand was applied to the contusions on  her chest,  she  screamed and
appeared to suffer great pain.  She expectorated bloody saliva in  quantity,
and with consummate art developed the several symptoms  which maybe ex-
pected to follow the injuries she pretended to have received.
  Dr. Howe distrusted her story from the commencement,  but  the consistent
and collected manner in which she told it, and the extraordinarj facility with
which she simulated the appearances of disease, made a strong impression in
her favor on the minds of many.  It was  resolved to seem to  place implicit
reliance on the truth of every thing she said, and to treat her with the greatest
commiseration.
  About ten days after her admission into the hospital, a little before the hour
of visit,  a stream of water was seen flowing from under  her  bed;  on being
asked what was the matter, she said " she had lost all power over thebladder,
having felt it tore when the Callaghans forced the bottle into her body."  Dr.
Howe immediately passed the catheter into the urethra, and making an exami-
nation,  per vaginam, found  the parts in a natural and healthy state.  Two
days  after  this occurrence,  she began again to expectorate  bloody saliva,
spitting upon the  floor  so as to attract attention, and complained of severe
pain in the chest, the consequence, she said,  of the injuries  she received on
the night of the assault.  Her mouth being examined, it was evident that her
gums had been scratched, and that the bloody saliva had  been produced by
sucking them.
  She was now taxed with deceit, and accused of having invented a false and
horrible tale, with intent to swear away the lives of three innocent men.   She
listened with an air of calm resignation,  and replied with  gentleness, " God
forgive you, gentlemen; wait awhile, and you shall see how you wrong  me."
That night when it became dark she found her way into  the  Lock Ward of
the infirmary, from which she was turned out by the nurse  tender. The eve-
ning after, Dr. Bullen (who is a surgeon of the infirmary,) paid a late visit to
the hospital, and missing  Sarah Fleming from her bed, he searched for her,
and found her again in the Lock Ward; being asked what  she wanted there,
she appeared much  confused and made an equivocating answer. In a week
after, having been reproached as an impostor, and subsequent  to her noctur-
nal visits to the Lock Ward, she requested Dr. Howe to examine her, as she
felt some soreness about the vulva.  He did so, and found venereal chancres,
apparently  in  the first state  of formation.  Hearing the character of these
sores  pronounced,  the  woman triumphantly exclaimed, "See, gentlemen,
how you wronged an innocent woman ; as God may judge  me,  I got this dis-
order from the Callaghans the night they assailed me."  Information of this
circumstance  was immediately conveyed to the prisoners, who had been con-
fined in prison since the 22d, and they were examined by the late Dr. Evans,
who gave a certificate that neither of the three brothers presented the slight-
est trace of the venereal disease.
  As the testimony of Dr. Howe, and the certificates of Drs. Evans and Hev-
enden, both since dead, showed that no indication of violence to justify the
charge of it  had  been discovered, the  prisoners were  acquitted. Sarah
Fleming was committed to the city jail, upon an indictment for  perjury.
  In May, immediately following these March assizes, Dr. Bullen  took the
medical charge of the prisoners in  the city jail, for his friend, Dr. Nugent,
who had gone to London.   He found Sarah Fleming, in the infirmary of the
prison, confined to bed, in  consequence, as she asserted, of the injuries she
had received  on the night when assaulted by the Callaghans.  When she was
informed that  she  was to be placed  under bis care, she broke out into the
most violent invective and abuse, and said, " that as he had helped to ruin her
character in the North Infirmary, he was now come to persecute her to death
in the prison."  After some days, she  appeared really ill,  and  he succeeded
with some difficulty in calming her  indignation.   She seemed to be suffering
under some very severe abdominal  disease.   There was great  swelling and
tenderness  of the whole belly, but more especially above the pubis.  The
stomach was extremely irritable, immediately rejecting every thing she swal-
lowed.  Her pulse  130, and  very small;  tongue foul  and parched; skin hot
and dry.  Dr. Bullen asked to see her  alvine evacuations,  which fortunately 
202
RAPE.
had been kept, and found them perfectly natural.  On seeing him smile,
she said quickly,  " You may smile,  but  look  at my urine."  The urine
was abundant, but heavily loaded with ropy mucus, and deeply tinged with
blood.   In the bottom of the chamber-pot was a very curious looking sedi-
ment, which he found to consist of powdered mortar and ashes.  He inquired
if she was menstruating, and found she was not;  but  the nurse-tender told
him that there was a  discharge  from  the  vagina  of an extremely offensive
character, and her linen was marked with  a muco-purulent discharge.  The
appearance of the  urine was both  perplexing and suspicious.   On the one
hand, the ropy mucus and blood mixed with  it, and the tenderness on pressure;
and, on  the other, the powdered mortar and ashes.  Dr. Bullen  directed her
bed to be placed in the centre of a large room, removed from the walls and
fire place.  He ordered her to be closely watched, and all her discharges to
be carefully removed and put aside for examination.  The next day, she was
alarmingly ill; the tension  and pain of the abdomen  had much increased.
She could not bear the slightest  pressure over the pubis, and the discharge
from the vagina was much increased and very offensive.  In spite of the most
determined resistance on her part, he made an  examination per vaginam, and
found it completely blocked up with a large solid body, which, with much
difficulty, he extracted, and found  to be a large rough paving stone!  The
miserable woman  turned to him and exclaimed, " God forgive you; that is
the stone the Callaghans forced into my body, and the doctors at the infirmary
could not make it out."
  Mr. Dillon, Demonstrator at  the Royal College of Surgeons, Dublin, had
accompanied Dr. Bullen,  that day,  to  see  the prisoner, and  assisted him in
removing the stone, which weighed seven ounces.  It must have been lodged
for some time in the vagina, as it was thickly coated with a white calcareous
incrustation and layers of thickened mucus.
  For more  than a week her life was in imminent danger.  High inflamma-
tion of the uterus  and coats of the bladder, involving the peritoneum, took
place, accompanied by deep ulceration and sloughing of the mucous mem-
brane of the  vagina;  and for some days,  the case had every appearance of
terminating in recto-vaginal fistula.
  The infirmary of this  prison  opened into a garden, to which the sick pri-
soners had access, and in this garden  were heaps  of stones similar to those
taken from the prisoner.  For the three months during which Sarah Fleming
remained under Dr. Bullen's care,  she continued  perseveringly to simulate
various  diseases with great  perseverance  and remarkable fidelity of execu-
tion ;  all evidently with the design to multiply proofs of the injuries received
from the Callaghans.
  At  the ensuing August Assizes, she was tried for perjury, convicted, and
sentenced to  transportation.  " Mr. Murphy,  governor of the city jail, in-
formed me afterwards, that from the moment of conviction, the demeanor of
this woman became completely changed, and that the  report of her conduct
on the passage to New South Wales was extremely favorable."
  Remarkable as is this case for  the malignant perseverance of the accuser,
and improbable  as the occurrence of a similar attempt may  seem, yet it
should not be forgotten that the lives of the Callaghans might have been for-
feited, had not an immediate examination been made by Dr. Howe. Not only
in Ireland, but, I think, in some parts of  this country, accusations  of rape
are increasing.  They are very readily preferred, and they depend for  proof
on the testimony of the accuser alone.  Should it not be required  that an
early examination be made in these  cases by a medical practitioner,  and in
default  of a speedy application for that purpose, that the charge be  propor-
tionably discredited ? 
CHAPTER VI.
                          PREGNANCY.


1.  Laws of various countries concerning the presence of pregnancy in civil
  and in criminal cases. 2. Signs of real pregnancy—reasons of the difficulty
  of ascertaining it in medico-legal cases. Notice of the principal signs : En-
  largement of the abdomen—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 term—variety as to its occurrence:  Examination of the  state of the
  uterus—of its neck by the speculum : examination of the vagina;  condition
  of the blood, urine, and salivary glands :  Auscultation—directions for its
  application.  Impropriety of relying on any single proof of pregnancy—ex-
  tra  uterine  pregnancy—pregnancy complicated with dropsy.  Concealed
  pregnancy—pretended pregnancy : Circumstances to be noticed—the age of
  the individual—state  of the menstrual function—variety in the period of
  its commencement and its return. Diseases that may be mistaken for preg-
  nancy—moles—hydatids—physometra, &c.  3. Superfcetatiost. Cases
  that have been deemed instances of it:  A blighted and a perfect foetus—
  different colored children—children born at considerable intervals.  Ex-
  planation of  these cases by the opponents of the doctrine.  Double uteri.
  Application of superfcetation in legal medicine. 4. Whether a female can
  become pregnant, and remain ignorant of it until the time of labor: 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 honor, 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 favor and  against the

doctrine of  superfcetation.   And,

   4.  Some questions arising out  of the previous examination.


1. Of the laws of various countries which relate to  the presence
                        of pregnancy.

  The Roman  law exempted a condemned female from pun-

ishment,  if  she was  pregnant, until  after her  delivery— 
204
PREGNANCY.
" 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 preg-
nancy.  One is a proceeding at common law,  " where a
widow is suspected to feign  herself with child, in order to
produce a supposititious heir to the estate.   In this instance,
the heir presumptive may  have a writ de ventre inspiciendo,
to examine  if she  be with child or not; and if she be, to
keep her under  proper restraint until delivered;  but if the
widow be, upon due examination, found not pregnant, the
presumptive heir shall be admitted to the inheritance, though
liable to lose  it again on  the birth of a child within forty
weeks from the death of  a  husband."
   The interest that cases of this nature sometimes occasion,
and the precautions that  have been taken in England, may
be learned  from the following report.  Sir Francis Wil-
loughby died, seised of a  large inheritance.  He left  five
daughters, (one of whom was married to Percival Willough-
by,)  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 descended  to  them.  Percival Wil-
loughby prayed for a writ de ventre inspiciendo, to have the
widow  examined; and the sheriff of London  was accord-
ingly 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 safely to keep
her in  such an house, and that the  door should be well
guarded;  and that  every day he should  cause  her to be
viewed  by some  of the women named in the writ, (wherein
ten were  named,) and when  she  should be 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 ac- 
PREGNANCY.
205
cordingly he had caused her to be kept, &c, 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 convict-

ed, and pleads her pregnancy,  though this is no cause to stay

the judgment,  yet  it is to respite the execution  till she be

delivered.  " In case this plea be made in stay of  execution,

the  judge must direct a jury of  twelve matrons,  or  discreet

women,  to ascertain the fact, and if they bring in their ver-

dict, quick with child, (for barely, with child, unless  it be alive

in the womb, is not sufficient,) execution shall be staid gen-

erally till the next session, and so from session  to  session,

till either she is delivered, or proves  by the  course of na-

ture not to have been with  child at all."!

   " Here (says Dr. Paris) the  law of the land  is at variance

with  what we  conceive the law of nature, and it is at 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 estate  from the  moment  of its conception, and yet be

hanged four months after for the crime of its mother."J  In

 the  striking  language  of  Dr.  Kennedy, " the  maxim of


   * Croke's Elizabeth, p. 566.  See also, in the matter of Martha Brown, ex
 parte Wallop, in Brown's Chancery Cases, vol. 4, p. 90 ;  ex parte Aiscough,
 Peere Williams' Reports, vol. 2,  p. 591, ex parte Belief, Cox's Chancery
 Cases, vol. 1, p. 297. Another case of the same nature has very recently oc-
 curred in England.  Mr. Fox of Uttoxeter, died aged 60, in May 1835, leav-
 ing a widow to whom he had been married about six weeks.   Shortly after-
 wards, she announced herself with child,  and the presumptive legatee applied
 for the writ de ventre.  He did not ask for  the old writ of a  mixed jury of
 matrons and men, but only that she should be examined by some professional
 man of his own  selection.  The widow opposed it, but said she was willing
 to answer any questions.  The surgeon  who had attended Mr. Fox, swore
 that he had examined Mrs. Fox, and believed her to be pregnant. He also
 expressed his apprehensions, if an additional examination was persisted in, of
 peril to her health, and to the life of the  unborn infant. The Vice Chancellor
 (in whose Court this case occurred) let it stand over for a month, but as there
 was then  no arrangement between the parties, he directed the master to ap-
 point two matrons, who with a medical man on each side,  should visit Mrs.
 Fox once a fortnight, giving her two days notice of each visit.  At the end of
 the usual period she was delivered of a son and heir.  London  Med. Gazette,
 vol. 16, p. 697.   Vol. 17, p. 191.
   N.B. If the parties here be the same as those in the case of Marston v. Roe,
 on the Demise of Fox, (8 Adolphus and  Ellis Reports, p. 14,)  and I have no
 doubt of it, then this child must at least  have been prematurely born.  John
 Fox  married February 21, 1835, and died May 11.  The child was born Oc-
 tober 16,  1835, equal to 240 days.
   t Blackstone vol. 4, p. 394, 395.
   X Paris, vol.  3, p. 141. 
206
PREGNANCY.
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 unmerited fate."   Nor is the evil confined to
this.  The manner of administering the law, is equally re-
pugnant to the dictates of humanity and  justice.   " A jury
of twelve matrons or discreet women," are little calculated
to decide on  the presence or absence of pregnancy, at the
very period when, (as we shall hereafter see,) there is often
the greatest  doubt.   A few examples will strikingly illus-
trate  this.   Ann Hurle, condemned for  forgery at the Old
Bailey, in 1804, as a  last resource, plead pregnancy.  She
contrived so to baffle the skill of the female examiners, that
they could not  come to any decision.   The sheriff had re-
course to the judgment and experience of Dr. Thynne, who
declared that she was  not pregnant, and she was executed.
In a case that  happened in  Ireland, where also the female
jury could not  decide,  some of them were  unmarried, and
not one of them ever attended a lying-in case.   (Kennedy,
p. 195.)   But they are sometimes  not contented with the
confession  of ignorance.  At Norwich, (Eng.) in March,
1833, a murderess plead pregnancy.  Twelve married wo-
men, 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,
fearing  that  there might be a mistake, waited on the con-
vict,  examined  her, and found  her not only  pregnant, but
quick with child.  They ascertain this by manual  examina-
tion.   On a representation to the judge, she was respited;
and on the 11th of July, was safely delivered of a living
child.*
   In a recent case (Regina v. Wycherley, 8 Carrington and
Payne, p. 262,) I find a new definition laid down.  The de-

  * 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 ingenious-
ly 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 Eng-
land. 
PREGNANCY.
207
fendant was  found  guilty of murder.  She urged in stay of

execution, that she was pregnant.  A jury of matrons was

impanelled, and they came into court and asked the assist-

ance of  a  surgeon.   The judge  (Baron  Gurney) granted it,

and in his  examination of the surgeon, he said  " quick with

child" is having conceived.   " With quick child" is when the

child has  quickened.  The  jury found  a  verdict that the

prisoner was not quick with child.

   In  Scotland, a pregnant female is entitled to have sen-

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

delivery takes place; and that equally whether she be quick

with child  or not.*

   Fodere and Capuron appear to have examined every law

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

The civil code, sect. 185, declares, that  no female shall be

allowed  to  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 parties, have attained the required age;  and 2, when

the female, although not of the required age, has  become preg-

nant  before  the  expiration  of six months.  The penal code,

 sect. 27, also  declares, that if a  female, condemned to die,

 states that she  is  pregnant, and if it be proved that she is


   * 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 pregnans 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 interroga-
 tories and otherwise," it is directed, among other things, that no examination
 or deposition shall be read in evidence, unless it shall appear to the satisfac-
 tion of the judge, that the examinant or deponent is unable, from permanent
 Bickness, or  other permanent infirmity, to attend the trial.  In the case of
 Abraham v.  Newton, (8 Bingham's Reports, 274,) the question came up, whe-
 ther  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 affi-
 davits of competent persons, that the delivery will probably happen about
 the time fixed for the trial of the cause. 
 208                    PREGNANCY.

 so, she shall not suffer 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.*   I may, however, 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 execution, or commute it, by imprison-
 ment for life in the state prison."!

 II.  Of the signs of real pregnancy, and of concealed and pre-
                     tended pregnancy.
  In  the ordinary practice of medicine, but little difficulty
 ever  occurs in ascertaining the presence of pregnancy.  The
 female,  when she  consults a  physician, is frank in  her
 avowal  of the symptoms present;  and  from her  narrative,
 an  opinion sufficiently accurate can generally be  formed.
 The reverse, however, takes place in legal medicine.   Here,
 pregnancy may  be concealed  by unmarried  women, and
 even  by married ones under certain circumstances, to avoid

  * Fodere, vol. 1, p. 421 to 432.  A law, passed on the 23d Germinal, year
 3, (1795,) was still more mild in its provisions. It prescribed that no woman
 accused of a capital crime, should be brought to trial, until it was properly
 ascertained that she was not pregnant.  In conformity with this, the court
 of cassation reversed several decisions of inferior criminal courts, where it
 appeared that the female had not been properly examined; and  it seems, in-
deed, that it demanded proof, that in such cases the examination had always
been made.  (Ibid., p. 428 to 431.) This is  probably abolished, as no men-
tion is  made of it in the code now in force.
  t Revised Statutes, vol. 2, p. 658. In China, " Torture and  death cannot
be inflicted on a pregnant woman, until one hundred days after her confine-
ment."  The Chinese, by J. F. Davis, vol. 1, p. 229. 
PREGNANCY.
209
disgrace, and to enable them to destroy their offspring in its
mature  or  immature state.  It may also be pretended, to
gratify  the wishes  of  relatives—to deprive the legal suc-
cessor of his just claims—to extort money, or to delay the
execution  of punishment.
  Neither  of these can be properly investigated, without
recurring  to the signs  of real pregnancy, and this remark
deserves  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
deceive the examiner, and her testimony, which in ordinary
cases, is so much relied on, is  here suspicious, or  not to be
credited.                              •
   Mahon  has  suggested a useful division of the  signs  of
pregnancy, 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  irrita-
bility of temper, melancholy, a languid cast of countenance,
nausea, heart-burn, loathing of food, vomiting in the morning,
an increased salivary discharge, feverish heat, with emacia-
tion  and costiveness, occasionally depravity of appetite, a
congestion in  the  head, which gives rise  to spots on the
face, to  headache,  and  erratic  pains in  the face and teeth.
The pressure of increasing pregnancy, occasions protrusion
of the umbilicus, and sometimes varicose tumours, or  ana-
sarcous swellings  of  the lower extremities.  The breasts
also enlarge, an areola, or brown  circle, is observed around
the  nipples, and a  secretion of lymph, composed of milk
and water, takes place.
   All of these do  not  occur in every  pregnancy, but many
of them in most cases.

  * Mahon, vol. 1, p. 142.  In considering this subject, I rely mainly on the
opinion of men skilled in the science of midwifery, and accordingly have par-
ticularly noticed the works of Dr. Kennedy, (Obstetric Auscultation.)  Dr.
Gooch, (Diseases of Women, chap. 3, and Midwifery.)  Dr. Davis, (Obstet.
Medicine.)  Dr. Blundell, (Lectures.)  Dr. Denman.  Dr. Hamilton.  Dr.
Dewces.  Dr. Ashwell.   Dr. Ryan. Mr. Hogben.  Professor Capuron.  Dr.
Montgomery, (Cyclopedia of Practical Medicine, art. Pregnancy.) Dr. Mer-
riniun. Dr.  Churchill.   Dr. Dubois.  Dr. Rigby.
                    14 
210
PREGNANCY.
   The changes that affect the uterus, are—a suppression of
the  menses.   These  cease returning  at  their  accustomed
period.  An augmentation of the  size of the womb.  This
is not perceptible until between the eighth and tenth weeks.
At that time,  the  foetus, with  the surrounding  membranes,
and the waters contained in them, so enlarge it, that it may
be felt lower down in the vagina than formerly; nor does it
ascend,  until  it becomes so large as  to arise out of the
pelvis ; and this is accomplished at about the fourth month.*
In the intermediate spaceman examination per vaginam, will
discover the uterus to be  heavier and more resisting; and
by raising it on the finger, this indication will be  particularly
remarked between*the third and fourth months.   " In  gene-
ral in the fourth month, the fundus of the uterus may be
felt, especially in a thin person, above  the  anterior wall
of the pelvis."  The enlargement continues, and becomes
visible during  the fifth month,  it rises  to  half-way between
the symphysis pubis and the umbilicus;  in  the  sixth month
(seventh according to  some  authors) it  is  as  high as  the
umbilicus ;  at  the seventh, half-way between the  umbilicus
and  scrobiculous cordis, and at the eighth, 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 hereaf-
ter noticed.  The vagina is also subject to alteration,  as its
glands throw  out more mucus, and apparently  prepare the
parts for the passage of the foetus.
   These, as now stated, are the signs of pregnancy  usually

  * " In pregnancy, the uterus does not rise out of the pelvis, before the third
month."  (Gooch, Diseases of Women, p. 209.)
  t I have adopted the periods stated by Dr. Montgomery for these changes.
It is proper, however, to add that some writers on midwifery postpone the
three last to a month later in each case.
  X " The uterus,  at the end of the third month, generally measures from the
mouth to the fundus, above five inches, one of which belongs to the  cervix;
on the fourth, it measures five inches from the fundus to the beginning of the
neck; in the fifth, about six inches from the cervix to the fundus.  In two
months more, it measures eight inches, and at the ninth month, ten or twelve
inches, and is oviform in its shape."  (Ashwell on Parturition, p. 137.) 
PREGNANCY.
211
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 examine 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 pro-
ductive of great depravity in manners, and particularly for
the concealment of pregnancy.*   Another circumstance that
may lead to error, is the variety that exists with respect to
corpulence or peculiarity 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 enlargement is  the result  of preg-
nancy or of disease.   If the former, it has generally some
peculiarities, which serve to distinguish it.   The  enlarge-
ment  is progressive from the fourth  month  to delivery; and
by the fifth month, it can scarcely pass unnoticed, particularly
if the female be standing.  Recollect also, that the uterus
lays in front  of the abdominal  cavity, and  occupies the
lower and middle parts.   It grows from  below upwards,
and 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.
  f Gooch, Blundell, Velpeau.  " I will give you a little advice as to the un- 
212
PREGNANCY.
  But the  enlargement  may  originate from disease—from
suppression  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 accompa-
nied with imperforate hymen, the abdominal enlargement is
remarkably similar to that of natural gravidity.   It occupies
the  anterior  part of the  abdomen,  and presents the  same
character as  to resistance and  hardness, as is  given by the
pregnant uterus.   It also gradually ascends, and is accom-
panied by no distinct fluctuation, as in ascitic dropsy.   Pain
and vomiting may  also be present.   On the  other  hand, how-
ever, the uterus is found unaltered in  size; no  motion can
be felt by the examiner ;  and above all, the fact of retention
will appear  on inquiry, and the  hymen generally be found
distended.!  So also,  if this  last  be not  present.   The
symptoms  occurring  from  time to time should be carefully
studied.!
  In tympanites, the abdomen is hard and elastic,  and sounds
like a drum  when  pressed ; and there  are  irregular eleva-
tions, which appear  to  roll under  the finger.  Continued
pressure  causes the air to yield before it, which may thus be
married class.  Never give an opinion till six months have elapsed since the
last menstruation.  Do not believe one word they say.  Listen to them as you
would to a jockey praising  his horse. J\"ever rely upon the evidence of
their tongues, but that of their----."  (Gooch's Midwifery, p. 103.)
  * An enormously enlarged kidney was for some time mistaken for pregnancy,
and afterwards for encysted dropsy.  Orfila. Lecons, 3d edit., vol. 1, p. 2S2,
quoted from the History of the Royal Academy of Sciences, 1732.
  t Davis' Obstetric Medicine, p. 106.  He gives a long list of references to
cases of imperforate hymen.
  Dr. Montgomery quotes others and mentions one that came under his own
notice, in a girl of 17.  The abdomen was enlarged, the uterus could be felt
as high as the umbilicus, the breasts were painful, there was  occasional
vomiting, with pain in the back and along the thighs.  On passing the ca-
theter (there was an inability to pass  the urine) an imperforate hymen was
discovered.  (Signs of Pregnancy, p. 51.)
  X An instructive case, showing the doubts which envelope some cases of
suppression of the menses, and the equivocal symptoms to which it gives rise,
is related by Dr. Dewees, in Chapman's Journal, vol. 4, p. 126.  The female
had not menstruated  for a year—her  breasts swelled—she had nausea and
vomiting in the morning, and Dr. D. thought, on examination, that, he per-
ceived motion.  As the female  was unmarried  and irreproachable, proper
medicines were prescribed, which relieved her only for a time.   Finally, on
treating it as a case of ascites, there was manifest improvement, and the dis-
ease ended with a sudden gush of fluid blood from the vagina. 
PREGNANCY.
213
urged from one  part to the other; but the intumescence of
pregnancy is firm and unyielding.
   Dropsy also, when not encysted, is marked by its peculiar
characteristic and local symptoms.  This swelling appears
general over the abdomen, and is not confined to the space
over the pubis.   " It is soft to the touch, wanting the solid
and 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 labored 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 fol-
lowing 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 tumefac-
tion is often distinct in its character from that of the gravid
uterus.   But it may be, that there is«an enlarged ovary with
pregnancy in the same person.  The tumors, says Dr. Gooch,
in such instances, go on growing side by side ;  and he has
known instances where living and  healthy  children were
born, leaving  the abdomen still distended with the ovary.
The case here (he observes) is puzzling.  Suppressed men-

  * Lectures, vol. 2, p. 163.  A case, detected by the application oi the
stethoscope, is quoted from Prof. Elliotson, in Lancet, N. S. vol. 7, p. 656. 
214
PREGNANCY.
struation is common in ovarian dropsy ; the enlargement of
the uterus  maybe  mistaken  for the  ovarian  enlargement;
the child may be feeble or dead, and  protrusion of the um-
bilicus attends each.   Patient and assiduous examination is
evidently necessary,  and a  particular  attention  to all  the
leading proofs of pregnancy.*
   On schirrosity, it is sufficient to remark, that patience and
judgment will generally teach us to  distinguish its peculiar-
ities,  particularly as  it  is accompanied with  striking and
chronic indications  of disease.
   But even if we  have settled  that neither of the  above
diseases is present, and that there is an  actual  tumour of the
uterus, it is not certain that it is caused by a foetus : It may
arise from a mole—from hydatids in the uterus, and various
other diseases  of that  organ.  These remarks sufficiently
prove that enlargement of the abdomen is an uncertain sign
in determining the presence of pregnancy.!   We  have also
  * Gooch, Diseases of Women, p. 239. The following are the remarks of Dr.
Francis H. Ramsbotham on this  subject.  " A dropsical ovary may be eon-
founded with pregnaney, especially as milk is sometimes secreted in this dis-
ease, but the menses most likely will not be suspended.  Besides, the tumour
does not possess the elastic springy feel which characterizes the gravid uterus
when near the termination of pregnancy.   The increase of swelling will be
more or less rapid than the growth  of the womb, and there will be no move-
ment felt within it.  But one of the best diagnostic marks by which it can be
known from other abdominal tumours is the situation it occupied when first
observed.  An enlarged ovary invariably  shows  itself above one or other
groin—the gravid uterus in the centre."   It  may be distinguished from
ascites, in being circumscribed.   In ascites also, there is a diminution of urina,
—but not so in an enlarged ovarium  unless it has made great progress, and
then in consequence of pressure.  London Med. Gazette, vol. 16, p. 645.  " If
there be enlargement of the ovary, independent of pregnancy, the uterus will
be found forced so low down into the vagina, that its actual condition can-
not be misunderstood."  Prof. Hamilton's Practical Observations on Mid-
wifery, p. 29.
  An instance of blighted foetus, probably at the fifth month, but retained
until the eighth, and which was mistaken for a diseased ovary, is related by
Mr. Roberton, in London Med. Gazette, vol. 23, p. 11.   The adbominal tu-
mour appeared above  the right  groin,  in the  right half of the abdominal
cavity.  The diseased condition of the foetus rendered the nature of the case
thus intricate.  A case of schirrous ovary mistaken for pregnancy is mention-
ed in London and Edinburgh Monthly Med. Journal, vol. 2, p. 71.
  t Nor must we always suppose that a sudden reduction of size after enlarge-
ment, has been owing to pregnancy and its results.  Dr. Montgomery saw "an
instance in a woman separated from her husband, who became affected with
what was considered ovarian dropsy, and which enlarged the abdomen to the
size of six month's pregnancy, some of the other symptoms of which state
were also present.  After an attack of inflammation, during which it is to be
presumed the parietes of the tumor formed an adhesion with the upper part
of the vagina, there took place suddenly a discharge of gelatinous fluid from 
PREGNANCY.
215
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.*


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

considered 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 revul-

sion—the blood, after the cessation  of the menses, being

determined  upwards, in consequence of the connexion that

subsists between the breasts and uterus, through the  anasto-

mosis between 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 cessation  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.)

that cavity, and the abdomen  completely subsided  in the course of a day, and
the previous entertained suspicion appeared to be  confirmed beyond a doubt;
but on examination, the woman had not about her one of the signs of delivery;
yet, had not the case been at  once investigated, loss of reputation at  the least
would have inevitably, though most undeservedly, followed."  (Cyclopedia
of Practical Medicine, vol. 3, p. 503, Art. Pregnancy.) A similar case is
given  in Medico-Chirurgical  Review, vol. 24, p. 206.
  * If an examination at an early period of pregnancy be deemed necessary,
the following directions of Fodere and Mahon should be observed: Empty
the intestinal canal, and let the female lie on her back, with her knees a little
elevated, so as to prevent any tension of the abdomen.  If the woman be not
too fat or deformed, the uterus may be felt through the parietes of the abdo-
men, 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 spheri-
cal form.  If these be present, they.indicate an increase in the 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.
  t John Pearson. (Medico-Chirurgical Review, vol. 4, p. 838.) Denman, p.
227.   As between the two, the alterations in the areola take place at a period
later than when the  enlargement of the breast occurs.  Dr. Heming in Lan-
cet, June 22d, 1844, p. 409. 
216
PREGNANCY.
  A still greater diversity of opinion exists as to the appear-
ance of the areola.  I  will  quote several of  the  leading
authors.   Dr. Gooch says that the dark color 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 complex-
ion.  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 inflam-
mation of the uterus, he had also known this color produced,
together  with fullness  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.  Hunter relied
greatly on it, and asserted that he could judge by it whether
or not a woman was pregnant. "A subject was brought to him
for anatomical purposes;  but on looking at the  breast,  from
the appearance of the  areola,  he declared that the female
died while  pregnant.  One  of his pupils  examined,  and
found that she had a hymen.  This seemed a contradiction;
but  the doctor  still  adhered to  his  opinion, and  thought
more attention due to the former than the latter appearance.
On opening the  body, his assertion proved just, for the
uterus was found impregnated."   {Lowder, M.  S. Lectures.)
  Dr. Dewees deems it  equivocal, except in a first pregnancy;
and he also  remarks, that sometimes  it  is not  present.
Ashwell mentions three instances, in which there was no
pregnancy.
  Dr. Denman was of opinion  that the areola  was present
in many of the complaints which resemble pregnancy, and it
is stated  on high authority, that a completely formed areola
has been seen in cases of dysmenorrhea.*

  *  British and Foreign Medical Review, vol. 4, p. 184.  The reviewer adds,
that Dr. Hugh  Ley was of the same opinion.  Dr. Hohl states that he has
seen females, who have never  had children, where the color of the areola un-
derwent a  change at each catamenial period.  Mr. Laycock confirms this
from his own observation.  (Edin. Med. and Surg. Journal, vol. -CO,  p. 38.)
Sir Astley Cooper has  known an excited  and  diseased state of the  uterus
after marriage, but without impregnation, to produce a swelling  of the 
PREGNANCY.
217
  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-colored nipples—some of
them might  be said to be black;  and the areola around the
nipple,  being  from one  inch to  two and  a half  inches in
diameter, was  of the same color.
  Dr. Blundell relies greatly on it.  He  states that there
are three varieties  of it,  numerically discriminated accord-
ing 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 discre-
pancy that exists on this  point, is owing  to exclusive atten-
tion to one of the characters, viz. the color, and  which he
conceives of all others the most liable to uncertainty.   He
attaches,  however, great importance to the appearance of
the areola as a result of  pregnancy; and I shall  therefore
mention the  circumstances  deemed by him to be character-
istic.
  As early as the second month, he has noticed a  change of
color; but in  general it  is then little more than a deeper
shade of  rose or flesh color, slightly tinged  with a yellowish
or brownish  hue.   During the next two months it is usually

breasts and a discoloration of the areola.   (Medico-Chirurgical Review, vol
36, p. 366.)
  Dr. Wm. P. Buel, of New-York, while he attaches much importance to a
strongly marked areola in a first pregnancy, justly adds : » In  females who
have suckled one or more children, the areola becomes so broad and so strong-
ly marked, that the skin never recovers its original hue."  (American Jour-
nal Medical Sciences, N. S., vol. 7, p. 98.) 
218
PREGNANCY.
perfected, and  varies in intensity with the peculiar com-
plexion of the  individual—being generally much darker in
persons with dark hair, dark eyes and sallow skin, than in
those of fair hair,  light-colored eyes,  and delicate  com-
plexion.  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  ad-
vances.  In  a recent case, Dr. Montgomery found it, at  the
time of labor, 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 color  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
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 cover-
ing the  part is  observed to be softer and more moist (some-
times so as to damp and  color  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 distinct-
ive marks, it ought to be looked upon as  the result of that
condition alone, no other cause being capable of producing it.
  These appearances, says our author, are striking from  the
fifth month  to  the end of the pregnancy.  The breasts  are
generally full and  firm, and  venous trunks of considerable
size are seen ramifying over the surface and sending branches
toward  the  disk of the areola which several of them trav-
erse.  Along with these vessels, the breasts not unfrequently
exhibit, about the sixth month and afterwards, a number of
shining, whitish, almost silvery lines like  cracks ; these  are
most perceptible in women who, having had before concep-
tion very little mammary developement,  have the breasts
much and quickly enlarged after becoming pregnant.
  The  observer must, however, understand that pregnancy
may be present, and  the color be wanting.  In two cases
mentioned and seen  by  Dr.  Montgomery, the areola could 
PREGNANCY.
219
hardly be distinguished in this respect from the surrounding
skin, yet  all  the other changes  just  mentioned were well
developed.   Again, it must  be recollected, that in persons
who have recently 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 color
remains permanent after  a first pregnancy.*
  Lastly, Dr. Hamilton of  Edinburgh relies greatly on  the
perceptible change on the surface of the breasts surrounding
the nipples as a sign of pregnancy in the early months.   In
fair women, when in that state, the areola becomes marked
towards the end of the third month, and it  gradually grows
darker, so that after the fifth month, it is of a brownish tint.
But  in  those  of a dark  complexion, it becomes after  the
third month, so  deep as to resemble old mahogany, while in
swarthy females, where the appearance in  the virgin state
is mahogany  colored, the progress of pregnancy  gradually
converts it  into  a  black  purple.  He adds that  for  many
years,  " the mark  on  which he  has  placed  his  principal
reliance for distinguishing  the true areola consequent  on
pregnancy, from the appearance of the surface of the mammae
peculiar to  the  individual in  the  unimpregnated state, is a
certain degree of turgescence on the surface of the discolored
ring, which becomes more  and more  distinct towards  the
latter end of pregnancy."  Menstruation  may indeed pro-
duce a  certain  degree of  turgescence, but  it  is merely
temporary,  and  he distinctly denies  that the  change  in
question takes place in any  of the complaints resembling
pregnancy.
  I apprehend that the authorities which I have given  on
this  sign, will  incline the reader  to  attach  considerable
importance  to its presence.!

  * Dr. Merriman agrees in considering the formation of the areola as very
conclusive evidence.  He however adds a solitary case occurring to him, in
which the areola  was not developed until the commencement of the  seventh
month.  This was a case of first pregnancy.
  * Gooch's Diseases of Women, p. 201, &c. and Midwifery, p. 100. Dewees'
Midwifery. Ashwell, p. 171.  Lawience's Lectures, p. 449.  Blundell's Lec-
tures. Lancet, N.  S. vol. 3, p. 325.  Montgomery's Signs of Pregnancy, chap.
4.  Hamilton's Practical Observations on Midwifery, p. 46. In a subsequent 
220
PREGNANCY.
   The  secretion  of a milky fluid may occur  without the

presence  of pregnancy.   Hebenstreit  states  that  he  has

known females in whom this fluid was produced by repeated

friction, suction, &c*   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.!  An

account  is also given  in a manuscript in  the  collection  of

Sir Hans Sloane,  of a woman of the  age of  sixty-eight, who

had not borne a child for more than  twenty years,  nursing

her grand-children  one  after  another.!   Similar  cases are

publication, (Letter to Dr. James Johnson,) Dr. Hamilton avows his full con-
currence in the statements of Dr. Montgomery.  A shade of doubt  is thrown
on Dr.  Montgomery's  diagnostics by the remarks of Mr. Laycock in Edin.
Med. and Surg. Journal, vol. 50, p. 38.
  In addition to the sign now considered,  Mr.  Ingleby mentions two changes
connected with it, as indicative of pregnancy and which I may state  in this
place.  " The first consists of a  very scaly state of the cuticle covering the
areola; the second, in a discoloration, not very unlike the areola and partially
affecting  the whole surface of the breasts. The breasts present a curious
mottled or chequered  appearance, of an irregularly brown  hue, with inter-
vening  spaces,  defined in extent, circular  in form and as white as the skin
over the body in general.  The  last mentioned  appearance is strongly pre-
sumptive of pregnancy,"  Tngleby's facts and cases in Obstetric Medicine,
quoted  in Amer. Journal Med. Sciences, vol. 20, p. 435.
  * Hebenstreit, p. 185.
  t Belloc, p.  70.  Dr. Dewees witnessed its  secretion in a female who had
never been pregnant;  Baudelocque, in  a girl eight years old in the village of
Alencon, who  was presented to  the Royal Academy of Surgery, Oct. 1783:
(Midwifery, v. 1, p. 219.)
  X Smith, p. 484.  There are several cases on record of grandmothers suck-
ling: One aged 60.  (Philosophical Transactions, vol. 9, p.  100.)  One seen
by Dr. Stack, and aged 68.  (Philosophical Transactions, vol. 41, p.  140.)—
A negro grandmother aged 70, seen by Dr. Farquhar in the Island of Jamaica.
(Coxe's Medical Museum, vol. 1, p. 267.)   A case by Dr. Montagre in France,
female  aged 65.  (Cas rares, in Dictionnaire des Sciences Medicales.)  A
case by Mr. Semple in England.   The grandmother was 49 years old, and
continued to menstruate regularly during the  time of suckling.  (North of
England Medical and Surgical Journal, vol. 1, p. 230.)  A case by Dr. Ken-
nedy in England,  of a woman who gave suck uninterruptedly from the twen-
ty-fifth  to the  seventy-second year of  her age;  and now  in her eighty-first
year, had still a regular secretion of milk. (Medico-Chir.  Review, vol. 21,
p 202.)  A case communicated to Dr. Campbell by Dr. Steintal of Berlin, a
grandmother of 63 suckling  a  grandchild for seven months.   (Campbells
Midwifery, p. 493.) A case by Dr. Carcagino, occurring in Germany.  Ameri-
can Med. Intelligencer, vol.  2,  p. 323. A case by M. Audebert,  of a lady
aged 62 years, in France. Edinburgh Med  and Surg. Journal, vol. 56, p. 545.
A ease by Dr. Horace Green, of a lady in whom there has been an uninter-
rupted secretion of milk for 27 years, although her youngest child was then
fourteen years of age.  Forry's New-York Journal of Medicine, vol.  3, p. 188.
Dr. Wehr of Cassel relates a case of a female who had borne children, in
whom for six years after, every monthly menstrual period was followed by a
secretion of milk.  British and Foreign Med. Review, vol. 12, p. 558. 
PREGNANCY.
221
mentioned  by Fodere;  and  in  particular  he  relates  an
instance of a female, who, on  the point of being  conducted
to prison  declared herself a nurse.  Although this  was a
falshood, yet  in  a few  moments she produced the requisite
proof.    The author  also  suggests, that immediately  after
the  cessation of the menses, milk  is often  secreted.*
  3.  The suppression of the menses.   This may take place as
already stated, from disease, without the presence of pregnan-
cy ; 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-
  * 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, delivered of a healthy child, after a natural labor.  Since that pe-
riod, her breasts have regularly secreted milk in great abundance; so that, to
use her own language, she could at all times easily perforin the office of a
nurse.   She has uniformly  enjoyed good health;  is now about thirty-five
years of age, and has never proved pregnant a second time, nor had any return
of her menses."
  Dr. Shurtleff, in the Boston Medical and Surgical Journal,  vol. 1, p. 462,
gives a case where the milk  continued flowing for three years after delivery.
Dr. Blundell mentions a similar instance in his Lectures.
  Even men have suckled children.   See the Bishop of Cork's case in Philo-
sophical Transactions, vol. 41, p. 810, where the father had fed his child in
this way.  The bishop examined the  breasts, and found them very large.
Humboldt and Bonpland  saw a similar  case in South America.  The mother
was sick, and the father,  aged 32, put the child to his breast in order to  quiet
it; milk shortly came.  Another well  authenticated  case is  mentioned by
Capt. Franklin in his  Journey to the  Polar Sea, of a young  Chippewyan
whose wife died in labor.  " Our informant," says Sir John Franklin,  " had
often seen  this Indian in  his old age, and  his left breast even then retained
the unusual size it had acquired in his occupation-of nurse."
  A case in Germany, of a young man, 22 years old, witnessed by Dr. Schmet-
zer of Heilbroun.  The secretion of milk was  constant.   London Med. Ga-
zette, vol.  20, p. 846.  See also Dunglison's Physiology, 3d edit. vol. 2, p. 417.
  Blumenbach gives a very rational explanation of  this  occurrence.  The
connection between the uterus and  breasts  seems to depend on  the  anasto-
mosis between the epigastric and  internal mammary arteries, and this anasto-
mosis exists in men as well as in  women.  (Medico-Chirurgical Review, vol.
13, p. 114.)
  There is a curious fact mentioned by Dr. Clarke of Alabama in Dunglison's
American  Intelligencer, vol. 2, p. 19, which bears upon this subject.   A fe-
male who had never borne a child,  was induced  to take charge  of an infant
during the illness of its mother,  and in order to quiet it, placed it to her
bre.ists.  Very shortly thereafter, she  became  pregnant.   Similar cases are
noticed of  animals.
  t Commentaries. 
222
PREGNANCY.
ter mentions of one who became pregnant  before menstrua-

ting,  and  immediately after conception this discharge  re-

turned periodically 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  labor.!  Additional

authorities are given below.

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

Denman deems suppression to be a never-failing consequence

of conception.  Dr. Davis is of opinion that genuine menstru-

ation 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 hsemorrhage  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


  * Fodere, vol.  1, p. 437.  Similar cases are mentioned by Baudelocque, &c.
  f Haller refers to similar cases,  (vol. 7, part 2, p. 142.)  Of authors and
observers in favor 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. Blun-
dell, Lectures; Dr. Power, Medico-Chirurgical Review, vol. 2, p. 413;  Dr.
Montgomery, Cyclopedia of Practical Medicine, Art. Pregnancy; Dr. Ken-
nedy, p.  12, who also quotes a case from Mauriceau.  Cases are related by
Mr. Mayo, (in Middlesex Hospital,) London Med. and Surg. Journal, vol. 4,
p. 179; by Dr. Busch of Berlin,  British and Foreign Med. Review, vol. 5, p.
577; By Dr. Hester of New-Orleans, Philadelphia Med. Examiner, vol. 3, p.
197.  Dr. Churchill in his work on the Diseases of Pregnancy and Childbed.
Dr. Meurer in London Med. Gazette, vol. 27, 303.  Here the female menstru-
ated only during  pregnancy, never during the interval.  Brierre DeBoismont,
in Medico-Chirurg. Review, vol. 40, p. 378.  Dr.  Burrell, Midwifery  Statis-
tics of the Philadelphia Hospital  in American Journal Medical Sciences, N.
S. vol. 7, p. 319.
  Instances resembling those of Deventer, are mentioned by  Dr. Dewees.   By
Stein, (American Medical Review, vol. 1, p. 411.)  By Dr. Busch, of Berlin.
  Dr. Maunsell, of  Dublin, in his report of the obstetric practice at the Wel-
lesley Female Institution,  during 1S32, remarks  thus: " Three cases were
noted,  in which  a  species of menstruation occurred during pregnancy.   In
one, a discharge of blood, which the woman could not distinguish from the
menses, took place regularly every twenty-eight days."  (Edinburgh Medical
and Surgical  Journal, vol. 40, p. 301.)
  Dr. Campbell  (Midwifery, p. 44) had a case  in  which menstruation  was
regular during six months after conception.
  I subjoin the following as I find it: "Dr. J. P. Frank had under his  care a
woman  who had three  healthy children, and yet had  never had  either cata-
menia or lochia." (Quarterly Journal of Foreign Medicine and Surgery,  vol.
4, p. 324.) 
PREGNANCY.
223
blood occur, but not menstruous:   It  has  an  extra uterine
origin; and as the parts are in a state of plethora, the vagi-
nal 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 pregnan-
cy.   When applied, however, in medical  jurisprudence, we
must recollect the remark  of  Dr. Gooch, that whether it be
menstruation  or  periodical  hsemorrhage,  from the  above
cause, or from partial separation  of  the  ovum, the female
cannot  discriminate; and  I  may  add,  the  examiner  will
often be in extreme doubt.
   Menstrual  blood  does not  coagulate.   I  feel justified  in
asserting  this on the authority of Burns,  Denman, Gooch,
Charles 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 recollected that it was  noticed  in the case of Mary
Ashford.
  * Davis' Obstetric Medicine, p. 253.  Dr. Sims denied its existence, except
in the form of manifest hsemorrhage, ibid. p. 257.  John  Burns (edition of
1823) says that the weight  of authority is decidedly against menstruation
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.  Hogben, Merrinian, Ashwell,
and Ramsbotham are of a similar opinion.  The latter, however, mentions in
his lectures, that he has a patient who  always menstruates once after having
conceived, though very sparingly.  London Med. Gazette, vol. 13, p.  268.
  Professor Hamilton, of  Edinburgh, asserts, that suppression of the menses
invariably attends pregnancy during the early months, and of course through-
out its  progress.  He admits, however, that in a few cases, there are ir-
regular bloody discharges during the first  months.  The practitioner, he adds,
may distinguish these last from the menstrual fluid, by attending to three
circumstances—the period of recurrence, the duration, and the quality of
the discharge.  Hamilton's  Practical Observations on Midwifery, p. 45,
and his Letter to Dr. James Johnson.
  In the Boston Medical  Magazine, vol. 2, 367, there is an interesting case
given by Dr. Fisher, which, I apprehend, will assist in explaining this much
discussed discharge.  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 impregnation was suspected, yet the case was found
to be one of tubular pregnancy, and haemorrhage from the placenta had been
the cause of death.
  t Mr. Clarke exhibited some at his lectures, which had remained in a fluid
state for years.  A very  full and able  statement in favor of the  opposite doc-
trine, by Dr. Manley, is contained in  the New York Medical and Physical
Journal, vol. 4, p. 67. 
224
PREGNANCY.
   Dr. Lavagna of Milan states that the menstrual  secretion
differs principally from  blood,  in  containing little  or  no
fibrine.*   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
menstruation  by staining  their  linen  with  blood.    This
deception  was  attempted on him  by  a girl  three months
advanced.!  Dr. Montgomery of Dublin detected the preg-
nancy of a female, who for two months had thus stained her
linen,  by   examining  the  areolse.   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.J
  * Anderson's Journal, vol. 1, p. 624.  See also, Med. Chir.  Review, vol.
24, p. 95.
  This  is denied by Raciborski, who, although he does not deny, that ordi-
narily it does not coagulate, is still decidedly of opinion that the cause is an
accidental one.
  According to the analyses of Bouchardat and Donne, menstrual blood does
not differ in its chemical character from arterial. Hence  the above of La-
vagna is incorrect.  Quoted from  Boismont on Menstruation.  Amer. Jour-
nal Med.  Sciences, N. S. vol. 4, p.  504.
  The fact is certain—the cause is unknown.  Mr. Warwick, (London Med.
Gazette, vol. 33, p. 864,) is disposed to ascribe the non-coagulation, in gene-
ral, of menstrual blood, 1st, to an impaired vitality consequent upon the slow
process of its  elimination, and 2dly, to its mixture with the mucus of the
vagina.
  M. Moreau (Midwifery) considers the menstrual fluid to be pure blood.
  " It has been hundreds of times  shown that the menstrual fluid possesses
none of the properties of blood, but is a true colored secretion ; it does not
coagulate, and whenever  it does,  it is not the proper  menstrual secretion,
and the recent researches of Bischoff, Gendrin, Lee, Negrier,Raciborski, &c,
have satisfactorily  proved that the catamenial secretion attends, and is de-
pendent on the periodic developement of ova in the  ovaries."  Edinburgh
Med. and Surg. Journal, vol. 63, p. 152.
  Simon in his Animal Chemistry,  vol. 1, p. 337, (Sydenham Society Publica-
tion) says:  " The most striking  peculiarities of  menstrual blood are, the
total absence of fibrin and the increase of the solid constituents caused by the
excess of the blood corpuscules."  His editor and translator, Dr. Day, how-
ever, adds, " There can be little doubt there  is fibrin in the menstrual secre-
tion ; its  determination, is,  however, usually rendered impossible by the
presence of a large amount of mucus, which seems to deprive the blood of its
power of coagulating."
  t Belloc, p. 65.  " II faut exiger alors que les parties soient lavees avec de
l'eau tiede ;  si le sang ne reparait pas, le cas  est suspect." (Capuron, p. 81.)
  X Cyclopedia of Practical Medicine, vol. 3, p. 472. 
PREGNANCY.
225
  Notwithstanding the exceptions stated, we should attach
great importance to the absence of the menses as indicating
pregnancy; and the remarks of Belloc on this  point are
deserving of great attention :  " When a female experiences
the suppression, along with other symptoms of pregnancy,
we may consider her situation  as yet uncertain, because
these signs are common to amenorrhcea and pregnancy; but
if; towards the third month, while the suppression continues,
she recovers her health, and if her appetite and color return,
we need no better proof of pregnancy.   Under other circum-
stances, her health would remain impaired, and even become
worse."*

   4. I merely notice loss of appetite, nausea, vomiting, &c.
 &c. to  state  that they are  equivocal.  They  accompany
many  diseases—are  wanting in  many  pregnancies—and
even if present, occur in the early stages, the time precisely
when  no  certain judgment  can be formed.   There are,
however, some points worthy of 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
protrusion of  the navel, in doubtful  cases.  It  emerges, he
 observes,  in pregnancy, until it comes to an  even surface
 with the integuments of the abdomen.   Dubois also attaches
 considerable importance to it.  Mahon, Gooch, and Dewees,
 however,  deny its  infallibility.  It  occurs from dropsy, or

   * Belloc, p. 60.  Smith, p. 485.
   Dr. Montgomery has, however, pointed out  an occasional variety  of sup-
 pression, which of all others is most likely to deceive.  It is the case of young
 and newly married females, who in some instances have no return of the
 menses for two or three months, and the breasts enlarge, and yet at  the end
 of this or a longer period, ordinary menstruation recurs. In some instances
 a gush of sanguineous blood and the ejection of flakes of membranes, resem-
 bling that discharged in dysmenorrhcea, terminate the above series o'f symp-
 toms. It is highly probable, according to our author, that in some, at least
 of these cases, conception has occurred, but the ovum perishing, no evidence
 is furnished of its existence.—Signs of Pregnancy, p. 44.
                     15 
226
PREGNANCY.
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 before the  sixth  month;  and the further the
pregnancy is advanced, the more distinct it will be.

   5. Another sign that has been depended on, is the motion
of the foetus in the womb of the mother.  It is wanting in the
early months of pregnancy, but during the latter ones, may
generally  be ascertained.   This sensation,  however, which
in real  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 water, and applies it
suddenly  over the region of the  uterus.   If the  fetus is
alive,  its  motion  will  be  felt,  evidently  depending on
muscular  power, except according  to  authors where  it is
very feeble, or where the woman is dropsical.  But unfortu-
nately, 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, nervous  irritation,*  or a mole in the uterus, has
been mistaken for it.  A case, showing the  uncertainty of
its occurrence, is related by  Capuron.   A female, with a
 very large abdomen, was received into one of the hospitals
 of Paris.   She was visited by many distinguished accouch-
 eurs, surgeons and physicians.  Some declared  that she
 labored under ascites—others,  that a schirrous and dropsical
 ovarium was present.   An  abdominal pregnancy was also

   * Many of the French writers on  midwifery speak of "fausse grosesse
 nerveuse."
   " The name of simulated pregnancy has been given to some cases of hysteria,
 in which the abdomen enlarges gradually, sickness occurs, and so many signs
 of an impregnated uterus are present, that time alone can solve the doubts
 they raise.  The catamenia are suppressed, the breasts are tumid, and there
 is pain in the back."  Mr. Tate says of these cases : " In what this enlarge-
 ment consists I am utterly ignorant, that it is not merely a mere accumula-
 tion in the colon I know, that it is substantial I am equally sure."  It is, we
 apprehend, a mixed  state of vascular fullness and tympanitic distention."
 Cyclopedia Pract. Med. Art. Hysteria, by Dr. Conolly. 
                        PREGNANCY.                     ^'

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 consultations, a strong and
healthy child was born.*
   It may also be simulated.  Dr. Blundell relates of a case,
in his lectures, which was examined by Lowder, Mackenzie
and other  celebrated accoucheurs  of  their day, and  where
the female had attained  such  skill  in counterfeiting,  that
they declared they  would  have been deceived, if they had
 not by personal examination found the uterus unenlarged.
   The motion of the fetus, 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 be-
 ing immediately after conception,  as at any other time be-
 fore delivery; and  its future progress is but the develope-
 ment  and  increase of those constituent principles which it
 then received.  The next theory attached  to the  term, and
 which is yet to be found in  many of our standard works, is,
 that   from  the  increase of the fetus,  its motions, which

   * Capuron, p. 73, 74.  There are cases " though rare, where it does not
 occur during the whole of pregnancy, although  the child has been born alive
 and vigorous. Of this I have known one instance and read of others." Gooch;
 Diseases of Women, p. 203. A case that occurred to Baudelocque and Vicq.
 D'Azyr is related in Diet, des Sciences  Med. vol. 19, by  Murat, Art. Gros-
 sesse.   Dr. Kennedy corroborates this by his own experience, and also gives
 some striking instances of self-deception. Pages 25-27.
   Dr.  Montgomery says  that two instances have come under his own observ-
 ation of its total absence during the whole period of gestation, notwithstand-
 ing the subsequent birth of living and healthy children, and he quotes parallel
 cases from Levret, Gardien,  Dewees, and Campbell.  Signs of Pregnancy,
 p. 88.
   Prof. Hamilton, however, questions the statement of Dr. Gooch, most em-
 phatically.  " It is to be remarked," he says, " that Dr. Gooch does not say,
 that in that  instance, he made any attempts to excite the movements of the
 infant. The author holds all  those alleged cases to be the offspring of pre-
 judice and credulity."   Hamilton's Practical Observations on Midwifery,
 p. 48. 
228
PREGNANCY.
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 mo-
tion 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
impregnated uterus starting suddenly out of the pelvis into the
abdominal cavity.  This explains several peculiarities attend-
ant  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 mo-
thers  assert,  from  any subsequent  motions of the fetus.
Its  occasional  absence  in  some  females   is  also  readily
accounted for, from the assent being gradual and  unobserv-
ed.!
   This  aubject  will  again  be  noticed in  the chapter on
Abortion.   At present, it will be sufficient to remark,  that
considerable variety occurs as to the time of quickening.
   The extremes are probably from the tenth to the  twenty-
         *  See Denman, &c.
         X  Mr. Royston appears to have been the first that satisfactorily developed
       this opinion to the public, although he gives the credit to Dr. H. S. Jackson,
       of originally advancing the idea.  See his paper copied from the London Med.
       and Phys. Journal, in Eclectic Repertory, vol. 3, p. 25.
         Writers on Midwifery are embracing this opinion.  (See Conquest, p. 38,
       Hogben in London Med. Repository, vol. 1, p. 146; Blundell and Burns;
       Lancet, N. S. vol. 3, p. 104; Dr.  James  in Burns' Midwifery, 1823, vol. 1,
       p. 208; Morley, p 206; Campbell, p. 489; Davis, p. 854.)  Dr. Dewees, how-
       ever, is opposed to it, as is also Dr. Montgomery.  The last distinctly felt the
       motions of a child in utero, while the  mother had no perception of them.
       Here the uterus could be distinctly felt in the abdomen, and yet the mother
       did not quicken  for  nearly three weeks  after.  Dr. Kennedy suggests, that
       it may arise  from either cause, p. 23.
         Dr. Churchill (Midwifery, p. 109,) inclines  to the opinion of the late Dr.
       Fletcher, as  the most probable.  " The movements of the foetus while the
       uterus is in the cavity of the pelvis are not perceived, because the uterus is
•      not supplied with nerves of sensation, and is  surrounded by parts similarly
       deficient, but when it emerges from the pelvis, it comes in contact anteriorly
       with the  abdominal parietes, which are liberally supplied with  sensitive
       nerves, and which by contiguity of substance, feel the movements, and thus
       become conscious of them."
         Is not this a physiological explanation of the opinion  advocated in the
       text? 
PREGNANCY.
229
fifth week.  Dr. Denman observes that it happens from the
tenth  to the twelfth week, but most commonly about the
sixteenth,  after conception.   Dr.  Dewees and  Blundell
agree  that it most  generally occurs nearer  the  fourth than
the third month.  Roederer kept a register of 100 women,
as to the period of probable impregnation, 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
fifth.*   Dr. Montgomery found  the greatest number of in-
stances to occur between the end of the twelfth and sixteenth
weeks, or adopting  another mode  of calculating, between
the fourteenth and eighteenth weeks after the last menstru-
ation.   The earliest cases that he has met with were one of
eleven weeks and two days after conception, and 201 before
delivery; and another, of 198 days before  delivery; while
on the other hand, he has attended  cases where the quick-
ening did not occur until the  sixth and  seventh months.
In one  instance, a lady, in seven  successive  pregnancies,
felt the ehild for the first time in the sixth  month and once
in the  seventh.  Dr.  Ramsbotham  observes  that "if the
woman has  quickened, she has passed  sixteen  weeks  at
least, and is  probably  near eighteen,!   Again, Puzos, a
celebrated continental accoucheur,  says, that it takes place
at the end of two months, but most commonly at the expi-
ration of eighteen  weeks.  Hydropic women,  he adds, do
not observe it until the sixth or seventh month.J  And in a
late trial  for abortion in England,  the medical witness de-
posed,  that it took place at eighteen weeks,  sometimes  in
fourteen,  and sometimes not till twenty weeks, but mostly
at eighteen.  That he never knew it so late as twenty-five,
but it might happen in some cases, at twenty-one or two.§
   The only writer, who according to my knowledge speaks
of any thing like a positive period is Dr. Hamilton.  " More
than forty years (says he) have  elapsed since  I ascertained

  * James' Burns, vol. 1. p. 208.
  t London Med. Gazette, vol. 13, p. 551.
  X Fodere, vol. 1, p. 446.
  § Edinburgh Med. and Surg. Journal, vol. 6, p. 248. 
230
PREGNANCY.
that, in general, quickening takes place  at the completion
of four calendar months after conception."*
  The  discordance  in  the  observations  of  physicians is
readily  explained,  by recurring  to the  cause just  now
assigned.  And we may reasonably suppose that the motion
in question will be soonest felt when the  developement has
been most rapid.   The  practical deduction respecting it, in
a case of supposed pregnancy, is not to pronounce a female
unimpregnated, because  it  cannot  at  once  be felt.  The
examination should be frequently repeated, before a decisive
opinion be given.
  6. Connected with the  previous  sign is an alteration in the
state of the uterus;  and this is ascertained by  what is called
the touch.   It is founded on the following physological facts.
After  conception, the fundus and body of the  uterus both
increase, and thus, from  its becoming heavier,  it will natu-
rally descend  lower down in the pelvis, and project farther
into the vagina.!   The uterus remains in this  situation until
it becomes so  large as to  rise out of the pelvis;  and accord-
inly this temporary abbreviation of  the vagina,  is a sign of
pregnancy, though, of course, an equivocal one.  The body
of the uterus enlarges.   The changes in the neck are also
striking.  In the unimpregnated state  it projects into the
vagina  about  two-thirds  of an inch, (from a  quarter to half
an inch, Montgomery,) like a thick,  firm  and fleshy nipple,
having  at  its  termination  a transverse  opening.   During
pregnancy, it is felt fuller, rounder and softer;  the margins
of the orifice acquire a peculiar  lubricity in  consequence  of
the increased  secretion from the muciparous  glands in that
situation, and the orifice itself feels as if it were circular,

  * Practical Observations on Midwifery, p. 43.  " Sometimes at an earlier
period, but generally between the sixteenth and twentieth week from the last
period of being regular, she feels the motion of the foetus."  Merriman.
  t This is the common explanation, but the Reviewer of Dr. Montgomery
in the British and Foreign Med.  Review, (vol.  4, p. 454,) denies that the ute-
rus actually descends lower into the cavity of the pelvis.   " The os uteri
being low in the pelvis, does not however arise from the descent of the ute-
rus itself, but simply, as Madame La Chapelle has correctly  shown, from its
having increased in size and its  fundus  not yet having ascended out of the
pelvis." 
PREGNANCY.
231
because it has become more yielding.*   At the termination
of  pregnancy,  the   neck  is  completely  obliterated;  the
portion  of uterus  which  lies over the -top  of the  vagina,
no longer  projecting into its  cavity,  but forming  a  flat
 roof.
   This obliteration generally commences in a first pregnancy,
 about the fifth month, but in females who  have had several
 children, the neck yields  more readily, and accordingly with
 some,  it is  much altered  at the fourth,  as it is in  the previ-
 ous  case at the sixth month.!
  * Montgomery, Signs of pregnancy, p. 100.
  Dr. Birnbaum asserts that in many cases, when the orifice of the womb
feels circular, he convinced himself by the speculum, that its  form was in
reality transverse.  The degree of shortening of the cervix uteri is  also accord-
ing to him an uncertain sign.  See notice of Birnbaum on the changes which
the cervix  and lower segment of the uterus undergo in the second half of
pregnancy.   British and Foreign Medical Review vol. 16, p. 184.
  " The changes in the condition of the os and cervix uteri during pregnancy
have been investigated by M. M. Filugelli, Chailly.and Cazeaux.  The results
they have arrived at agree on the whole with those  of Birnbaum.  M.  Filu-
gelli, indeed, appears to have fallen  into the error of imagining  that the cer-
vix uteri becomes  actually elongated in the course  of pregnancy; and M.
Chailly's paper is principally occupied with a refutation of" this opinion; the
slight enlargement which may possibly result from tumefaction of the cervix
at an early period of pregnancy being in his opinion too slight to be appreci-
ated. M. Cazeaux's conclusions are: 1. That a softening of the texture of
the cervix uteri takes place from the very beginning of pregnancy, being for
the first few months confined to its lower part, but extending from below up-
wards, and taking place less rapidly and in a less marked degree in primi-
parae than in those who have already borne children. 2. While this soften-
ing goes on, the cervix dilates; presenting in  those  who have had children
the form of a funnel with its base downwards, while in primiparae it is more
spindle-shaped.  3. The os uteri is closed in primiparae,  until the end  of
pregnancy;  in women who have borne children it is widely open,  forming
the base of the funnel.  4. As a general rule, no real shortening of the cervix
takes place until about the last fortnight of utero-gestation." (West's Report,
in B. and F. Med. Rev., April, 1844.)  "The diagnostic sign in the earlier
months was found in the sealing of the os uteri.  If on examination, the open-
 ing of the os was obliterated, being filled up by a thick glutinous secretion, a
 confident opinion  was given, which was invariably  realized."  (Ashwell in
 Guy's Hospital Reports, 1, 133.)
   On examination in the virgin state, the anterior lip of the uterus appears
 fuller and more prominent,  whilst the posterior is of greater length.  Great
 diversity  of opinion prevails as to the natural size of the orifice.  Some say
 it is so small as not to admit a probe, others that it will admit the glans penis.
 My own experience would lead me  to say, that the os uteriin the virgin state
 will admit the point of the little finger, (Dr. Wm. Hunter was  of the same
 opinion,) and that in  those who have  borne children, it is generally a little
 larger.   (Dr. Charles Bell, in Edinburgh Med. and Surg.  Journal, vol. 62,
 p. 16.)
   f Gooch, p. 213.  Velpeau  corroborates this, and states expressly that re-
 peated observations and the most carefully conducted experiments have shown
 him that the changes which the cervix  uteri  undergoes during pregnancy,
 vary almost as much as its anatomical characters, in unimpregnated females.
 (London Medical Quarterly Review, vol. 3, p. 92.) 
232
PREGNANCY.
  During the period of these alterations, the vagina is more
elongated, since the uterus  rises farther up.   But  towards
delivery,  this viscus gradually re-descends.   The os uteri
also varies with the changes in the cervix.  The lips gradu-
ally 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
position, that the muscles of the abdomen may be in a state
of relaxation.   The  fore  and  middle fingers of the right
hand are then placed on the cervix uteri, whilst the abdo-
men is to be felt with the left.  The patient should then be
required to breathe deeply, and the examiner should press
gently with his  hand during expiration.   If the uterus be
enlarged, he will feel a hard, globular, resisting mass above
the pubes.  The orifice and neck should also be examined,
and it is particularly advised to jerk upwards the point of the
finger, so as to act gently on the uterine tumour.  A sensa-
tion  of something  receding will be felt,  and which  will
presently fall again  on the point  of the finger.   This is
owing to the  fetus floating upwards a little  in the liquor
amnii, and then descending by its own weight.!  The  best
period for applying this test is between the fifth and sixth
months.
  Such an examination, it will be perceived, elucidates the
state both of the womb  and the fetus.  It is certainly one
of the most unequivocal  modes of ascertaining pregnancy.
But it requires long  habit to become expert at it, and this,
few practitioners will have an opportunity of obtaining.
The most distinguished accoucheurs have been, and probably
will continue to be  deceived with it.   Of this, the works of
Mauriceau and Baudelocque bear testimony, and Fodere re-
lates a case which should make  every physician distrust his

  * Denman, W. Hunter, Burns.
  t Fodere, v. 1, p. 450.  Smith, p. 485.  Hohl in British and Foreign Medi-
cal Review, vol. 1, p. 108. Churchill. The examination may also be made in
the standing position. It is called Ballottement by the French. 
PREGNANCY.
233
skill.  In a hospital where he  attended, a female was de-
tained on  suspicion  of being pregnant.   Several medical
persons visited  and examined her.  Some delared that she
was  in the eighth month of pregnancy, whilst others denied
that she had ever conceived.   She was kept in the hospital
during a whole  year,  and  was then dismissed  as large as
ever.*
   It  has however been  asserted, since the  employment of
the  speculum,  that the  occurrence of previous or present
pregnancy  or the  contrary,  may  be detected  through  its
means  by an examination of the  neck of the uterus.   Dr.
Marc D'Espine of  Geneva, has published his investigations
on this subject, of  which the following is a brief outline.
   The neck of  the uterus in a healthy female who has never
been pregnant  has the form of a small  nipple, projecting
more than it is broad at the base, its color is usually that of
the vagina, and  varies between the pale rose, the rose or the
violet rose shade.  It is never  vivid in a state of health.
The  orifice  always has  the  form either of a triangular or
round  aperture, and is constantly of very  small  diameter,
not  more than one  or two lines.
   There were some exceptions to this general result, since
in a few, the neck was but little prominent or entirely flat.
   If one or two children have been born the neck is found
increased in size, and more or less flattened.  The orifice is
almost linear and not round, and it is dilatable.  The length
of the  orifice is always  three lines and  frequently six or
eight.
   In those who have miscarried, an approach to  the nullipa-
rous has been  observed,  particularly as to the shape of the
neck.  The orifice would seem to become sinuous or jagged,
in proportion to the number of previous labors.!   How far

   * Fodere, vol. 1, p. 451.  Capuron mentions another case in which both
Corvis.irt 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 Dunglison's American Intelligencer, vol. 1, p. 103, from the Archives
 Generales de Medecine, April, 1836. 
234
PREGNANCY.
this mode of examination will be found generally applicable
or correct, remains yet to be determined.
  As to the investigation already described by means of the
touch,  I will only add that there are some varieties in the
conformation of parts that  render this sign useless, or una-
vailable.   The neck of the  uterus is oftentimes seated very
low, both in married and unmarried females, while in others,
it is almost out of reach.  The  near approach of menstrua-
tion and  the accompanying irritation of the uterus, may
also, according to Dr. Montgomery,  effect a change in the
form and texture of the os uteri, similar to that  occurring in
pregnancy; this, however,  is transitory.  Moles and hyda-
tids with several other affections, produce an increase in the
volume of the uterus, and an examination by the touch, may
give an impression very similar to that of a child contained
in it.  But above alla the value  of it is diminished, from the
fact, that it can  be made with  most  readiness at the early
stages of pregnancy, when  the uterus is low down, while at
the seventh month, the uterus has risen high up, and can be
examined with much greater difficulty.   It can thus be ap-
plied with greater certainty of success only at periods when
our opinions at the best must be doubtful.
  7. Several  recent  announcements  would  seem to  show
that we can derive satisfactory information on this  subject,
by  an  examination of the vagina.  I shall  notice them in the
order in which they have presented themselves to my notice.
  Dr.  Kluge, professor of Midwifery  in Berlin,  considers  a
bluish  tint of the vagina extending from the os externum to
the os uteri as a  sure test of pregnancy.   According to him,
this discoloration  commences  with  the fourth week  of
pregnancy, continues to increase  to the period of delivery,
and ceases with the lochia.  The only condition considered
as likely to vitiate this test is the existence of haemorrhoids
in  a very marked degree.   Dr.  Sommer of Copenhagen,
convinced himself of the presence of this particular color in
pregnant women, under the direction of Professor Kluge.*
  *  British and Foreign Med. Review, vol. 2, p. 275. Dr. A'Autrepont ap'
pears also to have added his testimony in favor of this sign.   Lancet, Janu"
ary 6, 1844, (p. 495.) 
PREGNANCY.
235
  Parent-Duchatelet in his remarkable work on Prostitution
in the city of Paris, mentions that M. Jacquemin, had in
examining the public women at the dispensary, discovered
a peculiarity belonging to the pregnant state, viz. a change
of color in the lining membrane of the vagina.  It becomes
of a violet  hue and  sometimes purplish, like the lees of
wine.  M.  Jacquemin  has  never been  deceived in this,
although he has had 4500 cases passing through his hands.*
  Dr. Montgomery, however, in the cases examined by him,
did not find this peculiar appearance always present.  In
some it was so slight, as to be scarcely if at all perceptible.
He also suggests, that  as it is evidently produced by  in-
creased vascular determination, other affections of the parts,
as  menstruation  for example, may  induce  it.  This  he
actually  witnessed in one case.   Dubois concurs in this
opinion.
  Lastly, Professor Osiander  has announced a sign, to which
he is inclined to attach great  importance and which he calls
the vaginal pulse.  " In  pregnancy," he says,  " the arteria
uterina and its branch, the arteria vaginalis, must be neces-
sarily increased in size, and their systole and diastole in
some degree affected by the  process going on in  the  parts
which they  supply.  At that time he has felt the arteria
vaginalis at the posterior border  of the  columna rugarum
anterior, and has  found its  pulsation  to  be  stronger and
harder, and its caliber greater than usual.   During imminent
abortion and other morbid conditions, he  has observed the
vaginal pulse to be quicker than the radial."!
  Dubois  however, while he  allows the possibility of this,
asserts  that an  increased  vaginal  pulse  may  occur,  from
many other causes.
  8. I may add in this place a brief notice of some  equivocal
signs,  but  which  should  not be overlooked in a medico-
legal  investigation.   If present they  assist  in completing
the mass of evidence.

  * De la Prostitution, vol. 1, p. 217.  The author states that he has verified!
this test under the direction of M. Jacquemin.
  t British and Foreign Med. Review, vol. 3, p. 247. 
236
PREGNANCY.
  One is drawn from the appearance of the blood.   Accord-
ing to Dr. Blundell it is generally sizy during pregnancy.
Dr. Montgomery, however, denies  this, and it  probably  is
not a constant occurrence.
  Andral and Gavarret have however shown that the " blood
of females  in  the  later  stages  of  pregnancy, manifest  a
remarkable  tendency to assume  the character of the blood
of inflammation."*
  The secretion from the salivary glands is often viscid, of a
white and  frothy appearance,  and sometimes so  much in-
creased in quantity as to constitute salivation.  Dr. Mont-
gomery, besides his own cases, quotes Hippocrates, Gardien,
Burns,  and  Dewees  in  conformation of  its  occasional
presence.  Dr. Churchill has also noticed it.   It is distin-
guished by  the absence  of sponginess  and soreness of the
gums, and the want of the fetor which accompanies ptyalism
from mercury.!
  A chemical  test, was  1831, announced by  M. Nauche
of Paris, although it is not 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  stethoscope
and an examination per vaginam failed, he was enabled, by
it, it is  said, to predict  the presence  of pregnancy.  Dr.
Montgomery repeated the 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.  Sir  Robert Kane,  at  the request  of
Dr. Kennedy, made a similar  examination, and found the
white flocculent precipitate not  only in the urine of preg-
nant  women, but  also  in equal quantity from  that  of a
female of fourteen, and a woman nursing for two months.
  Mr. Pereira of London also found this substance in the
urine of women far advanced in pregnancy, but not (he adds)
  * British and Foreign Med. Review, vol. 17, p. 148.
  t A remarkable case is related by Mr. Gorham, in London Med. Gazette,
vol. 22, p. 578.
  That it also frequently occurs in hysteria, is established by the references
of Mr. Laycock, in Edin. Med. and Surg. Journal, vol. 50, p. 45. 
PREGNANCY.
237
invariably in that voided  during  the early months.*   M.

Eguiser of Paris, however,  after a series  of extended experi-

ments and observations, asserts  its  existence from the first

month  of pregnancy to   delivery.   The urine   must be

allowed to stand from two  to six days, when minute  opaque

bodies are  observed  to rise  from the bottom to the  surface

of the fluid and to form  a continuous  layer,  so consistent

that  it can be  almost lifted  off  by  raising it by one of its

edges.   It is whitish, slightly granular,  and much resembles

the  fatty substance  that  scums  on soups, after  they  are

allowed  to  cool.  After some days,  small  masses gradually

detach themselves  and  fall  to the  bottom.  The name of

kiesteine  is now given to this  substance.!

   Donne  has also ascertained that the urine during pregnan-

cy contains less  uric acid and  phosphate  of lime—these

being required  for the formation  of the bones of the fetus.|


  * Lancet, N. S. vol. 8, p. 676; Kennedy, p.  57 ; Dr. Cummin's Lectures in
London Medical Gazette, vol. 19, p 483.  Mr. Tanchou has  also proved its
presence in  cases where pregnancy was not suspected, but finally proved to
be present.  Medico-Chirurg. Review, vol. 35, p. 228.   Also Vannoni in 140
cases, American Journal Med. Sciences,  N. S. vol. 7, p. 489, from Revue
Medicale.
  t Edinburgh Med. and Surg. Journal, vol.  52, p. 586.  Dr. Golding Bird
has further verified the existence of this substance in a number of cases of
pregnancy.  He is  inclined to consider it as closely resembling caseous mat-
ter mixed with abundance of the early phosphates in a crystallized state. In
one instance, the pregnant female was laboring under febrile symptoms, and
the urine was scanty.  Not the slightest  appearance  of a pellicle  could be
detected, but on her restoration to health, it reappeared.   Guy's Hospital
Reports, vol. 5, p. 15.  The experiments of Dr. McPheeters  and Perry, resi-
dent physicians at  the Philadelphia Hospital on  upwards  of fifty females,
either pregnant or  not so, are also decidedly in favor  of its  occurrence only
during pregnancy.   American Med. Intelligencer, vol. 4, p.  369.
  Dr. Letheby found it at all dates between the second and ninth months, in
forty-eight  out of fifty cases, and  also in  ten females immediately after de-
livery   London Medical Gazette, vol. 29, 505.  Dr. Elisha K. Kane, of Phi-
ladelphia,  in  eighty-five  pregnant  females,  whose  urine  was examined,
obtained a well marked kiestine pellicle in sixty-eight; in eleven, it was no-
ticed in a  modified form, while in six it was wanting.  He also found it in
forty-four  cases out of ninety-four, during lactation.  American Journal
Med. Sciences, N. S. vol. 4, p. 13.
   X British and Foreign Med. Review, vol. 12, p. 539.   To those who are de-
sirous of experimenting for it the following, by Dr. Letheby, may be useful.
He directs that the urine be obtained when the female is as free from disease
as possible  and that passed early in the morning should be selected.  Expose
this, in a tall narrow glass, to a  temperature of about 70<> Fah   A much
 ower temperature, as 40°, will delay its production  for weeks, 'in two or
three days, if the woman be pregnant, the first indication is turbidness.  In
a day or two more, a thin  pellicle forms on the surface, and this °raduallv
ac,|unes consistenco up to a fortnight.  The odor is peculiar, not like cheese,
as Dr. Bird states,  but like that of raw beef beginning to putrify 
238                     PREGNANCY.

  The reader will find in the notes, an analysis of additional
observations.
  9. I come now, to the application of auscultation to the
impregnated uterus.
  Dr.  Kergaradec of Paris, directed by the brilliant disco-
veries 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 ob-
servers than to verify and strengthen his references.
  The  indications of the presence of a living fetus in the
womb, as derived from auscultation, are two :  1. The action
of the fatal 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.   The pulsations may be perceived as early as
the  fifth, or  between that and  the  sixth month.!   Their
situation varies with the position of the child, and accordingly
they are more distinct at one time than another, in the  same
place, and in different places at different times.  Their most
general  situation, however, is  the lower part of the abdo-
men.   The space over which they  are  perceptible at the
latter period of  pregnancy  is about a foot long, and three or
four inches broad, and their intensity of  course, corresponds
with  the  nearness of  the observer to the  source of the

  The peculiar pellicle needs not to be confounded with others, and common
 ones   The lithates give out the smell of ammonia, and when  disturbed fall
 to the bottom.  Neither of these occurs with kiesteine.  Lond. Med. Gaz.,
 December,   , 18  .                       ,,,.,..       v
  Lehmann (Physiological Chemistry) doubts whether kiesteine is a peculiar
 substance.  See British and For. Med. Review, vol. 17, p. 439.  I must refer
 as to Gravidine, another supposed new principle m the urine, to the London
 and Edinburgh Monthly Journal Med.  Science,  containing the papers of
 Drs. Stark and Griffith.
   *  Dr Mayor, of Geneva, stated in the  Bibhotheque Universelle, previous
 to the publication of Kergaradec, that the .fact of a foetus being alive near
 the termination of pregnancy, might be ascertained by applying the ear to the
 abdomen of the mother—the pulsations of the heart being then very percep-
 tible.  (Kergaradec's Memoir, p. 36.)
   t  "Most examinations were fruitless before the 20th week."  Aaegele.
 On the other hand,  Dr. Van Arsdale  cites cases where they were heard at
 the expiration of 12, 14 and 16 weeks.  Probably the statement in the text is
 the most correct as to the great majority of cases. 
PREGNANCY.
239
sounds.   In the  early  months they  are necessarily  less
manifest in each  respect.   The fetal circulation  does not
appear to be affected, in health, by agitation in the maternal.
It varies  from 120 to 160 in a minute, far exceeding, as al-
ready stated, that of the mother.*   An opposite  case was
that by Dr. Ferguson, in  which the fetal heart was distinctly
heard  to  beat only 28,! and  the mother's 100.   From its
rareness it is possible that  some peculiarity in  structure may
have  been the  cause.  Dr. Kennedy, however, relates in-
stances in which the mothers were  laboring under disease •
and the loss of  blood either by hsemorrhage or venesection
produced striking changes  in the fetal circulation.
   2.  The  second  auscultatory  sign of  the presence of the
fetus has been variously  termed, the placental sound, the
placental bellows-sound, the utero-placental souffle,  and the
uterine murmur, and uterine sound.   These names have their
origin in the diversity of opinion  that exists concerning its
cause.   By some it is referred to the placenta, while others
assert that it has its seat in the arteries of the uterus.t   It
is always  synchronous with  the  pulse at the  wrist, and
changes  with every  alteration that  the pulse  undergoes.
{Naegele.)  It varies in tone and intensity,  but is generally
accompanied with  a rushing noise, resembling the blast of  a
pair of bellows.   The place which it occupies is said never
to change, (although this is also denied) but it  varies in dif-
ferent individuals, and is  seldom so large in  extent as the
space in which the fetal  heart is perceptible.  The time at

  * The average of  the pulsations of the foetal heart, as  deduced bv Dr
Naegele from a comparison of 600 cases, is 136 stroke in a minute  *
  t Dr. Naegele also mentions that he  found the heart of a hea thv fetus
beating not more than 90, during the whole of pregnancy          *
  X Kergaradec considered it produced by the nasWp nf th* \,t^a *u    t.
the placental vessels; Laennec placed it in the uteri? »rh£!   p  i tfu^
in the vascular systern of the tissue of he^uterusSera £  Ke^l^T
uterine arteries, aided  probably by the circulation frmS ™ fKenn1edy in the
and a recent writer,  in  the enlarged uter ne vessek corr^S™ Pj?centa5
tion immediately connected withTthe placenta  «t  B    f t0 -?e P?T'
to the compression of one or more of the Ce vessels of 1-^'    J2S
hypogastric and  external iliac arteries,  by the uterus  L?^  Til aSthe
duct of conception."  Naegele supposed It to be product         ?r°"
in the structure of the  uterine vessels,  suchas the forfuonSj    7,f 1St?g
Ties, and perhaps also the dilatation of their cavitieaS atZnJ   f f, •"
coats.   This is probably the prevalent opinion         attenuation of their 
240
PREGNANCY.
which it  commonly  begins to be  heard, is the end of the
fourth month, or as soon as the  fundus of the uterus has
risen above the upper brim of the pelvis, so that it can be
brought in contact with the abdominal parietes, by the pres-
sure of the extremity of the stethoscope.*   It is  said to be
even louder then, than at the full term.  Certainly at  later
periods the  sound is duller, more diffused, and  no longer
gives the  sensation  of being confined to  a single artery.
Dr.  Ferguson observes that he has most  frequently found
the  placental sound  in either iliac region, although he has
detected it in almost every part of the abdomen.
  "  The noise of the placenta and the action of the fetal
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 pulsation of two
fetal hearts by the stethoscope, previous to delivery.
  3. To these a third sound has been added by Drs. Kenne-
dy,  and  confirmed  by Drs. Dietrich  and Naegele,—and
which is  said to  have its seat in the umbilical cord.   If a
single bellows  sound, synchronous  with the  fetal pulsa-
tions, and of course, not  with the maternal.   The  surface
over which it  is heard  is narrow, and extends for a few
inches transversely across the abdomen.  It is often observ-
ed  during  pregnancy, as  well as in labor, and  is almost
always perceptible when the funis is wound around the body
of the child,  or when the cord  is compressed  between the
uterus and the back of the fetus.  It also changes its place

  * 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   Dr. Naege'e
seldom found it sufficiently distinct to be clearly recognized before the fourth
month.  In  twenty cases out of thirty-five, it was audible at the fifteenth
week; in three only,  at the fourteenth.  Sometimes, he adds,  it cannot be
heard until the beginning of the fifth month, but in all cases it is audible sev-
eral weeks sooner than the foetal pulsations. 
PREGNANCY.
241
 during labor, descending with the progress of that process.
 Hence pressure, or stretching of the funis, or both combined,
 and inducing a diminution of the caliber of the  umbilical
 arteries is considered as the cause.*
   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-legal cases  be-
 fore the fifth month has passed, and he must recollect that in
 some, the fetal pulsations cannot at once be observed.   In
 other instances  sometimes  hours,  and  even  days elapse
 without detecting them, although  they had been already  no-
 ticed.   This is attributed to  feebleness in the  child—to its
 removal from that side  of the body over which its  body
 rested—or  to a  very copious secretion of liquor amnii.
 This last will, at  all  events,  render the sounds feebler.
 They must not be confounded with the action of the mother's
 heart, which is often distinctly audible in the region of the
 uterus!—with intestinal motions—or  with muscular con-
 tractions, produced by the pressure of the stethoscope.   Dr.
 Ferguson suggests, that possibly, pulsations  in  the  iliac
 arteries, accompanied  with  the  bellows  sound  might  be
 mistaken for the  placental  souffle.  These, however,  he
 adds, would  only be noticed in the groin, whereas the noise
 of the placenta will  be heard over a space of some inches
 in extent.   Again, if the placenta be attached to the poste-
 rior part of the uterus,  especially towards  the neck, the
 thrill may be beyond the reach of  the instrument.
  The examination may be  made either in the sitting, stand-
 ing or horizontal position.  The last, is, however, preferred.
 It has the advantage,  that it can be used  without removing

  * Kennedy p. 121.  Dietrich in Britishand Foreign Medical Review, vol.
 10, p. 274.  Naegele on Auscultation, p. 51
  t In such cases, Dr. Kennedy found the sound to become more audible as
  ■ ?s t^ced from the fundus to the uterus into the maternal cardiac region!
and the beats correspond with the mother's pulse,  (p. H6 )  See also a re
markable case of this description,  which occurred to Dubois in British and
Foreign Medical Review, vol. 8, p. 371.
16 
242
PREGNANCY.
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 in-
dignantly denied  the possibility of pregnancy.  The  fetal
and placental actions were, however, present; and in a few
months the presence of labor satisfied  every doubt.   Kerga-
radec examined a female near her time,  the simple souffle
was very manifest, but no double pulsation could be discov-
ered.   In a  few days a fetus far advanced in putrefaction
was born.    May  we not  conclude  with Dr.  Forbes,  that
although the absence of these signs is not an absolute test
of the  non-existence of pregnancy,  yet  their presence is
almost  infallible.*    They  do  not  accompany any other
known state or condition of the abdominal organs.!
  * There is one circumstance, which it is necessary to remember when mak-
ing an examination during labor.  It is asserted by Dr. Hamilton, and con-
firmed by the observations of Dr. Moir and Mr. Syder, that the  number of
fetal pulsations diminish greatly (sometimes from 120 to between 60 and 70)
whenever uterine contraction supervened and again increased, when the con-
traction is over.  Dr. Cummin suggests whether this change is not owing to
some preparation of the fetus for the respiratory process.  Lectures in Lon-
don Med. Gazette, vol. 19, p. 439.
  Dr. Dunglison also mentions some cases, where the pulsations of the fcetal
hearts were depressed  during a pain, and immediately succeeding it, some
forty or fifty beats, but they gradually rose again, and were actually isochro-
nous with those of the fetal cord.  (Amer. Med.  Intelligencer, vol. 2,  p.
309. See also Ibid. vol. 3,  p. 31.)  Conradi in British and Foreign Med.
Review, vol. 7, p. 230.
  f The following authorities deserve perusal: The original Memoir of Ker-
garadec, Paris, 1822.  American edition of Laennec; 1830, Appendix.  Cy-
clopedia.of Practical Medicine, Art. Auscultation, by Dr. Forbes.  Dr. Fer-
guson 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 Soufflet.  (Dub. Hosp. Reports, vol. 5,)
in Ibid, p. 189.   Dr. Adams  on Auscultation in Difficult Labor, from Dublin
Medical Journal.  (Boston Medical and Surgical Journal, vol. 8, p. 277.) Dr.
Montgomery in  Cyclopedia of Practical Medicine.  Medico-Chirurgical Re-
view, vol. 9, p. 607; vol. 21, p.  163. A case is given where the pulsations
(supposed to be fetal,) were only 128 in a minute.  Deeming these too few,
the pulse of the mother was examined,  and found to be the same.  No other
sounds could be detected, and the female (as the event proved,)  was declared
not pregnant.  Dr. John D. Fisher in Boston Medical and Surgical Journal,
vol. 3, p. 97.  Mr. Probart in London Medical Repository, April, 1828.  Dr.
Elliotson in Lancet, N. S. vol. 7, p. 656, a supposed case of dropsy, shown to
be pregnancy by the stethoscope.  Dr. Naegele, 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 
PREGNANCY.
243
  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  that most of them  have

proved equivocal.*  Even the last and the best will require


placenta was present.  Analysis of Carriere's Thesis in  Medico-Chirurgical
Review, vol. 36, p. 509.
  Naegele on Obstetric Auscultation, translated by Dr. West.  Van Arsdale
on do. in Forry's New-York Journal of Medicine, vol. 1, p. 171.
  The following should be read in connection with the remarks on the fetal
pulsations:
  " It was formerly supposed, that in the full grown fetus in utero, the heart
beat 120 times in a minute.  Dr. Heming has ascertained that the pulsations
of the funis umbilicalis before birth  are precisely  half this number, or sixty.
The pulsation of the fcetal heart presents us therefore with the phenomena of
60 beats and 60 double sounds, which have been mistaken for 120 beats.  Soon
after respiration  has been established, the number of the pulsations  of the
heart becomes augmented with the augmented stimulus to nearly double the
original number."  Marshall Hall's Gulstonian Lectures, p. 15.
  Dr. M'Keever  on  the information afforded by the stethoscope in detecting
the presence of fetal life, Lancet, N. S. vol. 12, p. 715.  Review of Dr. Hohl
on Obstetric Auscultation in London Med. Quarterly Review, vol. 2, p. 83,
and in British and Foreign Med. Review, vol. 1,  p. 85.  Dr. Robert Collins'
Treatise on Midwifery.  And last, but among the most important, Dr. Ken-
 nedy's separate work on Obstetric Auscultation.  For some facts tending to
weaken our confidence in this mode  of examination, see Dr. Maunsell in Ed-
 inburgh Med. and Surg. Journal, vol. 40, p. 302. It would also seem that
 Velpeau does not agree in considering the souffle as peculiar to pregnancy;
 "as it has been heard in cases where the uterus contained a simple tumor, 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 ascer-
 tain whether James Annesley was the son of Lord Altham.   On the trial of
 Mary Heath, Dr. Samuel Jemmat, an aged and respectable practitioner, tes-
 tified  that he had formerly  been consulted by Lady Altham, and found her
 with child.  She had all the usual symptoms.  One of the counsel asked him,
 " Upon your oath,  sir, are there any  rules in your profession, by which a
 pregnancy can  be discerned from a tympany, or any other like disorder ?
 Answer.  By the 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." (Harerave's State Trials,
 vol. 9, p. 463.)
   "Concludamus ergo, ex praedictis; quod certa pregnantiae cognitio ex nullis
 signis indubitato haberi potest, sed  bene conjecturalis ac dubia;  nullum enim
 eignum tam proprium pregnantiae habemus, quod ex aliqua  praeternaturali
 causa originem haberi non possit."   (Zacchias, vol. 1, p. 90.)
   " Toute notre sagacite, mise en oeuvre,  ne peut nous fournir aucun signe
 invariable qui determine l'existence du foetus dans la matriee."  (Mahon,
 vol. 1, p. 141.)                                                . 
244
PREGNANCY.
frequent practice to  enable the  physician to  speak  with
certainty.   The female also, in most of the cases, conceals
her knowledge  of symptoms.  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  recollected that he may have the
life of a fellow-being, or her property at his disposal, surely
he will not desire to be in haste on so important a subject.*
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 distention
is also unequal, not occupying  the front of the  abdomen as
in true pregnancy, but inclining either to the left or right.
Severe pain, owing to the violent and  preternatural distention
of the narrow parts in which the ovum is confined, is also a
common attendant.   The body of the uterus enlarges often
in particular parts, and sometimes  throughout its  extent;
but  I do  not find  alterations in the cervix particularly no-
ticed.  At the end of  eight, nine, or ten months of gesta-
tion, appearances  of labor come  on, and continue  for a
longer or  shorter period of time; the  motions of the child

  " 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.  Capuron, p. 81.
  * Cases are said to be mentioned  by various writers, as Ambrose Pare,
Mauriceau, &c, 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 admonished by the magistrates;
and it was decided, that whenever a female declared herself pregnant, her
punishment should be delayed for a sufficient length of time to determine the
certainty of the fact.  (Fodere, vol. 2, p. 444.) 
PREGNANCY.
245
cease, and milk is secreted.  The case terminates sometimes
in death, from the irritation produced; sometimes  the fetus
is voided by the natural passages, while it again will remain
in the abdomen for years without affecting the health.*
   Should the  physician,  as  a medical jurist, suspect the
presence of a case of this kind, he can do nothing more than
desire a delay until the  supposed termination of the gesta-
tion.   The proofs are not so infallible, but that a fetus 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 fetus cannot be perceived ; and it is also
added by Fodere, that the uterus does not take on its ordi-
nary developement.   Yet many cases  are on record, where
females, with this disease on them,  have been delivered of
healthy children.  In suspected cases, the practitioner should
weigh the symptoms, and ascertain whether they are all re-
ferable  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 stetho-
scope.!
  * A very full collection of references to cases of extra-uterine pregnancy
will be found in the Notes to Burns' 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.
  Dr.  Ramsbotham mentions a case in his own, and father's practice, where
three children were successively born of a female, in whom an extra-uterine
foetus was unquestionably present.  He refers to  similar cases recorded in
the Medico-Chirurgical Review, vol. 24, p. 163 (at Dublin.)  Ibid, vol. 24, p.
239.  (at Geneva.)   "It  is a curious circumstance, in the history of these
cases, that if the child should live till the time of gestation is completed; as
soon as that time has expired, the uterus  takes on itself expulsive action,
which is attended with pain similar to the throes of labor,  and during these
pains the deciduous membrane is expelled from the  cavity with a slight san-
guineous discharge, and the same  occurs at the death of the ovum, provided
that be premature." Lectures.  London Medical  Gazette, vol. 16, p. 214.
See also a case by Dr. S. W. Williams, of Massachusetts, in which death suc-
ceeded a week after the birth of a healthy child.  On dissection, the parts of
a foetus were found in the left ovarium.  Boston Medical and Surgical Jour-
nal, vol. 18, p. 28.
  t There are many  cases on record of pregnancy complicated with ascites.
A Memoir of Scarpa, in Quarterly Journal of Foreign Medicine and Surgery, 
246
PREGNANCY.
   In the  sketch now given of the  signs of real pregnancy,
most of the remarks are directly applicable to concealed or
pretended cases.   With respect  to the latter, I may observe,
that  in addition to  the circumstances already enumerated,
the following should also be noticed:
   1.  The age of the  individual.   It  is generally conceded
that no female can be impregnated, in our own climate, un-
der the age of thirteen, nor above that of fifty, provided she
has been  previously barren.  This, however, is   only to be
taken as a general rule, subject to exceptions.*   The pre-
sence  of menstruation, in  every country, constitutes  the
 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.  Langstaff in Medico-Chirurgical  Transactions, vol.
 12.  North American Medical and Surgical Journal, vol. 4, p. 190. Lancet,
 N.  S. vol. 9,  p. 117.—In most of these, the operation for paracentesis was per-
 formed, and  living children born;  they did not, however, usually survive
 any time.
  There are cases of ovarian dropsy, attended with pregnancy, in which a
 healthy child was born, related by Mr. Robbs, in London Med. Gazette, vol.
 22, p. 930, and Mr. Harding, in Ibid. vol. 27, p. 168.
  * Many cases of births in advanced age are on record.  (See  Capuron, p.
 93 and 98.)  The succession to an estate was disputed in France, because the
 mother was fifty-eight years old when the child was born.  It was  decided in
 favor of the applicant, because similar  instances  are mentioned by ancient
 and modern  writers.  Smith, p. 493, mentions cases of  early and late fecun-
 dity.   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. 509.)
  And the following is an American case :  A woman at Whitehall, (State of
 New York,)  named Ann Cook, had a child at the age of 64.  She had not men-
 struated for  fifteen years, and her youngest child is twenty-six years old.
 The child was born in February, 1836, and  was doing well.  (Boston Med.
 and Surg. Journal, vol.  14, p. 79.
  For several instances of menstruation at advanced periods of life, (between
 70 and 87 years of age,)  I refer to Mr. Semple's paper in the Lond. Med. Gaz.
 vol. 15, p. 467.
  Additional cases occurring in Germany, are quoted in the British and For.
 Medical Review, vol. 5, p. 256.  One is of a female who ceased to menstruate
 at 42 years of age.  She continued in good health to her eightieth  year. At
 this time, (1832) she was attacked with colic pains, the menses returned, con-
 tinuing as formerly, for about four days, and regularly recurring until Au-
 gust, 1835.   From that  time they disappeared.  This individual died in the
 beginning of 1836.  Also  case by Dr.  Brown, of Glasgow.  London Med.
 Gazette, vol.  21, p. 730.  By Dr. Petersen, of a female aged seventy-nine.
 British and  Foreign  Med.  Review, vol. 10, p.  560.  By Dr. Le Conte, of a
female, aged  seventy, in whom they  returned after an absence of twenty
years, after being struck by lightning, and continued regularly for upwards
of a year.  Forry's New York Journal of Medicine, vol. 3, p. 297.
  See also British  and Foreign Med. Review, vol. 6, p. 80.   Amer. Journal
Med. Sciences, vol. 22, p. 454.  Some of the cases may, however, have been
hoemorrhage  from the uterus. 
PREGNANCY.
247
state of puberty ;  and  the irregularity of its occurrence is
noticed by most practitioners.   It is to be regretted, how-
ever, that so few have given the result of their observations.
Out of 450 cases investigated at the Manchester Lying-in-
Hospital in England, the following results were obtained:
   The menstruation began
in the eleventh year, in  10
       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 46 ;
                       13 in their 47th year;
48
49
50
52
53
54
Mr. Roberton also  adds,  that so  far as he could ascertain,
and particularly in the  three cases above fifty years, the ca-
tamenia continued up to the  period of conception.*
  * 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 puberty.  His historical testimony goes
to show that it sometimes is as early in northern as in southern countries ;
and if any general cause is to be assigned for precocity, certainly the one
suggested by him, of early licentiousness, or even connexion, is the most pro-
bable.  Mr. R. mentions the case of a girl who worked in a cotton factory,
becoming pregnant in her eleventh year.  When in labor, she was seized with
convulsions ;  but ultimately, without unusual difficulty, was delivered of a
full-grown child, still born.  The  fact was perfectly ascertained, by a refer-
ence 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 be-
came 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 Rust Indies at the age of six, in whom menstruation took place at the ninth
year, and continued to occur regularly during three months;  but the child
then returning to  a more temperate climate, the secretion ceased, and has 
248
PREGNANCY.
   "In the  statement  sent to  parliament  by  Bartholomew
Mosse, when endeavoring 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 com-
mences  at 10,  11 or 12 years;  but generally between 12 and
16.!
   Professor Hohl of Halle out of 195 cases, found that
      3 menstruated at....................  12 years.
     10       "          ....................  13   "
     27       "          ....................  14  "
not yet returned.  The child is now twelve."   (C. M. Clarke, part 1, p. 12.)
  " Heat, whether natural or artificial, seems to produce sexual maturity in
the animal body, in a way, perhaps, analogous to that which it performs on
the same principle in the vegetable kingdom. Bruce mentions, that in Abys-
sinia, 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 some-
times a mother under the age  of twelve.  I formed an opinion, though per-
haps I  had not a sufficient number of facts to bear me out in it, that preco-
cious 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  Manches-
ter and Glasgow, the girls who work in the cotton mills, which are of neces-
sity 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' Obstetric Medicine, p. 226, &c.  Dewees (Hays' Cyclope-
dia of Practical Medicine, vol. 1, p. 344,) denies the correctness of Mr. Ro-
berton's opinion, from his own observation on this continent;  and there
certainly cannot be a better field for examination.  Dr. Ramsbotham, also, I
observe, (London Medical Gazette, vol. 12, p. 269,) in his lectures, doubts it.
  In another paper (Edinburgh Med. and Surg. Journal, vol. 58, p. 1121 Mr.
Roberton adduces facts obtained from missionaries residing in the West Indies,
relative to the period of puberty in Negro women.  They go to show that the
period of maturity with them does not vary from that of Europeans.
  Among extraordinary cases connected with the history of menstruation, I
may  refer to one occurring in Italy, where the function continued from the
fifty-third to the ninety-fourth year, without injury to health.  (American
Journal of Medical Sciences, vol. 7, p. 513.)
  * Cyclopedia of practical Medicine, vol. 3,  p. 491.  Dr. Montgomery adds
a case,  on the  authority of Dr. Labbat of  Dublin,  of a female marrying at
forty, and 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.
249
33 menstruated at
28
21
11
12
  5
  2
   195
  The menses returned in
      5 cases ...........
    43  "    ...........
   138  "    ...........
      1   "    ...........
      2  "    ...........
      2  "    ...........
      1  "    ...........
      1  "    ...........
      1  "    ............
      1  "    ...........

   195*
  I will only add in this place, the following results obtain-
ed by Prof. Murphy.
  1.  Menstruation.—Dr. Murphy has ascertained the age at
which this function  commenced  in 559 individuals.   This
inquiry  has been  already  pursued in 450 instances  by  Mr.
Robertson, and in 1160 by Dr. Lee.   A total of 2169 cases
shows,

  *  British and Foreign Medical Review, vol. 1. p. 103.  See also the Re-
searches of Petrequin  and Brierre DeBoismont in France,  Medico-Chirurg.
Review, vol. 33, p. 605, and vol.  40, p. 377; and of Adelmann of Fulda. in
Edinburgh Med. and Surg. Journal, vol.  56, p. 298.  I have condensed the
results obtained by these in the  American Journal Medical Sciences, New
Series, vol. 4, p. 213.  Dr. Robert Lee in London Med. Gazette, vol. 31, p.
162.  Brierre DeBoismont, in Edinburgh Med. and Surg. Journal, vol. 59, p.
211).  Pn<j;et in British and Foreign Medical Review, vol.  17, p. 275. Dr.
Charles Bell in Edinburgh Med. and Surg. Journal, vol. 62, p. 324.  See Cop-
land's Dictionary, vol. 2, p. 833, for a condensed table.
15 years..	
16	u
17	u
18	u
19	u
20	a
21	u
22	u
23	u
24	u
... every  14 days.
       "     3 weeks,
       "     4   c'
...    "     6   "
from  2 to  4   "
  "    3 to  4   "
  "    4 to 12   "
  "    4 to 18   "
  "    6 to 10   "
  "    8 to 12   " 
250                    PREGNANCY.

  " That there is a great variety in the  age at which the
catamenia first appears; 9  years [14 cases,] and  23 years
[1,] seem to be  the extremes; the most  frequent  period  of
its occurrence is between the ages of 12 and 18; and of those
recorded, it commenced, in the greatest number of  instances
[417,] at 15."
  2.  The interval  of the catamenial  function was  recorded
in 591  cases by the author, and by Mr. Robertson in 100.
In 557 of those cases the interval was found to be  28 days;
in  105 it was 21  days; and in the  remaining 29 it was
irregular, varying  from 14  days to  42.  It should be ob-
served,  that Dr.   Murphy's  inquiries  were addressed   to
pregnant females, in whom probably the menstrual period
would be found to  have been more regular than in the same
number of females  taken indiscriminately.*
  Although impregnation is supposed  to depend  on men-
struation, yet there are cases on record, where females have
become pregnant without ever menstruating.  Sir E. Home,
in  the  Philosophical Transactions of  1817,  mentions  the
instance 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.!
  *  Lancet, November 30, 1844.
  t  See Fodere, 1, p. 396 ; Capuron, p. 96, for similar cases.  Also Moseley
on Tropical Diseases, p. 103, 104.  "Ego habui amicam laudabilis tempera-
menti  et complexionis, quae octo filios tulit consequenter, id est, omni anno
unum, nunquam tamen  visa una gutta sanguinis menstrui."  (Low, p. 523.)
Impregnate nullis unquam previis menstruis. (Stalpart, vol. 2, obs. 31.)
  " I knew a noble virgin, who being married before  her menses, which had
been expected for many years, appeared, was nevertheless, very fruitful, and
that we may be the less surprised thereat, the  very same thing had likewise
happened to her mother."  (Morgagni, Epistle 47.)  Velpeau also mentions a
case at Tours.  Additional cases are quoted in Cyclopedia of Practical Medi-
cine, Art. Pregnancy, by Dr. Montgomery.
  Dr. Dewees denies that impregnation can take place without menstruation,
(p. 59.)  He attributes the rare case noticed to some imperfection of the geni-
tal organs.  The discharge may also in some instances have been colorless.
  Cases of the absence of menstruation for several years previous to preg-
nancy, are given by Professor James, of Philadelphia. Hosack's Medical and
Philosophical  Register, vol. 4, p. 222 ; by Dr. Hosack, Eclectic Repertory,
vol.  2, p. 119; by Dr. Merriman in Medico-Chirurgical Transactions, vol. 
PREGNANCY.
251
  2. We  should  ascertain whether  any  of the  causes  of
sterility, as already enumerated, be present.
  3. Women often  fancy  themselves  pregnant  when  the
menses cease.   This great change in the system often pro-
duces  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 Van Sweiten  mentions
two, which teach a  valuable  lesson.   A female had a son
when  she was twenty-five years of age ; twenty years after,
she declared herself pregnant a second time.   This was dis-
believed by all, but it was verified in due season.   Again, a
female had been  delivered of fourteen children, and might
hence be supposed  to be well acquainted with the signs of
pregnancy.  After the  birth of the  last  child, the  menses
ceased for  eight years ;  and at the end  of  this time, she sup-
posed herself again  pregnant; but  a  few months reduced
her size, and showed that she was mistaken.   A torpid state
of the uterus,  combined with  intestinal flatulence, appears
to  be  the principal  cause of these  sensations.  " At this
time,  (says Dr. Gooch,) menstruation will often  cease for
several months, and  the abdomen become distended with a
13, p. 347; by Dr. Campbell, Midwifery, p. 49.  He is acquainted with a
female to whom eight children have been  born, at the full  time, " without
having any monthly indisposition between any of the births."
  By Mr. Reid of London, who mentions the case of a  female, who, " during
the period of nine years, that she had been married, had never seen the cata-
menia, until she became pregnant with this last child, after which, up to the
term of quickening, they appeared regularly every month."  She had several
children previous to the one whose  delivery forms the subject of Mr. Reid's
communication. London Med. Gazette, vol. 16, p. 144.
  Dy Dr. Montgomery, (Signs of Pregnancy, p. 43,) a female laboring under
disease of the heart, which had induced dropsy, and had no menstrual dis-
charge for two years previous to conception.  Her pregnancy was not even
suspected till  she had miscarried of a foetus of five months.
  By Mr. Harrison, of the mother of a large family, who had never menstru-
ated.  Lancet, N. S., vol. 23, p. 619.  By Mr.  Pearson, also of the mother
of a large family, aged 44, who had not menstruated since July', 1838, yet was
delivered of her tenth child on the 31st of  December,  1839.  Ibid. vol. 25, p.
648. By Dr. Flechner of Vienna, London Med. Gazette, vol. 27, p. 557. This
female had not menstruated for thirteen years, and yet during  that period, had
six children.   She had never noticed any discharge that could be considered
as vicarious of menstruation.
  By Dr. Legros, a female ceased to menstruate at 41.  Two years after, she
became pregnant and was delivered of a  full grown child. Lancet, Oct.  28,
1843.  A case in Modern Greece, Edinburgh Med. and Surg. Journal, vol.  62,
p. 7.  See also Archives de la Medicine,  Beige, vol.  11, p. 424,  for several
cases. 
252
PREGNANCY.
 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 youthfulness.  About

 this  age,  also, the  omentum  and  parietes of the  abdomen

 often grow very fat,  forming what  Dr. Baillie once called

 " a double chin in the  belly."   This assemblage of symp-

 toms at  this age frequently  leads to  the supposition of

 pregnancy.*  The case of Joanna Southcott is  sufficient to

 show the  delusions that  have happened, and undoubtedly

 will  again happen.!

   4. There are various  substances or  fluids formed in the

 uterus, which cause the female to imagine that she is in this

 state.   Of  this  description are moles and hydatids.   The

 term mole does not appear to  be very accurately defined.   I

 shall understand  by it, a fleshy substance contained within

 the  cavity of the  uterus—enveloped in  a membrane,  and

 generally filled with blood, although  occasionally dry.   On

 cutting  into it, various parts,  resembling an imperfect fetus

 or its membranes, will be observed.   The  symptoms pro-

 duced, are at first very similar to those of pregnancy.  The

  * Gooch's Diseases of women, p, 226.  He adds, that he has met with simi-
lar cases in young women, owing probably to obstructed menstruation,  but
aggravated by mental agitation.
  t Joanna Southcott.  I copy from a magazine, published in 1815, the fol-
lowing certificate of the examination of the body of this female, who had nu-
merous followers in her day in England, and who, for a long  time, declared
herself pregnant of a child that was  to be the  Saviour of the world.  Her
deluded disciples did not abandon the belief until death took her from them.
  " We, the undersigned, present at the dissection of Mrs. Joanna Southcott,
do certify that no unnatural appearances were visible, and no part exhibit-
ing any visible appearances of disease,  sufficient to have occasioned her death;
that a number of gallstones were found in  the gall-bladder,  and the intes-
tines were unusually distended with flatus, and no appearance of her having
been pregnant.  The uterus was not distended, enlarged, or diseased, but on
the contrary rather smaller than the usual size."
  Signed by Dr. Reece, Dr.  Sims, Dr. Adams, Mr. Clarke, Mr. Want, Mr.
Cooke, Mr. Stanhope, Mr. Caton, Mr. Phillips, Mr. Darling, Mr. Forster,
Mr. Whetherall, Mr. Stanton, Mr. Wagstaffe, Mr. Wilkinson.
  " In such instances, the greater number of the rational signs must be consid-
ered as entitled to little or no consideration, if not altogether disregarded, and
our reliance should be placed on careful manual  examination, by which the
abdomen however enlarged, is found soft, puffy and compressible, the umbili-
cus sunk, no abdominal tumour, and the uterus per vaginam unaltered."
  Dr.  Montgomery, however, from whom I have just quoted, advises, that
we should not deny the existence of pregnancy, but treat the case for a time
as if the female were pregnant, and at the same time, exhibit such medicines
as will improve the general condition of the system. 
PREGNANCY.
253
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 some-
times as large at the second month, as in the fifth of perfect
conception.  The  duration  of  this  is uncertain; but  the
mole generally comes away at the third or fourth month,
although in some cases it has not been evacuated until the
sixth or seventh, and  it  is even said to have been retained
for years.*
   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
unmarried females  discharge  these,  and they should be ac-
curately  distinguished from  the former.   The one is to be
deemed the product of conception, and the other not.   And
these bloody coagula are wanting in the characteristics of  a
true  mole, viz,  the fleshy texture and the enveloping mem-
brane.
  The  authorities  on which  I arrive at this conclusion, are
here subjoined:
  " True moles are distinguished from the false, and other
growths of the  uterus, by  their not deriving their origin
from the substance of  the womb, or  its membrane ; but by
their being always the consequence of conception."  (Voig-
tel's  Pathological  Anatomy in  Edinburgh Medical and
Surgical Journal, vol.  11, p. 99.)   " It is the opinion of ma-
ny, that  these substances  are never formed in  the virgin
state, and no case that I have yet met with contradicts the
supposition."  (Burns, p. 79.)
  Madame Boivin divides all the species into three classes.
1. The false germ or blighted ovum.  2. The fleshy mole.

  X A case examined before the Parliament of Paris, in 1781, in which the
female sued for damages for seduction. Twenty months after this was alleg-
ed to have been committed, she brought forth a mole.   The parliament very
properly decided against her,  on  the score of character ; but they added,
what may be questioned under the present acceptation of the term, that un-
married females, and even nuns have discharged moles, without any previ-
ous criminal connexion.  (Fodere, p. 1, 477.) 
254
PREGNANCY.
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
fetus.  (Edinburgh Medical and Surgical Journal, vol. 39,
p. 217.)
   Moles are of three kinds.   1. A fetus so vicious in forma-
tion and imperfect in development, that it in no degree
resembles a human being, but is an organized, though shape-
less mass of flesh.  2. The  false germ of Madame Boivin,
the membranes appear perfectly  formed, but the embryo is
wanting.  3. The embryo has died early, but the ovum has
been retained  and increasecl in size and solidity.  " I pre-
sume that each of the three kinds I have specified is always
the result of sexual intercourse."  Dr. F. H. Ramsbotham.
London Med. Gazette, vol. 16, p. 609.
   Fleshy moles.  " Though these substances are invariably the
result of conception, it is not  certain that they are formed by
the growth of the membranes subsequent to  the death and
expulsion of the embryo. In  several cases of this descrip-
tion, no embryo was at any time discharged."  (Cyclopedia
of Practical Medicine, Art. Abortion, by Dr. Robert Lee.)
   '' Le developpement des masses d'hydatides (says Desor-
meaux) est  le plus souvent, sinon toujours, la suite de  la
conception."  (Orfila, Lecons, second 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, Gordon Smith,
p. 298.  Dr.  Churchill,  (Diseases of Females, chap. 12,)
although decidedly of opinion with Madame Boivin, quotes
several of a contrary belief.
  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 fe-
males of undoubted honor."   In  some instances, however,
he allows that they are  blighted ova, the result of inter-
course.  (Lancet, N. S., vol. 4, p. 225.)
  Murat,  Art.  Grossesse, (Dictionnaire des  Sciences Medi- 
                        PREGNANCY.                     255

cales,) appears undecided; while in Art. Mole, he advocates
the prevailing idea.
  M. Lisfranc has no doubt, if the embryo dies, it may be-
come extremely  atrophied or even disappear entirely, while
the  placenta, which still retains its connexion with the
uterus, may increase and become altered  in  its structure.
He believes  that moles are sometimes  thus formed,  as he
has  dissected several wombs which  contained placentas in
which not a vestige of an embryo could be discovered.   But
he is also  of  opinion  that  moles  may be  formed independ-
ently  of conception  or  sexual  connection,  and he   then
attributes  their  origin to coagula of blood which have be-
come organized.  Thus  he has seen  females  long affected
with menorrhagia, during which they  abstained from sexual
intercourse, subsequently  void moles, and,  on dissecting  a
young girl who died  from the consequences of imperforate
vagina, he discovered a mole in the uterus.
  M. Lisfranc discusses the circumstances  that have been
supposed to distinguish moles from  pregnancy, and comes
to the  conclusion that the diagnosis  of the former affection
is difficult, or, more properly speaking, impossible ; the ut-
most that  can be done  is to  calculate  probabilities  after
having carefully  weighed all the symptoms.*
  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

  * British and Foreign Med. Review, vol.  18, p. 19.
  Dr. G^nville proposes a distinction in his work on Abortion, in the follow-
ing words :    What then is the distinction between a real mole and a coagu-
lum, no matter of what species or variety the latter be ?  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, strf-
rified, aminated, concentric, membranaceous, solid, hollow, or with a re-ular
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
U IT of,coap^tfd ^°°d t0> th^n6Xt' Until k reac^es the innermost, which
 J ? 1°t   d  1 ?eAeStY ThlS "! a strikin& and important distinction;
and I am not aware that it has been noticed or made public by any author be-
fore me.  p. 50.  Orfila, Lecons, 3d edit,  vol. 1, p. 287, also mentions this 
256
PREGNANCY.
its growth,  the fetus having perished ; the degenerated re-
mains  of the  after birth;  coagulated blood; sarcomatous
tumours or polypi of the uterus.   The two first cannot exist,
except  after sexual intercourse; the other  three may be
found independently of it."
  With  Dr. Montgomery,  to whom I am indebted  for the
reference,  I entirely 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 fetus 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 fetus 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.
  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, which often
produces pain, and the want of motion when examining the
uterus.  This  last, however, is seldom applicable, since the
investigation  is usually made in the early  stages.   Fodere
adds, that the breasts  are  not filled with a milky, but with
serous fluid, and that the  female  often experiences  violent
convulsive  motion in her abdomen.*  Occasional 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

  * Fodere, vol. 1, p. 469.
  t 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 Pennsylvania,  has advocated a similar opinion.   (Eclectic Re-
pertory, 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. 
PREGNANCY.
257
from  coagula  of  blood,  or from  portions of the placenta,

degenerated during the  process of pregnancy.*   There is,


M. Clarke, part 2,  p. 126.)   Dr. Ramsbotham  concurs in opinion with Sir
Charles Clarke, and says he has never met  with a case.  (London Med. Ga-
zette, vol. 16, p. 614.)
  John Burns, however, considers them as distinct diseases;  and the remark-
able case of Dr. A. T. Thomson, (Medico-Chirurg. Transactions,  vol. 13, p.
170,) shows that  hydrometra  may exist independent of hydatids ; so also in
the case examined by Dr. Coley, (Transactions  Provincial  Med.  and Surg.
Association,  vol.  4, p. 357.)  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.
  Dr. Haighton was sent for, to a case where, in the middle months of gesta-
tion, 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 col-
lapsed, a foetus issued not larger than the first joint of the finger, and the pa-
tient did well."  Blundell's Lectures, Lancet, N. S. vol. 3, p. 98.
  There is a remarkable case  of an enormous discharge of fluid, during and
after delivery, unaccompanied with  haemorrhage, related in the Lancet, (N.
S. vol. 23, p. 355,)  by Dr. Reid.  It proved fatal in a few hours.  No dissec-
tion could be had.
  Dr. Ligget reports a case like Dr. Haighton's.  He calls it " Dropsy of the
ovum." A female in the sixth  month of pregnancy, had all the appearances of
the  dropsy.   She was treated  for  it  with medicines and  improved, but in  a
few  days  pains came on, water was discharged in  large  quantities, to the
amount in all of several gallons. A well formed foetus, 12 inches long, accom-
panied the discharge.  It  survived  15 minutes. Not long after a smaller foetus
was  delivered.  She recovered after suffering under irregular contraction of
the  uterus.  Medical Examiner (Philadelphia) vol.  8, p. 529.
   Cases resembling the above, are related by Mr. Wildsmith, of Leeds ; Lan-
cet,  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  Observa-
tions on  Midwifery; Ibid. p.  312-314; by Mr. Fell, in Edin. Phys. and Lite-
rary Essays, vol. 2, p. 374.
   Several cases of presumed Hydrometra collected by Dr. Tessier, are referred
to in Medico-Chir. Review, vol.  44, p.  489 (from Gazette  Medicale).  It  is
there also stated that Stoltz and Naegele have expressed their disbelief in the
existence of this  disease, except in connection with pregnancy, because the
uterus is  a  mucous and not a serous membrane—because its dense structure
would present an insurmountable  obstacle to its dilatation by the fluid—be-
cause the fluid would escape, and because, as they allege, no authentic case
 of the disease has yet been recorded.
   M. Lisfranc, however, details two cases  of hydrometra, in  both  of which
the  absence of pregnancy was satisfactorily ascertained.
   *  " 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 without intercourse ;  but  in general, they are the result  of impres
nation."  (Blundell, Lancet,  vol. 4, p. 226.) It is probable that the existence
of pregnancy is  not necessary for the production of the  disease    (C  M
Clarke, part 2, p. 115.)  Dewees (Diseases of Females, p. 298,) is of the same
opinion.
   Madame Boivin, however, in her Essay on the Vesicular Mole, opposes the
idea of its consisting of hydatids,  and deems it a degeneration of the impreg- 
258
PREGNANCY.
however, an opinion  entertained by some  writers,  that they
are  occasionally an original production  of the uterus.*   It
nated ovum.  In proof of this, she refers to the mass of vesicles being enve-
loped in a membranous sac, consisting of two layers, one resembling the
decidua reflexa, and the other the amnios.   Of course, she considers it inva-
riably the result of sexual intercourse.  (See her  "Nouvelles Recherches,"
&c,  and Edinburgh Med. and Surg. Journal, vol.  34, p. 382.)   To the ques-
tion put in the former edition,  Whether there was any case in which an ex-
amination had been made on the virgin female laboring under this disease;
and if so, whether the parietes of the uterus enlarged as in real pregnancy 1
Madame Boivin at least gives an unequivocal answer: "En effet, il nous
paraitra toujours tres difficile de determiner d'une maniere absolue l'etat  de
virginite d'une fille, cloitree ou non, chez laquelle s'est developpe Puterus
comme dans une grossesse fatale de neuf mois."  Not only the uterus, but
all the organs sympathizing with it, develope themselves; and whatever may
have been the  antecedent circumstances of the individual, these  combined
say little in favor of her chastity.   (Recherches, p. 20.)
   Velpeau, in his recent work, observes, as the result of his numerous exam-
inations, that "les hydatides en grappe de l'uterus n'e'taient pas de vers vesi-
culates, comme on croitgeneralement;  mais bien le produit d'un ceuf avorte,
dont les petits  corps gangliformes ont pris un accroissement qui ne leur est
pas ordinaire."   (Embryologie, p. 10.)
   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 supposed 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 maybe 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 connection with serous  membranes, which do
not exist in the uterus until  the ovum is deposited there, whose membranes
are esentially serous.
  At a later period however, than any of the above writers, Dr. F. H.  Rams-
botham has published the following remarks: "It is the opinion of Madame
Boivin, and some able physiologists, that these bodies cannot be formed inde-
pendently of pregnancy, whije others, with Percy, hold a different doctrine.
I am myself inclined to the belief, that they may be formed in the virgin ute-
rus, and think the  membranous substance secreted in one  variety of dysme-
norrhcea, very likely to lay the foundation of the disease.  This fact, indeed,
seems proved by cases lately reported in the Glasgow  Medical  Journal, by
Dr. Andrew.   Two out of four instances of uterine hydatids, which he there
records, happened in  the persons of young unmarried girls, of respectable
character, aged sixteen and seventeen, and in one there was present a perfect
hymen."  Lectures, London Med. Gazette, vol. 16, p. 613.  See also Dr. In-
gleby, in Lancet, N. S.. vol.  26, p. 76.
   Lesfrance, whilst he admits that the clustered hydatis always originate from
pregnancy, asserts that true hydatids may exist in the  virgin uterus; and  in
proof, quotes a case from Percy.
   In the first number of Cruveilhier's Pathological Anatomy, are two plates,
illustrative of this disease, which strikingly elucidate its nature.  The female
had hcemorrhagic discharges, with pain, at the fourth month, which continued
at irregular intervals 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.
   * Dr. Ashwell (Diseases of Females) mentions having met  with one case,
in a widow of umblemished reputation, in whom they occurred two and a half 
PREGNANCY.
259
is not necessary to proceed to a minute description of them ;
but we may observe, that usually these watery vesicles hang
together in clusters,  occupy a considerable space, and  pro-
duce a  corresponding  distention.   Their  early  symptoms
are those of pregnancy.*  The uterus enlarges—the breasts
swell—milk is occasionally formed—sometimes there is an
alternate discharge of serous fluid and blood from the vagina.
Dr.   C.  M. Clarke  considers  the  occasional  and sudden
discharge of an almost colorless 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 ex-
amined  by the  touch.  At the  accustomed time  no motion
is felt.    There  is  no  certain  time  for  their  discharge.
Sometimes, however, they do not come  away, until some
period after  real pregnancy would have  been  accomplish-
ed.   Their  expulsion is  attended with pain,  often of the
severest kind,  and generally with haemorrhage.!   An in-
structive  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
years after the death of her husband.  And he states another, occurring to
Mr. Douglas Fox, where a large mass of vesicular hydatids were expelled
from the uterus of a maiden lady, in whom the hymen was unruptured.
  Boston Medical and Surgical Journal,  vol. 32, p. 473.  Two cases by Dr.
Evans of Indiana, from Illinois Medical and Surgical Journal.  In one, hyda-
tids has been discharged, but the patient continued subject to uterine haem-
orrhage of which she died after some months. On dissection, hydatids were
found imbedded in the parietes of the uterus. In the other a female aged 55,
discharged a mass of hydatids.   The menses had ceased previous to this, but
they returned regularly after the hydatids were discharged.
  * Clarke,  part 2, p. 118. Edinburgh Medical and Surgical Journal, vol.
34, p. 482._ Davis' Obstetric Medicine, p. 677.  This  author is also very de-
cided in  his opinion. " They are generally the accompaniments, as also pro-
bably the results, of blighted and other diseased forms of eventually unpro-
ductive gestations;  or if we admit the fact of their being ever produced in-
dependently of any connexion with a contemporaneous gestation, the author
feels disposed to the opinion that they must  be the results of conceptions  of
antecedent dates."   See also Mr. North, London Med. Gazette, vol. 26, p. 361,
and Dr. Waller in Lancet, N. S., v. 26, p. 391.
  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 enlarge-
ment of the abdomen 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. 
260
PREGNANCY.
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 case of the wife of President  de

Nemours, who was  considered  pregnant a whole year, and

at last was relieved by a copious watery discharge.!

   5. It is proper to mention that  membranes  are sometimes

expelled in  dysmenorrhcea, which have given rise to a sus-


  * American  Med. and Philosophical Register,  vol. 4, p. 519.  Dr. Davis'
(Obstetric Medicine, p. 679,) reference to this case is incorrect.
  For additional instances, see Dr. William Moore, in New York Medical and
Physical Journal, vol. 1, p. 151.—Dr. James Clarke, in Edinburgh Med.  and
Surg. Journal, vol, 5, p. 257; Ibid. vol. 29, p. 217.  (A case from Rust's Ma-
gazine.)—Mr. Wildsmith, in Lancet, N. S., vol. 4,  p. 739.—Mr.  Cusack, in
Dublin Hospital Reports, vol. 5.  Madame Boivin's Essay.   Dr. Ashwell in
Guy's Hospital Reports, vol. 1, p. 129.  Dr. Chowne, Lancet, October 28,1843,
and November 18, 1843.  Dr. John H.  Griscom in New York Journal of Me-
dicine (Forry's) vol. 2,  p. 336.  Medical  Times, November 4, 1843, p. 66.
Med. Examiner, vol. 8, p. 73.  Case by Dr. J. K. Mitchell.  This case proved
fatal, after the discharge of many thousand vesicles constituting the  true
cluster of grapes hydatid.  No ovum was found, but the hydatids  adhered to
the membranes and a perfect corpus luteum was present.  Boston Med.   and
Surg. Journal, vol. 32, p. 17.   Cases by Dr. Morris.  A case by Mr. Watson
of Warwick.  The female was 22 years old, and has been married  nearly ten
months.  She had no suspicion of being pregnant, and the marks present
were at least equivocal.  There was no membranous bag investing the hyda-
tids, and the hsemorrhage succeeding was very slight.  Milk was secreted on
the second  day, and the lochia were present.  Trans. Provincial Med.  and
Surg. Assoc, vol. 2, p. 349.  A case with all the usual symptoms of pregnan-
cy, by Dr. Hooker of New Haven.  Boston Med. and Surg. Journal, vol. 16,
p. 91.  Orfila, Lecons, 3d. ed., vol.  1, p. 294.
   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 hemor-
rhage from the unimpregnated uterus ever occurs ?  That it is rare, is, I be-
lieve, not doubted.  Dr. Ashwell, however, (Guy's Hospital Reports, vol. 3,
p. 137) relates several instances of such haemorrhage, associated with tumours
in the uterus of varying degrees of induration and malignity. It is proper
to add that all the cases are of married females, some having been previously
pregnant, and others not.  Dr. Ashwell does not believe that a genuine hard
or fibrous tumour ever becomes a pediculated polypus.
   The first discharge of blood  in several cases, collected by Madame Boivin
is as follows :
            2 at 45 days,                    1  at  6 months,
            1  "  2 months,                 1  "  7   "
            4  "  3  "                    1 "  8   "
            2  "  4  "                    1 " 11   "
            1  «  5  "                    1 " 14   "

 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.
   t  Fodere, vol. 1, p. 743.  This author suggests, that if water be  con-
 tained in the uterus, by raising it on the point  of the finger, a  fluctuation
 more or less distinct will be perceived. 
                       PREGNANCY.                   261

picion of pregnancy and early abortion.   This is accompa-
nied with  severe  pain, a red discharge, ajad the  substance
thrown off somewhat resembles the decidua.  But the history
of the  case will enable  us readily to  decide.  All  the
appearances of pregnancy are wanting—the discharge recurs
at every menstrual  period—the membrane is slight in its
texture, wants the vascularity of the true decidua, and never
contains any  of the transparent  membranes of the ovum.
Many unmarried females  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
Edinburgh  stated that  she was  in labor.  According to
custom, a house pupil was sent to attend her, which he did
very faithfully for two days and two nights.  At  the end of
that period, he sent for  Dr. Hamilton,  the professor of
midwifery, who examined her, and much to the mortification
of both the student and the woman, declared that she must
become pregnant, before she could be delivered.  She was
laboring under this disease.
  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
patient has never been free from  it—whether impregnated
or not.  In the latter state, however, no  inconvenience is
experienced—in the  former,  there is always  severe  pain.
Sometimes, but not  always, the air is  discharged  with a
crepitus—and as often as twice or thrice a  week.  This,
however, varies, and she has never observed it to accumu-
late, so as to produce any perceptible enlargement of the
abdomen.   The most intense pain occurs after quickening.!
  *  Cyclopedia Pract. Med. vol. 3, p. 488.  Dr. Denman in Medical Facts
and Observations, vol. 1, p. 108.  He observes that he has « the most un-
doubted proofs, that it may be formed without connubial communications."
  t  Boston Med. Magazine, vol. 1, p. 233;  See on this disease, Burns, p. 82,
Denman, 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 
262                      PREGNANCY.

  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
gratify his wish of having an heir, feigned herself pregnant,
and at the expected period, introduced the child  of another
as her own.  And  in  more modern times Joanna  Southcott,
at the age of sixty-five, declared  herself pregnant, and was
believed by her followers in England—nay more, she even
found medical  men 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 dissec-
tion, no traces of pregnancy could be discovered.*
  The laws for the  punishment of concealed pregnancy will
be introduced with most propriety in the chapter  on infant-

icide.

at the sixth month it dissipated.—Ibid.  vol. 22, p. 418.  Review of Madame
Boivin; Lee, in Cyclopedia  Pract. Med. vol. 4, p. 383.
  Tessier in Medico-Chirurg. Review, vol. 44, p. 487.  American Journal of
Med. Sciences, N. S. vol. 4,  p. 403. British  and Foreign Medical Review, vol.
13, p. 246, a case by Dr. Ereoliani, of Physometra, in the puerperal state.
Boston Med.  and Sur*g.  Journal, vol. 33, p. 98.  Four cases  by Professor
Barbour, of Kemper college, one female unmarried.
  Dr. Churchill (Diseases of Females, p. 108,) mentions as diagnostic marks
of Physometra, the absence of foetal motion, the resonance of the tumour,
and the presence of pain.  The menses are usually suppressed, the abdomen
enlarges, and  milk is secreted.
  There are some diseases to which the uterus is liable, that may occasion-
ally be mistaken for pregnancy.  Of these, Dr. C. M. Clarke mentions the
fleshy tubercle.  All, however, are slow in their progress, soon become pain-
ful, and are generally  unaccompanied 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 com-
patible 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 cauliflower excresence of the  uterus. Kennedy, p. 144.
See also the cases related by Dr. Robert Lee, in London Medical Gazette, vol.
28, p. 898, and vol. 31, p. 721.
  * Edinburgh Review, No.  48, Art. 11.  In the stormy period that preceded
the abdication 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 His-
tory of his own Times, London, 1758, vol. 1.  p. 473—524.   And the whole
testimony in favor and against the opinion, is collected in Howell's State
Trials, vol. 12, p. 123.  See  also, History of England, vol. 8, p. 146, 154, in
Lardner's Cabinet Cyclopedia. 
PREGNANCY.
263
  To prevent repetition, I shall also delay the consideration
of the appearances  found on dissection, until I  come  to
consider the subject of delivery.

                  III. Of Superfcetation.
  By superfcetation is understood the conception of a second
embryo, during  the  gestation of  the first, or that a woman,
who has advanced to any period  of  one  pregnancy, is capa-
ble of conceiving another child.
  This  doctrine was very current among the  ancient phy-
sicians,* and 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 legitimacy, as I shall hereafter show.
  It will conduce to a better understanding of the subject,
if the cases  which are deemed instances of superfcetation, be
first stated; and afterwards the objections to them, and the
mode in which the opponents of  this doctrine explain their
peculiarities.
  1. The following is taken  from the  Consilia of  Zacchias.
J. N. Sobrejus lost his life  in a quarrel, leaving his wife
pregnant.   Eight months after his death, she was  delivered
of a deformed child, which died in the  birth.  Her abdomen
remained large, and it was suspected that a second infant
was contained in it, but all  efforts  to procure  its delivery
proved  fruitless.  One month and a day  thereafter,  the
widow was  again taken in 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 super-
fetation, 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 superfcetation, and  conceived a month
after the other.   This he strengthened by the fact, that the

  * So common was  the  belief in it, that Brassavolus observes that he has
seen superfcetation epidemic !! 
264                      PREGNANCY.
husband died suddenly, while in a  state of perfect health.
His opinion preserved the character of the mother,  and also
gave her those legal rights to which her situation entitled
her.*
   Dr. Denman, in  his work  on  Midwifery,  quotes a letter
addressed  to  the  lady  of Sir  Walter  Farquahar,  by  the
patient  herself, wThich  contains a  case  belonging to  the
subject  before us.   The female went to  the  ninth  month of
pregnancy;  but between the fifth and sixth, she met with a
great fright, which affected her severely  and diminished her
size.  On  the 11th  of  February,  she was  delivered of  a
healthy child, but continued in pain; and  it was not until the
morning of the 25th, that she was relieved.   " On that day,
there was  born the head and  parts of a  child  that  had just
the appearance of a miscarriage of four months."!
  * Zacchias Consilia, No. 66.  Fodere' observes, that he is assured that a
female in Turin, in 1797, was successively delivered of three children, at an
interval of fifteen days between each.  (Fodere, 1, p. 484)
  t Cases resembling the above, are mentioned in most works on midwifery,
and in many of the periodical journals.  I will refer to some that I  have
noted.
  Philosophical' Transactions, vol. 60, p. 453.   (Case by Mr. Warner.) Me-
dico-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 of blighted foetus.   London Medical and Physi-
cal Journal, vol. 22, p. 47, and vol. 24, p. 232.  In one of these, (case by Mr.
Farrell,) a healthy child was first expelled, and in about four  hours after-
wards, a dead foetus of the size of five month's 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,) by Baron Percy, in  London Medical Repository, vol. 20, p.
110. By F. W. Norton, in New York Medical Repository, vol. 23, p. 110. By
Dr. John Clarke, in London Medical and Physical Journal, vol. 16, p. 219.
By Dr. Fithian, in  Chapman's Journal, N. S. vol. 2, p. 367.  By  Dr. 0. H.
Taylor, in North American Med. and Surg. Journal, vol. 4, p.  81.  By Dr.
Fahrenhorst, of Lithuania, (New York Medical and Physical Journal, vol. 8,
p. 393.  By Dr. Colombe, American Journal of Medical Sciences, vol. 5, p.
483.   Mr. Leeson  and Mr. Hunter,  Lancet, N. S. vol. 19, p. 133-256. In
neither  of these was  the  shrivelled foetus in any way  putrefied.  By Dr.
Montgomery, Signs of Pregnancy, p. 205.  By Dr. Jackson, Amer. Journal
Med. Sciences, vol. 22,  207.  By Dr. Isaac Porter, ibid. vol. 24, p. 256, and
vol. 26, p. 307.  By Dr. Conger, Boston Med. and Surg. Journal vol. 29, 216.
By Dr. Siebold, London Med. Gazette, vol. 26, p. 45.  By Mr.  Stone, Lancet,
N. S. vol. 26, p. 842.  By Dr. Streeter, ibid. vol. 29, p.  148 ; ibid. January
14, 1843, by Mr. Vale.  By M. Menard, London  and Edin. Monthly J., vol.
1, p. 68.  By Dr. Loomis, Buffalo Med. and Surg. Journal, vol. 1, p. 18.  By
Dr. Jamieson, Dublin Journal of Med. Science, September, 1841. 
PREGNANCY.
265
  Additional references will be found below.  It is necessry
to add in this  place, that the blighted ovum, is sometimes
retained for a length of time.  This should not be forgotten
in medico-legal cases, else it may by possibility happen that
an unjust  suspicion will fall on the innocent.  Thus, in a
case that  occurred to Dr. Montgomery, an ovum at two
months (as was evident from its size) was not expelled until
three months  thereafter, and in one cited by him from  Dr.
Ingleby, another of three months, was not expelled until the
ninth month.
   2.  A  case mentioned by Buffon, has been often quoted by
the opponents  and advocates of  superfcetation.  " 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
color led to an investigation ; and the female confessed, that
on a particular day, immediately after her husband had left
his bed, a negro entered  her room, and by threatening to
murder her if she did not consent, had connexion with her."*
   It has been insinuated against the credibility of this case,
that one of the offspring  was white.  Instances  can, how-
ever, be adduced, where this objection does not apply.  Dr.
 Moseley mentions  the  following  as occurring within his
time  at Shortwood estate,  in the  Island of Jamaica.  " A
 negro woman brought forth two children at a birth, both of
 a size ;  one of which was a negro, and the other a mulatto.  On
being interrogated upon the occasion of their dissimilitude,
 she said she perfectly well knew the cause of it, which was,
 that  a  white  man belonging to the estate came to her hut
 one morning before she was up, and she suffered his embra-
 ces almost  instantly after her  black husband had quitted
 her."!

   * Fodere, vol. 1, p. 4S2.
   t 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 etde la Societe deMedecine,
 1821.  A negress  delivered of twins, as in Dr. Moseley's case, and who made
 a similar confession.
   Case by Dr. Dewees—a white woman near Philadelphia; twins; one white
 and one black.  (Coxe's Medical Museum, vol. 1, p. 174.) Case by Dr. Trotti__ 
266
PREGNANCY.
  " One of  the author's pupils, (says Prof. Dunglison,)  Mr.
N.  J. Huston of Virginia, has communicated the particulars
of  the case  of a female, who was delivered, in March, 1827,
of  a  negro  child and a mulatto on,the same night.  Where
negro slavery exists, such cases are sufficiently numerous."*
  3.  Dr. Maton of London published the following as a case
of  superfcetation: Mrs.  T-----, an Italian lady, but married
to an Englishman who was attached to the commissariat of
the British army in Sicily, was delivered, on the twelfth of
November,  1807, of a male child, which had every appear-
ance  of health.  It was brought forth under circumstances
very  distressing to the parents, being  dropped  in a bundle
of  straw at  midnight in  an uninhabited room; and it  sur-
vived nine  days only.   On the second of  February,  1808,
(not quite three calendar months from the preceding accouche-
ment]) Mrs.  T. was delivered of another  male infant, com-
pletely  formed, and apparently  in good health.   He  was
sent away to be nursed ;  but the nurse's milk being deficient,
he was removed soon after to another foster mother.  When
A negress in South Carolina, in 1815; three children; two white  and one
black.  (N. Amer. Med. and Surg. Jour. vol. 1, p. 466.)  Case by Dr. Gue-
rarde—A negress in South Carolina; twins; a black and a mulatto.   (Chap-
man's Journal, N. S. vol. 5, p. 412.)  Case by Dr. Delmas of Rouen—A wo-
man in a public hospital of that city; twins;  one white and the other tawny.
(Dictionnaire des Sciences Medicales, vol. 4, p. 181.   Cas rares.)  Dr. Blun-
dell, 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.
Connection with a negro was proved.  From Hecker's Annals.  (American
Journal of Medical Sciences, vol. 14, p. 220.)  A case in New England,  of
twins; one black and the other mulatto.  The mother (black) confessed coha-
bitation with a white man.  (Related by Dr. Holcombe, of Massachusetts.)
Boston Med. and Surg. Journal, vol. 13, p. 64. Case by Dr. Hille of Surinam,
where it occurred.  A negress,  having connection with a  negro, and then
with an European during the same night, bore twins; one a pure negress, and
the other a mulatto.  Dr. Hille adds that both were living in 1841, eight years
old, and that the mother, who had died some time previous, had, on dissec-
tion, been found to have the  genital organs naturally formed.  Quoted from
Casper, by Mr. Paget, in British and Foreign Med. Review, vol. 17, p. 272.
Case by Dr. Cunningham, of Virginia.  A negress had twins,  one white and
the other black. Dr. Cunningham saw them a few weeks after birth. (Med.
Examiner, vol. 8, p. 647.)
  The following is, I believe, the most remarkable case yet recorded: "It
was communicated to  me  by the Sargente Mor of the St.  Jose gold district,
(Brazil.)  A Creole woman with whom he was acquainted in the neighbor-
hood, had three children at a birth, of three different colors, white, brown
and black, with all the features of the respective classes." (Rev. Dr. Walsh's
Notices of Brazil, vol. 2, p. 90.)
  * Dunglison's Physiology, vol. 2, p. 324. 
                       PREGNANCY.                    267

about three months  old, however, he  fell a victim to the
measles, and  died.   From November,  1807, to February,
1808, Mrs. T. had not left Palermo, except on short excur-
sions in her  own carriage ; and her husband had been con-
stantly  with  her since  the year 1805.  He communicated
this  narrative to Dr.  Maton, with a certificate pledging him-
self  to its truth.*
  The last instance I shall mention in detail, is  one com-
municated to  Fodere by Dr. Desgranges of Lyons, and it is
certainly a very extraordinary one.
  The wife  of Raymond Villard  of Lyons,  married at the
age  of twenty-two, and  became  pregnant five years there-
after, 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 con-
ception,  she brought forth a living child.   This delivery was
not,  however, accompanied with  the usual symptoms—no
milk appeared—the  lochia were wanting, and the abdomen
did not diminish in size.   It was accordingly found necessa-
ry to procure a nurse for the child.
  Two surgeons visited the female, and were at a  loss with
respect  to  her  situation.   TKey called Dr.  Desgranges  in
consultation,  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 fetus;
and on  the  sixth of July,  1780, (five  months  and  sixteen
days after the first birth,) she was again delivered of another
living daughter.  The milk now appeared, and she was ena-
bled to  nurse her offspring.
   It is not possible,  adds Dr. Desgranges, that this second

  * Transactions of the London College of Physicians, vol. 4, p. 161.  Dr.
Granville, in a criticism on this case in the Philosophical Transactions for
181*, 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 preg-
nancy.  Dr. Paris was in consequence led to make further inquiries of Dr.
Maton, and he found that both children were born perfect.  The labor, though
quick, was not sudden; since the accoucheur was present.  All the distress-
ing circumstances noticed, and on which Dr. Granville appears to rely, re-
ferred merely to  the inability of obtaining proper accommodations.  (Paris'
Medical Jurisprudence, vol. 1, p. 264.) 
268
PREGNANCY.
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

19th 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 tincse, as well as the  internal apertures of the fallo-

pian tubes,  are closed by  the deposition of a thick tenacious

mucus.   The membrana  decidua  is also  formed early,  and

lines the uterus, and  thus co-operates with  mucus, in oblite-

rating the openings into its cavity.!


  * Fodere, vol. 1, p. 484-5-6.   Cases resembling these, but not so remarka-
ble, 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;  inter-
      val of four months.  Annales de la Medicine Physiol.  April,  1827.
      American Journal of Medical Sciences, vol. 1,  p. 193, reproduced with
      other cases, in Bulletin De L'Acad.  Royale, vol. 9, p. 8.
    Three cases in the Dictionnairs des Sciences Medicales, Art. Superfceta-
      tion.
    One by Madame Boivin—an  interval of two months.  The first was born
      March 15, 1810, and weighed four pounds ;  the second  on the twelfth
      of May—weighed three pounds—weak,  and breathing with difficulty.
      The female confessed that  she had not lived with her husband for along
      time; and that the two children were the result of only three connex-
      ions with another man, on the fifteenth and twentieth of July, and the
      sixteenth of September. See Pendleton on Superfcetation and Bipartite
      Uteri, in American Journal of  Medical Sciences, vol. 1, p. 307.
    A  case of several successive deliveries at various periods, at intervals of
      two months, and another of one month, by Prof. Wendt of Breslau.
      This is, however, a very doubtful case.  From Journal des Progres, in
      Monthly Journal of Foreign Medicine, vol. 3, p. 90.
    A case by Dr. Moebus of Dieburg.  A female, the mother of four  child-
      ren gave birth to a child of full size, on the sixteenth of October, 1833;
      and on the 18th of November to another equally of full size. American
      Journal Medical Sciences, vol. 20, p. 481, from a German Journal.
    I may add to these, a case  of twins,  quoted from Wildberg's Jahrbuch,
      in which the second child was born four days after the first.  Both the
      man and the woman asserted that they had cohabited but once.  Medico-
      Chirurg. Review, vol. 29,  p. 495.
  t The advocates of superfcetation deny, that this mucus closes the os tincse 
PREGNANCY.
269
  When the gravid  uterus enlarges, the fallopian tubes lie
parallel to its sides,  instead of running in a transverse di-
rection to the ovaria, as in the unimpregnated state.   If then
an embryo be generated, the tubes  could not  embrace the
ovum, and it would  remain  in the ovarium, or fall into the
abdomen, and thus constitute an extra uterine conception.
   But again it is said, that  even if we allow the practica-
bility of  the new embryo  reaching the  uterus, its  arrival
would be destructive to the fetus  already  present.  The
functions which have already been  performed for the first
conception, have now to be repeated, and an additional de-
cidua and placenta are,to be formed.
   These are, briefly, the arguments urged against the possi-
bility of superfcetation.   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.*
   It will be  observed,  that in one  class of instances3 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  embarrassed situation of one child in the uterus
 may have prevented its developement, checked its nutrition,
 and thus  caused  its death.  The other, on the contrary,
completely ; and they conceive that the absorption of new fecundating mat-
ter through it, is possible.  Capuron, p. 110.  Fodere, vol. 1, p. 483.
  Dr. Cummin denies that the uterus is immediately closed, and adduces in
favor of this the fact, that some menstruate during the first month—nor does
he believe that the decidua, always closes the cervix uteri, as in Dr. Lee's
case.  At all events, in that, the fallopian tube was open—the decidua did
not close its orifice.  London Med. Gazette, vol. 19, p. 597.
  *  An engraving illustrative of this occurrence, is given  in Cruveilhier's
Pathological 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.
  Mr. Ingleby mentions cases precisely of the  description suggested in the
text.  " A few weeks ago (says he,) on examining a mature placenta, the ex-
pulsion of which  was attended with severe haemorrhage, a foetus of four or
five  months, flattened, but not putrid,  was found  within the membranes,
closely adherent to the uterine surface of the mass, and yet a full sized living
child, in connexion with this placenta, had just been expelled."  He has also
seen a large mole or a diseased ovum expelled, while a foetus enclosed in its
proper membranes was still retained and not expelled until weeks after. 
270
PREGNANCY.
lives  and grows, presses on the dead one whieh  becomes
flattened, or wholly or  partly putrefied;  and in this condi-
tion,  both may be expelled at the  same  time, or one may
be detained for some time after the other.*
  It is evident that this explanation puts aside the idea of
superfcetation.!
  The second class of  cases, where a twin birth of various
colors takes  place,  have been  universally considered as
examples of contemporaneous conception.
  The experiments of  Bischoff,  on animals, show that the
ova are in some detached before copulation, while in others
they are not, until long after the act, (twenty-four hours for
example ;) again he found the independence of the passages
of the ova and the semen still more marked; for  example,
several  days after copulation, ova were found fecundated
in one  tube, but in the others, spermatozoa alone, none of
the Graafian vessels in  the corresponding ovara being either
enlarged or fully developed.
  These facts are supposed to bear upon and to explain the
cases under this  division. They even as now stated cannot
aid the doctrine of superfcetation.   But if  we thus account
for the great mass of instances that  were formerly referred
to it,  and grant, which indeed can  hardly be  denied,  that
superfcetation is impossible in  a single impregnated uterus,
there  yet remain some cases like those of Drs. Maton and
Desgranges which require explanation.   It has been attempt-
ed to  do this, by supposing that a double uterus  was present.
This is far from being as rare as was at one time supposed.
" The human uterus,"  says  Dr.  William  Hunter, " in the
impregnated state, commonly has one triangular cavity.  In
many instances, it is found subdivided at its upper part, in-
to two lateral cavities,  so as  to  resemble the  two horns of
a uterus in a  quadruped.  Several  specimens of such uteri

  * In  noticing the objections to this doctrine, I have made a free use of Pro-
fessor Chapman's able Essay on it, in the Eclectic Repository, vol. 1, p. 369.
  t G.  St. Hilaire advanced the idea some years since, that in every case of
acephalous monsters, there is a twin born perfect, and with a common pla-
centa.  He considers the acephalous as the imperfect twin of another, whose
developement has been completed.  Lancet, vol. 10, p. 748. 
PREGNANCY.
271
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 fetus, while the uterus on the right side
is  characterized  by  the   absence  of  all  appearances  of
impregnation.  Two vaginee are also present.!  This female
  * Hunter's Anatomy of the Human Gravid Uterus :  London, 1694, p. 6.  I
am indebted for this reference to my colleague, Professor Willoughby.
  t Quarterly Journal Foreign Med. and Surg., vol. 5, p. 438.  All the cases
related by authors, of double uteri,  have been collected by Dr. Cassan, in his
"Recherches  sur  les cas  d'uterus  double  et de superfcetation," 1826.  He
enumerates no less than forty-one, among which are those of Haller, Purcell,
Canestrini, Eisenmann, Pole, Dupuytren, West, Ollivier, and one examined
by himself,  Dumeril and Madame Boivin, in which both uterus and vagina
were double.  See also Martin, on a variety of the  Human Uterus, (from the
Revue Medicale of 1826,) for a list of cases.  (Lancet, vol. 10, p. 780.)
  The instances that have been recorded since the publication of Cassan, are
one by Dr. Geiss, of Traffurth, near Erfurt.  The labor pains were confined
to the right side.  On that, the uterus was as high as the thorax; on the  left,
it did not extend above the navel, and  inclined forward and laterally,   The
operation of turning was performed, and a healthy female  infant born—the
right side subsided—the left  continued prominent.  In one hour, labor pains
returned, when Dr. G. found membranes protruding through  an  opening in
the left side, which extended upwards into a cavity.   A second child  pre-
sented, 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 case of double uterus.   Two years afterwards,
she was again delivered of a single  child.  From  Rust's Magazine.   (Edin.
M.  and S. J., vol. 29, p. 254.)
    Case by Dr. Duges. From Journal des Progres, in American Journal of
      Medical Sciences, vol. 4, p. 447.
    Case of double uterus  and vagina at the Hotel Dieu, in 1827.  The uterus
      was unimpregnated.   The female  died of haematemesis.  (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  pro-
 vided with a tube  and an ovary; each  separated from  the other by a double
 partition,  and each having  distinct necks  and mouths into a single vagina.
 The mother died after 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 natural, with an opening common to both canals.  Length
 of the septum 1| inches—whole length of the uterus 31.  (London Med. Ga-
 zette, vol. 13, p. 898.
    Le Roi's case, from the Journal des Connoissances Medicales, for Feb.,
      1835.  This female had menstruated for two  years, and while the
      menses were flowing, she was seized with intense pain, and a tumor
      was discovered in the cavity of the pelvis.  She  died shortly of perito-
      nitis.   On dissection, the uterus was found bilobed—the left lobe com- 
272
PREGNANCY.
was seen 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
inquired whether menstruation goes on in the unimpregnated
half?   If it does,  it  will  account,  as is supposed,  for the
occasional  presence of that  discharge, or  something much
resembling it, during pregnancy.  In  Canestrini's case how-
     mucicated with the vagina, and the right had no external communica-
     tion.  In its cavity the menstrual fluid had accumulated,  and thus
     formed the tumour.  (American Journal of Med. Sciences, vol. 17, p.
     525.)
    Case by Dr. Albers,  of Bonn.   The bilobed uterus in this case was ex-
     tremely small,  and hardly connected with the  vagina.   (British and
     Foreign Med. Review, vol. 3, p. 221.)
    Cases from a Memoir of Mr. Louis, read before the Royal Academy of
     Surgery, in 1790.  This memoir, it is stated, has never been published.
     (Medico-Chirurgical Review, vol. 30, p. 223.)
    Case by Scheider, of a woman, who, six weeks  after marriage, bore a
     four months' child, and forty weeks after marriage, mature twins.   On
     examination, the uterus and vagina were both found double,  and each
     vagina had a separate orifice.   (London Med. Gazette, vol. 20, p. 408.)
     From Muiler's Archives, for 1836.
  Davis' Obstetric Medicine,  p. 514,  &c„ contains an account of  the cases
collected by Voigtel.
  Cases are also figured by Cruveilhier, in his Pathological Anatomy, Nos. 4
and 13; and one is mentioned by Mr. Crosse, of a double  vagina and uterus
occurring to Mr. Norgate, in the Norfolk and Norwich Hospital.  (Transac-
tions Med. Provincial Association, vol. 5, p. 89.)
    Case by Dumas, of a bicorned uterus, found after death.  This female had
     been  pregnant six times.  She aborted  twice at the fifth and sixth
     month, and at another time was delivered of twins.
    Case by Dr.  Fricke, of Hamburgh, of a girl with a double vagina, double
     cervex uteri, and probably a double uterus.  She was a prostitute, and
     the right vagina only was used in sexual intercourse.  The left was
     narrower, and the os uteri of that side appeared smaller. It was im-
     possible, as she had not menstruated while in the hospital, to ascertain
     whether the secretion flowed from both, or only one os uteri.   (British
     and Foreign Med. Review, vol. 13, p. 228.
    Case  by Berard,  one of a  female with a double  uterus, in which was
     found a uterine polypus, and another in which both uterus and vagina
     were double.   This last person had  borne 17  children. Bulletin De
     L'Acad. Roy. De Medecine, vol 8, p. 737.
    Case by M. Billengren, quoted in Edinburgh Med.  and Surg. Journal, vol.
     59, p. 231.
    A case at Vienna, Lancet, November 11, 1840, p.  198.
  * Velpeau's Midwifery, p. 79; Cassan, p. 28.  West's case is similar. 
PREGNANCY.
273
ever, 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 fetus 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 impos-
sible.!
  We must  also recollect, that in remarkable cases  of
children born several  months from each other, no examina-
tionj 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,
  * Cassan, p. 39.  The case is related in detail in Med. Facts and Observa-
tions, vol. 3, p. 171.
  f Med. Chirurg. Transactions, vol. 17, p. 473.
  X There is at least one case of supposed superfcetation in which dissection
was had and no double uterus, nor indeed any thing different from the most
natural state could be discovered. It is that of Maria Begaud Vivier, who on
the 30th of April, 1748, was delivered of a living child, and on the 16th of
September succeeding, another of  full size  and maturity was born.  The
mother, who had also a child in 1752, died of an acute  disease in 1755, and
was examined by Professor Eisenmann, who found the parts in the condition
I have mentioned.  The only obscurity in this instance is the remark of the
Professor, that the first child was neither so strong or so large as the second,
but certainly we should suppose (with Devergie) that if premature, he would
have used more definite language.  Devergie, vol. 1, p. 469.
  It is however stated in the Bulletin de l'Acad. Royale de Medecine, vol. 9,
p. 15, Eisenmann remarks that the first infant survived only two and a half
months, and was neither so large or so lusty as  the second born.
                     18 
274
PREGNANCY.
that any woman in whom such superfcetation took place, had

a double uterus."*
   Should the doctrine of superfcetation 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
latest born should fall within the legal term, or be excluded
from  the  privileges  attendant  on  it;  and this  is more
particularly necessary, from the  obscurity that  invests the
subject.
IV.  Of some medico-legal questions connected with this subject.

  Two questions relating to pregnancy, have been suggested,
which deserve some notice.

  1.   Can a  woman become  pregnant, and be  ignorant of it
until the time of labor?  I cannot better preface an examina-
tion  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
  * Richerand's Physiology, p. 357.  Dumas, an attache of the Faculty of
Medicine at Montpelier, has discovered a case related by Dionis, which bears
on this subject.   A female aged twenty, and pregnant about two months,
doubted the existence of this in  consequence of the menses continuing as
usual.  The symptoms, however,  became more and more manifest; and at
four months and  a half she felt the motions of the foetus; and at the fifth
month the menses ceased, and were succeeded by a slight serous discharge.
While thus advancing, she was suddenly seized with violent pains as of a
person in labor, which yielded to no remedy, and she died at the end of twelve
days.
  On dissection,  a foetus was found in the abdominal cavity, and the uterus
sufficiently large to have contained it, was seen ruptured throughout a large
portion of its surface.  Towards the right, was another lobe connected with
the ruptured portion by a single neck, but smaller, and in the interior of this
a mole was discovered.
  Here was a case of bilobed uterus,  in one of whose lobes, pregnancy was
going on, while menstruation  had during  the same  period occurred in the
other.  (Encyclographie des S. M., 4th Series, vol. 8, p. 216.)  He infers from
this and similar instances, that pregnancy may be advanced in one lobe, while
it is only partially advanced in the other.  He also endeavors to explain the
very rare occurrence of such cases by  supposing that the developement of the
two cavities must lead to frequent abortions, (Amer. J. Med. Sciences, N.  S.,
vol. 4, p. 447.)  The only cases in which Cassan considers superfcetation pos-
sible, 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
experiments 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. 
PREGNANCY.
275
their indisposition and ailments to the presence of pregnan-
cy ; 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 female, 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 instance, a female, aged  thirty-
five, who  had made  the most  solemn vows  of chastity,
deceived many physicians,  who treated her for dropsy of
the  womb.*  Fodere  himself relates  an  instance  which
happened to an  acquaintance, who was sent for to a nun
laboring under a  violent  colic, and who continued to deny
her being with child, until the cries of the  infant silenced
her.!
  We may smile at these  narratives ; but the  subject assumes
a grave importance, when the question is asked  judicially.
A case  in which  it was made a matter of investigation, is
related  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
August, when field labor is the most severe, that she experi-
enced a cessation of the menses.  She attributed this to the
fatigue  she  had  undergone; and feigning ignorance of her
situation, declared herself dropsical.  She applied to seve-
ral 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
neighboring field,  and put under some leaves.   Eight days
after, a dog discovered  the body, and brought some rags

  • Mauriceau, vol. 2, p. Ill, 205.          t Fodere, vol. 1, p.  421. 
276
PREGNANCY.
 from it to the house of a  neighbor.   Judicial  search was
 now made.  Louisa was discovered to be the mother, and
 was  condemned  to  death for committing infanticide.  Her
 plea was, 1. That she was perfectly ignorant of her preg-
 nancy ; 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 show-
 ing 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 1 2.
 Could  she  innocently  make use of the  remedies that she
 confessed she had taken?  And 3. Is it certain that the child
 was born dead ;  and if so, what occasioned its death?  The
 two first only relate to  our subject, as the third belongs to
 infanticide.  Our medical judges answered both in the affirm-
 ative,  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 au-
 thority  of  Astruc, Zacchias, Senac,  and Hebenstreit.  This
 last observes, that a female might be impregnated when in-
 toxicated, and  might go to the full time without knowing it;
 and on  being seized with pain, might mistake  it for colic or
 painful  menstruation.!


  * Fodere, vol. 1, p. 491, quoted from the Causes Celebres.
  t Hebenstreit, p. 386.  There appears to me to be an intentional misrepre-
 sentation of our author in this instance.  He evidently only refers to an ex-
treme case.  On the main question he observes, " His tamen non obstantibus,
et quamvis vera, nee ex catameniorum defectu, nee 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 sanse et commodae graviditatis sunt, non perce-
pisse." (Page 385.) 
PREGNANCY.
277
  Fodere, in remarking on this case, very justly observes,

that although  instances have occasionally occurred where

married women  have  mistaken their situation, yet the sex

generally 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 follow-

ing it?*
   The following are laid down by our author, and I think

correctly, as the only cases in which ignorance  is possible.

   Where the female is an idiot.  An instance of this kind occur-

red to Dr. Desgranges, in a young woman  in  France, who

having long been 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  labor.

Dr. Desgranges  states it as  his opinion, that the assurances

of her lover had banished all ideas of the possibility of preg-

nancy.  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-!


   * A reviewer in the Edinburgh Medical and Surgical Journal, who I pre-
 sume is Dr. Christison, speaks thus on this point:  " Can a  female be igno-
 rant of her pregnancy, till the child is brought forth 2  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 concedes that it may
 take place if ^he be not a virgin, and in every circumstance during the pro-
 found 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 preg-
 nancy, not only the female but the most accomplished accoucheurs.  The last
 we know does sometimes occur.  Thus, he remarks, " It is obvious that a per-
 son may be delivered without being previously aware of her pregnancy;'but
 since each of the three requisite conditions is exceedingly rare, we may justly
 pronounce it barely within the bounds of possibility, and only to be credited,
 in individual cases, when the female gives sufficient evidence that the condi-
 tions in question did actually exist. Farther, as the third condition can exist
 only in the case of those who have borne children, the plea of ignorance must
 necessarily be excluded from the greater number of trials, which too gener-
 ally concern those who have erred for the first time."  (Vol. 19, p. 452-i.)  '
   t This and the  succeeding case were communicated to Fodere by Dr. Des-
 granges.  (Fodere,  vol. 1, p. 496, 497.) 
278
PREGNANCY.
   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 anything.*
  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
lessened.   Authors,  in remarking on this question, run into
copious  disquisitions  on  what  is   necessary  to  cause
conception; but on this I have already intimated an opinion,
which is not necessary to repeat.!
  * I find the following case mentioned in Dr. Gooch's Lectures on Midwifery,
p. 81.  As he seems to have credited it, it is probably an exception to the
rule I have before quoted from  him.  " A maid at an inn, who was always
thought to be virtuous, and bore a good character, began to enlarge in a way
which excited suspicions of pregnancy. She solemnly declared that she nev-
er had connexion with any man.  At length she was delivered, and was after-
wards brought before a magistrate to swear to the father ; but she repeated
her former declaration. Not  long afterwards, a post-boy related the follow-
ing circumstances : That one night he came 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 laying asleep  on the hearth rug;  and without waking her, he found
means to gratify his desires.  This shows that impregnation may take place
without the knowledge of the female, or any excitation of the sexual passion."
  t 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 was not, however, conscious of any thing having occurred to her during
that state; but mentioned the circumstance, as probably explaining her situa-
tion. (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—when 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 dis-
  section/indicative of a recent delivery.  Case of Mr. Angus. Corpora lutea—
  their value as a proof of impregnation.  2. Possibility of delivery without
  the female being conscious  of it.  Whether a female, if alone and unassisted,
  can prevent her child from perishing after delivery: Application of this in
  cases  of infanticide :  Instances in which this plea should be received.
Part II.   1. Signs of the death of the child before and during delivery. 2.
  Signs of its maturity or immaturity—its appearance, size, length, and
  weight at various periods during pregnancy.  Weight  of infants born at
  the full time—length.  Other characters which mark the maturity of the
  child.  3. The state  necessary to enable the new-born infant to inherit—
  its capability  of living—the time when it is generally deemed  capable.
  Laws of various countries as to what 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.  Unborn infants recognized.  In-
  fants extracted by the cesarean operation—their capability of inheriting :
  laws  on this subject.   First born of twins.  How far deformity incapaci-
  tates from inheriting.  Monsters : laws on this subject.


   Delivery may be considered, 1, as it respects the mother :

and 2, as it respects the child.   We shall accordingly divide

the chapter into two parts; and with  respect to the mother,
we shall notice,

   1.  Concealed and pretended delivery.

   2.  Some medico-legal questions connected with the suject.

   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. 
280
DELIVERY.
                        PART  I.

             I.  Concealed or pretended delivery.
  Delivery whether  concealed or pretended, can alone be
elucidated by referring to its real signs;  and it will there-
fore be proper to commence with a notice  of them.
  If the female  be examined within three  or four days after
the occurrence of the 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 traversed in various directions by shin-
ing, reddish and whitish, (sometimes pearly) lines, which
especially extend from the  groins and pubis to the navel.
These  lines have sometimes been called linece albicantes, and
are owing to the giving way of the true skin under  the
distention  caused by the  gravid uterus.   Hence they  are
most marked at the umbilical region.*  The breasts particu-
larly about the third  or fourth day after delivery, are tumid
and hard,  and  on pressure  emit a fluid,  which  at  first is
serous, and afterwards gradually becomes whiter; and the
presence of this secretion is generally accompanied with a
full pulse and soft skin, covered with a moisture  of a pecu-
liar and  somewhat acid odor.   The areolae round the nipples
are dark colored.   The external genital  organs and vagina
are dilated  and tumefied  throughout the whole  of their
extent, from the pressure of the  fetus.  The uterus may be
felt through the abdominal  parietes, voluminous, firm, and
globular, and rising  nearly as high as the umbilicus.   Its
orifice  is soft and tumid, and dilated so as to admit two or
more  fingers.   The  fourchette or anterior margin of  the
perinseum  is sometimes torn,  or it is lax, and appears to

  * Along with these, Dr. Montgomery, (p. 304, 307,) has sometimes noticed
a brown line of about a quarter of an inch in breadth,  extending from the um-
bilicus to the pubes, and especially in women of dark hair,  and strongly
colored skin. 
DELIVERY.
281
have suffered considerable distention.*  A discharge, (termed
the lochial) commences from the uterus, which is distinguish-
ed  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 becomes 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
entertained that delivery has taken place.  Several  of them,
however, require further notice, for the purpose of indicating
the mistakes which observers may  experience  concerning
them.
   1.  The lochial discharge might be mistaken for menstrua-
tion,  or fluor albus, were it not  for  its  peculiar smell, and
this it has  been found impossible, by any artifice, to destroy.
  It  also  is variable  as to the time of its continuance.  In
some, it does not remain red for  more than a day or two.
  2.  The soft parts are frequently relaxed as much from
menstruation, as from delivery; but in  these  cases, the os
uteri  and vagina are not  so much tumefied, nor is there that
tenderness  and  swelling.   Dr. Montgomery  also attaches
great importance to a peculiar condition of the os uteri.   Its
labia, he says, in those who have borne children, are jagged
and notched.  There is hardly any other cause except child-
birth, that  can  leave this state.J  Again, when all signs of
contusion   disappear  after delivery, the  female parts  are
found pale  and flabby.  The 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

  * "  With the birth of the first child the commissure is  generally torn
through and the fossa disappears with it, though not always : so that the ex-
istence of these parts is no disproof of previous child-birth, and I remember
myself a cases in which, though I had delivered the patient not without diffi-
culty,  with the forceps, the commissure and the fossa existed afterwards in
all their perfection."  (Blundell's Lectures, Lancet, N. S. vol. 4, p. 641.)
  t  Fodere, vol. 2, sec. 1;  Mahon, vol. 1, p. 166 to 170; Capuron, p. 124;
Hutchinson on Infanticide, p. 90 ; Burns, p. 326.
  X  " The converse of this,  however, will not hold good.  The unfissured
state of the uterine orifice will not be sufficient proof against  the former oc-
currence of childbirth."  Signs of Pregnancy, p. 299. 
282
DELIVERY.
pregnancy."*   The most unequivocal form in which it can
appear, is when the breasts are tense and painful, and filled
with the fluid, of its usual nature—not serous or watery, as
is observed in pretended cases.  It  is also to be remarked,
that this secretion goes on during the presence of the lochia ;
while, on  the contrary,  the breasts become flaccid and al-
most 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  linea albicantes, being caused by a " giving way of
the  true skin, under the  distention  caused by the enlarged
uterus," may also be the consequence of dropsy or of lank-
ness following great obesity.   Indeed, any cause producing
much distention may give rise to them.  On the other hand,
this state  of the parts is occasionally not very striking after
the  birth of a first child, as they shortly resume their origi-
nal  state.
   5. The  linese  albicantes will often remain  for life, and
hence should not be depended  upon in cases where females
have had several children.J
   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  consequence of sexual connexion.§  So far he can pro-
  * Burns, p. 326.  The error in the 3d (London) Edition, of substituting
" impossible," for "possible" in this quotation, and which is noticed by Pro-
fessor Montgomery, is not mine.  It is correct in the edition published here.
  t Fodere, vol. 2, p. 15.  The following is a very uncommon case. " There
is now in this town, a lady sixty years of age, who bore and reared eight
children, without her breasts discharging a drop of milk after the birth of any
one of them.  The glands when she was confined with a part of them, be-
came somewhat swollen, but no milk flowed out.  She never, at one period
of her life, had a nipple on either breast."  Dr. Sutton of Georgetown, Ken-
tucky, Western Journal of Medicine and Surgery, vol. 4, p. 317.
  X 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.  (Cyclopedia of Practical Medicine.)
  A similar appearance (of white silvery lines) has been occasionally noticed
by our author, on the breasts of young females, particularly when those parts
have been  greatly and rapidly enlarged  during pregnancy.  Signs of Preg-
nancy, p. 296.
  § "All the recent continental writers agree, that if the signs related be all, 
DELIVERY.
283
nounce 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 can-

not  be too often  repeated in a treatise on legal medicine.

To prevent mistakes, inquiry should also be made, whether

the  individual has labored under dropsy, menorrhagia, or

fluor albus ;  or whether any external violence has been ap-

plied 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

 period of  recovering from the effects of  delivery.   Some

 have been  known to proceed to their occupation on the day

 that the child is born, while  others remain enfeebled for

 weeks.   Much in this respect depends on the  constitution

 and habits of life.  There is, however a term in all, when

the  signs of delivery disappear, and the parts return to their

natural state ; and a general rule ought to be  established in

legal medicine, beyond which an examination should be

 deemed inconclusive  and void.  A majority of writers  have

 fixed on the  term of eight  or ten days, for this purpose ; and

 it is probably a correct one.   After that period, the signs

 become equivocal, and may lead  to error, particularly if the

 delivery has  been natural.*

   Zacchias remarks  expressly, that the proofs of delivery

 become uncertain after the tenth  day; and this uncertainty


 or nearly all, found in the person of the prisoner, the conclusion is infallible ;
 and that whatever a few obstinate accoucheurs may have been urged by the
 spirit of contradiction to allege, they are never imitated conjointly by any dis-
 ease whatever.   At the same time, a just and necesary caution is added,
 against placing  reliance on any one sign, or even on several of these together,
 since frequent experience  has shown, that though never found conjointly but
 after delivery, they are often produced individually by other causes." (Edin.
 Med. and Surg. Journal, vol. 19, p. 454.)
   *  Farr (p. 50 and 51,) enumerates certain signs that a woman has formerly
 been delivered of a child, which it may be proper to mention.  The loss of all
 the signs of virginity. The orifice of the  uterus wanting its conical figure,
 and its lips unequal.  An expanded and pensile abdomen.  The lineae albi-
 cantes.  The froenum of the labia obliterated; the breasts flaccid and pendu-
 lous ; the nipples prominent, and the areolae of a brown color.
  " The most precise criterions of the date of delivery, are derived  from the
 date of the milk fever, the gradual alteration of the lochia, and especially
 the appearance  assumed by the genital organs in their return to the ordinary
 healthy condition."  Edin. Med. and Surg. Journal, vol. 19, p. 458. 
284
DELIVERY.
increases until  the  fortieth, when the abdomen, with the
exception of the white lines,  returns to its  natural state,
particularly if the female be healthy.   Michael Alberti, a
celebrated professor of  his day, and  Bohn, professor at
Leipsic, both  recommend the visit to be made within the
week; and in a case before the parliament of Paris, in 1767,
Petit and Louis reported in favor of acquitting a female
suspected of infanticide, on the ground that the investigation
had  been made  at too late a period.*  The following case,
which came before the criminal court of the department of
the  Seine in  1809,  presents  a most striking instance, in
which the delay alone seems to have prevented the detection
of the crime.
   On the 11th of June, 1809, a female named Aimee Perdriat,
went to the lodgings of a friend called Rosine, who resided
in the fifth story of a house in  Paris.  She requested leave
to remain,, as she felt ill with a headache  and a violent colic.
Shortly after  her being shown to a room, a  lodger in the
third story heard a  noise in the water-pipe,  as if  a heavy
body passed through it.  She  was not visited by any one,
except Rosine and  another female, for the purpose of in-
quiring whether she wanted any thing.   About five  hours
after  the arrival of  Aimee, Rosine observed  blood on the
stairs and on the floor of the chamber; and Aimee remarked
that her menses flowed very profusely.
   Suspicions appear to have been excited; and on the 17th,
the  privy was  searched.  A fetus,  placenta, and bloody
clothes were found; and two surgeons, who examined the
body,  deposed  that  no  marks of  violence were  present,
except that the umbilical cord was torn off; that  it  was a
full  grown child; and that from their experiments, it cer-
tainly had breathed after birth, and there were proofs of this
having continued even in the filthy place, from which it was
drawn.
   She was arrested on the suspicion of her having been the

  * Fodere, 1, p. 17. " Hsec primis post partum diebus a medicis dijudicari
possunt, si vero suspicio tardius oriatur, nee in matre, nee in infante, signa
rei recte definiendae supersunt."  (Ludwig, p. 44.) 
DELIVERY.
285
mother 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 Baude-
locque,  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.!
   Delivery is most commonly concealed under the  idea of
destroying the  offspring immediately after birth.  In suspect-
ed cases,  therefore, the examining physician  should attend,
1.  To  the proofs of previous pregnancy.   On these  I have
already dilated;  and  will  only add, that  ordinarily  no
investigation has taken place at the  time when this  was
advancing.  Circumstantial 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 the connexion between the supposed
  * 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 favor, 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.
  Ovarian dropsy has also been mistaken for pregnancy, and the character
of the female injured, until  a proper investigation has led  to the establish-
ment of the truth.
  X The following case which I find in a recent journal, is a most unequivo-
cal one, and we can only explain the decision by supposing that some supe-
rior influence intervened to quash the investigation.
  A female in June and July, 1827, complained of dysmenorrhcea and its ac-
companying 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 dismissed from service and returned to her parents.  On
the 14th of March, 1828, she was understood to have had so severe a haemorr-
hage us to be confined for several days to her bed.  The abdomen was reduced 
286
DELIVERY.
period of parturition, and the state of the child that is found.
An infant recently born, is indicated by the redness of the
skin, and by the  attachment of the umbilical cord  to the
navel;  and the female, if the mother, will be found  to  have
the marks of a late delivery on her.  The question, whether
it was living after birth, belongs to infanticide.
  In pretended delivery,  the female declares herself  a
mother, without being so in reality.  This  is not so revolt-
ing 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 honors.
  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
pretending 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 labor.   Unfortunately, however, the parents of the
child repented of having put it in the hospital, and endeavored
again to obtain it.  Failing in this, they  took steps to dis-
cover 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
in bulk.  These circumstances led to a legal inquiry.  Drs. Millet and Gi-
raudet examined her on the 25th.  They found her skin warm, countenance
slightly flushed, pulse full and frequent, and tongue  natural; the breasts
tumefied and its veins enlarged, and on continued pressure, a thick milky fluid
was obtained  in abundance.  The abdomen was a little swelled, umbilicus
projecting (saillant,) lineae albicantes present, and  the skin wrinkled and
contused.  The insides of the thighs had also red spots.   On examination per
vaginam, the uterus was found heavy and more voluminous than in the un-
impregnated 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 re-
cently swollen.  Le frein de la vulve etait dechire.
  The medical examiners could do no less than to declare that a delivery had
very recently taken place.  The criminal tribunal, however, refused to pur-
sue 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 haemorrhage alone would pro-
duce all these signs.  (Annales D'Hygiene, vol. 3.  p. 221.) 
DELIVERY.
287
words : " A woman who stole a child, in order to pretend

being  a mother," and  was  afterwarwards 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 favored the pretending of maternity, and

she was condemned to perpetual imprisonment.   The par-

liament, 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

infant—for substituting one child for another, and for pre-

tending that a child has been born.!

   Pretended  delivery may present itself  under three points

of view.  1.   Where the female, who feigns,  has  never been

pregnant.   This, if thoroughly investigated,  may  always be

detected.   There are signs which must be present, and can-

not be feigned.   An enlargement of the orifice of the uterus,

and a tumefaction of the organs of generation, should always

be present; and if wanting,  are conclusive against the fact.

Dr. Male  mentions  a case which happened to a surgeon in

Birmingham not long since.   " Being called to  a  pretended

labor, a dead child was presented to him ; but there was no

 placenta.   He proceeded immediately  to examine the wo-

 man, and found the os tincae in a natural state, nearly closed,

 and the vagina so much contracted as not to admit the hand.

 Astonished at this appearance, he went to consult a medical

 friend; but before any  further steps were taken, it was dis-



   * Fodere, vol.  4, p. 406,  from the Causes Celebres.  " A case worthy of
 record occurred lately in the  north of Scotland. A foetus was found in a sink,
 and notice of this occurrence was immediately given to the clergyman of the
 parish, just as he was going to church. The worthy pastor was aware that a
 very few days' delay might render all inquiry fruitless, so at the  conclusion of
 the service, he informed the congregation of what had happened; adding, that
 as the child was found within the bounds of the parish, an imputation would
 necessarily lie against the young women of the parish, and jealousies, doubts,
 and suspicions would arise, to the  total subversion  of Christian charity, and
 good neighborhood  throughout his cure, and inviting all the young women
 who wished to maintain their reputation, to exhibit themselves next morning
 before the kirk session.  Accordingly, on the following day, the minister and
 elders, with a midwife and  the village surgeon, as  assessors, held a grande
 reconnoissance, by means of which the unfortunate mother was detected.
 She was found guilty of concealment of pregnancy." Dunlop.
   t Capuron, p. 18. 
288
DELIVERY.
covered  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 practice
the artifice, to  appease the wrath of her husband, who fre-
quently reproached her for her sterility."*
  Dr. Billard, of Angers, in France, relates the  following:
A farmer, aged seventy-two, had been married four years to
a female aged forty-two, when she declared herself pregnant.
Her abdomen gradually  enlarged.   On the 27th of  July,
1829, she stated, that when alone, at break of day, she had
been  delivered of a female infant.   She had cut the cord
and made  the ligature, and the after birth, which could  not
be found, she had left at the door of the house.   In proof of
her narrative, was her bloody  linen, and a child which  when
placed at her breast^ could obtain no milk.  The husband
was at first elated with the  circumstance, but soon became
suspicious through  the remarks  of his  relatives, and he
delayed to register the  child.
  A  legal inquiry  was  instituted, and  Dr. Billard  was
appointed  the  medical  examiner.  The infant,  from her
account, was fifty-three hours old.   It  was  seventeen or
eighteen inches  long.   The  epidermic exfoliation was in
full activity, and the  skin red.  The cord had  fallen  off
that morning.  It was buried, but he caused it to be  disin-
terred.   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 sebaceous matter, common
to new born infants, was found on it, nor was any meconium
observed.
  Dr. Billard decided from these circumstances, and par-
ticularly from  the  state of  the cord, and its  falling off
spontaneously—from the color of the skin, and the exfolia-
tion—that instead of two, the  infant was probably from five

 * Male, p. 212. A case of a somewhat similar nature is mentioned by Ca-
puron, p. 110—and another by Mr.  Thompson, in London Med. Gazette, vol.
19, p. 231. 
                         DELIVERY.                     289

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 laboring  under the  effects of present  de-
livery.
   Dr. B. now examined the pretended mother.  The breasts
were not enlarged—nor were there any marks of the secre-
tion of milk present.  The abdomen presented no linese.
 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 contraction.   Its mouth  was  neither  tumefied,  nor
irregular.  The result was unavoidable,  Dr. Billard denied
her  previous pregnancy and delivery, and she  was forced to
confess the fraud.*
   The case of Day v. Day, published in 1840 by G. L. Craik,
in his " English Causes Celebres,  or Reports of Remarkable
Trials," deserves an analysis in this place.
   Thomas Day,  of the county of  Huntingdon,  died in 1775,
leaving two  sons,  Thomas  and John.   He devised his pro-
perty, which was valuable, to the oldest for life, with re-
mainder to the heirs of said son, and in default of such issue,
to his younger son in fee.   Under this will, Thomas succeed-
ed to  the estates.   He married  one of his servants, Mary
Lakin, the daughter of a carpenter, who,  after  having borne
him a daughter  which died, professed  herself, in the latter
end  of the year  1774,  to  be  again  pregnant.  She went to
her  native place in Staffordshire, under  pretence of being
delivered there,  where she might have  the attendance of her
mother, and returned in  March,. 1775, with a child which

  * An™le? D'Hygiene, vol. 2, p. 227.  « March 21,1775, a very extraordi-
nary 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 com-
mittee 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 had told him before he went, that  she believed she was pregnant,
it was necessary to show him a child: they likewise acknowledged the ladv
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-law of an estate,
or for some unlawful purpose, the intention of this paragraph is to caution
those persons whom it may concern, to be on their guard against such infer-
nal practices."  (Dodsley's Annual Register, 1775.  Chronicle, p 101)
                     19 
290
DELIVERY.
she called her own, and which her husband received as his
son, and a short time before his death acknowledged as such
in his will.  Not long after, a separation took place between
the husband and wife, and they continued apart until Octo-
ber, 1783,  when  the  former  died.   The  minor, by  his
trustees,  entered  into  possession of the  estates of  his
father.
  It appears  that  some  time previous  to  the death of
Thomas Day, he received an unsatisfactory account respect-
ing the birth of the child, and an attorney at his request,
called on Mrs. Day concerning the same.  She  stated that
the child was not hers.  On a subsequent occasion, she swore
before a Master of Chancery, that she had lain in of a child,
which died, and that she had prevailed on a relation to give
up her child, and that it was this child  which she had taken
to her husband.  Mr. Day, on being made acquainted with
these circumstances, signed the deed of separation, but  de-
clared, that although the  child was not his,  yet as he was
fond of it, he would take care  of it.
  Information of these and other corroborating facts having
reached Mr. John Day, he instituted a trial by ejectment for
the recovery of the estate.  It came  on at the  assizes, in
1784, before Lord Loughborough, Chief Justice of the court
of common pleas, and a special jury.
  For the plaintiff,  it was  proved on the testimony of seve-
ral witnesses, male and female, that Mrs. Day, at the time
of leaving home, had not the appearance of being pregnant;
that she had  not that appearance during any  part of  the
three months which she had spent at her father's house, in
Leigh;  and that she did not lie in there.  It was positively
sworn by  a female domestic in the house of her father, that
when Mrs. Day and her mother set out for Huntingdonshire,
at the end of three months  they had  no child  with them.
Another female stated that she  had  frequently slept with
Mrs. Day while she was at Leigh, and washed her linen, and
she did not appear  to be with  child.   It further appeared in
testimony, that Mrs. Day took away the infant of her sister-
in-law,  and retained it several days;  nor  did she return it 
DELIVERY.
291
 until compelled  by a  magistrate.  This was in February,
 1775.
   The parties (Mrs. Day and her  mother) were  traced to
 Litchfield, at which place  they  had no child  with them.
 At Atherstone, however, they arrived on foot  and went to
 the house of an aunt.  Mrs. Day had a child with her, and
 said " I have brought you my child."  The aunt replied that
 she  did  not know that  she had one, to which Mrs.  Day
 answered, " Oh  yes, I have been to my mother's to lie in,
 and  the child is five weeks old."   They remained some days,
 and  then  proceeded homewards.  Two  females intimate or
 resident in the house testified that Mrs. Day did not suckle
 the  child, and that  she  stated that she had no  milk.   The
 suspicions of the husband as to its paternity were  also fully
 proved.
   This was the  evidence for the plaintiff.   On the part of
 the defence,  after producing the will of Thomas Day, in
 which he described the defendant  as  his son, and left him all
 the property, female witnesses were produced to prove that
 Mrs. Day appeared big with child,  when she left home-
 some of them swore that they had seen her suckle  the child
 while others had  never witnessed it.
   Elizabeth Rutter deposed  that Mrs. Day was delivered of
 a  child at Broseley in Shropshire,  during  the month of
 January, and that she and a midwife were the only persons
 present at the birth—that  Mrs. Day remained  with her a
 month and then returned home.   This testimony  was con-
 firmed by Mrs. Cornes, the step-mother of Rutter.  Mrs.
 Day,  the  mother, was next examined, and her testimony
 agreed with  that of the  two last witnesses.  She had left
 her father's house on account of a  quarrel—and had arrang-
 ed to be  confined at the house of Rutter.   She explained
away the fact of not having the child with her  at Litchfield,
by saying that she had left it at a place near while she went
on a visit to her mother's.  She also acknowledged that she
had sworn that the  child was not hers, but it was for the
purpose of getting it back from Mr. Day. 
292
DELIVERY.
  Several witnesses swore  to the great resemblance of the
child to Mr. Day.
  Lord  Loughborough in summing up, remarked that the
evidence of the  plaintiff was circumstantial only, and not
positive, and it was necessary, in a case of this description,
to make out the fact by the clearest evidence.  On the other
hand, the child had been brought up as the son of Mr. Day,
and his will had fully confirmed this belief.  Notwithstanding
the improbable  accounts of the mother and her witnesses,
he advised  a  verdict for the defendant, which was accord-
ingly found.
  In a few  months after the trial,  Mrs. Rutter and her mo-
ther came to Mr. Horwood, the steward of the Marquis of
Stafford at Trentham Hall, near which they resided, and told
him that what they had sworn on the  trial was false, that
they had never been happy  since,  and were  now desirous of
confessing  the truth.  On being carried before a magistrate,
they repeated  this statement and deposed  that  Mrs. Day
had promised them  money (which she had not paid) if they
would tell the  story of her being brought to bed at Broseley.
The  father  of Mrs. Rutter  also  swore that Mrs. Day had
urged him to accompany his wife and daughter to the assizes
and confirm their  testimony, which he had refused to do,
knowing it to be false.  Important information was further
procured as to the  females who had obtained the child for
Mrs. Day, and also  as to its actual mother.
  Mr. John Day, however,  was so much injured in his pro-
perty, by the  expenses  of this suit, that he was unable to
commence  another.  He died in 1795.   His son, being in a
situation to incur the risk of a  new trial, instituted it, and
the case was-again brought to issue in 1797.  Mr. Erskine
was  the leading counsel for him, while  on the  other side,
were  Messrs. Le Blanc and Garrow,  afterwards judges.
The defendant was now a man grown, of excellent character
and highly popular; so much so that Mr. Day,  in a subse-
quent publication asserts, that  " the town  of Huntingdon,
during the  trial, more  resembled the  scene of a contested
election  than an assize town during the solemn administra- 
DELIVERY.
293
tion of justice,  and such was the state of confusion in the
town, at the time of the trial, that I was obliged to apply
to the mayor to order out his constables to keep the peace,
and to enable me to bring my witnesses into court."
  In analysing this second trial,  I will  only notice  such
additional circumstances as were developed concerning the
supposed pregnancy and delivery of Mrs. Day.
  It was proved by a  respectable witness, that Mrs. Day
was present at  a christening on the 14th of December, 1774
—that she stayed all night, was in good health and spirits
and had no appearance of  being  pregnant—and yet  she
must  have been (if her  account was correct) at least seven
months or more advanced at this time.  It was further shown
that she had been  present  and  stood god-mother  at  the
baptism  of Edward, son of William Riddle, on the 22d of
January, 1775.
  Ann Harris swore that she met a female at the Stafford
market in February, 1775, who wished her to go in quest of
a child—that she accompanied the female to  the house of
Sarah Hollander, who had recently lain in—and that Mrs.
Day had offered money to Sarah, if she would sell her child.
This was refused by Sarah, and  it  may be here added, that
Sarah Hollander  was subsequently called as a witness and
confirmed the correctness of this deposition.  Mrs. Harris
further  stated  that another child was obtained at Wolver-
hampton, and retained by Mrs. Day, until the mother accom-
panied by a constable, reclaimed it.   This evidence also was
confirmed by the mother, Mary Rone, and the constable.
  Among the witnesses  last called for the plaintiff, was Ann
Stokes  or Osborne, alleged  to be  the real mother of the de-
fendant.  She  deposed  that she  had an illegitimate child
born to  Charles Dutten—in the Birmingham Workhouse;
that when the child was about  thirteen or fourteen weeks
old, John Harris made an application to her on behalf of a
lady (whom she afterwards identified as Mrs. Day)  for the
child—promising to have  it well  brought up, and that it
would have property.  She  consented and gave up the child.
She never heard of it again until about eleven years there- 
294
DELIVERY.
after.  She was informed by Mr. Horwood, that Mrs. Day
resided  at  Trentham—and  accordingly  repaired there, but
was not allowed to see her.  About three years afterwards,
she was more successful.  She saw Mrs. Day, who owned
that  she had the child from the  witness; that it had been
well taken  care of, and was now alive and well.  Mrs. Day
further mentioned that there had been a trial about the child.
  Mr. Garrow in his cross-examination endeavored to draw
from the witness an admission that her life had subsequently
been a dissolute  one—in so far as related to the practice of
adultery, (for she  had subsequently married.)   When hard
pressed, she did not deny this, but would not give a direct
answer—and said she  did not come to swear that.  The fact
of her interview with Mrs. Day,  and  the conversation be-
tween them, was confirmed by  Elizabeth Lakin, Mrs. Day's
sister, who was with Mrs. Day at Trentham.
  These were the most important facts in behalf of the plain-
tiff.  For the defendant, it was urged by his counsel, that
several  witnesses were now brought forward, who spoke of
circumstances and conversations which they had never men-
tioned on the trial in 1784.   The inference hinted at, was
of course that they might now  be bribed.
  Mary Harding, then in the  service of Mrs. Day,  and at
that time about fourteen years old,  remembered the depar-
ture and return of Mrs. Day.   She was very large when she
left—had all the appearances of pregnancy—and  on  her
return, the  witness  swore positively, that she  suckled  the
child for a quarter of a year.  The witness acted at times
as a nurse, and was therefore positive on this subject.  When
the child was removed by Mr. Day, the  mother manifested
much grief and distraction of mind.   The  testimony of
Mary Reed, another house  servant, was to the same effect.
" She had seen Mrs. Day suckling the child many times, and
had seen the milk drop from her breast."  Mr. Peck, a sur-
geon and accoucheur in the vicinity, who had attended Mrs.
Day in her  first labor, deposed that this had been a painful
one  and that  Mrs. Day had assigned this, among other
things, as a reason for going to her  mother's—that the sub- 
DELIVERY.
295
sequent pregnancy was a frequent subject of conversation
between him and  Mr. and Mrs. Day, and that he had re-
marked to the former, that " he had lost a job by Mrs. Day
going into the country to lie in."   Mr. Peck also saw Mrs.
Day, about two weeks after her return—and saw the child
attempt to suck, "but I did not see the milk; I am not cer-
tain of  that."  Another female however  swore positively,
that Mrs. Day had suckled  the child in her presence, and
when it was removed from the breast, she saw the milk drop.
  Several witnesses, both male and  female, deposed to the
striking resemblance between the defendant and the late Mr.
Day.
  The jury after a  charge from the judge, rather leaning
towards the defendant, brought in a verdict for the second
time in his favor.
  It is added by  the  editors,  that the defendant declined
receiving the costs of the trial, amounting to <£480, although
they were tendered to him, accompanied with an assurance,
that as soon as he should have got the money, another action
of  ejectment would  be brought.   He  also  refrained from
claiming one hundred acres of land in the possession of
John  Day, although  his right to them was clearly as good
as to  the other property.   Finally, he proposed a compro-
mise, by giving up this very property, which, after much so-
licitation by his friends, Mr. John Day reluotantly assented
to—and thus a bar was placed to all further litigation.
   It is also stated, that some time subsequently, the  defen-
dant was visited at  his house by his reputed mother Mrs.
Osborne.
   Was or was not, this a case  of Pretended Pregnancy and
Delivery?   I incline  to  believe  that  it  was.  The only
circumstances (medical) that seem to militate against  this
opinion, are the presence of milk in  the breasts and the
remarkable  resemblance between the supposed father  and
son.  Yet both these might actually  exist, without necessa-
rily involving the result decided upon by the jury.  We now
know that even unmarried females have suckled children—
and is it not possible, that by constant irritation, milk may 
296
DELIVERY.
have been  produced in the breasts of this female, who had
previously  borne a living  child?  As to the  resemblance,
while we readily allow that this was an extraordinary fact,
we must also confess that it has often occurred in individu-
als born thousands of miles from each other.
  The following case was tried at the Ontario  Circuit in the
State of New York during the year  1840.   An action  of
ejectment was brought by the widow of Oscar F. C, against
two  of his brothers to recover a large and valuable farm.
She  claimed the farm in fee, as the heir at law, of a  child,
to which it was alleged, she gave birth after the death  of
her husband, but which  died before the commencement  of
the suit, leaving her entitled, as heir, to the whole inheri-
tance.  The brothers claimed as heirs at law,  admitting her
right of dower, but denying  her having given birth to a
child.
   It  appeared by  the testimony, that the  plaintiff was
married in  July, 1835, to 0. F. C, he being then a ward in
chancery, as an habitual  drunkard; that he died on the 6th
of October, 1837, of delirium tremens, leaving  no issue born
during his  life.
   In proof of the birth  of a posthumous child, Dr.  K., a
practising  physician at Geneva, Mrs.  K., the mother of the
plaintiff, at whose house  she was, and a sister of the plaintiff
all testified that on the afternoon of the 17th of July, 1838,
she  gave birth  to a female infant; that they  were present
and  assisted at  the birth;  that the child lived about three
weeks and then died and was interred in the burying ground
of the C. family, on which occasion there was a large funeral
attendance, a funeral  sermon preached, and the plaintiff's
family went into mourning.  Mrs. L. a respectable  female
and  near neighbor of that family also testified, that she was
present, not at the very moment of the birth, but immediately
thereafter; that she saw all the appearances usually observ-
able on such occasions—received the new born infant from
the  arms of the physician, as he performed the last  act  of
separation from the mother—that she washed and dressed
it in the apparel that had been prepared, and placed it  in 
DELIVERY.
297
the plaintiff's arms, she being by that time restored to her
bed.  Many witnesses testified that she nursed this child as
long as its health continued, and when that began to fail,
the doctor procured a puppy to supply its place at the breast.
Much proof was also adduced of the appearance of the widow
for months previous to her confinement.
   For the defendants, it was stated, that the above testimony
was in the main false and that the child was a supposititious
one.   In  support  of this, the following testimony  was
adduced.
   A middle aged  man was called, who testified that in 1838,
and for several years previous, he was the captain of a canal
boat, and  that a young unmarried woman, who was the maid
on board  his boat, was discovered in the spring of 1838, to
be pregnant, and as he had  reason to believe, by himself;
that having a family, and being desirous of concealing the
transaction and at the same time of providing for her com-
fort, he applied to a friend in Geneva, to procure a suitable
place for  her during her confinement.  This friend recom-
mended him to Dr.  K., and  he  accordingly saw him.   He
was asked by Dr.  K. when the child would probably be born,
and upon being informed  that the birth might be expected
in the  early part of  July—he, the witness was  directed  to
call again on the  following day.   He did so, and the doctor
then asked him, if he and the girl would be willing to part
with  the  child after its birth,  provided  it could be  well
brought up and inherit a large property; that the  doctor
knew of a widow, whose  husband had recently died and if
 she could have a child within nine months after his death,
it would get a large estate.   The name and residence of the
widow were withheld.  The  witness partially consenting to
the proposition,  was requested  to bring the girl  to the
doctor's office, which he did, and after some private conver-
sation between her and the doctor, he left her  there, under
his assurance  that she would be  well  provided for.  Not
being entirely satisfied that all was right, he called  on the
doctor  some days afterwards and insisted upon being in-
formed where the girl was, that he could obtain no informa- 
298
DELIVERY.
tion  on the subject, and thereupon addressed a letter to her,
inclosing some money  which was  placed in the doctor's
hands;  that being still dissatisfied, he again called  on  the
doctor a few days afterwards, and threatened to expose him
unless he informed him where the girl was; the doctor left
his office, and after a short absence, returned and directed
him to a neighboring house, which he understood to be the
residence of old Mrs. K.—where he had an interview with
the girl, and that  he did  not see her again until the latter
part of July, 1838.  He left her  with the doctor about the
middle of May.  The witness also testified, that some time
after, the girl was delivered of a child, and in the latter part
of July, or the 1st of August in the same year, he had a
conversation with the doctor, who stated to him that the
child lived eight days, and that after  its death, he buried it
in the burying ground, about midnight.
   The female referred  to by  the last  witness,  was next
called and testified to her going to the office  of Dr.  K.
That he told her in a private conversation, that if she would
part with it as soon as born, he could  make it heir to a large
property, and  have it brought up without  any care  on  her
part.  She neither assented to, nor rejected this proposition.
The doctor took her to the house of  Mrs.  K.  where  she
remained until the  17th of July, when  she gave  birth to a
child, which was immediately  taken out of the room where
she  was, by a  sister of the plaintiff, and that she had not
seen it since; that the doctor, and mother, and sister of the
plaintiff were present at the birth. They had all told her that
the child died immediately after it was born, and the doctor
said he had buried it.  She remained at Mrs. K.'s nine days
after the birth of the child, when she was removed to a
place, a few miles  distant, provided for her by Mrs.  K.
While  at  Mrs. K.'s, she was  kept in a room  up stairs,
without being permitted to go into the street, or look out of
the  window, or see any  person except the family.   She
knew that  the child was born alive, for  it cried twice before
it was taken  out  of the  room, and she heard a child  cry
every day  down stairs, after that, as  long as she remained, 
DELIVERY.
299
but had not heard any thing of that kind previously.  She
was positive that her child was born during the afternoon of
the 11th of July.
  Several witnesses also deposed that they had not observed
any  enlargement in the plaintiff  until some time  in  the
month of May.
   To rebut this  testimony, Dr. K. stated, that he had receiv-
ed the last witness,  at the request of the  captain, and ob-
tained board for her at Mrs. K's, because it was convenient
to  attend her at the same place where he was attending the
plaintiff—that she had a male child there, and he was pre-
sent at its birth—but that it was born on the 19th of July,
two days after the plaintiff was put to bed;—that the child
died as soon as it was born, and he took it to his office and
put it into a jar of spirits  to preserve it, but  the spirits not
being strong enough, it " spoiled."  The mother and sister
of the plaintiff again corroborated the statement of the Dr.
in all its particulars.
   After a full and able argument by counsel, the case was
committed to the jury, who in a  few minutes returned a
verdict in favor of the  defendants.
   The above  narrative is  taken from a newspaper report,
but I have reason to believe that it is substantially correct.
I have been  informed  by  one of  the  counsel for the  de-
fendants,  that a strong point against the physician was his
inability to account  for the remains of two children.  Had
he been able to designate  any place where the second was
to be found, search would instantly have been made for it.
   Conceding that the verdict was just, it is easy to explain
how Mrs. L. was called  exactly at the moment when her
testimony would prove available.
   It is not among the  least curious incidents in this case,
that the mother of the child was subsequently well married,
and that her husband was unaware of her previous condition,
until the subpcena was served on her.   On being  informed
of it, he consented and indeed insisted  that she should obey
the process of law and disclose the whole truth.  The plain-
tiff and her  friends probably came into court, with the idea 
300
DELIVERY.
that the circumstances relative  to the  girl were totally
unknown to all, except themselves and the parties immedi-
ately concerned,  and these last, they doubtless supposed,
would  not be desirous of exposing themselves.   Such was,
indeed, the fact, and the  subpoenas were  actually issued,
without being aware of how much importance the testimony
of the  captain and female might prove.
  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
circumstances : The mystery (if any) that has been affected
respecting the situation of the female—her age, and particu-
larly 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 delivery.
  3. Where the female has been actually delivered, and substitutes
a living for a dead child.—This cannot be elucidated by
physical proofs,  unless some persons have  been present at
the delivery.  And in this, as well as in the former case, a
strict  examination  should  be instituted, of the witnesses
who have  attended.  Zacchias and  Mahon* lay considera-
ble  stress  on the resemblance that may exist between the
parent and the child; but this is of little value.
  It sometimes happens that the female dies  shortly after
the  supposed or pretended labor; 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 evi-
dent 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
flattened pouch,  from nine to twelve inches long.  Its cavity
contains  coagula or a bloody fluid, and its surface is covered
  * Zacchias, Lib. 1, Tit. 5, Quest. 4; and Lib. 8, Tit. 2, Quest. 8.  Mahon,
1, p. 209. 
DELIVERY.
301
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 color, so that the uterus is thought to be gangren-
ous by those who are not aware  of the circumstance.  The
surface being cleaned, the sound substance of the womb  is
seen,  and the  vessels are observed to be extremely large
and numerous.   The  fallopian tubes, round ligaments,  and
surface of the ovaria, are so vascular, that they have a purple
color ; and the spot where the ovum escaped,  is more vas-
cular than the rest of the ovarian surface.  This state of the
uterine appendages  continues until the womb returns to  its
unimpregnated state.   A week after delivery, the womb is
as large as two fists.   At the end of a fortnight, it will  be
found almost six inches long, generally lying obliquely to
one side.   The inner surface is  still bloody,  and covered
partially with a pulpy substance, like decidua.  The muscu-
larity is distinct, and the orbicular direction of the fibres
round the orifice of the tubes very evident.   The substance
is whitish.   The intestines  have not yet assumed the same
order as usual, but the  distended caecum is  often more pro-
minent than  the rest.  It is a month at least before the uterus
 returns to its natural  state ; but the  os  uteri rarely,  if ever,
 closes to the same degree as in the virgin  state."!
    In a uterus  which had contracted perfectly, an examina
 tion was made on the second day after delivery. It measured
 eight inches  in length by four and three-qarters in breadth,
 and three in  the  antero-posterior diameter.  Its  parietes

   * The decidua is sometimes produced in cases  of difficult menstruation;
 and it is important to remember, that it may be mistaken for abortion.  It re-
 sembles it in the pains, discharge of blood, &c.  But the one presents an em-
 bryo, at various stages of increase—while in the  other, that is altogether
 wanting.  It seems now agreed, that the discharge of this membrane, (recog-
 nized by Dr. Baillie  to be  similar in structure to the decidua,) occurs  fre-
 quently in unmarried females. It would appear to be generated spontaneously
 by the inner membrane lining the uterus.  (Blundell's Lectures, Lancet, N.
 S. vol. 4, p. 577.  Ashwell on parturition, p-. 119.)
   t Burns' Midwifery, p. 326.  The dissections of Mr. Mayo, (quoted in Lon-
 don Medical Repository, vol. 21, p. 343,)  and of Dr. Hewson, (North Ameri-
 can Medical and Surgical Journal, vol. 9, p. 371,) of  females dying immedi-
 ately after delivery, corroborate  the above statement.  In  both, the os tincae
 was much dilated; being, in  the former, when disposed in a  circular form,
 about two inches in diameter.  In Dr. Hewson's case, the uterus  was about
 the size of a man's fist. 
302
DELIVERY.
were from one inch five lines to one inch in thickness,  and
its internal surface, as well as its appendages, corresponded
to the description already given.
   In another, where the woman died sixteen days  after ma-
ture delivery, the uterus was five inches two lines in length,
three inches eight lines in breadth, and its substance averaged
in the body and fundus from seven to eight lines in thickness.
   Dr. Montgomery,  from  whom I have  taken these state-
ments, adds, that at the end of a week, the uterus has a length
of between five and six inches,  and  after a fortnight, does
not  exceed five  inches : its vascularity is diminished, and
the thickness of its parietes reduced about one-third.*
   In cases of abortion or premature delivery, but of course
depending on  the  length  of the  period  of gestation, the
uterus  will be found as small in a few days  after  delivery,
as it would at the end of the same  number of weeks  after
parturition at the full term.

   John Hunter examined one of a female who poisoned her-
self about one month after impregnation.  It was highly vas-
cular, and covered on its internal surface  with  a pulpy
substance, which  was evidently  coagulated blood.  The
cervix  and os uteri were  natural, but the  body near the
fundus was a little enlarged.  Nothing like an embryo could
be detected.!
  * Signs of Pregnancy, p. 315, 316.
  t Transactions, Society for promoting Medical and Chirurgical Knowledge,
vol. 2, p. 66.  See also Dr. Robert Lee on the state of the Uterus, in the first
month after conception.  London Med. Gazette, vol. 31, p. 241.
  In October, 1845,1 received the following narrative from Dr. George Burr,
of Bingham ton, in this state.   On the  16th,  a young female aged  twenty, a
hired person, after appearing gloomy for some time, was found drowned in
the Chenango canal.  No marks of violence were present.  On dissection the
uterus and its appendages were found highly vascular; the left fallopian tube
enlarged, and in the corresponding ovarium a fissure.  On opening the cavity
of the uterus, a small vesicular body of the size of an almond presented itself
and protruded through an incision, and this again was attached to the poste-
rior portion  of the inner surface, by a  delicate vascular connection.  The
vesicle itself was surrounded by a vascular  membrane injected with blood.
The vagina was large.  Drs. Burr and Jackson, the examiners, gave it as
their opinion, that the above was an ovum, and that the female was in the
early stage of pregnancy.
  On the other hand this was disputed, from the former good conduct of the
female, and also from th.e statement that some three weeks previous, appear-
ances of a menstrual discharge had certainly been noticed.
  I fear that the facts are too well marked to countenance the latter belief. 
DELIVERY.
303
  Dr. Robert Lee mentions the  following  particulars  of a
dissection, in a case two months advanced.   The uterus was
double the size of one unimpregnated,  and was five inches
long,  three and a half in the greatest lateral direction, and
two in the antero-posterior diameter.*
   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.!
   In  a case that occurred to  Dr. Montgomery, death fol-
lowed thirteen days after premature delivery, in the seventh
month.   The uterus  measured only three inches nine  lines
in length, by  two inches nine  lines  in breath,  and its  sub-
stance was from six to seven lines in thickness.J
  * Medico-Chirurgical Transactions, vol. 17, p. 493.
  f Boston Med. Magazine, vol. 3, p. 580.  The cord was  eleven and a half
inches long.   The child, a female, measured eleven and a half inches, with
fine down on the head, but the nails not formed.
  X Signs of Pregnancy, p. 316.
  The following  measurements from Velpeau and  Madame Boivin, may be
useful in some cases:
  Length of the unimpregnated uterus  from the most salient point of the
    fundus to the end of the anterior lip of the neck, 26 lines, and from that
    to 28.  (Velpeau.)
  Length of neck, 13 lines.
  Uterine walls, 5 lines in thickness.
  Cervical walls, 3£ to 4 lines, (2  to 3, Velpeau.)
  Weight without appendages, 4.9 drachms, (Boivin,) 8 to 12 drachms, (Vel-
    peau.)
  Breadth of neck, 9i lines: thickness,  7 lines.


                     After several Pregnancies.

         Total length,    ....    2i to 3 inches;
         Length of neck, -    -   .    -    13 to 15lines;
         Length of body, ....    2 inches;
         Breadth of neck, -    -   .     .    18 lines;
         Thickness of neck,   -   -    -    8 to 10 lines;
         Thickness of uterine walls,     -    6 lines;
         w!r'?ht>......li to 2 ounces.
   (Velpeau s Midwifery, p. 61. Edin. Med. and Surg. Journal, v. 39, p. 210.)
  " The weight of the uterus, at the end of the ninth month, varies from one
 and a half to two pounds, while the unimpregnated is  about 14 drachms in
 weight, and that of females who  have  been  several times pregnant,  18
 drachms."  (Orfila, Lecons, 3d edit. vol. 1, p. 249.
  " The virgin uterus (says Dr. Montgomery) is about two and a half inches
 long, one and three-fourths broad, and about an inch from back to front, with
 a cavity which would not more than receive into it the kernel of an almond.
 According to the calculations of  Levret,  its superficies may be taken  at 16
 inches, but at the end of the ninth month of gestation, its length is from 12 to
 14 inches, its breadth from 9 to 10, and from back to front from 8 to 9 inches.
 Its superficies is  now estimated at about 339 inches; and its cavity, which be- 
304
DELIVERY.
   As I  am on the appearances  found after death,  I may as

well mention that Chaussier and others have, in a number of

cases, noticed a peculiar degree of thinning in the  centre of

the osseous  plates  of the bones of the ilium, as an indica-

tion 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  London Zoolo-

gical Society, that  " an anatomist could always tell by  the

thinness of the ossa ilii,  if the  woman had ever been preg-

nant ; and ascribed this  to the  pressure of the uterus  pro-

ducing absorption of their internal  structure."  Lancet, vol.

12, p. 133.*

   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  color.!  In the  early  stages  of pregnancy,


fore was equivalent to | of a cubic inch, will now contain 408, so  that its ca-
pacity is increased a little more than 519 times, and its solid substance from
4£ to 51 cubic inches, or nearly in the ratio of 12 to 1."  The blood vessels
also increase in size, while  the uterine nerves have also been noticed by Wm.
Hunter, Chaussier, Tiedemann and Dr. Robert Lee, to enlarge during gesta-
tion.  Signs of Pregnancy,  p. 3. London Med. Repository, vol. 21, p. 167.
Edinburgh Med. and Surg.  Journal, vol. 56, p. 268.   London Med. Gazette,
vol. 31, p. 465.
  But according to Mr. Snow Beck, (Phil. Trans. 1846,) it is doubtful whether
the nerves increase in size during pregnancy.   Briquet has confirmed  the
opinion as to the increase in diameter  of the arteries, and adds that they ac-
quire an increased elongation, which renders them tortuous, and that this
helicine or spiral disposition once produced is retained ever after during life.
It is only  (he says) produced by pregnancy.  (Edinburgh Med.  and  Surg.
Journal, vol. 56, p. 289.
  * For Rokitansky and Ducrest's statement of an ossific product  on the  in-
ternal surface of the cranium in puerperal females, see British and Foreign
Med. Review, vol. 19, p. 293.
  f It should be understood that there is considerable diversity of opinion as
to the manner in which these bodies are formed.  It is supposed, 1. That it is
by the thickening of the inner membrane of the Graafian vesicle that the cor-
pus luteum is formed. This is the doctrine of Professor Baer.  2.  Dr. Mont-
gomery considers that  it is formed by and  enclosed between the two mem-
braneous coverings of the vesicle.  3.  Dr. Robert Lee denies each of  these,
and asserts it to be formed around the outer surface of both these coats of the
Graafian vesicle,  and that the stroma of the ovarium is in immediate contact
with the external surface of the yellow matter.   Dr. Patterson, from his ex-
aminations, would seem to show that the second is the correct doctrine, " a
lymphy deposit between the layers of the Graafian vesicle."  Dr. Patterson's
papers are contained in the 53d, 54th, and 55th volumes  of the  Edinburgh
Med. and  Surg. Journal, and the reader will find Dr. Lee's, and a discussion
between him and Dr. Patterson, in London Medical Gazette, vol. 31. 
DELIVERY.
305
and for some time after delivery,  they are extremely vascu-

lar, except  at their centre, which  is  whitish; and in the

middle of  this white  part is  a cavity, from which  the im-

pregnated ovum  is  supposed  to have  proceeded.   They

gradually  fade  and wither ; but there is no regularity as to

the time of  their disappearance.*

   From  the  experiments  of De  Graaf and  Haighton, it

seemed to be  decidedly established, that their existence was

a  certain  indication of previous  impregnation;!  and such

was the  general belief of the profession.   The causes of a

more  minute investigation on this point, and of the invalidity

of this proof, will be best understood by the introduction of

an important  medico-legal case.  I  make no  apology for its

length, since it  reviews, as  it were, all that we have stated

on the subject of delivery, and points out the  difficulties that

may occur in  judicial investigations.


  See also T. Wharton Jones, in London Medical  Gazette,  vol. 33, p. 460,
who coincides with Dr. Lee.   Dr. Knox, in ibid. p. 605.
  * 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 preced-
ing conception,  is never to be found along with that of  a more recent, when
gestation has arrived at its full term; but in cases of miscarriage, repeated
at short intervals, it may.  At the  time of  delivery, the corpus  luteum is
neither so large nor so vascular as at the earlier periods of pregnancy, except
the woman should happen at the time of her death to be labouring under in-
flammation of the uterine system."   In case  of a death five weeks after de-
livery,  it was diminished about one half in size, was closer in its texture, and
its colour  becoming indistinct, but the radiated central cicatrix  was quite
obvious.  Dr. Montgomery describes the corpora lutea as almost always oval
in form.
  In a dissection  at St. Bartholomew's, in Sept. 1837, of  a  female who  had
been delivered six months previous, the cicatrix  of a corpus luteum  was
found on cutting into the left ovary.  It was white and radiated, and sur-
rounded with a dark grayish substance, passing between and marking the
outlines of the rays of white.   The reporter remarks that it  almost precisely
resembled that  figured by Dr. Montgomery as found in the body of a female
who had died five months after delivery. London Med. Gazette, vol. 21, p. 24.
  Dr. Robert Lee, however, remarks :  " The corpus luteum  has almost com-
pletely disappeared, and the ovarium returned to its natural size about three
months after parturition.  A small depression on the surface, and a slender
white line running into the substance of the ovarium, are all the traces of
the corpus luteum which remain in an ovarium three months  after delivery."
Medico-Chirurgical Transactions, vol.  22, p.  334,  and London Medical Ga-
zette, vol. 24, p. 505.
  It is  difficult to reconcile this with the declaration, " attested by Meckel
and many others," that the corpus luteum is often distinctly visible at least
for a twelve month.  This may, however, refer to the cicatrix merely.  See
British and Foreign Med. Review, vol. 10, p.  73.
  t Philosophical Transactions, vol. 87, p. 159.

                      20 
306
DELIVERY.
  Charles Angus, Esq., of Liverpool, was, in  September,
1808, tried at Lancaster for the murder of Miss Burns, a fe-
male 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 poisoned.  The
medical examiners  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.   Accord-
ingly, on the trial, the medico-legal questions agitated were,
1. Whether Miss Burns had died from the effects of poison;
and 2. Whether she had been delivered of a child recently before
her death ?*   I  shall  notice the first question in its proper
place, and here confine myself to the second.
  The testimony respecting her situation while living, appears
to be contradictory.  Before the coroner, the servants swore,
that for some time previous to her death, she had increased
very much in bulk, and  had  the appearance of a pregnant
woman.  Shortly before her death, the pain in her body was
so severe, that she could not put her feet to the ground, and
could scarcely bear to be touched ; and she was occasionally
observed to hold fast with her hands to the end of a sofa, on
which she sat.   These pains continued during the whole of
Wednesday and Thursday, but on Friday morning (the day
she died,) they  had  gone  off; she  appeared to be lighter,
and was able to walk  across the floor.   She was  also dis-
tressed during her  illness  with retention of urine.  On the
trial, the witnesses for the prosecution  swore that she had
every  appearance of being pregnant, while those for the
prisoner swore that for twelve months before her death, she
had been very  poorly,  and had  been  irregular for  some
years—that she  had a great difficulty in breathing, and com-
plained 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

  * Mr. Angus was indicted on two counts—1. For poisoning Miss Burns;
and 2.  For administering poison (oil of savine) in order to procure an abor-
tion. 
DELIVERY.                    307
so plump  as she used to be  in  health, but swelled at the
stomach—and that she had no  appearance of being preg-
nant.  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
surgeon, placed his left hand upon the fundus uteri, and in-
troduced 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 color than  the rest, and about four inches and a
half in diameter.  This space was rough and rugged^ and a
small fragment of what appeared to be the 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 internal 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 fingers of a hand drawn together in the
form of a  cone, would pass through without in the slightest
degree distending it.   Vagina ipsa admodum dilatata.  Labia
ejus fuerunt livida; et undique sanguine fcedata.
   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 re-
mark, that the enlargement of the uterine vessels within the
boundaries of the placental mark, and the mark itself, were
to them  decisive—that mere  enlargement of the cavity of
the uterus, and dilatation of the os uteri, and even hsemorr-
hage  might  have been occasioned  by other  causes  than
pregnancy, as by dropsy;  but  no form of dropsy would oc-
casion that mark, and no dropsy would explain the extraordi-
nary enlargement and dilatation of the uterine vessels within
that  mark. 
308
DELIVERY.
  On the trial,  however, Dr.  Carson of Liverpool,  being
examined 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 opinion, the testimony of Sir Charles M. Clarke,  lectu-
rer on midwifery in London, to whom the uterus  was shown
after  the  trial, may be opposed.  " I have seen," says he,
" uteri after the death of patients lately delivered, in whom,
however, there was no haemorrhage, which have been con-
tracted in no  greater degree than the uterus which is  in the
possession of Mr. Hay."  Besides, it is  evident, that  the
uterus had contracted, and was not at its maximum of dila-
tation ; for if it could not contain more than a quart of fluid,
it certainly could not, in that state, have contained a  fcetus
with its placenta and membranes.
  Dr. Carson next intimated that the  appearances which
were supposed to indicate the  recent expulsion  of a fcetus,
might be  explained, on the supposition that  dropsy  of the
hydatids  was  the disease under which Miss Burns labored.
These hydatids, he observed, are attached by pediculi  to the
internal  surface of the womb, and the  action necessary to
expel them, would cause a  dilatation of the os uteri.  He
supposed also, that the vessels  nourishing the hydatids  might
be so much smaller than those  nourishing  a fcetus, 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 chap-
ter.   I will add, that Dr. Baillie  never saw an  example of
hydatids of the uterus ;* and Dr. Denman, although he ad-
mits  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,,
* Morbid Anatomy, 3d ed., p. 376. 
DELIVERY.
309
delivered in 1765, gives the most minute account of these
extraordinary 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 dis-
tinct 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 pla-
centa, but they may  be in other parts of the uterus.  Some-
times there are vast heaps of them in the cavity of the uterus,
and  no  remains of the  placenta.  I ventured, from seeing
hydatids coming away from  the uterus,  to say that the wo-
man was with child, because they most  commonly attend
the placenta.  I have seen pails full of hydatids come away
from the uterus, with pains,  the placenta and 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
considered  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 re-
lated by Dr. Bostock, to whom they were communicated by
Mr. Kendrick, surgeon at Warrington,  of the disease  under
consideration, and in each of them the medium of attach-
ment to the uterus was a placenta about the size of half a crown.
I will repeat again in this place, what I have before endea-
vored 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;* 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
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
f Page 253. 
 310                     DELIVERY.

 few can review this case, and  not come to the conclusion
 that  she had really been pregnant.  The charge of infanti-
 cide  does not appear to have been made, and of course ought
 not,  without the previous finding of an infant;  but in every-
 thing that relates to the verifying of sexual connexion  and
 its consequences, and which in  this instance must have been
 criminal,  the proof seems to be complete.   Even hydatids,
 as we have sufficiently shown, are to be considered, in a vast
 majority of cases,  as indications of impregnation.  If pre-
 sent  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 ex-
 amined.   They were then divided in the presence of a num-
 ber of physicians, and a corpus luteum  distinctly perceived
 in one of them.   Mr. Hay took the uterus  and its appen-
 dages to London, and showed it to the most eminent practi-
 tioners 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 pregnancy.   And it appears to have been
 universally allowed, that the discovery of the corpus luteum
 proved the fact beyond a doubt.*
   Subsequently, however, to this time, Sir Everard Home
 investigated the subject,  and asserted that the corpora lutea
 may  be  present without impregnation.   He examined  the
 ovaria of several women  who had  died virgins, and in whom
 the hymen was too  perfect to admit of the  possiblity of
 impregnation; and found that there were not  only distinct
 corpora lutea, but also small cavities round the edge of the
  * 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 pam-
 phlet 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
Journal, vol. 21; and the Edinburgh Annual Register, vol. 1, part 2, p. 188.
I may add in this place, that a rude but instructive plate of hydatids, formed
like bunches of currants, is contained in  Stalpart, vol. 1. p. 302. 
DELIVERY.
311
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  strengthened
by the corpora lutea having been found in the female quad-
ruped, after a state of periodical lasciviousness,  where  no
copulation had taken place.*
  Dr. Blundell, states that there  are two  kinds of bodies
found in the ovaries—one fabiform, and the other spheroid.
The first,  when  divided,  have  a shallow cavity; and it is
these  alone which constitute what we call corpora lutea.
" The latter  may he produced by impregnation;  but  at
present, to some it may appear  that they are rather the con-
sequences 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 seventeen,  who 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  a little bigger than a
mustard seed.  Dr.  Blundell  hence  concludes, that " the
fabiform  corpus  luteum  with asterical cavity, of a  yellow
color, 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 knowledge, as a
strong presumptive proof of impregnation; adding, however,
at the same  time, that I  conceive a jury ought to be cau-
tious 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 circum-
stances, a corpus luteum may be produced without sexual connexion.  (Bos-
tock's Physiology, vol. 3, p. 29.   Elliotson's Blumenbach, p. 468.^  Dr. Pat-
terson, however, goes farther back, and  refers the first promulgation of this
opinion to Malpighi, in 1686.
  f Blundell's Lectures,  Lancet, N. S. vol. 4, p. 229.  Medico-Chirurgical
Transactions, vol. 10, p. 263.  Dr. B. divided the uterus in rabbits, and al-
lowed 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.  (Lectures, Ibid. vol. 3, p. 258.) 
312
DELIVERY.
  It is proper here to add, that Sir Everard Home supposed
that impregnation was necessary to the expulsion of the ova;
and  Mr.  Stanley corroborates this idea, by expressing  a
doubt whether the effect of the excitement  on the ovary of
the virgin can  extend  beyond the rupture  of the vesicle,
and the production of the  corpus  luteum.   It seems to be
conceded that it is smaller, and not marked by the extensive
vascularity  of the contiguous  parts of the ovarium.*
  A late  writer, however, (Prof. Montgomery  of Dublin,)
decidedly controverts these statements.   After noticing the
remarks of Blumenbach and  Meckel, and endeavoring  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 de-
cisive  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 when-
ever they are found, they furnish  incontestable  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 im-
pregnation, 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 vascular, and cannot be
injected.   5. Their texture is feeble—never  presenting the
soft and glandular appearance so characteristic of the real:

  Dr. John K. Mitchell, in his experiments on rabbits, obtained similar  re-
sults, although he suggests the possibility of corpora lutea being a proof of
intercourse merely.  (Chapman's  Journal, N. S. vol. 5, p. 256.)
  See also Dr.  Robert Knox's papers on the history of the Corpus Luteum, in
Lancet, N. S., vol. 26, p. 226, and  London Med. Gazette, vol. 35.
  * Transactions of the College of Physicians of London, vol. 6, p. 425.  Sir
E. Home dissected a female who had been impregnated a  week before death.
The ovum was found in the uterus, enveloped in coagulated lymph. Two
corpora lutea were  observable, and there were several  cavities from which
ova had previously made their escape.  The os tincae was closed with a thick
jelly ; but the opening to  the fallopian  tubes was pervious.  (Annals, vol.
9, p. 468 ; and vol. 11, p. 54.) 
DELIVERY.
313
And 6. They have neither the central cavity, nor the radia-
ted cicatrix which results from its closure.*
  It is hardly necessary to add, that Dr. Montgomery is a
firm believer in the presence  of a  true  corpus luteum being
the product of conception.!
  Such was the prevailing diversity or agreement in opinion,
at the time when the last edition of this work  was publish-
ed.   I have now to add, that since that time, a great change
has  occurred,  and it  would seem to  be quite generally,
although  not  universally, conceded  that  the appearance
which we have  been considering, may occur during the pe-
riod of menstruation,  independent of sexual connexion.  I
have referred below to publications on  this subject, and will
only  quote the  observations of the Edinburgh Med.  and
Surg. Journal, (vol. 61, p. 493) in its analysis of the work
of M. Raciborski.  "They  (the cases given) fully bear out
M. Raciborski in  the view he had  adopted,  viz., that  in
uniparous animals one  ovum, and in  multiparous animals
several ova, are developed every  time the animal comes in-
to heat, and are thrown off independently altogether of the
animal having access  to the  male; that the same  occurs in
women, every time they  menstruate; that Graafian vesicles,
therefore, are to be found in the ovary, whenever the animal
is at the rutting season, or  when women are  menstruating,
and that corpora lutea, follow the bursting of the vesicles in
every case.   Neither the presence of  corpora  lutea, nor  of
 Graafian vesicles in the ovaries,  are therefore  any proof of the
   * Cyclopedia of Practical Medicine, ut antea.  It is evident that the com-
mon opinion is incorrect, that the number of children which a female has had
can be ascertained by the number of corpora lutea in the ovary.
   t The following note of Dr. Dunlop, published in the second edition,—
   " A recent case has, in my opinion, completely overthrown the theory that
 even strong passions are necessary to the formation of the corpora lutea. My
friend, Dr. Mackintosh, Lecturer on Midwifery in Edinburgh, has in his mu-
 seum a preparation taken  from the body of a child, which he,  in company
 with Dr. John Scott, dissected at Pierceshill Barracks.  The subject was not
above five years old, and the hymen of course was entire. She died of tuber-
cular disease in the lungs;  yet in her ovaries were numerous corpora lutea,
as distinct as I ever saw them in the adult unimpregnated female."  Dun-
lop. *******  ----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." 
314
DELIVERY.
loss of virginity, or of a female having had access to the male.
Nothing but  the presence of a fecundated  ovum in the uterus
can prove this."*
II.  Of some medico-legal questions connected with the subject
                         of delivery.
  1.  Can a woman be delivered without being conscious of it ?
This   question must be answered in  the negative,  with,
however, some exceptions.   Delivery  is  undoubtedly to a
certain degree independent of the will, and there may hence
be certain situations  in which it will take  place  without the
female's  knowledge.  The  administration of  narcotic sub-
stances may cause  such  a state; as in the instance, in  1641,
of the Countess  de  Saint Geran, who  was plunged  into a
deep  sleep by a narcotic beverage, and during  it, was deliv-
ered 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 advantages of  her  situation.!  There is
also  a class of  disease commonly  called  comatose, and
accompanied either with or without fever,  during the opera-
tion 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 labor,  and  was
  * Raciborski on the periodical depositer of ova, by women, and the females
of the mammalia.  Medico-Chirurgical Review, vol. 38, p. 56.  Girdwood in
Lancet, N. S. vol. 31, p. 825. Dr. Power, in London Med. Gazette, vol. 34, p.
109, 217.  Dr. Patterson's paper as already quoted.  There is much dispute
as to the originality of the idea.  In England it is claimed for Power, and for
Girdwood, and in France the matter  is in doubt between Gendrin and Ne-
grier.  See also a paper by Mr. Girdwood on Menstruation and its occur-
rence in Animals.  Lancet, Dec. 7, and 14, 1844.  Bischoff's observations in
Medico-Chirurg. Review, vol. 44,  p. 208, Dr.  Lee's papers.  Raciborski, in
Bulletin De L'Academie Royale de Medecine,  vol. 10, p. 114 ; Dr. Wm. Da-
vidson, in London and Edin. Monthly Med. Journal, vol. 1, p. 871.
  With these should be consulted, Dr. Robert Knox, in London Metl. Gazette,
vol. 33, p.  371.  Dr. Charles Bell,  in Edinburgh Med. and Surg. Journal,
vol. 62, p.  320, and a review of the subject by Mr. Paget, in British and For-
eign Medical Review, vol. 17, p. 271, also T. Wharton Jones, in London Med.
Gazette, vol. 34, p. 625.
  t Fodere, vol.  2, p.  10,  from the Causes Celebres.  The authors of this
crime were discovered, and the child was restored to its rights, in June, 1666. 
DELIVERY.
315
delivered without being conscious of it.   I will only add to
these, the account given by Dr. Hoyer, of Mulhausen, of a
female dying in labor, who was put on the bier for interment,
and while there, an infant was  suddenly born.*
   These examples prove  that it is possible for a woman to
be delivered without being conscious of it; but they at the
same  time show,  that if some extraordinary and striking
cause do not intervene, the  assertion is to be  disbelieved.
The early pains of pregnancy may be mistaken for those of
colic!—flooding may  commence during  sleep;  but  it is
hardly credible that  the whole process of labor and delivery
may be  gone through  by  a  healthy woman,  and of sound
mind, without  her being aware of it.  I  have given below
 * Fodere, vol. 2, p. 11. Mr. Shaw, in his Essay on Partial Paralysis, quotes the
following case from Dr. Cheyne's Essay on Apoplexy. " A woman was attacked
with apoplexy, and lay hemiplegic for two days—at the end of which time,
she was delivered of a living child, the uterus contracting in the most perfect
manner, so as to expel the foetus and secundines, and then contracting regu-
larly, so that the flooding which might have been  anticipated, did not take
place."   (Journal Foreign Medicine,  vol. 3, p.  20.)   See also Annales
D'Hygiene, January, 1845.
  Dr. Montgomery cites several cases of delivery  occurring during sleep.
They are all cases of  females who had had children previously, and in whom
it is probable that a single pain was sufficient.
  f " While  lecturing on the subject of  concealment of pregnancy, in the
winter of 1823-4,1 received the following extraordinary case, from my friend,
Mr. MTntosh.  ' I was consulted about a married lady, in the spring of 1822,
who was supposed to be in a very bad state of health.  She had been attend-
ed 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 ab-
domen more and more distended.  He sent for the family surgeon, who sus-
pected it might be pregnancy, attended with peculiar nervous irritability,
and recommended that I should be called in to examine more particularly. Ac-
cordingly I waited on her, and as she sat on her chair, the nature of the case
became  perfectly  clear, as I distinctly perceived the motion of the foetus.
This I mentioned, but the lady scouted the idea.  I warned her to get baby
linen and dresses ready, which she did not do, so convinced was she that she
was not pregnant.  In six weeks afterwards, I was suddenly called and found
the patient in labor; 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 labor, 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 actual
situation, till she  heard the child  cry and it was put into her arms.  Both
mother and child did well; and I am engaged to attend the mother a second
time in November, 1823.'"  Dunlop.
  A somewhat similar case, but unsatisfactory in its details, in which preg-
nancy was not suspected, and labor  pains were probably wanting, was com-
municated to the Royal Medical and Chirurgical Society, May 10,1842.  Lan-
cet, May 14,1842.  London Medical Gazette, May 20, 1842. 
316
DELIVERY.
several cases  that are deemed exceptions to this rule, and

submit their value to my readers.*

   2.  Can a woman, if alone and without assistance, prevent her

child from perishing after delivery?  This is a most important

question, and deserves  our  serious  consideration, from its

bearing on  the subject of infanticide.

   There are undoubtedly many cases, in which an unassisted

female will be  unable to  prevent  the death of her infant.

Among  these, may  be   mentioned,  very  rapid  and  early

delivery.  Instances of this nature occur to all accoucheurs,

and Fodere relates of his own wife, that a single pain brought

forth the child.   Such is  the conformation  of the pelvis, and

so powerful the action  of the womb,  that the  membranes

and fcetus 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


  * Fodere, vol. 2, p. 10.  Capuron, p. 129. Dr. Asa B. Brown, of Somerset,
Niagara county, kindly transmitted  to me a case which occurred to him in
1830.  The female  was in labor  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.
  Dr. Leonhard gives the case of a female, laboring under severe small pox,
to whom an enema was administered in consequence of constipation.  She
was placed on the night stool and remained there a quarter of an hour, when
becoming faint, she attempted to return to  bed.  She found herself connected
with the stool with a band, and on examination, a living child was discovered
in it.   She had been totally unconscious of the delivery.  Her situation,
however, must have been extremely low, as she died in half an hour  there-
after.   American Journal Medical Sciences, vol. 22, p. 499.
  Mr. Rawson, Surgeon, relates the following case :   He was sent for to at-
tend a young married female aged twenty-two  years,  of respectable family,
short, plethoric and healthy.  She had been married ten months.   Mr. Raw-
eon had to ride three miles.  The waters had been discharged, but the female
informed him, that she had no pains, and that the discharge of the  waters
was not attended with any uneasiness, not  even  sufficient to have awaked her,
had she happened to be asleep at the time.
  The os uteri was found  dilated  and the head presenting.  The child was
slowly and unremittingly but forcibly expelled.  The female betrayed no
symptoms of uneasiness whatever, and although Mr. R. watched her counte-
nance, she did not exhibit the least consciousness of the child's expulsion, but
expressed her surprise on seeing it.  The child was strong and lively, and
with the mother, did well.  Lancet, November 27, 1841.
  On the question considered above, the reader will find some judicious re-
marks by Dr.  Charles Clay (Lancet, June 18, 1842) in a paper entiled " On
the prevalence of  almost unconscious parturition in Manufacturing Districts,
with remarks on unconscious conception and parturition."  The term uncon-
sciousness is decidedly misapplied.
  t 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 
DELIVERY.
317
state  of the parts is,  however, very uncommon in  a first

delivery,*  and  this is the one that commonly  is  considered

in cases  of  infanticide.   If a woman  has, in  a previous

labor, experienced so  rapid  a parturition, it is her duty to

guard against its consequences, when a second is impending.

Another  possible circumstance is, that a woman  may  be

taken in labor and delivered  while passing her faeces.  The

pressure of the uterus in the latter days of pregnancy, pro-

duces an inclination of this kind, and even during labor it is

very common.!   But delivery in this position may not only


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 diffi-
culty saved.
  The following are fortunate cases :
  " The following case I had from Dr. Marshall.  The wife of a bombardier
of artillery, while stepping out of her bed, in the ninth month of her preg-
nancy, dropped the child on the floor.  She had no warning of her approach-
ing labor, and luckily the child was unhurt.
  Another case I should be afraid to state, but that I had it from a gentle-
man of unquestionable 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, find both it and the mother did well.  In this case, neither
the lady nor her husband had the slightest suspicion that she was pregnant."
Dunlop.
  * Mahon, vol. 2, p. 381.
  t I apprehend that it is as frequent with cases of this description, to fur-
nish 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 Lon-
don Medical and Physical Journal, (vol. 8, p. 448,)  mentions the instance of
a lady, who being attacked with diarrhoea towards the close of pregnancy,
was one day seized on the night-stool with a labor pain, and in a short time
brought forth a child, before she was  able to rise and give the alarm.  He
was immediately sent for, and rescued both mother and child from their per-
ilous 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 sus-
picion—not so with an unmarried, seduced female.   The remark of the Edi-
tors of the Edinburgh Medical and Surgical Journal,  answers the argument
to be drawn from such unexpected occurrences.  " So sudden a delivery can
only happen to a person who has borne children before."  (Vol. 19, p. 454.)
But is it not possible for a similar case to happen with  a first child ?  If so, it
must have its full weight in cases of infanticide.  Dr. Davis gives us the fol-
lowing 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 paturient
effort took place, and the child was suddenly expelled.  It fell and was swal-
lowed 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 
318                      DELIVERY.

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 hsemorrhage, and con-
sequent 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
require the warm bath, rubbing with stimulant applications,
&c.  in order  to preserve their  life.   An unassisted mother
cannot of course  save these.   It has  also  been  suggested,
that the female may be suddenly delivered while in a stand-
ing  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 hsemorrhage conse-
quent on  a forcing away of the placenta-!  The cord may
also be wound round the neck, and thus prevent respiration.
   Lastly, the infant may perish, and  the mother not be able
to prevent, when  the  umbilical cord has not been tied after
being cut, broken  or torn.   The first of these, however, is
such a  proof of  presence  of  mind, that we may justly be
distrustful, if she denies being afterwards unable to tie it.|

 was servant, was subpoenaed as a witness, and swore that it was perfectly
 possible for women in labor 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 incompetent and criminally ignorant evidence, the un-
 fortunate prisoner was found guilty of the crime of infanticide and executed.'
 (Davis' Obstetric Medicine, p. 24.)
   * Mahon, vol. 2, p. 383.                     t  Smith, p. 370.
   X The following remarkable case shows that it is possible for the division
 of the funis to " occur in such circumstances as to imitate precisely the effects
 of criminal violence inflicted after delivery."  Mr. Chamberlayne of London
 relates of a patient of his, who was taken so suddenly in labor, that the child
 shot forth from her with such force a's to separate the funis, which broke ex- 
DELIVERY.
319
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 gold-
smith at Marseilles, was seized in  labor while walking her
room.   The infant fell, and the cord broke.   She took it up
and called for assistance, but was not heard.   Finding  that
it was losing blood by  the cord, she compressed it with her
fingers, and  held it so for two  hours, when she was found
fainting.  Her life, however, and that of the child were both
preserved.*

   These are the exceptions to the general doctrine that may
be laid down in such cases,  viz :   That every woman is more
or less acquainted with the time  when she is to be in labor, and
that it is her duty never  to be so far alone as to render assistance
accidental.   Even during labor, 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
dishonor are predominant passions.   And it is a question of
moment, whether we should feel that sympathy for this sense
of shame, which some authors, and particularly Dr.  William
actly 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. Merieu relates the case of a female walking in her room, who was sud-
denly seized with labor pains.  She took firm  hold of the bed post, brought
herself nearer to the ground, retained the infant by means of her clothes, and
placed it on the  floor.  The whole was the affair of an instant.  On examin-
ing the child no trace of  contusion could be found, but the umbilical cord was
broken at about  four inches from  the ring, and the end drawn out to a point.
(Quarterly Journal of Foreign Medicine and Surgery, vol. 5, p. 634.)
  * 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 capability for exertion evinced by women  in the inferior
ranks shortly after  child-birth—appearances  so totally different from those
exhibited in the higher  orders, that to  persons acquainted only with cases
among the latter, they would appear incredible.  A mother, two or three days
after delivery, walked twenty-eight miles in  a single day with her child on
her back. In the case of A. Macdougal, 1823, it appeared that she was sleep-
ing in a bed with two other servants, but rose, was delivered and returned to
bed without any of them being conscious of what had  occurred.  Many
respectable  medical practitioners judging from what they have  observed
among  the higher ranks, would  pronounce such facts impossible, but they
occur so frequently among the laboring classes as to form  a point worthy of
knowledge in criminal  jurisprudence."  (Alison's  Principles of  Criminal
Law of Scotland, p. 161.)            •              r 
320
DELIVERY.
Hunter,  have  inculcated  in  their  writings.   It  is,  at  all
events, misplaced as to time : and the female  who destroys
a human being,  and her own offspring to escape its effects,
should  have felt  its  influence  at an earlier period.   " To
the moral and political philosopher, Dr. Hunter may appear
to have exalted the sense of shame into the principle  of virtue,
and to have mistaken the great end of  penal  law, which is
not  vengeance, but  the prevention of crimes."*   It is  not
necesary, however, to enlarge on this point.   Circumstantial
evidence  generally guides in the preliminary decision  of it,
when accusations of infanticide are  made ;  and great stress
is properly laid, in disputed cases, on the incidents of time
and place, and of situation and character.!
   * Percival's Medical Ethics, p. 84.
   f On this question, see Fodere, vol. 2, p. 25; Capuron, p. 131;  Smith, p.
365 to 377 ; Mahon, vol. 3, p. 381,  &c.;  Davis, Ryan, &c.  Cases of sudden
delivery are noticed by most obstetrical writers, and in many periodicals.  I
will only add a few to those already cited. Two cases by Mr. Tatham. (Lon-
don Medical Repository, vol. 21, p. 287.)
   One of these was with a second  child, and not with a first, as it is incor-
rectly stated in Medico-Chirurgical Review, vol. 5, p. 237.
   Cases by Mr. Thomas.  London  Medical and Physical Journal, vol. 52, p.
353.  Blundell's Lectures.  Lancet, N. S. vol. 1, p. 116.  Mr. Prowse, Lan-
cet, July 12, 1845.  Dr. Blacklock,  Ibid. July 26, 1845.  Dr. Larkin, Boston
Med. and Surg. Journal, Sept. 10, 1845.  Dr. James A. Sewell, of Quebec, in
the British American Med. Journal. This  last was as follows: Mrs. B., of
Quebec,  aged  30, married, and pregnant with her  first child, was seized
during the  night with labor  pains.  Being a refugee  from the  late  fire,
she occupied part of a garret, in which two or three other families, and some
young men were sleeping.  Feeling a  natural delicacy, at being confined
under such circumstances,  she suppressed her cries until daylight, when she
descended into a lower apartment,  in which resided a woman who had re-
cently been confined by me, to whom she detailed her feelings, requesting, at
the same time, that some warm water might be given her to " set over," to
relieve what she described as a great pressure at the lower part of the bowels.
She had hardly seated herself  upon the edge of a rather high chair, when
a  severe bearing-down pain seized her, and before any assistance could
be afforded, (although one or two  women were in the room,) the child was
forcibly expelled and  fell head foremost on the floor, being killed upon the
spot. When Dr. Sewell arrived  about twenty minutes after delivery, the child,
although dead, was  still attached by the cord  to the placenta, which came
away shortly after the infant.
  Take now the case of a strumpet (Ann Pendry,)  related in the Lancet,
June 21, 1845.
  In drawing up an account of the last five cases for the American Journal of
Medical Sciences, I subjoined the following remarks :
  "I have brought together these cases,  (and of which the records of medi-
cine furnish us with many similar  examples,) to  corroborate the conceded
doctrine, that the child may be born so rapidly, that the mother, alone and
unassisted, cannot preserve its life.  But its bearing on infanticide is another
matter.  Guilt excites suspicion, and when a female, suspected of being preg-
nant, denies the charge, and when she is seized in labor, retires away from
observation, asks  no assistance, and returns to her  accustomed avocations 
DELIVERY.
321
                         PART  II.


  Delivery, as it respects the child, may become a subject

of  importance, both in civil and  criminal cases;  and  in-

stances  are  frequently occurring,  in which  the utility  of

properly understanding its phenomena is clearly manifested.

The arrangement 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

 succession to  an inheritance is questioned;  or  in  criminal

 ones, as when a pregnant woman is maltreated, and her off-

 spring is  supposed to have died  from the  injury.*  It is,

 however, of the greatest importance, from its  bearing on the

 two great medico-legal subjects of Abortion and Infanticide;

 and I shall notice it at this time as an introduction  to them.

   During pregnancy, the life of the fcetus is inferred, from

 the good health of  the mother; the progressive increase of

 the abdomen  in  size,  and  the motion of the fcetus being

 experienced.  These form strong presumptive evidence, but

 there are  exceptions to all  of  them.   Healthy females may

 bring forth dead  children, while sickly ones  have produced

 living children.  The increase of the abdomen also may be

 owing to a mole, or to dropsy; while the  irregularities  that

 are  experienced  respecting the motion  of  the  fcetus,  are

 without confession, and then the child is found dead, she at least has  been
 guilty of acts of omission for which she should be  punished.
   " The difficulty is mainly in the law.  I consider it a moral impossibility to
 hang a female for the crime of infanticide.  No jury can be found in England,
 or this country to convict, unless under the most  self-evident and atrocious
 circumstances. But the concealment of pregnancy, and particularly of birth,
 should be signally marked by our law-makers.
   "After all, what a contrast is there  between the conduct of the strumpet
 and the mothers in the above narratives. And why should physicians expend
 so much sympathy on these murderers by omission ?  Why did not Ann Pen-
 dry call for instant aid, if her story be  true ?"
    * As in the following case given  by Dr. Kennedy,  (p.  208.)  A woman in
 the seventh month, was sent to the Lying-in -Hospital, Dublin, to be examined
 whether her child was, as she asserted, killed in the womb by certain blows
 and injuries inflicted upon her by a female with whom she had a scuffle.  She
 described very accurately all the reputed proofs of the child's death as being
 present.   When, however, the stethoscope was applied, the fcetal heart's
 action was distinctly audible; and the announcement of the child's being
 alive dissipated all her hopes of legal vengeance, as she appeared to calculate
 upon hanging her antagonist at least.

                      21 
322
DELIVERY.
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 expe-
rienced for  a considerable time previous to the most favor-
able labors.
  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 fcetus; or, if it is not
practicable to ascertain  these last, the pulsation at the ante-
rior  fontanelle—and the swelling,  tension, and elasticity
of the  presenting  part, together form an  incontestable
chain of evidence in favor 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 favorable 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 fcetus, we must refer, in the first place, to the causes
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
exercise; too great  labor; violent  passions of the mind,
either of the exciting or depressing kind; venereal excess;
intemperance ; diseases, such as hsemorrhage or convulsions ;
contagious disorders, such as  syphilis or small-pox ;  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 labor, from that
process being long protracted ; from its being so difficult as
  * It can, of course, only be ascertained when there is a natural presenta-
tion, and hence is not always  applicable. 
DELIVERY.
323
to require instruments, or complicated with syncope, con-
vulsions  or  hsemorrhage ;  from a  morbid state of the pla-
centa, 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 ofter survived in spite of them.

   The signs  experienced during pregnancy, of the death of the
fcetus, 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  headache  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 favor
of the destruction of the offspring.  Individually, however,
they are liable to be mistaken or  confounded.   Subsidence
of the tumour is one of the natural changes that in all cases
precede  labor.  The breasts also do not  enlarge in some
until advanced pregnancy, and of course we cannot  draw
an inference from  their state.   But  particularly as  to the
motion of the child, may error arise.   The  want of it  can-
not be regarded as a certain proof of death ; and the mother
may  mistake, and  indeed  often   has  mistaken, action of
the abdominal  muscles,  spasm of  the uterus,  and  even
hysteria, for it.!
   Again, the fcetus may die,  and be  retained in the uterus,
without  exciting any general or  local disturbance.   The
health will be good, and there is nothing on which to found

   * Mr. Travers in his " Further Inquiry concerning Constitutional Irrita-
tion" says that " if the  child dies at the seventh month—from the period of
its death, though the woman be not delivered for days afteu, the breasts are
furnished in the same plentitude as if the child was born and alive.  This is
directly contrary to what writers on  midwifery have asserted, viz., that the
falling of the breasts and the failure of the milk are never-failing signs of
the child's death." British and Foreign Med. Review, vol. 2, p. 8.
   t Kennedy, p. 210. 
324
DELIVERY.
a suspicion, except the  suspension of the ordinary proofs
of progressive pregnancy.*
  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 fcetal heart, with or without the
placental  sound, there can be no doubt.   It is to be regret-
ted 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 ausculta-
tion have predicted correctly ;  and in proof of this, I need
only refer to the work of Dr. Kennedy which  I have repeat-
edly 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 shorter continuance, wanting
its protracted  terminating whiz, and generally confined to a
circumscribed spot.
  If actually  dead, and long detained in the uterus, putre-
faction takes place; the membranes lose their vitality, and
blackish  foetid  discharges shortly  occur:  This is also  a
rule, subject to  exceptions.   We have seen,  when noticing
the  subject of superfcetation, 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.!
  * Ramsbotham.  (Medico-Chirurgical Review, vol. 21, p. 309.)
  f The length of time during which a dead fcetus may be retained in utero,
is uncertain;. the usual period is from one to three weeks.  Dr. Blundell
says, " When the ovum dies in the earlier months, it may be retained till the
close of pregnancy."  (Medico-Chirurgical Review, voL 21, p. 343.)
  Dr. Porter, of New London, relates a case of this nature, where at the fifth
month the abdomen gradually diminished, and at the eighth was scarcely more
prominent than ordinary.  There could, however, be perceived a foreign body
in the uterus on examination.  The breasts were distended and there was an
occasional oozing of milk; but this disappeared about the ninth month, and
the breasts diminished.  The general  health was good. At the usual period
of utero-gestatidn, without pain or much effort, the membranes protruded,
and were finally expelled with cramps and severe hemorrhage. Enveloped
in the broken membranes, was a foetus of about five months, and  free from
any marks of decomposition.   The placenta resembled in form and consistence
a sarcomatous tumour.  Amer. Journal of Med. Sciences, vol. 17, p. 347.  A 
DELIVERY.
325
   The signs during the progress of delivery, of the death of the
fcetus, are similar in  some  respects to those already men-
tioned ;  such as the absence of motion, and foetid discharges.
Writers  have  also  mentioned the state of the  presenting
part.  When  the  fcetus  is dead,  it  has an oedematous or
emphysematous  feel; the skin is soft, and easily torn ;  and
the  bones  of the cranium lose their natural connexion, and
vacillate on one another.   The  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 color
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.!
somewhat similar case, by Dr. Galbiati of Naples, is given in the same Jour-
nal, vol. 18, p. 523 ; and a precisely similar one by Dr. Hays, of a fcetus of
five months, retained until the full time, and expelled entirely free from pu-
trefaction.  Ibid., vol. 20, p. 535.  While two cases of foetuses putrefying in
utero, by Dr. Vassal of Paris, are related in Ibid.,  vol. 17, p. 528.
  * " 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 dan-
ger ;  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 dis-
charged for more than thirty  hours; at the end of which time, though the
woman  was delivered with the forceps, the child was born healthy and strong.
And since that time, I have had  many equally convincing proofs, that the
coming  away of the meconium is a very doubtful sign of the death or danger-
ous state of the infant,  whatever  may be the presentation."  (Denman, p.
395.) See also Belloc, p.  91.  Capuron, p. 247.  Burns' Mid. Note to chap. 7.
  f Fodere, vol. 2, p. 91.  Baudelocque (vol. 3, p. 161,) relates acase, where
the woman was two  days  in labor;  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 motion had been felt for twenty-four hours; and yet on delivery 
326
DELIVERY.
   Dr. Blundell, a very eminent man in his particular branch
of medicine, after  reviewing  the various signs, conceives
that none should be relied on, except the three following:
The cuticle coming away from the head in large flakes, des-
quamating, as from dead bodies in the  lecture-room.  This
is very  strong presumptive proof of death,  although even
not demonstrative, for cases have been related, and among
the rest one by Dr.  Orme, in which the cuticle had separated,
in consequence  of cutaneous disease, and  the  child  was
notwithstanding  alive.*   " So  rare,  however,"  he adds,
" are these cases, that I should feel disposed in practice to
look upon them as of no account, were it not that human
life  is  at stake."   The  bones  of the cranium being detached
from each other, and floating, as it were, in the  mollified brain.
Let it  be 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, discriminates between the temporary loss
of pulsation, occurring in a recent descent.*
   We must recollect also, that the pressure occasioned by a
long and tedious delivery, may extinguish life.  The proofs,
now  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  redness  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.

with the forceps, the child was living and healthy, except a superficial gan-
grenous 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. Naegele,  Lancet, N. S., vol.
2, p. 70.
  * Dr. Metcalf (Amer. Journal  Med. Sciences, N. S., vol. 6, p. 332,) men-
tions a case where the child was evidently alive twelve hours before birth,
and yet the cuticle was off in many places on the body, and one arm was
almost entirely denuded.
  t Blundell's Lectures on Midwifery, Lancet, N. S., vol. 2, p. 161. A stri-
king instance by Mr. Hare,  showing the uncertainty of the signs most relied
on, is quoted from the Provincial Med. Journal in Amer. Journal Medical
Sciences, N. S., vol. 5, p. 481. 
DELIVERY.
327
  The application of the stethoscope will tend to diminish
the number of doubtful cases.   It is, evidently, as valuable
here, as in any inquiry in which we have before recommended
it.*
  If the medical examiner be called immediately after birth,
he  can have no  difficulty in deciding on this question.  The
body will be found to have lost its firmness and consistence
—the  flesh will be soft, and the  muscles  easily torn—the
skin will exhibit  marks  of putrefaction,  and will be of a
purplish or brownish red color—the epidermis is raised, and
may be easily separated—a bloody serum is often effused in
the cellular tissue and beneath the skin, especially about
the cranium, and sometimes  a similar  effusion is observed
in the cavities of the chest and abdomen, and their viscera
are of a deep  reddish hue.  The umbilical cord is livid, soft,
and easily torn.  The cranium and thorax are 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 odor.
  It will readily occur, from a  review  of  the  remarks con-
tained in this section, that the fact of the death of the fcetus
before or during delivery, can be ascertained with consider-
able facility, if the  practitioner be called at the proper season.
Unfortunately, however, in most cases which come  before a
court of justice, the  delivery has been  secret,  and a greater
or  less space  of time has elapsed since its occurrence.  The
infant  is found dead.  The proofs  which we  have now
enumerated,  are inapplicable  or  inconclusive,  and  a  fur-
ther investigation is required  to  ascertain the truth.   We
hence come to the examination of the question of Infanti-
cide.!


  * See Dr. Kennedy's work, p. 242 to 258.
  t The authorities on this section, which deserve attention, are Denman, p.
391 to 399; Capuron, p. 234, &c.; Hutchinson, p.  17; Fodere,  vol. 2, p. 81;
Smith, p. 315; Belloc, p.  91.  Dr. Jaeger's Dissertation on this subject (in
Schlegel, vol. 5, p. 23,) may be consulted with great advantage.  Several cases
are  related by him where he examined infants dead before birth, with a direct
view to the question now noticed. 
328                      delivery.


 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 fcetal life, as well as those

which prove its arrival at maturity.   A  sketch, therefore,

of the gradual developement  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, Beclard,  Capuron,  Clarke, Merriman,

Sommering, Tiedmann and Devergie.  There are some recent

authorities, which  I regret that I have  not been able to

examine; and I would also remark, that in many cases, the

observations are to be taken as  means deduced from  ex-

tremes, and they are, therefore, liable to some variation.*

  From the time of the first evidence of impregnation to the

fifteenth  day, the product of conception appears  only as a

gelatinous,  semi-transparent, flocculent mass, of a grayish

color, liquefying promptly, and presenting no distinct for-

mation, even  by the aid of the microscope.!   It measures,
                                                   *

  *  Dr. Pockels, of Brunswick, has given  "acontribution to the history of
the developement of the human embryo, in the firstthree weeks after concep-
tion."  (See Medico-Chir. Review, vol. 8, p. 575.)
  f  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 con-
ception.  On the other hand, Sir. E. Home  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
possibility 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 favor.  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 (Embry-
ologie, 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 experience goes, at which the ovum
can be discerned.
  (Dr. Allen Thomson in a paper on the Human Ovum and Embryo, Edin.
M. & S. Jour., vol. 52, p. 119, expresses strong doubts whether the human
ovum has ever been distinctly observed in the uterus before the tenth or twelfth
day after impregnation.  He enumerates and  analyzes all the known cases
of early ova.) 
DELIVERY.
329
at fourteen days, one-twelfth of an inch in length (Pockels ;)
and at three weeks, one-tenth  of an inch: At thirty days, it
has the size of a large ant, according to  Aristotle; of a
barley-corn, according to Burton; and of a house-fly accord-
ing 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
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.*  This  is  the usual
statement.  Maygrier, however,  puts  the length at  four
inches, and Devergie, at from sixteen to eighteen lines,
while the former states the weight at five drachms, and  the
latter at  from two to four.  All the  parts  are  perfectly
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  said  to average
three  ounces  in weight.   The following  however, is given
by late examiners.
                          Weight.           Length.
     Hamilton,........   --------.....   3 inches.
     Maygrier,........   2-| ounces,.....   6 inches.
     Devergie,........   1 to  1^ ounces,.   2 to  2| inches.
     Burns,...........   2 ounces,......   3 inches.
   The nose and mouth  are  formed, and the features of the
face become more distinct.   The eyes are shut, and the  eye-
lids adhere together—the  head is  longer and heavier than
the rest  of the body—the  umbilical cord  is  formed—the
  * 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 dimensions  from three to six or nine inches,
and in weight, from one ounce and a half to one pound." Dr. G. states these
to be  averages of minute and accurate observations made by Autenrieth,
Sommering, Bichat, Pockels, and Carus, and confirmed by his own observa-
tions. 
330
DELIVERY.
genitals  are distinct—the  penis and  clitoris are relatively
very large—the nymphse  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 exception
of  the hair and nails.   The great  relative proportion of the
fluid of the  membranes disappears,  and the  fcetus nearly
fills the cavity of the uterus.!  During the fifth month, the
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 circumvolu-
tions or furrows.   The external ear is completed about this
time, although its shape,  which is like that of  a gently de-
  * Velpeau asserts, that the umbilical cord begins to be formed during the
first month of gestation.  (American Jour, of Med. Sciences, vol. 14, p. 402.)
  f 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 30th 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 oun-
ces, and measured eight inches in length.  The question arising upon these
facts was, whether it was most probable that a fcetus of three months and
twenty days should have attained the above size and weight, or that menstru-
ation 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 imputation 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 subject, and that the average  deduced from  them was, that at three
months, the length of the foetus was between three  to four  inches, at four
months five inches, and at five months eight  inches.  Beclard was the only
one who gives eight inches at four months.
  As this  subject has thus become peculiarly interesting, I will quote from
individual 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 oz.................     8  "
    Hamilton,..............  --------  ...........above      6  "
    Velpeau,...............   --------  ................5 to 6  "
    Gardien,...............  --------  ................     4  "
    Burns,.................  --------  ................      5  "
    Devergie,..............  2£ to 3 oz.................5 to 6  "

Briand (2d edition, p. 128,) says, that at four and a half months, it is six or
seven inches long, and weighs from five to seven ounces.
  See also Dunglison's Physiology, vol. 1, p. 356. 
DELIVERY.
331
pressed circle, differs  from the  ear after  birth.  The  nails
are distinct.  The hair begins to appear.*
  In  the sixth  month, we begin to find  some traces of fat
under the integuments, where previously nothing but a mass
of gelatine had been observed.   The head also, which before
had been proportionably large, becomes smaller in compari-
son with the body.  It is now, however, large and soft, and
the fontanelles  are much  expanded.   The brain acquires
rather more consistence, but is still easily dissolved; and
the pia mater seems only to lie  over its surface, being sepa-
rated with great facility.  The skin is very fine, pliant, thin,
and of a purple color, especially in the palms of the hands,
the soles of the feet, the  face,  lips3 ears,  and breasts.   In
males,  the  scrotum is  slightly developed, and of a bright
red color; and the testicles  are still in  the abdomen.   In
females, the vulva is projecting, 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 color
—the eyelids are closed ; the hair on the eyebrows and eye-
lashes but  thinly scattered, and  the  pupil is closed by a
membrane.  The lungs are very small, white, and compact.
The  heart  is  large,  and the liver very large, and situated
  * The length of an embryo at the end of the fifth month, is, according to
Sommering, ten inches ; while Dr. Burns and Dr. Hamilton do not allow that
it is more than six or seven.  (Supplement to Encyclopedia Brittannica, 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 extensive, says,  (p. 12,)
" D'Apres un grand nombre de recherches, d'observations recueillies a l'Hos-
picc de la Maternite, et comparees a celles que Ton trouve dans plusiers ecri-
vains,  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
        6  "  ..............  325
        7  "  ..............  380
        8  "  ..............  440
        9  "  ..............  488
 Devergie and Maygrier give the following numbers :
                            Weight.
   Devergie,...............    5. to 7 ounces,......  6 to 7 inches.
   Maygrier,..............    1  pound,...........      10 inches.
 9£ pouces.
12
14
16
18 
332
DELIVERY.
near the umbilicus—the  gall bladder contains only a small
quantity of a nearly colorless  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  fcetus at
this time,  is  from  one to two pounds;  and its length from
nine to twelve inches*—the middle of which is at the abdomi-
nal extremity of the sternum.^
   At the seventh month, all the parts, both external and in-
ternal, are still more developed.   The skin assumes a rosy
hue, and becomes more dense;  and it  is  covered with a se-
baceous fluid, so as to  form a whitish,  unctuous covering.
The eyelids are  no longer united, and the membrana pupilla-
ris separates, so as to form the  pupil.J   The cerebral pulp
becomes  more consistent, and its surface  is a little furrowed,
and adheres  somewhat to the  meninges.  The  meconium
increases  in  quantity—the  hair on  the  head is  longer and
  * Eight or nine inches and about one pound. (Burn's Hamilton.) The vari-
ous quotations from Dr. Hamilton are copied from Blundell's Midwifery.

                             Weight.                 Length.
    Devergie,................  1 pound,............  9 to 10 inches.
    Maygrier,...............  2 pounds,...........       12 inches.
    Lecieux,................  --------...........       12 inches.

  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 Jour-
nal, vol. 12, p. 249, 526.)
  X There is  considerable diversity of opinion concerning the constancy of
this phenomenon.  Cloquet says, that in the  foetus of the ninth month, the
little arterial circle of the iris, which is formed after  the  rupture of the
membrana pupillaris, and at the  cost of its vessels, is seen placed on the very
edge of the pupil; and often, even in the new-born child, some of its vessels
still advance beyond the circumference of this opening.  He has seen it rup-
tured 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 fcetus, 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 is said to have repeated the experiments of Dr. Jacob, (injecting
the membrana pupillaris at the full time,) and confirmed their accuracy. (An-
derson's Journal, vol. 1, p. 110.  American Journal of Medical Sciences,
vol. 1, p. 192.) 
DELIVERY.
333
takes a  deeper hue.  The  nails acquire more  firmness.
Weight from two to three pounds.   Length from twelve to
fourteen  inches.  (From two to  four pounds, and  twelve
inches.   Granville.   Between  eleven  and twelve  inches.
Hamilton.   Three to four pounds,  and eleven to twelve
inches.   Devergie.   Two or  three  pounds, and  fourteen ■
inches.  Maygrier.  Fourteen inches.  Lecieux.)  The middle
of the body is nearer to the sternum than to the navel.
  At the eighth month, the skin has  acquired more density,
and  becomes whiter; it is covered with very fine  and short
hairs, and its sebaceous  covering is more apparent.  The
nails are  firmer; the hair of the head longer and more
colored.   The breasts are often projecting, and a lactiform
fluid may be pressed from them.  The testicles in males are
frequently engaged in the abdominal ring.  In females, the
vagina is  covered with a transparent mucus.  The groove
in the cerebral  substances gradually  become more  marked;
and  the spinal marrow, pons varolii, and medulla oblongata,
acquire a remarkable consistence and  even firmness.  The
lungs are of a reddish color—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 color, 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.
 Granville.  From fourteen to fifteen inches.  Hamilton.
Four to five pounds and thirteen to fifteen inches.  Devergie.
Four pounds and sixteen inches.  Maygrier. Sixteen inches.
Lecieux.)  The middle of the length is nearer to the navel than
to the sternum.
   At the ninth month, ossification is  more complete—the
head is large, but it has a considerable degree of firmness.
The bones of the cranium, although moveable, touch each
other with  their  membranous margins—the fontanelles are
smaller;  the hair is longer, thicker,  and of a deeper color;
and  the  nails become  more  solid  and  prolonged to the
extremity of  the  fingers.    The circumvolutions  on the
 surface of  the brain are more  numerous—the cineritious 
334
DELIVERY.
portions begin  to be distinguished  by  their color; and
although the lobes which compose the cerebrum, retain their
former softness, yet the cerebellum and the basis of the ce-
rebrum, have acquired a remarkable consistence.  The head
measures  longitudinally,  from the forehead  to the occiput,
four inches to  four inches and a quarter,  and  between the
parietal protuberances, 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 circumfe-
rence  passing through the occipital 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 meconium
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 title below.!
  * Craigie's Anatomy, p. 76.  One measured 15 inches in circumference,
and one, eight and a half inches from ear to ear; but none were under twelve
inches in the one direction, or six and a quarter inches in the other.
  t Hutchison, p. 6 to 14. Capuron, p. 165 to 173.  Fodere, vol. 2, p. 149.
Burns, p. 114 to 118.  Devergie puts the length at from sixteen to eighteen
inches, and the mean weight at six and  a quarter  pounds.  Lecieux, the
length at eighteen inches.
  We owe our knowledge of the test for ascertaining the age of the foetus by
its length, to Chaussier.  According to his researches, it was  considered
proven,  that at the age of nine months, the insertion of the umbilical cord          \
occupies exactly the middle point between the summit of the head and the          1
soles of the feet, while anteriorly to that period, the insertion of the cord ap-
proaches the chest, in proportion as the foetus is younger. Several observers
have expressed their assent to the correctness of this occurrence, but of late,
its accuracy has been questioned.   The following is a quotation from Mende,
(Cummin's Lectures, in London Med. Gazette, vol. 19, p. 68.)  " The middle
point by no means corresponds to the same part of the body in foetuses of the
same age, a fact for which we might be prepared by considering that the
several sizes of the foetus depend, now on its large head and neck, now on the
trunk, and again on the magnitude of the limbs.  This I have verified by nu-
merous measurements, taken with great care and pains, and the conclusion I
have arrived at is, that the directions laid down by Chaussier are uncertain
for practical purposes,  and more particularly for  those of the practical
jurist."
  Again, Professor Moreau, of  Paris, carefully measured five hundred chil-
dren born at La Maternite, and found out of this number, four only, in
whom the  umbilical cord was  inserted exactly in the centre of the whole
length of the body.  In the remainder, the point of insertion fell, on an aver- 
                         DELIVERY.                     335

  The recent observations made by Tiedemann, Serres, and
the Wenzels, on the brain of the fcetus, may most conveni-
ently 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  callo-
sum, in the sixth month,  is  only half as  long  as the hemi-
spheres of the  brain.  The choroid plexus is formed  in the
seventh month, and the corpora olivaria 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 developement  of  cineritious matter.   It is
not till near the termination of pregnancy, that  the cineri-
tious substance is formed in the spine, or  even  very mani-
festly in  the convolutions of  the brain.*

age, from eight to ten lines below the middle.  In a few children born about
the sixth or eighth mofith, the cord was inserted into the middle point. Lan-
cet vol. 21, p. 711, from Lancette Francaise.  See also Dr. Churchill, in Edin-
burgh Med. and Surg. Journal, vol. 50, p. 291.
  The following are some additional results noticed by Mr. Taylor, Lecturer
on Medical Jurisprudence at Guy's Hospital, and Dr. Geoghegan, Professor
of Med. Jurisp. in the Royal College of Surgeons in Ireland.
      Case.   Whole     Attachment of the Umbilical cord.
       1-      18i     a quarter of an inch below the centre.
       2.      20      half an inch
       3.      17i     half an inch nearly   "
       4.      16£     half an inch         "
       5.      19      half an inch         "
       6.      17      a little below
       7.      18      exactly at the contre.
       8.      17      exactly at the centre.
       9.      20|     a little below.
      10.      19i     a little below.
      11.      18|     exactly at the centre.
(Guy's Hospital Reports, vol. 7, p.  69.)
  * Edinburgh Medical and Surgical Journal, vol. 19, p. 456; vol. 23, p.
81, &c. 
336
DELIVERY.
   The Wenzels found the following proportionate increase
 of the brain in their investigations :  In an  embryo of five
 months, they found the brain to weigh 720 grains, of which
 the  cerebrum weighed 683 grains, and the cerebellum 37;
 being in the proportion of 18-^ to 1.  At  eight months, the
 respective numbers were 4960, 4610, 350, or as 13/5 to 1.
 At the full time,  -  -  6150, 5700, 450, or as 12| to 1.*
   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 evi-
 dence in cases which vary from the ordinary state.
   " After  two  months  have  elapsed from the  period of
 conception, the skeleton is about four inches and three lines
 in length,  that of the  spine  being  two  inches:  at three
 months, the former is six inches,  and  the  proportion of the
 spine as two  and two-thirds to six:  at four months and a
 half, it is nine  inches, and the spine  four:  at  six months,
• twelve  inches, and the spine five:   at seven and  a  half
 months, fifteen inches, the spine six  and one third : at nine
 months, or the period of birth, it  is ordinarily from sixteen
 to twenty inches in length, or at the 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 were made from  observations  on about  fifty
 foetuses, at each of the periods above  indicated.
   " Each vertebra,  consisting originally  of a  section of a
 solid cylinder, and a ring furnished with several apophyses,
 is, in general, formed by three primitive points of ossifica-
 tion;  the one anterior, which by its developement, forms
 the body or solid part of the  bone;  and  two lateral ones,
 which constitute the apophysarial masses,  and which, uniting
 together with the former, constitute the annular structure.
   Besides  these, each  vertebra  is  completed by several
 secondary points of osseous developement.
   " At  about  the  sixth month  of intra-uterine  life,  two

   * Lawrence's Lectures of Physiology, p. 170.  See also Dr. Copeland's
 Notes to Richerand's Physiology, Appendix, p.  56," On the formation of the
 spinal marrow and brain." 
DELIVERY.
337
points of ossification are found in the second cervical verte-
bra, one situated above  the other.  Towards the seventh
month, the  superior point  which answers to the odontoid
process, is larger than the inferior, which relates to the body
of the bone.  At about  the eighth month, the transverse
processes have begun to ossify in the first of the lumbar
vertebrae.   At the time of birth, ossification has commenced
in  the body of the first cervical vertebra, and also in the
first bone of the coccyx.  At this age the  body of the fourth
lumbar vertebra,  which  is the most voluminous, is  three
lines in depth and six in  breadth.  At the same period, the
lateral portions of the six superior dorsal vertebrae begin to
unite together, so as to form a ring posteriorly to the bodies
of these bones.   The  lateral arch of the second, which is
the largest, forms a chord of seven or eight lines."*
  The weight of the foetus at the full term  of utero-gestation,
has  been the subject of numerous observations, and as a
preliminary  remark, it must be noticed, that this differs
according to the conformation and habits of the parent and
sex of the child.  Healthy females residing in the country,
or engaged in active occupations, have generally the largest
children.   Male  children also, 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  was about four
pounds and the largest eleven pounds, but by far the greater
proportion was  from  five to eight pounds.J   Dr. Joseph

  *  Hutchinson on Infanticide, pages 12,13, 14.
  t Bose de Diagnosi vitce  fatus et neogeniti, in Schlegel, vol. 3, p. 23.  I
have selected this as the most accurate account of Roederer's observations, as
there is a discrepancy among the writers that notice him.  Fodere (vol. 2, p.
153) says the weight, according to his table, is from six to seven and a half
pounds, and Hutchinson  (p. 15) from five to six and a  half.
  X Hunter's Anatomy of the Human Gravid Uterus, p. 68.
                    22 
338
DELIVERY.
 Clarke's inquiries furnished  similar results.  The greatest
 proportion of both sexes according to him, weighed seven
 pounds, yet there were more males than females found above,
 and more females  than males below that  standard.   Thus
 out of sixty males and sixty females, thirty-two of the former
 and twenty-five of the latter,  weighed seven pounds, and
 there were fourteen females, but only six males who weighed
 six pounds.  On the  other hand  there were sixteen  males,
but only eight females who weighed eight pounds.   Taking
then the average weight of both sexes, it will  be found that
twelve males are as  heavy as thirteen females.   The exact
average weight of male  children, according to Dr. Clarke,
was seven  pounds five ounces and  seven drachms, and that
of female, six pounds eleven ounces and six drachms.*
  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 ordi-
nary, from  five to seven,  and the average,  six  pounds and
about a quarter : there were thirty-one  instances in which it
was as low as three pounds.  Baudelocque,  however, states
that he has seen two of nine pounds and three quarters, one
  * Phil. Transactions, vol. 76, p. 349.  Dr. Clarke also mentions the follow-
ing observations as made by Roederer.  The placenta of a male was found to
weigh, on an average, one pound two ounces and a half, whilst that of a
female weighs half an ounce less. Female children, who at the full  time
weigh under five pounds, rarely live; and few males, who weigh even 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 twenty pounds.  He stated it on the " authority of an  extremely
intelligent midwife, of whose veracity no doubt could be entertained." (Lan-
cet N. S. vol. 7, p. 410.)  Dr. Ramsbotham (the  father)  delivered a child
weighing I65 lbs avoirdupois.  (London Med. Gazette, vol. 13, p. 551.)
  Mr. Owens delivered one at a public lying-in charity in England, weighing
seventeen pounds twelve ounces, and measuring twenty-four inches.  It was
born dead.  (Lancet, N. S. vol. 23, p. 477.) Dr. White had a case of a female
child, in 1844, at Preston, weighing 15 pounds, and the length 24i inches.
(London Med. Gazette, vol. 34, p. 48.) 
DELIVERY.
339
of twelve, and another of thirteen.   The last, he adds, had

several teeth well advanced and ready to cut.   On the other

hand, he had delivered  some at the full time, who weighed

but five and four and a half pounds, and several indeed only

three pounds, and three quarters.  These were more  com-

mon than those  of nine  pounds, and grew to as great a size

after birth.*   Subsequent  observations on twenty thousand

children, at the  Hospice de la Maternite at Paris, show that

the  average  weight of  the 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.!   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 majority  about ten pounds.§   In the Obstetrical Institu-

tion at Pavia, of 116 children born in two years, 14  pounds

6 ounces was the greatest weight, and 5 pounds the least.||


   * Baudelocque's Midwifery, vol. 1, p. 256.
   X Leciux, Considerations sur l'lnfanticide, p. 9, 12.
   The following table taken from Burns' Midwifery, edition of 1823, is some-
what different in its results from what is given in the text, and I do not know
 how to reconcile them, unless to suppose that they were taken at a later pe-
 riod.  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 1 k pounds.
                  69            2   21
                 164            3   34
                 396            4   4|
               1317            5   54
               2799            6   6|
                1750            7   74
                 463            8   84
                  82            9   9k
                  3           10   —

               7077
   The following from Dunglison's Physiology, vol. 1, p. 355, is important  to
 be notified in accurate investigations.  " The paris pound, poids de marc of
 16 ounces, contained 9216 Paris grains, whilst the avoirdupois contain only
 8532.5 Paris grains. The English inch is 1.065977 Paris inch."
   | 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 For. Medicine, vol. 5, p. 330. 
340
DELIVERY.
In the Royal Lying-in Institution at Dresden, Professor Ca-
ms reports  225 children, born during 1827.  The weight
varied from  4^ pounds to 10j pounds.*  In the same insti-
tution during 1833, 314 children were born, the heaviest was
10 pounds,  and  the lightest  2\.  In 1834, of 242 children
born, the heaviest was 9 pounds,  the lightest 2 pounds.!
In the Midwifery Institution at Stuttgard, from 1828 to 1833,
there were 572 births; 281 boys and 291 girls.  The mean
weight was  6 pounds 13| ounces.f  At the Lying-in Hospi-
tal at Moscow, in 44 cases of both sexes, Richter found the
mean weight to be 9Tj pounds; minimum  5 pounds, and
maximum 11 pounds.  At the Lying-in Hospital of St. Peter,
in Brussels, (I presume,) Quetelet found the mean weight of
63 males born at the full time, to be 6^ pounds, (3-20 killog.)
and of 56 females, to  be  5}f pounds  ; mean, 6T3g pounds.
The maximum in the  male was 9T3g pounds;  in the female,
%\\ pounds: the minimum in the male, 4}f pounds; in the
female, 2T\  pounds.§
  Professor  Simpson, of Edinburgh,  has published the fol-
lowing results:
  In the  Edinburgh Lying-in Hospital, 50 male  and 50 fe-
male children,  born during  the latter  months of 1842 and
the earlier part of 1843, were weighed  by my friend and as-
sistant, Dr. Johnstone :
  Fifty males weighed 383 lbs, 11 oz. 4 dr.;  average 7 lbs.
9 oz. 1 dr.
  Fifty females  weighed 342 lbs. 12 oz. 4 dr. ; average 6
lbs. 12 oz.
  Average difference,  about 10 ounces.
  Lengths of the above :
  Fifty males, total length 1020| inches ; average 20 inches
5 lines.
  Fifty females, total length, 990^ inches ; average 19 inch-
es 10 lines.

  * Lancet, N.  S., vol. 3, p. 648.
  t British and Foreign Med. Review, vol. 2, p. 274.
  X Lancet, N.  S., vol. 18, p. 344.  Report by Dr. Elsaesser.
  § Annales D'Hygiene, vol. 10, p. J2-13. 
DELIVERY.
341
  Average  difference, seven  lines,  or  upwards of half an
inch.*
  In the first edition of this work,  I stated the opinion of
my colleague, Professor Willoughby, that the average weight
in this  country exceeds seven pounds.  Professor Dewees
decidedly agrees  to this,  as  the  result of his experience.
He has met with two ascertained cases of fifteen pounds, and
several which he believes to be of equal weight.!  Dr. Wm.
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  sixteen
pounds and a half.|
   This subject has been but little  attended to in this coun-
try, and I have therefore but few additional results to offer.
Dr. Storer, of Boston, (New England Jour. Med. and Surgery,
vol. 1, p. 16,) states that he has found a great disinclination,
and at times a decided unwillingness on the part of friends,
to have the infant  weighed.   Of thirty children, fourteen
females  weighed  112 pounds, or averaged 8 pounds each ;
and sixteen males  weighed 145^ pounds, or averaged 9
pounds each.  The males and females weighed together  257
pounds, or averaged 85 pounds each.  The largest child seen
by Dr. Storer, was a male, and weighed 13 pounds ;  the next
in weight was 12| pounds.  One weighed 11, one  10^,  and
two  10 pounds.  The  smallest infant was  a female;  it
weighed 1 pound  14 ounces, and lived eighteen hours.
   Dr. Metcalf, of the town of Mendon, (Massachusetts,) has
published the following : Of 302 children, the mean weight
is 8 pounds 2 ounces ; of the males, 8 pounds 6 ounces,  and
of the  females 7  pounds 12 ounces.  A  child weighing 4
pounds  survived, and  there  were a number at each of the
intermediate weights ; 29 varied from 10 to 11 pounds,  and
there was  two weighing  11| pounds.   (Amer. Jour. Med.
Sciences, N. S., vol. 6, p.  335.)

  * Edinburgh Med. and Surgical Journal, vol. 62, p. 405.
  t Dewees' Midwifery, 3d edition, p. 89.
  X New-York Medical and Physical Journal, vol. 2, p. 20 
342
DELIVERY.
   Dr. Burwell weighed 100 males  at the full term,  in the
Philadelphia Hospital, and found the average to be 7 pounds
| ounce, and that of 100 females, 6 pounds 8| ounces. The
heaviest was a female, weighing 15 pounds 1 ounce ; the
lightest, a female twin, 2 pounds 14 ounces.  It lived two
or three days.  Its mate weighed 3 pounds 10 ounces, and
survived.   Thirty-nine  children weighed from 8|  to 9$
pounds ; eight from  9£ to 10| pounds;  one of 12 pounds,
and one of  15 pounds 1 ounce.
   Length—Average of 100 males, 19TV inches.
     "           "     100 females, 18| inches.
   Longest, a male, 21^ inches.
   Shortest, a female, 16 inches.
   Average  of both sexes, from vertex to umbilicus, 10^
inches.  (Amer.  Jour. Med. Sciences, N. S., vol. 7, p. 330.)
   The  most correct  deduction, probably, from  the  whole
mass of observations, is to allow the average to vary from
five to eight pounds.*
   When there are two children in utero, the weight of each
individual is generally less than that of a single fcetus, but
their united  weight is  greater.   The  average  weight  of
twelve  twins, examined by Dr. Clarke, was eleven pounds
the pair, or five  and a half each.  Duges, from a review of
the Registers of Paris,  found that, out of 37,441 accouch-
mens, there had been 36,992 single births, 444 twins, and 5
triplets.  The twins  averaged four pounds  each in weight,
and the extremes are three and eight pounds.!   Respecting
triplets, we have not sufficient data to form a general rule.
Duges thinks that they have rarely less weight  than  twins.
In  a case  that occurred to  Dr. West, at Tiverton,  Rhode
Island,  the  respective developments  were as follows :
  * " There is a good  deal of diffierence 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.)
  t  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. Hamil-
ton's (of Edinburgh)  Lectures, in Lyall's Gardner peerage case.  Introduc-
tion, p. 28. 
DELIVERY.
343
    Length.     Weight.
    15| in.  4 lb. 3 oz.  Navel in the centre.
    15|      3    8      Navel half an inch below centre.
    17|      4    9      Navel half an inch below centre.
  They were all females.*
  Dr. Donnellan, of Louisiana, delivered a  woman of two
boys and a girl.  They weighed respectively nine and a half
pounds,  seven and a  half and  seven—total, twenty-four
pounds!  Dr. Lawrence, of Cincinnati, (Ohio,) of two males
and a female, all nearly of the same size; and their aggre-
gate weight was seventeen pounds.J   Dr. Buchanan, (Co-
lumbia, Tennessee,) had a case, a male of seven pounds, an-
other of four pounds,  and a female of five  pounds—total,
sixteen pounds.§   Dr.  David, of Three Rivers, (Canada,) in
1842, delivered a woman of one female and two male child-
ren.   They were  all pefectly formed, weighed six and a half
pounds each, and measured sixteen and a half inches.  (Lon-
don and Edin. Monthly Jour. Med. Science, vol. 2, p. 593.)
  Dr. Hull, of Manchester, met with a delivery of five child-
ren, 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.||  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 four-
teen ounces.  Their length varied from 14| inches to 17^
inches.IT  Dr. Hubbard, of Glastonbury, in Connecticut, re-
cently met with a case of triplets, in which the united weight
was eighteen pounds.   Two were  born alive, and remained
so at the end of nine months; the third was still-born.** In
the Western Medical Gazette,  (No. 16,  August 1, 1833,) a
practitioner gives an account of triplets born alive,  and all
surviving until the  sixth day, when one died.  On the eighth
day, another died ; but the third  did  well.   Their  united

  * Boston Medical Magazine, vol. 2, p. 393.
  t Amer. Journal Med. Sciences, vol. 25, p. 60.
  X Western Journal of Medicine and Surgery, vol. 1, p 36S
  § Ibid. vol. 3, p. 253.
  || Philosophical Transactions, vol. 77, p. 344.
  H New-York Medical and Physical Journal, vol. 1, p. 417.
  ** Boston Medical and Surgical Journal, vol. 5, p. 414. 
344                     DELIVERY.

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.  In a case at
Boston, by Dr. Palmer—one  child (a boy) weighed  seven
pounds, another (a girl) six pounds,  a third (a lusus naturae)
five pounds, the placenta two  pounds ; total twenty pounds.*
  A female at Naples was  delivered (about 1838)  at seven
months, of five children, four males and one female.  They
each  weighed  three and  a half pounds,  and measured in
length a French foot.!
  Mr. Wardleworth delivered a female in the county of Lan-
caster, (England,) in 1829, of five children, three males and
two females; each measured  from twelve to thirteen inches
in length, and the whole of them weighed ten pounds.  They
survived from fifteen to twenty minutes.|
  Dr. Pecot, of  Besancon, reports the following case :
             Length.               .   Weight.
             \b\ in.               3| lb. 0 oz.
             15                   3     9
             15*                  3     8
             15J                  2    12
  All males, and all born alive.   Two died the fourth day,
one the fifth day,  and the last on the  twenty-fourth day.
(Bulletin de L'Acad. Royal de Medicine, vol. 1, p. 95.)
  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  seven-
teen-eighteenth^   Petit assigns twenty-one inches as the
usual length.  Hutchinson says, it is ordinarily from nine-
teen to twenty-two inches,  and seventeen and twenty-six

  * Boston Medical Magazine, vol. 2, p. 328.
  t  British and Foreign Med. Review, vol. 8, p. 564.
  X London Med. Gazette, vol. 28, p. 472.
  Mr. Donnell, a case at Franklin, state of Illinois, of four children, a girl 6
pounds, a girl 4|, a girl 24, and a boy 6i—total, 19i pounds; all well formed,
and surviving five weeks, when the smallest died.  (Illinois and Indiana
Med. and Surg. Journal, vol. 2» p. 452.)                  .  .
  § 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.) 
DELIVERY.
345
inches will include the two extremes, excepting some very
rare cases; while  Fodere  and Capuron place  the  ex-
tremes  from  sixteen to twenty-three.*   This last  author
attaches great importance to the difference in the proportion
between the length of the  superior  and inferior parts of the
body ;  and he 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 pages.!
   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, in 1827, from 20 to 16| inches;  1833, greatest
length  22.37  inches—least 14.91.  In 1834, greatest 21.30
—least 14.38.  At Stuttgard, mean length 16.8 inches.   At
Moscow, the mean length, ascertained by Richter, was 18|
Paris inches ; maximum 21, and minimum  15.   At Brussels,
the mean  length of  65 males, was 18 inches and 3 lines;  of
56 females, 17 inches  and  ten lines, (Quetelet.)
   Dr.  Dewees once delivered  a child, that  measured  27
inches. J
    A reviewer in the Edinburgh Medical and Surgical Jour-
 nal states, that of sixty-four children of both sexes, measured
 by him in the country, (Scotland,) the average was between
   * 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 progenitos fuisse."
   X Capuron, p. 173.  Chaussier appears to have been the first that noticed
 these proportions, (see Ballard, p. 168;)  although  Capuron does not acknow-
 ledge the obligation.
   X The following curious case is taken from the Edinburgh Medical and Sur-
 gical Journal, vol. 4, p. 516.  " The public newspapers recorded the follow-
 ing birth in the month of May, 180S.  At the poor-house  in  Stoke-upon-
 Trent,  (Staffordshire,) Hannah  Bourne, a deformed dwarf, measuring only
 twenty-five  inches in height, was, after a tedious and difficult labor, 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." 
346
DELIVERY.
 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 vigor of  the  mother, her  mode  of life,  the

 diseases to which she may have been subject, and probably

 the climate in which she lives.

   The characters which mark the maturity and perfection of

 the organs  and functions of the child, are thus  stated by

 Fodere  and  Capuron:  The  ability  to cry as soon  as it

 reaches  the 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 color;! 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.J

   The child, on the  contrary is considered immature,^  when


  * 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.  De-
 squamation of  the cuticle, also, in  powder or in scales generally occurs at
 twenty-four hours after birth, and continues to the third or fourth day.  Cum-
 min, London Med. Gazette, v. 19, p. 71.
  X " In mature children, the scrotum is corrugated, not particularly red, and
 generally containing the testes ; in female children the nymphae are covered
 by the labia; whereas, as  Professor Naegele observes, in premature children
 the testes are not always down, the labia are apart, and the nymphse protrude,
 and in both sexes, the generative organs are extremely red."  British and For-
 eign Medical Review, vol. 1, p. 104.
  § By this term is understood, a  birth before the full period of gestation.
Again a delivery before the seventh month, is called an abortion ; and at any
time between  the seventh and  ninth month, a premature birth.  There is,
however, a want of uniformity among writers concerning this.  Drs. Copland
 and Duges  consider that  the term premature labor is not applicable till the
foetus has passed the sixth month.  Dr. Dewees fixes the limit of abortion to
expulsions  of the ovum before the fifth month, while the Germans recognize
three periods;  abortion, all expulsions during the first sixteen weeks of preg-
nancy;  immature birth, from that up to the twenty-eight weeks; after which,
until about the thirty-seventh  week, they come under the last division, pre-
mature labor.  British and Foreign Med. Review, vol. 6, p. 81. 
DELIVERY.                       347
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  color, 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  fon-
tanelles  widely  separated; the eyelids, mouth and nostrils
closed; when it sleeps continually, and an artificial heat is
necessary  to preserve it; and  when it discharges  its urine
and the meconium imperfectly.*
   Should the examiner be called  on to decide this question
after the death of the child, it will be his duty, after noticing
such 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  dis-
tinctly explained in anatomical and obstetrical  works, should
be carefully noticed.!   The navel,  liver, heart, and particu-
larly the lungs,  should be examined;  and the  inquiry must
be whether the  changes  necessary for independent  life have
taken place.J
  *  I insert the following extract from an English newspaper, which I acci-
dentally met with, because it favors us with some information from an emi-
nently 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 eighteen
days, live to grow up, but never to  become stout.  A  child born under such
circumstances, would be smaller than  usual; the skin would be redder, and
the  face not so  completely formed.   As far as his experience went, he should
conclude that it could not cry strongly, and would be oppressed by difficult
respiration.  The  perfect conformation of the  nails, strong voice, and usual
size, were proofs of a full-grown child." (Globe newspaper, March 11,1817.)
  f  Burns' Midwifery, p. 118 to 122.
  X  Chaussier, according to Quetelet, has remarked that the infant diminishes
a little in weight immediately after birth. The latter  made several  observa-
tions, (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 
348                      DELIVERY.
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 disposi-
tion of property,  to ascertain whether  the  infant is born
alive.   In this country the subject becomes very interesting,
since our law  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 countries, 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 in-
heriting.
  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 gene-
ral rule, it seems now  to be generally conceded, that no in-
fant 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

                                   Weight.
               On the 5th " .......... 3.039 killogrammes.
                     6th " .......... 3.035
                     7th "  ..........3.060
3.059 killogrammes is  equal (according to our author) to 6| pounds.  (An-
nales d'Hygiene, vol. 10, p. 15.)
  * 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 calendar months, or near that time.  At six months it
cannot be."  (Hargrave's Note 190*  on Section 188 of Coke upon Littleton.)
 _ The Roman law by one of  its provisions de suis et legitimis haredibus, de-
cided that a child  might be born alive six months and two days after concep-
tion ; 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 Foreign Medicine and Surgery, vol. 2, p. 100.) 
DELIVERY.
349
after a gestation of four months and a half, and to have lived
to the age of eighty.*  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 five child-
ren.  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 gesta-
tion.   Such early living births are,  at the present day, very
generally and very properly doubted.!
   The following are said to be extracts from the lectures of
the eminent Professor Hamilton of Edinburgh: " All acounts
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
  * Capuron, p. 157.  I find the following French law casein Denizart's Col-
lections, Art. Grossesse, vol. 9, p. 522:  A merchant arrived from St. Domingo
at Bordeaux, June 5, and married the next day.  His wife had an abortion on
the first of October.  He pretended that the child had lived; and, in conse-
quence, 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 de-
livery 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 decision was
in favor of the nephew.
  t In  the case by Dr. Rodman, the child was alive and healthy nine months
after birth.  At three weeks, he measured thirteen inches in length,  and
weighed one pound thirteen ounces. He was so destitute of vital energy, that
life was for some time  preserved by keeping him constantly in bed with the
mother, or other females.  The length and weight just mentioned, are those
according to the statement made in former  pages, of an infant advanced be-
tween the sixth and seventh month ; and although Dr. Rodman seems to ques-
tion the accuracy of authors on this subject, yet the observations have been
made in too many cases to be affected by this solitary exception.  His object
in publishing this case, is certainly highly laudable;  and no physician, how-
ever 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.)
  Case related by Mr.  C. Smythe, of Castle Douglas : A female in her second
pregnancy, 147th day of utero gestation, and 39 days after quickening, had
a severe  flooding, with rupture of the membranes.  Labour did not take
place until the next night, when a small, but well formed foetus was expelled
extremely feeble. It was, however, revived, so as to cry lustily. It weighed
less than  two pounds, and measured exactly twelve inches.  It swallowed some
nourishment, but died at twelve and a half hours after birth. The membrana
pupillaris was entire; the testicles had not descended, and the head was well
covered with hair.  Medico-Chirurg. Review, vol. 45, p. 266. 
350
DELIVERY.
surprise was alive, and which lived nearly three days;  and
this is the longest period that ever I knew so early a foetus
live.   At the completion of, or a few days after the seventh
month, a child may and certainly often does,  live to matu-
rity.   When I first began practice, I supposed no child could
live to maturity, which weighed less than five pounds avoir-
dupois, but experience has convinced  me to the contrary ;
and now I am  confident that a child of four and a quarter
pounds weight, may live to maturity.   No child at the full
period of pregnancy weighs less than five pounds avoirdu-
pois, and the common  weight of children at the full period
is seven pounds."*
   In a late case  in Scotland, Dr. Hamilton continued to
maintain the  above opinion.   The Rev.  Mr.  Jardine of
Kinghorn, was married on the  3d of March, and on the 24th
of August, Mrs. J. was delivered of a very weak child, not
three  pounds in  weight, but  which with  great care, had
hitherto been kept alive.  Mr.  Jardine  solemnly  declared
himself innocent,  and  threw himself upon the  Presbytery.
Dr. Hamilton was  requested by that reverend body to come
on and investigate the  case.  He could  not, but wrote two
letters, stating his own experience to be against the proba-
bility of a child born in the sixth month surviving; refer-
ring, however, to two  instances where children under simi-
lar circumstances  had  lived.  One occurred in 1710, when
the wife of a clergyman in the Presbytery of Wigton, was
delivered of a living child within five lunar months after mar-
riage, and Dr. Pitcairn, with other physicians gave it as their
opinion, that the child  had been procreated after marriage.
The other was in Paisley  in  1815, when a married woman,
who had previously had children, gave birth to a child nine-
teen weeks after conception, and it lived a year and a half.
  Dr. Thatcher was then written to.  He came to Kinghorn,
and the result  was  a  certificate in favor  of  Mr.  Jardine.
He belived  it possible.   It  appears  satisfactorily that the
marriage, after being a matter of notoriety, was contracted

        t Lyall's Gardner Peerage Case.  Introduction, p. 28. 
DELIVERY.                        351
at the appointed time.   And when the child was born, there
was no  preparation for it—no  clothing had been made—all
were  taken  by surprise.   The  Presbytery acquitted Mr.
Jardine of all criminality.*
   We may from these  observations  conclude  that between
five and seven months,  there have been  instances of infants
living,  though most rare; and even at seven, the chances  of
surviving six hours after birth, is much  against  the child.!
  * London Med. Gazette, vol. 17, p. 92.   (From the Fife Herald, October 1,
1835.)  The individual, who communicates this case, says that he has recently
seen a child prematurely born, (certainly before seven months,) which at birth
weighed only 2\ lbs.  "It was alive when I saw it, and lived twelve days."
  Mr. Jardine's case did not terminate with the above decision of the Presby-
tery, but was carried up by appeal to the Synod and the General Assembly.
The final result was however an acquittal.  A full statement of the case, with
the medical testimony pro and con, may be found in the Medico-Chirurgical
Review, vol. 35, p. 424-443.
  The child died on the 20th  of March succeeding, having nearly completed
the age of seven months.
  f Belloc and Capuron, among modern authors, mention instances of children
surviving 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 recent 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  Calcutta, of European parents: at the time of  the
description, it  was a month  and  twenty  days old—weighed one pound  and
thirteen ounces—was fourteen inches in length, and was then suckling well.
Case by Mr. Baker  in Transactions of Medical and Physical Society of Cal-
cutta, vol. 1, p. 364.
  A case by Mr. Cribb, where  the mother menstruated last on the  15th of
April, and was taken  in labor on the 2d of November, 1827.  The child  was
very diminutive, but at ten months it weighed twelve pounds.  (London Medi-
cal and Surgical Journal, for Nov.  1828.)
  A case by Mr. Greening of Worcester, in Midland Medical and Surgical
Reporter, vol. 2, p.  362.
   Sundry cases, quoted  from  Meli, an Italian writer on viability, in Annales
d'Hygiene, vol. 8, p. 466.  Some of these are of five months.
   A case by Mr. Thomson, of Alva,  Stirlingshire, of a child of five months,
and a few days, (as was  supposed,) surviving three hours and a half.   Its
length was 12i inches,  and its weight 1 lb. 81 oz.  The eyes were  unopened
and the nails not apparent. London  Med. Gazette, vol. 19, p. 866.
   Dr. Montgomery (Signs of  Pregnancy,  p. 262,)  has seen one instance  of a
fcetus, which at the utmost could  only have completed the fifth month, and
which lived a few minutes, and another of five months and a half, which lived
for four hours, "but in both, the  state was that of mere existence, without
the presence of any condition that could lead  to the most remote expectation
of life being continued."
   Dr. Erbkam, of Berlin, has published an  account  of an abortion in  the
fourth month, where the motions of the fcetus continued strong for some time
after birth.  The action of the heart was visible. The length of the fcetus
was six inches, and its weight four ounces.  The eyes were closed.  (British
and Foreign Med. Review, vol. 6,  p. 236.)
   Dr. Dugas  (Southern Med. Journal)  relates the case of a  negro  woman
delivered of a girl weighing 17 ounces, and which lived 24 hours.  It opened
its eyes and sucked a teat. The period of gestation was probably five and a
half months.   (Boston Med. and Surg. Journal, vol. 20, p. 130. 
352
DELIVERY.
  An  opinion, which  appears  to be  as old as the days of

Hippocrates,  has occupied the  attention of many writers,

concerning  the  viability  of  eight months'  children.   It

seems to have been the prevalent idea, that they are not so

capable of living  as those of  seven  months.  Obstetrical

writers of the present day, adduce in its favor, the argument

of experience, and they also urge, that  the uterus  has a

greater  power and disposition  to contract, at the earlier,

than the later period, while the  cervix will  also yield more

easily.  The  head of the  child  being  consequently not so

much  compressed, it has a better chance of surviving.  But,

on  the  other hand, it is argued that the  nearer the child

approaches  the natural  term of  gestation,  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 born at

eight months will live, while of those born at seven months, very

few survive.    Dr. Merriman adds, from a  list before him of

premature  births,  in which the  period of utero-gestation,

was distinctly marked, that out of thirty-six cases of  eight

months' children, there died during the month of child-bed,

only eight, while out of thirty-four cases  of seven months'

children, there died within the month twenty-one.*


  Dr. Outrepont,  of a child born at 27 weeks, and possibly not more than 25
weeks,  which at  birth had the most unequivocal marks  of immaturity.  It
survived,  and Dr. 0. saw the boy at eleven years of age, as large as one of
seven.  This case was stated by Dr. Christison on the trial  of the Rev.  Mr.
Jardine, and it is  " considered as the only unequivocal instance hitherto pub-
lished of the rearing of a six months' child."  (Medico-Chirurgical Review,
vol. 35, p. 438.)
  I add, for reference and examination, the following:
    Case by Mr. Streeter, of twins, at the end of  five months.  One survived
     upwards of two months.   (Lancet, N. S., vol. 27, p. 415, 447.)
    By  Dr. Shipman, at the sixth month, survived. (American Journal Med.
     Sciences, N. S., vol. 5, p. 499.)
    By  Mr. Dodd, Do. Do. (Transactions Provincial Med. and Surg. Associ-
     ation, vol. 9, p. 128.)
    By  Dr. Hoist, the child born in the 25th week, and survived three days.
     (London Med. Gazette, July, 1843.
    By  Mr. Tait, child born on the 179th day, survived four months.  (Lan-
     cet, April 23, 1842.)
    By  Dr. Cochran, born at the end of the fifth month, and lived six days.
     (Edinburgh Monthly Journal, vol. 2, p. 260.)
  * Medico-Chirurgical Review, vol. 4, p. 739.  Of this opinion are Capuron,
p. 159;  Fodere, vol. 2, p. 168;  Mahon, vol. 1, p. 157; Goelicke in Schlegel, 
DELIVERY.
353
  2. If we proceed as far back as the Roman law, we shall
find provisions on the  subject before us.  To enable the in-
fant to succeed to  property, it was necessary that it should
be perfectly alive, " si vivus perfectl natus est, etsi vocem non
emisit;"*  and the  decision of Zacchias is in acccordance
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 be born viable; and in order  to receive by testament,
it is sufficient to have  been  conceived at the  time of the  death
of the testator;  but neither donation nor testament can have
effect, unless the child be born viable.%  And the interpretation
of the word life or being born alive, is, according to the most
distinguished lawyers and physicians of that nation, complete
 and perfect respiration.^
   The English law, so far as it has a  bearing on the ques-
 tion before us, is  contained in the provisions concerning a
 tenant by the curtesy of England, as it  is called.   By this is
understood, " where a man marries a woman seised of an
 estate of inheritance, and has by her, issue  born alive, which
 was capable of inheriting her estate.   In this case, he shall,
 on the death of his wife,  hold the lands for his life, as tenant

 vol. 5, p. 139; Orfila, vol. 1, p. 372; the Editor of the Annales D'Hygiene,
 vol. 8, p. 466.  On the opposite  side, see Dewees  in Coxe's Medical Museum,
 vol. 2, p. 274; Barlow in Medico-Chirurgical Review, vol. 3, p. 320; New-
 England Journal, vol. 12, p. 52.
   * Chaussier, Viabilite, p. 3.
   f Capuron, p. 198.           J 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 complete.  Le
 celebre Merlin dit aussi tres formellement qu'il n'y a que la respiration com-
 plete que constitute la vie."—(Capuron, p. 199.)
   Dr. Locock of London has lately put this case. A  child's head is born, it
 cries, and of course breathes, and yet before the rest of the body is expelled,
 it dies. Can property be transmitted on such a life ?  I apprehend there can
 be no doubt of it, according to the English law. See London Medical Gazette,
 vol. 12 p. 636, 677.
                      23 
354
DELIVERY.
by the curtesy of England.'*   The exposition of commen-
tators is as follows :—"It must be born alive.   Some  have
had a  notion that  it must be heard to cry, but that is a
mistake.   Crying indeed is  the  strongest evidence  of its
being born alive ; but it is not the only evidence."!  Coke
says,  " If it be born  alive, it  is sufficient, though it be not
heard to cry, for peradventure it may  be born dumb.  It
must be proved that the issue  was alive; for mortuous 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
England ;§  but  it is to be feared,  that the broad principle
thus  laid down, may lead to  practical injustice.  I cannot
better  illustrate my ideas on this point, than by stating the
following case,  which lately occurred in England.
   In  1806, a cause  entitled  Fish  or  Fisher v. Palmer, was
tried before the court of exchequer at Westminster hall.  It
appears that an infant was born to Mr. Fish in  1796, which
was supposed to be still-born  ; and on the death of his  wife,
he accordingly 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.
  * An ancient provision in the laws of ^Ethelbert, 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 Encyclopedia, vol. 2, p. 102,
Art. Anglo-Saxon Laws.
  t Blackstone, vol. 2, p. 127.           $ Coke Littleton, 30 a.
  § Dyer's Reports, p.  25.  "It was moved, that a man shall be tenant by
the curtesy, 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 instructive, because it gives us the opinion of the
old writers on this  subject.  Glanvill says that the husband inherits, "ex
uxore sua hcered' hdbuerit filiam clamantem et auditam infra quatuor pari-
etes." And Bracton, " Sive supersf fuerit liberi sive mortui, dum tamen
semel aut vocem aut clamorem dismiserint, quod audiatur inter quatuor pari-
etes, si hoc probet,  et licet partus moriaf in ipso partu, vel vivus nascat, vel
forte semi-mortuus, licet vocem non emiserit, solent obstetrices in fraud' veri
hsered' protestari partum vivum nasci et legitim', etideo necesse et vocem pro-
bare, et licet naturaliter mutus nascitur et surdus, tamen clamorem emittere
debet."   The court, however,  (common pleas, 29th of Elizabeth,) decided
according to the dictum of Littleton, as adopted by the commentators in the
text, that " the crying is but a proof of the life.  But in the case at bar, to
remove all scruples, it was found that the issue was heard to cry." 
DELIVERY.
355
  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 appeared a
twitching and tremulous motion of the lips.  Upon inform-
ing  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. Den-
man, on the contrary, gave it as his opinion, that the child
was not alive.  He considered that the  motion of the lips
did not prove  the presence of the vital principle, and drew
a distinction between  uterine and extra-uterine life.  The
remains of the former, he thought, might have produced the
twitching of the  lips.  The  jury, however, found that  the
child was born alive; and the property which he had sur-
rendered 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 before us, indeed, they were justified in their
verdict by the testimony of eminent physicians, but it must
also  be remarked, that the proofs of life relied on by them
are  equivocal.  It  has been suggested, and I think with
truth, that these convulsive motions merely show that  the
muscular  fibre has not yet lost its contractility.   Still-born
infants, or those  who die instantly on being delivered, are
not  unfrequently observed to open their mouth, and  extend
their arms or legs.   May not these be merely the relaxation
* Fodere, vol. 2, p. 160; Smith p. 383. 
356
DELIVERY.
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 excite-
ment, that they appeared to raise their eyelids for an instant,
and  that instant  was  improved to  administer the  rite of
baptism.!  Chaussier  also examined the body of  several
children, born at five, six, and even seven months, who were
said to have  lived one  or two hours, and in whom a motion
of the jaws and members had been observed,  and  indeed a
slight respiration.  He  ascertained by dissection, that not
one  of them had lived after birth, and  concluded, that the
proofs observed, owed some of their strength to the wishes
of friends, and were  in fact nothing more  than the  feeble
remains of foetal life—resembling,  in many  respects, the
appearances  observed on  the body of  an animal  recently
decapitated.J
   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
  * I am happy to add the opinion of so eminent a writer on Physiology as
Professor Dunglison, in favor of the doctrine advocated above. "The irrita-
bility shown," says he, " must be regarded simply as an evidence, that the
parts have previously and recently formed part of a living system."  (Human
Physiology, vol. 1, p. 317.)
  f  Fodere, vol. 2, p. 160.  " Notwithstanding all this, I think  that where
there is a power of being affected by stimuli, (other than galvanic or electric)
this, in common sense, must be held to constitute vitality; and no practical
good can result from nice metaphysical distinctions between fcetal and extra-
uterine life, when the child is fairly in the open air."   Dunlop.
  X  Capuron, p. 198.   The action of sucking in the newborn  infant has been
shown to be purely instinctive.  Mr. Granger removed the brain in several
puppies, and notwithstanding,, on  being brought up to the nipple  they
attempted to seize hold of it.  (British and Foreign Medical  Review, vol. 5,
p. 507.)
  The reviewer of Barzellotti's Treatise on Medical Jurisprudence in the last
named work, (vol. 9, p. 44,)  is however of opinion that the least action indi-
cative of vitality, as the quivering of  a lip, is sufficient to establish the point,
that the child was not dead when born.  He also characterises the above dis-
tinctions of Denman, Fodere and Chaussier, of uterine and extra-uterine life,
as absurd. 
DELIVERY.
357
fluidity, and  that there is some  action left  in  the vessel.
The evacuation  of the meconium should  not be deemed a
sign of  life, since it is sometimes discharged  in the womb,
and is often caused by a compression of the abdomen.  Nor
is the  objection mentioned by Lord Coke, that the  deaf and
dumb  cannot cry, and that therefore there  might be injustice
done in some cases, correct;  since experience and observa-
tion show that they do cry when perfectly alive.*  Chaussier
insists that the proofs of life in these disputed cases, should
be  positive and manifest—such as the  high  red color and
warmth of the skin ;  a free and  full respiration; sharp and
continued crying, and motion of the heart and limbs, and
these  continuing for a longer  time than a few minutes.!
  The Scotch law seems to be more precise in its provisons.
Individuals there, as in England,  are allowed to  hold pro-
perty  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  child-
ren 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 in 1765,
in  the court  of session,  {Dobie  v. Richardson.)   " Dobie's
wife brought forth a child about nine months after marriage,
  * " 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.)
  f Chaussier, Memoire medico-legale sur la viabilite de l'enfant naissant,
Paris, 1826.  In 1S2S,  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 min-
utes ; 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 affirmative. It is manifest that any discus-
sions 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 indi-
vidual 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.) 
358
DELIVERY.
which breathed, raised one eyelid, and expired in the usual
convulsions about half an hour  after its birth,  but was not
heard to cry.   The mother died in childbed ; and the question
was, whether  the jus mariti was not lost by the death of the
wife within the year, without a child of the marriage who
had been heard to cry?  After  much argument on both sides,
the decree  was, that as  the wife did not live a year and a
day after her marriage, and as it was not proved that the child
or foetus of which she  was delivered was heard to cry, the
husband was not entitled to any part of his deceased wife's
effects."*
  The following occurred  in the court of sessions in 1833.
The Rev. William Blackie made certain provisions in his
will, dependent  on  his  daughter and  her husband having
" two  children  living  at any time."  It was held that an
averment, that a child which  had been born at the seventh
month, " was  born alive and continued to live during three
quarters of an hour, and was perceived to breathe repeat-
edly and its heart distinctly felt to beat, but it being admit-
ted that it had  not been  heard to cry, was not relevant to
infer that the  child was a living child."
  The court was strongly urged to waive the case of Dobie
and  take the  directions of the  civil law.  " The having
breathed is truly the  test."   But on the other hand, the
fixed criterion of the Scotch law was argued as alone admis-
sible and it was so decided, although one of  the judges was
of a different  opinion.!
  The following are continental cases.  " A lady of Turin,
aged twenty,  died intestate  on the twenty-eighth day  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  csesarean operation,  a child
which  was still  alive, but which  died at the  end of thirteen
minutes, and  which was not  opened after death.   The

  * See a Note to Dyer's Reports, 25, by the Editor John Vaillant, A. M. &c,
  t Roberton v. Roberton, cases in the Court of Session, vol. 11, p. 297 
DELIVERY.
359
husband, who was a  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 were that the child had all the characters of
maturity,  and that it  was  living,  which he discovered by
motions of the legs and feet, which had taken place before,
during, and after the  operation; by the child's opening its
hands,  which were  closed; by the  circumstances,  that on
cutting the umbilical cord, blood sprung out, and that pulsa-
tions 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 impression which pro-
duced an inspiration; and lastly, by the circumstance that the
natural heat remained; that after having lived about thirteen
or fourteen minutes, some drops of blood came from the nose
of the  child; that it became pale, stretched its limbs^ closed
its eyes, and died.  The brothers of the deceased opposed
the husband in his claims; and during the procedure depend-
ent before the Senate of Turin, some distinguished members
of the  medical faculty of that city proposed the following
questions to the faculty of Strasburg: 1. If it be  suffi-
ciently 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 re-
ally 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 discovering the cause of its death, which had
been so quick 1   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
Pans, 1S29, in Edinburgh Journal of Natural and Geographical Science, vol. 
360
DELIVERY.
  In April, 1834, a female in France, supposed to be eight
months advanced in pregnancy, was seized with convulsions
and died.  At about a quarter of an hour after her death,
Dr. Cabaret performed the csesarean operation and extracted
a child.  This physician swore that he saw its chest and
ribs move; that there was pulsation in the umbilical cord,
and also at its base,  after it  was cut off, and that on laying
his hand on the region of the heart, he felt its beating.  The
body was put into a warm bath and immediately on immer-
sion, the right hand was raised towards the head and a slight
respiration ensued.   After  this it  was motionless.  Dr.
Cabaret therefore considered that it had breathed, though
feebly, and for a space of time not exceeding five  minutes.
This testimony was confirmed by several female witnesses
who wTere in attendance on the mother.
  On the other hand, a physician swore that the child must
have been dead,  since he had been for eleven  hours  in
attendance on the mother, previous to her decease, and had
felt no  motion in the uterus.   He had  however not been
present  at the operation.
  Thirty-three days after the extraction  of the child, it was
disinterred and examined. The lungs were compact and of
a reddish brown color, and though the chest was arched, yet
they did not fill it.  The left lung was  emphysematous  at
its upper part; there was meconium in  the  intestines, and
the stomach and bladder were empty.   The body bore all
the marks of a fcetus between seven  and eight months
advanced.  The lungs with the heart annexed on being put
into a vessel of water, floated.  When the heart was removed
and the  right lung was placed in the water, it sank, but the
left floated.  On  cutting  it  into pieces, all  these  sank,
except portions from the  emphysematous part.
  The question was now  put to several  physicians whether
this state of facts proved  that the child had lived.  Velpeau
gave an affirmative answer.   The pulsations  of the heart
and cord and the  movement of the hand showed that the
blood was not motionless in its vessels.  It was not, there-
fore, he said, dead at this period.  Orfila, Dubois, Pelletan 
DELIVERY.
361
and others were of a contrary opinion.   The  first ascribes
the condition of the left lung to the progress of putrefaction.
If it had originated from independent respiration, the right
lung should have contained more air than the left.  The
pulsation in the umbilical cord also showed that extra-
uterine life was  not  established.   Dubois remarks  that it
did not live, in the law sense required, since the pulsations
spoken of equally take place in utero.
   The court finally submitted the case to the consideration
of Drs. Marjolin, Roux, and Marc, and required answers to
the  following  questions.   1.  Whether the child had lived?
2.  Was it born viable? Those  gentlemen commence their
opinion  by inquiring whether there was any thing in the
disease of the mother, and the consequent operation incom-
patible with the surviving of the child,  and after showing
by numerous  authorities,  that there was not, although the
chances  were  small,  they next  proceed  to canvass the
testimony.
   The motion of the arm is supposed  to  be mechanical,
owing to the  stimulus of immersion acting on the remains
of foetal life.   So also with respect to what Dr. Cabaret
considered to be  respiration.  If a child breathed  ever so
feebly for five minutes it is remarkable that  it raised no cry
—not even those feeble sounds  produced when the air pene-
trates only so far as the trachea.  Finally the pulsation of
the cord cease, as soon as respiration commences.
   Having thus disposed of the testimony of Dr. Cabaret,
they next proceed to  consider that deduced from the dissec-
tion.  The arched state of the  thorax,  they  suggest, may
have  arisen from the progress of putrefaction as well as
from  perfect  respiration and the former is rendered  more
 probable, from the fact that the lungs did not fill the cavity
of the chest.   They concede that this last is not indispensa-
ble, since  Schmitt of Vienna found  a similar  condition in a
foetus which had lived thirty-six hours,  but then the other
proofs of breathing must be unequivocal.   The compact state
of the lungs  is  also  a circumstance against, as also their
 reddish brown color, but this last is not  much relied on. 
362
DELIVERY.
  As  to  the  floating of the heart and lungs when united,
they are  disposed to ascribe it to the emphysema that was
present.   It is also possible that the progress of putrefaction
might have developed  gas in the heart or its vessels.   All
the circumstances go to prove this to be the cause and not
respiration,  and we know in the case of the drowned, that
a small  quantity of the  gases induced by putrefaction is
sufficient to float a comparatively heavy body.  From these
considerations and  believing that all the  indications might
be referred to the remains of foetal life, they gave it as their
opinion,  that the child had not breathed  and consequently
had not lived.
  As  to the  second  question, after noticing  the appearance
of the child, its  weight  and length (it weighed two and  a
half pounds  and measured  sixteen inches,  ten lines,)  the
median line,  about an inch above  the umbilicus, the state of
the nails and hair, &c. they decide that it  must  have been a
foetus between seven and eight months advanced and conse-
quently that  it was capable of living.*
  The only  American case relating to this point, that I can
find, is that  of Marsellis v.  Thalhimer, which  occurred in
the chancery court of this State in 1830.  The widow was
delivered of  a full grown child two months after the death
of the husband: it never breathed.  On these facts, a dispute
arose concerning the disposition of property.  It was urged,
that the child having been born, the presumption was that it
was born alive,  until the 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   arguments  and legal enactments which I  have
already  noticed,  and  the  decision of the  Chancellor
(Walworth)  was in conformity to this.  " I  am  satisfied,"
says he,  " from  the opinion of the physician examined be-
fore the  surrogate, that no court is authorised to decide
affirmatively that the child was born alive.  There is no legal
* Annales D'Hygiene, vol. 19, p. 9S to 169. 
DELIVERY.
363
presumption in favor 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."*
  For want of a better place I insert here a decision of the
supreme court of Massachusetts, that an unborn infant may
inherit  property.   I supposed  at one time, that it was a
solitary case, but there seems  to have been an earlier one.
It is to be hoped, that their publication may aid in promoting
a reform in the Criminal Law on the point in question.
   A testator  bequeathed the residue of his personal estate
to  such  of  his grand-children,  as  should  be  living at  his
decease, in equal portions.  The testator died June 19,  1809
and Charles  L. Hancock,  one  of  his grand-children, was
born March 6, 1810.  The court decided that the " distinc-
tion between a woman being pregnant and being quick with
child,  is applicable mainly,  if  not  exclusively to criminal
cases, and does not apply to cases of descents, devises and
other  gifts.   In general, a child is to be considered as in
being  from the time of its conception, where  it will be  for
the benefit of such child to be so considered.   The  time of
conception of a child  is presumed to be  at a period nine
months previous to its birth, and where there is no evidence
to  rebut this  presumption, it  is considered  conclusive."
Charles was  therefore entitled to a share of the property.!
   The following decision of Lord Chancellor Macclesfield
is quoted by  Lord Campbell in his Lives of the Chancellors
of  England (vol. 4, p. 524.)
   An ancestor of the late  Sir  Francis Burdett devised  his

  * 2 Paige's Chancery Reports, vol. 2, p. 35.  I cannot be insensible to the
flattering 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 cur-
tesy  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.)
  This act, however, did not pass; and the law remains as it was.  The laws
in force in Maine and  Rhode Island, as to the power of the husband to hold
as tenant by the  curtesy, are stated by Judge  Story in  Sumner's Reports for
the First United  States Circuit, vol. 1, p. 121, Robinson v. Codman.  Ibid, p.
2G3.  Stoddard v. Gibbs.
  f Hall v. Hancock.  15 Pickering's Reports, p. 255. 
364
DELIVERY.
estates, " in case  he should leave no son at the time of his
death," to his cousin Frances Hopegood, and died leaving
his wife pregnant without his knowledge.  She  gave birth
to a son, and the question wTas, which should have the estates 1
the devisee contending that the  testator left no son at the
time of his death, as it was then doubtful whether any child
would be born of the widow and what the sex might be, so
that the estates vested in  the  devisee and  could not be
divested by the son's subsequent birth.  But Lord Maccles-
field, after consulting the Judges of the  Court of Common
Pleas, held that the infant,  Sir Robert Burdett, though not
actually born  at the death  of his father, yet in the eye of
the law had existence in his mother's womb {ventre sa mere;)
as if a pregnant woman takes poison to kill her child and
the child being born alive, dies of the  poison, she is guilty
of murder;  an unborn child, therefore, may take as heir or
devisee, and here it could not be imagined that the testator
ever intended  to disinherit his own son.  So the estate re-
mained with the Burdetts."*
   The state of infants delivered by the cjesarean operation,
belongs also  to this place; and I  shall illustrate the laws
of different countries respecting them, by mentioning vari-
ous cases that have occurred.
   A  female,  the  wife of  Matthew Braccius, died  at  the
seventh month of  pregnancy,  of a violent illness; and  a
quarter of an  hour thereafter,  an infant was taken from her
by the csesarean operation.  The father claimed to be its
heir; and it was  asserted in  proof of its life, that it  had
opened its eyes, and made some slight motions.  Zacchias
was consulted on  this case; and in his opinion, he asserts
that these motions were mechanical,  and the 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

  * This case is reported in 1 Peere Williams.   Sir Robert Burdett v. Hope-
good.
  f Zacchias Consilium, No. 67. 
DELIVERY.
365
infant to inherit, who was delivered by the csesarean opera-
tion, and who lived for several weeks thereafter.*
  In France, a similar case  has been made the subject of
controversy.  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 csesarean operation,
which was baptised, as being alive.  A  law-suit was insti-
tuted  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 succeed  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 csesarean
 operation.  " The issue must be born during the life  of the
 mother; for if  the  mother dies in  labor, and the csesarean
 operation  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  afterwards be taken from  him." J   " One
 Reppes, of Northumberland, 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 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."§
   * Fodere, vol. 2, 163.                    t  Fodere, vol. 2, p. 164.
   X Blackstone, vol. 2, p. 128.  See also Coke Littleton, 29 b.
   §  Paine's Case, 8th Coke's Reports.  I do not know that any thing can be
 said on the subject of the first born of twins, except the following quota- 
366
DELIVERY.
   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

seperates  them  into  three  classes—monsters  by  excess,

monsters by defect, and monsters  by alteration  or wrong

position of parts.

   Of the first class, a very remarkable instance is  related in

the case of twins, born at  Tzoni,  in Hungary, on the 16th of

October, 1701.   These two females were  called Helen and

Judith, and were separated from each other, except at  the

anus,  where they were united, and the function  pertaining

to  that part was 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 February, 1723, at Presburgh.*  The case related by


tion: " When the question was, which of three sons, all born at  a birth,  was
the eldest, the declaration of a female relation, that she was at the  hirth,
and she tied a string round the  arm of the second son, in order to distin-
guish him, was admitted in evidence." (Starkie on Evidence, vol. 3, p. 1115.)
  * See an account of this extraordinary case in the Philosophical Transac-
tions, by J. J. Torkos, M. D. F.R.S. (vol. 50, p. 311.)  A similar instance is
mentioned in Piscottie's History of Scotland, p. 160.   Cases of double births
united at various parts, may also be found in the Philosophical Transactions,
vol. 5, p. 2096 ; vol. 23, p. 1416 ;  vol. 25, p. 2345; vol. 32, p. 346: vol. 45,
p. 526; vol. 72, p. 44; vol.  79, p.  157.  A very interesting account of a  per-
son in China, named Ake, is contained in Chapman's Journal, vol. 2, p. 148,
and vol. 3, p. 78;  also in Edinburgh Philosphical Journal, vol. 5, p. 133, and
vol. 7, p. 126.   He has a living parasite attached to him from the sternum to
the umbilicus, and is, notwithstanding, able to do the work of an husband-
man.
  For references to numerous cases, see  Lawrence's Essay on Monstrous
Productions, in Medico-Chirurgical Transactions, vol. 5, p. 165.   Diet, des
Sciences Medicales, vol. 34.  Review of J.  G. St. Hilaire on Monstrosities, in
Edinburgh Medical and Surgical Journal,  vol. 39, p.  165.   Chapman's Jour-
nal, 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 Medical Gazette, vol. 5, p. 51.  Lancet, N. S. vol.  12, p. 620.1
  Case by Dr.  Scoutetten, of Metz ;  one perfectly formed, and the other
acephalous.  They were both living a year after birth. This is a very curi-
ous case.  Medico-Chirurgical Review, vol. 24, p. 231.)
  And in America, Dr.  Horner, in American  Journal of Medical Sciences,
vol. 8, p. 349.  North American Medical  and Surgical Journal, vol. 2, p. 
DELIVERY.
367
Sir Everard Home, in the Philbsophical 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 inverted  position on the top of the proper one.
This was equally perfect, and at the age of six months, both
were  naturally covered with black  hair.   The child  lived
four years, and its death was owing to the bite of a cobra de
capello.  On dissection, no bones was found separating the
two brains.   The skulls  are preserved  in the  Hunterian
museum.*
   It is barely necessary to remark,  that frequent  instances
also occur, of an increased number of organs,  members, &c.
   Of  monsters,  by defect,  the most  remarkable are  those
which are born without a head3 and are hence styled 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!
   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 fcetus have been discovered.!
395.  Dr.  De Camp, in Boston Medical and Surgical Journal, vol. 2, p. 518.
Dr. Martin, in Ohio, Western Medical and Physical Journal, vol. 3. p. 290.
  Dr. Blackburn of Kentucky.  Two children united from the sacrum to the
coccyx, and one anus common to both.  The pudenda were united—the labia
were incomplete, inasmuch as there was but one for each child. They sur-
vived three weeks and died of dysentery,—one five minutes after the other.
Transylvania Journal, vol. 8, p. 114.
  The Siamese Twins belong to this division.  In November, 1833, two chidren
were born at Newport, Kentucky, formed exactly like the Siamese Twins.
The mother had never seen these, but they were exhibited in the town, about
the time she was  impregnated, and she had seen wood-cuts of them.  These
foetuses are now in the Cabinet of the Medical College of Ohio.  (Western
Medical Gazette, vol. 1, p. 289.)
  *  Philosophical Transactions, vol.  SO, 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 he-
reditary) in a whole family, is  related in Edinburgh Medical and  Surgical
Journal, vol. 4, p. 252.
  X  The following are instances  of this  nature:  A female named Amidee
Bissieu in France; at whose  death, at the age of fourteen, a fcetus was found
in the abdomen.  (Edinburgh Medical and Surgical Journal, vol. 1, p. 376.)
This case  appears to have been recently revived, and is related by M. Breschet. 
368
DELIVERY.
  After this  exposition of the condition in which monsters

are generally born, we shall be enabled to apply the laws of

various countries, relating to them.

  As  monsters, by excess,  are viable, or capable of living,

so, by the law of France, as already  quoted, they are capa-

ble  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

mal-conformation  is  ordinarily 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 defor-

mity in any part of its body, yet if it hath human shape, it

may be an heir."   This,  he adds, is a  very ancient  rule in

the law of England; and observes, that " the Roman law

agrees with  our own  in excluding such births  from succes-

sion, yet accounts them however children in  some respects,


(Medico-Chirurgical Review, vol. 5, p. 180.)—A child aged nine months, ex-
amined by G. W. Young, Esq.  (Medico-Chirurgical Transactions, vol. 1, p.
194.)—A girl aged two years and a half, examined by Dr. Phillips of Andover.
(Ibid. vol. 6, p.  124.)—In the London Medical  Repository, (vol. 4, p. 404,)
there is a reference to  three other  cases; and an account is also given of a
fcetus  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 men-
tioned as occurring in Austria in 1812.  It is related by Prochaska.  (London
Medical Repository, vol. 6, p. 300.)—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 ago of two years and nine
months.  A fcetus 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
for a short time. Mr. Lawrence mentions one, which, although deficient in
brain and cranium, was perfectly formed in all its other parts, and lived four
days.  Another  is  mentioned as occurring in Italy in 1831. It lived eleven
hours.   (Lancet, N. S., vol. 11, p. 570.)  Some valuable physiological remarks
on these productions, may be found in the Edinburgh Medical  and Surgical
Journal, vol. 11, p. 351. 
DELIVERY.
369
where the parents, or at least the father, could reap any ad-
vantage thereby, esteeming them the misfortune, rather than
the fault of that parent.   But our law will not admit a birth
of this kind to be  such an issue, as shall entitle the husband
to be  tenant by the curtesy, because it is not  capable of in-
heriting."*
   As  there are instances in which the issue should be  male
in order to inherit,  it will be proper to repeat a caution al-
ready given—not to mistake the enlarged state of the clitoris,
which is  very common at birth,  for male  organs.  Fodere
mentions instances  where females, in  consequence  of this,
have  been inscribed in the baptismal registers  as males ; and
in one  case,  the individual was  called out under the con-
 scription law.!
   If extra-uterine foetuses are brought forth alive, I presume
the provisions which are in force respecting those  extracted
by the csesarian operation, would apply.J
  * Blackstone, vol. 2, p. 246.
  t Fodere, vol. 2, 179.
  M. Velpeau  presented  to the Academy of Sciences, in Paris, May 25th,
1846, in behalf of Dr. Gorre,  physician at Boulogne, the following notice of
a monstrous child.
  It was born at Quinta de Corveiros, in the kingdom of the Algarves, on the
5th of September,  1845.   The parents are perfectly well-formed and in good
health.  The mother, aged twenty-two years, had previously given birth to
two well-formed children, and during her pregnancy with this, had suffered
no injury, nor experienced any violent mental uneasiness ; the delivery also
was not painful, and was accomplished at the regular period of nine months.
  The child, now in its eighth month, is  in perfect health. Its head, trunk,
and arms are perfectly natural, and well developed.  But it has a third leg,
proceeding from behind,  directly on the median line, so that it  is scarcely
6een, when the child lays on its back.  This supernumerary member is  of
equal length with the others and the foot is furnished with ten toes.
  In front, there is a double penis, separated at their bases about four centi-
metres, (about an inch and a half.)  There is a double scrotum correspond-
ing, each of which contains a  single  testicle. Each penis has  its urethral
canal, but these would  seem to communicate with but  one bladder; at all
events, when urine is discharged, it proceeds in equal quantity from both
orifices.  Comptes Rendus, vol. 22, p. 878.
  X New England Med. Journal, vol. 8, p. 118  and 403, by Dr. Delisle,  of
Paris, and Mr. King, of South Carolina.  In both, extra foetuses are stated
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 the
narrative was  written.
24 
 
CHAPTER  VIII.
INFANTICIDE.
BY JOHN  B.  BECK, M.D.  &c, OF NEW YORK.
Part I.—History of Infanticide as it has prevailed in various nations, an-
  cient and modern.—Part II.—Foeticide, or criminal  abortion.—The pe-
  riod 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 born alive.—Of the age of the child.—Of the child born alive without
  respiring.—Of the child born alive and respiring.—Proofs of the latter.—
  1.  Proof's drawn  from the  respiratory organs.—Configuration and  size of
  the thorax—situation of the lungs—their volume—their shape—their con-
  sistency or density—their absolute weight.—The static test.—Ploucquet's
  test.—The specific gravity of the lungs.—The hydrostatic test. — Con-
  sideration of  objections to it.—Rules for applying the  hydrostatic test.
  —2. Proofs drawn from the circulation.—Difference  between the blood
  of the fcetus and of the child after respiration.—Peculiarities in the organs
  of circulation  before and after respiration—the foramen ovale—the ductus
  arteriosus—the ductus venosus—the umbilical vessels—the cord. 3. Proofs
  drawn from the abdominal organs—the liver—the intestines—the bladder.
  —Consideration of the general objection to these proofs, that a child may
  respire  and yet may die before it is fully born.—General inferences in re-
  lation to the foregoing proofs.—Modes of perpetrating  infanticide.—Acci-
  dental modes  in which a child's life may be lost.—Congenital malformations.
  —Congenital  diseases.—Circumstantial  evidence.—Method of conducting
  examinations  in cases of infanticide.—Cases and illustrations.  Part III.
  —Of infanticide in its relations to medical police.—Laws against it  in dif-
  ferent nations.—Foundling hospitals.—List of American and British cases
  of infanticide.
                             PART  I.

Of the history of Infanticide, as it has prevailed in  different
                   nations, ancient and modern.

   It is  a  fact  no  less melancholy than astonishing, that a
practice so unnatural as that of infanticide should ever  have
prevailed to  any extent.   Its  existence  might  have  been 
372
INFANTICIDE.
 supposed  possible  in  those unhappy regions of our earth,
 where untutored  passion and brutal sense reign triumphant
 over reason and morality ; but that the  fairest portions of
 society, where genius,  science, and refinement had taken up
 their abode, should have  been disgraced by a crime so dis-
 gusting, is one of those anomalies in the history of human
 feeling and 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  ancient  nations, and that it is not even yet
 blotted from the list of human crimes.
   The laws of Moses are silent on the subject of infanticide ;*
 and from  this circumstance we should  be led to conclude
 that the crime was unknown among the Jews at that period
 of their 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 terri-
ble  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 con-
clusion 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 coun-
tenance  their  destruction.!   Tacitus, in  describing  the
manners of the  Jews  of his day,  says :   " To encourage
their own  internal  population is  a great object  of their

  * Commentaries on the laws of Moses, by J. D. Michaelis, F. R. S. Trans-
lated from the German, by Alexander Smith, D. D., vol. 4.
  t " Abortion and infanticide were not specially forbidden, but unknown
among the Jews.  Josephus, appealing in honest pride to the practice of his
countrymen, reproaches other nations with these cruelties." (Milman's His-
tory of the Jews, vol. 1, p. 107. Harper's edition.) 
INFANTICIDE.
373
 policy.  No man is allowed to  put his children to death."*
 At one period of their history however, (melancholy to re-
 late) when they had become contaminated by their intercourse
 with their idolatrous neighbors, the Canaanites, they fell into
 the  practice  of offering up, in  sacrifice, their  new  born
 children to the idol Molech.  One of their kings, Manasseh
 set them the example by the sacrifice of his own son.!  By
 a subsequent  king,  Josiah—distinguished for his piety as
 Manasseh had been for his wickedness, this horrid practice
 was suppressed.J  With an  obstinacy, however, peculiar to
 them, they again relapsed into the practice, notwithstanding
 the awful denunciations of the Almighty against the crime.§
 Even  at so late a period as  the times of Jeremiah  and
 Ezekiel, who wrote in the beginning of the Babylonish cap-
 tivity, the practice is described as being prevalent.|j  The
 place where these sacrifices were generally made was called
 Tophet, a valley east of Jerusalem.
  That the Canaanites sacrificed their  offspring to their gods,
and  especially to  Molech, is abundantly evident from the
numerous notices of it in the Old Testament.  The Jews do
not appear to have had  any particular form of idolatry of
their own.  They  generally  borrowed it from the nations
 with whom they associated, and when they are  spoken of
as having fallen into this species of idolatry, (the destruction
 of their offspring) it is referred  directly to their intercourse
with the Canaanites.II  Besides  this,  it is positively stated
that for this, together with other abominations, the Canaan-
ites were driven out of their land.**
  Among the  Egyptians, generally speaking, infants appear
to have been treated with much humanity ; yet instances are
not wanting of the  greatest  (at least intended) cruelty to-
wards  them.  A memorable one is  to be met with in the
commission given  by Pharaoh to the Hebrew midwives to
murder all the male offspring of the Jews, for the purpose

  * Tacitus, translated by Arthur Murphy, Esq., vol 5 pp  8  9  Hist
Book v. chap. v.                | 2d Kings, xxi. 6.  '
  X 2d Kiii^s, xxiii. 10.           § Leviticus, xx. 1.
  || Jeremiah, xix. 5; xxxii. 35.  Ezekiel, xvi. 20, 21; xxiii 37 39
  '> Psalms, cvi. 35, 38.           ** Deuteronomy, xviii 9, 10, 12 
374                    INFANTICIDE.
of stopping the  increase  of  their numbers.*   Their  own
children, however, were treated with great tenderness ; and
they are on this account mentioned  by some of the writers
of other  countries.  Strabo, in particular, speaks in praise
of them in this respect.!
  Although not addicted to  infanticide  in the  ordinary
acceptation of the term,  or to the  exposure of new-born
infants, the sacrifice of children among the Phoenicians, formed
a part of their religion, and was carried to the most barbar-
ous  extent.   The  deity principally worshipped  by  them
was Saturn,^supposed to be the same as the Molech of the
Canaanites, and the  ceremonies appear to have been very
much  the  same among the  two people.  The children were
offered up by  being burnt  in a brazen statue of the idol, the
cries of the unhappy  victims being drowned by  the uninter-
rupted noise of  drums and trumpets.   To add to the horror
of the spectacle, parents were  not  merely present to witness
the  impious proceeding, but are said to have been obliged
to do so without betraying emotion, in order to render the
offering acceptable to the  God.J   The  Carthagenians, who
were colonists of the Phoenicians, retained the same revolting
practice.§   In times  of peace, the offspring of slaves  were
generally substituted; but when pestilence prevailed, or the
public tranquility was  disturbed  by war, the victims  were
always selected from the best  families.  History records a
melancholy instance of the superstition and cruelty of these
  * Exodus, chap. i. 15, 16, 17.
  t Strabo, Lib. xvii. A History of Inventions and Discoveries; By John
Beckman, Prof, of Economy in the University of Gottingen.  Translated by
Wm. Johnston, vol. 4, p. 430.   Lond.  " The population  of Egypt was
encouraged by many  salutary laws. The  exposing of  children was re-
strained by the severest penalties.  A man was obliged to rear and educate
not only the children born to him in the state of marriage, but to acknowledge
for legitimate, and maintain, all the children he had by his slaves or concu-
bines. Homicide was punished with death, even when committed on a slave."
(Universal History, from the creation of the world to the decease of  George
III. 1820.  By Hon. A. F. Tytler and Rev. Ed. Nares,  D. D., vol. vi. p. 68,
N. Y. edition.)
  X Rollin's Ancient History, vol. 1, p. 29, New-York edition.
  § Plutarch, in his Tract on Superstition, alludes to  this practice of the
Carthagenians, and describes it particularly.  (Plutarch's Morals,  Part 2.)
By Minucius Felix, it is also noticed.  " Merito ei (Saturno) non nullis Africae
partibus a parentibus infantes immolabantur,blanditiis et osculo comprimente
vagitum, ne flebilis hostia immoletur." (Octav. Minucii Felicis, cap. xxx. 3.) 
INFANTICIDE.
375
deluded people.   It  is  related  that  on  their  defeat by
Agathocles, king  of Sicily, (attributing it to some negligence
in the  selection  of the victims, which had been offered) in
order  to atone for the past, they immolated, at one  time,
two hundred  of  the  sons  of their nobility.  This horrid
custom is thus noticed by Silius Italicus :

         " Mos fuit in populis, quos convenit Advena Dido,
          Poscere  csede deos veniam, ac flagrantibus aris
          (Infandum dictu)  parvos imponere natos." Lib. 4.*

   So monstrous  and inveterate had this   practice  become
among these people, that it attracted the attention of other
nations.  When Gelo, king of Sicily, conquered them, by the
treaty  which  he  made with them, he  obliged them to re-
nounce it.!   It  does not appear, however, that this  was
observed, and the practice is said  to  have been continued
until the pro-consulate of Tiberius, who caused the priests
of Saturn to be hung on trees around their temples.%
   The Ancient Persians, according to Herodotus, were in the
habit of burying  children alive.   " This custom," he  says,
" of burying children alive is common in Persia ; and I have
been informed that Amestris, the wife of Xerxes, when she
was of an  advanced age, commanded  fourteen children of
illustrious  birth to be interred alive, in honor of that  deity,
who, as they suppose, exists under the  earth."§  That the
exposure or destruction of  new-born children was not, how-
 ever, a common practice among these people, would seem
evident from a remark' made by the same author in another
place.  " Next   to valor in the field, a   man is esteemed
 according  to  the number of his offspring; to him who has


   * Caii Silii Italici Punicorum libri septemdecim, Lib. iv. 765. Goettingae,
 1798, vol. 1. p. 324.
   t Rollin's Ancient  History, vol. 1, p. 29, New-York edition.
   X " Infants  have been sacrificed to Saturn publicly in Africa, even to the
proconsulship of  Tiberius, who devoted the very trees about Saturn's temple
to be gibbets for his priests, as  accomplices in the murder, for contributing
the protection of  their shadow to such wicked practices. For the truth of
this, I appeal  to the militia of  my own country, who served the proconsul in
the execution of this order. But these abominations are continued to this
day in private."  " The apologetic of Quintus Septimus Florens Tertullianus,
in behalf of the Christians."  (Reeves' Apologies, vol 1, p. 187, 188.)
   § Herodotus.  Translated by Rev. Wm. Beloe, vol. 3, p. 148. 
376
INFANTICIDE.
the greatest number of children the  king every year sends
presents; their national strength depending, as they suppose,
on  their numbers."*   Although, therefore, it  would seem
not to have been a general practice among the Persians, yet
the reigning power unquestionably  exercised  the right of
life and death whenever he saw fit, with perfect impunity.
Besides the fact just  related, there  is  another illustrating
this connected with the history of an illustrious character
in Persian story.  I mean  Cyrus, who was  ordered to  be
destroyed by his grand-father, Astyages, as soon as  he was
born, and whose life was only saved by the humanity of the
agents employed to perpetrate the deed.!
  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 cavern at the foot of Mount Taygetus, called Apothetce,
" concluding that its life could be of no  advantage either to
itself or to the public, since  nature had  not given it  at first
any strength or goodness of constitution."!  This practice
was not, however, upheld merely by the sanction of law ; it
was defended by the  ablest men in Greece.   Aristotle, in
his  work  on government, enjoins the exposure of children
that are naturally feeble and  deformed,  in order to prevent
an  excess of population.  He  adds,  "if this  idea  be re-
pugnant to the character  of  the nation, fix  at least  the
number  of children  in each  family;  and  if  the  parents
transgress the law, let it be  ordained, that the mother shall
destroy the fruit of her body before  it  shall have received
the principles of life and sensation."§  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."||

  *  Beloe's Herodotus, vol. l,p. 122.
  t For the interesting details of this history, see Beloe's Herodotus, vol. 1,
p. 105.
  X  Plutarch's Lives, translated by Lnnghorne, vol. 1, p. 142.
  §  Travels of Anacharsis, vol. 5, p. 270.
  ||  Ibid. vol. 4, p. 342. 
INFANTICIDE.
377
  With such sanctions of law and philosophy, it  is by no
means to be wondered at that infant life should be held very
cheap among the Greeks, and that the practice of exposing
and  destroying children  should become general.   That it
was  actually so, we have  abundant evidence drawn from
their own writers.   The  Grecian poets  especially abound
with facts  and  illustrations,  showing not merely the wanton
prevalence of the practice, but that it was not received with
any  special  abhorrence.  The Ion, of Euripides, and the
CEdipus Tyrannus,  of Sophocles, are both founded on occur-
rences of  this  kind.
  The objects and modes of exposing their new-born  chil-
dren, among the  Greeks, were different.  When they simply
wanted to  get rid of them, and induce some stranger to take
them up, they  exposed  them in public places, where they
might be seen and attract attention, such as market places—
the  public temples—margins of rivers, &c*   They always
too,  attached some ornaments to them, either as a temptation
to have them taken up,  or more probably to identify them,
in case they  should  survive.  A memorable instance of  this
is met with in the  Ion of Euripides,! already alluded to.
When the  object was to destroy the child, the places select-
ed for exposing them were mountains, deserts, &c.
   To  the  rest of  Greece, however, there was one noble
exception, and that was Thebes.   By one of her laws, it was
expressly  forbidden  to imitate  the other  Grecian cities,
who exposed their children  at their birth.  Parents in needy

  * At Athens, the commonplace for exposing children was called Cynosar-
ges,  in the suburbs of the city, at the foot of Mt. Auclusmus, sacred to Her-
cules, where was a grove and gymnasium. In this place was a tribunal which
decided upon the  legitimacy of children in doubtful cases.  (Lempriere's
Classical Dictionary.)
  t      *      *     *     "to the same cave,
         Where  by the enamored God she was comnressed,
         Creusa bore the infant; there for death
         Exposed him in a well-compacted ark
         Of circular form, observant of the customs
         Drawn from her great progenitors."    *     *
                             (Potter's Euripides.  Ion, v. 21.)
         *                 " what of ornament she had
         She hung around her son, and left him thus
         To perish."                           (Ibid. v. 33.) 
378
INFANTICIDE.
circumstances  were directed to carry their new-born child-
ren  to  the  government, by whom they were given  to
whoever chose to take the best care of them at the cheapest
rate, of whom in consequence however, they became slaves
for life.*
   Among the  early  Italian  nations,  especially  among  the
Sabines, it is said to have been customary in times of danger
and distress, "to  vow to the  deity  the sacrifice of  every
thing born  during the succeeding spring; provided the
calamity under which they were laboring should be removed.
This  sacrifice  comprehended  both  the   human race and
domestic animals,  and  there is little doubt that in  many
cases, the vow was really carried into effect."!
   Of all the nations  of antiquities, however, the most arbi-
trary and  profligate  in the treatment  of their offspring,
appear  to  have  been  the  Romans.  The  Phenicians and
Carthagenians  might  plead religion as an  excuse for  these
atrocities—the Greeks might urge state necessities in  justi-
fication  of  theirs—but the  Romans resorted  to no such
excuse or justification.  By law  the  Roman  father  was
invested with supreme power over the lives and fortunes of
his children,  and in  exposing  or  destroying  them,  he
exercised nothing but a natural and acknowledged  right.
As soon as a child was born, the midwife placed it on  the
ground.   If  the  father  did not wish it to be reared, he left
it  exposed on the ground—if, on  the  contrary, he wished it
to live, he took  it up and gave it to the mother or nurse.
This act was called  " tollere liberum," and was  considered
so essential that it was done under the auspices of a  parti-
cular deity.|   According to  Dionisyus Halicarnassus, Rom-
ulus ordained that all the citizens  should bring up all their

 * Anacharsis' Travels, vol.  3, p. 277.  Julian.  Hist. Lib.  xvii. p. 1180.
Beekman's History of Inventions, vol. 4, p. 438.
 t Greek and  Roman  Antiquities.  By Wm.  Smith, L. L. D.  Edited by
Charles Anthon, L. L. D.,  p. 352.
 X " Lev ana, a goddess at Rome, who presided over the action of the person
who took up from the ground a newly born child, after it had been placed
there by the midwife.  This was generally done by the father, and so reli-
giously observed was this ceremony, that the legitimacy of a child could be
disputed without it."  (Lempriere's  Class. Dictionary.) 
                        INFANTICIDE.                    »'*

male children, as well as the oldest of the daughters.   The
younger  ones  therefore  might  be  exposed.   Deformed
children also he  permitted to be exposed, but this  was not
to be  done until after they had  been exhibited to  some of
their  nearest neighbors and their consent  obtained.*  By
the law of the Twelve Tables, enacted  in the 301st year of
Rome,  the rights  of the  Roman  father  were  confined.
After  this, even the slight restrictions which Romulus had
imposed upon parents appear to have been removed, and an
unqualified jurisdiction surrendered to the  father  over the
lives  of his children, even after  they had  arrived  to years
of  maturity.!  Sallust mentions  an instance of the latter.
" Fuere extra conjurationem,  complures, qui  ad Catalinam
initio  profecti  sunt:  in  hie  A.  Fulvius,  senatoris filius:
quem  retractum ex itinere, parens jussit necari."   Sallust.
Cat. xxxix.   It is  hardly to be supposed that the exercise
of a right so abhorrent to all  the  feelings  of humanity,
should at once have risen  into general practice.  At first in
the simple and  more virtuous periods  of  their history,  it
was no doubt  exercised  only under a  supposed  manifest
necessity.  As luxury and vice increased in one portion of
the community and with it, poverty in another, it came  to be
practised  on  the  slightest occasions  and for the basest
purposes.  Accordingly, we find  at one period, and that too
when  the Roman empire was at its highest pitch of grandeur,
that the destruction of infant life, in all its various stages,
was practised  by  high and low—rich and  poor.  Abortion
was perpetrated and children were exposed,| scarcely with-

  * " Primum necessitatem colonis imposuit educandi quicquid esset mascu-
lum, et e filiabus primogenitas; nullam autem prolem necari permisit mino-
rem triennio, nisi siquid mutilum aut alioque monstrosum in  ipso partu
editum.  Tales autem  foetus exponi a parentibus non vetuit, sed ostensos
priusquinque viris e  vicinia proximis, si illi quosque exponendos esse cen-
suissent.   Si quis contra hanc  legam committeret, praeter alias mulctas,
etiam dimidiam bonorum partem addixit serario publico." Dionysii Halicar-
nassei scriptaquae extant omnia etHistorica etRhetorica. Francofurdi, 1586,
Grasce  et Latine, Antiq. Romanor. Lib. 11, vol. l,p. 88.
  t The right of parents over their children, or thepatria potestas, as it was
called,  is thus stated in the Institutes of Justinian,  Lib. 1, Tit. ix. p. 22,
Cooper's Ed.  " Jus autem potestatis, quod in liber os habemus, proprium est
civium  Romanorum ; nulli enim alii sunt homines, qui talem in liberos ha-
beant potestam, qualem nos habemus."
  X The places where children were generally exposed at Rome, were two— 
380
INFANTICIDE.
out censure—certainly without punishment.  Of this we
have the most abundant testimony from their own writers
as well  as from the christian fathers.   Of the  first of these
we need nothing more than the graphic accounts left us by
Juvenal.  In his celebrated satire on women, among other
things  he speaks  of the practice of  abortion as common
among the fashionable and rich ladies of his day.
         Hse tamen et partus subeunt discrimen, et omnes
         Nutricis tolerant, fortuna urgente, labores
         Sed jacet aurato vix ulla puerpera lecto;
         Tantum artes hujus, tantum medicamina possunt,
         Quae steriles facit, atque homines in ventre necandos
         Conduit.                  Juvenal.  Sat. vi. 476.*

  The Christian writers of the day, in  their defences of the
Christian religion against the accusations of their enemies,
express themselves  with heroic  boldness in exposing and
denouncing the prevalent practices of the Romans.
  Justin Martyr says, " But  we who are truly  Christians,
are so far from maintaining any  unjust or ungodly opinions,
that exposing of infants, which is so much in practice among
you, we teach to be a very  wicked practice;  first because
we see that such children, both girls and boys, are generally
all  trained up for the service of lust, for as the ancients bred
up  these foundlings to feed  cows, or goats, or sheep, or
grass horses,  so  now a days such boys are brought up only
to  be  abused against  nature; and accordingly  you have a
herd of  these  women and  effeminate men,  standing prosti-
tute in  every nation;"   *   *  *  " and  another  reason
against  exposing infants, is that we are afraid they should

the columna lactaria and  the velabrum.  The first was a pillar which stood
in the market were vegetables were sold.  (Beckman on Inventions, vol. 4,
p. 434.)  The velabrum was " a marshy piece of ground on the side of the
Tiber, between the Aventine, Palatine, and Capitoline hills, which Augustus
drained and where he built houses.  The place was frequented as a market,
where oil, cheese, and other commodities were exposed to sale."
                                        Lempriere's Class. Diet.
         " Yet there, 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."
                                      Dry den's Translation. 
INFANTICIDE.
381
perish for want of being taken up, and to bring us under the
guilt  of murther."*
  Tertullian, in his apology, thus expresses himself.   " How
many of you," (addressing himself to  the Roman  people,
and to the governors of cities and provinces) " might I de-
servedly charge with infant  murder; and not only so, but
among the different kinds of death,  for choosing some of
the cruelest 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 child-
ren, 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 delibera-
tion about the  man;  for to kill a child before it is born, is
to commit murder by way of advance ;  and there is no dif-
ference, 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 per-
fect man, had nature met with no disturbance." !
  To the same effect is  the testimony of Minutius  Felix.
" 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
beginnings of  what would come to be a man, in his mother's
womb."   " And these  forsooth  are the lessons which you
learn from your gods ; for Saturn exposed not his children,
but he eat them."!

  * The first apology of St. Justin for the Christians, to Antonimus Pius.
See Apologies of Justin Martyr, Tertullian and Minutius Felix, in defence of
the Christian Religion, &c, by William Reeve's, M.A., vol. I, p. 53,55.  Lon-
don, 1716.
  f Reeve's Apologies, vol. 2, p. 190.
  | "  Vos enim video procreates filios nunc feris  et avibus exponere, nunc
adstrangulatos misero mortis genere elidere.  Sunt quae in ipsis visceribus,
medicaminibus epotis, originem futuri hominis extinguant." " Et hcec utique
de dcorum vestrorum disciplina descendunt;  nam Saturnus filios suos non
exposuit, sed voravit "  Minucii Felicis Octavius, cap. xxx. 3, p.  188.  Lon-
gosalessae, 1773. 
382
INFANTICIDE.
   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 refine-
ment, and casting the opprobious epithet of barbarian on all
around her, she was guilty of the basest profligacy and the
most hardened cruelty.  Philosophy did nothing to arrest
it.  Indeed her sages, like those of Greece, defended it and
apologized for it.    Pliny the  elder, excuses it  upon the
ground  of its  being necessary to preserve the population,
within proper bounds: " Quoniam aliquarum fecunditas plena
liberi tali venia indiget." Lib. xxix., c. iv.  Christianity first
opposed a barrier to the desolations of this crime; her mild
and humane  spirit could  not  but discountenance it;  and
accordingly it animated all who were arrayed under her
peaceful banners, to exert their  energies in arresting  its
progress.  As  the  christian religion began  to exercise  its
influence over the imperial power, edicts were passed with
the view of suppressing this horrid crime.  By Constantine
the Great two decrees  were issued—one for Italy in the
year 315, A.  D,—the other for Africa, in the year 322.  By
these it was ordained that in order to prevent the exposure,
sale or murder of new-born children, those who were too
poor to rear them should receive assistance from the public
treasury, in the way of food, clothing and other necessaries.
At the  same time, he ordered a severe punishment to  be
inflicted on a  cruel father.  These edicts are supposed to
have  been issued  under the advice  of the celebrated
Lactantius.*
   This was the first time  that the authority of the govern-
ment had interposed to  arrest this  crime ; and it is not to
be supposed, that a custom which had become so familiar to
all the habits  and feelings of the Roman  people  would be
immediately  suppressed; and  accordingly we find  that it
still continued to prevail, though in a less  degree, until the

          * Beckman's History of Inventions, vol. 4, p. 439. 
INFANTICIDE.
383
end of the 4th century, when it was finally exterminated by
the emperors Valentinian, Valens, and Gratian.*
  In every thing relating  to the treatment of children, the
ancient Germans exhibited a noble contrast to the profligate
Romans.   From the moment of their birth, they were trea-
ted as free human beings.   The mothers reared their infants
at their own breast, they were  not left to the care of nurses
and servants, and to destroy them was looked upon as infa-
mous.  Tacitus, in  his  account  of  the  manners  of the
Germans, says of them, that " to set limits to population,
by rearing up only a certain number of children and destroy-
ing the rest is accounted a flagitious crime."  And he adds,
" among the savages of Germany virtuous  manners operate
more than good laws in other countries."!
   Even the  Goths, barbarians as they are commonly called,
entertained  juster and more humane notions in relation  to
the value of infant life than the Romans—although,  infanti-
cide  prevailed  among some of them, yet  it received no
sanction from their laws.  Chindaswinthus, one of the kings
of the Visigoths, describes  the  procuring of abortion,  as
well as the  murder of children, as practices prevalent in the
provinces,   but  denounces  severe  penalties  against  the
 perpetrators of these crimes. J  In the code of the Visigoths
(Leges Visogothorum) there are express laws against these
 offences.  " It was  death  to give a woman drugs to procure

   * 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  impunity, by the  nations who never entertained the Roman
ideas of parental power;  and the dramatic  poets, who appeal  to the human
heart, represent with indifference a popular custom which was palliated by
the motives of economy and compassion. If the father could subdue his own
feelings, he might escape, though not the censure, at least the chastisement
 of the laws. And the Roman Empire was stained with the blood of infants,
till such murders were included by Valentinian and  his colleagues, in the
letter and spirit of the Cornelian law."  (The History of the Decline and Fall
 of the Roman Empire—by Edward Gibbon, Esq., vol. 3, p. 186,Lond. Ed.)
   t De Moribus Germ. xix. Murphy's Tacitus, vol. 5, p. 112, Eng. Ed. 1831.
   The Germans were called savages by the Romans.  But let any one read
 the account of  the manners and practices of the Roman women, as given by
 Juvenal, and then compare it with the description of the German women, by
 Tacitus, (they wrote in the same century) and  I think  he will not hesitate
 long in deciding that the term more justly belongs to the Romans.
   X On the history of the effects of Religion on Mankind.  By Rev. Ed. Ryan,
 p. 110. 
384                    INFANTICIDE.

abortion,  and  equally criminal if that effeet should follow
from  a stroke  or any wilful  injury.   Child murder was
punished  with the death of the parent."  Lib. vi. tit. iij.*
  But infanticide was not confined to the ancients.  It has
descended to modern  nations, and at the present day disgra-
ces 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 9,000 annually.  No  law exists to  prevent it;
on the contrary it appears rather  to be encouraged, inasmuch
as persons are employed  by the  police of the  city to  go
through the different  streets every morning in carts, to pick
up  all  the children that may have been throwft^but 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. J   Almost all those that
are exposed are females.  The causes assigned for its pre-
valence,  are extreme  poverty, arising  from an overgrowth
of population; frequent and  dreadful  famines,  springing
from the  same cause;  the  natural coldness of affection  in
the Chinese, together with the sanction of custom, and the
want of any law  forbidding it.   Mr. Ellis,§ and Dr. Abel,||
both of whom  visited China  in  company with the  embassy
of Lord  Amherst in  1816, express  strong doubts with re-
gard to the frequency of infanticide in  that country.  And
more recently Mr. DavisTT does  the same.   For the sake of

  * Universal History. By Tytler and Nares, vol. 3, p. 205, 6.
  t Travels in China, &c. by John Barrow, Esq., p. 113. (Amer.  edition.)
  X Ibid. p. 114.  Also De  Pauw's Philosophical Dissertation on  the Egyp-
tians and Chinese.  (Quarterly Review, vol. 2, p. 255.)
  § 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.
  || Narrative of a Journey in the interior of China, &c. in the years 1816 and
17.  By Clarke Abel,  F. R. S., p. 234, 5. Lond. ISIS.
  H The Chinese: A general description of the  Empire of China and  its
Inhabitants.  By John Francis Davis, F. R. S. &c.  vol. 1, p. 249, Am. Ed. 
INFANTICIDE.
385
humanity, it is to be hoped that these doubts are founded in
truth.   Whether the estimate of Barrow and other travellers
be too large  or not, it  is impossible 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  by-standers what this meant; they answered
with indifference, ' it is  only a girl.' "  This same traveller
says, " It is  a general custom among them to drown a large
proportion of the new-born femaleychildren.   This unnatu-
ral crime is so common  among them, that it is perpetrated
without any feeling, and even in a laughing mood; and to
ask a man of any distinction whether he has daughters, is a
mark of great  rudeness. Neither  the  government, nor the
moral sayings of their sages, have  put a stop to this nefa-
rious custom."*  The same writer,  in another work, makes
the  following statement:   " Infanticide, of which the hus-
bands  are the  only perpetrators,   is not uncommon;  but
female  children  only  are murdered, and then immediately
after their birth.  This  horrible  crime meets with no pun-
ishment from the laws of the  country: a father being the
sovereign lord of his children,  he may extinguish life when-
ever he perceives  or pretends that a prolongation of it
would  only  aggravate  the  sufferings 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 female population is as ten
to one 4  Another  late  traveller confirms the existence of
the  general  prevalence  of this practice.   It is confined al-
most entirely to female children.  The practice has nothing
  * Journal of Three Voyages  along the coast of China, in 1831, 1832 and
1833; with notices of Siam, Corea, and the Loo-Choo Islands.  By Rev.
Charles Gutzlaff.  p. 142. American edition.
  f A sketch of Chinese History, Ancient and Modern, &c. By Rev. Charles
Gutzlaff.  Vol. 1, p. 46.  American edition, 1834.
  X See a Journal of a Residence in China, &c. from 1829 to  1833  Bv Rev
David Abeel, pp. 128, 158. New-York, 1834.               '
                   25 
386                   INFANTICIDE.
to do with any  religious system or creed—it is not taught
" either  by  Confucianism,  Taouism, or Buddism."  The
principal cause is poverty and the desire to get rid of the
trouble and  expense of bringing  up female children, who
are  considered  as  comparatively useless  beings.  Hence
it prevails most in the capita/ and in the southern provinces,
where the population is beyond the powers  of the soil to
produce sufficient subsistence.*
  A still more recent traveller, in China, the  Rev. Mr. Smith,
gives some  interesting  statements in relation to infanticide.
In Canton, the crime is  comp-  iively infrequent, owing, as
is  supposed, to the Foundl'    Hospital established there
and  superintended  by the c   ernment.   This  is the only
institution of the kind in the province, and  is capable of
holding 1,000 infants.  It is  estimated  that  5,000 female
children, the  offspring  of the poor are  annually taken to
this  establishment.  In  a visit to the suburbs of  Canton, Mr.
Smith was told that " taking a circle of the  radius of ten
miles around  the spot where  he was, it was computed that
the number of infanticides did  not  exceed  one  hundred  a
year.  The  practice was  entirely  confined to  the poor, and
originated in the difficulty of rearing their female offspring."
In the Fokeen province, on the other hand, female infanti-
cides were very common.  At a place about five days journey
above Canton, there were computed to be 500 or 600 female
children destroyed in a  month.!  In Amoy, the crime seems
to be very prevalent.  About one half of the female children
were said to be destroyed.  This too was principally among
the poor, and the number in a family was generally in pro-
portion to the  poverty  of  the  individual.   Out  of  six
daughters, some  murdered three—others, four—and others,
five.  The child was destroyed immediately afterbirth—the
modes were  various—either  by  drowning in  a vessel of
water—pinching the throat—applying a  wet cloth over the
  * China; its state and prospects, with especial reference to the spread of
the Gospel, &c.  By W. H. Medhurst, of the London Missionary Society, pp.
45, 6, 7. Boston, 1838,
  t Exploratory visit to the consular cities  of China in 1844,  45, and 46 By
Rev. Geo. Smith, M. A.  Vol.  1, p. 53. 
INFANTICIDE.                   387
mouth—or choking by  a few grains of rice placed in the
mouth of  the infant.*  The causes of the prevalence of the
crime among the Chinese, according to Mr. Smith, are to be
sought for in the  extreme poverty  in certain districts, and
the little  importance attached to females in the social con-
stitution.
  Among the Japanese, it is said, by one authority, that the
poor people destroy their children  at birth, when they are
weakly or deformed.  Although forbidden by the laws un-
der severe penalties  the practice seems to be winked at by
government and the parents are very seldom called to account
for these murders.  The crime of producing abortion, too, is
said to be very frequent, and  some of the priests are charg-
ed with making a trade of  selling  decoctions  of certain
woods for this purpose.!  It  does not appear, however, that
these people are justly chargeable with the general crime of
exposing  or destroying their children.  In this respect, they
certainly differ greatly  from  their neighbors, the Chinese.
I have looked into Kcempfer,| Thunberg and others,  and I
do  not find any thing  to justify the opinion that they are
addicted  to this crime,—at any rate, it  is not  a national
crime.  They appear to treat  their children with great kind-
ness and  attention.  How different  they must be from the
Chinese,  is evident  from a  statement of Thunberg,  who
says, " the more daughters  a man has, and the handsomer
they are,  the richer he  esteems  himself, it  being here the
established custom for suitors to make presents to their fa-
thers-in-law, before they obtain his daughter."^
   Among the Hindoos,  infanticide presents itself in all its
deformities 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

  * Ibid. p. 393.
  t Memoirs of a Captivity in Japan, during the years 1811, 12 and 13, with
Observations on the country and the  people.   By Captain Golownin, of the
Russian Navy. Second edition, Lond. Vol. 3, p. 222.
  X History of Japan,  &c. By E. Kcempfer, M. D., Physician to the Dutch
Embassy to the Emperor's Court.  Lond. 1723. 2 vol. fol.
  § Travels in Europe, Africa and Asia, made between the years 1770 and
 1779.  By Charles Thunberg, M. D.  Third edition, Lond., vol 4, p. 52 
388
INFANTICIDE.
places where  it is now known to  exist.*   The number of
infantile  murders  in the  provinces  of Cutch and Guzerat
alone, amounted, in 1807, according to the lowest calcula-
tion, to 3000 annually; according to  another computation,
30,000.!   Females are almost the only victims.  In defence
of the practice, they urge  the difficulty of rearing female
children, the  expense attending their education, and  the
small  probability of their ever  being married.f  Within a
few years, through the benevolent exertions of some of the
subjects of Great  Britain, it was supposed that infanticide
had been completely abolished in  many of the provinces.
Mr. Duncan, governor of  Bombay,  Marquis Wellesley,  and
Col. Walker,  were  the  persons  who  took the  lead  in  this
affair, and whose energy and 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 re-
cent traveller, that the benevolent labors 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 re-
ceived 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

  * Christian Researches in Asia.   By the Rev. Claudius Buehanan,  D.D.
English Edition, p. 49.—View of the History, Literature, Religion, &c. of the
Hindoos.  By Willliam 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.
  t Buchanan's Researches in Asia, p. 49.  Also Moor's Hindu Infanticide,
p. 63.
  X 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 oyer
its face, which by preventing respiration destroys ,it.  (Researches in Asia,
p. 47.  Moor's Hindu Infanticide, p. 55, 56.)  Another mode still more com-
mon, however, is to drown the child, as soon as it is born and ascertained to
be a female, in a large vessel of  milk placed in  the room for that  purpose.
Moor's Hindu  Infanticide, p. 27. Heber's Travels, vol. 2, p. 70. American
edition.
  § For a full account of these measures, see " Hindu Infanticide : an ac-
count 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  illustra-
tions, by Edward Moor, F. R. S.  London, 1811, 4to.  In this volume, the
report of Lieut. Col. Walker is particularly interesting. 
INFANTICIDE.
389
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 time3 however,
things have gone  on very much in the old  train, and the
answer made  by  the chiefs  to any remonstrances of the
British officers, is, " Pay our daughters' marriage portion,
and  they shall  live."  Yet these very men rather than strike
a cow, would submit to the cruelest martyrdom."*
   In the Burman Empire,  on the contrary, infanticide as a
general crime is unknown.   Children are treated with  great
kindness, both by father and mother, and no distinction is
made between  male or  female children.  Mr. Malcom  says,
" Infanticide, except in very rare cases by unmarried females,
is utterly unknown.  A widow with children, girls or boys
is much more likely to be  sought again in marriage than if
she  had none.  The want of them, on a first marriage, is one
of the most frequent causes of  polygamy."!
   There is no part of the world, however, in which infanticide
prevailed until very recently, in a form more affecting than
it did in some  of  the South Sea Islands.  Previously to the
conversion  of Otaheite, now called  Tahiti, infanticide was so
common, that,  along with  other causes,  it  threatened the
complete depopulation  of  the  Island.  It was  found  as  a
common practice when the island was first visited by Captain
Cook in  1769 ;J  and just  anterior  to the introduction of
Christianity, according to the  most accurate estimates, at
least two thirds  of the children born were destroyed.§ It
appears to have  been  confined to  no rank or class of the
 community, but to have been  universally prevalent.   Mr.
 Ellis, who  visited this  part of  the world in 1817, and resi-
ded  there  for  eight years,  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
   * Narrative of  a Journey in the Upper Provinces of  India, &c.   By the
Right Rev. Reginald Heber, D. D.   Vol. 2, p. 70, American edition.
   t Travels in South Eastern Asia, &c. &c.  By Howard Malcolm.  Boston,
 seventh edition, 1844, v. 1, 189.
   X Cook's Voyages, vol. 2, p. 72, 85.
   §  Turnbull's Voyage Round the World, in 1800, 2, 3, and 4. Polynesian
 Researches, by William Ellis, vol. 1, p. 198, American Edition. 
390                    INFANTICIDE.
idolatry prevailed, who had not imbrued her hands  in  the
blood of her offspring."*  To the same effect is the testimo-
ny of another missionary, who resided many years  in  the
islands of the Pacific,  Mr. Williams.  "Infanticide,"  he
says,  " did not  prevail either at the Navigators  or Hervey
groups; but  the  extent to which  it  was carried  at  the
Tahitian  and  Society Islands almost exceeds credibility.
Generally  I may state," he adds, " that in the last mentioned
group, I  never  conversed  with a  female that  had  borne
children prior to the introduction of Christianity, who had
not destroyed some of them, and frequently as many as from
five  to ten."!   Females were generally the victims. The
effect which this practice had in diminishing the number of
inhabitants, was astonishing, and  affords  a  striking fact in
refutation  of the doctrine which is maintained by some, that
the practice of destroying children has a direct tendency to
augment population.   When Cook  visited the  island  he
estimated  the  inhabitants at 200,000.  Although this was
probably  altogether too large, yet it shows  that  the  island
at that time, must have been quite populous.   In less than
thirty years after, this terrestrial paradise, blessed with a
genial climate and a luxuriant soil, was reduced  to some 7
or 8000 souls.   In  1797, Capt. Wilson who went with  the
first missionaries from England, made the population only
about 16,000, and not many years afterwards the missiona-
ries  declared it as their opinion that  the  island did  not
contain more  than 8000 souls.J   Mr.  Ellis  thinks that
within the last thirty years the island has never contained
fewer inhabitants than this, and  he  estimates the present
number at about 10,000.§  It is  not to be supposed that

  * Polynesian Researches, vol. 1, p. 198.
  t A Narrative of Missionary Enterprises in  the South Sea Islands; with
remarks upon the natural history of the islands, origin, languages, traditions,
and usages of the inhabitants.  By John Williams, of the London Mission-
ary Society, p. 499, New York, 1837.
  X Polynesian Researches, vol. 1, p. 89.
  § Capt. Wilkes states that a recent census gives 9000 inhabitants for the
population of Tahiti, and he adds, that for the last thirty years, the popula-
tion has been nearly stationary; the births and deaths are now almost ex-
actly  in equal numbers.  One of the oldest  missionaries informed him, that
athough he saw much change in the character and habits _of the people, he 
IXrA'     >E.
391
this  enormous diminution of population  is to be  attribut-
ed  solely  to the  practice  of infanticide.  Various  other
causes have doubtless cooperated.*   That infanticide how-
ever, has had a material effect in repressing the  population
is conceded  by all those  who have visited  this  island.
Besides  Tahiti, this horrid practice prevailed in all the rest
of those groups of islands known by the  names of Georgian
and Society islands, and to  the same extent.!  Among the
causes of the prevalence of  this crime, there was one and it
appears to  have  been  the  principle one, so curious and
unique that it deserves  a brief  notice.  This  was the  exis-
tence of an institution  which was called the  Areoi society.
How this association originated is not known.   It appears
to  have been of remote antiquity  and  according  to the
traditions of the people, was of divine origin.   The  habits
and practices of the members of this society were  of the
most debasing  character.  According to  Mr.  Ellis, who
gives the best account of this institution, it was made up  of
" a sort  of strolling players, and privileged  libertines, who
spent their days  in travelling  from  island  to  island, and
from one  district to another, exhibiting their  pantomimes
and  spreading  a  moral  contagion  throughout society."!
The resources of  the society were ample, and these exhibi-
tions were  among  the  chief sources  of  amusement to the
 people.  These diversions had their  gods, who, according  to
the  ideas  of the  people,  patronized every evil  practice
 perpetrated during such seasons of public festivity.   When
 a person  wished to become a member of this  society, he
 was supposed to be inspired to do so by the gods.   With
 this view he assumed  the  air  of a deranged  person, and
rushed  with frantic wildness among the performers, joining

 could perceive none in their apparent numbers." Narrative of the United
 States Exploring Expedition, during the years 1838, '39, '40, '41, '42.  By
 Charles Wilkes, U. S. M.D., vol. 2, p. 49.
   * Edinb. Med. and Surg. Journal, v. 2, p. 284, 290.
   t For interesting notices on this subject, see Journal of Voyages and
 Travels by the Rev. D. Tyerman  and G. Bennet,  Esq., vol. 1, p. 53; vol.
 2, p. 67, 162, Amer. ed.  Also Polynesian Researches, by W. Ellis, vol. 2, p.
 29, &c. &c.
   X Ellis' Polynesian Researches, vol. 1, p. 185. 
392
INFANTICIDE.
in their  orgies.  After undergoing  suitable trials, he was
inaugurated as a member.  After this, the first act he was
directed to perform was to destroy all his children, which was
always done.   Strange as it may appear, this  association
was  held in the highest repute  by the chiefs and  higher
classes, while by the ignorant and vulgar, it was  looked up
to with a species of veneration.  Membership was not con-
fined to  any particular grade, but was open to  all.   It is
easy to conceive what the  influence of such  a society must
have been upon the rest of the community.   Sanctioned and
even ordered as infanticide was by it, and in obedience too
to the will of  their gods, the practice was looked upon, not
merely, as not criminal, but perfectly innocent, and accord-
ingly it was resorted to by the whole of the people, either
from ambitious or prudential considerations or to get rid of
the trouble and expense of rearing their children.
  To add to  the  atrocities of  this crime, as practiced by
these islanders, the parents or nearest relatives, who gener-
ally  attended  for this very purpose, were the executioners.
The  modes in which the children  were destroyed  were vari-
ous—either by stabbing them with a sharp-pointed piece of
bamboo  cane—strangling them, by placing  the thumbs on
the  throat,  or by stamping upon them.  The deed was al-
ways perpetrated just before the  child was born or immedi-
ately after  the  birth.  According to Mr. Ellis, if from any
cause, it was suffered to live ten minutes or  half  an hour, it
was  safe.
  The Areoi  Society appears  to have been  peculiar to the
Georgian and  Society Islands—it did not exist among either
the Sandwich or Marquesas Islands.   It is consoling to state
that in the year 1815, immediately after the  reception of
Christianity became general throughout the Society Islands,
this  institution, with all its infamous practices, was abolished
by common consent,  and many of the  Areois  themselves
were converted  to Christianity.*
* Polynesian Researches, by W. Ellis, vol. 2, p. 130, 
INFANTICIDE.
393
  When infanticide was first introduced into these islands is
not known.   Mr. Ellis thinks it could not have been prac-
tised so extensively in the earlier  periods of their history
as it was during the fifty years previous to their being con-
verted  to Christianity—otherwise  they never could  have
become so populous as they certainly were long before their
discovery.
   Among the Sandwich Islanders, this crime also prevailed
in its most atrocious forms.   Sometimes they strangled their
children, but more frequently buried them alive.  What was
peculiar in  the barbarity of these people, was, that even
should a child be spared  for a few weeks  or months after
birth, they had no hesitation in destroying  it  at  any subse-
quent period—at least two-thirds of the children  born, were
here also sacrificed.  The principal cause assigned for the
prevalence of this crime among these people was their ex-
cessive  indolence,  and their  dread of the  trouble  to be
encountered  in  rearing their  children.   In 1823, Mr. Ellis
says, that although not abolished,  he believed it to prevail
less than it did four or five years before.   The king, as well
 as many of  the chiefs, began to consider it as murder,  and
 did every thing to discourage the practice.   In 1824, it  was
 publicly forbidden, and " if the crime  is  practised now,"
 says he, "it is under the same circumstances as secret mur-
 der would be perpetrated."*
    In the group of islands,  called fhe Kings-mill  Islands,
 according to Capt.  Wilkes, a woman has seldom more than
 two and never more than  three living children.  After the
 birth of the third, they consider it necessary  to prevent the
 increase of their families, and for this  purpose  they resort

   * Polynesian Researches, vol. 4, p. 240.  Stewart's Journal of a residence
 in the Sandwich Islands, p. 185, 251.
   A recent American voyager says, that in the Sandwich Islands " Infan-
 ticide is still practised, but not to the same extent as formerly, nor is the
 deed committed openly.  At the imminent peril of the mother, children are
 now destroyed about the fourth or fifth month of utero-gestation, almost en-
 tirely in cases of illegitimacy, and but very rarely after birth.  Infanticide
 has been made a crime by the civil law ; and it is hoped, that the people will
 soon feel it be an offence, equally against social and moral rectitude, as well
 as detrimental to their political condition."  A voyage round the world, in
 1835-6 and 7, by W. S. W.  Ruschenberger, M.D. 1838. 
394                    INFANTICIDE.
to systematic  abortion.  As  soon as a female  finds herself
pregnant for the third or fourth time, she calls in the aid of
a person practiced in the art, to bring about an abortion,
which is effected  by pressing  on the abdomen and back.
The operation, although not unattended with much pain and
difficulty to the mother, rarely proves fatal.   The practice
is looked  upon without any idea of its  criminality, being
considered as a necessary means of keeping  their families
from becoming too large.  " The practice of destroying  the
foetus," it is added, " is universal among the  unmarried fe-
males, but children are never destroyed after birth." *
  In the Feejee Islands, according to the same authority,  the
practice of producing abortion  is so prevalent, that nearly
one  half of those  conceived are supposed to be destroyed
in this manner,—usually by the command of the father, " at
whose instance  the wife takes herbs which  are known to
produce this effect.   If this does not succeed,  the accouch-
eur  is  employed to  strangle the child, and  bring it forth
dead."!   "It is stated, too,  that  if through accident or
neglect, a name  should not be given to the child immediate-
ly on its birth, it is considered as an outcast and destroyed
by the mother."
  Among the natives of the interior of Ceylon, when a child
is born, an astrologer is consulted to foretel its future for-
tune; if it should be unhappy 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  un-
happy lot.  So common is the destruction of all the rest of
the female offspring, that it has been observed, in the district
where  this practice  prevails,  that  more than one female
child is rarely to be found in a family."J  The effect of this
practice upon the  relative proportion of male and female
population, is very striking.   According to the calculation

  * Narrative of the United States Exploring Expedition,  during the vears
1838, 39, 40, 41 and 42.  By Charles Wilkes, U. S. N.  Vol. 5, p. 102.
  t Ibid. vol. 3, p. 93.
  X Notes on the Medical Topography of the Interior of Ceylon.  By Henry
Marshall, Surgeon to the Forces, pp. 22, 33, 37.  London, 1821. 
                       INFANTICIDE.                   395

of Mr. Marshall, the females are to the males as 84 to 100;
while  in England they  are  as 98.8 to  100.*  The only
extenuation offered  for this crime, is the extreme poverty
of the people.  Bishop Heber,in speaking of the 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 hun-
dred men, but fifty-five women; and in those parts where the
numbers were equal, the population was almost exclusively
mussulman.!  The difficulty of marrying their daughters,
in a country where to live single is  disgraceful, is one of the
principal causes according  to  Heber,  of  this unnatural
custom.|
   The  natives of New South  Wales,  resort  to violent and
unnatural 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 trou-
ble 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  to this
horrid process.  Another practice still more shocking pre-
vails, of burying a child with its mother, if she happens to
die.§ This practice  is justified by  them, upon the ground
of the  difficulty,  and even  impossibility of  nursing and
rearing a child under these circumstances.
   Among the New Zealanders, infanticide is asserted to be a
common occurrence.   When a girl is born, it is  said the
mother  not  unfrequently destroys it, "by pressing her finger
upon the soft part between the joinings of the  skull."||
   Among the Hottentots, infanticide appears to be a  common
  * Ibid. p. 33.
  t Narrative of a Journey through the Upper Provinces of India,  with notes
upon Ceylon, &c. &c.  By the late Right Rev. Reginald Heber.  Vol. 2, p.
197.  American edition.
  X "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.
  & Account of the English Colony of New South Wales.  By Lieut. Col.
Collins, of the Royal Marines, p  121—5.  Edinburgh Review, vol. 2, p. 34.
  || The Library of  Entertaining Knowledge, New-Zealanders,  p. 387.
Cruise's Journal, p. 290. 
396
INFANTICIDE.
crime.  According to Thunberg, " children are exposed and
left to their fate on various occasions;  as for instance when
a woman dies,  either  during her lying in, or immediately
after  it, the child in such cases is  burned along with the
mother, as no one can bring it up amongst people who have
no notion of nurses.   If a woman brings  forth twins, and
thinks herself not able  to rear them both, one of them is
exposed.  If they are  both boys, the  strongest and most
healthy is kept; if one of them is a girl, it is her lot to be
exposed; as is likewise  the  fate of any one that comes a
cripple into the world."*
  Sparman, too, 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 them called Bojesmans, who
destroy 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."J
   In Madagascar, according to a recent account, infanticide
presents itself in  a  shape of barbarity, almost beyond the
limits of  belief.   Here as in some other savage  nations,
when a child is born the astrologers are consulted as to  its
future fortune, and if unfavorable, it  is  doomed to die.  The
modes of destruction are  various.   Sometimes it is exposed
in a narrow passage, through  which a  herd of cattle is furi-
ously driven, and the child thus trodden to death.   Some-
times it is suspended by the heels, whilst its face is held
downwards in a pan of water until suffocation takes place ;
while at other times it is buried alive.   And all  this  syste-
matic murder is  perpetrated by the  father or the nearest
relative under the express authority of the queen.§

  * Travels in Europe, Africa and Asia, made  between the years 1770 and
1779.  By Charles Peter Thumberg, M. D., 3d ed. Lond. Vol. 2,p. 1U5.
  t A Voyage to the Cape of Good Hope, &c.  from the year 1772 to 1776, by
Andrew Sparman, M.  D.  Vol. 1, p. 257.
  X An Account of a Journey in Africa, made in the years 1801 and 1802, to
the residence of the Booshuana Nation, &c. By John Barrow, Esq. p. 378-91.
  § Madagascar, Past and Present. By a Resident.  London Literary Gazette.
American Journal of Medical Sciences, vol. 14, p. 261.  1547. 
INFANTICIDE.
397
  Among the Arabians before  the  time of Mahomed, the
inhuman practice of burying their daughters alive was gen-
erally prevalent, and the reasons assigned for it were entirely
of a prudential character.  " Lest they should be reduced
to poverty by providing for them; or else to avoid the dis-
pleasure and disgrace  which would follow if they should
happen to be made captives, or to become scandalous by
their behavior; the birth of a  daughter, being,  for  these
reasons, reckoned a great misfortune, and the death of one
as great a happiness."*  The mode of perpetrating the deed
was the following:  When a woman was about to be deliv-
ered,  she  was brought to  the  side  of a pit  dug for that
purpose.  If the  child happened to be  a daughter it was
thrown into  the pit, but if a son it was saved.   To the honor
of Mahomed, this  horrid practice was interdicted  by him,
and in the Koran it is several times alluded to and reproba-
ted.   The oath  required of those  who joined his party,
commonly called  the  " woman's oath,"  is to this effect:
" That they  should renounce all idolatry;  that they should
not  steal, nor commit fornication, nor kill their children, nor
forge  calumnies;  and that they  should obey the prophet in
 all things that were reasonable."!
   Although  thus discountenanced by the Koran, the Ma-
 hometans of  the present day do  not seem to attach any great
 criminality to infanticide ; on the contrary, the very sources
 of honor  and authority  among  them are polluted by it.
 Even the  palace  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 honora-
 ble confinement in the  palace, are destroyed as soon as they
 are born.J  And Blacquiere accounts  for  the smallness  of
 the number  of children belonging to the Bashaw of Tripoli,
 from  the  fact of his encouraging his  wives to evade their
 accouchements.§  A recent traveller says, that the Turkish
   *  The Koran, &c.  By George Sale.  Preliminary Discourse.  Vol.  1, p.
 137.  Am. Ed.
   t  Sale's Koran.  Vol. 1, p. 65.
   X  The present state of Turkey, &c. by T. Thornton Esq. vol. 1. p. 120.
   §  Letters from the Mediterranean, by E. Blacquiere, Esq. vol. 1, p. 90. 
398
INFANTICIDE.
 women  after getting two or three children, or as many as
 suits their  fancy  to have, are  addicted to procuring mis-
 carriages, at which they or their accouchesses (Jewesses)
 are exceedingly expert, not producing constitutional injury.*
   Dr. Bryce, in speaking of the present state of medicine at
 Constantinople,  says: " Midwifery  is  almost exclusively
 practised by Jewish and Turkish women;  and it is worthy
 of remark,  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 preten-
 sions to  certain means, not only to obviate sterility, but also
 to produce  abortion by administration of drugs—a practice,
 avowedly tolerated,  and frequently resorted to, by Turkish
 females, both from their dislike to frequent pregnancy, and
 from command of their lords, when the harem threatens to
 become too numerous."!
   In mbdern Egypt, nothing is more common than the pro-
 curing 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 in-
 difference.  In the towns and villages, there are individuals
 who are  specially employed  in this barbarous business.  At
 Cairo, there are Arabian physicians, who, for a great length
 of time,  have followed this  infamous  trade.  Infanticide is
 rarely made a  subject  of criminal investigation.  When a
 married woman destroys  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 denying the crime, she is only
 obliged to take a certain oath, to free herself.   When a girl,
who may have become pregnant, destroys her child, to ex-

 * Records of  Travels  in Turkey, Greece, &c. in the years 1829, 1830 and
1831, by Adolphus Slade, Esq. vol. 2, p. 162. American edition.
 t 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.
399
culpate  herself from  the crime,  she has  only to liberate a
male or a female slave.*
  Among the modern Persians, although Infanticide does not
appear to be a  national crime, yet the King (as among the
ancient Persians,) has absolute  power over the lives of his
subjects;  and  he not unfrequently exercises it in the de-
struction of all the children of his harem, whenever it suits
his inclination.!
  Even  in Iceland,  we  find  traces  of this  inhuman  crime.
The custom appears to have been derived from their Norwe-
gian  ancestors, among  whom it continued to  prevail for
nearly one hundred  years after it had been abolished in Ice-
land.  It  became extinct  shortly after the introduction of
Christianity into the island,  which event took  place at the
end of the tenth century.|
  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.§
  Among the Greenlanders, infanticide is not known, except
as an occasional crime.  In general, their attachment to their
offspring is great.  When,  however, an infant is so unfortu-
nate as to lose  its mother, and no one can be found to nurse
it, it is soon buried alive by the father.||

  * See a  Letter on the St?teof Legal Medicine in Egypt, by Hamont, Direc-
teur of  the Veterinary School of Medicine, of Abon-Zabel, in the Annales
d'Hygiene Publique et de Medecine Legale, vol. 10, p. 202-3.
  t Historical and  Descriptive Account of Persia. By James B. Frazer, Esq
p. 222,  260.   N. Y. Ed.                                        4'
  X 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 edition, p. 39.
  The  practice of exposing children, though exercised, was  by no means
common among the northern nations. It  was chiefly done by the poorest of
the people a rich  man incurring much obloquy by so doing.  It never hap-
pened if the father had taken the child  in his arms,  or Sprinkled it with
water   Muller Island. Hist p. 146.  An Historical and descriptive account
of Iceland, Greenland and the  Faroe Islands, p. 113.
  § Ellis' Voyage to Hudson's Bay, p. 198.
  || The History of Greenland; including an  account of the mission carried
°rJl   v?i.    ,?ohroiVnTthai  ?oUntry'  From the Ger*an of David
Crantz. Vol. 1. p.  149, 218.  Lond. 1820. 
400
INFANTICIDE.
   In Labrador, the Moravian  missionaries who first landed
there, found it a prevailing  custom to put to death their
widows and orphans not to gratify a natural ferocity of dis-
position,  but merely on account of a supposed inability to
provide the means of support  for the helpless orphan or the
desolate  widow of another.   By the exertions of the mis-
sionaries, the  practice was arrested.*
   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 men.!   The number of these
sacrifices has  doubtless  been exaggerated, but the fact is
unquestionable, that thousands of victims poured forth their
lives to appease  or conciliate their imaginary deities.
   The mothers in California  are described as voluntarily
destroying 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
unfortunate 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 child-
ren.  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

  * Barrow's Account of a Journey in Africa in 1801 and 2.  Edinburgh
Review, vol. 8, p. 438.
  t Robertson's History of America, vol. 3, p.  325.
  X A Natural and Civil History of California, &c. &c. Translated from the
original Spanish of Miguel Venegas, a Mexican Jesuit, published at Ma-
drid, 1758, vol. 1, p. 82.  Lond. 1759.
  § Journal d'un Voyage a L'Amerique Septentrionale, par le P. De Char-
levoix.   A Paris, 1744.  Vol. 3, p. 368.
  H History of America, vol. 3, p. 335. 
INFANTICIDE.
401
 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 sacrifice of men taken in battle, of
 whom they  murdered  an  immense  number.   Robertson
 endeavors to rescue them from this charge, by invalidating
 the  testimony of Acosta.  He cannot, however, help con-
 fessing that the practice did prevail among " their uncivilized
 ancestors;" but he adds, " that it was totally abolished by
 the Incas, and that no human victim was ever offered in any
 temple of the sun."   He admits,  moreover, that " in one of
 their festivals, the Peruvians offered cakes of bread moisten-
 ed with blood drawn from the arms, the eyebrows and noses
 of their  children.  This  rite may have been derived," he
 says, " from the ancient practice in their  uncivilized state,
 of sacrificing human victims."*
  Besides  those  that  have  been  enumerated,  travellers
 record the names of other tribes and nations inhabiting this
 vast continent, who  murder  their children with  impunity
 and  without remorse.  They tell  us  of  the Abiponians, a
 migratory  race, inhabiting the province of Chaco in Para-
 guay, among whom mothers have been known to destroy all
 their children as soon as they  were born;! and  of the
 Araucanians, a powerful nation of Chili, who  permit fathers
and husbands to kill their children and wives.J
  To the honor of our North American Indians, it  deserves
 to be  mentioned, that they are not known to be guilty of
 this horrid crime.   M. Bossu, who travelled in this country,
about the middle of the last century, gives many interesting
notices,  in  relation to the treatment  of  children, by  the
Indians inhabiting  the  southern and western  parts of  the
  * History of America, vol. 3, p. 429.  It is due to the Mexicans and  Peru-
vians  to state that they do not appear chargeable with  the crime of exposing
and wantonly destroying their new-born offspring.  Like the Phoenicians, they
offered their children in sacrifice to their deities,  under mistaken notions of
religious duty.
  t Edinburgh Encyclopedia, Art. Abiponians.      X Ibid. Art. America,
                   26 
 402                    INFANTICIDE.

 United States.   Not  only did they not destroy their new-
 born children, but in rearing them, they treated them with a
 degree of tenderness and  care, not  always  practised  by
 nations more civilized.  The care of the father began even
 during the pregnancy of the mother, and certain  articles of
 food which  might be supposed to injure the child were
 carefully abstained from.   The women too, always nursed
 their own children^ never trusting another person with this
 sacred office.  He quaintly  adds,  " no  girls there destroy
 their own offspring, in order to appear chaste in the  eyes
 of men.  The Indian women abhor the  christian  girls who
 fall  into  that case; they oppose the fiercest wild beasts to
 them because they take great care of their young."*
  Mr. Heckewelder, in his interesting account of the Indians
 who  inhabited  Pennsylvania and  the neighboring  states,
 says, "I have never heard of any nation or tribe of Indians,
 who  destroyed  their children, when distorted or deformed,
 whether they were born so, or come to be so afterwards."!
 Mr.  Schoolcraft, in speaking of the Chippeway Indians, states
 that it has been said,  that ill-formed children are  destroyed
 by  their  mothers in their infancy.   He adds that " nothing
 has, however, been observed to confirm this opinion.  It is
 probable  individual cases  of such  barbarity (and those of
 extreme deformity) have occurred, but there does not appear
 to prevail any general custom in regard to it.   On the  con-
 trary, several naturally deformed savages  which we have
 seen, appear to disprove the prevalence  of such a custom."J
 To  the same effect are the testimonies of Captain Franklin
 and  Dr.  Richardson, both of whom represent infanticide as
 an exceedingly rare  occurrence,  and when  an  occasional
 instance of it takes place, is looked upon by them as a crime
 of the greatest magnitude.   Dr. Richardson, in his interest-
  * Travels through that part of North America, formerly called Louisiana.
 By M. Bossu, Captain in the French Marines.  Translated from the French
 by J. Reinhold Foster, F. A. S., vol. 1, p. 295, et passim.  Lond. 1771.
  t A Narrative of the Mission of the United Brethren among the Delaware
 and Mohegan Indians,  from its commencement in  the year 1740, to the close
 of the year  1808, &c.  By John Heckewelder, who was many years in the
 service of that mission. 8vo. p. 516.  Philadelphia.
  X Narrative Journal  of Travels through the Northwestern Regions of the
United States, &c. in the year 1820. By Henry R. Schoolcraft, Albany, 1821. 
INFANTICIDE.
403
ing 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
Heaven) at all, but are compelled to hover round the seats of
their crimes, with branches of trees tied around their legs."*
   Although the crime of child-murder is not known among
our Indians, yet it must be admitted that the practice of pro-
curing abortion is not uncommon, at least among some of the
tribes.   Mr. Nuttall,  in  speaking of the Cherokees, among
whom he travelled, says, that  " from some cause or other it
appears  that  the women of  the Cherokees frequently made
use of means to promote abortion, which at length became
so alarming, as to occasion a resort to punishment by whip-
ping."!  Major Long, in his account of the Omayhaw Indians,
says  that " abortion is effected, agreeably to  the assertions
of the squaws, by  blows with  the clenched hand applied
upon the abdomen, or by repeated and violent pressure upon
that part, or by rolling on the stump of a tree or other hard
body.  The  pregnant squaw is induced  thus to procure
abortion, in consequence of the jealousy of her husband, or
in order to conceal her illicit amours, to which all the mar-
ried squaws, with but few exceptions, are addicted."J   More
recently  Capt. Wilkes  tells us  that  among  the  Carrier
Indians, in the interior of  Oregon, " abortion is constantly
practised both before and after marriage."§
   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  honor of human nature.

   * 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.  London, 1829.
   t A Journal of Travels into the Arkansas Territory during the year 1819
&c.  By Thomas Nuttall, F. L. S., p. 133.  1821, Philadelphia.
   X Account of an Expedition from Pittsburgh to the Rocky Mountains, per-
formed in the years 1819, &c. by order of John C. Calhoun, Secretary of War,
under the command of Major Stephen H. Long. Vol. 1. p. 238.  1823.
   § Narrative of the United States Exploring Expedition. Bv Charles Wilkes
U. S. N., Vol. 5, p. 452.                           J            ' 
404                   INFANTICIDE.
                       PART  II.

  By infanticide in its most extensive signification, is un-
derstood, the criminal destruction of the fcetus in utero, or
of the new born child.   It embraces, therefore, two subjects,
somewhat  distinct, and which require  separate discussion.

1. Of the murder of the fcetus 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 indiscriminately.
  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 fcetus  in utero been actually destroyed!
  2. Has this been  brought about by criminal 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  is  necessary to settle a pre-
liminary question of great importance, and that is to de-
termine, if  possible, the period of gestation when the fcetus
is to be considered  as endowed with life.
  In  reviewing the various opinions which have been ad-
vanced 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
notions  on  this subject.  The same fundamental error, how- 
INFANTICIDE.
405
ever, pervaded all their theories.  They believed that the
sentient and vital  principle was not infused into the fcetus,
until some time after conception had taken place.  It is not
surprising that the exact  time at which this  is effected,
could never be satisfactorily settled by them.   According to
Hippocrates, the male foetus became animated at thirty days
after conception ;  while the female required forty-two.*  In
another part of his  works, he  asserts that this  does not
occur until the perfect organization of the 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-gesta-
tion.!  This doctrine prevailed until the reigns of Antoninus
and Severus, when it gave way to the more popular senti-
ments of the sect  of the Academy, who maintained that the
foetus  became animated at a  certain  period  of gestation.
The Canon Law of the Church of Rome also  distinguished
between the  animate  and inanimate fcetus, and punished the
destruction of the  former with the same severity as  homi-
cide.!
   Galen considered the animation of the fcetus to take place
on the fortieth day after conception, at the same time that
he supposed  the  foetus to  become organized.§  Others be-
lieved shorter periods sufficient; and accordingly three days
and seven days, respectively had their advocates.]|  Another
contended that eighty days were requisite for the animation of
the female, while  only forty were  necessary for the male.IT
Others again  made  a distinction  between  the imperfect
embryo and  the  perfectly formed fcetus, and considered
abortion of the latter only as a crime deserving the  same
punishment as homicide ; a distinction, of which it is  justly
remarked  by a celebrated writer on medical jurisprudence,

   * Lib. de Nat. Puer. Num. 10.
   t Plutarch's Morals, vol. 3, p. 230.  London.
   X Zacchire Quoest. Med. Leg. lib. ix.  tit. 1,2, 5, p. 744.
   § Opera Galeni, de Usu Part. lib. 15, cap. 5.  Lugduni. 1643
   || Zacchia;, lib. 1, tit. 2,  Q. x. p. 82.
   ■'I Zacchise, lib. 1, tit. 2, Q. x. p. 82. 
406
INFANTICIDE.
   " ennemie  de la morale et de l'humanite, digne de Pigno-
   rance et des prejuges de ses auteurs."*
     Amidst these  discordant sentiments, Zacchias offers him-
   self  as  a mediator,  and proposes  sixty days as the limit;
   and recommends that any one who should cause an abortion
   after that period, whether of male or female, should be pun-
   ished 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 discourage the destruction of  the fcetus, 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 fcetus was considered
   merely portio viscerum matris.§  And afterwards, when the
   doctrines of the Academy were prevalent, punishments very
   different, in  the degree of their severity, were  inflicted,
   according as the abortion was supposed  to be that of an
   animate or  inanimate fcetus.||
     In times  more modern, an error  no less absurd, and attend-
   ed with consequences equally injurious,  has received the
   sanction, not merely of popular belief, but  even of  the laws
   of many civilized countries.   The error consists in denying
' ~ to the foetus any vitality until after the time of quickening.
   The codes of almost every civilized nation have this princi-
   ple incorporated into them; and accordingly, the punish-
   ment which they denounce  against  abortion  procured  after
   quickening, is much severer than before.   The English law
   " considers life not to commence before the infant is able to

     * Fodere, vol. 4, p. 484.
     t Zacchiaj, lib. 1, tit. 2, Q. x. p. 83.        X Fodere, vol. 4, p. 382.
    § Plutarch's Morals, vol. 3, p. 230.        ||  Fodere, vol. 4, p. 382. 
INFANTICIDE.
407
stir in its  mother's womb,"* and by a recent law the pro-
curing of abortion after quickening, is punished with death,
while the same crime, anterior to quickening, is only viewed
as felony.  In Saxony, in consequence of the disputes of
medical  men on this subject, it  was  formally decided, that
the foetus might be esteemed alive after the half of pregnancy
had gone by.!
   The absurdity of the principle upon which these distinc-
tions are founded,  is  of  easy demonstration.   The fcetus,
previous to the time of quickening, must be either dead or
living.   Now, that it is not the former, is most evident from
neither putrefaction  nor decomposition taking place, which
would be the  consequences  of an extinction of  the  vital
principle.^  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, there-
fore, before 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 which quickening generally takes place 1  To this it may
be answered, that the  absence of any consciousness on the
part of the mother, relative to the motions  of the child, is
no proof  whatever that such  motions do not exist.  It is a
well known fact,  that  in the earlier part of  pregnancy, the
quantity of the  liquor  amnii  is  much greater in proportion
to the size of the  foetus, than at subsequent periods.   Is it
not, therefore, rational to suppose, that the  embryo may at
first float in the waters without the mother being conscious
of its movements, but that afterwards, when it has increased

  * Blackstone, vol. 1, p. 129.
  t Specimen Juridicum  Inaugurate, Auctore  Van Visvliet, p. 46.  Lug-
duni Batavorum, 1760.
  J Some very curious and interesting cases are recorded in which the dead
foetus has been retained for a certain period in  the uterus without undergo-
ing actual decomposition.  See a  case by J. G. Porter, M.D. in American
Journal of Med. Sciences, vol. 17, p. 347, and  another by the Editor of the
same work, Dr. Hays, vol. 20, p. 535. These, however, are exceptions to a
general rule, and do not invalidate the reasoning in the text. 
 408                    INFANTICIDE.

 in bulk, and the waters are diminished in proportion, it
 should  make distinct and peceptible 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
 objection amount to 1  Why,  only that one  evidence of vi-
 tality, 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 fcetus,  after  quickening, would be
 just as destitute of  life as before, for its brain, lungs, stom-
 ach, and intestinal  canal,  perform no more action at the
 eighth month than  they do at  the third.   But if organic
 action be essential to life, how are we to account for those
 singular cases of foetuses born  alive,  and yet destitute of
 some of the most important organs in the  body ?!
   The observations of physiologists tend also to prove the
 vitality of the foetus  previously to quickening.  Long before
 quickening takes place, motion, the pulsation of the heart,
 and other signs of vitality have  been distinctly perceived.

  *  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 pelvic cavity into the abdomen.  (London Med. and Phys.
Journal, vol. 27, p. 441.)  If this opinion be true, it would afford another in-
controvertible argument in favor of the position which I have advocated.
  t 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.                    409

Haller, 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."
However objectionable such an opinion may be, yet the fact
is certain, that the foetus enjoys life long before the sensation of
quickening is felt by the mother.  Indeed, no other doctrine
appears to be consonant with reason or physiology, but that
which admits the embryo to  possess  vitality from the very
moment of conception.
   If physiology and reason justify the position just laid down,
we 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 perpetra-
tion of the same crime at one time, which  at another they
punish with death.   In  the language  of  the  admirable
Percival, " to extinguish the  first spark of  life is a crime
of the same  nature, both  against our Maker and society, as
to destroy an infant, a child, or a man: these  regular and
successive stages of existence being the 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 multiplying the enjoyments of mankind."*
   Having  thus endeavored 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
originally proposed.
   Quest. 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 foetus.
  * Percival's Works, vol. 2. p. 430, 433.
  It has been reserved for a writer of the nineteenth century (1837) to en-
deavor to revive the doctrine of the Stoics.  I have not read this book, but in
a review of it, it is stated that he considers " the human foetus as only a higher
species of intestinal worm, and  that  while in the uterus, it  is not endowed
with a human soul, nor is it entitled  to human attributes." Very properly
does the reviewer  say, " if  his views be correct, wilful  abortion is neither
criminal nor immoral, and the statute books of all civilized countries are dis-
graced by a law pregnant with injustice."  (British and Foreign Med. Rev.
vol. 7, p. 133.)  I blush when I  state that the author of this work is no less
a personage than Dr. J. C. G. Jorg, Professor of Midwifery in the University
of Leipsic. 
410
INFANTICIDE.
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 attach-
ments 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  un-
attended by violence, and leaves but faint, if any traces of
its  previous  existence.   The  haemorrhage  attending  it is
also of small consequence, inasmuch as the uterine vessels
have not yet sustained any great enlargement, and therefore
very  speedily contract.  The period to which these remarks
more particularly apply, is the two first months of pregnan-
cy, during which it is conceded 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  satisfac-
tory.  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.  Inconsequence

  * Manuel de Medecine Legale. Par. J. Briand. p. 67.  A Manual of Med-
ical Jurisprudence, by M. Ryan, M. D., edited byR. E. Griffith, M.D.,p. 129.
Marc, Dictionnaire 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 Cy-
clopaedia of Practical Medicine, vol. 3, p. 504.) 
INFANTICIDE.
411
of the expulsion  of  the  foetus from the uterus, there are
several striking changes which takes place in these organs,
from  which important conclusions may be drawn.   The
more  characteristic of these are the following :
  Labia  and perineum.  The labia will be found, on exami-
nation, to be tumefied and relaxed, and of a dark red color;
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 these parts have necessarily undergone during the
passage  of the foetus.
   Vagina.  On introducing the finger  into this  organ, it
will be  found preternaturally  enlarged and relaxed,  from
the  same  cause as the  preceding.  From the distention
which it has suffered, its natural rugse will  also be oblitera-
ted, and its inner surface rendered more or  less smooth.
   Os  and  cervix  uteri.   On  examining with the finger
immediately after delivery, the neck of the uterus will  be
indistinct, 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
parietes.  On applying the hand to the abdomen immediate-
ly 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.!

   * Burns' Midwifery, p. 564.  Seventh American edition.
   t Burns' Midwifery, p. 564. 
412
INFANTICIDE.
   The lochia.   This is a discharge which takes place from
 the uterine organs immediately after the completion of de-
 livery, 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 color,
 and finally assumes a whitish appearance.  In some cases it
 eventually becomes of a dark, dirty green aspect, when it
 is known by the name of the "green waters."   Now as this
 discharge  comes  from the  relaxed and ruptured vessels of
 the uterus,  and as its  cessation depends upon the contrac-
 tion of these vessels, it is evident that not merely its quan-
 tity, but its duration,  must vary very greatly,  according to
 the particular  condition of  the patient, and the  greater or
 less rapidity with which the uterine vessels  contract.  Ac-
 cordingly, 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 odor so pe-
 culiar  that it can always be recognized by those at all con-
 versant with it,  and  which is  not present in any  other
 discharge from the uterine organs.
   2. Condition of the abdominal parietes.  The circumstances
 indicative of delivery, in connexion with  the abdominal
 parietes,  are their flaccidity,  and the presence  of the lineae
 albicantes.
   Flaccidity of the abdomen.  On examining the  surface of
 the abdomen after delivery, besides detecting the uterine
 tumour, which has been already mentioned,  the abdomen
 will be found soft, relaxed, and frequently lying in folds.
 So great is this 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

  t See  an Elementary Treatise on Midwifery, by A. L. M. Velpeau, M.  D.,
Translated by C. D. Meigs, M. D. p. 579.   A Compendious System of Mid-
wifery, &c. by William P. Dewees,  M. D. p. 210. 
INFANTICIDE.
413
the groins to the navel.   They arise  from the  great disten-
tion and cracking of the skin during  pregnancy, and remain
frequently permanent for life : they are not, therefore, to be
looked upon as  the evidences of recent delivery.
  3. Condition  of the  breasts.  The  phenomena connected
with the breasts, as evidences of delivery, are their enlarge-
ment, the secretion of milk,  and the presence of the areola.
  Enlargement  of the breasts.  About the third month of
pregnancy, 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 ex-
amined about the the third or fourth day, they will be found
full and tense.
  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
indications,  inasmuch as it frequently takes  place indepen-
dently  of both.   Dr. Blundell relates the case of a female
who had not had a child for three years ; she had not suckled
for  some time previously, and was not pregnant, and yet the
secretion of milk was so active, that it flowed freely on the
least pressure of the breast.*   Another case  is related by
him, of a negress who secreted milk for twenty years after
her pregnancy.!
  Areola around the nipple.   In the virgin state, the nipple
is surrounded by a circular discoloration of the skin, which
is generally of  a rosy tint, sometimes merely a little lighter
than the natural skin.   During the pregnant state, this un-
dergoes striking changes.  It becomes broader ahd darker,
being converted 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 color of
the areola differ considerably in different persons.§  After a

  *  Blundell's Midwifery, p. 112. American edition.
  t  Ibid. p. 112. X  ^id. 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.) 
414
INFANTICIDE.
first pregnancy, it is to be recollected that the areola remains
more or less permanent.  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.
  Such are the  signs deduced from the female,  by which it
is to be  determined whether a delivery  has  taken place.
From the account given of them, it is evident  that many are
necessarily evanescent in their character; and therefore,  in
order to obtain the fullest amount of testimony from them,
the examination should be instituted as speedily as  possible
after delivery has taken  place.  With regard to the latest
period after delivery,  at which a satisfactory decision  may
be made, some  difference of opinion has existed.   The pe-
riod  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 rela-
tion  to  the foregoing signs, it is  essential to recollect  that
all  of them have been objected to  as uncertain, inasmuch as
almost every one of  them may be  produced by other causes
than delivery.   Thus, for example, the enlargement  and
relaxation of  the external parts may arise from simple men-
  Dr. Montgomery, who has paid especial attention to this subject, describes
other features besides mere color, 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 color 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 integu-
ment 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 observed 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 pregnancy, and that, when found possessing these distinctive marks, it
ought to be looked on as the result of that  condition alone, no other cause
being capable of producing it."  (Cyclopaedia of Practical Medicine, vol. 3,
p. 474.)
  * Paris and Fonblanque, vol.  1,  p.  252.   Fodere, torn. 2, p. 87.  Mont-
gomery in Cyclopaedia of Practical  Medicine, vol. 3, p. 503. Griffith's Ryan,
p. 133. 
INFANTICIDE.
415
struation ; the dilatation of the vagina and os uteri, and the
enlargement of the uterus, may arise from hydatids or moles ;
the relaxation and  marked state of the abdomen may arise
from dropsy ;  even the areolae around the nipples, as  well
as the  secretion of milk, may arise from  other causes  than
pregnancy and delivery.
  Now it must be admitted that all these  objections  are, to
a certain extent, well founded ; and they go to show that no
one sign, taken by itself, ought to be considered sufficient
to  establish  the  fact.  In all cases,  a  number of the signs
should  concur 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 en-
largement of the  uterus—no wrinkling  of the  abdominal
parietes—no secretion of milk, and  no areola  around the
nipples.   Again,  dropsy may cause a great relaxation and
wrinkling of the abdomen.  I say may, because, generally
speaking, unless the dropsical fluid be suddenly removed by
tapping, this will not happen, as in ordinary cases the fluid
is removed so gradually that the abdomen has time to con-
tract,  and accommodate itself to  the change.   Admitting,
however, that these signs of pregnancy may be counterfeited
by dropsy, so many others  will be absent  as to leave  no
doubt in the case.  The vagina and external parts will not
be affected;  the os uteri will not be dilated ;  the  uterus will
not be enlarged ; the breasts will have undergone no change,
and there will be no lochial discharge.
   With  regard to  the secretion of milk from other  causes
than pregnancy, this  is a fact which cannot be denied.   But
in cases of this sort, so many of the  other signs  of delivery
will be absent as to obviate  any difficulty that may arise.
   As to the objections founded on the existence of hydatids,
it  must  be confessed that  much  more difficulty attends a 
416
INFANTICIDE.
 correct  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 appendages.
   1.  The uterus.  In this  organ, various appearances  will
 be detected,  indicating the fact of its  having contained a
 fcetus.
   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 evident that its size must vary considerably according
 to the size of the foetus, and  according  to  the  quantity of
 liquor amnii.*  A general average, however, of its gradual
 changes in this respect may be put as follows:   During the
 first month the  uterus, undergoes  little or no change in its
 size.!  During  the  second month it becomes considerably
 enlarged.  About the end of the third month it will measure
 about five inches in  length, of which the cervix will measure
 one inch.  In the fourth  month, it will measure five inches
 from  the fundus to the beginning of the  neck.   In the fifth
 month, it will measure six inches from  the fundus to the
 cervix.  In the  sixth and seventh  months  it will measure
 about eight inches,  and in the ninth it will be from ten to
 twelve inches from the top  to the bottom.!
  Now in a case where a woman dies from  hsemorrhage at
 the full time,  either during labor  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 contrac-

  * An Anatomical description of the Human Gravid Uterus and its contents.
By the late William Hunter, M. D.  p. 2.
  t Maygrier's Midwifery, p. 81.     X Burn's Midwifery, pp. 185, 563. 
INFANTICIDE.
417
tion 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  examination be  made about
two days after delivery, the uterus will be about seven inch-
es 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
unchanged;  after  this, the body of  it becomes  globular,
without any material change having taken place in the neck,
until about the fifth month.  After this the  neck grows
shorter and broader, until in the two last months it is almost
entirely obliterated, and forms a part of the general cavity
of the uterus.   The shape of the uterus is now completely
ovoid.  Now if death  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 hand3  several days have elapsed, it will have re-
gained somewhat of its pyriform shape.
   Thickness  of  the uterus.  On  this  point  contradictory
accounts are given.  At  the full time  however,  when the
uterus is still distended with its contents, its thickness varies
very little from that before impregnation; in some cases even
it appears to be  thinner;! according to  Hunter, its more
common thickness is from  one to two-thirds of  an inch.!
Generally  speaking, too, the uterus is thickest at its fundus,
and especially where the placenta has been attached.  When,

c ! $cc?I?[?e\° Burn9' "a week after *delivery> the womb is as large as two
fists."  (Midwifery, p.  564.)                             °
  t Monro in the Edinburgh Essays and Observations, Physical and Literary
vol. 1, p. 4IS. See, also, Hunter on the Gravid Uterus, p. 15
t> *™-n AnatT°Tmical Description of the Human Gravid Uterus and its Contents.
By William Hunter, M. D. p. 15.
                    27 
418
INFANTICIDE.
however, the examination is not made until some hours or
days after delivery, and the uterus has had time to contract,
it will be found  thicker than natural.  In that state it will
often be  found two  inches thick.*  It is  well  enough to
recollect that gravid uteri, when injected, are much thicker
than in their natural state.!
   Uterine blood-vessels.   There is nothing in connection 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,^  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
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 color, and
have a gangrenous appearance; the  vessels  leading  to it
will 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 accord-
ing to the enlargement which the uterus may have undergone.

  * Hunter on the Gravid Uterus, p. 15.
 t Edinburgh Essays and Observations,  vol. 1, p. 418.
  X Hunter on the Gravid Uterus, p. 17.
  § Edinburgh Essays and Observations,  vol. 1, p. 427, 435.
  || Ibid., vol. 1, p. 412. 
INFANTICIDE.
419
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 lead-
ing 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  fullness  or prominence in one  part  of it,
sensible both to the sight and touch, in  the middle of which
there is a small indentation like a cicatrix.   On laying open
the ovarium  at this part, there will  be found a body of a
very distinct nature from the rest of the 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 exam-
ined, however, at other periods, these appearances  will  be
considerably different.  The earliest  period after impregna-
tion, at which the corpus luteum has been  observed in  the
human subject, is the case recorded by  Sir Everard Home.
Here  the female died about eight days after impregnation;
  * Hunter on the Gravid Uterus, p. 13.       f Midwifery, p 564
  X Hunter on the Gravid Uterus, p. 14. 
420
INFANTICIDE.
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.*  The blood is  gradually  absorbed,
and  the cavity  becomes lined  with  a  white membrane.
During the earlier months,  a fluid  will be  found in  the
cavity.! The cavity after this becomes gradually contracted,
and  in the  third  or fourth month, it is about  large enough
still to contain a grain of wheat; after this it  is completely
obliterated, and  in its place there is  left a central white
radiated or stellated  line.!   This  stellated line  is looked
upon by Dr. Montgomery as a distinguishing  characteristic
of a genuine corpus luteum.§   It is not permanent, however,
but disappears at  about five months after  delivery.
  Such is the corpus luteum.  It is largest and most vascu-
lar 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
examination after  death.   Striking  as  the foregoing signs
unquestionably are, objections of a very serious  character
may  be made  against them.   As  these  objections  have
actually been brought forward  in  criminal trials,  a notice
of  them is unavoidable.  Of these  the  only ones which
require consideration, are,  that all the  appearances  just
described  as found on dissection after delivery, may  have
been occasioned  by the delivery of hydatids or moles; and
that the corpora  lutea may exist independent of pregnancy
and delivery.   Each of these  objections  I shall briefly
notice.
   1. Hydatids.   Although not of very frequent occurrence,
these are sometimes found existing in the uterus.   They are

  * Philosophical Transactions for 1817, part 1.
  t Hunter on the Gravid Uterus, p. 74.
  X Montgomery on the Signs of Pregnancy,  p. 226.
  § " Of this latter appearance, (the radiated line,) it ought to be observed
here, that it is visible as long as  any distinct trace of the corpus luteum
remains, and forms an essential character, distinguishing this body from every
other that might be confounded with it."   (Ibid. p. 226.) 
                       INFANTICIDE.                    421

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 con-
nexion 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  appear-
ances  and  phenomena of pregnancy may be, and actually
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 fcetus, 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 opinion.   Females have in  this  way been them-
selves  deceived.  Presuming   themselves  pregnant,  the
discharge of the hydatids has led them to suppose it a  real
miscarriage.!
  In cases  like those of criminal abortion, where  every
effort is made at concealment,  it is  of course  out  of the
question to say which was the cause ;! and the  only  way to
settle the question, is by an examination of  what may have

  *  Madame Boivin broadly asserts that hydatids are always the product of a
degenerated conception, and that no virgin female can ever have them. (Nou-
velles Recherches sur l'origine, la nature, et le traitement de la mole vesicu-
late ou grousesse hydatique. Par Me. Boivin.  Paris, 1827.)
  t  An account of some of the most important Diseases peculiar to Women.
By Robert Gooch, M. D. p. 216.  American edition.
  X  Gooch, after relating some cases of hydatids, says,  "In  the progress of
these cases, it is impossible to come nearer the truth than this—that the abdo-
men owes its enlargement to a distended uterus; but what this organ contains,
is uncertain." (Ibid. p. 218.) 
422                   INFANTICIDE.

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 information furnished by
dissection,  still  the inquiry  is not  unattended with  diffi-
culties ;  and it is by no means easy  to  decide  whether the
phenomena which are observed are the result of the expul-
sion of a real fcetus, or of hydatids.  The following con-
siderations must  render this  obvious.   It has already been
stated that, in all probability,  hydatids are always the result
of 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.  Be-
sides this, it has already been stated that every phenomenon
connected with the enlargement of the uterus, and the dila-
tation of the os uteri, may  also  be produced by hydatids.
Even the placental mark may be present.  Cases therefore
may occur, in which  it would be impossible to distinguish
between the two.  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 inner 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.*
This then would  furnish one mark of distinction.   Another
might be  found  in the  different condition of the uterine
blood-vessels.  In cases of real pregnancy, the blood-vessels,
especially  those  confined to the placental space, undergo  a
much greater  enlargement than when hydatids alone are in
the uterus.  Independently,  however, of all these consid-
erations, there is not practically, after all, so  much difficulty

  * By Dr. Denman, they are described in the following manner: "Hydatids
or small vesicles, hang together in clusters, from one common stem, and con-
taining a watery fluid, are sometimes formed in the cavity of the  uterus."
(Introduction to the Practice of Midwifery, p. 146.   American edition.)
  According to Dr. Baillie, " they consist of vesicles of a round or oval shape,
with a narrow stalk to each, by which  they adhere to  the outside of one
another.  Some of these hydatids are as  large as a walnut, and another as
small as a pin's head.  A large hydatid has generally a number of small hy-
datids adhering to it by a narrow process."  (Morbid Anatomy, p. 136. Am.
edition.) 
INFANTICIDE.
423
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 ques-
tion might be decided by the  presence or absence  of the
placental mark,  but  more especially by the presence or ab-
sence of the corpus  luteum.
   Besides  all this, in cases where the signs of delivery are
alledged 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 enclo-
sing 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
circumstances.   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 miscar-
riage ;  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 intercouse, appears to be
pretty well established.  Now in these cases, many of the
symptoms of actual pregnancy are  present.  The  abdomen
becomes enlarged ; the stomach is affected with nausea; and
even the breasts become  swollen.!  Here then, also, as in
the case of hydatids, it is impossible from mere external
appearances to say whether these symptoms  arise from
genuine pregnancy or not.
   In these cases where death takes place, and dissection
has been had, the  same reasoning is applicable here  as in
cases  of hydatids.   If  the mole be  the product  of a  real
   * The Principles of Midwifery, p. 127.        f Ibid. p. 127. 
424
INFANTICIDE.
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 the 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  evi-
dences of  impregnation,  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 be really  a fcetus which  has been
expelled.   From the difference in structure  of the fcetus  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 investigation  could ever be instituted  with any
satisfactory result.
   2.  To ascertain the age of the fcetus.  This is important,
inasmuch  as it enables us to compare it  with the appear-
ances found on an examination of the female, to  see how
  * On this  subject see the luminous investigations of Dr. Montgomery, in
the Cyclopaedia of  Practical Medicine.  According to him the appearances
which are considered 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 appear fibro-cellular
and resembling that of the internal structure of the ovary, but in no instance
did we ever see them presenting the soft, rich and regularly glandular appear-
ance which Hunter meant to express when he described them as ' tender and
friable like glandular flesh :' (Description of the Gravid Uterus, p. 14.)  6.
They have neither  the central cavity nor the radiated cicatrix which results
from its closure."  (Cyclopaedia of Practical Medicine, vol. 3, p. 502.) 
INFANTICIDE.
425
they correspond, and in this way to assist in detecting any
imposition which may be attempted.  In a preceding chap-
ter, the progressive developements of the foetus have been
so fully detailed, as to render  here unnecessary, any thing
more than a simple reference to it.*
   3. To ascertain, if possible, what has been the cause  of the
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 appear-
ance 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.

Quest. II.  Of the means, by which the death of the fcetus may
                   have been produced.

  Having,  in the foregoing manner,  examined  the first
question to be solved, viz. whether a foetus in the utero has
actually been destroyed, the  second question relates to the
causes by which it may  have been produced.
  The practice of causing abortion, is  resorted to by un-
married females, who,  through  imprudence  have  become
pregnant, to avoid the disgrace which would attach to them
from having a living child; and sometimes it is even employ-
ed by married women, to obviate a repetition  of peculiarly
severe labor-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
                   * See chap. vii. part 2. 
426
INFANTICIDE.
witness merely to confirm its  previous, and often false de-
cisions.  The destruction of the fcetus may then result from
two  sets of causes.   1.  The use and application of various
criminal agents.   2.  The  ordinary and accidental causes
which are  known to produce  it, without  any criminal in-
terference.   Each of  these require examination, as in  every
trial of this kind, they may be made the subject of special
inquiry by  the court and jury.

1. Of the criminal means, resorted to for the purpose of destroy-
                      ing the fcetus.

  These may be  divided into  general and  local.   To  the
first belong venesection, emetics, cathartics,  diuretics, emme-
nagogues,  &c. &c.  The second embraces all kinds of vio-
lence directly applied.
   Venesection.  From the  earliest periods  it has been sup-
posed, that bleeding during pregnancy exercised some dele-
terious influence  upon the  foetus,  and that the repetition of
it would infallibly destroy it.   Hippocrates entertained this
belief,* and it  has accordingly  long been resorted to as one
of the popular  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 supposi-
tion that  whenever blood is taken from  the mother, the
fcetus also  loses a proportional quantity, and that  by a fre-
quent repetition  of it, the latter may eventually be bled to
death.  Experience, however, the most ample and satisfacto-
ry, has proved conclusively, that except in particular  states
of the  constitution, venesection,  however repeated and co-
pious, can  have no direct effect upon the foetus ; and further,
that in many cases it  is the most effectual agent in averting
abortion.   Mauriceau relates the  history of two  pregnant
women, who were delivered at the  full period, of  living
children, although one  of them had been bled forty-eight
times, and  the other ninety times, for an inflammation  of the

  * Mulier uterum ferens abortit secta vena, eoque magis, si sit foetus gran-
dior.   (Hippocrates, sec. 5, aphor. 31.) 
INFANTICIDE.
427  '
chest.*   By the same author, a case is recorded in which a
person was bled ten times from the foot during pregnancy,
without  any bad effect on the foetus.!   Dr. Rush, in speak-
ing 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  abortion.!  In his defence  of blood-
letting, the same writer gives us the account of one woman
whom he bled eleven times  in  seven days,  during her
pregnancy;  of another, who was bled  thirteen times, and of
a third who was bled sixteen times while in the same condi-
tion.   All these women, he adds, recovered, and  the child-
ren carried during their illness, were born alive and in good
health.§  The foregoing facts, selected from a multitude of a
similar character, are abundantly sufficient  to show the ex-
tent to which  venesection may be carried during pregnancy,
without being attended with any injurious consequences to
the foetus ; and the effect is the same, from whatever 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 the state of  disease,  when the loss  of a much larger
quantity can be borne than  in ordinary health.   Neverthe-
less,  even in  a state of health, the  loss  of a very  large
quantity of  blood is not necessarily attended by any injuri-
ous 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 debilita-
ted by  disease, the injudicious loss of blood during preg-
nancy,  may prove  fatal to  the  foetus.  In all cases, there-
fore,  the question whether the bleeding has had any agency
in]producing the destruction of the foetus, must be  determin-
ed by the particular  circumstances of the individual  case.
At  the  same  time,  the  mere fact  of repeated  bleedings
having  been  resorted to  without any  obvious necessity for

  * Capuron, p. 307.
  t  An Elementary Treatise on Midwifery, by  A. L.  M. Velpeau,  M. D.
Translated by C. D. Meigs, M. D., p. 236.
  J Medical Observations and Inquiries, vol. 3, p. 309.  § Ibid. vol. 4, p. 302. 
428
INFANTICIDE.
  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 prac-
  is so uncommon  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 affec-
  tions, and  in  no instance did he  find any bad  consequences
  happen.  At the same time he recommends great caution in
  the use of this remedy, especially in females who are liable
  to abort.*
     Emetics.  From the well known  fact, that many women
  are troubled with distressing  nausea  and vomiting during
  the whole of  their pregnancy, and yet are safely delivered
  of living children  at the regular period, it has been supposed
  that the foetus could  not be much injured  by the use of
  emetics.  The fact, however, seems to be, that although the
  vomiting attendant upon pregnancy very seldom produces
  abortion, yet that which  is produced  by emetics is not un-
\ frequently followed by consequences the most serious both
  to mother and foetus.  In this opinion,  I am supported by
  the authority of Mr. Burns, who says  that " it is worthy of
  remark  that abortion is  very seldom occasioned  by this
  cause, (the vomiting of pregnancy) though emetics are apt
  to produce it.!  The reasons of the difference  in the two
  cases, may be the following:  In the first place,  the vomit-
  ing 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 pregnancy, when
  of course less danger attends the operation.  Just in pro-
  portion to the size and developement of the uterus, is the
  danger to be apprehended from the spasmodic contraction of
  the diaphragm and abdominal muscles during vomiting.  In

    * Etudes Cliniques sur les Emissions Sanguines Artificielles.  Par A. P.
  Isidore Poliniere.  Tom. 1, p. 34.
    t The Principles of Midwifery, p. 230.  Seventh American edition. 
INFANTICIDE.
429
the latter  months of pregnancy, therefore, emetics  prove
much more dangerous  than they do  at an earlier period.
Notwithstanding this, even  emetics do not always 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 occa-
sioned, yet the progress of the pregnancy was not inter-
rupted.*
   Cathartics.   As a general  rule, pregnant women are not
apt  to be injured  by moderate purging.  When attacked
with disease, too, they may be  purged very  freely without
any risk.  During the  yellow fever of 1793, Dr. Rush in-
forms 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 at-
tended 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 continued  too long;! ^  the  article used be very drastic  \
 in its nature  ; if it act particularly on the rectum,§ (between
 which and the mouth of the uterus there  appears to be  a
 peculiar sympathy ;) or if the female be of a nervous, irri-
 table habit, then purging may be, and frequently is followed
 by  the death and  expulsion  of  the  foetus.   Purgatives,
 therefore, may or  may not produce abortion, according to
 circumstances.||
   * Meigs' Velpeau, p. 236.
   X Medical Observations and Inquiries, vol. 3, p. 249.
   X Several cases of abortion have been known to occur in this city, in fe-
 males who were in the constant habit of taking Brandreth's pills, a purgative
 nostrum at present very popular in this country.  See an Essay on the in-
 fluence of trades, &c.  By B. AV. M Cready, M. D. Trans, of the Med. Society
 of the State of New York, vol. 3, p. 149.
   § All those purgatives which produce tenesmus, are most apt to  cause
 abortion.  Hence it is, too, that dysentery frequently produces this effect.
   || Dr. James Johnson states, that he  has known a very moderate dose  of
 calomel and rhubarb to cause a premature delivery. (Medico-Chirurgical
 Review, vol. 17, p. 98.) 
430
INFANTICIDE.
  Diuretics.  This class of agents has long been  supposed
capable of producing abortion, and has accordingly been fre-
quently used for this  purpose.  That they may have been
occasionally attended with success, is very possible;  but I
have  no doubt  that, generally speaking, they have failed.
They certainly are destitute of any specific power of excit-
ing 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 wit-
nessed this effect, although he says that he has seen diu-
retics  given very  freely  to pregnant  women labouring
under  ascites.!   On the other hand, there  are many po-
sitive 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  consi-
dered herself pregnant,  and shortly afterwards was attacked
with sciatica.   Several physicians and midwives were call-
ed to examine her,  and decided 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,
together with diuretics and  sudorifics.  All this did not pre-
vent her from bringing forth a healthy child at the end of
the expected time.!
  In the Edinburgh Medical Essays and Observations, is re-
corded a case of a female who had ascites during pregnancy.
Three months after conception she was tapped, and eight
pints of water drawn off.   After this she was tapped twice
again,  and at each time four pints were drawn off.  During
this time, too, she took  freely of active diuretics and cathar-
tics, among which were calomel and various hydragogue
articles.  Notwithstanding all this, she brought forth a living
healthy child at the full time.§

  * Principles of Midwifery, p. 283.        f Ibid- P- 288-
  X Fodere, vol. 4, p. 430.               §  Vol. 6, p. 138. 
INFANTICIDE.
431
  Concerning the oil of juniper, Fodere  relates the follow-
ing fact, which shows that this powerful article has failed in
effecting an abortion:  A pregnant female took every morn-
ing for twenty days, one  hundred drops of the distilled oil
of juniper,  without injury, and was  delivered of a living
child at the expiration of  the ordinary term.*
  Even cantharides has been taken in very large doses, with
a view of procuring an abortion, without accomplishing the
desired effect.   " Some years ago,"  says Mr. James Lucas,
one of the  surgeons of the General  Infirmary at Leeds, " I
was called  to a 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
tenesmus and  immoderate diuresis,  succeeded by an acute
fever, which reduced her to extreme weakness, yet no  sign
of miscarriage appeared, and about  five months  afterwards
she was  delivered of a healthy child."!   Cases, however,
have occurred  in which cantharides have  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 seve-
ral articles  which  require notice.  Among the more impor-
tant, are savine, mercury, polygala senega, and pennyroyal.
  Junipcrus sabina, (savine.) This is a powerfully stimula-
ting article,  and as an emmenagogue, has  been  used with
considerable effect.  It has also long been used  for  the
purpose  of  procuring  abortion,  and  no doubt  possesses
considerable power in this way.   Galen asserts that it  acts
with sufficient energy on the uterus to destroy  the foetus ;||
and in the present day, it is said to be constantly  used by
negresses in the Isle of France with this intention.IT

  * Fodere, vol. 4, p. 430.
  t Memoirs of the Medical Society of London, vol. 2, p. 208.
  X Medico-Chirurgical Review, vol. 17, p. 98.
  §  Medical Jurisprudence, by Paris and Fonblanque, vol. 3, p. 94.
  || Dictionnaire Matiere Medicale, vol.  3, p. 696.        if Ibid. 
432
INFANTICIDE.
  In the case of Miss Burns, for whose murder Mr. Angus
was tried at Lancaster,  in 1808, there is reason to believe,
from the testimony offered, that savine oil had been admin-
istered, to effect an abortion.   That it does not always suc-
ceed, is evident from a  case related by Fodere.  In 1790, a
poor, imbecile and cachectic girl, in the duchy of Aoust, in
the seventh 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 fifteen  days.  By the proper use  of refrige-
rants, however, she recovered, and at the end of two months
was safely delivered  of  a healthy child.*
  In another case, recorded by Murray, while it was success-
ful  in producing an abortion,  it  destroyed the life of the
mother.!  Professor  Christison relates, on authority of Mr.
Cockson, the  case of a girl, who, to produce abortion, took
a strong infusion of savine leaves.   Violent pain  in the ab-
domen, 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 in-
flammation—the inside  of the  stomach  of a red  tint,  che-
quered with  patches of florid  extravasation.  The  uterus
presented all the signs of recent delivery.!
  Mercury.  This  has  long been» considered  as  an  article
capable of occasioning abortion.   Crude quicksilver was at
one time supposed to possess this property.  It was accord-
ingly used, not merely for this purpose, but also in all cases
of difficult labor.  It was not  long, however, before it was

  * Fodere, vol. 4, p. 431.
  t " Foemina triginta annorum, abortum meditans, infusum sabinse ingessit;
unde insignis vomitus continuus. Aliquot dies post sensit diros dolores; tan-
dem abortus successit, cum insigni hsemorrhagia uteri, dein mors. In cada-
vere vesicula follea rupta apparuit, cum effusione bilis in abdomen, et inflam-
matione intestinorum."  B. I. And. Murray, apparatus medicaminum, &c,
vol. 1, p. 59.
  X Treatise on Poisons, p. 531-2.  Second edition. 
INFANTICIDE.
433
ascertained 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.!  Calomel, how-
ever, is the preparation of mercury most generally supposed
to exert a specific influence upon the uterine organs.   That
it possesses  the  power of producing miscarriage, is  coun-
tenanced by  the  authority 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 pregnant woman  may go through a
long course  of mercury, without the least injury either to
herself or  to the  child.  Bartholin and Mauriceau relate
several cases, in  which mercury was given, to salivation, to
pregnant women  affected with syphilis, and who all, at their
full time, were safely delivered of healthy children.§  Mr.
Benjamin Bell, than whom I could not quote higher authority,
says, " It  is a prevailing opinion,  that  mercury  is  apt to
occasion abortion,  and  it is therefore seldom given 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 suffi-
cient 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
testimony of Dr.  Rush concerning the use of calomel in the
yellow fever of 1793.  In not a single instance did it prove
injurious to  pregnant women.1T   The following case which
fell under my own care, confirmed me in the opinion already
advanced.  A female, eight  months gone with child, was
attacked with a  violent inflammation of the lungs.  After
the use of the ordinary depleting remedies, I found it ad-

  * James' Dispensatory.
  t Vidi mulieres qui  libras ejus biberunt ut abortum facerent, et sine noxa
  (Fernelius.)         •      X Midwifery, pp. 231,233.
  § Fodere, vol. 4, p. 429.
  || Bell on the Venereal, vol. 2, p. 265.  American edition.
  IT Medical Observations and Inquiries, vol. 3, pp. 249, 309.
                   28 
434
INFANTICIDE.
 visable to have recourse to mercury.  She was accordingly
 put  upon the use  of small  doses of calomel and James'
 powder.  In  a few days, salivation came on;  after which,
 all the symptoms of her pulmonary complaint speedily van-
 ished, and the patient was restored to her usual  health.   She
 was  afterwards  delivered  of a  living child  at  the full
 period.
   Dr.  Campbell  states that he  was once asked to visit a
 young girl, whom  he  found so violently salivated, with a
 view to excite abortion, that her tongue could  be compared
 to nothing  else than  a honey-comb.  But notwithstanding
 her  extreme suffering, she went to  the full time.*  At the
 same time there can be no 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 result.
   Poly gala 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 properties  in this respect, is in an inaugural dis-
 sertation  by Dr. Thomas Massie of Virginia,  published in
 1803.  By him the  action  of  it on the uterus  is especially
 noticed;  and  the authority of Dr. 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 pos-
 sess  some power as an abortive, may be inferred from its
 acknowledged power as an emmenagogue.!
  Pennyroyal.  This article is  reputed  by  some  to  be  a
 powerful  abortive.   Dr. Watkins relates a  case, in  which
the mere odour of it produced abortion in a delicate woman
 in the fourth month.§  At the Chelmsford  assizes, August
 1820, Robin Collins was indicted for administering  steel-
filings and pennyroyal water to a woman with the  intent to

  * Introduction to the Study and Practice of Midwifery.  By Wm. Camp-
bell, M. D., p. 142.
  t Medical Theses.   By Charles Caldwell, M.D., vol. 2, p. 203.
  X See paper of Dr. Hartshorne in Eclectic Repertory, vol. 2, p. 201.
  § Coxe's Medical Museum, vol. 2, p. 431. 
                       INFANTICIDE.                   435

procure  abortion.  He was  convicted,  and  sentenced  to
transportation for fourteen years.*
   Besides the foregoing articles, belonging to the class of
emmenagogues,  there are others  which  are  entitled  to a
place under the class of abortive agents.
   Secale  cornutum—spurred  rye—ergot.   This  article, at
present   so   fashionable  in  obstetric practice,  was  first
announced to the  profession in this country in  the  year
1807,  by  Dr. John Stearns  of New  York, as a  substance
capable  of accelerating,  in  an  extraordinary manner, the
process  of parturition.  As  might naturally be  expected
from the announcement of a remedy so novel  and unique, it
excited much interest, and as  soon  as  subsequent experience
had confirmed its virtues, rose at once into the most unlimit-
ed 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 magni-
tude 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.!  It
  * Paris and Fonblanque, vol. 3, p. 88.
  t Vol. 1, p. 70.
  | For testimony on this point, I refer to the following authorities :  New
York Medical Repository, vol. 12, p. 344;  vol. 20, p. 11; vol. 21, pp. 23,139;
New 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 Physic
cal Journal, vol. 1, pp. 205, 278 ; vol. 2, p. 30; and more particularly a pa-
per by Mr. Chavasse of Birmingham, published originally  in 4th vol. of the
Trans, of the Provincial Med. and Surg. Association, and  reprinted in the
Transactions of the Med. Society, of  the State of New York, vol. 3, p. 348.
This paper contains a number of facts worthy of  the most attentive consider-
ation. 
436                    INFANTICIDE.
is to be feared, that for this purpose it has been but too
frequently 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 experi-
ments made upon animals ;*  and Dr. Chatard records a case
of abortion induced in the human female subject at the fourth
month of pregnancy, by twelve grains of ergot.!  Notwith-
standing all this, it is a fact that ergot is no more infallible
as an abortive than any of  the agents already noticed.  Dr.
Condie states  that  several instances  have come to his
knowledge, in which the ergot was employed to the extent
of several draciims 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
simulating those of  parturition have occurred towards the
termination of utero-gestation, in order to quicken the labor;
but so far from  doing this, the pains have  actually ceased
under its use, and  labor has not occurred for several  weeks
subsequently.!  I have myself  met with one case in  which
a female who had had  several children, took  of her own
accord three  drachms  of  ergot to  produce an abortion,
without any effect.
 , Actcea racemosa.   The common name of this  plant,  is the
black cohosh, or the squaw root.   It is a common  plant,  found
in every part of the United States, and the root of  it is a

  * Philadelphia Journal  of Medical and Physical Sciences, vol. 11, pp. 112,
113.
  t New York Medical Repository, vol. 21, p. 16.
  X American Journal of Medical Sciences, vol. 10, p. 227. 
INFANTICIDE.
437
good  deal  used by  some  of our American practitioners.
Recently, it  has been  brought into notice as an  article
possessing powers analogous to those of the ergot.  By our
native Indians, it appears  to  have been long supposed  to
possess properties  of this sort, and Mr. Rafinesque states
that it is " much used by them in facilitating parturitions,
whence its name—squaw root."   Dr. Tully, in a paper  on
this subject, has recorded the testimony  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 alchoholic tincture  acted as a sufficient dose,
without  being  repeated.*   According  to  Dr.  Tully, the
actaea  does not appear to exert  the same stupifying and
deleterious  influence on  the foetus, that  he supposes  is
produced by the ergot.
  Among the local means used for  procuring abortion there
are only  two which require to be noticed.
  Blows and other injuries on the loins and abdomen. In cases
where severe blows have  been received on the back, the
danger of abortion is always imminent. It is, indeed, rare
that a female goes  to her  full time when  she has received'
such an injury.   Blows  on the abdomen are equally danger-
ous ;  and in most cases  of this kind^ a considerable hsemor-
rhage precedes  the death of the foetus.   In disputed cases,
where it is denied  that the injury inflicted has caused the
abortion, we should attend to the two following circumstan-
ces : First, whether the violence offered was sufficiently great
to be considered as the sole cause ; and second, whether the
female was not disposed to abortion, and had failed in some
precautions, or  committed some  imprudence, which might
have induced it.  After investigating these  facts, we ought
to inquire  whether the  accused knew  of the pregnancy of
the female, or  whether she had not provoked the blows
which she received.   Two cases  from Belloc may serve to
illustrate these  distinctions.  A young woman, between the
  * Actaea racemosa. By William Tully, M.D., Professor of Materia Mcdica,
in Yale College, in  the Boston Med. & Surgical Journal for April 10,1833. 
438
INFANTICIDE.
 third and fourth months of her pregnancy, had received, from
 a robust man, several kicks and blows with the fist, the marks
 of which were very evident.  Immediately after the accident,
 she was put to bed, bled, and various  remedies given by a
 surgeon.   The haemorrhage, however, continued, with pains
 in  the  loins and abdomen,  and the next day she had  an
 abortion.   Belloc,  on being examined, declared  that the
 abortion was owing to the violence which had been inflict-
 ed.*   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.  Instead, how-
 ever, 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 possible,
 had she  remained  quiet, and  called  for proper aid, the
 abortion  would not have taken  place,  particularly  as the
 violence used was  only that of throwing her down  in the
 street.!
   With regard  to  this cause of abortion, as well  as the
 others that have been mentioned, it is to be understood that
 the life of the mother  is  equally exposed with that of the
 child.   The 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 wras in  the preg-
 nant  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

  * Belloc, p. 81.     f Cours de Medecine Legale, par J. J. Belloc, p. 82.
  X Smith's Forensic Medicine, p. 305. 
INFANTICIDE.
439
caused the immediate death of the foetus, and  that of the
mother in fifty-one hours afterwards.*
  The introduction of instruments into the uterus for the pur-
pose of rupturing  the  membranes, and  thus  bringing on
premature action  of the womb.   Of this villanous practice,
which has long been known and resorted to for the nefarious
purpose  of 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 assizes, in 1781, Margaret Tinkler 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  expressions 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 circum-
stance would  reach his  wife, advised  her to go to  the
prisoner, who was a midwife, to take her advice how to get
rid of the child—being  at the time five or six months gone.
The delivery  took place on the 10th of July, three days
previous to which, a person saw the deceased in the prison-
er'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 afterwards
delivered at the  prisoner's  house.  The child was born
alive, but died instantly, and it was proved by surgeons to
be  perfect.  There was no doubt but that the deceased had
died by the acceleration of the  birth of the child ; and upon
opening the  womb  of the mother, it appeared  that  there
were two holes  caused by wooden  skewers, one of which
was mortified and the 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

  *  Introduction to the Study and Practice of Midwifery, &c. p. 137.
  t  East's Crown Law, vol. I, p. 354. Smith, p. 306. 
440
INFANTICIDE.
 administering 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 con-
 sequence of this failure, Pizzy, who was a farrier, introduced
 an instrument  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.  Al-
 though the facts appeared  very clear on the trial, yet the
 jury brought in a verdict of acquittal.*
   By Fodere and Ristelheuber a case is related, in which
 rupture of the uterus and death was occasioned by the intro-
 duction of a syringe with a  long ivory pipe, for the purpose
 of producing abortion.   On dissection, a fcetus of about two
 months was discovered in the abdomen.!
   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 cathe-
 ter.   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 pains3 and having  bled her
 twice without relief, he gave her ergot, to facilitate the de-
 livery of the fcetus, which very shortly brought it away.  It
 was perfect, and about four months old.  Unfortunately, the
 names of the persons concerned in this infamous transaction,
 were never divulged.!
   I will  record only one  case more, the particulars of which
 I have recently been favored  with.   A few years since a
 trial took place in the State  of  Vermont, in the case of Nor-
 man Cleaveland, who was indicted and tried  for the murder
of Hannah  Rose.  It appeared in  evidence that  Hannah
Rose had become pregnant by the accused, and was about
four months gone in her pregnancy, and that he had tried
various  means  to produce an  abortion, but without effect.

  * Edinburgh Medical and Surgical Journal, vol. 6, p. 244.
  t Medico-Chirurg. Review, vol. 6, p. 528.
  X The Medicial Recorder, vol. 8, p. 461, for 1825. 
INFANTICIDE.
441
After this he resorted to the introduction of a sharp pointed
instrument into the vagina, and with the fatal  result of im-
mediately destroying the female herself.  On a post mortem
examination, the  neck of the uterus was found punctured
in six  places, each  puncture  being from  half an inch to
three-fourths of an inch wide.   The punctures appeared to
have been  made  by a two-edged instrument  like- a lancet.
In addition to this, the iliac vein was wounded, and the ab-
domen  filled with   coagulated  blood.  The  prisoner was
convicted and  sentenced to be  hung.  The punishment was
afterwards, however, commuted  by the  Legislature to five
years' hard labor  in the State prison.*
   A most  extraordinary mode  of causing abortion recently
occurred in France, which  may perhaps be  appropriately
noticed in this place.  The subject was a  married woman,
who had four children, and was pregnant of'a fifth.  At the
commencement of her pregnancy, she was persuaded by the
representations of another  female,  to  inject sulphuric acid
into the vagina as an easy mode of inducing premature labor.
As may readily be imagined, excessive  inflammation of the
parts took place,  together with great general  constitutional
disturbance, and the  final  result was an almost complete ob-
literation of the vagina.  " The medical men on examination,
found that a kind of  irregular band surrounded and obstruct-
ed the vagina, beyond which, and on the brim of the pelvis,
the head of the infant was distinctly felt, pressed  forward
by the uterine  contractions.  It was  resolved to  make an
incision through  the dense membrane,  but when this was
done, it was found it had  adhered to the bladder, which the
incision completely  divided.  The delivery was  not at all

   * For the particulars of this case, I am indebted to Judge Hutchinson  of
 Woodstock, Vermont.  In connection with this subject, the following instruc-
 tive fact is related by  Dr.  Gooch.  " Dr. William Hunter, attempted this ope-
 ration (introducing an instrument to puncture the membranes) on a young
 woman, at about  the third month of pregnancy.  He found that he  several
times punctured the cervix uteri, and the case terminated fatally.  If this
happened to one of so much anatomical knowledge and skill, how much more
probable must it be  in the hands of those ignorant men, by whom, for the
purpose alluded to, the operation is sometimes undertaken ! No doubt these
 attempts often prove fatal, but the murdered do not tell tales."  A practical
 compendium of Midwifery, by Robert Gooch, M. D. p. 94.  Amer. Ed. 
442
INFANTICIDE.
facilitated, and the attendants felt themselves compelled to
perform the csesarean  operation.  The infant was extracted
dead, apparently for some time, and the mother immediately
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 re-
sult when the miscarriage is occasioned by great and unnatu-
ral violence done to the system, and that too  under circum-
stances, which generally shut out the wretched sufferer, from
the benefit of all medical  succour.  Velpeau  states that he
had a female under his care, who produced a violent abdomi-
nal inflammation by taking medicines  to promote abortion.
She  died on  the  eighth day, without any  symptoms of
abortion having appeared.!   There is another circumstance
also  of great importance, which  should not  be  forgotten.
It has happened in some instances, that while the mother
has lost her life in attempting to procure a miscarriage, the
child has actually been born alive and survived.  A case of
this kind was witnessed by Fodere in 1791.   A  cook find-
ing 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 abortion.  Some hours after,
she was seized  with  violent  colic, and brought  forth  a
living child, in the  most horrible pains.  During the succeed-
ing 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
* Lancet, vol. 8, p. 38.            f Meigs' Velpeau, p. 236.
X Fodere, vol. 4, p. 436. 
INFANTICIDE.
443
 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.
   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
 affecting 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,
 (abortives,) cannot act as efficient causes, without the  aid of
 those predisposing causes, or  natural habits  of the  body,
 which are  necessary to concur  with them.   As attempts  of
this kind, however, should not  be passed off with impunity,
and as the life of the mother as well as the child is endangered
by such exhibitions, if advised by any other, they should be
 considered as highly culpable, and for this reason should be
 made known."*
  " Every woman," says Bartley, " who attempts to pro-
 mote 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 temerity."!
  " There  is no drug,"  says Male, " which  will produce
 miscarriage in  women not predisposed to it, without acting
violently on the system, and probably endangering their lives."t
  Smith says, " Abortion is, in general, injurious to  health,
and is seldom unaccompanied with suffering.  The adminis-
tration of emmenagogues to force a separation of  the ovum,
where the constitution has no tendency to  throw it off, is

 * Farr's Elements of Medical Jurisprudence, p. 70.
 f Bartley's Treatise on Forensic Medicine, p. 5.
 X Male's Epitome of Juridical Medicine, in Cooper's Tracts, p. 208. 
444                    INFANTICIDE.
  highly dangerous to the mother.  No drugs can act in this way
  upon the uterus, but by involving it in a violent shock given
  to the general system.  It has frequently  occurred, that the
_ unhappy mother has herself been the sacrifice, while the object
  intended has not been accomplished."*
    Burns  says,  " It cannot be too generally known, that
  when these medicines do  procure abortion, the mother  can
  seldom survive their effect."!
    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  em-
  ployed 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  (ac-
  cording to his  own confession)  knelt upon  her, and com-
  pressed 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  hsemorrhage 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 in-
  to 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 in at-
  taining their  object, and  succeed only in  seriously injuring
  the womb.  I once prescribed for a  female, in whom such
  attempts had  brought  on a  flooding which conducted  her to

    * Smith's Principle of Forensic Medicine, p. 295.
    t Principles of Midwifery, p. 283.
    X Professor Wagner, in the London Medical  Quarterly Review,  vol. 2, p. 
                       INFANTICIDE.                   445

the verge of the grave ;  she suffered  horribly from pain in
the interior of the pelvis for  two  months, notwithstanding
which, abortion did not take place, and she  is  now a prey
to a large ulcer of the neck of the womb. I opened the body
of an  unhappy creature who suffered from  like attempts,
which did not succeed any better  than the one above men-
tioned.  M. Girard, of Lyons, mentions a similar  instance.
Very recently, also, (Oct. 1828,) a young woman who became
pregnant against her wishes, succeeded by such manoeuvres
only in  producing an organic lesion  of the  uterus, which,
after frightful suffering, led her  to the commission of  sui-
cide."*
   II. Of the  involuntary causes of abortion.   Of these it is
not  necessary to say much.  They should always,  however,
be kept in view in medico-legal investigations on this sub-
ject, so  that  we may  not attribute to criminal interference
what is  owing to some morbid derangement.   Diseases  of
various  kinds, as rheumatism,  pleurisy, small  pox, typhus
and  yellow fevers, scarlatina, syphilis, and measles,  opera-
ting on a  system  predisposed  by nervous  irritability—a
diseased state of the uterus—the intemperate use of spiritu-
ous  liquors—irritation  of the  neighboring  organs, from
costiveness, tenesmus  of dysentery, haemorrhoids, prolapsus
ani, diarrhoea, incontinence of urine—the irritation produced
by medicines!—errors in regimen and  diet—violent exercise,
as in walking, dancing, riding, running, &c—accidental falls,
a sudden contortion or shock! of the body—indulgence of any
violent  passion of  the  mind, whether joyful  or  sad—the
relation of any unexpected intelligence—a great  noise§—

   * Meigs' Velpeau, p. 238.
   X Dr. Dewees states that he has seen two cases of premature labor, result-
ing,  as he had reason to believe, from the action of blisters.  A Treatise on
the diseases of Females, p. 123.
   X The pulling of a tooth, for instance, has been known to produce abortion.
Burns on Abortion, p. 64.
   §  A case, in which a great noise, as  a cause of miscarriage was involved,
was tried in 1803, at the quarter sessions of Franklin county, in Pennsylva-
nia.  The indictment charged  that Taylor, (the defendant) unlawfully, se-
cretly, 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 com-
monwealth ;  and after entering the house, unlawfully, wilfully, and turbu-
lently, made a great noise, in disturbance of the peace of the commonwealth, 
446
INFANTICIDE.
 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 whatever source, or at any period ;—all or
 any  of these causes  may give rise to abortion, without  the
 imputation of the least criminality to the female.
   The influence of the passions upon the uterine functions
 is peculiarly striking.  It  is an extraordinary fact, that the
 melancholy 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 trifling misfortune which is unexpected.  Fodere re-
 lates 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, de-
 layed in consequence of the peculiarity of their situation.
 Yet, notwithstanding the actual wretchedness of their con-
 dition, and the more terrible anticipation of future suffering,
 they went on to the full time, during which period, a fortu-
 nate change in the state of parties rescued them from unme-
 rited punishment."*

   Circumstantial  evidence.   In  concluding  the  subject of
 foeticide, I shall make a remark or two upon  the  circum-
 stantial evidence which may be adduced to prove  the guilt
 of  the accused.  With regard  to  a female concealing her
 pregnancy,  I cannot conceive with what justice any infer-
 ence can be  drawn prejudicial to  her character.  If her
 pregnancy be the result of illicit commerce, it is perfectly
 natural that she should make  use of every effort to conceal
 her disgrace as long as possible.   The mere fact of conceal-

 and did greatly misbehave in said dwelling-house,  and did greatly frighten
 and alarm the wife of said Strain, whereby she miscarried, &c.  The offence
was held indictable as a misdemeanor.  The jury found the defendant guilty;
but the quarter sessions arrested  the judgment upon  the ground, that the
offence charged was not indictable.  The supreme court decided in this case,
that the judgment should be reversed, and the quarter sessions were directed
to proceed to give judgment against the defendant.  Binney's Reports, vol.
5, 277.                           * Fodere, vol. 4, p. 422. 
INFANTICIDE.
447
ment, 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 endeavored to procure any of the medicines usually
given to produce this effect;  if any are found in her posses-
sion, or if she can be  convicted of actually taking  them,
without medical advice, we have then the strongest circum-
stantial evidence which the nature of the case admits of, to
pronounce her intention to  have  been criminal.   These are
circumstances, however, which do not strictly come under
the cognizance of the professional witness ; they are mat-
ters of fact, which must  be  decided upon from the testimony
which may be offered by the other witnesses cited to appear
in the case.
II.  Of the murder of the child after it is born, with an account
      of its various proofs and modes of perpetration.
  In every case in which an  infant is found  dead,  and be-
comes the subject  of judicial investigation, the great ques-
tions which present themselves for inquiry, are,
  1. What is the age  of the child 1
  2. Was the child born alive1?
  3. If born alive, how long had it lived'?
  4. If born alive, by what means did it come to its death 1
  Having  come to the  conclusion  that the death of the
child is owing to violence, it is next to be ascertained who
the perpetrator of it is.  Should suspicion light upon  a fe-
male as being the mother of  it, the  questions to be deter-
mined 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 1
  These are the only  points upon which the professional wit-
ness can be called to give his testimony, and  to the conside-
ration of these I shall accordingly confine myself. 
448
INFANTICIDE.
  Quest. I.  What is the age of the child ?
  The importance  of determining the age or degree of ma-
turity of the child is so evident as  to need no discussion.
In all cases, therefore, it should be particularly investigated.
For  the necessary information on  this subject, see Chap.
VII., Part 2.
  Quest. II.  Was  the child  born alive ?
  There are  two  ways in  which a child may be born alive.
1. It may be born, the cord may be pulsating, showing that
it is alive, and yet it may not respire.  In  this state it may
continue for a sufficient length of time to die from natural
causes, or in  consequence of criminal interference, before
respiration has commenced.  2. It may be born and respire.
The question therefore as to the child's having been born
alive, may present itself in either of these  forms, and re-
quires investigation.
  1. Of the child born alive but not respiring.
  It must be evident that when a child is born alive, but has
not yet respired, its condition is precisely like that of the
foetus in utero.  It lives merely because the foetal circula-
tion is still going on.  In this case none of the organs un-
dergo any changes.  The lungs  remain as they are in the
fcetus, and the organs circulating the blood  are in the same
state.   If, therefore, it die before respiration commences,
there are no changes which have taken place, by which the
fact of previous vitality could be established.  This simple
view shows how  impossible it would be  to prove that a
child had been born alive,  independently of respiration.  In
cases where wounds and ecchymoses are found on the body
of the child, indirect evidence might be obtained from this
source as to the existence  of life at  the time they were re-
ceived.  An interesting case of this kind is recorded by
Devergie, an account of which will be found in a subsequent
part of this chapter under the head of " Examinations and
Reports."  At best,  however,  this  could  only apply to a
very few cases.   Where this kind of proof is absent, we
have no means of  deciding the question. 
INFANTICIDE.
449
  2. Of the child born alive and respiring.
  Here respiration constitutes the test of a child's having
been born alive, and the great point, therefore, to be settled
is whether the child has respired.  The proofs by which this
is to be established  are all  deduced  from certain changes
which take place in the  system, as soon as the vital process
of respiration commences. These changes show themselves,
not merely in the lungs, but in various  other  parts of the
system—and it is only by examining them in an extended
way that we can arrive at just and satisfactory conclusions.
   These may be  conveniently divided into three  sections,
viz:
   1.  Proofs  derived from the respiratory organs.
   2.  Proofs  derived from the circulating  organs.
   3.  Proofs  derived from the abdominal organs.

I. Proofs of a child having  respired, drawn from the respi-
                      ratory organs.
   The points here to be investigated are the following: the
general configuration and size of the thorax—the situation of
the lungs—their volume—their shape—their color—their con-
sistency or density—their absolute weight—their specific gravity.
   There are three conditions in which the new-born child
may  be found.  It  may have respired  perfectly.  It may
have respired imperfectly.   It may not have respired at all.
It  is  with  reference to  these  three  conditions  that the
foregoing points are to be examined.
   1.  The size and configuration of the thorax.  If the thorax
of a child which has never respired be examined, it will be
found narrow  and flattened. On  opening into  it, also the
general size of the cavity  will be found small,  and the
diaphragm rising into it highly arched.  In a child  which
has fully  respired,  on the contrary, the thorax externally
will  be found broad and rounded, while  the internal  cavity
will  be enlarged in all directions.  The diaphragm, too,
will  be much less arched.  In cases where the respiration
has been  less perfect, all these changes will of course be
less  marked.  As the ideas connected  with the terms fiat
              29 
450
INFANTICIDE.
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 circum-
ference 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 be  evident,  however, that  such
measurements must be very uncertain in their results, owing
to a great variety of unavoidable causes,  such as differences
in the  natural size of the  child, &c.;  and therefore the
inferences  drawn from them must inevitably lead, in many
cases, to  erroneous decisions.   It is to be recollected that
the thorax of a child is large or small,  not so much accord-
ing to its own actual size, as it is in proportion to the size
of the  child  itself.  For instance, in  the  body of  a  very
small child, the thorax may nevertheless, be justly considered
large, although much inferior in size to that of a child much
larger.  Hence any opinion formed from an  examination
and  comparison of the thorax of different children must be
exceedingly doubtful and uncertain.   The best way, after
all,  perhaps,  is to trust simply to occular inspection.  A
little experience  in examining  the appearance of different
subjects, will much better enable a person to decide correct-
ly, than  by  any  fixed standard of measurement.  With
regard  to the size of the thorax as a sign of respiration or
non-respiration, it must be admitted, that taken by itself  it
is not of much value.  It is only in connexion with other
signs that it is of importance.
  2. The situation of the lungs.  Anterior to respiration, the
lungs occupy a small space at the upper and posterior parts
of the thorax, leaving the pericardium and diaphragm almost
entirely and sometimes entirely uncovered.  If only imper- 
INFANTICIDE.
451
feet  respiration  has taken place, the lungs will  be found
occupying  the lateral portions of the thorax also.   If the
respiration has been complete and especially if it has been
established for  a  certain length  of  time, they will cover
almost  entirely  the pericardium as well as the arch of the
diaphragm.  Although some three or four cases are recorded
by Schmitt,* which tend to weaken somewhat the force  of
this sign,  yet in  general, it  is  one  of considerable value.
Like the preceding, however, it is not to be depended upon
except in connexion with other signs.
   3. The volume of the lungs.  In the foetal state, the lungs
are  comparatively small in size.  As soon as respiration is
established, they become distended with air, and of course,
increased in volume.  The degree in which this takes place,
must necessarily vary, according as the respiration has been
more or less  perfect.  For the  purpose of rendering this
test more accurate and available,  various modes have been
proposed to ascertain the exact  increase of  volume of the
lungs in consequence of respiration.  The only one which
I  shall  notice, is that proposed by Daniel.
   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 respired,  as  well as those which had respired, for
the purpose of  ascertaining the  different heights to which
 the water  would rise.  In the case  of lungs which had re-
 spired, it is evident that these organs would  not sink.  To
 obviate this difficulty^ he recommends, that they be placed
 in a wire basket,  the volume  of which is known, and which
 may afterwards be deducted from the volume  of the lungs.!
 With regard  to this test, however,  it does not appear that
 any conclusions can  be  drawn  from the absolute volume of
   *  Diet, des Scien. de Med. art. docimasie pulmonaire.
   t  Diet, des Scien. de Med. Western Medical Reporter, vol. 1, p. 322. 
452                    INFANTICIDE.
the lungs which  can be depended upon with any degree of
certainty.   The best mode of judging of the volume of the
lungs  after all is  by the  space which  they occupy in the
chest and by their  relative situation to the pericardium and
diaphragm.
  The following sketches, copied from Dr. Cummin,* will
give some idea of  the  relative situation and volume of the
lungs before and after respiration.
      Before Respiration.
a a. Sections of the clavicles.
6. Thymus gland.
c d. The lungs.
e. The pericardium.
/.  The diaphragm, much archech
    After Respiration.
a a. Sections of the clavicles.
6. Thymus gland.
c. d. The lungs.
e. The pericardium.
/. The diaphragm, less arched.
  4. Shape of the lungs.  In this respect, a striking change
takes place in some portions of the lungs in consequence of
respiration.   In the foetal state,  the edges of  the  lungs are
sharp, and the lower margin of the left upper and  right
* Cummin on Infanticide, p. 56. 
INFANTICIDE.
453
middle lobes  pointed.  After respiration  has taken place,
the edges of the lungs become  rounded, while the pointed
margins of the left upper and right middle lobes become
obtuse.  The  degree to which  these changes take place,
differs also according as  the  respiration has been more or
less perfect.

   5.  Color of the lungs.   In the foetus the color of the lungs
is of  a brownish red, resembling very much the color of the
liver  in  the  adult and of the thymus gland in the foetus.
The resemblance in color between the fcetal lungs and the
thymus  gland is  important, as it furnishes an  immediate
standard of comparison.  After perfect respiration has taken
place, the lungs assume a pale red or scarlet color.  Where
the respiration has only been imperfect, some portions will
be found of a brownish  red, while others will be scarlet.
In appreciating the value of this test, it is  to be recollected
that a number of causes, besidfe the presence or  absence of
respiration, may modify the color of the lungs.   In the first
place, artificial inflation changes the color of the lungs.  The
changes  produced  in the color of the lungs by artificial infla-
tion, vary with the  manner in which the process is performed.
If the lungs of a child  which has never respired, be taken
out of the chest and separated and a small quill introduced
into one of the bronchial  tubes,  these organs can be very
easily and fully inflated, and they  then assume a uniformly
bright red appearance.  If, however,  air be merely  intro-
duced in the  ordinary way in which it is  practised for the
purpose  of resuscitating a child, by blowing with the mouth,
then  the inflation of  the lungs is  very imperfect, and  the
change of color is only partial, corresponding with the parts
of the lungs which had been permeated by air.  With regard
to the exact color produced by artificial  inflation, experi-
menters  differ.  According to Bernt, if any change of color
is produced  it is  only a  pale or  grayish red.*   Devergie
says it is white, while Mr. Jennings states  that it causes the
* Edinburgh Med. and Surg. Journal. 
454
INFANTICIDE.
 scarlet tint of respiration.   Whichever of these  opinions
 may be nearest the truth,  one thing is  certain,  that the
 change of color produced by artificial inflation approximates
 sufficiently near to that of respiration, to render any dis-
 tinctions of color as altogether of little value in discrimina-
 ting between the two.  There is one  point, however,  of
 importance in connexion with the color of the lungs which
 may be turned to advantage  in discriminating between arti-
 ficial inflation and  perfect respiration, and that is the extent
 to which the  change of color has gone.  As already stated,
 in cases of artificial inflation, the change of color is only  in
 portions of the lungs.  Where respiration has been perfect,
 on the other hand, there is a general  change of color in the
 whole of the lungs.  Between artificial inflation and perfect
 respiration, this then would furnish a ground of distinction.
 Between artificial  inflation and  imperfect respiration, this
 would be .of no avail.   In both, the air  has only partially
 pervaded the lungs, and of  course the  change of color  in
 both would  be only partial.   The mere color of the lungs
 then would fail to  show whether it was owing to imperfect
 respiration or inflation.  Other tests  would  have to be de-
 pended to establish the  diagnosis.   In the second place,
 disease may  modify the color of the lungs.   Thus, for ex-
 ample,   where  new-born infants  die  from  sanguineous
 engorgements of these organs, notwithstanding respiration
 may have been perfectly established, the  color differs  in
 various degrees from that produced by respiration in healthy
 lungs.  Lastly, the action of the atmosphere upon the lungs
 changes  their color.   On opening the chest of a still-born
 child, it will be found that the lungs will speedily assume a
 much brighter  color.   From all this it  is apparent that
 observations on the color of  the lungs must be, made with
 great caution, and the necessary discrimination made between
 the various  causes  which may have exerted an influence in
 modifying it.
  Like all the other signs of respiration  already noticed,
the color of the lungs cannot be depended upon  by itself.
It must always be taken in connexion with the other signs. 
INFANTICIDE.
455
  6. Consistence or density of the lungs.  In the foetal state,
the lungs are dense, resembling very much the  solidity of
the liver.   On  pressure, or when cut into,  they do  not
crepitate.  After perfect respiration, they become soft  and
spongy—air bubbles may be squeezed out of them, and when
pressed  or  cut  into they give out a crepitus.  When the
respiration has been less perfect, some portions will be found
dense, while others will be spongy and crepitus.  This is
a valuable and striking test.  The only serious objection to
it is, that artificial  inflation produces  precisely the  same
change in the lungs.  The  modes of distinguishing between
these two will be noticed under the head of the Hydrostatic
test.
   7.  The absolute weight of the lungs.   From the peculiarity
of the vascular system in the foetus, only a small portion of
the blood  goes  the round of pulmonary circulation, the
greater part passing directly through the foramen ovale, and
the ductus arteriosus.  As soon, however, as respiration is
established, all  this is  changed and then the whole mass of
blood  passes through  the  lungs.  It is evident, then,  that
the weight of the lungs must be increased in consequence of
respiration, and the increase of weight will be just in propor-
tion to the quantity of blood which has been thus introduced
into these organs.
   Upon  this is  founded whet is generally known  as the
Static test.  To  render this test available, it is obvious that
some standard weight of the lungs in the two states must be
fixed upon, otherwise, no conclusions could safely be drawn
in any individual case.  For this purpose, two modes have
been  proposed.   The first  is to  compare the weight of the
lungs  with the  weight of  the body of the child.  This is
what is  commonly called  Ploucquet's test.  The second is
to take  the  average actual weight of a certain number of
lungs  both in the foetal state and after  respiration is es-
tablished.
   First form of the  Static  test.  Ploucquet's test.   This is
so called from its having been  originally suggested by Mr.
Ploucquet.   It  was announced in 1782, and is founded on 
456
INFANTICIDE.
the fact that as soon as respiration takes place in the new-
born infant, an additional quantity of blood penetrates the
lungs, in consequence of which, these organs become hea-
vier than anterior  to  respiration.  As the weight of the
body of the child cannot undergo any change, he  suggested
accordingly,  that a comparison of the weight of the body
of the child with the weight of its lungs, would  furnish a
test by which to  determine whether it had respired or not.
From the few observations which he made, he came to the
conclusion that where  respiration had not taken  place, the
proportion between the weight of the lungs and that of the
body, was as  1 to 70; while on the  other hand, where respi-
ration had taken place, it was as 1 to 35 ; or in other words,
that the weight of the lungs was doubled in consequence of
respiration.  A test so beautiful as this and founded appa-
rently upon principles  so  truly physiological,  it was hoped
would aid,  very materially, to solve this important question.
Numerous  experiments and observations were accordingly
made to test its accuracy in actual practice; and the result
has been,  that while  some appreciate it very highly, by
others it is viewed  as  altogether uncertain.   In  ten  cases
which I have examined, the proportions are as follows :
    Children that had respired.        Children that had not respired.
     1.........1  :43       .    1.........1  : 58
    2.........1  :35          2.........1  :36
    3. .,.*,..  1  ; 44           3......... 1 :49
       ♦        :---^-          4......... 1  : 32
      Average..  1:40          5. ..,...... 1:50
                                 6......... 1  : 52
                                7.......,.. 1  :54

                                  Average,  . 1  : 47
  Now the conclusion to be drawn from these  observations,
are manifestly adverse  to the accuracy of this test.  Taking
the individual cases, there  is not a single one of those which
had not respired,  which reach  the proportions  laid down by
Ploucquet,  while  in the same list,  cases 2  and 4 are very
nearly the p£opc|tions  laid down for children  that have re-
spired. If we take the general averages, too, of  the cases. 
INFANTICIDE.                   457
we  find that they do not correspond with  the  proportions
suggested by Ploucquet.
  Since the time of Ploucquet, a great number of observa-
tions have been made by other  persons, and as the result,
they have all fixed upon different proportions.   The follow-
ing are some of them:
          Before respiration.               After respiration.
    Schmitt,......... 1  : 52             1 :  42
    Chaussier,....... 1  : 49             1 :  39
    Devergie, ....... 1  : 60             1 :  45
  These, as being deduced from a large number of cases,
come  nearer the true proportions than those of Ploucquet,
and  correspond more nearly with my own observations.
Still,  however, it is  to  be recollected that they are mere
average numbers, and therefore do not meet the circumstan-
ces of individual  cases, which of course they ought to do,
for the purpose of rendering them practically available.  It
may be asked, then,  is this test to be rejected altogether!
As an infallible one, it certainly should be.  Notwithstand-
ing this, it is still, I think, valuable as furnishing corroborative
proof, and should, therefore, never be neglected.  It should
always  be taken  in  connexion  with the other signs; and
when this is done, it  may aid very materially in  coming to
a correct conclusion.
  Second form of the  Static test.  By  some it has been  sup-
posed, that the  actual weight c*f the lungs would furnish
another  criterion of the   fact of respiration having taken
place or  not.  Accordingly, an average weight of 1,000
grains has been proposed for the lungs of a child which has
respired, and 600 grains  for those of a child which has not
respired.   A moment's reflection, however, must convince
us that this is still more uncertain than the test of Ploucquet.
Children born at the full time, we know,  differ greatly in
their weight, and of  course there must be  a corresponding
difference in the weight of the lungs.  I have known a child
born at the full time, healthy and perfect in every respect,
and yet weigh only four  pounds ; while children weighing
eight, nine  and ten  pounds are by  no means  uncommon. 
458
INFANTICIDE.
The lungs, therefore, of a child which had not respired, of
nine pounds, would probably weigh more than those of a
child of four pounds, which had respired;  and such has
been found  to be  the case by actual  observation.   In the
cases which I have examined, the following were the weights:
       Before respiration.                  After respiration.
   1.........540 grains.      1.........396 grains.
   2.........720             2........,800
   3.........900             3.........814
   4.........890                         ----
   5.........900              Average,..  670
   6.........690
   7.........689
     Average,. 761
   An analysis of these weights will show at once how falla-
cious this test must be.   We have here, in three cases before
respiration  took place,  the lungs  weighing more than  in
those which had respired ;  while the general average weight
is greater in those which had WB± respired—just the reverse
of what it ought to be according to this test.*
   8.  Specific gravity of the lungs.  It is to  Galen that we
are indebted for the first notice of the fact that  the  lungs
are rendered specifically lighter in consequence of respira-
tion.!  The  knowledge of this  fact was  not,   however,
applied to the purposes of forensic medicine until after the
lapse of several centuries.   Zacchias, who flourished in the
beginning of the  seventeenth century  and who  may  be
styled  the father of forensic  medicine, passes it over  in
silence; and it was not until the year 1682, that it was first
  * From the degree of uncertainty hanging around the test of Ploucquet,
Orfila was inclined to believe that a more definite proportion might exist  be-
tween the weight of the heart and the lungs, and that this might serve as a
test in these cases. He immediately put it to the trial of experiment.  For
this purpose, he took out the heart and lungs from a number of foetuses,
having previously cut off the vense cava? 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.  As the result of his ex-
periments, 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.
(Lecons de  Medecine Legale, vol. 1, p. 349; second edition.)
  t Opera Galeni de usu Part. lib. xv. cap. 6, p. 145, 6. 
INFANTICIDE.
459
 applied by  Schreyer, as a test in cases  of  child murder.
 The principle  upon  which  this  test  is founded,  is  the
 difference produced in the specific gravity of the  lungs, in
 consequence of the introduction of air into  them.  In the
 whole  range of medico-legal  investigations, there is none
 more important and at the same time more difficult  than
 that which relates to the validity of this test, as a proof of
 respiration.   From the time of its first promulgation, it has
 divided the opinions of medical  jurists, 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 embarrass-
 ing to  courts and to juries  have  been the  contradictory
 sentiments advanced concerning it by medical witnesses,
 the propriety of a full investigation of the subject cannot be
 questioned.
   For  the purpose of rendering  the discussion  of it  as
 distinct as possible, I shall first state the general facts upon
 which the test  is  founded, and then consider the various
 objections to which it is liable.

                     Hydrostatic Test.
   On putting the  lungs of a still-born child into  water, it
 will be found that they sink rapidly  to the bottom of the
 fluid.   On the other hand, if the lungs of a child which has
 breathed perfectly be put into water, they will be found  to
 float high in that fluid.   If the breathing  has only been
 imperfect, the lungs will float or sink according as a greater
 or less portion  of these organs has been penetrated by air.
 On cutting the lungs into pieces, those portions into which
 air has  been  introduced will float, while the rest will sink.
   From these facts the general conclusions are, that when
 the lungs float, the child has respired—when they sink, that
 the child has not respired—when portions of the lungs only
^oat, that the respiration has been partial  and imperfect.
   Let us now see whether it is safe to trust to the  evidence
 furnished  by this test,  by considering the different  objec-
 tions which have been urged against it.  These may be ar- 
460
INFANTICIDE.
 ranged under  two divisions.  The first, embracing those
 which go to show that the lungs may float, and yet the child
 not  have respired.  The second, embracing  those which go
 to show that the lungs may sink in water, and yet the child
 have respired.

 Objections against the Hydrostatic test, on the ground that the
      lungs may float, and yet the child not have respired.
   Obj. 1. It  has been  objected that a child may not have
 respired, and  yet the lungs may float in water from having
 undergone 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 ren-
 ders them specifically heavier than water; while others, of
 equal respectability, maintain  a  contrary opinion.   Both
 parties adduce experiments in proof of  their particular as-
 sertions.  The most accurate, I believe, were those performed
 by Mayer, and as they place this subject in a very just point of
 view, and relieve it of  much of the obscurity in which it has
 been involved, it may not be improper  to present a sum-
 mary of his observations.  From a very extended  series of
 experiments, continued during a number of years, and exe-
 cuted with great  care and precision, Mayer found, on put-
 ting  into water the lungs of still-born  children, that they
 sunk to the bottom. After an interval of two or three days,
 the water in which they were left became  turbid—the lungs
 changed in colour, and increased in volume—here and there
 an air bubble arose to the surface of the water, and  at the
 same time a  putrid odour  became  perceptible.   All these
 appearances  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 floatf
 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 
INFANTICIDE.                    461
where there was a free current of air, they rarely floated
before  the tenth  or eleventh day.   After the  lungs had
once floated, they  remained  in  that  state, emitting daily a
more offensive odour, and acquiring an increased volume,
until the twenty-first, or at the  latest, the  thirty-fifth day.
After that period,  they gradually sunk down, without a sig-
gle  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
August.   The lungs, both entire and cut into sections, were
immersed in pure  fountain water,  and  contained in vessels
convenient and capacious.   In short, every precaution seems
to have  been scrupulously observed, to render the experi-
ments accurate and satisfactory.
   My own experiments on this subject, although not  nume-
rous, go  to confirm, in every essential point, those  which
have been detailed.!   I will merely  state that  I found a
great difference  in the length of time which the lungs took
to float, according to the season  of the year.   In the  month
of  August, exposed to the rays of an intense sun, they float-
ed in less than twenty-four  hours ; while  in the month of
April, they took between two and three weeks.
   If it should be  objected to these experiments  that they
are not satisfactory, because the lungs were separated from
the rest of the body, it will obviate  every difficulty to state
a case in which the same result was observed in lungs which
had not been taken  out of the chest, until  after they had

   * Mayer in Schlegel's Collectio Oposculorum Selectorum ad Medicinam
Forensem Spectantium, vol. 1, p. 262, 3, 4.
   f Recently some experiments on this subject have been reported by Prof.
Gross, of Cincinnati.   In the month of July, he placed the right lung of a
still-born infant in an open glass vessel, exposed to the rays of an intensely
hot sun.  At the end of twenty-four hours it was found to swim on  the sur-
face.  The whole organ was expanded and offensive, and the surface was co-
vered with air bubbles. At the end of seventy hours it still floated both in the
water in which it was originally immersed and in the clear fluid.   The left
lung taken from the same child was kept for twenty four hours in a dry glass
vessel and then  placed in rain water.  In twenty-four hours afterwards it
floated.  See an able review of the Elements of Med. Jurisprudence, by Prof.
Gross, in the Western Journal of Med. and Phys. Sciences, for July, 1836. 
462                    INFANTICIDE.
                    •
become putrid.  A case of this kind is  related in which a
child was still-born and had  become  putrid before  it was
examined.   On dissection, its vessels were found full of air
and vesicles distended with air were seen on the surface of
the  lungs.    On  putting  these  organs into  water they
floated.*
  From the foregoing  experiments it thus appears,  that in
the incipient stage of putrefaction,  lungs that have  never
respired will  float in  water; whereas they will  sink if  it
has continued long enough to  completely destroy their or-
ganization, and  thus extricate the air contained  in  them.
These  results have been corroborated by numerous other
observations and  experiments, and their truth cannot be
doubted.  It seems singular,  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 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 ques-
tion of great importance, to determine in what way we may
discriminate between the floating of the lungs, as caused by
natural respiration, and that  which is  the result of decom-
position.
  Independently of the changes produced in the color and
general appearance of the  lungs by putrefaction,  there are
other very characteristic marks by which they may  be dis-
tinguished.
  {a.)  By the appearance of air bubbles on the surface of the
lungs.   On this  subject, Dr. William Hunter lays down the
following rule :  " If the air which is in the lungs be  that of
respiration, the air bubbles will  hardly be  visible  to  the
naked  eye;  but  if the  air bubbles be large, or if they run in
lines along the fissures between the component lobuli of the
lungs,  the air is certainly emphysematous, and not air which
* Edinburgh Medical Essays, v. 6, p. 450. 
INFANTICIDE.
463
had been taken in by breathing."*  Jaeger  had before this
made a similar observation.   In lungs floating from putre-
faction, he describes the air as contained in the form of bub-
bles under the external membrane of those organs,  where
the air introduced by respiration never finds its way-! This
distinction  is founded in truth, and accordingly has been
adopted by the best writers on forensic medicine.
   {b.) By the ease with which the air can be extricated from
lungs which float in consequence of putrefaction.  The 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 is a  test which  may  be relied on with much
certainty.
   (c.) By cutting  out a  portion  of the internal part of  the
lungs and putting this in water, to ascertain whether it will
float.  If the lungs floated as the result of putrefaction, this
internal 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.
   {d.) By the absence of crepitation in the substance of the
 lungs, in cases of putrefaction.   This is  owing to the fact
 that the  air, generated by putrefaction,  exists in the exter-
 nal portions of the lungs, and is not found  in the air cells,
 as in natural respiration.
   (e.) By an examination of the other viscera of the body.
 Numerous observations have established the fact, that with
 the exception of thebones, the lungs resist putrefaction longer
 than any other part  of the body.  Faissole and Champeau,
 in experiments which they made upon drowned  animals, ob-
 served that the lungs remained sound, after the whole of the

   * 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 Jaegar in Schlegel, vol. 5, p. 111. 
464
INFANTICIDE.
 body had become putrefied.*  Mahon noticed the same fact
 in his dissections of dead bodies.!  Camper ascertained, by
 experiments, that the head became so far  decomposed by
 putrefaction, that the  slightest force was sufficient to detach
 the bones of it from each other, as well as those of the arms
 and legs, before the lungs began to participate in the putre-
 faction.!  I observed  the same  thing in three instances.
 This was especially the case in a child found floating in the
 river.  The body had become quite putrid—the scalp was
 distended with air, and so were the bowels.   The lungs, on
 the contrary, were perfectly natural in their appearance, and
 untouched by putrefaction.  From these facts, the conclusion
 evidently follows, that if  the rest of the body of the child
 which is the subject of examination, be unaffected by 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, and espe-
 cially the first and second, little or no difficulty can arise in
 deciding whether  the  lungs float from putrefaction or from
 respiration.
  Obj. 2. It is  objected that there maybe a peculiar emphy-
 sematous 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 oc-
 curring, 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
 deliver by the feet, and  where  death took place during
 delivery.  The  lungs,  on being  put into water,   floated.
 Chaussier explained this  occurrence by  supposing that in
 consequence of the violence done to the lungs during the
 delivery, an effusion of blood had taken place, the alteration
 of which had disengaged  a quantity of air.   Cases of this
kind must, as a matter of course, be very  rare.  When they

  * Mahon, vol. 2, p. 400.                          t Ibid.
  X Dissertation on Infanticide, by W. Hutchinson, M.D., p. 47.
  § Alberti noticed it in 1723, and Schmitt in 1806. (Edinburgh Medical
and Surgical Journal, vol. 26, p. 374.) 
INFANTICIDE.
465
do occur, the mode  of discriminating, according to Chaus-
sier, is by squeezing them  in  the hand.   On putting them
into water after this, they will be found to have lost their
buoyancy, and will  sink precisely like  lungs which float in
consequence of ordinary putrefaction.  In these cases, the
aeriform fluid exists only in  the cellular tissue.*  Instances
of this kind, however, can never offer any difficulty in cases
of Infanticide.
   Obj. 3. It is objected that a child may not have respired,
and yet its lungs may float in water, in consequence of their
having been artificially inflated.
   It has been doubted  by some, whether  artificial  inflation
of the lungs can ever be effected.  Heister states  that he
proved, by actual experiments, that air cannot be blown in-
to 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.!  Roederer, from the failure of his experiments
on this subject, was led to the conclusion, that it can only
be effected after the child had previously breathed.§  Bren-
del is still more positive on this point.   He believes artificial
inflation to be  utterly impossible,  and assigns two reasons
for his scepticism.   The first is the resistance which is made
by the thorax  and  diaphragm;  and the second is the diffi-
culty of introducing  a pipe  into the glottis, without which
he  thinks it  is  impossible  to inflate  the lungs.   He adds,
moreover, in confirmation  of his opinion, that he made
experiments upon  pups that were killed  while yet in the
uterus;  and although he attempted to force in the air by a
bellows, yet no change was effected upon the lungs, and
they sunk when put into water.||
   A  contrary doctrine is, however, maintained  by a very
large majority of the most respectable  authorities in forensic
medicine.  Low admits the possibility of it, and  tells  us
  * Considerations Medico-Legales sur l'lnfanticide. Par A. Lecieux, p. 55-6.
  t Morgagni's Works, vol. 1, p. 536.
  X  Anthropologia Forensis, etc. p. 405.
  § Collectio Opusculorum Selectorum ad Medicinam Forensem Snectantium
Curante Dr. J. C. T. Schlegel. Vol. 5, p. 112.
  ||  Medicina Legalis sive Forensis, p. 186.
                    30 
466        .            INFANTICIDE.

that Bohn,  together with  the medical faculty of Leipsic,
concurred in the same opinion.*   Ludwig says, it is  certain
that air may be  artificially blown  into lungs which  have
never respired, and that they will afterwards float in water.!
In several experiments made to test this matter by the cele-
brated  Camper, the result  was  uniformly in favor  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.§
Mr. Jennings,|| as the result of experiments made by him-
self, states  that  the lungs  may be inflated without the use
of instruments, and by simply blowing air into  the  child's
mouth,  so that they will float in water—crepitate on pressure,
and change their color from chocolate  to bright scarlet.1T
  From the foregoing detail of authorities,  it is quite evi-
dent, that although artificial inflation of the lungs of a child
born  dead,  is a  thing perfectly  practicable,  yet it  is not
accomplished with as much facility as many have imagined.
I am aware that  some writers speak  with a good  deal ot
certainty in relation to the  ease with which this may be
practiced.  It is questionable, however, whether they have
not drawn their  inferences, in some  cases, at least, from in-
sufficient data.  If the trachea of a still-born child be open-
ed, and a tube introduced, or if the  lungs be separated and
a quill be introduced into the bronchial tubes, it is doubtless
a very easy matter to inflate the lungs.   Any one can make
the experiment and satisfy himself perfectly on this subject.
  *  Theatrum Medico-Juridicum.   Cap. 12, p. 623.
  t  Institutiones Medicinse Forensis, etc. p. 97.   J Schlegel, vol. 5, p. 112.
  §  A Practical Compendium of Midwifery, p. 96.  American edition.
  ||  Trans, of the Prov. Med and Surg. Assoc, vol. 2, p. 440.
  IT  Prof. Gross of Cincinnati, who appears to have paid considerable atten-
tion to this subject, expresses the following opinion:  " We are decidedly of
opinion that artificial inflation of the lungs is a very difficult matter ; and we
believe that the complete distention of these organs can only be effected where
a tube is introduced into the mouth of the larnyx.  A case which recently
came under our notice, greatly corroborates this opinion.  Here the child
was still-born, and in consequence of the delay occasioned by a mal-presenta-
tion; and although repeated efforts were  made  by our friend, Dr.  E. Read,
the attending physician, to resuscitate the infant, yet we found on examina-
tion that only a small portion of the right middle lobe, together with a few
lobules of the right superior and  right inferior lobes were filled with air."
(Western Med. Journal.  July, 1836, p. 80.) 
                      INFANTICIDE.                  467

This, however, is a widely different thing from blowing air
into the mouth of a child, and  that too by persons igno-
rant of the mode of doing it effectually.  If  physicians con-
fessedly have  failed in  accomplishing it, how much more
likely is this  to  happen  to persons out of the  profession.
Indeed it is doubtful, whether inexperienced persons would
often succeed in the process.  The foregoing considerations
I conceive  to be important, because they  go to show that
the  cases in which  this difficulty may present itself cannot
occur so often as some have supposed.  There is another
circumstance connected with this subject, which is deserv-
ing of notice.  Although  ordinary inflation  may introduce
a sufficient quantity  of air into the lungs to cause them to
float, yet the entire lungs can never be distended in this way.
This was the fact in  the case of Mr. Jennings above alluded
to,  as also  in the case of  Prof. Gross.  If this  be so, it
would limit the difficulty  arising from artificial inflation, to
cases in which the lungs are only imperfectly permeated by
air.  Where the lungs are uniformly and perfectly distend-
ed,  it would at once do away with any objection from this
source.  Notwithstanding all this, the difficulty would still
exist,  and it certainly presents the most formidable of all
the objections to the  hydrostatic test.   The difficulty is still
further increased by recollecting  that artificial inflation not
merely causes the  lungs to float, but produces other changes
analogous to those of respiration.  It changes the volume,
the color, the density, and the  shape of these organs  very
much in the  same way that vital respiration does.  How
then are we  to distinguish between the effects of respiration
and artificial inflation 1  The following tests will aid in the
solution of this difficult problem.
  {a.) The first test is founded on  the fact that the lungs of a
child which  has not respired, but which float in consequence
of artificial inflation,  may, by pressure, have the air expelled
from them so as to sink in water; while on the contrary, in
a child which has respired, it is impossible by any pressure
to force out  the air so completely  from the lungs as to make
them sink in water.   This test was originally suggested by 
468                   INFANTICIDE.

M. Beclard, and since then the accuracy of it has been fully
supported by  other observers, and more especially by Mr.
Jennings  of England.  My  own experiments  also  go  to
confirm it.  In applying this test, certain precautions are
necessary to insure success.   The pressure must be carried
to a suitable extent, or it will fail.  The mode adopted  by
Mr. Jennings, was to  put  the lungs in a linen cloth, and
then wring the cloth at each end.  After this they were placed
under aboard loaded with weights. If sections of the lungs be
made, pressing and squeezing  them between the fingers for a
certain length  of time,  will be sufficient to make them sink.
In lungs which have  respired, no  degree of pressure will
make them  sink.  If, however, their texture be  completely
destroyed by  pounding them, they  may  be  made  to sink.
This, therefore should be avoided.
  {b.) A second, founded upon the difference in the weight
of the lungs, in the two cases.   When vital respiration takes
place, it is  accompanied by  an increased flow of blood to
the lungs and  a consequent increase of weight.  The artifi-
cial inflation of lungs which have  never respired,  is not
accompanied  with any increased flow  of blood  to these
organs, and therefore there is no increase of weight.  Taking
the weight of the lungs,  therefore,  according to Plouc-
quet's test,  or the actual weight of the lungs, is  one mode
of discriminating between  natural respiration and  artificial
inflation.
  (c.) A third test  may be deduced from the ductus arteriosus.
The value  of this test  will be discussed  hereafter and
although not  to be infallibly relied  on, as corroborative
proof it should not be  disregarded.  If the ductus arteriosus
has lost its cylindrical shape and become conical, and if it
be diminished in its size, it will be additional proof to show
that the air in the lungs  is the result of respiration.  If, on
the other hand, it be cylindrical, and  retains its fcetal size,
it will be in favor  of the supposition that the air in the lungs
is the result of artificial inflation.
  {d.)  A fourth test has been  suggested by Mr. Marc.   He
considers that art can never  completely  inflate the  lungs; 
INFANTICIDE.
469
and from the greater difficulty which attends the  admission
of air  into  the left  lung, he is induced to believe that in
cases of artificial inflation the inferior extremity of that lung
will float but imperfectly, or not at all.
  From what has been already stated, there is every reason
to believe, that ordinary artificial inflation can never distend
the entire lungs.  In cases, therefore, where the lungs are
fully pervaded  by air, and every portion of them floats in
water, this test would b'e conclusive.  In cases on the other
hand, where only a  portion of the lungs had been penetrated
by  air, this test could be of no avail.  Now such cases occur
continually.  In one of the cases reported by Mr. Jennings,
the  child breathed imperfectly for  half an hour and yet the
right lung  only  floated, the left sinking in water, with the
exception of a small part about its root.*   Indeed it is not
positively settled, whether the lungs in any case become
immediately filled with air as soon as respiration commences.
From  the  experiments of  Mr. Portal  long since made, it
would at any rate  appear  that the right lung receives air
sooner than the left, and he accounts for  this interesting
phenomenon, by showing that there is a difference  in the
size and direction of the bronchi leading to the two  lungs.
Upon  examination, he found the right one about one-fourth
part thicker and one-fifth shorter than the left; besides, he
found the  passage to the right to be more direct than that
the left.!
   From these  facts, therefore, it is evident, that the imper-
fect distention of the lungs by artificial inflation could be no
criterion of distinction  in a large number of cases.
   Of  all the preceding  modes of distinguishing  between
respiration and artificial inflation, the two first are the most
to  be relied on.
   From the  preceding examination of  objections  to the
hydrostatic test,  I think  that  we  may safely come  to the
following conclusions:

  * Transactions of the Provincial Medical and Surgical Association, vol. 2,
p. 437.
  X Duncan's Medical Commentaries, vol. 1, p. 245.  American edition. 
470
INFANTICIDE.
  1. That when the \nngs fioat in water, it must be from one
of four causes : natural respiration—putrefaction—emphy-
sema—the artificial introduction of air.
  2. As the lungs may float from other causes besides res-
piration, their mere floating is no proof that the  child has
respired.
  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
respired.

Objections to the Hydrostatic test, on the ground that the lungs
     may sink in water, and yet the child have respired.
  Obj. 1.  It may be  objected that although the child has
breathed, yet the lungs, in consequence of disease, may have
their specific gravity  so increased as to make them sink  in
water.
  This objection has been deduced chiefly from analogy.   It
is a fact well established,  that in consequence of various
inflammatory and  congestive diseases, the lungs of adults
may become so morbidly changed as to sink in water, and
hence it has been  inferred  that the same might occur in the
new-born child.  To  render this objection valid, it must be
taken for granted that such  diseases had already commenced
in the foetus antecedently to birth.   Now, although the foetus
may be thus affected, yet the cases in which this occurs must
be exceedingly rare, and for the obvious reason that it is not
exposed to the influence of the causes which ordinarily pro-
duce  these  diseases.  Haller, notwithstanding his  great
experience and extensive learning, relates no instance of  it,
and expressly asserts, that they are very rarely found in the
foetal state.   " In adulto homine aliquando, in fetu rarissime,
ut pulmo calculis, schirris,  aliave materie,  morbose  gravis
in aqua subsideat, etsiquam  respiraverit."*  Brendel  in
* Element. Physiologiae, vol. 3, p. 281. 
INFANTICIDE.
471
speaking on  this subject,  relates only a single case of an
abortive foetus which had schirrous lungs, and considers it a
singular  occurrence.*   Billard, notwithstanding his exten-
sive observations on this subject, relates only three cases of
new-born infants, in whom there  was  reason to  suppose
that inflammation of the lungs commenced previous to birth.
  I shall only add, in confirmation on this point, the opinion
of Dr. Duncan, Jr., the accomplished editor of the Edin-
burgh Medical and  Surgical Journal.   " Unquestionably, a
piece of inflamed lung will sink in water like  a  piece of
liver, 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
fact, that any portion of lungs  which have breathed, will
ever be  rendered  specifically heavier than water,  by the
mere settling of the blood in the lower portions after death."!
  Rare,  however, as these  cases are, it must be admitted
that the  lungs of new-born infants  may occasionally be so
congested or diseased, that they will sink in water, notwith-
standing respiration may have taken place.   In these cases,
the modes of determining whether respiration  has  actually
taken place or not are the following :
   In  the first  place, where  the  lungs are  simply engorged
with blood, they may be made to float  by depriving them of
their  superabundance of blood.   This may be accomplished
by making incisions into the lungs and then subjecting them
to pressure, or by leaving them for a certain time immersed
in water.  In either of these ways they will be made to float.
In  foetal lungs, on the contrary, no pressure or immersion
in water will ever produce this effect.
   In  the second place, where actual disease of the lungs has
taken place, although these organs, when  entire, may sink,
yet when divided into a number of pieces, some of them will
be found to float.   Fodere states, as the result of numerous
experiments made  upon diseased lungs, that although they

  * Medicina Legalis, p. 10.
  t Edinburgh Medical and Surgical Journal, vol. 12, pp. 79, 80 
472
INFANTICIDE.
 sank in water when entire, yet when cut into pieces he inva-
 riably found some of the fragments to float.*
   Besides the foregoing, there is another circumstance of
 importance to aid in obviating any difficulty in this case.  If
 the  lungs are so diseased as  to  render them specifically
 heavier than water, the cause  of this will be at once evident
 on a suitable examination of these organs.
   Obj. 2. It has been objected that a child may have actually
 breathed, but yet so imperfectly, that  the lungs shall not
 have received air sufficient to make them float.
   In support of this objection, facts of a very pointed na-
 ture have been adduced.  Heister relates the  case of a very
 feeble- infant, whose lungs sunk  in water, though it lived
 nine hours after birth.!  And a  late  writer on infanticide
 states,  that he had been informed by a physician to the
 Foundling  Hospital at  Naples, who  opened daily, on  an
 average, the bodies of ten or twelve infants, which had gen-
 erally 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 on  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
 contain air, and this will float.  In cases of this  kind, addi-
 tional evidence of respiration may frequently be obtained by
 the application of the static test, and by examining the state
 of the ductus arteriosus  and of the umbilical  cord.
  From the foregoing it may, therefore, be concluded,
  1. That when  the lungs sink in water it must be from one
 or other of  the following causes:  the total want of respira-

  * Fodere, vol. 4, p. 487.
  t Morgagni's Works, vol. 1, epist. 19, p. 536.
  X A Dissertation on Infanticide, in its relations to Physiology and Juris-
prudence, by Dr. Hutchinson, M. D., 1820. 
INFANTICIDE.
473
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
absence of  respiration,  their mere  sinking is no  decisive
proof that the child has not respired.
  3.  As, however, the sinking from  the want of respiration
may be distinguished from that which is the result of  other
causes, it follows,
  4.  That with due precautions, the sinking of the lungs is
a safe test that the child has not respired.
   From the preceding discussion, although it seems that the
general  conclusion  is decidedly  in favor of the accuracy of
the  hydrostatic test, yet nothing can be  plainer  than the
necessity of an extensive acquaintance with the subject, to
enable the  professional witness  to make a just application
of it.  From what has  already been stated, it must be evi-
dent that the hydrostatic  test does  not  consist  merely in
putting the   lungs in water to ascertain  whether  they  are
specifically  lighter or heavier than that fluid.   The test thus
applied would lead to innumerable errors.   On this account,
therefore, it is necessary to present a summary of  the mode
in which it is to be used.

            Mode of applying the  Hydrostatic test.
   {a.) Having opened the chest and noticed the position,
 color, volume, &c„  of the lungs, they are to be taken out,
 in the manner to be noticed hereafter, when I come to  speak
 of the mode of conducting dissections.  The lungs are then
 to be specially examined to see  if there be any appearance
 of disease  or of putrefaction,  or of any  thing  unnatural
 about them, and whether they crepitate on pressure.
   {b.) A convenient vessel containing water, is  now to be
 provided,  and particular attention should be paid  to  the
 temperature of the water, in which the lungs  are to  be im-
 mersed.  The reason of this will be perfectly obvious, when
 it is recollected that the specific  gravity of water  varies
 with its temperature ;  thus, for instance,  water  at 100° is
 lighter than water at 60°,  and still lighter than at 40°. 
474
INFANTICIDE.
Besides, if the water be too hot, it will have the effect of ex-
panding the lungs, and thus favor their floating, especially
when there already exists a tendency to putrefaction.  If,
on the contrary, its temperature be  too  low,  the  air cells
maybe 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.
  (c.)  The lungs, with the heart attached,  should then  be
cautiously  placed in water,  and it should  be  observed
whether they float or sink: if they float,  whether above the
surface of the water, or just under it; if  they sink, whether
they do so rapidly or gradually.
  {d.)  The lungs are then to be separated from the heart and
accurately weighed, after which  they should be replaced  in
the water to see whether they  sink or  float, and in what
way.   If one lung floats, observe whether it be the right or
the left.  The  lungs should now be subjected  to  suitable
pressure, to see whether  after this they will sink or float.
  (e.)  Each lung should now be cut into a number of small
pieces, and in doing so it should be  observed whether there
be any crepitation, whether they are  gorged with blood, and
whether there  be  any  traces  of disease.  Each section is
then to be put into the water.  If any or all of them float,
they are to  be taken out and subjected to proper  pressure,
and then  replaced in the water  to determine whether after
this they sink or float.
  Having gone  through  these different processes, the con-
clusions to be drawn from them are  evident.  If the lungs,
with the heart attached and separated from it, float  in water;
if, wThen cut into pieces, each fragment floats; and if this
floating be  proved not to be owing to putrefaction or arti-
ficial   inflation,  then the proof is  strong,  that the  infant
enjoyed perfect respiration.  If only the right lung or its
pieces float, the respiration has been less perfect.   If some
pieces of either  lung only float, while the  greater number 
INFANTICIDE.
475
sink, it proves respiration to have been still less complete.
On  the other hand, if the entire lungs and every section of
them  sink in water, the inference is, that the  child never
respired.
II.  Proofs of the child having respired, drawn from circulating
                         organs.
  There  are  two  things  in connection with  this  which
require investigation viz:  the character of the  blood itself,
and the condition of the heart and vessels circulating the blood.
  {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 foetus.
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 ap-
pearance,  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 fre-
 quently dissected human foetuses who died in the womb, and
 found the same uniformity in the  arterial  and venous blood.
 From these facts, he concludes, that no  difference exists
 between  the arterial and venous blood of the foetus, at least
 in  external appearance.  Velpeau and Autenreith, as the
 result of their  experiments and  observations,  confirm this
 statement.  By other observers this  is  positively contra-
 dicted ; 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 vessels, when on puncturing
 them, he found there was a difference between  the blood in
 the veins and the arteries.*  A simpler mode of performing
   * Physiology of the Foetus, Liver, and Spleen, by George C. Holland, M
 D.,p. 104. 
476
INFANTICIDE.
this experiment, suggested by Mr. Carr of Sheffield, is the
following:  As soon as the child is born and the cord divi-
ded, take the placental portion of it, around  the  end of
which a ligature has been previously applied, and cut it two
or three inches from the ligature with a sharp scalpel, so as
to make an even surface.  If the portion of cord  be now
pressed from below 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 between the
two is so striking that no one can  fail  to observe it."*   In
relation to this  experiment,  it is to be remarked, that to
render it of any  force in  controverting the observations of
Bichat,  it  ought  to be made upon  the still-born child, in
whom respiration has never taken place.   Performed upon
the child which has been born alive and breathed, the differ-
ence  between 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  coagu-
late 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 ob-
served by Fourcroy,! and has since been confirmed by other
observers.
   The effect of exposing the fcetal blood to the action of the at-
mosphere.   In the experiments made by  Fourcroy, the co-
agulum, of a brown red, exposed to the atmosphere, did not
become  florid in the same manner as that of the adult. There
were, however, filaments of a red colour  running over the
brown mass,! giving  if a veined  appearance.   By  others,
this  is  controverted;  and Dr. Blundell states that it can

 * Physiology of the Foetus, &c. by  George C. Holland, M. D., p. 154.
 t Annales de Chimie, torn. 7, p. 162.
 % Annales de Chimie, torn. 7, p. 16. 
INFANTICIDE.
477
easily be proved that the  blood of the  fcetus does become
florid, by taking it from the umbilical vessels, and setting it
aside, exposed in a cup to the action of the atmosphere. In
a very short  time, he says, it will be found to undergo a
change to a bright red colour; and if the clot be cut verti-
cally in two,* the contrast  between the  exposed and unex-
posed  parts will be very striking.   Here too the same re-
mark is applicable, that was made in relation to the experi-
ments of Drs. Jeffrey and Carr.  The blood which is exposed
ought  to be that of the foetus which has not  respired.  The
blood taken from the umbilical  vessels in ordinary cases of
delivery, where the child is born alive, and has breathed, is
not foetal blood.  Whether this  precaution was  observed by
Dr. Blundell, does not appear from his statement.
   Chemical composition of fcetal blood.  On this subject, I
believe we have nothing but the analysis of Fourcroy.  As
the result of this, there would seem to be a real difference
between the composition of foetal and adult blood.  Accord-
ing to him, the points of difference  are  the following:—1.
In the fcetus the colouring matter is darker, and the blood
is not  so susceptible  of taking  the  brilliant red  shade, on
exposure to the atmosphere.   2.  It  contains no  fibrous
matter;   the thickened  and coagulated  matter which is
found  in its place, resembles more gelatinous  matter.  3.
It does not contain any phosphoric acid.!
   According to the observations of Fourcroy, Tiedemann and
others, it would appear, also, that  the proportion of serum
in foetal blood  is much larger than in adult blood.!
   In addition  to the  foregoing, the microscopical 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

  * Blundell, in Lancet, for 1828, p. 130.
  t Annales de Chimie, torn. 7, p. 165.   J Velpeau's Midwifery, p. 218.
  § Velpeau's Midwifery,  p. 219;  Bostock's Physiology, vol. 2, p. 158, Am,
edition.  See Blundell's Midwifery, p. 74. 
478
INFANTICIDE.
to show that there are some interesting points of difference
between the blood before and after respiration has been es-
tablished, are  yet, I fear, of too delicate a nature to be ren-
dered practically available in a question of so grave import
as that of Infanticide.
  2.  The condition of the heart  and blood-vessels.  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 fcetus, which are modi-
fied or entirely lost after  the child is born, and  respiration
is established.   These peculiarities, therefore, require to be
specially noticed.   They are the foramen  ovale; the  ductus
arteriosus; the  ductus venosus; the umbilical vessels, and  the
cord.
  {a.) The foramen ovale.   This is an opening  situated  in
the septum which divides the right auricle  from the left, and
through it part of the blood is conveyed directly from the
right to the left auricle.  It  is nearly equal  in  size  to the
mouth of the inferior cava, and is supplied with a thin trans-
parent falciform valve, situated on the side of the left auri-
cle.  In  this  way the valve permits the flow of blood into
the left auricle, but  prevents its  return into  the right auri-
cle.  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 pulmo-
                               nary artery.
                             i. The circle which surrounds the fora-
                               men ovale, sometimes called the isth-
                               mus vieussenii, but more commonly
                               the  circuius foraminis ovalis.
                              m. The valve of the foramen ovale.
                              n. The aperture or opening in the fora-
                               men ovale.
                              o. The opening towards the ventricle.
 
INFANTICIDE.
479
                                  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,  with a blowpipe
                                  in it.
                                c c. The septum between the auri-
                                  cles laid open to display the fora-
                                  men ovale.
                                k k. The musculi pectinati, or mus-
                                  cular fibres of the auricle.
                                d. The circulus foraminis ovalis.
                                e. The valve of the foramen ovale.
                                i. The aperture of the valve, where
                                  the valve falls slack and opens.


  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
corresponds  to the space occupied in the foetus by the fora-
men ovale.*   In the foetal  state, and  anterior to respiration,
this foramen is always open;  and it  becomes closed 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  decisive
evidence of  the  child's  having been  born alive.  It is to be
recollected,  however,  that this closing  and obliteration of
the foramen  ovale is  a gradual process, taking sometimes
from two to  three weeks before it is completed.  Hence it
is obvious,  that however strong a proof its  closure may be
of previous  life, yet  its being open is  no evidence to the
contrary.  To render the  phenomena connected with  the
foramen  ovale  available in these cases, it was  suggested,
originally, I believe,  by Professor  Bernt  of Vienna, that
although the complete closure of the foramen  ovale  does
not take place  until some days after birth,  yet  that during
all this time it undergoes certain  changes, which distinctly

  * Bell's Anatomy, vol. 1, p. 396.  American edition.  See, also, Meckel's
Anatomy, vol. 2, p. 207. American edition, by Doane.
 
480
INFANTICIDE.
 mark the period  which has  elapsed after the birth of the
 child.   That  the  foramen ovale does  undergo  a series  of
 changes during the process of obliteration, was remarked  so
 early as 1750 by the English anatomist Ridley, and has
 since then been confirmed by the observations of anatomists
 and physiologists. These changes consist mainly in the posi-
 tion 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  respira-
 tion 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.*
 In  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 chan-
 ges 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 obvi-
 ous, that from the gradual manner in which  these changes
 take place, a great many cases must occur in which they can
 furnish no decisive evidence.  For instance, suppose  a child
 had taken only one or two inspirations,  sufficient to fill the
 lungs, and to  show that it had actually been  born alive, the
 change  in the position of the foramen  ovale would be so
 slight as to render it  altogether inappreciable.  Besides this,

  * " Infoetu, omnino non respirante, hiatus foraminis ovalis ad imam par-
 tem valvules 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, apertura istius foraminis e tramite suo pristino jam paululum dextrorsum
 deflexa conspicitur, inde sanguis e vena cava inferiori illuc appellens, cum
 sanguine e superiori vena  cava refluo, per  partem foraminis jam clausam
novo incepto circuitu decurrit:
  "3. In infante  plures septimanas nato, apertura foraminis, adhuc altius
cum valvula dextrorsum suspensa deprehenditur :
  " 4. In adulto,  demum foramen cum sua apertura et valvula plane inyer-
sum apparet, adeoque ejus apertura supra tuberculi Loweri marginem infe-
riorem penitus se  recondit, cum valvula eadem transitu temporis, ni impedi-
mentum intercurrat; firmiter adhsesura."  (Experimentorum Docimasiam
Pulmonum Hydrostaticam Illustrantium. Centurise  i. Sectio ii. Curante Jo-
sepho Bernt. Prefatio, p. xii. Viennse,  1824.) 
INFANTICIDE.                    481
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 observations upon the
foetus.   In  the  hands of the  generality  of physicians, it
might lead  to numerous and unavoidable errors.  In addition
to  all this, the very observations  made  by Bernt  himself
prove that  the  changes in the foramen ovale  do not take
place so uniformly and certainly, as to render it safe to draw
any positive conclusion from them.  On these various ac-
counts, I must confess that I do not attach the same impor-
tance to this test as is done by Professor Bernt.
  {b) The ductus arteriosus.  This  is a vessel which  passes
directly from the pulmonary artery, and enters the aorta just
below its arch.   It is a vessel of  considerable  size, being
somewhat larger than the aorta itself in the fcetus.  It con-
veys a large portion  of the blood sent into the trunk of the
pulmonary artery, directly into the aorta.

                              d. d. 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 arteri-
                                 osus.

                                 In this sketch, the ductus arteriosus
                              is  unnaturally separated from the
                              aorta by pulling it down, and thus
                              leaving the space (a) between them.

  In the foetus, the ductus arteriosus will be found open and
filled with blood.  After birth, it becomes gradually obliter-
ated and the duct itself  becomes eventually changed into a

                     31
 
482
INFANTICIDE.
ligament.*   If, therefore, in any case, this duct  is found
permanently closed, it is a proof that the child has been
born  alive, and enjoyed life for a longer or shorter period.
As, however, its closure does not take  place sometimes till
two  or three weeks after birth, its  being found open is no
proof that the child was born  dead.   By  Professor Bernt,
however, it is  urged, that, as in the foramen ovale, a  suc-
cession 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.  These changes are the following:
   State of the ductus arteriosus in the mature fcetus before res-
piration.  Its shape is cylindrical—its  length nearly half an
inch—its diameter is equal to that of the main trunk of the
pulmonary  artery  and more than  double the  size  of the
branches of that artery, each of which is  equal to a crow
quill.
   In  a child which has respired a few  moments.  The  duct
loses its cylindrical  shape—the  part towards the  aorta
becomes contracted, and the whole  duct assumes the shape
of a truncated cone, the base of which is towards the pulmon-
ary artery, and the apex towards the aorta;  sometimes the
contrary is observed.
   In a child which has lived for several hours or for a day.  It
now recovers its cylindrical shape but is greatly diminished
both  in  length and diameter.  It is now not larger  than  a
goose quill—much less than  the main trunk of the pulmonary
artery and not more than equal to each of its branches.
   In a child which has lived for  some days or a week.  The
duct will now be found wrinkled  and shortened to the length
of only a few  lines, while  its  diameter is not  larger than
that  of  a crow quill; at the same time the diameter of the

   * " 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 pulmonic artery." (Bell's Anatomy, vol. 1, p. 465.  Am. edition.)
   According to Meckel, the obliteration of the ductus arteriosus  leaves
behind it, " a round solid cord, a line thick and about four lines  long."
 (Meckel's Anatomy, vol. 2, p. 374.  Translated by A. S.  Doane, M. D.) 
INFANTICIDE.
483
branches of the pulmonary artery will be found increased to
that of a goose quill.   Finally, the  perfect closure of the
duct does not  take place  until  after  the lapse of several
weeks or months.*
  In relation to  the foregoing changes as  stated  by Prof.
Bernt, Orfila has reported  some observations, and of the
eight cases which he details, only four were found to con-
firm them.
  In  one  case, of  a mature  still-born  foetus, the ductus
arteriosus was found only half the size of the trunk  of the
pulmonary  artery; it was cylindrical, half an inch long, and
about  as large as  one  of the branches  of the  pulmonary
artery.
  In a second case, of a male foetus eight months  old, born
dead, the ductus arteriosus was cylindrical, not quite  half
the size of the trunk of the pulmonary artery; larger than the
right, and much larger than the left branch of that  artery.
  In a third case, of a mature female infant which had lived
five hours, the ductus arteriosus, so far from being  cylindri-
cal, 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
  * " 1. Si paucula momenta recens nati existiterint, aortam descendentem
versus sphoeroides, paulopost mutata figura  cylindracea, apparuTt comS
truncatus, basimcordi apicem aorta, desclndenti, aut contra, Xertens
    2. Siiplures horas diemve vitam retinuerint, denuo formam cylindraceam
astlongitudinem et  atitudinem imminutam, diametrum caulipenSans^
rime, adeoque diametro trunci arteriarum pulmonalium longe E?em et
ilk  arteriarum binarum pulmonalium fere yarem exhibiuit •    mmurem» ei
  "3 Si vitam ad plures dies septimanamve perduxerint, canalis iam rueosi
longitudo  ad lineas aliquot, crassities ad diametrum pennse corScLctlta
diameter vero arteriarum pulmonalium ad crassitudem caX ne^Tanseri:
nse  aucta conspicitur :                               i»euu<e dnben-
  " 4. Poenitus autem occlusus ductus hie multo serius et incerto hebdoma-
dum mensiumve numero deprehenditur."  (Experiment,™ iwD   . a
Pulmonum, &c.  Prarfatio, pp. 15, 16.)     W<™>ntorum Docimasiam 
484
INFANTICIDE.
than the right branch, but much larger than the left branch of
that artery*
  In four other cases of infants at full age, two of whom were
born dead, it was found that the changes in the ductus arte-
riosus corresponded with the statements of Professor Bernt.
  Very recently, Mr. Jennings of  England, has  reported
several  cases which tend  to support the  correctness of the
observations  of Bernt.   In  three  still-born children,  the
ductus arteriosus was found cylindrical, nearly as large as
the main  trunk of  the pulmonary artery, and  larger than
either of the branches.  In a fourth child which had breathed
freely  and died one  hour after birth, the ductus arteriosus
was conical,  with the apex towards the aorta, and smaller
than the pulmonary branches.
  In a fifth child, which was feeble and died soon after birth,
the duct was  conical, with  the apex towards the aorta, and
smaller than  the pulmonary branches.  The. sixth child, was
born with the breach presenting and in a state of asphyxia.
The lungs were inflated, and it cried, but died shortly after.
Here the duct was  found  conical  and considerably smaller
than the main pulmonary trunk.!
  The result of my observations  goes strongly to support
the accuracy  of these observations.  In six still-born child-
ren, I found the ductus arteriosus cylindrical in shape,  and
about the size of the main trunk of the pulmonary  artery,
and considerably larger than the branches of the pulmonary
artery—in some cases, double the size.   In a seventh still-
born child, I found it nearly of the size of the pulmonary
artery,  but not much larger  than its branches.   In a child
which had lived four days, the ductus arteriosus was cylin-
drical, three  lines  in length,  and  about the  size of a crow
quill, and not more than half the  size  of the  pulmonary
artery.  In a child  which had lived three  days, the ductus
arteriosus  was two and a half lines long and cylindrical;
about one-third the size of the pulmonary artery^ and some-
  *  Lecons de Medecine Legale, par M. Orfila, vol. 1, pp. 388, 389. Second
edition.
  t  Transactions of the Provincial Med. and Surg. Association, vol. 2, p
450. 
INFANTICIDE.
485
what smaller  than the branches of that artery.  In a child
which  lived forty-six hours, the ductus arteriosis was one-
fourth  of an inch long, cylindrical in  shape,  less than half
the size of the pulmonary artery and about equal  to the
branches of that artery.
  From the foregoing, therefore, I think we may safely con-
clude,   that although  the  changes in the  ductus arteriosus
consequent upon  respiration, are by no  means invariably
such as are reported by Prof. Bernt, yet they furnish corrobo-
rative  proof of great value.  As they are liable to exception
it is evident that they should never be taken except in con-
nexion with the other  signs indicative of respiration.
  (c.)  The  ductus venosus.   This  is  a vessel  lodged  in the
posterior  part of  the longitudinal  fissure of  the liver.   It
comes  off directly from  the umbilical vein, and opens with
the venae hepaticse 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.
a. The left lobe of the liver.        g. The umbilical vein.
b. The right lobe.                m m. The hepatic veins.
c. The lobulus spigelii.            n. The vena portse.
■d. The gall bladder.              o. The ductus venosus.
£. The vena cava inferior 
486
INFANTICIDE.
   In the foetus, anterior  to  respiration, the ductus venosus
 is always  found open.   After respiration is established  it
 gradually  contracts, becomes impervious, and is finally con-
 verted into a ligament.   The period at which it obliterates
 varies very much in different cases.  In twenty infants, who
 had lived three days,  it was found obliterated.*  Generally
 speaking,  this vessel is obliterated before the ductus arteri-
 osus or the foramen ovale.   The only inferences that can be
 drawn from the ductus venosus, are these : if it be oblitera-
 ted,  it is a proof that the child has lived and respired; on
 the contrary, as it remains open a day or two at least after
 birth, its being found  open  is no  proof that the child  was
 born dead.
   {d.) The umbilical vesesels.   These consist of  two arteries
 and a vein.  The former {the umbilical 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  umbilicus, through which they pass, forming with the
 vein, the umbilical cord.   These vessels  carry  the blood of
 the foetus  to the placenta.   The  latter (the umbilical vein,)
 carries the blood from the placenta to the foetus.  It enters
 the fcetus at the umbilicus, and goes upwards and backwards
 to the great fissure of  the liver.  After birth, these vessels
 become gradually obliterated, and converted into ligaments.
 The period at which this  obliteration takes  place, varies in
 different subjects.  It takes place, however, sooner than that
 of any other of the foetal openings.  In twenty cases of in-
 fants who died on the  third day, they were in all found obli-
 terated ; obliterated about the second day.   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 be-
 ing open is no proof that the child was born dead.
  With regard  to  the whole of  the changes which takes
 place in the  circulation after birth, M. Billard  has made a
number of exceedingly interesting and important observa-
tions, which deserve to be recorded.

  * Lecons de Medecine Legale, par M. Orfila, vol. 1, p. 384.   Second edit 
INFANTICIDE.
487
   Children of one day old.   In eighteen children of this age,
fourteen had the foramen ovale completely open; in two, its
obliteration 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 completely 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  almost obliterated ; and in  the remaining four entirely
closed.  In thirteen of the same children, the ductus arterio-
sus was open;  in six, the obliteration was commenced ; and
in three  it was complete.  In all  of the  twenty-two, the
umbilical arteries were obliterated to a greater or less extent.
The umbilical vein and ductus venosus, 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
obliteration had commenced ; and in the remaining  three it
was complete. In fifteen the ductus arteriosus was still free ;
in five, the obliteration  had commenced ; and in only two
was it complete.  These two were of the three which had the
foramen ovale closed.   In all the twenty-two, the umbilical
vessels and ductus venosus were empty, and even obliterated.
   Children of four days old.   In  twenty-seven infants of this
age, seventeen had the foramen ovale still open; and in six
of these  this opening was very  large and  distended* with a
great quantity of blgod; in eight, the obliteration was com-
menced,  and in  two  complete.  In seventeen, the  ductus
arteriosus was still open; in seven,  the  obliteration had

  * Traite des Maladies des Enfans, &c. par C. M. Billard, pp. 576-80. Also
Lecons de Medecine Legale, par 31. Orfila, vol. 1, p. 387.  Second edition. 
488
INFANTICIDE.
 commenced, and indeed consisted only of a very narrow
 passage; in the three remaining, the obliteration was com-
 plete.   The umbilical arteries were in almost all, obliterated
 near the umbilicus, but were yet capable of being dilated, near
 their insertion into the iliacs. The umbilicalvein and the duc-
 tus venosus were completely empty and very much contracted.
   Children of five days old.  In twenty-nine infants of this
 age, thirteen had the foramen ovale yet  open, although  the
 opening did not exist  in the same degree in all; (in four of
 them its  size was large, and in the nine others, moderate ;)
 in six, the obliteration was complete, and  in the remaining
 ten, almost complete.   In  fifteen of these twenty-nine, the
 ductus arteriosus was found open ; in ten of them very freely
 so, and in  the  other five the  obliteration was  very much
 advanced.  In seven, this  canal was completely  obliterated,
 while in the remaining seven it was nearly so.   In all, the
 umbilical vessels were completely obliterated.
   Children of eight days old.  In twenty children of this  age,
 the foramen ovale was completely closed in eleven; incom-
 pletely 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 remain-
 ing five were not examined.
   Children at more advanced ages.  In  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.*

  * 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 ar-
 teriosus were open.  The former was equal in size to the barrel  of a  goose
 quill, while the latter was equal to that of a crow quill.  From the age of
 three years till his death, he was incessantly harassed with paroxysms of
 difficult breathing, cough, and discoloration of the skin. These became more
and more frequent, and he eventually died of oedema and exhaustion.  (Ob-
servations on some of the most frequent and important Diseases of the Heart,
 &c, by Allan Burns, Lecturer on Anatomy and Surgery, p. 17, 1809.)
  Corvisart relates the case of a postilion who died at the age of forty-seven,
in consequence of local injuries which he received, in whom, on  dissection,
 the foramen ovale was found open, and more than an inch in diameter.   The 
                        INFANTICIDE.                    489

  {a.)  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, how-
ever, 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 supposed, however, that the successive
changes which  the cord undergoes from birth until  its final
separation, might  afford some indication, not merely of the
child's having been born alive, but also of the length of  time
during which it  had lived.   M. Billard was the first person
by whom these changes were properly investigated.   These
I shall briefly notice.  By the cord here, we mean that por-
tion of it which  is  between the  umbilicus  of  the child and
the ligature.  In the new-born infant, the cord is firm, round,
and of bluish color.  If the  child lives, the first  change
which it undergoes is that of withering.   The second is that
of desiccation or drying.  The third is the separation  of it,
and lastly, the cicatrization of the umbilicus.
   Withering of the cord.  This is the incipient stage of desic-
cation, and is indicated by the cord  becoming soft, flabby,
and very flexible.   It takes place at variable  periods, from
five hours to three days after birth.  Of  sixteen infants who
had the cord withered, one was  five  hours  old, six were a

ductus arteriosus was transformed into ligament. (An essay on the Organic
Diseases and Lesions of the Heart and Great Vessels, by J. N. Corvisart, p.
209.  American edition.)
  A  similar case is quoted by the same author from  Morgagni, of a girl
who died at the age of seventeen, in whom the foramen ovale was open, and
large enough to admit the little finger. (Ibid. p. 229.)
  By Dr. Perkins a case is related of a child eleven  months old, in whom, on
dissection, the foramen ovale and the ductus arteriosus were both found open.
(New York Medical and Physical Journal, vol. 2, p. 444.)
  By Dr. R. K. Hoffman, another case is recorded of a child who lived to the
age of nine months, and in whom, on dissection, the  foramen ovale was found
open.  (Ibid. vol. 6, p. 250.)
  Another case is recorded, in which the foramen ovale was found open in a
man who died at the age of sixty.  (American Journal of Medical Sciences,
vol. 15, p. 223.) 
490
INFANTICIDE.
day old, four were  two days old, and  four were  three days
old.
  Desiccation or drying of the cord.   The cord now becomes
dry and  flattened, and of a  brownish  red  color.  As  the
process advances, it becomes still more flattened, and assumes
a semi-transparent appearance.  The umbilical vessels now
become  contracted and  in  some  cases  obliterated.  This
process  usually commences on the first or second day after
birth,  and  is completed  on the third,  fourth, or fifth day.
The average period is about the third day.   Of twenty-five
infants, in whom the desiccation was complete, Billard found
one was one day old—one, a day and a half old—five, were
two days old—nine, three  days old—four,  four  days old—
five, five days old.
  By M. Billard, this desiccation is considered as a vital
process, and his reasons are, in the first place, that the portion
of cord beyond the ligature, or that which is attached  to the
placenta, does  not undergo this process  of desiccation—but
decomposes and purifies 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
ordinary putrefaction.  And in the second place, that the cord
ceases to desiccate as soon as  life ceases—that it does not
desiccate at all in the fcetus which is born dead—that  on the
dead subject the cord  undergoes a real  putrefaction, which
is altogether different from this desiccation.*
  * Traite des Maladies des Enfans, &c. par C. M. Billard, p. 16. New-York
Medical and Physical Journal, vol. 6, p. 303, 4.
  Billard states that in foetal subjects brought in for the purposes of dissec-
tion, he always observed, that they may be kept for several days without any
drying of the cord.  The cord even remains sufficiently soft and its vessels
sufficiently open to permit of their bemg injected.  During life, on the other
hand, the cord dessicates and the vessels become obliterated from the first,
second or third day.  For the purpose of testing these facts, he preserved a
number of dead bodies of children for several days.  The cord did not des-
siccate, 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
cordhere was not the least desiccated, and was only very soft.  (Billard, p. 21.)
  When the umbilical cord is left to undergo putrefaction, it becomes green-
ish white; after that it puckers at its extremity—the cuticle of the cord is
easily separated, although the cord itself does not separate from the abdomen,
as it does during life.  The cord can be torn in different places, and if it has
been in water for some time, it is  soft and very fragile. Billard has never 
INFANTICIDE.
491
   Separation or dropping off of the cord. The period at which
this takes place after birth,  varies very considerably.  In
sixteen children examined by Billard,  in whom the cord had
separated, three were two days old; three, three days old;
six were four days old; three were five days  old;  one,  six
days old; and one,  seven days  old.*  From the fourth to
the fifth day after birth, then, would appear to be the ordi-
nary period at which the cord falls off, although it sometimes
happens sooner, and sometimes later.   Generally, then,  the
cord withers during the first day, at the end of which desic-
cation commences;  desiccation is complete on the third day,
and between the fourth and  fifth day the cord drops off.  All
this, of  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.  Ante-
rior to the dropping off of the cord, there  is  observed a red
or inflammatory 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,  accord-
ing to the observations of Billard, it would seem to be more
commonly  absent.  Out  of  eighty-six children,  he found
only twenty-six who exhibited evident traces of this inflam-
matory circle.  Its  absence, therefore, is  by no means to
be looked upon as an evidence that the child was not born
alive.
   Cicatrization of the umbilicus.   This  is  the last  change
which these parts undergo;  and the period  at which it  takes
place, is from the tenth to the twelfth day after birth.

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 con-
siderable time.  According to the observations of M. Billard, putrefaction
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 abdo-
minal parietes have turned green, and the different organs are in a state of
decided decomposition.  (Billard, p. 23, 4.)
  * Billard, p. 26. 
492
INFANTICIDE.
III.  Proofs of the child having  respired, deduced from the ab-
                   dominal organs.
  The only organs from which any inferences here can be
drawn, are the liver, the intestines, and the bladder.
  1. The Liver.  It is a fact  well established, that in the
mature fcetus the liver is much larger than it is after respi-
ration has taken place.*   From the changes which occur
in the circulating system immediately upon the commence-
ment of the respiration, the cause of this must be obvious.
In the foetal state, the lungs have  but a  small  quantity of
blood circulating through them. As soon, however, as respi-
ration is established, the pulmonary organs hecome charged
with blood.  Hence, as already stated, their weight is so
greatly increased.  Now there is every reason to  believe,
that this new determination of blood to the lungs is  fol-
lowed by a loss of blood on the part of the liver.
  In addition to this, the supply of blood to the liver from
the umbilical vein  is now cut  off.  From these two causes
the quantity of blood going to  the liver must be greatly di-
minished, and hence it is, that this organ gradually diminishes
in size after birth.  From these facts  it appears to me that
the relative weight of the  liver, may  serve as a useful  test
to establish the fact of respiration having taken place, and
more especially to correct any fallacies  that might occur
from the test of Ploucquet.   To exemplify—if by the test of
Ploucquet it should be found  that  the  lungs had acquired
the weight of a child which had respired, while  the  liver
had  lost none of its foetal weight, then there might be ground
for supecting that the increase of weight in  the lungs was
owing to some other cause than respiration. If, on the other
hand, the liver had diminished in weight, while  the lungs
had  increased, this concurrence of the two tests would cer-
tainly add greatly to the force and  conclusiveness of the
testimony.

  * According to Meckel, the absolute weight and size of the liver diminishes
until  the end of the first year.  In five new born children he found the liver
one quarter heavier than in five other  children, from eight to ten months.
(Doane's Meckel, vol. 3, p. 309.) 
INFANTICIDE.
493
  By  no  writer on forensic medicine, that has ever 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.*

  2.  The intestines.  In the foetal state these organs contain

a dark pitchy matter, called the meconium, which is evacua-

ted  shortly after  birth,  when  the child  is born  alive.  In

relation to  its precise nature, some difference of opinion has


  *  This was originally suggested twenty-five years ago.  Since then, I find
this subject has attracted the attention of foreign writers.  Professor Bernt,
of Vienna, has more especially noticed it; and in his Centuria Experimento-
rum, 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 fol-
lowing results:
Dead before or after birth.	Weight of the body.	Wei	ght of the liver.	Proportion be-tween weight of the liver and body.
	lb. oz. dr. 6 2 0 5 0 0 5 6 0 5 13 4 6 0 0 6 2 2| 4 12 0 5 14 4 5 15 4 5 13 4 4 6 0 5 7 0 5 4 0 5 8 4 4 12 4 5 0 4 4 15 0 5 13 4 5 4 0 6 8 6 7 11 0 5 10 4	oz. 4 4 5 4 6 5 4 4 5 3 3 5 4 4 3 8 4 4 3 6 9 5	dr. gr. 0 70 2 46 1 15 3 48 0 60 5 70 0 11 6 24 6 18 1 52 6 18 0 2 2 34 5 52 3 60 1 13i 0 11 3 13 4 33 2 71 4 61 6 35	24
do.......................				18
do.......................				19
do.......................				21
do.......................				154 17
do.......................				
				19
				20 164 29
				
				19
				164 194 18s
				
				
Respiration perfectly established,.. do. do. do. do. do. do. do. do. do. do. do. do. do. do.				22 10 194 21 234 164 13 154
  These results, according to Orfila, show conclusively, 1. That the weight of
the liver was much  more considerable in many infants in whom respiration
had been completely established, than in those who were still-born.  2. That
the proportion between the weight of the body and that of the liver, was often
much less in those cases where respiration had been completely established,
than in those who  had not  respired; which ought to be  just the reverse,
according to this test.   (Leeons de Medecine Legale, par M. Orfila. Vol. 1,
p. 393-4.  Second edition.) 
494
INFANTICIDE.
existed.   The opinion, however, which seems most plausi-
ble, considers it to be the bile collected in the foetal liver,
and which is propelled from  that  organ into the intestinal
canal, by the compression which  the liver necessarily sus-
tains  as soon as respiration commences.*  The  same com-
pression afterwards expels it from the intestinal canal.  The
connexion, therefore, between respiration and the discharge
of the meconium, is perfectly plain.  The period at which
the meconium  is discharged is by  no means uniform.   In
some cases it takes place immediately after  birth, while in
others it is  delayed for several  hours.  If, therefore, the
meconium be found evacuated, it offers a presumption in
favor of the child having been born alive, while at the same
time it is evident that  a child may be born alive, and yet die
before it is discharged.
   3.  The bladder.   Anterior to birth it has been ascertained
that  the  bladder contains a considerable quantity of urine.
At variable periods after birth this is discharged.   If, there-
fore, on  examination,  it should  be found empty,  the pre-
sumption 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 is liable to many
exceptions, and should not, therefore, be infallibly relied on.
It is  not impossible that under certain circumstances, a child
may  void its urine before  birth, and on the other hand,  a
child born alive, may  die before it has performed that func-
tion.

 General inferences deduced from the preceding examination of
   the respiratory organs—the circulation—and the abdominal
   organs.
   I.  The conclusion may be drawn that the child has respired
perfectly, if the thorax be well arched—if the volume of the
 lungs be large, filling  up the  cavity of the chest—if  they
 cover the diaphragm and nearly the whole  of the  pericar-

   * Bryce on the Foetal Liver.  Edinburgh Medical and Surgical Journal.
 Blumenbach's Physiology, p. 359, American Edition. 
INFANTICIDE.
495
dium—if they are soft and spongy—if their color be bright
red or scarlet—if on pressure, or being cut into, they crepi-
tate—if they weigh  one thousand  grains  or upwards—if
their weight compared with the weight of  tbe body be  as
one to forty—if they float in water  with the  heart attached
to them, and when cut into pieces each fragment floats, and
if this floating be proved not to be owing to putrefaction or
artificial inflation—and finally, if the meconium be evacua-
ted—if the ductus arteriosus be conical in its shape,  or
greatly diminished in size.
   II. It may be inferred that the  child has only respired im-
perfectly, if the lungs  only  partially cover the diaphragm
and the sides of the pericardium—if they present here and
there streaks of scarlet intermixed  with brownish red, and
this especially in the right lung—if the  scarlet portions
crepitate and the  brownish  red  are dense—if portions only
of the  lungs float in water, and if this be not  owing to
putrefaction or artificial inflation, and finally, if the ductus
arteriosus  has assumed the conical shape.  It is scarcely
necessary  to  suggest  that  where the signs  give evidence
only  of imperfect respiration, the greatest caution  should be
exercised  in  making  up an opinion.   Where the  signs are
so indistinct as to leave the question doubtful, the medical
witness should not hesitate to say so.
   III. If in addition  to the signs  of respiration, whether
 perfect or imperfect, as just mentioned (in  I. and  II.) the
 umbilical  cord be found desiccated,  the inference may be
 drawn that respiration has been continued at least for several
 hours, and generally from one to two  days.
    IV. If the ductus arteriosus, the foramen  ovale, and  the
 ductus venosus be obliterated, and if the umbilical cord be
 separated, the conclusion is certain, not  merely that  the
 child was born alive3 but that it lived for a  time, sufficient
 for these vital changes to take place.
    V.  It may be inferred that the child has  not respired, if
 the thorax  be flat—if the  lungs occupy only the superior
 and posterior parts of the chest—if  they are small in volume,
 leaving uncovered the diaphragm and the sides of the peri- 
496
INFANTICIDE.
cardium—if the diaphragm be much arched—if the texture
of the lungs be dense—if their color be dark brown, resem-
bling that of the liver of the adult—if on pressure, or being
cut into, they do not crepitate—if their weight be under six
hundred grains—if their weight compared with that of the
body be not more than one to forty-seven—if the entire lungs,
as well as every fragment, when cut into  pieces, sink rapid-
ly in water, and if this sinking be not owing to engorgement
or disease—and finally, if the ductus arteriosus be cylindri-
cal and nearly of the  size of the trunk of the pulmonary
artery, and  if the cord be round and firm.
   I have now gone through the consideration of the various
proofs of a child having respired, and it is from these that
we infer that a child was born alive.  To all  this, however,
a capital objection remains to be considered.   A child, it is
urged, may respire during the  birth and yet may die before it
is fully born.   In this case the proofs of respiration may be
present, and yet the child may not have been born alive.
This is undoubtedly a most formidable objection, as its di-.
rect tendency is  to  render all the  evidences of respiration
invalid as proofs of live birth.   It is an objection, too, which
may be started in every trial for Infanticide.   It requires,
therefore, to be  fully investigated.*   The  objection  may
present itself in two different shapes, each of which I  shall
examine.
   1.  It may be objected, that "a child will very commonly
breathe as  soon as its mouth is born, or protruded from its
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."f
   This objection did not originate with Dr. Hunter.   It  is
noticed by Morgagni, and I find it discussed by the German
  * In previous editions of this work I have considered this objection  under
the head of the hydrostatic test.  As it is, however, as much an objection
against almost all the signs of respiration as it is against the hydrostatic test,
and as, indeed, it goes to nullify respiration itself, as a proof of live birth, it
is more properly to be considered as a distinct question.
  t Dr. William Hunter, in the Medical  Obs. and Inq. of London, vol. 6, p.
287. 
INFANTICIDE.
497
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 pos-
sessed, and it is on this account more especially deserving of
examination.    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?
   Both these must be answered affirmatively to  render the
objection of  any force.  The mere fact of a child's breath-
ing in this situation amounts to nothing, unless it be followed
by its death.   It must both  breathe and die before  it is
born, to make good the objection.
   Although it be denied by some very respectable authors,
that  a child can perform the act of respiration when merely
its head is born, yet the fact rests upon evidence too sub-
stantial 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.  Osian-
der informs us, that he has witnessed twelve cases in which
the child breathed and cried as soon as the head  was born.|
Another  case of more  recent occurrence is related by Dr.
Ward, an American physician.  Here,  after the head was
delivered, the pains ceased, and the child began to cry.   In
a short time,  however, the pains were renewed, and the child
delivered alive and without  any difficulty.^  By Dr. Scott
of Cupar-Fife, another instance of the same kind is recorded.||
   It must therefore be conceded, that a child may breathe
and  cry  as  soon as  its head is  delivered,  although  it is

  * Manuel D'Autopsie Cadaverique, &c. p. 140.    f Capuron, p. 405
  X New-York Medical and Physical Journal, vol. 1, p. 372.
  § The American Journal of Medical Sciences, vol. 11, p. 546.
  || Edinburgh Medical and Surgical Journal, vol. 26, p. 68.
             32 
498
INFANTICIDE.
equally true, that  it is by no means a common occurrence.
Admitting,  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?  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.  Capu-
ron who is  sufficiently  sceptical on this  subject, contents
himself with recording the case already alluded to, in which
the child was safely delivered.  Even Osiander, with all his
extensive experience, does not present us  with a single one
of this  kind.  In  point of  fact, therefore,  there is  no in-
stance recorded, so far as  my  knowledge extends, in which
a  child has actually expired under these circumstances.*
  * Since penning the above, I have received the following note from Dr.
Hosack, communicating the particulars of a highly interesting case, in which
a child actually died while in this situation:

                                       JVew- 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 commence-
ment of her labor proceeded with the usual symptoms  that she had experi-
enced upon former occasions,  excepting that she suffered more severely
from her pains, doubtless attributable to the child being larger than those
she had borne in her preceding labors.
  Being absent from home when sent for, another physician was called upon.
We both  arrived nearly at the same time. The child's head was born.  It had
been in that situation, without making any advance, for some minutes.  The
child had cried, and was yet living when I arrived.  The pains were very
active, but one of the shoulders was so firmly wedged above the pubes, that
with all our exertions we could not release the child in time to preserve it
alive.  It was still-born; and I need scarcely add, that upon examining the
child, besides its extraordinary size, an unusual breadth of shoulders was
found to  exist, to which circumstance doubtless the detention in the passage
through the pelvis was to be ascribed. 
INFANTICIDE.
499
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. Pressure on the  umbilical cord, interrupting the

foetal circulation.  3.  Cessation of labour pains.   4.  Unu-

sual  shortness of the  umbilical  cord.   5. A preternatural

enlargement  of the  body of the  child.   6.  A tumour upon

some part of the body of the child, mechanically interrupt-

ing parturition.   I shall very briefly examine each of these

in their order.

   That natural debility on the part of the child could not oc-

casion it, seems to be proved by  the very  fact of respiration

having taken place;  for the  exercise of that function  so

prematurely, necessarily implies a degree of vigor inconsis-

tent 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,

  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 conside-
ration of writers on legal medicine.  As such I communicate it.
                                     I am, very truly yours,
  John B. Beck. M. D.                                D. Hosack.

  In addition to the particulars stated by Dr. Hosack, he informed me, that
judging from the size of the shoulders, he believes it would have been impos-
sible for the child to have been extricated from its situation, without the aid
of manual assistance. In a case of this kind, therefore, no difficulty could
ever arise in coming to a correct decision.
  Still more recently two other cases of a similar character, are recorded by
Dr. Campbell, which I shall give in his own words.  " In the one, it was the
woman's first child,  and was attended  by Mr. John McCandie, one of my
pupils, now a practitioner in Tain, whom I accompanied, from the labor hav-
ing been tedious. When the head was born,  we both distinctly heard the
infant cry.  About five or seven minutes might have elapsed before the shoul-
ders 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 conse-
quence of the size of the shoulders, at least seven minutes elapsed before
they could be disengaged, and the child was lost."  (Campbell's Midwiferv
p. 150.)                                                  .    J'
  It is to be regretted that in all these cases, experiments were not instituted
with the view of ascertaining the state of the lungs,  especially as it regards
their weight, specific gravity, &c. 
500
INFANTICIDE.
that when this cause proves detrimental, it must be anterior
to respiration, and when as yet the life of the child depends
wholly upon the 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 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 situa-
tion 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 is vigorous, but also that its  thorax
and body are not so closely compressed by the parts of the
mother  as to endanger its life.  Hence a child, under these
circumstances, may  be detained a considerable length  of
time, without jeopardizing its existence.
   Unusual shortness of the cord.  Cases of this kind 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
especially of the shoulders, may prevent the delivery of the
child, even after the birth of the head.  That a child might
die from  this cause, is not disputed; but the very  fact of
its shoulders and chest being so large as to prevent delivery,
shows how difficult it would  be for it to  respire.  If, how-
ever, it  did actually respire, then  the  hazard of  a long
detention in this situation, would, by this very circumstance,
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
sour.ce.
   A tumour on the body of the child.   This, of course, must
be a  very rare occurrence, and can never lead to any false 
INFANTICIDE.
501
decisions.  I mention it merely because a case of this kind
is recorded, in which " the head of the child was protruded,
and  the expulsion  of the body for a considerable  time
prevented, in consequence of a large excrescence on the
left breast of the child.  During this interval, which was
about half an hour,  the child frequently cried so  loud  as to
be heard  by the attendants."*   It does not, however, ap-
pear, 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 considering, it proves, in the
most pointed and satisfactory manner, how  little danger
attends the  child in this  situation, when it enjoys the
benefit  of respiration.  Besides, it  should be recollected,
that in all cases where delivery is prevented in consequence
of the unnatural size of the parts about the shoulders, &c,
the assistance of a physician, or at least of a second person,
becomes necessary.   A witness, therefore, will  always be
at  hand, to remove  every ambiguity  which may surround
them.
  From the  foregoing discussion, it may, therefore,  fairly
be 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 we should  " attend to the head, examining that the
membranes do not cover the mouth, but that the child be en-
abled  to  breathe, should the circulation in  the  cord be
obstructed.  There is no danger in delay, and rashly pulling
away the  child is apt to produce flooding, and  other danger-
ous  accidents."  In another place he says, " some children
die, owing to  the head being born covered with the  mem-
branes, some time before the body.  This is the consequence
of inattention;  for if the membranes be removed from the

 * Mahon's Essay  on Infanticide, translated by Christopher  Johnson, of
Lancaster.  See note by Mr. Johnson, p. 25. 
502
INFANTICIDE.
face, there is no risk of the child."*   Denman also remarks,
that "it was formerly supposed necessary for the practition-
er to  extract the  body of the child immediately after the
expulsion of the head, lest  it should be destroyed by con-
finement in this untoward position.   But  experience  has
not only proved that the child is not, on that account, in any
particular danger, but that it is really safer and better, both for
the mother and  child,  to  wait for  the return of pains,  by
which  it  will soon be expelled;  and  a  more favorable
exclusion  of  the  placenta  will  also, by this  means,  be
obtained."!
   On a review of the whole of this subject, it results, that
a child may occasionally breathe  as soon  as  its head is de-
livered—that the very  fact of its breathing in this situation,
gives  it the best possible chance  of being  born  alive—and
finally, if  it should  even die, the  cause  of  its  death will
generally  be evident upon a mere examination of the body
of the infant.
   2.  There is another  shape in  which this objection may
present itself, and this is, that a child may respire while yet
in the womb, and before it is born may die.
   With regard to the  occurrence of respiration  in a child
while yet in the womb and before the  rupture of the mem-
branes,  the thing  seems to  me physically impossible, and
there is no evidence which can  satisfy  me  that it  has ever
taken place.t   This cannot be  looked upon  in the light of

  * Principles of Midwifery, pp. 246, 376.
  t Introduction to the Practice of Midwifery, p. 289.   See,  also, Dewees'
Midwifery, p. 194.  Merriman's Synopsis, p. 205.  Hamilton on Female Com-
plaints, p. 155.
  X Nevertheless, cases of this kind are said to have occurred, and have been
gravely published to the world.  In the 26th vol. of the Transactions of the
Royal Society of London, Mr. Derham gives an account of a child who cried
almost daily for five weeks before delivery!  Another case is detailed in the
73d No. of the Edinburgh Medical and Surgical Journal, by Dr. Zitterland
of |Strasburgh, in Prussia.  In this instance, the child is said to have been
rather more civil than in the case of Mr. Derham, and began  to cry only
forty-eight hours before it was born! The most respectable writers, how-
ever, on Medical Jurisprudence, deny the possibility of the occurrence, and
ridicule the instances of it which are upon record.  Mahon, for example,
asb6, whether " the best possible authority is sufficient to establish so extra-
ordinary 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, 
INFANTICIDE.
503
an objection that requires any consideration.  When, how-

ever, the membranes are ruptured—the mouth of  the uterus

dilated,  and the head of the  child descends in such way  as

that  the  mouth  presents  so as to offer a ready communica-

tion between  it  and the external atmosphere, then imperfect

respiration may  take place, and in some cases has actually

done so.   The following cases,  recorded on  respectable au-

thority,  will  illustrate  this.  The first is  related by Prof.

Holms,  of  Montreal,  Canada :—" On the  29th of October,

1828,  I  was  called  to a lady in labor of her  sixth child.


and finds authority and proselytes.  On the report of a fact attested by cre-
dible witnesses, we may give our assent to whatever is not contradictory in
itself, but conviction is a much greater degree of assent,  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 triumphe,' in the belly of
its mother.   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,  pp. 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 positive a phenomenon which it is impossible to  reconcile
with the laws of physiology, the same  person should have ascertained its ex-
istence 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, I will  only add the following: " A medi-
cal practitioner, unable to superintend a  lingering case on midwifery under
the care of his apprentice, requested a professional friend to give  his occa-
sional advice;  the latter happening to call, found  the  young operator in
anxious  expectation of a second child,  one being born sometime before.   Cir-
cumstances, 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 Physical Journal, vol. 18, p. 550: vol
30, p. 224; vol. 33, p. 215.                                > r     >
  Philadelphia Journal  of Medical and Physical Sciences, new series, vol. 4,
p. 407.  American Journal  of Medical Sciences, vol. 4, t>. 248;  vol 8 n'
248; vol. 11, p. 546 ; vol. 14, p. 463.                    V            P'
  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. Geddincs
M. D., vol. 2, p.  445.                                              °  '
  Observations on Obstetric Auscultation, &c, by Evory Kennedv M D
p. 319.                                                      ■"   '  ''
  Intra-Uterine respiration in its relations to Physiology and Medical Juris
prudence.  By Prof. Gross, in the Western Medical G azette for July, 1834. 
504
INFANTICIDE.
The fontanelle presented, but the pelvis being capacious, and
her labors generally easy, no attempt  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 muffled 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 produc-
ed by flatus in the intestines of the  mother.   In the course of
a short time, however, the cries were repeated, and with the
greatest distinctness, so as not to admit  of a doubt that they
proceeded from the child.  The mother, much alarmed, in-
quired the cause of these noises, and required to  be assured
that they were not indicative of any  danger.   The pains
being brisk, the head was soon forced down and expelled.
The child was a female, and is still (August, 1829) alive and
thriving.  This case appears to me so curious, though easy
of explanation, when the position of  the mouth is consider-
ed, that I am induced to draw up this notice, not having
met with  anything similar  on record, and as it is entirely
different from the  incredible stories we have  of the foetus
emitting cries before the commencement of labor."*
  Another case, analogous  to this,  is still more  recently
related by Mr. Tomkins, an  English surgeon, which I shall
record in his own language :  " I was, some time since, called
to the wife of a blacksmith  at Preston, who was  in labor
with her tenth child.  I had attended her in  several former
confinements,  and  she had always  had quick deliveries,  as
the pelvis was unusually capacious, and her pains  were
active.  After I had been a few minutes in the room, I pro-
posed and made an examination, and found the face present-
ing, 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 peri-
* Edinbuigh Medical and Surgical Journal, vol. 33, p. 215. 
INFANTICIDE.
505
neum; 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 agi-
tation produced by this event upon the woman, whose pains
were suspended for  nearly an hour;  but I eventually suc-
ceeded, 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 expelled
alive and well,  at least one  hour after it had  respired and
cried in the womb."*
   Now,  in reply to the difficulties created by these cases,
the 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 pre-
sentations do happen, the occurrence  of respiration anterior
to delivery can  take place only under very peculiar  circum-
stances.  In  the two  cases detailed  above, it will be ob-
served, that  respiration occurred only in consequence of the
introduction  of  the finger of the  accoucheur into  the  child's
mouth.
   In the  second place, even supposing respiration to take
place, it must be very imperfect,  unless the child continued
to breathe after it was delivered, in which case, the objec-
tion would of course fall to the ground.
   In the  last place, if full  and complete respiration took
place under these circumstances,  (a case hardly supposable,
however,) this  fact would indicate,  most clearly, that the
passages  of the  mother were  so capacious  as to  offer no

  * Lancet for July, 1S34.
  f Edinburgh Medical and Surgical Journal, vol. 19, p. 469. 
506                      INFANTICIDE.
impediment to a prompt and safe delivery; and therefore no

question of  a  criminal nature could ever be raised.*

   From all that has been said, therefore, in relation to the

foregoing objection, in whatever shape it may present itself,

I think we  may fairly make the following inferences:

   1.  That  respiration anterior  to full birth is a rare occur-

rence.

   2.  That when it does  take place, it must be under circum-

stances which give  the child the best  possible  chance of

being born  alive.

   3.  That when a child  dies in this situation, the respiration

must necessarily be imperfect,  and  therefore it can create no

difficulty in cases, where the evidences of perfect respiration

are present.

   4.  That when a child dies in this situation, the respiration

must, as a matter of  course, be of  short duration, and there-

fore  it  can  present no  difficulty in cases where, from the


  * 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 Infan-
ticide,) for it takes place only under circumstances which render manual aid
necessary to complete the delivery.  Vaginal respiration is also so far simi-
larly circumstanced.  Respiration in the passages, as hitherto observed, takes
place only :  1, in  delivery by the feet,  when the whole body but the head is
protruded ; and 2, in natural delivery,  either when the head is expelled and
the body remains  in the passages; or 3, when, before the expulsion of the
head,  and after the rupture of the membranes, the hand is introduced to ac-
celerate tedious labor. 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 circumstances of the child being able to
breathe, shows that the constriction of the chest cannot be great; that the
labor must therefore be speedily completed, and that the child's life is secured
against the  ordinary accidents  which  occur after this period of the labor.
The third case  renders  it perhaps  possible, that in tedious labor, 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 labor must be tedious, and consequently is
not easily concealed.  It appears, therefore, that the possibility of respiration
before the close of labor, forms an objection to the employment of the hydro-
static test, only so far as it  may occur in tedious  natural labor.  Now, inde-
pendently of respiration being  exceedingly rare in such circumstances,  the
objection thus constituted is important only by preventing the inspector from
relying on the test in particular and known circumstances, not by being apt
to lead him into error; because the fact of the labor having been  tedious, may
always be ascertained by moral evidence.  This objection,  therefore, is not
of much consequence."  (Edinburgh Medical and Surgical Journal, vol. 20,
p. 372.) 
INFANTICIDE.
507
appearance of the umbilical cord, it is evident that respira-
tion has been continued for some time.
  Thus narrowed  down, the  objection can  only  present
itself, therefore, legitimately in  cases where the respiration
has been  imperfect and of short duration.   To the naked
difficulty then presented in all such cases I would make the
following reply.  Let it be recollected that the objection
takes it for granted that  respiration has already taken place.
Now, if a child which had breathed, should die before it is
fully born, no charge of  Infanticide could ever be sustained
unless it were  proved at the same time, that it died by vio-
lent means.  No criminal charge could be based on  the mere
fact of respiration or even full birth  having taken place.
On the other  hand, if it be proved that a child which had
breathed, has  come to  its end  by violent means,  the mere
question as to whether this violence was committed before or
after it was fully born, ought to  make no difference in  the
character  of the crime or the nature of the punishment.   If,
for example,  a child's  head was merely born, and it had
breathed, and  while in this state, a knife was thrust into the
fontanelle and its life thus taken away before it was fully
born, it appears to me that neither common sense nor justice
could  set up, as at all exculpatory, the distinction between
respiration  and live  birth.   The fact of respiration proves
that the child was alive at the time, while the injury inflicted
on the brain proves that it was  murdered.   The very condi-
tions of the objection,  therefore, appear to me to do away
with its force, in its application to cases of Infanticide,  and
this of course is the only connexion in which in the present
case it is to be viewed.
   I have dwelt  the more fully  upon this objection, because
it presents a real difficulty in all trials for Infanticide,  and
because some writers have, in my opinion, given it an undue
importance by the strenuous manner  in which they have
insisted upon  the distinction between  respiration  and live
birth.   Pushed to the  full extent to which  it is  urged, it
would in every case, defeat the ends of justice and nullify
every  investigation in cases of alleged  Infanticide. 
508                   INFANTICIDE.
  Quest. III.  If born alive, how long had the child lived ?
  This  inquiry is  important, inasmuch  as it enables us to
ascertain how it compares with  the signs of delivery in the
reputed mother.   For example, if it should be ascertained
that the child had  lived short of a day, and yet the appear-
ances on the female indicated that her delivery had taken
place several days previously,  it would show at once that
she could  not be the mother.  In the determination of  this
question, no information of any  importance can be obtained
from the respiratory organs.  These  merely prove that the
child breathed and lived, but  how long it did  so, they do
not indicate.   To  establish this  point  we have to depend
mainly  upon  the  proofs derived  from the circulation,  and
this shows the importance  of the preceding detailed  in-
vestigation of these proofs.  The principal points to  be ex-
amined are the following:
  {a.) The state of theforamen ovale.
  (&.) The state of the ductus arteriosus.
  (c.) The state of the ductus venosus.
  {d.)  The state of the umbilical vessels.
  (e.) The state of the umbilical cord.
  Of all these, the most  satisfactory information will be
obtained from the state of the umbilical cord.
  By recollecting  the order in which these foetal passages
and openings obliterate, there will be little difficulty in ap-
 plying the facts  to  the solution of the  present question.
The umbilical arteries  obliterate  first, either on the first
or second  day after birth—the  umbilical  vein next  on  the
second day—the ductus venosus on the third day—the duc-
tus arteriosus on the seventh or eighth day, and the foramen
ovale  about  the  eighth or  tenth day.  Of course, there  is
every variation in the period of obliteration,  and the prece-
ding are to be looked upon merely as average periods.
   The  cord withers, as already  stated,  from five hours to
 three days after birth'—desiccation commences from  the first
or  second  day after birth and is completed on the third,
fourth  or  fifth  day.   The  average  is about  the third day. 
INFANTICIDE.
509
About the fifth day the cord drops off—and about the twelfth
day, cicatrization takes place.
  Quest. IV.  By what means did the child come to his death ?
  Like  the causes of  abortion these may be  divided into
two classes, viz.:
  I. Criminal.
  II. Accidental.
  As in every case of alleged infanticide, a question may be
raised, as  to  whether  the death was owing to one or the
other of these sets of  causes, it becomes  necessary to ex-
amine them separately and in detail.

I.  Criminal modes resorted to for  the destruction of a new-
                        born child.
   1. The intentional neglect of tying the umbilical cord. The ma-
jority of medical practitioners, from  the time of Hippocrates
down to the present  day,  concur  in  the necessity of tying
the cord, to  obviate fatal  hsemorrhage 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,*
 J.  Fantoni, professor of anatomy at Turin, was the first who
 suggested  that  this  precaution was useless, and that  the
 neglect of  it  was unattended with any danger to  the life of
 the child.  After his  time  the same opinion was  adopted
 and defended by Michael Alberti, in  1731,  and J. H. Schult-
 zius,f in 1733, both  professors in the university of Halle.
 In  1751, Kaltsmidt maintained the  same doctrine at Jena.f
 The arguments  offered by them in defence of their opinion
 are the following :   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

   * Fodere, vol. 4, p. 502.
   t In a dissertation entitled, " An Umbilici deligatio in nuper natis abso-
 lute necessaria sit."  Hake, 1733.
   X Fodere, vol. 4, p. 509. 
510
INFANTICIDE.
adduces an argument from the analogy of arteries contract-
ing spontaneously in some surgical operations, and he thence
infers, that a  similar  contraction would take place in  the
vessels of the cord.*
   Let us examine  these arguments for a moment.   With
regard to the first, it is obvious that it is nothing more than
a  reiteration  of the subject in dispute, with the addition of
an attempt to  explain the reason  of it.   To say  that  the
vessels of the umbilical cord contract sufficiently to prevent
fatal  hsemorrhage, is, in fact  to say nothing  more  nor less
than  that  such hsemorrhage 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 struc-
ture of the human  cord and  that of  other animals, is not
merely a rational conjecture, but proved by actual observa-
tion.   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
proportion.!   From this  it appears, that in brutes  there is
a peculiar construction of the vessels of the cord, tending to
interrupt the flow of blood through them, and favoring their
speedy contraction.  Besides, the manner in which the cord
is  separated in brutes, facilitates contraction.   It is never
cut in them;  it  is  torn assunder,  and the  disposition of a
vessel  to   contract  under  such  circumstances  is  greatly
increased.|


  * Mahon, vol 2, p. 422, &c.
 t Medicina Legalis sive forensis, p. 9.
 X A very interesting note on this subject I find in a late edition of Merri-
man's Synopsis.  It purports to be from the manuscript lectures of Dr. Wm.
Hunter, and I copy it entire :
 " A ligature upon the  navel string is absolutely necessary, otherwise the
child will bleed to death; and when tied slovenly, or not properly,  it will
sometimes  bleed to an alarming quantity.  As we take such vast care to
secure the navel string, you will naturally ask,—how brutes manage in this
particular ? I will give you an idea of their  method of procedure—what I 
INFANTICIDE.
511
    The third has  still  less force than the  foregoing.   That
 arteries   of inconsiderable  magnitude frequently  contract
 spontaneously, is granted ; but that vessels of a size equal
 to that of the umbilical ones, do generally contract  of them-
 selves, cannot  be admitted, when  we  know that very dan-
 gerous  hsemorrhages  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 liga-
 ture upon the cord has ever been attended with fatal hsemor-
 rhage.  That it has  been so, cannot be questioned.   Among
  others,  a very striking case is recorded by Fodere, which he
  was called on by the authorities to examine.   An illegitimate
  child, immediately after its birth,had been carried about three
  leagues to a woman who was to perform the office of nurse.
  Finding it very feeble, the nurse, on examination, ascertained
  that it was covered  with blood, and that the ligature around
  the cord was quite loose.   The child died shortly after.   On
  examination, Fodere  reports that he  found  the  body ex-
  tremely pale :  without 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 portse, the ductus venosus,
  the umbilical vessels, and even the capillary system of  ves-
  sels.  On weighing the blood found in  the child, he found
  that it  did  not amount to two ounces.   From all this, he

  saw in a little bitch of Dr. Douglas's.  The pains coming on, the membranes
*  were protruded; in a pain  or two more they burst,  and the puppy followed.
  You cannot imagine with  what eagerness the mother lapped up the water,
  and then, taking hold of the membranes with her teeth, drew out the secun-
  dine.  These she devoured  also, licking the little puppy as dry as she could.
  As soon as she had done, I  took it up, and saw the naval string much bruised
  and lacerated.  However, a second labour coming on, I watched more nar-
  rowly, and as soon as the little creature was come into the world, I cut the
  naval string, and the arteries immediately spouted out profusely; fearing the
  poor thing would  die, I held it to its mother, who, drawing it several  times
  through her mouth, bruised and lacerated it, after which it bled no more.
  This, I make no doubt,  is the practice of other animals."  (Dr. Wm. Hun-
  ter's Lectures, MS., 1752.  Merriman's Synopsis, new edition,  1838,  p. 21,
  note.) 
512
INFANTICIDE.
concluded very justly that the  child  had enjoyed perfect
life, and had died from umbilical hsemorrhage.*
  Dr. Campbell states that he met with two cases  in which
infants were destroyed, one by accidental, and the other by
the intentional, removal of the ligature from the cord.f
  The  following case is  recorded  by Dr.  Hutchinson;
although the life of the child was saved, it shows conclu-
sively the  great danger attending hsemorrhage 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 hsemorrhage 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 put in
bed  with the mother; soon after which, the haemorrhage
was discovered.   The child was  fortunately preserved, by
very assiduous subsequent care."J
  Although  there can be no question, therefore, that fatal
hsemorrhage may,  and has  occurred,  from not tying  the
umbilical cord, yet  it is  equally certain that  it does  not
necessarily  do so.   Observations, to  a great extent, have
been made, which prove that this precaution has been omitted
without  any serious  consequences resulting.   It is stated
that M.  Klein has reported one  hundred and eighty-three
cases of sudden  labors, in many  of  which the  cord was
ruptured, and in  twenty-one  cases, close to the abdomen,
yet there was no  fatal umbilical hsemorrhage.§  In no case,
therefore, is  the mere absence of the ligature to be taken as
conclusive  evidence  of death by hoemorrhage.
  Signs of death  by hemorrhage from the cord.  These are
the following:
  (a.) Paleness of the surface, with a peculiar waxy appear-
ance.

  * 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.
  X A Dissertation on Infanticide, &c. By William Hutchinson, M.D. p. 87.
  §  A Manual of Medical Jurisprudence, by M. Ryan,  M.D., p.  144.
Griffith's edition. 
INFANTICIDE.
513
  {b.) Paleness and loss of color in the muscles and internal
viscera.
  (c.) The  absence of the usual quantity of blood in the
heart and blood-vessels.   By some it is stated, that in cases
of hsemorrhage, the heart and blood-vessels are  completely
empty.   This, however,  is not the case.  Generally speak-
ing, a if  three ounces of blood  can be  collected, it may be
presumed that the child has not died of hsemorrhage."*
   {d.) The absence of any wound or injury on  the body of
the child, to account for  the loss  of blood in any other way
than by  hsemorrhage of the cord.
   2.  Exposing a new-born child  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 proba-
ble that  it proceeded  from ignorance or want of the proper
means.   In either  case, however,  the physician may be
called upon to decide, whether the death is to be attributed
to the action of the cold, or to  some other cause.
   Signs  of death by exposure  to cold.  These are  given by
Fodere in  the following  terms:  " If the body  of an  infant
be found stiff,  discolored,  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 almost empty, and when no other
cause of death can be detected,  one cannot do  less than at-
tribute  it to  the cold,  and  consider this abandonment and
neglect of care,  the  necessity of which is  obvious to  the
dullest  comprehension,  as  a  manifest intention to  make
away with the child."f
  * Cyclopaedia of Practical Medicine, vol. 2, p. 694.
  t Fodere, vol. 4, p. 505.
                    33 
514
INFANTICIDE.
   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.  It
is generally agreed  that  the neglect  of it for  twenty-four
hours, is not unattended  with  danger.  In these cases, the
child is generally found 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
certain length of time,  the first  thing to  be established, is
that the child has lived long enough to die from this cause.
This  may be done by  inspecting  the foramen ovale,  the
ductus arteriosus, the ductus venosus, but more especially
the umbilical cord, according to the signs laid down in  a
previous part of this essay.
   As children  who  die from  want of food are generally
exposed also, they  sink under the  combined operation of
exposure and want  of  nourishment.  They will be found,
accordingly, to  present  the same appearances as in the last
case ; and besides these, there  will be general emaciation of
the body, and on dissection, the  stomach and intestines will
be found empty, the  gall-bladder will  be enlarged, and bile
found generally effused in  the stomach and intestines.*
   4.  The infliction of wounds and injuries  of various kinds.
This is among the most common of the modes by which the
life of a new-born child is wilfully destroyed. Death in these
cases may be produced in various ways,  some of which  I
shall notice.
   The introduction of sharp pointed instruments into different
parts of the body.   Gui-Patin relates of a  midwife who was
executed at Paris for having murdered several children, by
plunging a needle into the head while presenting at the os
externum.!  Brendel also speaks of the same horrible prac-
  * Besides keeping food from the new-born child, its  life may be endanger-
ed and destroyed by giving it improper food.  Dr. Campbell states that he
has known several  illegitimate  children destroyed by giving them to be
nursed by women whose milk was twelve or fourteen months old, the parties
concerned being well aware that  the child could not  long subsist on such
nourishment.  (Midwifery, p.  151.)
  t Mahon, vol. 2, p. 409. 
INFANTICIDE.
515
tice.   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.*
Needles, or other sharp  instruments, are sometimes thrust
into other parts of the child, such as the temples, the inter-
nal canthus of the eyes,f the  spinal marrow, the neck, the
thorax about  the region of the heart,J 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
way.§
   Signs.  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
resorted to  for destroying the new-born infant.   They  may
be found on any part of the body; the  more common part,

  *  Cours. de Med. Leg. p. 93.
  t  Prselect. Academ. J. G. Brendel, ii. p.  188.
  X  Fodere, vol. 4, p. 492.
  § Case of Elliot and Bease.  Edinburgh Medical and Surgical Journal,
vol. 35, p. 457.
  To show the effects of running a sharp instrument into the brain, the fol-
lowing  interesting fact is related by Underwood:  " A gentlewoman  many
years ago informed me, that one of her children after long and incessant cry-
ing, fell into strong convulsions, which her physician was at a loss to ac-
count for, nor was the cause discovered till after  death; when, shocking to
relate, on the cap being taken  off, (which had not been changed on account
of its illness,) a small pin was discovered, sticking up to the head in the large
fontanelle or mould."  (On Diseases  of Children, vol. 3, p. 406.  Am. edit.) 
516
INFANTICIDE.
however, is the head.  For  the purpose of ascertaining the
effects upon the head of a child falling from different heights,
the following very instructive experiments were made at the
Lying-in Hospital, and are detailed by Lecieux :
  " Fifteen infants who had died  after  their birth, but in
whom there was no  alteration in the bones of the cranium,
were 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.
  " In the  same manner fifteen  infants were suffered to fall
from  a height  of three feet, and on dissection there was
found, in twelve cases, a fracture of the  parietal bones, in
some  extending to the os frontis.   When suffered  to fall
from a greater height, the membranous commissures of the
cranium  were relaxed, and  even broken  in  some places;
frequently  the form of the brain  was changed, and in some
cases  there was found under the meninges, or in the thick
part of the  meninges,  an ecchymosis, an extravasation  of
blood produced by the rupture of vessels  ; and it was only
in infants whose  bones were very soft and flexible, that no
fracture was found.
  " After having placed on a table the head of a child that
had died soon after its birth, it was  pressed in different pla-
ces very  strongly  by the  two thumbs on different parts of
the surface; 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 per-
ceived a depression or sinking of the bones.  In the greatest
number, the head was deformed or  flattened, and the mem-
branous commissures exhibited a  sensible  relaxation.
  " 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, 
INFANTICIDE.
517
 relaxation, in some places rupture of the sutures, and finally
 extravasation of blood."*
   Signs.   In cases of wounds, the  points to be determined
 are, whether the wounds  were inflicted before or after the
 death of the child, whether they are necessarily mortal, and
 whether they may not  have been  the  result of accidental
 and unavoidable circumstances.  With regard to wounds of
 the head, it  is to be  recollected that the heads of children
 are not unfrequently tumefied and ecchymosed from compres-
 sion, during a difficult  and tedious labor.   In some  cases,
 too, a peculiar sanguineous tumour forms spontaneously on
 the  head  of  the  new-born  child.f   Arising in  this  way,
 these  tumours are not  attended with  any  danger to the
 child, and they are never complicated with  fracture of the
 cranium.   In some rare cases, even  fissures  of the cranium
 have occurred during delivery. This can occur, however,
 only under very extraordinary circumstances.  In one case
 recorded by Siebold, a female with  a very narrow pelvis
 was delivered,  by the  efforts  of  nature  alone, of a well
 sized female child.   It  manifested no signs  of life.  On
 examination, the head was found  swelled, and  a  great
 quantity of blood was extravasated upon the surface of the
 cranium.   In the left parietal bone three fisures  were  dis-
 covered, and a fourth in the  left frontal bone.  In this case,
 these  extensive injuries were manifestly owing to the long
 continued  pressure of the head of the child in a narrow
 pelvis.J  Another case of a similar character, is reported by
 xVIichaelis  of Kiel.   A woman with  a well  formed pelvis,
 was delivered of her first child, after an ordinary natural
 labor.  The child breathed both during birth and immediate-
 ly after, but then died.  The head was much disfigured, and
 on examination, the right parietal bone, which during  birth
 had  been directed under the promontory of the sacrum, was
 found covered anteriorly and above with effused blood, and

  * Considerations sur Tlnfanticide, par Lecieux.
  t Sec an excellent paper on this subjeet by Prof. Geddings, the able and
la aimed editor of the North American Archives of Medical and Suraical
Science, v. 2, p. 217.                                      &
  X North American Archives, &c, vol. 2, p. 434. 
  518                   INFANTICIDE.                              »

  on the  removal of the periostium, was found fractured in
  five places.   The whole of this bone was uncommonly thin.
  On opening  the skull there was  found no  extravasation
  beneath the  fissures, but posteriorly the longitudinal sinus
  was ruptured, and there was an extensive coagulum on the
  cerebrum  on both sides, under the dura mater, and on the
  tentorium cerebelli.   In this  case, the injuries were attribu-
  ted  to  the  natural  weakness of the bone, and  to  the
  unfavorable  position  of the  head during  birth.*  These
  cases, extraordinary as they  are, are yet sufficient to show
 with what caution opinions should be formed, in relation to
 injuries of the head in new-born children.
   In all examinations of contusions, two cautions ought to
 be  observed; viz. to distinguish them  from the discolored
 spots  which  appear on the surface of the body at the com-
 mencement 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
 Infanticide sometimes resorted to, and is usually perpetrated
 by  forcibly twisting  the head of the child, or pulling it
 backwards.f   In such cases, the vertebrse are fractured, the
 ligaments ruptured, and death is caused by the injury inflict-
 ed 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-boi~n child, or putting a stop to its
respiration.  This may be accomplished in various ways : by
drowning, hanging or strangulation,  smothering under bed-
clothes,  suffocating, by thrusting  various  articles  in  the
mouth and nostrils ; finally, by exposure to noxious airs.
  * American Journal of Med. Sciences, vol. 21, p. 246.
  t Mahon, vol. 2, p. 409. 
INFANTICIDE.
519
  Drowning.  If a  child be found immersed in water, the
questions which require to be determined are the following:
In the first place, was the child born alive.  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 the same in the  infant
that they are  in the  adult, and  a careful examination is
therefore to be made, with the view of ascertaining whether
these are present or not.*
   Hanging  and strangulation.  In hanging, the general cause
of death is  precisely the same as that in drowning, viz. sus-
pension of the  respiration.  The signs, therefore, in the two
cases are the same, except so far as they are modified in the
former, by the  application of the ligature and the absence of
water.  In  cases of death by hanging, accordingly,  there
will probably be a circular livid mark around the neck from
the application of the ligature.f
   Death by strangulation is produced by the  same general
cause  as  hanging,  and the only  difference between them,
will be the  absence of the distinct circular mark round the
neck in the  former, and the  presence  of ecchymoses and
discolorations  about the neck and chest, produced by the
application  of  fingers  and nails to  these parts.
   In cases where death by hanging or strangulation is sus-
pected, there is one source of fallacy which requires to be
specially noticed.  It happens  sometimes, though  rarely,
that in consequence of the cord being wound round the neck,
the child dies during  or immediately after birth.  Whether
in cases of  this kind,  the same  kind of mark is left on the
neck of the child as in criminal strangulation, is a question
concerning which there is much difference of opinion.   Klein
states, as the  result  of extensive experience, that he has
never met  with an instance,  in which ecchymoses  or any
other marks have been produced by the cord.   On the other
hand,  Taufflieb  has  recorded some  cases, in which these
* On the signs of Drowning, see Chapter xiv.
f On the signs of Hanging, see Chapter xiv. 
520                    INFANTICIDE.

appearances were  actually observed.*  In all cases of sup-
posed hanging or  strangulation, this should  be made the
subject of special  investigation.
   Smothering.  When the child has  been smothered  under
bed-clothes, &c. the  circumstances upon which  to form a
decision that  wilful  murder  has been committed, besides
those  which characterize strangulation generally, are, the
place where the body is found, and the absence of any other
probable cause to which its death can be attributed.
   Introducing articles into the mouth, nostrils, or throat. When
this is the case, dissection alone can detect the cause.
   Causing a child to inhale air deprived of its oxygen.   This
takes place when a living child  is shut up in a tight box or
coffin.  The oxygen of the air contained in the box is gradu-
ally consumed, until the air becomes irrespirable.f
   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
where the  child may be found, will sometimes lead to a judg-
ment in the case.
   The  inhalation  of  gases positively  deleterious.   The  gas
yielded by privies and sewers is sulphuretted hydrogen, and
in the smallest  quantity, and even when diluted with atmos-
pheric air, proves very speedily destructive of life.  When
new-born infants are thrown into these places, they are de-
stroyed partly by the action of the gas, and  partly by ordi-
nary suffocation.
   6. Poisoning. Poisons may be introduced into  the system
in various  ways.  They may be  inhaled into  the  lungs, in
the form of odors;  or they may be taken into the stomach,

  * Annales d'Hygiene publique, v. 14, p. 340.
  t On this subject, Dr. Paris makes the  following statement:  "Infants
appear to be less able to sustain the deprivation of oxygen than adults, and
in some cases on record, life has been destroyed by circumstances that we
should have a priori considered as hardly adequate to such an effect.  A case
is related of a child who was suffocated by some drunken men having repeat-
edly blown out a candle, and held  the smoking wick under its nose.  The
faculty of Leipsic investigated the circumstances, and declared the death to
have taken place in consequence of suffocation."  (Medical Jurisprudence.
By Paris and Fonblanque, vol. 2, p. 55.) 
INFANTICIDE.
521
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
stomach and intestines, it should be carefully examined, and
subjected to the various  tests which  chemistry supplies for
detecting its presence. In cases where the cutaneous absorb-
ents have been the medium of conveying it into the system,
it may be very difficult, generally, to discover the cause of
death.  In some instances, an eruption on the skin, and the
peculiar odor  of the substance which has been employed,
aided by the circumstantial evidence, may lead to a discovery.

    II. Accidental modes in which a child's life may  be lost.

  Having thus considered the various criminal  modes re-
sorted to for the purpose of destroying the life of the new-
born infant, I come now to notice the various causes which
may destroy it,  without  any criminal agency.  Under this
head, there are three different classes of causes,  which re-
quire notice :
  1. Accidental circumstances connected with delivery.
  2. Various malformations,  inconsistent with the continu-
ance of life after birth.
  3. Various  diseases which may have commenced anterior
to,  or immediately after birth.

1.  Various causes connected with delivery, which may occasion
  the death of a new-born child,  without any criminal inten-
  tion.

  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
effectually 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 
522
INFANTICIDE.
been  attached  to  the  mother.*  A case in some  respects
similar, occurred to myself.  A female, whom I had engaged
to attend in her lying-in, was suddenly taken  with labor
pains, rather before the time the event was anticipated.   I
was sent for shortly after, but before  I reached the  house,
she had been delivered of a male child, which I found lying
dead under the bed-clothes.  The mother informed me that
the child had been born about half an hour, and that she had
heard it cry, but as she was  alone,  she had been unable  to
give it any assistance.  Not  the  slightest  suspicion  of any
criminal intention  could for  a  single moment be cherished.
The female  was married, and had engaged me to attend her
some weeks before the event took place.
  A new-born child may lose its life from the suddenness and
rapidity of the  labor.   Dr. Hunter relates  a case,  where  a
female was  seized during the night,  and the child was born
before he arrived.  She held herself in one posture, to pre-
vent the child from being stifled ; but although it had cried,
yet on the arrival of Dr. Hunter it was found dead.f   A case
is recorded  by  Mr. Tatham,  where a patient, in her  fourth
pregnancy,  after three trifling pains,, was passing along the
lobby to her bed-room, when  the infant was suddenly thrown
on the floor, bleeding  profusely at the umbilicus, but ulti-
mately recovered.J  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 children, which dropped into the utensil;
from which, however, they were  speedily rescued,  but died
within a week.§  Besides  this, the labor 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  chi]d occur-
ring from the mere rapidity and suddenness of  the labor,  it

  * Observations on the uncertainty of the signs of murder in  the case of
bastard childrem,  (Medical Observations and Inquiries, of London, vol. 6.)
  f Medical Observations and Inquiries, of London, vol. 6, p. 286.
  X Medical Repository, for April, 1829.   § Campbell's Midwifery, p. 155. 
INFANTICIDE.
523
must be exceedingly rare,  and under very peculiar  circum-
stances ; and when it does occur, it must be either from the
child being suffocated by falling into a privy,  at the time of
delivery, or by the injury which it receives from  falling, in
cases where a female happens to be delivered while stand-
ing.  The first of these is no doubt possible, and probably
has occurred.*  From the experiments of Chaussier, detailed
in a previous page, we should be led to infer, that children
born while the female is in the standing posture,  would be
seriously injured by the fall.   The  cases,  however, are by
no means analogous, and  experience has proved that under
these  circumstances, there is  really very little risk to the
child.  This point is fully established by the  report of Dr.
Klein,  of Stutgardt.   As  a member of the superior council
of health, he  caused a circular to  be addressed to the ac-
coucheurs of the kingdom of Wirtemberg, requesting reports
of the cases of sudden expulsion of the foetus, which might
be observed by them.   Returns were  made of one hundred
and eighty-three cases.   Of these, one hundred and fifty-five
children were expelled while the mothers were in the up-
right posture, twenty-two  when sitting, and six when on the
knees.   Twenty-one happened at  the first labor.   Of the
whole number, not one  child died ;  no fracture of  the bones
took place, nor any severe injury.  Two only suffered  tem-
porary insensibility, and one an external wound with ecchy-
mosis over the right parietal bone.f
  * Dr. John Gordon Smith relates, that " a woman was tried at the Old
Bailey for the murder of her child, by dropping it into a privy.  She declared,
that while there for a natural purpose, an uncommon pain took her, the child
fell, and she sat some time before she was able to stir.  On this occasion, a
practitioner was examined on the probability of such an event, who stated
that an instance came within his knowledge, where, while the midwife was
playing at cards in the room, the woman was taken suddenly and the child
dropped on the floor."  Dr. Smith adds, " it 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 pregnancy, was sitting in company at dinner, and perfectly free from any
consciousness of approaching labour, when she experienced an inclination to
repair to the water-closet.  She had scarcely got there when she was deliver-
ed of a child.  Had the place of retirement been constructed differently,"
adds Dr. S. " this infant might have perished."  (Principles of Forensic
Medicine, pp. 381, 382.)
  t Arrowsmith in the Cyclopaedia of Practical Medicine, vol. 2, p. 693. 
524
INFANTICIDE.
  An interesting case in which this question was involved,
occurred in the State of Massachusetts in 1834.  Margaret
Croslan, an  unmarried  colored  girl, aged 22, was indicted
for murdering her infant illegitimate child, and concealing
its death.  On the trial, it was  proved, that the body was
that  of a full grown male child.  There were no external
marks of violence,  excepting  signs of effused  fluid under
the scalp covering the frontal bones.  " Blood was found in
considerable quantity, partly fluid, and partly  coagulated.
The   pericranium  was  separated  from  the  bone, and the
parietal  bones  were both  fractured, the left one in three
places, the right in one."   The  chest was opened, and por-
tions of  each lung were cut off,  and on being put into water
floated.  This appears to have been all the examination that
was  made.  By the prosecution, it was argued, that the child
was  born alive, and came to its death by intentional violence
applied to the  head.  For the  defence, it was  contended,
that  the  prisoner had been taken suddenly in labour in the
yard; that the  child was delivered while the woman was in
a standing  position; and  that  the  injury of the head was
caused by its falling on the ground, which  was hard and
frozen.   The jury brought in  a verdict of acquittal.*  In
reviewing this case, I cannot help thinking that the prisoner
owed her acquittal more to the ingenuity of her counsel than
to the justice of her cause.
  Accidental hemorrhage from  the umbilical  cord.  I have
already spoken of neglecting to tie the cord with a criminal
intent.   It should be recollected  that although it has  been
resorted to with the  latter  object in view, yet in many, per-
haps in most cases,  it may be the result of ignorance.   It
should not be forgotten, too, that this is most likely to occur
in those very cases which  become  the  subject of judicial
inquiry, inasmuch as in these,  the female, for obvious rea-
sons, is frequently shut out from the benefit of professional
assistance.   Besides this,  haemorrhage  from the  umbilical
cord, may occur under a variety of other  circumstances,
  * A full and able account of this case is given by Charles A. Lee, M.D.
Amer. Jour, of Med. Sciences, v. 17, p. 327. 
INFANTICIDE.
525
purely accidental.  Sometimes, it  may occur accidentally,
from a proper ligature not being applied to the cord.  Dr.
Hosack states, that he once  delivered a woman of a very
strong and large child, the cord of  which he tied with com-
mon 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 ligature had given way, and a
dangerous hsemorrhage had ensued.*  Mr. Burns states also,
that it has " sometimes been found, that when the ligature
had become slack, a considerable quantity of blood was lost,
and even fatal hsemorrhage had taken place."f  Sometimes
the cord is very thick, in  consequence of a very large quan-
tity 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 divided, it becomes lessened in
size, and the ligature which at first was tight, will now be
found loose, and the mouths of the umbilical vessels open.
Mr. Radford, who has noticed this especially, relates  a case
of this kind, in which  he  was  called to an infant who was
bleeding, about three hours after birth.  The skin was pal-
lid,  and the pulse  scarcely perceptible.   On examination,
the ligature  was loose,  and  the  orifices  widely gaping.J
Another case of this kind  is related by Burns.§  Sometimes
the cord will be found ossified, or in a state of cartilaginous
hardness.   In these cases, there is always more or less dan-
ger of hsemorrhage  from the inability of applying the liga-
ture properly.  A case of this kind is related by Mr. Logan,
in which  the  cord  gave way several  times,  from pressure
of the ligature and from pulling on it during the expulsion
of the placenta.||  Dr. Dewees relates another case, in which
a dangerous hsemorrhage  took place in a child three days
old, and which on examination, was found to be owing to a
varicose state of the  cord.  In consequence of which, he
lays down a general rule,  never to  apply a ligature above a

  * MSS. Lectures.                   t Midwifery, p. 565.
  X Edinburgh Medical and Surgical Journal, vol. 38, p. 2.
  § Midwifery, p. 200, American edition.
  || Edinburgh Medical and Surgical Journal, vol. 37, p. 276. 
526
INFANTICIDE.
 varicose portion of the cord, if it be possible  to apply one
 below.*
   There is another accident, too, which sometimes happens,
 in  which hsemorrhage may occur;  and that is, where the
 child is suddenly expelled, and the cord ruptured, when no
 immediate assistance is  at hand.  Mr.  Custance relates a
 case of protracted  labor, where the  child was suddenly ex-
 pelled 071 the bed, with such violence as to rupture it very
 near the body.  Although there was  no haemorrhage, it died
 in a few hours.t  Another  case is related by Mr. Chamber-
 layne, in which the  cord broke off,  (just in the right place
 too,) in consequence of the violent expulsion  of the child.J
 In cases of this kind, however, where the cord is torn  off, it
 is to be recollected that haemorrhage is not so likely to  occur
 as when it is cut.
   A child may die from, prematurely tying the umbilical cord.
 We know that the circulation by the cord  and respiration,
 are vicarious functions, and if  the former be arrested before
 the latter is in operation, life must cease.  It is accordingly
 laid down as a rule  by practical writers, that  the cord should
 never  be tied or divided, until respiration has been estab-
 lshed.
  That the neglect of this  important rule of practice  is an
 occasional 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 instances  of death, and this  of a painful protracted
 kind, from the premature application of the  ligature."§ By
 Dr. Eberle  a  case is recorded,  which illustrates  the evil
 effects of premature 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 catch-

 * A Treatise on the Physical and Medical Treatment of Children, by Wm.
P. Dewees, M.D. &c, p.  331.
 t Lancet, vol. 5, pp. 120-1.
 X London Medical and Surgical Journal, vol. 7, p. 284.
 § A Treatise on the Physical and Medical Treatment of Children, by W
P. Dewees, M.D., p. 260. 
INFANTICIDE.
527
ing, irregular, and in a few moments almost wholly suspend-
ed, 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  reestablished.*   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.f

       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 investi-
gation, and give rise to doubts as to the  cause of death, it
is necessary 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 evi-
dent, however, that they cannot all  be equally dangerous,
or hostile to  the prolongation of life.  In  these  respects
they  must  differ  greatly according to the degree in which
they exist,  and more especially according to the importance
of the organ in which they are found.
   Malformations of the heart and vascular system.  Of these
the following have been observed and recorded :
   A  congenital opening between the two ventricles.   Several
instances 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.J  Another similar case is
related by Dr. Pulteney.  In this instance, the person lived
to nearly fourteen years of age.§

   * A Treatise on the Diseases and Physical Education of Children, by John
 Eberle, M.D., p. 86, second edition.           t Midwifery, p. 152.
   X Baillie's Morbid Anatomy, p. 24.  Medic%J Observations, vol. 6.
   § Medical Transactions, vol. 3. 
528
INFANTICIDE.
  Corvisart gives the case of a child twelve  years  old, in
whom, on  dissection, there was found an aperture  in the
septum 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 from his  earliest years,  during which his
complexion became of a dusky hue.  He died  in  one of
these paroxysms.f
   Where the heart consists only of one auricle and one ventricle.
This  is  a rare  malformation.   Mr.  Burns says there is
only  one case on record,  and that is by Mr. Wilson.   This
was in a child who died seven days  old, and whose body
was brought to the Theatre of Windmill Street for dissection.
In this case there was one vessel which originated from the
ventricle and divided into  two branches—the one  to the
lungs, and the other to the rest  of the  body.J
   Another case, however, is  recorded  by Billard.   This
child lived fifteen days.   During this period it was affected
with cyanose—had frequent syncopes and fits of threatened
suffocation, in one  of  which it died.§   This malformation
would seem to be inconsistent with the long continuance of
life.
   Where the aorta arises from both ventricles.  Corvisart gives
a case from Sandifort, in which the  subject died at the age
of twelve  years.  During this period, it had from its second
year been  attacked with all the symptoms denoting disease
of the heart, of which it  died.  On dissection, it was found,
that beside the existence of the foramen ovale and dilatation

  * Corvisart, p. 207 ; also, p. 229.
  t Observations on some of the most frequent and important diseases of the
heart, &c. By Allan Burns, p. 20. Baillie, p. 23.
  X Ibid. p. 27.
  § Traite des Maladies des Ejafans, &c. Par C. M. Billard, p. 701, 2d edit. 
INFANTICIDE.
529
of the right ventricle, the aorta, instead of rising from the
left ventricle only, had a mouth in each of the ventricles.*
  In two cases recorded by Mr. Burns, the persons led a
most  miserable life,  and were subject on  every  trivial
exertion  to  those  paroxysms  which  are produced by a
mixture  of venous and arterial blood.  At last they  died
dropsical.f
  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 eyelids, root of the nose and mouth
—after this  it suffered occasional  paroxysms, resembling
severe colic, attended with a dry suffocative cough.  In the
intervals of the paroxysms, the child appeared to be perfectly
well.   On dissection, the ascending aorta and  arch was
found dilated to  four times the capacity of the descending
portion.   The foramen ovale was open, and  both ventricles
communicated with the aorta, the aorta being placed astride
the two  ventricles.   The ductus arteriosus was also open,
and terminating in a cul de sac in the wall of the left  ven-
tricle—no pulmonary artery could be disovered.|
  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.§
  Malformations of the respiratory organs.  These, although
not very  common,  are sometimes  met with.   Cases  are
recorded in  which the thoracic parietes have been so  defi-
cient  and imperfect, as to  leave the heart and lungs naked.
Under such circumstances, it is evident that life cannot  long
be  protracted.   In  some cases, the  thorax may be distorted
in such a way as to interfere greatly with the due expansion

  * Corvisart, pp. 231-2, American edition.
  t Burns' Observations, p. 13.
  X The Medical Magazine, conducted by A. L. Pierson, J. B. Flint, and E.
Bartlett.  Boston, vol. 2, p. 317.
  § Burns' Observations, etc. p. 25.
                   34 
530
INFANTICIDE.
 of the lungs, and of course with the proper performance of
 the function of respiration.  It is clear, however, that this
 may exist to a very  considerable extent, and yet life be
 continued for a number of years.
   Where a congenital deficiency exists in the diaphragm, so
 as to admit  the passage of some portion of the abdominal
 viscera into  the  cavity of the  thorax, the danger is  more
 impending, and it is hardly possible that life can be long
 continued.
   Malformations of the alimentary canal.  These have been
 observed in  every portion of this tract, from  the  mouth to
 the anus.  The mouth has sometimes been found wanting,
 or obliterated; in other cases, there has been  an absence of
 the oesophagus.   An instance of  this  kind is reported by
 Dr. Sonderland.   The child at  birth was  apparently well
 formed, but rejected every  thing that was introduced into
 its mouth in the way of nourishment.   He died  on the
 eighth day.   On dissection the cardiac orifice  of the sto-
 mach was  found wanting, and this part of the stomach was
 adhering to the diaphragm.   The oesophagus was entirely
 wanting, and the  pharynx terminated in a cul de sac*
   The stomach is  subject to malformations  as regards shape
 and displacements.  These, however, do not interfere with
 the continuance of life, provided the orifices  of this organ
 be free.
   Malformations  of the intestinal canal are numerous and
 various.   Those which are particularly worthy of notice in
 this connexion, are those  in which the  canal is  obliterated,
 or interrupted, or contracted.  Dr. Schaefer relates the case
 of a child, which  died on the seventh day after birth.  On
dissection, the duodenum was found terminating in a cul de
 sac, and  a complete interruption thus existed  in the intesti-
nal canal.  This  child, during  its life, had passed neither
meconium nor urine, and vomited matter of a liquid brown
character.!   Another case, of a similar character, is reported
by Billard.  In this case,  the child died on the third day.
* Billard, p. 285.
t Ibid. p. 363. 
INFANTICIDE.
531
It had not passed any meconium, and had vomited freely a
yellowish fluid.*
  The most common of these malformations, however, are
those of the rectum.  In some cases, there is simply a con-
traction 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.f  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.

3.  Various  diseases, which may be either congenital, or occur
                  immediately after birth.
  This  is  the  last  class of  accidental causes to which the
death of a new-born infant may be owing.
  Morbus cceruleus.   Cyanosis.  This is  commonly known
by  the  name  of the blue disease, from the peculiar color of
the skin which characterizes this affection.  The part more
particularly  affected, is the face.  During crying or  any
other effort on  the part of the child, the color becomes much
deeper.  Besides the peculiar color of the skin, the symp-
toms 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,  palpitation, 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 blood-vessels.|

  *  Billard, p. 364.
  t  Ibid. pp.  367, 370.  Baillie's Morb. Anat. p. 114.  Campbell's  Mid.
p. 571.
  X  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 edit. 
532
INFANTICIDE.
  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 maybe
found to exist.   While in some cases death may take place
in a few hours or days after birth, in others again existence
has been  protracted  for many years.  As, however, life is
always  in danger in these cases, the  just and certainly
humane conclusion  in  a  case  of alleged Infanticide,  and
where this disease might be urged as the cause of death,
would be  to admit that it might be so, provided said malfor-
mations were actually found on dissection, and provided no
other cause of death could be detected.
  Organic diseases of the heart and blood-vessels.  By Billard,
a case is recorded  of  a child, who, from  birth, was affected
with frequent syncope, difficult breathing,  discoloration of
the nostrils and lips, and disordered  circulation.  It died,
after suffering in this way about two months.  On dissection,
the heart was found almost as large  as a  hen's egg, with
dilatation of the right auricle and ventricle.*
  Another curious and unique case is recorded by the same
author,  of a child  who had an aneurism of the ductus arterio-
sus.   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.f
  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 peri-
cardium so solid as to lead to the belief that the disease was
of long  standing, and must have commenced while the fcetus
was still in utero.J
  Pneumonia and pleuritis.  There is every reason to believe
that these affections, though rare,  may  sometimes exist in

  * Billard, p. 589.        f Ibid. p. 591.        t Ibid. pp. 595,703. 
INFANTICIDE.
533
the foetal state.  Billard states, that in three infants  who
died on the first day after birth, he found the texture of the
lungs so altered, as  to  lead  to  the belief that disease must
have commenced antecedent to birth.  In two cases, the left
lung was hepatized at  its base.*  In these,  there  was no
doubt  that  this  condition of the lungs interfered with the
establishment of respiration, and was the cause of death.
   Inflammation of the larynx has not been observed as oc-
curring in the foetal state.  Billard,  however, states that he
has frequently observed in foetuses  born  before the time,  a
congestion of blood about these parts.   The mucous mem-
brane of the larynx and  trachea was of a violet color, and
at the  same time there was  an extravasation of blood ex-
tending  even into the  bronchiae.  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 du-
ring the  act of delivery.f
   With regard to affections of  the lungs, it is also to be re-
collected, 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, how-
ever, the appearances on dissection will throw light upon
the cause of death.'
   Diseases oj the alimentary  canal.   Billard  states  that in
two cases in which new-born infants died a short time  after
birth,  he found ulceration in oesophagus, which from  their
appearance  must have been developed  during intra-uterine
life, and which,  from the progress they made after birth,
must have hastened their death.f
   The same author relates cases in which there was every
reason to believe that inflammation of the stomach  existed
previous to birth, and was the  cause of death after birth.§
   Ramollissement of the intestines has also been noticed by
Billard,  in  children who have  died  a  short  time  after
birth.||

  * Billard, p. 521.
  t Ibid. p. 494.                       § Ibid. pp. 311, 689.
  X Ibid. p. 687.                       ||  Ibid. p. 691. 
534
INFANTICIDE.
              Of the examination of the mother.
    Having gone through with the examination of the child,
  and having ascertained that it  was born alive, and that its
  death was owing to violence, we are next to  inquire into
  the relations of it, with the supposed mother.   As already
  stated,  the questions  here to  be investigated are  the  fol-
  lowing  :
    Quest.  I.  Has the woman been actually delivered?  The
  signs of delivery have already been discussed in a previous
  part of  this essay.
    Quest. II. Do the signs of delivery in the mother correspond
  as to time, fyc, with the  appearance of the child?
    By comparing the  observations made upon the child, with
  the signs observed upon the female,  a rational opinion can
  easily be formed, whether any incongruity exists  between
 them, and the inference of course is obvious.
    Circumstantial evidence.   Although  this does not strictly
 appertain to a medical  discussion of the  subject,  yet there
 are some  points embraced under it,  concerning which the
 testimony  of the physician may be required.
   1.  It  may be  urged  in excuse for a woman on a trial  for
 child  murder, that  from the uncertainty of the signs  of
 pregnancy, she may have been ignorant of her actual condi-
 tion, and therefore  may have been suddenly overtaken with
 the pains of labor, when it was  out of her power to com-
 mand  assistance, and thus the child have lost its life.  To
 all this, a very plain and concise reply  may be made.   How-
 ever  difficult 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, especially, in a first pregnancy, which it almost
 always is in  cases of Infanticide.  If she has  yielded  to
 the solicitations of a seducer, and if she  afterwards experi-
 ences  those  changes and  developements in her  system,
which  accompany a  state of impregnation, she  cannot but
be conscious of her true situation, and therefore, any argu-
 ments drawn from this source ought to have no weight. 
INFANTICIDE.
535
    2. 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
  phrensy, and killed her  infant in the absence of any com-
  pany ; but company coming in, she told them she had killed
  her infant, and  there it  lay;  she was  brought to  jail pre-
  sently, and after some sleep she recovered her understand-
  ing, but marvelled how or why she came thither.   She was
  indicted for murder, and upon  her trial the whole matter ap-
  pearing, it was left  to the jury with this direction, that if it
 did appear that she  had  any use of reason when she did it,
 they were to find her guilty; but if they found her under a
 phrensy, though by  reason  of her late delivery and  want of
 sleep, they should acquit  her;  that had there been any occa-
 sion to move her to  this fact, as to hide her shame, which is
 ordinarily  the case of such as are delivered of bastard chil-
 dren and destroy them ; or if there had been  jealousy of the
 husband that the child had been none of his  ; or if she had
 hid the infant, or denied the fact, these had been evidences
 that the phrensy had been  counterfeit.  But none of these
 appearing, and the honesty and virtuous deportment of the
 woman in  her  health being known to the jury, and many
 circumstances of insanity appearing, the jury found her not
 guilty,  to the satisfaction of all who heard it."*   On this
 case Dr. Paris justly remarks, « had this woman been of
 doubtful character, though innocent, she might have  been
 executed for want of medical  evidence to prove the nature
 and frequency of puerperal insanity."!

 Of the  method of conducting examinations in cases of Infan-
                         ticide.
  In every case  of  Infanticide, so much depends upon the
testimony  furnished by the physician,  that  it becomes a
  * 1 Hale's Pleas of the Crown,  p. 36.
  f Paris and Fonblanque's Medical Jurisprudence, vol. 3, pp. 129-30. 
536
INFANTICIDE.
sacred duty on his part to investigate, with the utmost fidel-
ity 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 unpleas-
ant ; but unless submitted to by the  professional witness,
he certainly cannot be considered  as  qualified  to give his
evidence in a case which involves the life of a fellow being.
  External examination of the child.   This should embrace
the following particulars:
  (a.) Every thing relating to its external appearance, shape,
    conformation, condition as  to putrefaction, wounds,
    spots, ecchymoses, &c.
  {b.) Its size, including not merely the size of the whole
    body as to length, but the dimensions of the head and
    of the thorax.
  (c.) Its weight—situation of the centre of the body.
  {d.) The condition of the umbilical cord.
  Internal examination.  This should include,
1. The condition of the respiratory  organs :
  (a.)  The shape of the thorax.
  (&.) The situation of the diaphragm.
  (c.) The colour of the lungs.
  {d.)  Their volume.
  (e.)  Their situation.
  (/.) Their shape.
  {g.)  Their consistence or density.
  {h.)  Their absolute weight.
  {i.)  Their specific weight.
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.
  {b.) The  stomach  and intestines;  particularly the large
    intestines, with a view of ascertaining the  presence or
    absence of the meconium. 
INFANTICIDE.
537
  (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 dissec-
tion with the mouth and the cavities leading to the chest.
An incision should first be made from the under lip to the
top of the sternum, and another along the lower edge of the
inferior maxillary bone; after which, the integuments are to
be dissected back.  The lower jaw is then to be divided at
its  symphysis,  and the two portions separated.   By bend-
ing the head back, we shall now be able to obtain a complete
view of the cavity  of the mouth.  The position of the
tongue  should  now be examined.   If any  foreign  matters
are found in the mouth, they should be especially observed
and noted.  In short, every unnatural  appearance, whether
morbid  or  artificial,  should be  carefully investigated and
recorded.
  The larynx and trachea must  next be laid open.  If any
fluid is found, it should be specially examined.
   So much of the oesophagus as can now be seen,  is also to
be examined.
   The abdomen is next to be opened.  The first incision is
to be continued down to the lower part of the sternum, and
from this point, an incision made through the integuments
to the spine of the ilium on each side.  The triangular flap
thus made, is then to be turned  down, and the  umbilical
 vessels to be examined and tied.  The diaphragm is  to be
 observed, whether it be  much arched, or otherwise.   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.   The  whole of the
 intestinal canal, with the stomach, should be  taken out,
 after having tied the two ends.  The  contents of  the sto-
 mach are to be  critically investigated, especially to  as-
 certain if it contain any milk.   If there is any suspicion 
538
INFANTICIDE.
 of poison, the  ordinary tests for ascertaining it should be
 resorted  to.  The state  of  the  gall bladder and  urinary
 bladder should be examined, whether they be empty or not.
 Lastly, it should be seen whether there be any meconium in
 the intestinal canal.
  In opening the thorax, the ribs and  sternum  must be
 divided in the ordinary manner; and in doing this, a scissors
 will be found a much more safe and convenient instrument
 than a scalpel.  Having  exposed the thorax to view, the
 general appearance, position and colour of the lungs are to
 be remarked.
  The aorta, the carotids, and vense cavse are to be  tied and
 cut beyond the ligatures.   The trachea is now to be divided
 as near as possible to the lungs.  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 examined, and it should be  particularly
 noted whether the auricles and ventricles are filled with
 blood ; the state of the ductus arteriosus should be ascertain-
 ed ; and lastly, the state of the foramen ovale.
  As the  death of an infant may not unfrequently be caused
 by  injury inflicted on the spine, it becomes necessary to
 examine this part also.   A longitudinal incision should be
 made from the  occiput  to  the  sacrum—the muscles to be
 separated and turned back.  By means of strong  scissors,
 the vertebrae are then to  be  divided on each side.   The
 posterior  part of the  spine thus  separated, may  easily be
 removed,  and the whole canal exposed for 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 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 separate them by a scissors  along  their mem-
branous connexion with  each  other. Great  care  should 
INFANTICIDE.
539
be taken not to occasion any laceration during the dissec-
tion.
  The substance of the brain  must be carefully investigated,
and  every deviation  from the natural and healthy state
observed.   Although this examination of  the brain  can
throw no light upon the question whether a child has been
born  alive, yet it  may  aid  us materially  in detecting the
cause of its death.
  Having  completed  the  dissection,  the  inferences  to  be
drawn from the information thus obtained, must be obvious.
They  have been so  fully explained  in the former part of
this chapter as to render unnecessary any recapitulation.
           EXAMINATIONS  AND  REPORTS.

   Having finished the discussion of the various points con-
nected with  the  subject of Infanticide, I shall close this
part  of it  with  the history of  a few cases  and reports.
They are all  taken from  French authorities, and I have  se-
lected  them  not  merely  with the  view  of illustrating the
doctrines previously advanced, but of  showing the manner
in which criminal cases are investigated and reported upon
on the continent  of Europe.   It is to be hoped that a simi-
lar mode may ere long be adopted in this country.

   1. Infanticide proved in an infant that had not respired.*
  The subject of this report was a new-born infant, which had been found in
an uncultivated  field the evening previously.  The inspection and report
were  made by virtue of an ordinance of the agent for the Procureur du Roi.
  Examination.   The cadaveric rigidity was still very marked—death had
therefore taken place very recently.
  It was impossible to determine the weight for want of a balance.  Length,
fourteen inches six lines, Fr. The middle of the  body corresponding to six
lines above the umbilicus.  Bi-parietal diameter of the head, two inches  six

  * This case is reported by M. Devergie, in the Annales d'Hygiene Publique,
&c, May, 1837.  Translated by  Prof. Dunglison, in his American Medical
Library and Intelligencer for December, 1837. 
540
INFANTICIDE.
lines ; occipito-frontal, three inches ;  occipito-mental, four inches.   Skin well
organised ; very distinct from the membranes of the cord around the umbili-
cus.  Hairs about half an  inch long, but very  numerous.   Total  absence of
points of ossification between the condyles of the femur.   (This  infant had
not, therefore, attained the term of eight months of utero-gestation.)
  At the posterior and upper part of the head, on the median line of the occi-
pital bone and in the course of a portion of the  parietal suture, a wound ex-
isted an inch and eight lines long, having at its centre on one of the  lips,  a
slight  prominence, on the other lip  a slight  parallel depression, as if the
wound had been made  at two different times, or as if the instrument  had
changed  its direction.  In the whole circumference of this wound, and in the
subpericranian cellular tissue, an ecchymosis existed, which extended to the
third of the superior surface of the head under the form of a bloody cap (cal-
lotte); the infiltrated blood was coagulated.   Towards the middle of the
upper margins of the left  parietal bone, in the  vicinity of the superior angle
of the wound just described, there was a section of the margin of the parietal
bone, with separation and elevation of one of the fragments of the section,
which was seven lines in depth.  The longitudinal sinus of the dura mater
was opened ; blood was effused between the two lobes of the brain, as well
as at the surface of the  cerebellum.   Two contusions of the cerebellum with
coagulated and infiltrated blood existed at the  base of that organ.   These
were four lines long and two broad.   The two  temporal muscles were com-
pletely ecchymosed;  and the blood infiltrated into the substance of their fibres
caused the  temporal aponeuroses to project.   These were the result of vio-
lence,  evidently perpetrated during life, and which it would have been im-
possible to produce, if the child had been still in the womb.
  A portion of the cord,  eight inches long, adhered to the umbilicus by means
of the  membranes and the vessels, wholly untouched.  This portion of the
cord, which contained a large  quantity of the jelly of Wharton, was  sound,
renitent, and presented at  its free extremity a clean section, as if it had been
made with scissors ; another portion of the cord, separated  from the rest, as
regarded conformation,  color, volume, and consistence, was entirely like that
attached to the umbilicus; the two fine extremities were cut clean.
  The placenta, which was very fresh, was in proportion to the developement
of the  infant.   It had only an inch and a half of cord attached to it.
  The skin was generally  pale, as well as the thymus, the lungs, and the in-
testines,  which were contracted. The cavities of the heart contained little
blood.   The lungs were perfectly sound, and did not appear to fill the cavity
of the  chest; their tissue was  formed of a series of fleshy lobules, separated
from each  other by cellular tissue ; no  air vesicles were perceptible.  The
lungs,  when placed in water, with the heart,  sank; when placed alone in
water, they sank; when cut into portions, they also  sank.  Each fragment
eompressed under water, yielded scarcely any blood from its tissue,  and no
air bubbles;  after compression, it remained at the  bottom of the  liquid.
Meconium  was contained  in the sigmoid flexure of the colon and in the rec-
tum;  the foramen ovale was  open;  the  umbilical arteries and vein were
widely open. 
INFANTICIDE.
541
  Conclusion.  1. The infant subjected to examination, had not attained the
end of the eighth month of pregnancy.  2. It proceeded from a recent ac-
couchment, which might have occurred in the night of the----, to the     .
3. The infant was born alive.  4. It had not respired.  5. Death was the ne-
cessary result of the wounds that have been described; one of them had been
effected by a cutting and perforating instrument, the other by blows.  6. It is
possible  that after the section of the cord, there might have been a loss of
blood, which might account for the exanguious state of the body.
  Such is a satisfactory case of Infanticide, established in the case of a child
that had not breathed, and yet was alive.

 2.  Report proving  Infanticide, from  violence  applied to  the
                                head.*
  We, the undersigned, doctors of  medicine and surgery, of the faculty
of----,  inhabitants of the town or parish of----, canton of----, arrondise-
ment 0f----, 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
0f____}  No.----, story----, room----, to visit there the corpse of a child
 0f the----sex, which had been found in the morning under a heap of dirt,
 in the yard of the said house, and to  ascertain the cause of its death.
   Arrived in the house and room designated, they presented to us the  said
 body, wrapped in coarse rags of woollen stuff,  much worn and moth-eaten.
 After having stripped it,  we observed  that there was attached  to the umbili-
 cus, a portion of the umbilical cord, still fresh, without any ligature, and about
 five inches in length, of which the open extremity  was very visibly unequal
 and fringed ; which convinced us that the cord had  been broken or torn by
 force.  The body was still covered over with the unctuous and whitish sub-
 stance that almost all children have at their birth : this substance was mixed,
 in some places, principally on  the head, shoulders, and buttocks, with dust
  and blood.
   To enable us to examine the body with care, we had  it washed and care-
  fully dried.  We observed afterwards that it was  large, fat, well formed, ex-
  empt from putrefaction and fetor.  Its whole length was nearly  twenty inches,
  and its  weight about seven pounds.   The whole of the surface of the trunk
  was soft and of a pale color, 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 be-
  yond the adipose tissue—of which we assured ourselves by dissection.   The
  flesh of the limbs was soft, and all the joints flexible; the left elbow and the
  thumb  of the  corresponding hand slightly excoriated, as well as the external
  part of the  knee, and  the heel of the same side.   The face  was of  a  livid
  color,  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 that side, werejecchymosed and blackish.
* Capuron's Medecine Legale, p. 494. 
542
INFANTICIDE.
   The skull was very soft on the right side, changed its form by the slightest
 pressure, and sank down when it was placed on the opposite side.  The skin
 on the temporal region of the  right side, from the top to the neck, and from
 the forehead  to the occiput, was brownish; and through this skin could be
 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 inci-
 sion, 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  de-
 tached from the neighboring bones, as well as from the pericranium, and from
 the dura mater.  It was  also fractured in two places and in two ways, viz.
 directly from the third superior of its anterior edge  to the corresponding point
 of its posterior edge, and obliquely from the parietal swelling to the temporal
 bone.  This last bone was equally broken  in its superior edge, and its articu-
 lation 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 ster-
 num, between the second and third  rib, a small round wound, half a line in
 diameter.   A similar wound existed on the left side of the neck and immedi-
 ately above the  shoulder.  But neither penetrated beyond  the skin, as  we
 proved by dissection.
   On opening the head, we found the right lobe of the  brain covered with
 blood, and completely disorganized;  it had no longer  its natural form, struc-
 ture or consistence.  We found also at the basis of the skull, about two ounces
 of serum.
   On opening the chest, we perceived no defect of conformation in the organs;
 the heart and the large vessels were  gorged with blood,  the lungs developed
 and of a rose  color.  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 or deformity;
 the large intestine was  filled with meconium,  and the bladder contained a
 little urine.
   After all these observations, we  conclude and declare that the child, whose
body we  examined, was of full term, strong and well made; which is attested
by its volume, weight, dimensions, and its exterior conformation.
   That it was 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 examining the state of the
lungs, and in placing them in water, when they completely floated.
  That it died shortly after its birth ; which is also proved by the adhesion of
a portion of the umbilical cord of the  umbilicus; by the unctuous and whitish
substance with which the skin was covered, and by the meconium with which
the large intestine was filled.
   That it had not been long dead; which is  proved by the absence of fetor 
INFANTICIDE.
543
and of every mark of putrefaction; by the softness and freshness of the flesh,
and by the flexibility of the joints.
  That the death of the child could not be the effect, either of a haemorrhage
by the umbilical cord; which is proved by the engorgement of the heart and
of the large  vessels—nor of suffocation; which  is proved  by the absence of
any alteration  in the chest and lungs—nor of any natural or ordinary cause;
which is proved by the marks of violence impressed on the head and face,
which attest,  on the contrary, a violent death—nor of a fall on the skull,
where we observed fractures, of  which the situation, the form,  the  number
and direction,  prevent us attributing it to this cause.
  Finally, that the death of this  child is the effect of blows or  external vio-
lence, given a short time after its birth, on the right  side of the head and of
the face; the only cause to which we could attribute the fractures of the skull,
the effusion  of blood in this cavity, and the disorganization  of the brain.
  In testimony of which, we have  drawn up  the present report, which we
closed at the house of----, in presence of----, and which we  certify to be
correct.
                               (Signed.)

3.  Report on a case of Infanticide,  in consequence of omitting
                     to tie the umbilical cord.*

  I, the undersigned, doctor in medicine,  and physician of the Hospital of
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 he would not permit to be buried, until the
cause of its death had been proved, I repaired to said commune on the 5th of
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 appeared to  come from the umbilical cord.
After this information, 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 color of white wax—the lips were of
the same color, instead of being rosy—the limbs were flaccid and pliable, and
the  lower  part of the  belly very projecting.   On examining  carefully the
whole surface of  the body and all the external cavities, no trace of violence
of any kind could be discovered.  The state of the umbilical cord, however,
struck me particularly.  It had a ligature upon it,but so loose that the handle
* Manuel de Medecine Legale, par Briand, p. 314. 
544
INFANTICIDE.
of a bistoury could be run between the cord and the ligature.  On measuring
the cord I found it cut off clean at three inches  from  the  umbilicus.  I now
proceeded to open the chest.  The lungs and heart were such as they ordina-
rily are in children who have respired, but of a very pale color.  Having de -
tached the viscera for the purpose  of making experiments on the lungs, the
following things  were observed:   1.  In separating the heart and lungs from
the chest, not a single drop of blood was perceived, nor was there any during
the dissection.  2.  The lungs  pressed  between the hands and cut with  a
knife, crepitated  throughout their  whole  extent.  They were also perfectly
healthy.  3. On putting the heart and lungs connected together in a bucket
of water at the temperature of  10° Reaumur, the whole floated perfectly.   4.
The quantity of blood found in the heart and large blood-vessels after having
opened them, was only two  ounces.  The  cavity of the abdomen and its con-
tents were then examined, but  presented nothing  peculiar, with this excep-
tion, that the liver was much paler than common, and the large vessels dis-
sected 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 variuos observations, I draw the following conclusions:  1. That
the child in question was  born  at the full term, alive, and in a sound state.
2. That it must have performed a great number of full and complete respira-
tions, and that it must have lived several hours.  3.  That it  did not receive
any violence, properly so called, such as blows,  contusions, &c, which could
have caused its death.   4. That its death was the result of hsemorrhage from
the umbilical cord, and that it is probable that the flat string which loosely
surrounded the extremity of the cord, was placed there as a ligature,  after
 life had already been entirely extinguished by the haemorrhage.


              4. Report  of  a case of recent delivery*

   We, the undersigned, professors of the faculty of medicine, &c. ----, at
 the request of the commissary  of police of the division of Luxembourg, went
 with him this day,  (Sunday,) 1809, at 10 o'clock in the morning, to a house
 occupied by Me. Catharine  Tillard, for the purpose of visiting  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.
   We found the said Nanette Tillard in bed, and from the examination which
 she underwent, we made the following observations :
   1. Her face was somewhat pale;  her eye heavy, and slightly discolored.
   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 odor which is
 peculiar to women in childbed.
   3. The breasts were tumid and painful; milk had already  issued from the
 nipple, as we convinced ourselves by examining the stains on the linen of the
* Considerations sur l'Infanticide, par Lecieux, p. 68. 
INFANTICIDE.
545
patient: moreover,  in  squeezing the breast gently, we expressed a milky
fluid well marked by its color 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 umbili-
cus ; a brownish line was also visible, running from the pubis to the umbili-
cus,  and we perceived that the median line of the abdominal muscles had ex-
perienced considerable extension, as was ascertained by the irregularity of its
course in running the end of the finger over it, especially on the side towards
the umbilical region;  finally, through the parietes of the abdomen, we felt
the body of the womb, which was voluminous, hard and round, at a little dis-
tance 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 color and the strong  odor  peculiar to  parturition, as we convinced
ourselves by examining the linen under the patient.
  6.  The  genital organs were slightly tumefied, and  very much dilated in
their whole extent; the orifice  of the womb  was relaxed and  soft;  it gave
passage to the bloody whitish fluid just mentioned;  it was so pliable, and so
much dilated, that we could easily have introduced several fingers.
  7.  Finally, we found by examination that the pelvis  was large, wide, and
well constructed for an easy delivery.
  From these different observations, we affirm,
  1.  That Nanette Tillard had been delivered  three or four days at the far-
thest ; which is satisfactorily proved by the condition of the breasts, the secre-
tion of the  milk in them, the smell of the perspiration, the nature of the dis-
charge from the genital  organs, the state of the womb, of the abdomen, and
of the genital organs.
  2.  That no disease or affection other than delivery, could produce all these
effects combined, which we have observed.
  3.  That from the formation  of the pelvis, Nannette Tillard could be deliv-
ered easily and promptly.
35 
546
INFANTICIDE.
                       PART  III.
Of Infanticide in its  relations to medical police, including a
  history of legislation on  the subject, and an examination of
  the effects of Foundling Hospitals.

  Infanticide, which  at one period prevailed so universally
and without restraint among the most polished nations of
the world,  is now considered, in all enlightened countries,
as a crime  of the deepest dye.   Mankind, on this  subject,
have vibrated from one extreme to the other; and  it is not
to be questioned, but  that in modern times, many an inno-
cent female has been  sacrificed to suspicion and  prejudice.
The principle, however, which now guides the  moral judg-
ment of society  on  this subject, is undoubtedly just; for it
is a crime which presupposes the obliteration of those  feel-
ings which human  nature ought to  be most proud of, and
which, if countenanced, or but slightly punished, must  lead
to the most dreadful consequences.
  That a young  female  of character  and reputable connex-
ions, may  be 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 pallia-
tions, cannot be considered  as less than wilful  murder, and
as such demands exemplary punishment.
  It is not, however, enough for a wise legislation, merely
to punish crimes after they are  perpetrated;  it should  also
adopt the most effectual means of preventing their commis-
sion altogether.   In the language of a  philosopher, it may
be said, that  "the punishment of a crime cannot be just,  if
the laws have not endeavored to prevent that crime by the
best means which times and circumstances would allow."4

  * Beccaria's Essay on Crimes and Punishments, p. 104.  New York edit. 
INFANTICIDE.
547
  With regard to Infanticide, it is impossible to suggest any
method of arresting  it completely, unless  there be a total
reformation of that corruption of manners which lies at the
root of the evil.  Next to this, the dread of severe punish-
ment is the most effectual preventive.  Foundling hospitals
were also established with this intent; whether they have
this tendency, I shall  consider presently, after having enu-
merated 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
criminal abortion, or to the murder of the new-born infant,
yet it decreed,  that if a pregnant woman  should be acci-
dentally injured in a  fray between  two  men, so that,  she
proved abortive, without any injury to her own person, the
punishment was a fine, such  "as the judges might  deter-
mine."  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
 authors of it.  These, as  has been  already  noticed when
 considering  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 emperor at Constantinople,  ordained  that it
 should be punished  with the same severity as homicide.f
    In France, the Roman law was adopted, and practised upon
 until the  revolution.   Their parliaments  frequently con-
 demned 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 years'

   * Exodus, chap. xxi. v. 22,23.           f Fodere, vol. 4, p. 383.
   X Fodere, vol. 4, p. 348. 
548
INFANTICIDE.
imprisonment in chains.  The penal  code of the  empire,
adopted by Napoleon in 1810, contains the following pro-
visions against this crime:   " Every person who, by means
of aliments,  beverages,  medicines, acts of violence, or by
any other means, shall  procure the  untimely delivery of a
pregnant woman, although with her consent,  shall  be sen-
tenced 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
abortion, shall3 if a miscarriage ensue, be sentenced to hard
labour for a limited time."*
  The criminal code of Austria, established  in 1787, by  >
Joseph  II. in  which the punishment  of death is  totally
abolished, decrees, that a woman with  child,  using means
to procure abortion, shall be  punished with imprisonment
for  not less than fifteen, nor  more than thirty  years, and
condemnation to the public  works; augmented when mar-
ried."
  "Accomplices advising  and recommending  abortion—
imprisonment not less than  one month, nor more than five
years, and condemnation to the public works.  The punish-
ment to be increased, when the accomplice is  the father of
the infant."!
  " The laws of Germany punish with from two to six years
imprisonment, a woman (or her aiders, &c.) who, by  potions
or other  means, shall have  wilfully   produced abortion,
within the first thirty weeks from the  time of conception;
and  the penalty is protracted to eight, or at the utmost to
ten years, when such a crime has been committed within the
last month of pregnancy.
  The laws of Bavaria enact similar measures.

  * Article 317.  For the translation of the whole code, see Walsh's Ameri-
can Review, vol.  2.
  t Treatise on the Police of London, by P. Colquhoun, LL.D., 7th edition,
p. 656. 
INFANTICIDE.
549
  In the Italian code it is established, "that if a woman has
used means, with the intent to  produce abortion, and this
shall no* have taken place, she is to be punished by im-
prisonment, for a period  of from six months  to  one  year;
but if abortion has been the consequence of such means, the
imprisonment is  to be of from one to five year's duration.
The same penalties, but with  exacerbations, are enacted
against the father of the foetus, if he has been an accomplice
in the crime.  Finally, the delinquent, who, against the will
of the mother shall have caused abortion, or have made  an
attempt to cause her abortion,  is to be punished by from
one to five years' severe imprisonment; and if the  life of
the  mother has  thereby been brought into danger,  or her
health injured, the duration of the penalty  shall be from
five to ten years.*
   The English  law is thus stated by Blackstone:  " If a
woman is  quick with child, and, by a potion  or otherwise,
killeth it in her womb, or if any one beat her, whereby the
child dieth in her body, and she is delivered of a dead child,
this though not murder, was by  the ancient law homicide, or
manslaughter.  But the  modern law doth not look upon
this offence in  quite so atrocious a light, but merely as a
heinous  misdemeanor."!  " But, if the  child  be born alive,
and afterwards die in consequence  of the potion or beating,
it will be murder."X   By  a subsequent law, enacted in 1803,
called the Ellenborough act, it was ordained, that " if any
person shall willfully and  maliciously administer to, or
cause to be administered to, or  take any medicine, drug, or
 other substance  or thing whatsoever,  or use,  or cause to be
 used or employed, any instrument, &c, with intent to pro-
 cure 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 abet-
tors, shall be and are declared guilty of felony, and shall be
* London Medical and Physical Journal, vol. 43, p. 96.
t Blackstone's Commentaries, vol. 1, p. 129.
X Ibid.  Note by Christian. 
550
INFANTICIDE.
liable to be fined, imprisoned, set in and upon the pillory,
publicly  or privately whipped, or  transported beyond the
sea for  any term not exceeding fourteen years."*  The
same act ordains, that administering 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 des-
troy 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 allu-
ded 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 substance to Ann Cheney, with intent to produce
miscarriage.   It was proved  by the deposition of Cheney
herself, that repeatedly during her pregnancy she had taken
medicines from the  accused  without producing  any effect,
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 ob-
jected to receiving that part of the evidence  which related
to his manual operations, as not relevant to the administra-
tion of the medicines, which  alone constituted the capital
crime ; and the criminal was tried for giving medicine which
had no effect,  while the actual perpetration of the  crime by
mechanical violence, could only be noticed in court as pro-
ving the intention with which the medicines were given.f
By a late statute,  however, (9 George IV. chap. 31, passed
  * Statutes  at Large, 43 George III., cap. 28.  Male's  Medical Jurispru-
dence, p. 114.    f Edinburgh Medical and Surgical Journal, vol. 6, p. 244. 
INFANTICIDE.
551
27th June, 1828,) and entitled " An act for consolidating and
amending the statutes in England relative to offences against
the person," this  omission is  provided for,  and the whole
law is recast.   It now stands thus, " If any person, with in-
tent to  procure the  miscarriage of any woman then being
quick with child, unlawfully and maliciously shall adminis-
ter to her, or cause to be taken by her any poison or other
noxious thing,  or shall use  any instrument or  other means
whatever with the like intent, every such offender and every
person counselling, aiding or abetting such offender, shall be
guilty of  felony and shall suffer death as a felon; and if any
person with intent to procure the miscarriage of any woman,
not being, or not being proved to be, then quick with child,
unlawfully and maliciously shall administer to her, or cause
to be taken by her,  any medicine or other thing, or shall use
any instrument or other means whatever with the like intent,
every such offender and every person counselling, aiding or
abetting such offender, shall be guilty of felony, and being
convicted thereof, shall be  liable  to be transported for any
term not exceeding fourteen years, nor less than seven years,
or to be imprisoned, with or without hard labor, 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
Scotland, 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 viscerum matris, and not a separate being of which it
can with certainty be said, whether it would have become a
quick birth or not.   Since Mr. Hume wrote, a case occurred
in the High Court of Justiciary, where the subject was dis-
cussed.    A surgeon  and midwife, indicted for  the violent
procuring of abortion, were convicted and sent to Botany
Bay for fourteen years.*
      * Edinburgh Medical and Surgical Journal, vol. 6, p. 249. 
552
INFANTICIDE.
   Mr. Alison, one of  the  latest writers on Scotch  law,
states it to be as follows : " If a person gives a potion to a
woman to procure abortion, and she die in consequence, this
will be murder in the person giving, if the potion given was
of that powerful kind,  which  evidently puts the  woman's
life at hazard."   And again—" administering drugs to pro-
cure abortion is an offence at common law, and that equally
whether the desired  effects be produced or not."  Thus ca-
ses occurred in 1806 and 1823, where persons were sentenced
to transportation 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, there have been several changes
in the law  on this subject, and it may be well to cite them
in detail.   In the  Revised Statutes, there were two enact-
ments.  The first quoted have reference to the death of the
mother, or the unborn quick  child ; the last, to the procur-
ing 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 in-
jury to the mother of such child, which would be murder if
it resulted  in the  death of such mother, shall be  deemed
manslaughter in the first degree."!
  The punishment for manslaughter, first degree, is impri-
sonment 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.

  * 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.
553
  " 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
preserve the life of such woman, or shall have been advised
by two physicians to be necessary for that purpose, shall, on
conviction, be punished by imprisonment in a county jail,
not more than one year, or a fine not more than five hundred
dollars, or both." *
  The following law was passed on the 13th  of May, 1845 :
  " § 1.  Every person who shall  administer  to any person
pregnant  with a quick child, or  prescribe for  any  such
woman, or advise or  procure  any such woman to take any
medicine, drug, or substance whatever, or  shall use or em-
ploy any instrument or other  means, with intent thereby to
destroy such child, unless the same shall  have been neces-
sary to preserve  the  life  of such mother, shall be deemed
guilty of manslaughter  in the second degree.
  § 2. Every person who shall administer to any pregnant
woman, or prescribe for any such woman, or advise or pro-
cure any such woman to take any medicine, drug, substance
or thing whatever, or shall use or employ any instruments
or other means whatever, with intent thereby to procure the
miscarriage of any such woman, shall,  upon conviction, be
punished  by  imprisonment in a county jail, not less  than
three months nor more  than one year.
  § 3. Every  woman who shall  solicit of any person any
medicine, drug,  or substance, or  thing whatever, and shall
take the same, or shall  submit to any operation, or other
means whatever, with  intent thereby  to procure a miscar-
riage, shall be deemed guilty of  a misdemeanor,  and shall,
upon conviction, be punished by imprisonment in the county
jail, not  less than three months nor more than one year, or
by  a fine not exceeding one thousand dollars, or by both
such fine and imprisonment.
* Revised Statutes, vol. 2, p. 694. 
554
INFANTICIDE.
   § 4. Any woman who shall endeavour privately,  either
 by herself or the procurement of others, to conceal the death
 of any issue of her body, which, if born alive would, by law
 be a bastard, whether it was born dead or alive, or whether
 it was murdered or not, shall be deemed guilty of a misde-
 meanor, and shall, on conviction thereof, be punished by
 imprisonment in a  county jail not exceeding one year.
   § 5. Any woman who shall be convicted a second time of
 the offence specified in the fourth section of this act, shall
 be punished by imprisonment in a state prison for a  term
 not less than two or more than five years."
   The  last section repealed the enactments which we  have
 quoted above from  the Revised Statutes.
   Again by a law passed March 43 1846.  The first section
 of the  law just quoted  was   repealed and  the  following
 substituted in its place :
   " Every person who shall administer to any woman preg-
 nant with a quick child, or procure any such woman to  take
 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, shall, in case
 the death of such child or of such mother be thereby produc-
 ed, be deemed guilty of manslaughter in the first degree."*
   In  Massachusetts, the following comprehensive law wTas
 passed on the 31st  of January 1845 :
   " Whoever maliciously, or without  lawful justification,
 with intent to cause and procure the miscarriage of a woman,
 then pregnant with child, shall administer to  her, prescribe
 for her,  or  advise  or  direct her to  take or swallow any
 poison, drug, or medicine, or noxious thing;  or shall cause
 or procure her, with like intent, to take or swallow any
 poison, drug, or medicine, or  noxious thing; and whoever
 maliciously, and without lawful justification,  shall use any

  * Laws of New York, 1845 and 1846.  It would seem, from a statement
contained in Judge Lewis' Criminal Law of the United States, page 12, that
 the offence of wilfully causing abortion (of course without regard to the dis-
 tinction of quick or not  quick), is, notwithstanding the repeal of the section
 in the Revised Statutes, punishable at Common Law. 
INFANTICIDE.
555
instrument or means whatever, with the like intent, and any
person with the like intent, knowingly aiding and assisting
such offender or offenders, shall be deemed guilty of felony,
if the  woman die in consequence thereof, and shall be im-
prisoned not more than twenty  years, nor less than five
years in the State Prison; and if the woman doth not die in
consequence thereof,  such offender shall  be guilty of a
misdemeanour, and shall be punished by imprisonment not
exceeding seven years, nor  less than one year in the  State
Prison, or House  of Correction, or common jail, and by a
fine not exceeding two thousand dollars."
  In the state of Ohio, the law against abortion is  the fol-
lowing:
  " 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
imprisonment for  not  more than one year, or by fine  not
 exceeding five hundred dollars, or by both. If the woman
 be  pregnant with a quick child, such person shall, in case
 of the death of the child or the mother by such means, be
 imprisoned in the penitentiary, not more than seven  years,
 nor less than one  year."*
   In the  state of Connecticut, the law enacts, that for admin-
 istering 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 Newgate
 prison during his or her natural life, or for such other term as
 the court having cognizance of the offence shall determine.!
   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
 thousand dollars.!

   *  American Jurist, vol. 13, p. 211.  t RevisedLaws of Connecticut, p.  152.
  X  Laws of Missouri, 1825, p. 283. 
556
INFANTICIDE.
    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 later part of that century, however,  it was  completely
prohibited.  The  following is the article relating to it in
the Cod. Justin, lib. viii. tit. 52, de infant, expositis, 1, 2 :
" Unusquisque  sobolem suam nutriat.   Quod  si expon-
endam' putaverit,  animadversioni quae constituta est, subja-
cebit."*
  The following statement of the laws against Infanticide
and Abortion in the middle  ages, is given in the Cabinet
Cyclopedia of Dr.  Lardner.
  Among the Germanic nations of the middle ages, " death
was the penalty of infanticide, generally, even at the  time
of birth; or if  the judge  spared  the midwife,  she lost her
eyes."  Among the  Bavarians, there was a singular provi-
sion against abortion: " the pecuniary mulct was not only
to be paid annually by the man who caused the abortion, but
annually by his descendants to the seventh generation; for
as the child or foetus had not been baptized, and as its doom
was,  consequently,  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 punish-
ment as regarded both parricide and infanticide;  sometimes
the culprits were dragged by red-hot forceps to the place of
execution ; but the unnatural mother, even if she were only
guilty of producing  abortion, was often  sewed  in a sack,
and thrown into a  river.   In  Saxony, even at a late period,
a viper, monkey and dog were sewed in the same sack;  and

  *  Beckman's History  of Inventions, vol. 4, p. 437.
  t  Dunham's Europe in the Middle Ages, (Lardner, No. 49,) vol. 2, p. 145.
  X  Cod. Justin, 1, 9, pr. a. ad. Leg. Pomp, de Par. 
INFANTICIDE.
557
at a later period, too, in Siberia and Lusatia, the living grave
and stake were in use."*
  The emperor Charles V. condemned the mother to death
only in  cases  where it could be  proved that the child had
been born alive.!  The Caroline code, {Constitutio Carolina,)
in such cases  ordained, that  the guilty person  should be
tied in a bag with a live cock  and a cat, and thrown into a
river. J
  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 prevail-
ed  until the year  1791,§ when every thing  relating to the
concealment of pregnancy was repealed, and death declared
to be the punishment of the murder of the child.
  The penal code of the French empire enacted, that " every
person guilty  of assassination,  parricide, infanticide, or poi-
soning, 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 sixteen to two hundred francs."—Art. 349.
   And  " if, in consequence of  such exposition or abandon-
ment, the child shall be mutilated or crippled, the act shall
be  considered and punished as  in the case of wounds volun-
tarily inflicted ; and if the consequence be death, it shall be
considered and punished as murder."—Art. 351.||
   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."TT
  * Dunham, vol. 2, p. 146.
  t Fodere, vol.  4, p. 396.              X Male, 2d edition, p. 271.
  § Fodere, vol.  4, p. 365.
  || American Review, vol. 2, p. 396.       IT Colquhoun, p. 66. 
558
INFANTICIDE.
  Although the Chinese have  no law prohibiting the expo-
sure of children, yet they inflict a slight punishment for the
wanton murder of them.   The following is the law on that
subject:   " If a  father,  mother, paternal grandfather or
grandmother, chastises a  disobedient child in a severe and
uncustomary manner, so  that he or she dies, the  party so
offending shall be punished with one hundred blows.*
  The English law on this subject has, within a few years,
been materially changed.
  By the Stat. 21, Jac. 1, 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 endeavor privately,  either by drowning or secret
burying thereof, or  any other way, either by herself or the
procuring of others, so to conceal the death thereof, as that
it may not come to  light whether it were born alive or not,
but  be  concealed : in every such case, the said  mother so
offending, shall suffer death as in the case of murder, except
she can prove by one witness at the least,  that  the child
whose death was by her  so  intended to be concealed, was
born dead."!
  Upon this statute, Blackstone  remarks,  " This law, which
savours pretty strongly of severity, in  making the conceal-
ment of the death almost conclusive evidence of the child
being  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
allowed to take place in other trials of  murder : if acquitted,
and it shall appear on evidence  that the prisoner was deliv-
ered of a child,  which by law would, if born alive, be  a

  * La Tsing Leu Lee; being the fundamental laws, and a selection from
the supplementary statutes of the penal code of China.  By Sir George
Staunton, F. R. S. (Quarterly Review,  vol. 3, pp. 312-13.)
  t  East's Crown Law, vol. 1, p. 228.
  X Blackstone's Commentaries,  vol. 4, p. 198. 
INFANTICIDE.
559
bastard, and that she did, by secret burying or otherwise,
endeavor to conceal the birth thereof, thereupon it shall be
lawful for such court, before which such prisoner shall have
been tried, to adjudge, that such person shall be committed
to the common gaol, or house of correction, for any time not
exceeding two years."
   The English law, according to the 9 George IV. chap. 31,
stands at present thus—
   " If any woman shall be delivered  of  a child, and shall
by secret burying or otherwise disposing of the dead body
of the  said  child, endeavor ;to conceal  the birth thereof,
every such offender shall  be guilty of a misdemeanor, and
shall be liable to be imprisoned, with or without hard labor,
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 bury-
ing or otherwise disposing  of the dead body of such child,
endeavor to conceal the  birth  thereof, and thereupon, the
court may pass such sentence, as if she had been convicted
upon an indictment for the concealment of the birth."
   In Scotland, " if  a woman conceal her pregnancy  during
the whole period, and shall not call for, or make use of help
or assistance in the birth, and if the child  shall be  found
dead or be  a missing, she shall be subject to  two years'
imprisonment."*
   In the state of New York, we have  no particular  law
concerning 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.!

   * Alison's Principles of the Criminal Law of Scotland, p. 151.
   t The enactment of the English Code relative to the concealment of the
death of an illegitimate child was for the first time introduced among the laws
of New York in May, 1845.  (See p. 554.)  It is punishable with imprison-
ment. 
560
INFANTICIDE.
  In Massachusetts,  according  to  the Revised  Statutes,
(Lewis, Criminal Law, p. 203) the concealment by a woman
of any issue  of her body, which if born alive would be a
bastard, so that it may not be known whether such  issue
was born alive or not, or whether it was  not  murdered, is
punishable by fine or imprisonment.
  In Vermont, a law  was passed in 1797, punishing with
death the murder or concealment of a bastard, if it came to
its death by  the  neglect, violence, or procurement of the
mother.   This has been repealed, and in the revised laws
of that state it is enacted, that if a woman be  privately
delivered of a bastard, and it be found dead, and if there be
presumptive evidence of neglect or violence on the  part of
the mother, the punishment shall be a fine  not exceeding
five hundred dollars, and imprisonment not over two years ;
one or both at the discretion of the court.*
  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.!
  In New Jersey,  the concealment of  pregnancy, and de-
livery in secret, is considered a misdemeanour, and punished
by  fine and  imprisonment.   Concealing the death of the
bastard, is also  punished by fine and imprisonment.!
  In New Hampshire, the concealment of the  death of a
bastard child, is made a crime, and the punishment directed,
is  imprisonment for not more than two years,  or a fine not
exceeding one thousand dollars.§
  In Pennsylvania, by the  act passed in 1781, the conceal-
ment of  the  death of a bastard  child, was conclusive evi-

  * Laws of Vermont, 1808, vol. 1, p. 349.   f Revised Laws, 1821, p. 152.
  X Digest  of the Laws of New Jersey, 1833, pp. 224, 225.
  § Digest  of the Laws of New Hampshire, 1830, p. 149. 
INFANTICIDE.
561
dence 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, every person so  advising and directing, shall be
deemed accessary 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 Aprilj  1790, the constrained presumption that the child,
whose death is concealed, was, therefore,  murdered  by the
mother,  shall not be sufficient evidence to convict the party
indicted, without  probable presumptive proof is given that
the  child was  born alive; and  that  of the  22d of March,
1794,  declares, " the concealment of the death of any such
child, shall not be conclusive evidence to convict the party
indicted of the murder of her child,  unless the circumstan-
ces  attending it be such as shall satisfy  the  minds of the
jury that she did  wilfully and maliciously  destroy and take
away the life of such child."*
  In Rhode Island, the law is very similar to that in Penn-
sylvania.!
  In South Carolina,  concealment of the death of a bastard
child is presumptive, but not conclusive evidence of murder.
Acquittal  will follow, if it  is  shown to  have been still-
born.!
  In Delaware, by a law passed in  1719, the concealment  of
the death of a bastard child is made a capital offence, except
the mother can make proof by one witness at least, that the
child whose death was by her so intended to be concealed,
was born dead.  This, however, was repealed, and I cannot
find at present any statute on this subject in the code of that
state.§
  In Georgia and Illinois, the  concealment of the death  of
an illegitimate child, is punished with imprisonment.||
  * 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.    X Lewis' Criminal Law, p. 205.
  §  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.
                    36 
562
INFANTICIDE.
  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 ille-
gitimate children, are generally considered as a great means
of preventing child-murder.  The  object of these institu-
tions is no  doubt commendable, but it is certain that they
are not productive of that decided utility which is usually
attributed to them.  It is not to be denied  that  some good
results from them, but it is by no means commensurate with
the abuses  to  which they give rise.   That they encourage
illicit  commerce between the sexes—discountenance mar-
riage—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. Malthus  states facts  of this  kind
with  regard to the foundling  hospital 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 consid-
ered  as very  strict, had  sent  six children to the foundling
hospital, without the loss of her place."!  It is not neces-
sary  to enter  into a labored course of reasoning, to prove
that the effects of these establishments are decidedly injuri-
ous 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."!

  * Laws of Michigan, 1820, p. 194.
  t Malthus on Population, vol. 1, pp. 368—9.
  X Malthus on Population, p.  370.  For further illustrations of this fact,
see a history of the present condition of public charity in France, by David
Johnston, M. D., pp. 320, 321. 
INFANTICIDE.
563
   In the  language of the Edinburgh  Review, " such an
 establishment (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
 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 astonishing mortality.
   In Paris, in the year 1790, more than 23,000, and in 1800,
 about 62,000 children were brought in ; and it is estimated,
 that eleven-thirteenths of all the foundlings perish annually
 through hunger and neglect.!  It is stated also, that vast
 numbers of the  children  die from a disease called l'endur-
 cissement du tissue cellulaire, which  is only to be met with
 in the foundling hospital.!  Of 100 foundlings in the Found-
 ling Hospital at Vienna, 54 died in the year 1789.  Subse-
 quent  accounts of  this  hospital, do  not represent it  in a
 more favorable light.  In a recent  description of this insti-
 tution, it is stated, that " all attempts to rear the children in
 the hospital itself had failed.  In the most favorable 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, 2,583 out of
 2,789 died.  In 1811,  2,519  out  of 2,847  died.  Like the
 cavern  of Taygetus, this hospital  seemed to open its jaws
 for the  destruction of the deserted and illegitimate progeny
 of Vienna.  The emperor Joseph  II. frequently visited this
 hospital in person, and upon one occasion he  ordered Pro-
fessor Boer ty  make a series of experiments with all kinds

  * Edinburgh Review, vol. 38, p. 440.
  t Beckman's History of Inventions, vol. 4, pp. 456-7
  X Cross' Medical Sketches of Paris, p. 197. 
564
INFANTICIDE.
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 wTere dead."*
  In consequence of this extraordinary mortality, " in 1813,
the government enacted that  the  foundling-house should
serve merely as a depot for the children,  till they could be
delivered to the care  of .nurses in different parts of the
country."  In  1822, under  this new system  of nursing in
the country, the deaths  had diminished from  1 to 2, to
1 to 4|.!
  In  St. Petersburgh and Moscow, the foundling hospitals
have always been managed with the greatest  liberality and
care ; and  yet, in the latter city, during  the twenty years
subsequent to 1786, when the hospital was  first instituted,
of 37,000 children received, 35,000 at least are computed to
have died.   In 1811, the foundlings admitted into  the hos-
pitals appropriated to them, were 2517, and the deaths were
1038. In  1812, 2699 were admitted,, and the deaths were
1348.   In the  province of Archangel, the  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
received  at the hospital in that place, of whom 429  died.§
  In the hospital at Metz,  calculation showed that seven-
eighths of  the whole number of children perished.  In an
institution  of this kind  in one of the German  principalities,
only  one of the foundlings, in 20 years, attained  to  man-
hood.U
  " In 1751, Sir John  Blacquiere  stated to  the House of
Commons of Ireland, that of 19,420 infants admitted into
the Foundling Hospital  of Dublin, during the last ten years,
17,440 were dead or unaccounted for; and that of 2180 ad-
mitted during 1790, only 187 were then alive. In  1797, he
got a committee of the same House appointed, to inquire

  * Quarterly Journal of Foreign Medicine and Surgery, vol. 1, p. 188.
  t  Elements of Medical Statistics, by F. Bisset Hawkins, M. D., p. 136.
  t  lb. p. 137.  § lb. p. 139.  || Beckman on Inventions, vol. 4, pp. 456-7. 
INFANTICIDE.                   565
into the state  and management of that institution.   They
gave in their report on the 8th of May, 1797; by which it
appeared, that within the  quarter ending the  24th March
last, 540 children were received into the hospital, of whom,
in the  same space of time, 450 died: that, in the last quar-
ter, the official report of the  hospital stated the deaths at
three, while the actual number was found to be 203 :  that,
from the 25th of March to the 13th of April, nineteen days,
116 infants were  admitted; of which number, there died
112. Within the last six years, there were admitted  12,786;
died in that time, 12,651.   So that in six years, only 135
children were saved to the public and to the world.
   " In the Charite of Berlin, where  some enjoyed the ad-
vantage 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 Montpellier,  even 60.  At Cassel, only 10 out of 741 lived
14 years.  In Rouen, one in 27 reached manhood : but  half
of these in so miserable a state, that of 108, only two could
be added to the useful  population.   In Vienna, notwith-
standing the princely income  of the  hospital, scarcely one
in 19 is preserved.   In Petersburgh, under the most admir-
able management and  vigilant attention of the  Empress
Dowager, 1200 die annually out of 3650 received.   In Mos-
cow, with every possible advantage, out of 37,607 admitted
in the course of 20 years, only 1020 were sent  out."*
   The Foundling  Hospital of London,  exhibits rather  a
more  favorable picture.  The average of those who died
there under twelve  months, in ten years, was  only one in
six, and for the last four or five, even less in proportion.!

  * Edinburgh Med. and Surg. Journal, v. 1, pp. 321-2.
  t Highmore's History of the Public Charities in and near London, p. 727.
Rees' Cyclopedia, art. Hospital. 
566
INFANTICIDE.
   The general fact is, however, sufficiently evident, that the
lives  of  multitudes  of  children  are  sacrificed in  these
hospitals.  The causes, too, are evident.  In some instances,
it arises from the want of nurses, or the mismanagement and
cruelty of those that are employed ; in others, from the 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 In-
fanticides 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
it is the case.   And  it is accordingly  stated, that after the
Foundling institution of Cassel was established,*  not a year
elapsed  without  some  children  being  found  murdered  in
that place  or its vicinity.!
  * Beckman, v. 4, p. 456.
  t In relation to the general effects of foundling hospitals, a most important
work has recently been announced, of which only the prospectus has yet ap-
peared^  the following notice of which I take from Silliman's Journal of Sci-
ence and the Arts. In collecting materials for his work, the author, (M. De
Gouroff, Rector of the University of St. Petersburgh, Counsellor of  State,
&c.) has travelled over the greater part of Europe. According to this author,
it is chiefly in Catholic countries that foundling hospitals are found. " Aus-
tria has  many such institutions ; Spain reckons 67 ; Tuscany, 12; Belgium,
18; but  France, in this respect, excels other countries—she has no less than
3>32.   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 work-houses of that city, of which he visited a large num-
ber in 1825, amounted, during the same period, to 4668, or 933 per annum ;
and that about one-fifth of these are supported at the  expense of their fathers.
By a striking contrast, Paris, which  has but two-thirds of  the population of
London, enumerated, in the same five years, 25,277  enfans  trouves, all sup-
ported at the expense of the state."
  To ascertain the contagious influence of these houses on the abandonment
of new-born children, Mayence had no establishment of this kind, and from
1799 to 1811, there were exposed there 30 children.   Napoleon, who imagined
that in multiplying foundling hospitals, he would multiply soldiers and sai-
lors, 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 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 suc-
ceeding  years, but seven children were exposed.  (American Journal of
Science and the Arts, vol. 17, p. 393.) 
INFANTICIDE.
567
List of British and  American Cases and Trials for Infanticide.

  1.  William Pizzy and Mary Codd, tried at Bury St. Edmunds, 1808, for
feloniously administering a certain noxious and destructive substance to Ann
Cheney, with intent to produce miscarriage.  In this case, the abortion was
perfected, not by the medicine, but by the subsequent introduction of an in-
strument into the uterus. (1)
  2.  Charles Angus, indicted and tried at Lancaster, 1803, for the murder of
Margaret Burns, of Liverpool.   In this case, the prisoner was charged with
endeavoring 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 procure
abortion in Hannah Mary Goldsmith, by giving savine. (3)
  4.  The  case of Robin Collins, tried at Chelmsford assizes, 1820, for ad-
ministering steel filings and pennyroyal water, with  the intent to produce
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 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)

   (1) Edinburgh Medical and Surgical Journal, vol. 6, p. 244.
   (2) See Annual Medical Register for 1808, vol. 1, p. 143. Edinburgh Medi-
cal and Surgical Journal, vol. 5, p. 220.   A vindication of the opinions deliv-
ered in evidence by the medical witnesses for the Crown, on a  late trial at
Lancaster for murder, p. 88.  An able pamphlet written by John 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, t> 77
   (7) Ibid. vol. 11, p. 78.                             *'   '
   (8) Ibid. vol. 21, p. 231.
   (9) Ibid. vol. 25, p. 34.
  (10) Ibid.  vol. 35, p. 456.
  (11) Edinburgh Medical and Surgical Journal, vol 26 p 62
  (12) Paris and Fonblanque,  vol. 3, p. 126, taken from Burnett's Treatise
on the Criminal Law of Scotland. 
568
INFANTICIDE.
  13. Case of infanticide at Aylesbury, in 16G8.   The woman murdered her
child in a state of temporary insanity, and was acquitted on that ground.  (13)
  14. Mary Baker, for infanticide, reported by Dr. Robinson, of Bridgport,
England.  (14)
  15. Case of infanticide,  reported by W. Chamberlaine, surgeon in Lon-
don. (15)
  16. Case of infanticide, reported by Mr. F. H. Ramsbotham. (16)
  17. A woman indicted and tried for infanticide, at the Sussex assizes, Eng-
land, 1S25. (17)
  IS. 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, 1531, in Jefferson county, Ohio, before
the supreme court. Reported by John Andrews, M. D. (21)
  22. Trial of Hannah Hall, for murdering her illegitimate child,  in the
county of Chester, Penn., in 1833.   Reported by Isaac Thomas, M. D. (22)
  23. Report of a trial for infanticide, with remarks.  By Charles A.' Lee,
M. D., of New-York.  (23)
  24. Report of a trial for murder, by the administration of oil of savine, for
the purpose  of procuring abortion.  By Charles A.  Lee, M. D., of New-
York. (24)


  (13) Paris and Fonblanque, vol.  3, p. 129.
  (14) London Medical Repository, vol. 22, p. 346.
  (15) London Medical and Physical Journal, vol. 7, p. 283.
  (16) London Medical Repository, vol.  21, p. 344.  Godman's  Journal  of
Foreign Medicine and  Surgery, vol. 4, p. 532.
  (17) Johnson's Medico-Chirurgical Review, vol. 9, p. 239.
  (18) London  Medical Gazette, vol. 10, p. 375.
  (19) Lancet, vol. 9,  p. 339.
  (20) Report of the  trial  of Susanna,  a colored woman,  before the Hon.
Ambrose Spencer,  Esquire, at a court  of oyer and terminer, held at Schenec-
tady, 23d October, 1810, on a charge of having murdered her infant bastard
male child.  By Henry W.  Warner, 1810.
  (21) American Journal of  Medical Sciences, vol. 9, p. 257.
  (22) Ibid. vol. 13, p. 565.
  (23) Ibid. vol. 17, p. 327.
  (24) Ibid. vol. 21, p. 345. 
CHAPTER IX.
LEGITIMACY.
1 Of the ordinary term of Gestation—whether uniform or not.  Causes that
  may produce mistakes in the reckoning of females.  Variation observed
  among animals in the term  of gestation.   Causes which, it is supposed,
  may vary it in the human species—physiological explanations of this. 2.
  Premature delivery.  Within what period a mature child should be deemed
  legitimate.   3. Protracted delivery.  Remarkable cases of it in Ancient
  Rome, Germany, France and England. Gardner Peerage case: Opinions
  of distinguished accoucheurs on this subject.  Cases.  4. Laws of various
  countries on  the subject of legitimacy—Roman—Ancient—French—Prus-
  sian—Modern French  and Scotch laws.  Decisions under these.   Want of
  positive law in England and America.  English  cases.  Remarks on this
  subject.  5.  Questions relating  to paternity and filiation.  Paternity of
  children where the widow marries immediately after the death of her hus-
  band.  Cases in the Roman, English and American courts.  English law on
  this subject.   Similitude and color as evidence of paternity.  Cases.
  The  subject now  to be  noticed,  will be  most properly
presented to the reader, by giving a fair and  full abstract of
the facts and arguments adduced in favour and against the
point   in  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  ordinary  term of
gestation is considered to  be ten lunar  months,  or forty
weeks—equal to nine calendar months and a week.*   This
period has  been adopted,  because general observation, in
  * It is very important to recollect the distinction between lunar and calen-
dar 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. 
570
LEGITIMACY.
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."!
  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 ap-
prehend  that  these have not been  sufficiently considered in
the discussions on this subject.
  Dr.  Lyall, in his publication on the Gardner Peerage case,
mentions four circumstances, and  probably  either one  or
more have influence in the reckoning of almost every  case.
They  are,  1.  Certain peculiar sensations  experienced  by
some  females  at  the time of conception,  or within  a few
hours, or a day,  or two  or  more days, after the fruitful
Coitus.  2.  The cessation of the catamenia.  3. The period
of quickening.  4. A single coitus.  If we review these, we
shall find a certain degree of uncertainty to  attach to all.
There are  some females who  are not conscious of  ever ex-
periencing  the first—the last is not  applicable  to  married
females—while the period of quickening, (as we have shown
in a  previous chapter,)  varies sufficiently   to  render  it
perfectly nugatory, in a  calculation to be made   like the

  * Take the following case by Dr. Montgomery, as an example :  " A lady
who had been for some time under our  care in consequence of irritable uterus,
went to the seaside at Wexford in the month of June, 1831, leaving her hus-
band in Dublin, a  temporary separation being considered essential to  the
recovery of her health. They did not meet  until the 10th of November, on
which day he went to see her; and being engaged in a public office, he re-
turned to town the next day.  The result of this visit was conception: before
the end of the month, she began to experience some of the symptoms of preg-
nancy ;  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.   (Cyclopedia of Prac-
tical Medicine, vol. 4, p. 87, art.  Succession of Inheritance.)
  X Hargrave and Butler's Note 190* to Section 188 of Coke upon Littleton.
The Encyclopedia Brittanica, 7th edition, Art. Bastard, incorrectly attributes
this answer to " the celebrated anatomist, Dr. John Hunter." 
LEGITIMACY.
571
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
return of the period of menstruation, may assist in leading
into error.   The  common idea is that the menstrual  dis-
charge returns 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 London, 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 two
hundred and eighty days.!  Dr. Ramsbotham in his lectures
on  midwifery, makes a similar assertion, that these twenty-
eight days are from the commencement  of one period to the
commencement of another.!

   *It has been suggested that the period of quickening is uniform in the
same female, and that  by consequence some data might thus be -obtained for
settling the contested  point; but even this is found to be incorrect.  (See
page 229.)                     t Lancet, vol. 10, p. 660.
  X  (London Medical Gazette, vol. 13, p. 269.)  " The catamenia ought to
return every twenty-eight days, except during gestation and lactation, when 
572
LEGITIMACY.
  But even if this be granted, it is far from invariable.   Dr.
Davis observes, that many women menstruate at intervals  of
from twenty-four to twenty days, and there are some, indeed,
he  says, who  menstruate  twice a  month.*   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 Manchester,  in  one  hundred  cases  taken
without  selection,  found  sixty-one in which  the menses
returned monthly,  twenty-eight  in  three  weeks,  ten  in
intervals of  varying and  uncertain  duration,  and  one,  a
healthy woman aged twenty-three, in whom  they recurred
every fortnight.!
  Dr. Gall made inquiries on this point at Vienna, and found
that every  female had thirteen  menstrual periods during the
year, so  that she who  menstruated on the 3d  of January,
did so for the fourteenth time on the last day of December.
He  found  among  perfectly regular  females  intervals  of
twenty-one,  twenty-five  or twenty-six  days.!   Velpeau
remarks, that sometimes only twenty-two, twenty, eighteen,
they are altogether absent."  (Dr. Churchill, Diseases of Females, p. 47.)
Dr. Hamilton observes that in the temperate climates of Europe, there are
no more upon an average than twenty-three days between each  menstrual
period during which a woman can conceive.  (Practical Observations on Mid-
wifery, p. 54.)
  * Obstetric Medicine, p. 252.
  t Edinburgh Medical and Surgical Journal, vol. 38, p. 522.
  Professor Murphy (Dublin Medical Journal) has also investigated this sub-
ject.  The number of satisfactory cases was 186, in each of which the cata-
menial period was noticed; and to prevent errors, this was deducted from the
whole  number of days of pregnancy—and this  would make the duration of
pregnancy 300 days, as the average limit.   There were three exceptions.  A
full developed child at 261 days, in an unmarried female, after one connexion.
In two others, the time was 352  and 342  days,  from which if the menstrual
period was deducted, 324 and 314 days would be left.  In one instance, preg-
nancy occurred without previous menstruation; in another, it ceased on mar-
riage ; and in a  few cases, there were periodic discharges, resembling the
menses during pregnancy.  (Lancet, November 30, 1844.)
  " It is stated to be the result of researches made by M. Berthold, that after
healthy gestation,  delivery takes place at the time when the tenth menstrua-
tion from the time of conception should occur; in other  words, when the
ovary is preparing for the tenth menstruation.  And hence, according as the
periods of menstruation are in each case at all more or less than the ordinary
time of four weeks apart, so in each case will  the period  of gestation be in
the same proportion longer or shorter than usual;  consequently, the most
probable estimate of the duration of gestation would be the number of days
that elapsed during the last preceding ten menstruations."  (Paget, in British
and Foreign Med. Review, vol. 19, p. 5S7.)
  I Elliotson's Blumenbach, p. 465. 
LEGITIMACY.
573
or even fifteen days supervene.   I know a person, says he,
who is never  more  than twelve  days free from it,  whilst
others  are  regular every thirty-second, thirty-fifth or even
fortieth day.*  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 protrated case 1
   However this maybe, we have at least shown the difficul-
ties attending  a  precise calculation,  and  explained why
mistakes 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, we take  the general
sense of the individuals, who are the subjects of investiga-
tion,! and  that of at  least a fair proportion of the intelligent
and scientific members of the profession  particularly con-
versant in  midwifery, we shall find that  the  prevailing
opinion in  nearly all countries, is  in  favor of the  above-
mentioned  regular period.
   There are, however, physiologists who doubt this uniform-
ity 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
  * Velpeau's Midwifery,  p. 87.  " It is the opinion of most of the women
of this country, that a catamenial month is a month of four weeks."  This
was Dr. Denman's decided opinion, and also Dr. Sims', " than whom, per-
haps, no physician of any a°;e formed his opinions more independently of the
opinions of others." (Davis' Obstetric Medicine, p. 251.)
  t Mr. Oldfield, Surgeon  to the late Niger Expedition, states that the native
women along the banks of  the Niger, have the catamenia every three weeks,
from the 17th to the 21st day; the females being in the enjoyment of perfect
health. "On expressing  my surprise to  a very intelligent Fundah woman,
she assured me it was the usual time—that very few had them absent a moon
(month):  the quantity menstruated is small, and continues three or four
days."  (London Med. and Surg. Journal, vol. 8, p. 406.)
  X I am happy to find that Dr. Anthony T. Thomson is a firm believer in a
uniform period of gestation.  See his lectures in London Med. and Surgical
Journal, vol. 6, pp. 546, 577.  (I think that I have some reason to complain
of Dr. Montgomery, in that he denies the correctness of this statement.  In
confirmation, he quotes from the report of Dr. Thomson's Lectures in the
Lancet of  December, 1836, published more than a year after my  book issued
from the press.  I had only the report of Dr. Thomson's Lectures in the Lon-
don Med. and Surg. Journal, and here (vol. 6, p. 546) I find the following
remarks :
  "I must declare  to you  my opinion,  that, except in cases  in whkh some-
thing occurs to interrupt the regular function of the uterus, so as to produce
a premature expulsion of the fcetus, labor will always occur at two hundred
and  eighty days  after conception. This  opinion is of the most ancient
date." 
574                  LEGITIMACY.

ancients, it appears,  were aware of this and noticed it in
their writings.   But the  individual who has paid the great-
est attention to it is M. Tessier.  In a memoir presented to
the National Institute, he states, that he has  been forty
years occupied  with  it,  and kept a register  of the  facts.
Out of  160 cows,  fourteen calved  from eight  months  to
eight months  and  twenty-six days,  3 at 270 days,  50 from
270 to 280 days, 68 from 280 to 290 days, 20  at 300, and 5
at  308 days;  the  extremes were thus 67 days.  Of 102
mares observed, 3  foaled on the 311th day, 1 on the 314th,
1 on the 325th,  1 on the  326th, 1 on the 330th, 47 from 340
to 350 days, 25 from  350 to 360, 21  from 360 to 377, and
1 one the 394th day; the  extremes being 83 days.  With
sows, the extremes were  15 days; and with rabbits, (139
observed,) 7 days, varying from 26 to 33 days.*
  Earl  Spencer made this  the  subject of observation for a
number of years, and, in  1839, communicated to the English
Agricultural Society,  the result.  Out of 764 cases, 314
calved before the 284th  day, and 310 after the 285th.  At
284 days, 66 calved, and  at 285, 74 calved.  Lord Spencer,
therefore, supposes that  the probable period of gestation
should  be  considered  284  or 285 days, and not 270, as is
stated in some works  of authority on Husbandry.  The fol-
lowing is a condensed view of his tables :
  At 220 days,........   1    At 286 days,........  60
     226      ........    1       287      ........  52
     233 to 239  days,..   4       288      ........  42
     242 to 250      ..    7       289      ........  45
     252 to 259      ..  12       290       ........  23
     262 to 270      ..13       291       ........  31
     271 to 278      ..  69       292       ........  16
     279 days,........  32       293       ........  10
     280      ........  35       294 to 299 days, ..  24
     281      ........  39       304 to 305      ..   2
     282      ........  47       306 to 307      ..   4
     183      ........  54      313 days,........   1
     284      ........  66                          ---
     285      ........  74                          764
  * Repertory of Arts, 1st series, vol. 12, p. 140.  This contains a translation
of Tessier's Memoir.  My former quotations were altogether incorrect, having
been copied from Cooper's tracts. 
LEGITIMACY.
575
  It thus appears  " that the  shortest period of gestation,
when a live calf was produced, was 220 days, and the long-
est 313 days ; but I have not been able (he observes) to rear
any calf  produced at an earlier period than 242 days.  Any
calf produced at an earlier period than 260 days  must be
considered decidedly premature, and any period of gestation
exceeding 300 days must also be considered irregular; but
in the latter case the health of the produce is not affected."
   " There is a prevalent belief among  farming men, and I
believe farmers, that when the  time of gestation of a cow is
longer than usual, the  produce is  generally a male calf.  I
confess that I did not believe this to be the case, but this
table shows that there  is some foundation for the opinion.
In order fairly to try this, the cows which calved before the
260th day, and those which calved after the 300th, ought to
be omitted as being anomalous cases, as well  as the cases in
which twins were produced, and  it will then appear that,
from  the  cows  whose  period of gestation did not exceed
286 days, the number of cow calves produced was 233, and
the number  of bull  calves 234:  while from those whose
period exceeded 286 days, the number of cow calves was
only 90,  while the number of bull calves was 152."
     The twins were as follows :
           Twin cow calves,..............   7
           Twin bull calves,............„.   5
           Twin cow and bull calves,......  11

                                            23
   Total  product,                            —
       Breeding heifers,.........................  354
       Bull calves,..............................  422
       Heifers, twins with bulls, (Freemartins,)....    11

                                                   787*
  * Journal of the Royal Agricultural Society, 1839, vol. 1, part 2, p 165
  It is to be regretted that this subject has not been more noticed  I have
frequently asked farmers concerning it, and most of them have asserted thau.
the period is very regular.  They are not, however, in the habit of makin
memoranda.  I was furnished with the following by one of my pupils at th&
Western Medical College, Dr. Seth L. Andrews, (now a missionary in foreige 
576
LEGITIMACY.
  Mr. C. N. Bement, of Albany, has given in the July (1845)
number of the " Cultivator," the results of his observations
on this  subject.   I have arranged them in a tabular forrri".
Average period of Gestation.
1839 three cows produced		heifer calves,.		... 284 days.
1840 six cows	u	u	u	... 287
1841 eight cows	a	a	u	.... 286
1842 four cows	u	u	u	... 284
1843 five cows	a	u	a	.... 282
1839 eleven cows	u	bull	a	..... 280
1840 seven cows	a	a	u	.... 299
1841 three cows	a	a	a	.... 293
1842 nine cows	a	a	u	.... 287
1843 six cows	a	u	u	.... 282
       The average of all the males was  288 days.
       The average of all the females was 282  "
  The extremes in the whole sixty-two was from 213 days
the shortest period, to 336 the longest; difference 123 days.
Mr. Bement, however, adds his doubts about the first, " for
in no other instance has this period fallen below  260 days."
  The extremes in the observations made by Earl Spencer,
were from 220 to 313 days ; difference 93 days.   He, how-
ever, deems any calf  produced at an earlier period than 260
days to be premature.
  These facts certainly go to show that the period of gesta-
tion is irregular  among animals; and they furnish a strong
argument from analogy against its uniformity in the human
race.   It must, however, be recollected, that even if per-
fectly  established, it is only a favorable, and not a decisive
proof.
  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.

lands.)  In seven instances, where his father,  the Rev. E. D. Andrews, of
Pittsford, 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. 
LEGITIMACY.
577
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 readi-
ly in females who are to be  delivered in the spring.   Many
physicians are said to have verified this observation in later
times; and Fodere  himself  observes, that at Martigues, in
1806,  after a warm winter, an  epidemic catarrh broke  out,
and all the pregnant women  miscarried.
   The constitution and habits of  the female, it is believed, vary
it.   That  part of the sex which reside in  cities, and  lead
effeminate  lives, are  more liable  to variations than  others
differently  situated.  The nervous  system also  may be so
affected as to cause similar changes.
   The womb  may at one time be irritable, and at other times
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  practitioner in midwifery who has not, within  his  own
observation, met with cases sufficient to contradict the opin-
ions just advanced.!  It frequently  happens that females  of
the most  irritable habits and effeminate course of life,  pro-
ceed 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 indeed, does it prove any thing more,
 than that  the state  of the weather may be such as to predis-
 pose  to abortion.

   * These arguments are taken from Fodere, a believer in protracted gesta-
 tion, (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. JVaissances tardives.)
   X 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.
                     37 
578
LEGITIMACY.
   To  all  this,  however,  the argumentum ad  hominem  is
rejoined, and cases are adduced which certainly  appear diffi-
cult of explanation,  unless we allow that gestation may be
protracted.   I  shall  notice  some of these in a subsequent
section, and will  now mention 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 recurs  first to the  change that takes place in
the  state  of the womb  during the  progress of pregnancy.
The neck disappears; the  fcetus presses on the mouth, in
consequence of the insensible contraction that is going on;
and when labour commences, there is " orificial irritation,"
increased  by the large quantity of  nerves going  to that part.
Whatever then will 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 commencement beyond the usual time.   He adduces
cases illustrative 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 postponed in consequence of an oblique
or improper situation of the mouth  of the womb.*
  * See Dr. Power's pamphlet on this subject, and his evidence on the Gard-
ner peerage case.  Dr. Lyall pertinently asks (p. 84,) why, if this theory be
true, does not labor always come on gradually; since the stimulant (orificial
irritation) is not applied suddenly but progressively ?  Dr. Ramsbotham has
recently, in his lectures on midwifery, suggested in explanation of the dif-
ference in human  gestation, that there are various periods  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 Sir E. Home's case,
where it was seen at one week.  (London Medical Gazette, vol. 13, p. 553.)
  Dr. Rigly's explanation of the variety in the term of gestation is the fol-
lowing : " The reason why labor usually terminates pregnancy at the fortieth
week, is from the recurrence of a  menstrual period, at a time during preg-
nancy, when the uterus, from its distention and weight  of contents, is no
longer able to bear that increase of irritability which  accompanies those
periods, without being excited to throw off the ovum." (Midwifery, p. 139.)
On this he accounts for labors either falling short of the usual time, or being
somewhat  prolonged.  In the last case, should impregnation take place shortly
before a menstrual period in a female who has already had several children,
the uterus will probably not have attained such a volume or developement as
to prevent it passing the ninth period without expelling its contents; and in 
LEGITIMACY.
579
  The  most  rational  explanation (provided the possibility
of protracted  gestation  be conceded) that  I have yet met
with, is contained in the  following extract: " why should
pregnancy be more exempt from variation than other physi-
ological  conditions ?  Do  the teeth  appear  at a definite
period ?  The regular interval between the catamenial efforts
is four  weeks; but how often is  this varied, sometimes by
disease, sometimes by idiosyncrasy.  The fortieth week is
the natural period for  the termination of pregnancy and any
departure from it  is  unnatural, but only in the sense that
would  apply  to tardy  or premature menstruation.  It is
urged moreover that the human fcetus, like the young of the
inferior classes, is  not  expelled from  the womb  till it has
acquired a developement adapted to extra-uterine existence ;
that disease and other  causes  may delay this developement,
and consequently that there is no reason for astonishment if
parturition be  sometimes retarded."*

                 II. Of premature delivery.
  The  question which  requires  consideration under this
section, is whether a child with all the characters of maturi-
ty, as we have described them in a previous chapter, can be
born  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 honor of the  family to be im-
peached, or shall we allow that this variation is possible?

this way  he explains the protracted cases of Dr. Dewees and Dr. Montgomery.
He has had instances of 285, 288, and 291 days, and again, three satisfactory
ones, of a period within the full term.  One, a case of rape, was delivered on
the 260th day; in the others, sexual intercourse had only occurred once.  In
one case, she went 264 days and in the other 276 days.
  * British and Foreign Med.  Review, vol. 2, p. 404.  Devergie, vol. 1, p.
468.  I have published a remarkable case of this description in the American
Journal of Medical Sciences, N. S. vol. 1, p. 59, and which was communicated
to me by  Dr. James R. Manley of New-York.  The facts may be condensed
as follows :  The husband left on the  13th of July, 1839, and did not return
until November.  The wife was severely and frequently ill during pregnancy,
having suffered several attacks of haemoptisis. On the 16th of April, partu-
rient pains came on, and labor  seemed advancing; it was actually advanced
on the  8th of May, but the child was not born until the 29th of May. 
580
LEGITIMACY.
  There is an intrinsic difficulty connected with this ques-
tion,  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 gene-
ral  appearance, then,  should  be noticed, but not too much
relied on, in  forming an unfavorable 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 situa-
tion.   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
condition of the mother;  and although it may  be deemed
barely possible that a child born at seven months  may  oc-
casionally 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,*) be born before seven  full months
after the alleged connexion, it ought certainly to be consid-
ered as illegitimate.!
  *  See page 333.
  t  Dr. Montgomery will not allow even this, and states that he never saw a
child, avowedly of six or seven months growth, that presented an appearance
even remotely resembling that of a full grown and matured foetus.  (Cyclo-
pedia of Practical Medicine, 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 
LEGITIMACY.
581
                 III.  Of protracted delivery.
  I propose  to  devote this section to a statement of some
cases that  have  occurred  at various times, and  that have
been made  the subject of legal investigation, and also to a
notice of the opinions of distinguished accoucheurs.
  One of the oldest cases on record, is mentioned by Pliny
the naturalist.   He  states, that the Praetor,  L. Papirius,
declared a child born at thirteen months, legitimate, on the
ground  that there was no certain period for the completion
of gestation.  The emperor Adrian, at a subsequent period,
as  we  are  informed  by Aulus  Gellius,  declared an infant
legitimate, which was born eleven months after the  death of
its  father,  on account  of  the  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  par-
liament  of Paris.  It appeared that she had  lived with the
relatives of her husband during the whole period of widow-
hood ; that they  had never observed  any impropriety in her
conduct; and they  also  testified 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  as-
signed.*
on the succeeding 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, because the mother had labored under grief and terror
during her pregnancy, and because, at her delivery,  she was  so weak as to
need bathing with wine.  (Pandects, vol. 1, p. 86.)
  * Fodere, vol. 2, p. Ill to 115.  In 1578, a child born eleven months after
the departure of the husband, was declared legitimate, because the husband
might have returned during the interval.
  In 1026, 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 father.
  In 1619, a child born at ten months and nine days, was adjudged legitimate,
though the father had been absent and paralytic. 
 582                     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.!

    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 seven she  had previously borne.   The opinion of

 the  Medical Faculty of Leipsic  was  required in this case.

 They replied that extraordinary cases of protracted  gesta-

 tion, deserving  of credit, were related by many authors ;

 that there  might  be a  frigidity of the genital organs, so as

 to cause a  slow  increase of the  fcetus; and that the long

 continuance of the labour pains proved this to be a prgeter-

 natural case.  They therefore decided that the offspring was

 legitimate.!

   In another instance, a man named Gans, after being deem-

 ed in extremis for eight days, died on the 2d December, 1687 ;

 and on the 25th of the succeeding October, his wife was  de-


  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
 disappearance 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 hus-
 band,  declared 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 aecount of the irreproachable
conduct of  the mother.
  t  Fodere, vol. 2, p. 183.
  X  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.)  Am-
man, who reports these  cases, observes, that he cannot reconcile the conflict-
ing decisions, except by saying that the first of these children would become
very rich by the decision, while the other was poor. 
LEGITIMACY.                   583
livered of a son.  The brothers and sisters of the deceased
contested its legitimacy,  and an  appeal was made to  the
Medical Faculty of Giessen.  They commence their answer,
also, by stating extraordinary cases as mentioned by authors,
and in this instance decided in favor of its being the child
of Gans, because he  was  weak and feeble at the period of
conception, and the  mother was  of a frigid complexion;
the fcetus,  therefore, would require a longer period to come
to maturity.*
  There are also some cases which deserve notice, from the
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 Norman-
dy, 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 ob-
tained a decree in their favor; but on appealing to  the par-
liament of Rouen, the cause was,  in December, 1779, deci-
ded in favor of the  widow.   Her  claim was defended  on
the score of character, and on the possibility of protracted
gestation.   The former seemed to  be most unexceptionable,
at least the public opinion was strongly in  her favor,  and
the latter was supported by many  extraordinary narratives.
The work of the celebrated Petit on this subject was quoted,
in which he states that many faculties of medicine, forty-
seven  celebrated authors,  and twenty-three  French physi-
cians and surgeons, agree in believing that delivery may be
delayed to the eleventh and twelfth month;  nay, that it is
perfectly demonstrated that this frequently occurs.
  Among the  quotations from the work of Petit, is the fol-
lowing case related by Heister :  A female,  the wife of a
* Valentini's Pandects, vol. 1, p. 144. 
584
LEGITIMACY.
bookseller, in Wolfenbuttel, was delivered thirteen months
after the death  of her husband.  The individuals interested,
proposed  to  contest the legitimacy of the infant, but were
deterred on account of her excellent character.  So convinced
was one Christopher Misnerus, who had acted as shopkeep-
er during her widowhood, of her virtue and probity, that he
married her shortly after,  and had two children by her, and
each of them was born after a gestation of thirteen months.*
   Tracy, a naval physician, deposed in this  case, that he
knew a female who was delivered at the end  of fourteen
months.   She was in  delicate health, and both she and her
husband informed him, that  there  had been no connexion
since  the commencement of her pregnancy.
   Dulignac, chirurgeon major to the regiment of Asfeld, tes-
tified, 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 favor 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 gesta-
tion.!
   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 Octo-
ber, 1762, he was taken  ill with fever and violent oppres-
sion, 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 with a  dry gangrene  of the leg, on the  21st;

  * This case is related at length, with all its proofs, in Schlegel, vol. 2, pp.
99 to 113. (Warner's Dissertation.)
  t Fodere, vo], 2,  pp. 185 to 189, quoted from the Causes Celebres. 
LEGITIMACY.
585
and with this  accumulation of disease, he  gradually  sunk,
and died on the 17th of  November, aged 76 years.  Renee
had not slept in the chamber during his illness ; but  about
three and a 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  deli-
vered of a healthy, well formed, and  full sized child.  The
opinion of Louis  was asked  on this  case, and he declared
that the offspring was illegitimate. Had he rested at this,
even the advocates  of protracted gestation might probably
not have  murmured, as  the circumstances  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  occur-
rence of such cases. Among the arguments which he ad-
duces, are the following:  that  the laws of nature on this
subject are immutable ;  that  the fcetus, at a  fixed period,
has received all the nourishment of which it is susceptible
from the mother,and becomes, as it is were, a foreign body;
that married females are very liable to error in their  calcu-
lations ; that the decision of tribunals in favor of protracted
gestation, cannot overturn a physical  law ;  and finally, that
the virtue of females in these  cases, is a very uncertain guide
 for legal decisions.   " If we  admit,"  says  he, " all the facts
 reported by ancient and modern authors,  of  delivery from
 eleven to twenty-three months, it will be very  commodious
 for females ;  and  if so great  a latitude  is  allowed for the
 production of posthumous heirs, the collateral ones may  in
 all cases abandon their hope unless sterility be actually pre-
 sent." *
   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

   * Louis' Memoire contre legitimate  des naissances pretendues tardives.
 Le Bas attacked this Memoir, and Louis replied in a supplement.   Several
 other physicians, I believe, took part in the controversy. 
586
LEGITIMACY.
coming  to maturity, it would have been confirmed  by ex-
perience, which  it is not.   Grief also, and the depressing
passions, are- much relied  upon as possessing a delaying
power ;  but certainly, these are more apt to produce abor-
tion, than  protracted gestation.  He accounts for the mis-
takes of married women,  by suggesting that  the  menses
may be  suppressed, not only from disease, from affections
of the mind, or accidental causes, which do not immediately
impair the health; while the increase of volume in  the ab-
domen  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 8th of
December,  1802, Mrs. Gardner bore a child, which appeared
to be the fruit of an illicit intercourse between her  and
Henry Jadis.  An action for criminal conversation  was in-
stituted 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 was for-
mally 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 the name of Henry Fenton Gardner, and claimed,

         * Mahon, vol. 1, pp. 183,185,198, 203. 
LEGITIMACY.
587
through his guardians, to be the rightful heir to the title and
estates of the now deceased Lord Gardner.  This nobleman
had  married  a second time, with  the Hon.  Miss  Smith,
daughter of Lord Carrington, on the 10th of April, 1809 ;
and a son, Alan Legge Gardner, also a claimant of the peer-
age  and estates,  was born on  the  29th of January, 1810.
Lord Gardner died in London, January 5, 1816.
  The following were the facts on which the claim of Henry
Fenton Jadis was founded : " In 1802, Lord Gardner, who
was then captain  of the ship  Resolution, arrived off 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 until the 7th of Febru-
ary, 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 ? 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 ?  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 Lon-
don University, and Mr. R. P. Pennington may  be consider-
ed as not crediting it. 
588
LEGITIMACY.
  Dr.  Gooch,  considered  the usual  period of gestation,
where it could be accurately calculated, to be nine calendar
months, (39 weeks,) as from the 25th of May to the 25th of
December.  When  the statement of  Dr.  William  Hunter
was urged to him, that he (Dr. Hunter) " had known a wo-
man bear a living child in a perfectly natural way, fourteen
days later  than nine calendar  months, and believed two wo-
men to have been delivered of a child alive in the natural
way, above ten calendar months from the time of concep-
tion,"* Dr. G. professed the highest respect for the charac-
ter and talents of Dr. Hunter,  but  entertained doubts as to
the  accuracy of these cases—he  should like to know the
grounds on which the  opinions  were  formed, and  how far
they depended on the testimony of the females.  He stated
that he had been for many years physician to two Lying-in-
Hospitals.  In  one  of  these, there are two wards  kept for
single women, " so that cases  frequently occurred, in which
I had an opportunity of calculating 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 confession of more numerous con-
nexions  would  give a suspicion of general  incontinence,)
would lie in the instances which he had seen.!
   Dr. Blegborough had been in practice in London 34 years.
He considered thirty-nine weeks as the period of gestation,
and forty as the greatest extent.   Mechanical obstructions,
as  from malconformation, might delay birth for five or six
days; but in that case, it is uniformly attended with hazard

  * This answer is taken from Hargrave and Butler's Note to Coke upon Lit-
tleton, as already quoted.
  t 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 cal-
endar 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 variation. 
LEGITIMACY.    •              589
either to mother or child, or both.  He had grounded his
calculations on  the   peculiar sensations experienced  by
females.   They  have  fainted, and  have been extremely ill,
so as to induce their friends to send for a professional man.
On proper inquiry, they will declare certain sensations, by
which  we know that  conception has taken  place, and was
the cause of the feelings  experienced.  Upon 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 necessarily 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  exactly on what day"—but some at its  conclu-
sion, 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 several  instances, (twenty at least,)  that had come under
his observation, the fact of the last intercourse  had been
stated to him by the parties themselves, and on this he had
founded his calculations.   In no case had the forty  weeks
been exceeded.   *
   If the calculation be founded on the  suppression of men-
ses, 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 
590
LEGITIMACY.
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
disbelieved in protracted gestation, three founded  their
calculations on the occurrence of a single coitus, and the
remainder  on  peculiar sensations  experienced.  They dif-
fer in their terms, thus :
   Dr. Gooch says 39 weeks, or 271 to 277 days:
   Dr. Blegborough, 39 to 40 weeks, 273 to 280 days:
   Dr. Davis, 39 weeks, 271 to 273 days :
   Sir C. M. Clarke, 40 weeks, 280 days:
   Mr. Pennington, 40 weeks, 280 to 283 days.
   On the other side, the following medical witnesses gave
testimony: Drs. A. B.  Granville, Conquest, Blundell, Mer-
riman, Power, Hopkins, Dennison,  H. Davis and Elliotson,
and Messrs. Sabine, Chinnocks, and Hawkes.
   Dr. Granville gave it  as his opinion, that the usual or
ordinary  period  of gestation is  comprised  between the
265th day, subsequent to impregnation, and the 280th, or
40 weeks ; but he believed that gestation might be  protrac-
ted.   The  most prominent case 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 quickened.  Labour was  expected in the
early part of January, and accordingly pains came  on; but
they again subsided, and she was not delivered until Febru-
ary 7th; that is, 306 days, if we reckon from the day before
the next expected menstruation, or 318 days, if from the
middle of the two periods.
  Dr. G.  also stated, that he was  attached to two of the
most 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 recommendation.  According to these regis-
ters, he had " known  a  case of 285  days  from the latest
period of supposed impregnation;  taking as the point of
departure, the  last day of the month previous to the missed 
LEGITIMACY.
591
period, that is, say 28 or 30 days after the last menstruation :
also cases of 290, 300 and 315 (but this Dr. Granville after-
wards stated that he considered a case of 310)  days."
  In answer to the  question, whether he believed it possible,
that a child  should be begotten on the 30th of  January, and
born  at  an  interval of 311 days, viz. on the  7th or 8th of
December, he said,  I am aware of no circumstance that could
render it impossible.
  I should also add, that an inquiry was  attempted in some
of his registered cases, but technical difficulties  were interpo.
sed, and on  the whole, they were not satisfactory, even one
where a female was examined in propria persona.*
  Dr. Conquest had practiced for thirteen years, and although
the majority of cases are completed within the ninth calen-
dar month, yet he  certainly had  met with instances which
far  exceeded that date.   In not  fewer than twenty cases,
there had been very confident assertions  on the part of  the
women,  that they  had exceeded the time; and in two  or
three instances he  had taken great pains  to satisfy himself,
and was very sure of it.   In one female, who was so certain
of being confined at the anticipated  time, that she had  her
nurse  in the  house; the  period  was  exceeded nearly five
weeks.  This female had borne six children.  " At that time
(says  Dr. Conquest) I disbelieved all the  cases I had previ-
ously 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
  * 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 referred, were capable of the most  satisfactory proof,  and
ought not to have been rejected or trifled with on the examination.   In seve-
ral instancesAhe reckoning had been made from the last  day of the lunar
month immediately succeeding the last appearance 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, calculated her preg-
nancy from midway between the 28 days, which elapsed between her previous
menstruation, and the period when she ought to have menstruated again; and
she then fixed upon the conclusion of ten calendar months for the day of her
confinement.  She proved perfectly correct; and on inquiring the reason for
fixing on so protracted a period, she said that her three former children were
born after a similar interval.  Even supposing the conception to have taken
place at the very end of the first lunar period, still the protraction must have
extended two weeks at the least."  (Lancet, N. S. vol. 5, p.  418.) 
592
LEGITIMACY.
to admit the accuracy of this woman's statement, and my
former convictions were very much shaken."  It is remark-
able, that at her  subsequent confinement this female again
exceeded her calculations by four weeks.
  In another instance,  a lady who had borne nine children,
and  had been able five  times to determine  exactly the  day
on which she should be confined, exceeded  the  time by a
month and  two  days.   She brought forth the largest child
Dr. Conquest had ever  seen, after a very protracted labour.
  On inquiring as to the probable cause of protracted  gesta-
tion, Dr. Conquest  stated,  that he  had seen instances in
which an occasional loss of blood during pregnancy appear-
ed to interfere with  the process.   Mental emotions will also
protract the period.  He believed  that eleven months  had
been exceeded.
  On cross-examination, Dr. Conquest stated, that his  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 in-
variably 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
sixteenth week,  reckoning from the non-appearance of  the
menstrual discharge,  and  the period when  she  supposed
herself  to become pregnant. " This woman is  an excess-
ively irritable woman, physically and mentally ; and  she
affirms  most confidently, that she  invariably suffers  much
constitutional disturbance within one week after impregna-
tion, 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 exception of the two (protracted)  cases,
  * This opinion of Dr.  Conquest requires confirmation. I have already
quoted a case by Dr. Montgomery, in which there was a striking variation,
(page 229) and may now add his opinion, that the time of quickening will in
the majority of cases, be found to vary in the same person in successive preg-
nancies.  (Signs of Pregnancy, p. 86.) Dr. Hamilton also remarks that Dr.
Conquest has stated the exception, not the general rule.  (Practical Obser-
vations, p. 55.) 
LEGITIMACY.
593
and then  she took the  same data as the ground of her
opinion."
  In the second case, the  opinion was deduced from the
absence of menstruation  and quickening.   She quickened
at the 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 lose 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 ma-
jority of cases of reported 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
delivered on the  23d of May, (287 days.)  Dr. Blundell saw
her a few days after impregnation—there were symptoms of
irritation  about  the  bladder and  adjacent parts, and the
catamenia were absent.  He had no doubt that these symp-
toms arose from impregnation.
  This witness professed himself a believer in protracted
gestation, 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
                  38 
594                   LEGITIMACY.
know, she said she supposed  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 period."   In the
last case, the female had menstruated on the 7th of  March;
and both  females were married, and lived with their hus-
bands.   It was very properly asked, whether the intercourse
which produced conception, might not have been at any time
previous to the next period ; and if so, whether,  allowing it
only to have occurred in  the  middle between the two men-
struations, most of the cases  would not  be brought to  the
usual term of  forty weeks, while the rest  might be referred
to  it by  admitting  the opinion  that pregnancy took place
just before the expected menstrual period ?  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 Trans-
actions, vol. 13, p. 33S; 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 labor 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 in-
    cluding, the day on which the catamenia were last distinguishable.
      At 255 days,  1               At 262 days,  2
         256  "    1                  263  "   2
         259  "    1                  264  "   4
                 —                  265  "   1
                  3 in 37th week.       266  "   4
13 in 35th week. 
LEGITIMACY.                      595
  Dr.  Power  had practised  midwifery for  thirteen  years.
He was decidedly of opinion that gestation maybe 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 267 days,	1	At 274 days,	4	At 281 days,	5
268 "	1	275 "	2	282 "	2
269 "	4	276 "	4	283 "	6
270 "	1	277 "	8	284 "	1
271 "	2	278 "	3	285 "	4
272 "	2	279 "	3	286 "	3
273 "	3	280 "	9	287 "	1
	14 in	39th week.	33 in	40th week.	22 in 41st week.
At 288 days,	5	At 295 days,	1	At 303 days,	1
289 "	2	296 "	2	305 "	1
290 "	2	297 "	2	306 "	2
292 "	4	298 "	4		—
293 "	2	301 "	1		4 in 44th week.
	15 in	42d week.	lOin	43d week.	
  From this table, Dr. Merriman thinks it fair to infer that conception is ef-
fected more commonly soon after the catamenial period has intermitted, than
immediately before the recurrence of that discharge.  On a few occasions, he
observes, the period of delivery, dated from the last appearance of the cata-
menia, has exceeded 44 weeks, or 308 days.   The first is the case mentioned
in the text.   The lady has, in ten pregnancies,  borne eleven children; and
on all these occasions, became pregnant almost immediately after the monthly
discharge.  In addition to the facts stated above, he obseves that the child was
larger than  most of her former ones, and the labor 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 suc-
ceeding one.
  Another was that of Mrs. N., who was unwell in November, in 1822.  She
recovered on the 15th, and had no subsequent appearance. Her  labor 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, 1S24.
  There is a table, (taken from a Thesis of Dr. Dubois, in 1834,) in the third
edition of Orfila Lecons, vol. 1, p. 258, which shows an equal irregularity.
It is compiled from the narratives of fifty females, and shows  the time of the
last menstruation,  the supposed period of conception, and the actual date of
delivery.  A great majority of the cases fall within the nine calendar months,
that is, calculating from the period of conception.
  See also the facts obtained in a few cases at the Philadelphia Hospital, by
Dr. Burwell.  (American Journal Medical Sciences, N.  S., vol. 7, p. 318.) 
596
LEGITIMACY.
  Drs. Hopkins, Dennison, and H. Davis were believers in
protracted 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 exami-
nation 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  quicken-
ed 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 a 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, advan-
ced  an idea, that  pregnancy  continued longer with  males
than females ;  assigning 280 days for the latter, and 290 for
the former.  But,  said  the Solicitor General, suppose the
child is  an hermaphrodite—what then is the time ?  He an-
swered, " that I should take between the two."
  Several females were also examined as to their own expe-
rience on this subject, but the result was not  definite or
satisfactory.
  Such was  the medical testimony in the famous Gardner
peerage case.   I need scarcely  add, that it was little heed-
ed in the decision—that was founded on the well establish-
ed  adultery  of the  mother of Jadis ; and  the son of  Lord
Gardner by  Miss Smith, obtained the peerage.*

  * For the details of this case, I am indebted to Dr. Lyall's "Medical Evi-
 dence relative to the duration of human  pregnancy, as given in the Gardner
peerage case,"  first and second editions, and to Le Marchant's report of the
proceedings of  the House of Lords on the claims to the Barony of Gardner:
 London, 1828.  (In the State Library.)  See also Cyclopedia of Practical
 Medicine, art.  Succession.   The medical student will find remarks on this
testimony in the Edinburgh Medical  and Surgical Journal, vol. 27, p. 109;
 and Medico-Chirurgical Review, vol. 9. p. 170. 
LEGITIMACY.
597
  Sir John S. Copley, Attorney-General (now Lord Lynd-
hurst,) who appeared  for the crown,  and whose speech was
therefore in the nature of a judgment, made the following
remarks on the medical evidence :  " The witnesses on both
sides state that 280 days is the extreme of the usual time of
gestation.  This is not  confined to the witnesses on the
the part of the claimant; every  witness on the  other  side
states that the extreme of the usual and natural time accord-
ing to the ordinary course of nature, is 280 days.  But then
it is said, there may be exceptions; prodigies  may happen.
Be it so, then  it is incumbent upon those  who contend for
the exceptions to make them out.   The onus is on the side
of those who say there are exceptions.  The proof must be
such as to exclude any reasonable doubts.   These prodigies
will not be believed on secondary evidence, and when these
pretended cases of exception are examined, it will be seen
that there is  nothing  established in them satisfactory, nay,
which ought to be the ground of action in  a case so impor-
tant as the present."  (Le Marchant, p. 303.)
  I have to a certain degree anticipated the concluding pur-
pose of this section, viz. to present the opinions of distin-
guished accoucheurs.   It would, however, be incomplete,
were I not  to add some more of these, and for a reason
which must probably ere this have occurred to the reader.
Many  of the  cases now  enumerated,  have the  stamp of
adultery on them.  It is in vain to urge such as conclusive in
favor 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 conse-
quence of embarrassments, returned clandestinely one night;
and his visit  was  known only to his wife,  his  mother, and
Dr.  Dewees.  She  was within one week of her  menstrual
period, which was  not interupted, 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."*
  * Dewees' Midwifery, p. 170.  If February be included in the above men-
tioned term, it will be 283 days; if not, 285 or 286 days. 
598
LEGITIMACY.
  In  a subsequent edition, he observes,  " I have had  every

evidence this side of absolute  proof, that it  has been pro-

longed to ten calendar months, as an habitual  arrangement

in at  least  four females; that is,  each went  one  month

longer than  the  calculations  made from an allowance of ten

or twelve days after the  cessation of  the last menstrual

period, and  from  the quickening, which was fixed at four

months.   Besides, a  case within a short time has occurred in

this  city, where  the lady was not delivered  for full ten

months, after the departure of her husband for Europe; yet

so well and  so justly too did this lady stand in public esti-

mation, that there  did not attaeh the slightest suspicion of

a sinister cause."*

  Professor  Desormeaux gives  the following case as occur-

ring in a patient whom he attended : " A lady, the mother

of three children became deranged after a severe  fever.  Her

physician thought that  pregnancy might  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 attend-

ants made an exact note  of the time when the husband's

visit took place.  As soon as symptoms of pregnancy began



  * Dewees' Midwifery, p. 130, third edition.  I must be pardoned in assert-
ing, that the case adduced by Prof.  Dewees, from the fourteenth volume of
the New-England Journal of Medicine, is not applicable to the present sub-
ject.  The female became  pregnant April 1, 1822; suffered much from sick-
ness, and died undelivered, May, 1824.  On dissection, the uterus was found
diseased—bearing marks of inflammation, and a full grown foetus was dis-
covered. 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 conse-
quences 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 menstru-
ation ;  when delivered, it measured between nine and ten inches, and weighed
six ounces.  (London Medical Gazette, 1829.)  Also by Dr. Homans of Bos-
ton, 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 labor 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 hsemorrhage and labor pains ; and a foetus,
one and a half inch long,  with a placenta, was expelled.  (Boston Medical
and Surgical Journal, vol. 2, p. 372.) 
                       LEGITIMACY.                    599

to appear,  the visits  were  discontinued.   The lady  was
closely watched all the time by her female attendants.   She
was  delivered at  the  end of  nine calendar months and a
fortnight, and Desormeaux attended her.*
  Dr.  Hamilton,  Professor at  Edinburgh,  says, " In one
case, many years ago,  the  lady exceeded the tenth revolu-
tion of the menstrual period, by twelve days;  another lady
exceeded it by  sixteen, and another  by twenty-four  days.
The latter  menstruated  on the 1st of August, and was not
delivered until the 28th of June.   Another lady, the mother
of a large family, exceeded her period by above a fortnight,
on the 4th of March, when her husband went to England,
where he resided for some  months ; but she was not deliver-
ed till the 6th of December."
   Professor Burns observes,  " On  the other hand,  it  is
equally  certain, that some causes which we cannot explain
or discover, have the power of retarding the process, the woman
carrying the  child longer  than nine months, and the child
when  born being  not  larger than  the average size.   How
long it is possible for labor 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-
   * Dr. Granville in Lancet, N. S. vol. 5, p. 418.
  t Quoted in Cyclopedia of Practical Medicine, art.  Succession, vol. 4, p.
90.  Dr. Hamilton thinks, " that if the character of the woman be unexcep-
tionable, a favorable report should be given for  the mother, though the child
should not be produced until near ten calendar months after the death or
sudden absence of the husband.  He used to say in his lectures, that in his
own practice, he never knew a  woman to exceed the eleventh menstrual
period."  Note by Dr. Lyall, in his Gardner Peerage Case, p. 43.
  We have now the published opinion of Dr. Hamilton.  In his " Practical
 Observations  on subjects relating  to Midwifery" the  following  remark
occurs : "lam quite certain that the term allowed by the Code Napoleon,
viz. 300 days, is  too limited," and he is inclined to regard  ten calendar
months, which he believes to  be the  established usage of the Consistorial
Court of Scotland, as a good general rule.  (Page 59.) 
600
LEGITIMACY.
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.*

   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  doc-

trine of protracted gestation,  must  be joined the names of

Haller, Zacchias, Petit,  Harvey, Mauriceau, Smellie, and a

host of what may, by distinction, be called the elder writers.

Among the  physicians of our own  day, may be mentioned

the names of Fodere, Capuron, Richerand, Osiander, Spren-

gel,  Adelon, Orfila,  Madame  Boivin,  Ryan,  Montgomery,

and Campbell.!


  * (Velpeau's Midwifery, p. 246.)   May not this case come under the fol-
lowing exception: " Professor Jorg especially cautions us against mistaking
protracted parturition for protracted pregnancy."  One case is mentioned
by him where labor commenced as usual  on the 280th day.  The pains were
weak and accompanied by remissions, and labor was not completed until after
the lapse of fourteen days.   " Doubtless a case of this kind would have been
set down by many as one of gestation protracted to the 294th day."  (British
and Foreign Med. Review, vol. 7, p. 137.  See the case by Dr.  Manley, men-
tioned on a former page.)
  f Those who wish to examine this subject further, are referred, in addition
to the authorities  already quoted,  to Fodere,  Metzger, Louis, Valentini,
Schurigius' Dissertation in Schlegel, vol. 4, p. 232.  Dr. Montgomery's cases
occurring under his own observation—one protracted to 291  days and the
other probably longer, are given in his Signs of Pregnancy, p. 275, &c.
  According to Dr. Michaelis of Kiel, protracted gestation was epidemic in
the Lying-in Institution of that city for the year ending July, 1818.   Of 64
cases, there were 19 in which the pregnancy exceeded 300 days ; 13, over 290
days; 19, in which it  exceeded 280 days; 10, in which  it was between 260
and 280 days; and 3 in which it was less than 260.  The  average of all these
is 289 days.   (Dunglison's Medical Intelligencer, vol. 1, p. 296.)
  Among individual cases, I may mention Dr. Collins' at Liverpool, in 1824,
which he considered an eleven months' pregnancy—founded on the last ap-
pearance of the menses, but particularly on an examination of the os uteri,
which he found,  at what she called her eighth month, with difficulty distin-
guishable from the body of the uterus.  At the end of  the ninth, it was in
some degree open, flat, and stretched.  She had repeated pains,  but  these
went away, and she was not delivered until two months after.  She had been
greatly distressed during her pregnancy, and Dr. Collins is disposed to ascribe
much to this cause.  (Edinburgh Medical and Surgical Journal, vol. 25, p.
145.)  There are, however, some doubts as to  the precise length of this ges-
tation.   (See Lyall, and Medico-Chirurgical Review, vol. 9, p.  212.)  Also a
case by P. C. Blackett, (London Medical and Surgical Journal,) of a female,
who, in the beginning of December, 1820, was seized with retchings and sick-
ness in the morning, vertigo, pain and  tension in the breasts.   During four
successive pi ^nancies, she had a regular  monthly discharge, and in about 
LEGITIMACY.
601
IV.  Of the  laws of various countries on the subject of legiti-

                              macy.

  The  Roman  law  did  not  consider an infant legitimate,

which was born later than ten months after the death of the

father, or the dissolution of the marriage.*   Such was also

the  French law prior to  the Revolution.

   In 1634,  a case was decided  by a majority of the  judges

of the  supreme  court of Friesland,  by which a  child was

admitted to the succession, though not born till  three hun-

dred and thirty-three days  from the husband's  death, and

what increases the latitude of the decision, is that the hus-

band 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


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 labor appeared. In October she was  seized with pain in the
region of the liver; and during the use of remedies, experienced motion for
the first time.   On the 23d of December, 1821, she was delivered of  two male
infants, with separate placentae, and each weighed about eight pounds. (Bos-
ton Medical and Surgical Journal, vol. 9, p. 153.)  By Dr. Ryan, of a female
 who menstruated the last week in February, 1826, quickened in July, but
 instead of being delivered in November, had spurious pains through it and
 the two succeeding months.  The child was not born until February  28, 1827.
 (Medical Jurisprudence, p. 146.)   Dr. Campbell in his Midwifery, states that
 he has seen 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 Professor M'Keen, of Bowdoin College.   He was consulted in a case of
 retroversion of the uterus, of the most obstinate nature.  It had probably
 occurred  nearly a year previous to his visit. After a patient and well
 managed application of means, the complaint was in a great degree removed.
 During all this time,  she had  been at Topsham, the residence of Professor
 M'Keen, eight miles from her home.  She now wrote for her husband, and on
 Saturday the 31st of May, he arrived, and she returned with him in the after-
 noon.  On the 23d of February succeeding, (8 calendar months and 24 days,
 or 270 days,) she was safely delivered of a son.   (Boston Medical and Surgi-
 cal Journal, vol. 12, p. 264.
   *  Fodere, vol. 2, p. 111.
  t  Hargrave ut antea.  This  case is quoted from Johannes a Sandes' (him-
self  a senator of the court) Collection of Adjudications made by it.   In Paris
and  Fonblanque, vol. 3, p. 216, the case, including the arguments and author-
ities adduced,  even at that time, in favor of protracted gestation, is given in
 the original Latin. 
602
LEGITIMACY.
the husband, was adjudged a bastard  by the legislative com-
mission of that country.*
  The civil code now in force in France contains the follow-
ing provisions.  The child born in wedlock has the husband
for its father.   He  may, however, disavow  it,  if he can
prove, that from the three  hundredth to the one  hundredth
and eightieth 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 marriage, cannot be disavowed by him in
the following cases :  1. When he had knowledge of his
wife's pregnancy before  marriage.  2. When he  assisted at
the act  of birth,  and signed  a declaration of it.   3.  When
the infant is declared not capable of living.  Lastly, the
legitimacy of an  infant born three hundred days after the
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 bas-
tard, but its legitimacy may  be  contested.  And Capuron in
remarking on this, observes,  that it  would probably be
deemed  legitimate,  if no legal investigation should take
place.J
  The following case was adjudicated under its provisions :
  Catherine Berard was married on the 25th of July, 1806,
to Francois Chappellet, who about six months  after, was
seized with a pleurisy, and languishing with it about  eight
days, died on the 20th of January, 1807.   On the 3d of De-
cember  of the same  year,  and three hundred  and sixteen
days after his death, she  was delivered  of a child, of  which
she declared the deceased Chappellet the father.  An appli-
cation was made to the court at Chambery for the property
to which this birth entitled her, and it was resisted  by the
relatives  of the husband,  on the  ground of illegitimacy.
She pleaded their cruel  usage during her widowhood, the
state  of poverty and sorrow to which she was reduced by

  *  Metzger, pp. 427, 429.
  t  Code civil, sections 312, 314, 315, quoted by Capuron and Fodere.
  X  Page 231. 
LEGITIMACY.
603
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 protract-
ed gestation.  The court, after quoting  the article in ques-
tion from the Napoleon code, argued that it gave the child  a
provisionary legitimacy, until the  contrary was proved by
concurring facts and circumstances.  They further observed
that the term of gestation in this case, did not exceed that
allowed  by many celebrated physicians, as  possible ; and
remarked that the widow must have been in a state of sor-
row and languor, in consequence of the treatment of her re-
latives, and thus the foetus was probably retarded.  Accord-
ingly, 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  Grenoble.   M. Metral, the ad-
vocate for the mother, advanced in his pleadings most of the
arguments  which  we have  already noticed — such as  the
variety in the period of gestation, quoted numerous cases
from medical authors, and urged the decisions of the French.
courts as precedents in  the present instance.   The modesty
and good conduct  of the mother were not forgotten, nor the
fact, that she had experienced labour pains  at  the  end of
nine months.  The court in their arret textuel, observe, that
as the 315th article of Napoleon code declares, that the le-
gitimacy of the child born three hundred days after  the dis-
solution of marriage may be contested, it  by  implication
destroys its claim  in a disputed case, and affixes a term  be-
yond which,  gestations  are  to  be deemed  illegitimate.
Again, the 228th and 296th articles of the same code, for-
bid a widow or divorced  female to marry, until ten months
after the dissolution of  marriage.   Here again the  term of
three hundred days  appears  to be pointed out as the most
extensive  period  allowed to pregnancy.  The father, also,
by the 312th article, is permitted to disavow the child, if he
proves a physical impossibility of cohabiting with his wife for
ten months previous.   The court contend, that the  contest-
ing of the legimacy on the part of the relatives, is equivalent
to the disavowal on the part  of the  putative father, and con- 
604
LEGITIMACY.
 elude 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 bas-
 tardy 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."!
   I am enabled to add some cases illustrative  of its admin-
 istration.  James Sandy was married to Margaret  Bain on
 the 14th of March, 1819, and died on the 3d of April there-
 after.  Bain was delivered of a child on the morninp- of the
 1st of February, 1820, being nine  calendar months and 29
 days  from the death of Sandy.  The brother of the deceased
 took  possession of the property, and  action  was  brought
 against  him by the tutor of the child.  Lord Meadowbank,
 as Lord Ordinary, reported in favor of the brother, on the
 ground that  lunar months were meant in the civil law, and
 consequently in  the law of Scotland.   A different  opinion
 was entertained by Lord Gillies, who found " that the lapse
 of 9 calendar months and 29 days, is not sufficient per se to
 overturn the presumption of the  child's legitimacy."   It
 was,  however, urged,  that  Sandy had from an early period
 of life, been  confined to bed ; that he was incapable of pro-
 creation, and that Bain  was a woman  of immoral habits.
 The Court allowed proof of these allegations, " on advising
 which, they  waived the general point, and in respect of the
 evidence, assoilized the defenders."  (Found for the defend-
 ant.)!
  In  the  case of  Stewart v. McKeand, (Court  of  Sessiou
 Decisions, August,  1774,) the  prosecutor  must  have  gone

  * 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 former 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."
  X Sandy v. Sandy.  Cases in in Court of Session. Vol. 2, p. 406. 
LEGITIMACY.
605
eleven months, or it is impossible that  the  defender  could
be the father.   The court, after stating that the period be-
ing thus fixed and ascertained, repudiated the idea of the
climate of Scotland, as had been urged by  counsel, having
the effect of protracting the term of gestation beyond nine
months. No Scottish  lawyer ever carried the term of legi-
timacy beyond ten months.*
   In  another  instance, the husband  had been in the  West
Indies since 1822,  and on the 6th of December, 1824, the
wife was delivered of a  child, of  which  she alleged one
Robertson to be the father. According to his own statement,
he arrived at Perth on the 30th of April, 1824, and "about
a month afterwards or  so," had connexion with the female.
This  was about six months and six days before the birth of
the child, and he offered to prove that it was full grown.
But the court held, that the legal presumption was, that he
had connexion on  the  day of his arrival,  and the interval
was then eight lunar months, excepting four days.  The
vagueness of his plea,  with the oath of  the mother, induced
a decision that he should support the child.  The proof that
the child was full grown at birth was  refused.!
   A case involving this question was recently brought before
the House of Lords, in England, on appeal  from the Scotch
courts.  It is reported in Shaw and Maclean's Scotch Cases,
vol. 2.
   Innes v. Innes.   Without referring  to the other details, it
is sufficient to state that Mr. Innes, the supposed father, left
Edinburgh, on the 17th of June, 1826, that he departed from
London for the continent, on  the 26th of that month, that he
returned to Edinburgh  on the 19th of  September, and the
appellant was born on the 14th of April, 1827.  From the
 17th  of June  to the 14th of April, are nine calendar months
and 27 days, or 301 days. From the 19th of September to
the 14th of April,  there  are  207 days, being  seven lunar
months and thirteen days.

  * Le Marchant, Report of the Gardner Peerage  Case, Appendix, p. 337.
  t Robertson v. Petrie.  Cases in the Court of Session.  Vol. 4, p. 338. 
606
LEGITIMACY.
  It was not contended, or if contended, the plea was aban-
doned, that this was a premature birth, since  it was proved
by  Dr. Thompson,  who  delivered  the  mother, that the
appellant was "a full grown birth."  The question, there-
fore, was confined to the point of protracted  gestation, and
on this, the following testimony was  presented:
  For  the pursuers, (plaintiff,) Dr. James  Hamilton, Jun.,
Physician in Edinburgh, Professor of Midwifery in the Uni-
versity of Edinburgh, depones, that  he thinks that ten cal-
endar months is  an unusually long period of  gestation, but
not by any means without precedent; that in the course of
his practice, he has had  occasion to know a very few cases
of such protracted gestation, with regard to which he could
entertain no doubt; that he has known one case of a patient
passing eleven menstrual  periods by seven days ; that by
calendar months, the deponent means consecutive months,
beginning at any one month in the year.   Interrogated for
the defenders, whether  the number of cases which he  has
known in which gestation was protracted  to ten calendar
months, has, in  his experience,  been so great as one  in a
thousand?  Depones certainly not.   Interrogated, whether
it may have been one out of two  thousand, or three or four
or five thousand? Depones that it is impossible to answer
this, because a person does not think of keeping a list.  In-
terrogated, whether in computing the period of gestation, a
medical man must not necessarily depend on the statements
of the woman,  as to the  period from which conception is
supposed to commence?   Depones that  the  information
obtained from the patient relates to the date of the last men-
struation.
   Dr.  John  Moir, Surgeon to the Lying-in Hospital, Edin-
burgh, gave  similar testimony in favor of prolongation of
the period in a few cases.
   For the Defenders.   I  will only  quote the testimony of Dr.
John Thatcher, Physician in Edinburgh.   He deposed, " that
he  had been in practice as an accoucheur for nearly thirty
years, during which  he delivered above 10,000 patients;
that gestation protracted beyond nine calendar months is a 
LEGITIMACY.
607
possible, but not a very probable circumstance.  Interroga-
ted,  whether he  believes in a gestation of ten months?
Depones, that two such cases, perhaps,  three have  been
reported to him; but that he considered these, and considers
such case generally, as founded solely on miscalculation or
misapprehension; that wherever the woman is of bad  char-
acter, or has an interest to deceive, he would most assuredly
ascribe  the  statement, that she has  gone  long beyond the
ordinary  period,  to  these  circumstances.  Interrogated,
whether in judging  accurately of  the  exact  period of
gestation, he is not obliged to  depend entirely upon the
statements  of the woman, ©r at least  to  depend so  much
upon these  statements, that no  certain conclusion can be
drawn independently of them ?  Depones, that in general,
in respectable  practice, certainly  he does rely  upon the
statement of the woman, but that in the  later months of
pregnancy, if required, accurate and scientific  examination
could be made correctly, or nearly so, to ascertain its  state
of advancement, independent of any statement on the part
of the mother, but that if no such examination be made, the
woman's statements are the only guide ; that women without
any motive of deception, are frequently mistaken as to the
period  of gestation.  Interrogated, whether  the woman,
when there is any unusual protraction, must not be aware
 of this fact? Depones, I think she  unquestionable must."
   As this was according to  Lord  Wynford, an " infamous
 case,"  the  mother being of decidedly bad character, the
 House of Lords declined to support the doctrine of protrac-
 ted gestation.
   The English law, on which our  own is founded, does not
 prescribe a precise  time.   There  are, however, some de-
 cisions, 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  judg-
 ment was  given  accordingly.  Gilbert De Clare,  Earl  of 
608
LEGITIMACY.
Gloucester, died on the 30th of June of the 7th of Edward
the Second, and on the 29th  of January  of the  9th year,
(within one day of a year and seven months,) his sisters and
co-heirs prayed  livery.   The countess  pled that she was
big with the earl,  which was accordingly found per inquisi-
tionem.  The  question hung in deliberation, nor did they
obtain  livery  till  the 10th  of Edward.   In  another  case,
during  the 18th  year of Richard  II. Andrews, the husband
died of the plague.  His wife, who  was a lewd woman, was
delivered  of a child forty weeks  and ten days after the
death  of the husband.   Yet the child  was adjudged legiti-
mate 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
Chancery.   Henry Cook died on  the 14th of January, 1780,
and on  the 9th  of November, 1780, following, (forty-three
weeks  except one day,) his  widow was  delivered of a son.
A trial was held and the jury found this posthumous child
to be the heir-at-law.!
   It is evident,  however, from the remarks of Lord Eldon
on the Gardner Peerage Case,  (Le Marchant, p. 286,) that
this case ought not to have been reported as a valid decision
of an English  Court of Law  in favor of a period so protrac-
ted.  " The verdict was a  matter of indifference,  except so
far as it identified  a necessary party."
   Within  a few years, the  Gardner Peerage Case, and the
following, are all  that I can find mentioned in the English
law books :

  * These cases are taken from Hargrave's and Butler's Notes on Coke upon
Littleton. (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 he^ 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."
This case is also reported under  the title of Alsop v. Bowtrell or Boutram,
and I rather think also under that of Alson v. Stacey.
  * Brown's Chancery  Cases, vol. 3, p. 349. 
LEGITIMACY.
609
   " In the ' 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."*
   In Andrews v. Askey, (Carrington and Payne's Reports,
 vol. 8,  p. 7) where the action was for seduction, the injured
 female  deposed that the last  connection was on the 1st of
 January,  1836, and that the child was born on the 20th of
 October,  1836.  Sergeant  Talfourd in  reply to this objec-
 tion, remarked that " such things do happen sometimes, and
 oftener  I believe in the first instance than at any  subsequent
 time."
   In  Luscombe  v.  Prettyjohn, (Lancet, N. S., vol. 26, p.
 729) also for seduction, the female deposed that the first
 connexion took place on the 13th of January, 1838, and the
 last on the 9th  of February.  The child was born on the
 5th of December, and was full grown.   The period of ges-
 tation, taking the latest  period, was 42  weeks and 5 days.
 The verdict was in favor of the female.
   And again, " In the case  of Catterall  v. Catterall, decided
 last week in the Consistory Court, in which the  husband
 proceeded against the wife for a divorce on the ground of
 adultery,  the main  proof was  that  a child had been born
 twelve months after the husband had left his wife in New
 South Wales, for the purpose of proceeding to this country.
 Dr. Lushington, without  entering into  the question of  pro-
 tracted  gestation, pronounced  for  the divorce.  (London
 Med. Gazette, vol. 40, p. 159.)
   I have already mentioned that like the English, we have
 no law on this subject, and  I can find scarcely any American
 cases that have been  adjudicated.   There is, however  one
reported in the American Journal of Med. Sciences occurring
in Pennsylvania, and in which the doctrine of  protracted

   * Dr. Merriman, in Medico-Chirurgical Transactions, vol 13 p  640
                   39 
610
LEGITIMACY.
gestation is affirmed,* and I  refer to the  next  section for

another that has a bearing on this  same  subject.!

   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

show, that it hath been the practice in our courts to consider

forty weeks merely as the more usual time, and consequently

not to decline  exercising a discretion of allowing a longer

space, where the opinion of physicians or the circumstances

of  the case have  so required."J  If then a contested case

should ever arise in our courts, the opinion of medical men

must be  brought  forward to decide  it.   What that opinion

is,  my readers have seen in the present and former sections.

A majority of writers, at least,  are  believers  in protracted

gestation.§

  And now I  may  be permitted  to inquire, whether it is

intended 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,

  *  N. S., vol. 12, p. 536. The case was tried before the Hon. Ellis Lewis,
for whose legal learning and talents, I  have, in another part  of this work,
professed my great respect.  The female was unmarried, the last  connexion
was on the 23d of March, 1845, and the child was born on the 30th of January,
1846; an interval of 313 days.   Judge  Lewis, in his charge, advocated the
possibility of protracted gestation from  similar phaenomena among vegetable
productions, and the mammalia, and.the deviations in arrival at maturity
with the female.   Thus considering the occurrence as not impossible, he left
the  credibility of the witness with the jury, and they found for her.
  t  In a former edition, I stated that cases of protracted gestation are rarely
heard of in  England and  America, and that they appear to have occurred
most frequently in countries where the administration of justice was arbitrary,
or at least fickle and unsteady.  I observe that Dr.  Graves contradicts this,
(New York Medical Journal, vol. 2, p. 135,) so far as it relates to this coun-
try.   It may be so, but I was not aware of it.
  X  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 extend it in some degree beyond forty weeks.
  §  I have already mentioned the punishment for rape in Egypt, under the
present Pacha.  It is taken from a  Communication on the present state of
Legal Medicine in Egypt, by M. Hamont, Director of the School of Veterinary
Medicine, at AbouZabel, 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 tlfe merits of the case, gravely decide, that children may con-
tinue four years in the womb of the mother.  Apres cinq ans, il n'en est plus
ainsi."   (Annales D'Hygiene, vol. 10, p. 204.) 
LEGITIMACY.
611
although born eleven months after absence or sudden death ?
Will physicians, like Dr. Granville, in the Gardner case, tell
the court, that they  see nothing impossible in this ?  If so,
and the knowledge of this opinion extends among the com-
munity, where will be the security of succession ?   Or even
waiving this, what must be its effects when generally under-
stood, 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
us appear to carry with them the fullest demonstration of
their truth, are those in which  the  ordinary term was not
exceeded by more than three or four weeks."*
   " If the possibility or probability of its being prolonged,
is conceded;  it does  not  follow, that, in actual practice,
judgment should go upon the general probability of the event,
as a fact in physiology.   On  the  contrary,  since in the
abstract,  more 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 period is  not fixed by law, proof of the special pro-
bability, or improbability, should be required in  each case."!
   If these  opinions are acted upon, it may prove a happy
circumstance, that we have  no laws on the subject.  Juries
will generally 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 imme-
diately after  the  death of a former husband.  There have,

   * Montgomery, in Cyclopedia of Practical Medicine, ar,t. Succession.
   f Edinburgh Medical  and Surgical Journal,  vol. 27, p. 114.  The  whole
of the article from which this extract is taken, is well worthy of an attentive
perusal.  It is a review of the evidence in the Gardner case. 
612
LEGITIMACY.
however, been females in all countries, who have  disre-
garded these restraints, and united themselves to a second
partner before 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 endeavoured to prevent this, by forbidding
the widow to marry until after  the expiration of ten months ;
and this  term was prolonged by the  emperors Gratian and
Valentinian, to twelve.  This law has been imitated in the
present French code, which also forbids the marriage before
ten full months have elapsed  since the dissolution of the
previous one.*
  But if  these laws are transgressed, or if there be no laws,
(as in England and our  own country) against  such precipi-
tate connexions, whom shall we declare to be the father of
the child ?  I will answer this, by citing  some  cases,  and
then mention 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 immedi-
ately afterwards.  She was delivered of a child two hundred
and seventy-three days  after the consummation of the mar-
riage 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 the 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

  * Fodere, vol, 2, p. 205.  " The same constitution," says Blackstone," was
probably handed down to our early ancestors from the Romans, during their
stay in this island, for we  find it established under the Saxon and  Danish
governments.  Sit omnis vidua sine marito duodecim menses." (Blackstone,
vol. 1, p. 457.)  It was the law before the conquest. 
LEGITIMACY.
613
was a forced one, and contrary to the wishes of the female,
who was  attached  to Aniello.  The latter was strong and
robust.  The wife stated that the consummation of the first
marriage was attended with a discharge of blood, which she
attributed  to  menstruation — that  in  the interval  of her
widowhood,  it had slightly returned, but never after the
second  marriage.   Now, from this, it might be supposed,
that as menstruation had not returned regularly since the
first marriage, the pregnancy was caused by Antoine.   Zac-
chias,  however, supposes  that the sanguineous discharge
was the consequence of defloration, and that as she received
the advances of her first husband with disgust, the suppres-
sion might arise from mental uneasiness.  He attaches no
importance to the  fact, that if the child was  the son of the
second husband, the period of pregnancy would fall far 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 baptized by
the name  of the second husband, and  when he arrived of
age, claimed to be acknowledged as  his son, and  to be
supported accordingly.  The  tribunal of the Rota,  after
taking the advice of physicians and lawyers on the subject,
decided that he was not the offspring of the second marriage,
on the  ground that a five months' birth was  not  viable, or
could not have survived.!
   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

  * Zacchias, Consilium, No. 73.  See also No.  73, for a somewhat similar
case.
  f Zacchias, Decisiones Sacra Rotae Romanae, .No. 4o. 
614
LEGITIMACY.
 of  incontinency with  Duncomb.   Thecar  dies—Duncomb
 within  three  weeks of his death marries her, and two hun-
 dred and eighty one days and sixteen hours after his death,
 she is delivered of a son.   Here it was agreed, 1. If she had
 not married Duncomb, without question the issue should not
 be  a bastard, but should be adjudged the son of Thecar.  2.
 No 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
 Blackstone and Coke :  " If a  man dies and his widow soon
 after marries  again, and a child is born within such a time,
 as that by the course of nature it might have been the child
 of either husband,  in this  case, he is said to be more  than
 ordinarily legitimate, for  he  may  Nvhen  he arrives at years
 of discretion, choose which of the fathers he pleases."!
  The following is the  only American  case that I have been
 able to find:
  Michael Redlion, by his  last will and testament, bequeath-
 ed to his  son  Christian, a  considerable sum of money,  the
 issues of  which were to be paid  to him during life, and at
 his death, the principal to  go to his children; but if he  died
 without lawful issue, then the same was to go to the other
 children  of the  said Michael.  Christian was married  to
 Catharine Stout in  the sping of 1825, and died on the 1st of
 November, 1825.   His  widow Catharine married to Thomas
 Woolverton, the defendant, on  the 16th of March, 1826,
 and on the 14th of -Sept. 1826, the said Catharine had a son
born, who is  now  living.   The question for the  jury was,
 who was  the father, the first or the second husband ? Chris-
tian Redlion  committed suicide, and from his death to the
  * Hargave's notes, ut  antea. See, also, Croke Jac. p. 6S6, for an account
of the same case.
  t Blackstone, vol. 1, p. 456.  Hargrave, as already quoted, and also in note
7 to fol. 8, a, intimates a doubt respecting the above doctrine, and suggests
that one of the cases quoted would lead to  the opinion, that " the circum-
stances 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- 
                       LEGITIMACY.                     615

birth of the  child  was  ten months and fourteen days, and
from the marriage of Woolverton to the birth of the child,
six months.  The plaintiffs were brothers of the deceased,
and  entitled to the above principal in case  of his dying with-
out issue.   The court charged the jury in favor of the plain-
tiffs  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 ; while indi-
viduals born in different quarters of the  globe, have been
mistaken for each other.  And even as to malconformations,
although some  remarkable  resemblances in this respect have
been noticed between  father and child,  yet Nve should act
unwisely in  relying  too much  on them.J  There is, how-
ever, a circumstance connected with this, which, when pres-
ent, 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 Nvhite woman
whose husband is also white, or of a black woman whose
husband is a negro."§  It was on this principal 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 be-
   * John and Jacob Redlion v. Woolverton.  Hazard's Register of Pennsyl-
 vania, vol. 7, p. 363, June 4, 1831.
   f See Zacchias, vol. 1, p. 146;  and Valentini's Pandects, vol.  1, p. 148.
 De Similitudine jYatorum cum Parentibus.
   X " Dr. Gregory, in his lectures, used to relate to his class, in order to con-
vince them of the resemblance which so generally  exists  between parents
and children, that having been once called to a  distant part of Scotland, to
visit a rich nobleman, he discovered, in the configuration of his nose, an exact
resemblance to that of the Grand Chancellor of Scotland in the reign of
Charles the First, as represented in his portraits.   On taking a walk through
the village after dinner, the doctor recognized the same form of nose in seve-
ral individuals among the  country people; and the nobleman's steward, who
accompanied  him, informed him that all the persons he had seen were de-
scended from the bastards of the Grand Chancellor." (Paris and Fonblanque's
Medical Jurisprudence, vol. 1, p. 220.)
   § Edinburgh Medical and Surgical Journal, vol. 1,  p. 335. 
616                    LEGITIMACY.

came a public  charge.  On examination  according to our
laws, she stated that Alexander Whistelo, a black man, was
the father of it; and  he Nvas 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. Mitch-
ill, however, thought  it possible, nay, probable,-that Whist-
elo was  the father.  In  consequence  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 appears in evidence, that the color of the child  was some-
what dark, but lighter than the generality  of  mulattoes;
and that its hair was straight,  and had none of the peculiar-
ities of the  negro race.  Many of the  most  eminent mem-
bers of the medical profession Nvere examined, and they all,
with the exception of Dr. Mitchill, declared that its appear-
ance  contradicted the idea that it was the 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  paternity,
although  he allowed  that its  appearance was an anomaly.
The mayor, (the Hon. De  Witt Clinton,) and the court deci-
ded in favor of  Whistelo.*
   In a case before Chancellor Walworth, in 1835, a man had
been arrested on the oath of a female, that  he  was the father
of her bastard child, and being unable "to give bail, consent-
ed to marry her.   It was now  urged,  in order to annul the
marriage  contract, that the  defendant had  been delivered at
the time of making the oath, of a negro child, both parties
  * See a pamphlet, entitled " The Commissioners of the Aims-House vs.
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,  &c:" New-York, 1S0S.  The main scope of Dr. Mitchill's argu-
ment appears to have been,  that  as alteration of complexion has occasionally
been noticed in the human  subject, (as of negroes  turning partially white,)
and in animals, so this might be a parallel instance.
  " Dr. Mitchill's opinion on Whistelo's case, does not seem entitled to much
greater estimation that 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 Physiology, vol. 2, p. 316.) 
                       LEGITIMACY.                      617

in the suit being white persons.   The  Chancellor said, that
if she knew at the time when she charged the complainant
that it was a black child,  he would consider it in the light
of a fraud, and annul the marriage; and directed the master
to take testimony on the subject accordingly.*
   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 Transac-
tions, of a black man married to an English woman, of whom
the offspring was  quite black.   In a similar case, the child
resembled the mother in fairness of features ; and indeed the
whole  skin was  white,  except some  spots  on the thigh,
which were as black as the  father.
   White, in his work on the Gradation of Man, mentions a
negress who had twins by an Englishman : one was perfect-
ly 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 were almost as light-colored as mulattoes,
while the other was jet black.   The father  was  a deep
black, the mother a mulatto.!
   " The  offspring of a black and  white," says Lawrence,
" may be either black or white, instead of being mixed ; and
in some rare cases it has been spotted."
  * 5 Paige's Chancery Reports, p.  43.   Scott vs. Shufeldt.
   f Edinburgh Encyclopaedia, art. Complexion.  Lawrence's Lectures, p.
259.
  See also Prichard's  Researches into the Physical History of Mankind,  4th
edition, vol. 1, p. 366.
  It may be well also to refer, in this place, to the changes of color that take
place in the new-born black infant.   At birth, it sometimes cannot be distin-
guished 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 Superfcetation, 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.
  A curious case, bearing on these quotations, is mentioned in the Western
Journal of Medicine and Surgery, vol. It, p. 457.
  A white woman, the wife of a planter in one of the Southern States, gave
birth to a dark colored child. Her husband died subsequently, and after re-
maining a widow four or five years,  she again married. A doctor, it seems,
charged her with incontinence,  alleging that " she had given birth to a mu- 
618
LEGITIMACY.
latto child."  On this, an action for slander was brought,  and nine medical
witnesses gave testimony,  and, as usual, differed.
  The Eputative father was of German extraction, and of fair complexion;
but the mother and two of his uncles, were dark like the child.  And it was
further proved, that the family in Germany were descended from the Gipsies.
During her pregnancy, the  mother was  repeatedly frightened by reports of
" negro insurrections."
  The chest and axilla of the boy were nearly white, while the abdomen was
black; the change occurring abruptly, and being marked by a well defined
line.   The glans  penis  is quite blue, while the other parts of the genital
organs are of the complexion of the general surface.  He has been growing
gradually whiter since birth; his hair is  nearly straight,  a little curled,  and
his feet and ankles have none of the negro peculiarity.
  It was proved that the character of the woman was not above suspicion.
  The jury failed,  on the first trial, to agree on a verdict.
  Whatever  doubts we may  entertain relative to this case, certainly that of
the child, in the  same work, (p. 491,) by Dr. Stackhouse,  is one where we
may safely incline  to the side of charity.   The  mother had a severe bilious
affection at the conclusion of her pregnancy.   The child, when  born,  was
dark like a mulatto, but the hair was straight and fine, and the feet and ankles
like the  white race.  It continued ill for three  weeks, and then  died from
convulsions.  On dissection,  the liver was found unhealthy and the bowels
stained yellow.
  The suspicious circumstances were, that the eye was clear, and the urine
natural, contradicting the idea of jaundice. And again, the back and abdomen
were very dark. 
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—English.  Cases that have occurred under each—
  General Stanwix—Taylor—Selwyn, Ball, &c.  Propriety of having fixed
  laws on this subject.  Difficulty in settling presumptions.

   This interesting as well as intricate question, has fre-
quently been the subject  of legal inquiry.  It is agitated
when two or more individuals have died within a  very  short
period  of each other,  and no witnesses have been  present to
notice  the exact  instant  of dissolution.   Accidents  also,
such  as fire, or a  shipwreck, may destroy  persons, and  the
disposition of their property will depend on  ascertaining
the survivorship of the one or the other.   It  is  not to be
supposed  that medical science  can solve the difficulty;  but
it may, in those  extreme  instances,  where no aid can be
derived from facts, assist in laying down certain principles.
I  shall endeavor  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.

  * The reader who is  curious on  this  subject will find a translation of an
essay of Krugelstein, published some years since in Wilberg's Jahrluch,  and
translated by the late Horace B. Webster, in the American Journal of Medi-
cal Sciences, N. S. vol. 13.  It contains a number of continental cases,  which
at various times have excited attention. 
620
PRESUMPTION OF SURVIVORSHIP.
 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 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 convulsions, 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 favor 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 off-
 spring  is  sometimes  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
  * Valentini's Pandects, vol. 1, pp. 3  and 11.  The statement given of this
case by Fodere, and after him by Capuron, is not correct.   The chamber
assign no reasons except " causis physicis,"  and it is the editor who explains
them.  There is evidently a mistake in  the references to Valentini by Fodere,
(vol. 2, p. 96;) and it is of such a nature that one might be led  to suspect
that he had not minutely examined the Pandects.
  t Fodere, vol. 2, p. 94.  Capuron, p. 135 to 148. 
              PRESUMPTION OF SURVIVORSHIP.          621

 with the mother;  for I will again mention, that in these
 cases, no person is supposed to have been present to witness
 the death of the 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 previous chapter, {on the viability of the infant.)
   A female at the  eighth month  of  pregnancy  died  of a
 disease, which the  physicians styled  anasarca  complicated
 with scurvy, {anasarque compliquee de scorbut.)   A surgeon
 immediately performed the csesarean operation, and extract-
 ed 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  decease of its  mother.   Six  witnesses
 were also present at the operation,  four of whom stated that
 they applied their hands to the breast and felt the pulsation.
 The other two had not observed it.
   Pelletan  was  desired  to examine  this testimony and  to
 give an opinion whether the child had actually  survived its
 mother.  He remarks that there are certain causes of death
 which may destroy  the  mother while  the life of the infant
 may be preserved;  of this nature,  are sudden accidents, as
 drowning,  a blow  on  the  head,  or violent hsemorrhage.
 Fcetal life is even compatible, with some inflammatory com-
 plaints, but  the probability is certainly against the surviving
 of the child, when the  mother  dies  from a lingering and
 wasting disease.  For this reason,  and also because it does
not appear to have arrived at the full time, he was of opin-
ion that the child had died in the womb.  As to  the signs of
life, even if they Nvere fully substantial to have been present,
he conceives them equivocal—the pulsation and heat were
probably the remains of fcetal existence.   And  if the sur-
geon was correct  in  believing that the heart beat for three
quarters of an hour, he was certainly blameable in not using 
622
PRESUMPTION OF SURVIVORSHIP.
 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 favored with a communication on this subject
 by the Hon. De Witt Clinton.   Some years since, he informs
 me, a case  embracing  the  succession  to  a  large  landed
 estate, was  tried in one of our courts  under the follovring
 circumstances:  The  mother and child both died during
 delivery.  If the latter was found  to  have  survived, the
 father, by our law, was the heir;  if the former, her relatives
 became entitled to the property.  On the trial, it Nvas proved
 that the child was born alive ; and the  question of the pri-
 ority of death was then decided against the parties claiming
 as heirs of the mother.

 II. Of the presumption of survivorship of persons of different
            ages destroyed by a common accident.
   It will readily be observed, that if a  father and son, or a
 husband and wife, perish  in one common accident Nvithout
 witnesses, disputes  may arise concerning the disposition of
 their property.  Provision has accordingly been made in
 several  codes for the avoidance of such difficulties.   I shall
 give a concise sketch of these, interspersed with cases, to
 show the course  of legal 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 majority, lost their lives together, the son was con-
 sidered  to have survived the father.  In process of time,
 this provision was extended to all cases, where the precise
 period of death was unknown, and  it was decreed, that in
 the case  of a husband and wife, the  former  should be ad-
judged the survivor.!
  * Pelletan, vol. 1, p. 322 to 341.
  t Digest, lib. 34, tit. 5,  de rebus dubiis. " Cum puberefilio mater naufragii 
PRESUMPTION OF SURVIVORSHIP.
623
  The spirit of these laws guided the decisions of the con-
tinental  tribunals  for  many  ages,  and  Zacchias,  in his
elaborate discussion on this question, cites cases from several
jurisconsults, which were  settled according  to the dicta of
the  civil code.  The mother, in one instance,  was  ship-
wrecked 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.*
   Our author also, in his  Consilia3 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 thir-
ty.  The bodies were found ten hours  after the accident.
That of  the father Nvas 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 conclu-
sion that  the son survived the father.   Being aware, how-
ever, that the  wound in  question was supposed to have
accelerated  the  death of  the former, he endeavors 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 a so much more urgent cause of
 death, that the father, from  his valetudinarian state, and his
 advanced age, Nvould first be destroyed by it.!
   The propriety of this opinion is controverted  by Fodere,
 and with considerable show  of justice ; for certainly a wound
 of the head, and of so severe a nature, may safely be con-
 sidered  the  most sudden  destroyer of life under the above
 circumstances.!
   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

 periit cum explorari non posset, uter prior extinctus sit, humanus est cre-
 dere, filium diutius vixisse.  Si  mulier cum filio impubere naufragio periit,
 priorem filium necatum esse intelligitur," &c.
   *  Zacchias, vol. 1, p. 440, 441.         t Consilium, No. 51.
   t  Fodere, vol. 2, p. 320, 321. 
624
PRESUMPTION  OF SURVIVORSHIP.
 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 thou-
 sand crowns, and on the disposition of this, a dispute neces-
 sarily arose.  Zacchias, when  consulted, gave his opinion,
 that the husband had survived the wife.  His reasons were
 the  following:  The husband, though sixty years of age,
 was robust and  healthy; and, from the deposition of  the
 servants, appears to have eaten but few of the mushrooms.
 The wife, on the contrary, although only forty, was asthma-
 tic, and subject to affections of the stomach.   She had eaten
 largely of the mushrooms, and added to these, other indi-
 gestible 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
 poison acting on the organs of respiration, is altogether  hy-
 pothetical, 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 daugh-
 ter aged four years, was drowned in Loire.  The parliament
 of Paris,  on appeal,  decided that  the  youngest had died
 first.   Some years after, however, an opposite decision was
 pronounced by the same  body.  The  mother, {Bobie,) and
 her two children, one aged  twenty-two months, and  the
 other eight years, were murdered secretly in the night.   The
 husband claimed the property of his  wife,   on the ground
that the children had survived, and the parliament adjudged
it to him.!  The discrepancy in this case is  very naturally
explained by Fodere.   Murderers would first destroy those
whom they  most dreaded, and afterwards proceed to  the
completion of their intended  enormities.
  Ricard, a  celebrated advocate of the seventeenth century.
has preserved a very curious  case on this subject.

 * Consilium, No. 85.
 t Causes CeTebres, quoted by Fodere, vol. 2, p. 218 
PRESUMPTION OF SURVIVORSHIP.          625
  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 mo-
ment ; whereas the death  of the  father and brother being
violent, there was a possibility of their living after receiving            f
their wounds.  It was  then necessary to decide between
them, and  after  some disputation, it was agreed to follow
the Roman  law, and  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
fifty,  and his daughter of twenty-seven years, was drowned,
with  many  others, in endeavoring  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
celebrated Lorry.!  He observes that three causes probably
conspired to accelerate the death of these individuals—fright
—excessive coldness of the water, and  any disease  that
might be  present.  Throughout the whole of his  argument,
he appears to proceed on the supposition, that the younger
female was  menstruating, and hence that the cold water, by
checking it, would hasten her death.  But this is not stated
in any part  of the case, and it certainly is very questionable
whether, as he would seem to insinuate, that state of fulness
of the  system which menstruating females have,  would
accelerate the suffocation produced by drowning.   If  his
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 laboring under 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.

  * Fodere, vol. 2, p. 220. ' Smith, p. 382.
  t This opinion, or " Consultation de Medecine," is published at full length
in Mahon, vol. 3, p. 152. It is signed by Doctors Payen and Lorry, but was
written by the latter.
                   40 
626
PRESUMPTION  OF SURVIVORSHIP.
But the parliament of Paris,  by  a  decree of the 7th of
September, 1752, admitted presumption of survivorship to
her, and ordered a disposition  of the property accordingly.*
  It  thus appears, that for a length of time, the provisions
of the Roman law were followed in France.  But a curious
distinction was made.  The legal tribunals regulated the
descent of property by them, but would not apply them to
cases where legacies were bequeathed, and for this reason.
It is necessary (say they) that  a man should have heirs, but
it is not necessary that he should have legatees ; and accord-
ingly, 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 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 adjudi-
cated 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
determined by the circumstances  of the case, and in default
thereof, by strength of age and sex.
   " If those who perished together, were under fifteen years,
 the oldest shall be presumed the  survivor.
   " If they were  all  above sixty years, the youngest  shall
 be 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
• FoderS, vol. 2, pp. 220, 316.
| Fodere, vol. 2, p. 221. 
               PRESUMPTION OF SURVIVORSHIP.           627

—of course the younger shall be considered to have survived
 the elder."*
   Although these provisions are  in  the main  founded on
correct  physiological  principles, yet there are  some  objec-
tions  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 imper-
fect, since it may include infants of one, two or three years.
 These certainly would expire the soonest.   And again, no
provision is  made for the case when  persons under  fifteen
 and under sixty perish together, although this may possibly
 be met by the last section.
   The English law appears to  have no  provisions on the
 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
maternal uncle.  These parties brought the case into  chan-
cery.   On behalf of him whom the General's survivorship
 would have benefitted, it  was argued, that the ship being
lost in tempestuous weather, it was more than probable that
the General  was upon deck, and that  the daughter was
down  in the cabin, (as  is almost ever the  case with ladies in
these  situations,) and of course subject to more early loss of
life than her father, who, as a man of arms and courage was, it
was asserted, more able and more likely to struggle with death
than a woman,  and in which he might probably have been
assisted by the broken masts and other parts of the rigging.

  * Civil Code, sections 720, 721, 722—quoted by Fodere, v.  2, p. 222, and
Smith, p. 379.
  t The most ancient case, I presume, in English jurisprudence, is that of
Broughton 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 survived the father, since,  as was deposed by witnesses, he
appeared to struggle longest.  The jury (in Wales) gave a verdict of favor 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' Medical Jurisprudence, vol. 1, p. 390.) 
628
PRESUMPTION OF SURVIVORSHIP.
  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
stronger, and from the circumstance of youth, more unwilling
to part  with life, and that the probability of survivorship
was therefore infinitely in favor 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.*
  The  following  case was tried  at  the Prerogative Court,
Doctors' Commons, in 1815 :
  Job Taylor,  quarter-master sergeant in the royal artillery,
had made a will, in which  he  appointed his wife,  Lucy
Taylor, sole executrix and  sole residuary legatee.  Having
been for some  time in Portugal on foreign service, he was
returning  home with her on  board the Queen Transport,
when the vessel in Falmouth harbor, struck upon a rock, in
consequence of the violence of the weather, and sunk almost
immediately afterwards.  Nearly three hundred  persons on
board perished,  and among  them, Taylor  and  his wife.
Taylor died possessed of property to the amount of ,£4,000,
and a bill in chancery was  filed  by the next of kin  of  the

  *  Fearne's posthumous works, pages 38 and 39.  This case appears to have
attracted the attention of Mr.  Fearne, and he accordingly prepared argu-
ments for the purpose of seeing what could be advanced on both sides, with
some appearance of reason; and after his  death, they were published in the
above collection.  The scope of the argument in favor 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 propriety of allow-
ing 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 neice.   (See pages 35 to 72.) Both these
arguments deserved an attentive perusal.
  See, also, vol. 1, Blackstone's Reports, p. 640, Rex v. Dr. Hay. 
PRESUMPTION  OF SURVIVORSHIP.
629
wife against those of the husband, to  ascertain who was
entitled  to  this property, but the proceedings were  at a
stand for the want of a personal representative of the hus-
band.  Both parties,  therefore, applied to the  court  for
letters of administration generally, or that the court would
suspend  granting any to either party during the dependence
of the chancery suit, and  in  the mean time grant a limited
administration.  This latter prayer was, however, abandoned,
on  understanding that  the court could not grant a limited
administration, where a general  one might be granted and
was applied for ; and the present question therefore was, to
whom the  general  administration  should be   granted—
whether  the next of kin to the husband as dying intestate,
his wife  not having survived so as to become entitled under
his will,  or  the representatives of his wife, as  his residuary
legatee,  she having survived so as to become entitled under
that character.
  It appeared  from the affidavits exhibited on both sides,
that at the time the accident happened, Lucy Taylor was.
below in the cabin, and her  husband on deck.  The water
was rushing in fast, and he offered large  sums  to any one
who would  go 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  enduring  great fatigue by the  management of the
officers' mess, as well as that of a great many of the soldiers ;
whilst he was rather  sickly, and  had been latterly much
afflicted  with an asthma.
  It was contended on the part of the husband's  next of
kin, that by the principles of the Roman  civil law, which
had been adopted  into  the law of the country, and were in
fact the only principles governing a case of  this kind, it was
laid down, that where two persons  perished  together in a
common  calamity,  and it became a question which  of the
two was  the survivor, the presumption of law should always
be in favor of the person possessing the more robust consti- 
630
PRESUMPTION  OF SURVIVORSHIP.
tution and greater  strength, as being thereby the better
fitted to  struggle with the difficulties of his situation, and
resist for a longer time the operation of death.  Thus, when
the father and the son shall perish together, the presumption
of the survivorship is in favor 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 pre-
sumption is in favor of the husband.  This, however, like
all other legal presumptions, 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 hap-
pened, that it was most  probable she had  perished before
her husband descended to her rescue.  Upon both grounds,
therefore, both of  principle and of fact, the court must con-
clude that the husband was the survivor, 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 appli-
cable to cases where parties perish together in such a manner
as to  preclude the possibility of obtaining any evidence as
to which of them was the survivor.   Where, however, evi-
dence 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 rcbust  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 reca-
pitulated them, and observed, that the question  as to the
limited administration 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  presumption was  sufficiently repelled by the facts
in evidence.  lit agreed to the doctrine that had been laid 
PRESUMPTION  OF SURVIVORSHIP.
631
down, of the presumption  being in favor of the husband;
but it was a necessary preliminary question, upon whom the
burden of proof rested.  The administration to the husband
being the point in issue, his next of kin had prima facie the
first right to it; but there being a residuary legatee, this
right became  superseded.   The parties claiming under this
latter character were not residuary legatees themselves spe-
cifically, but merely derivatively from one who was.   They
were, therefore, one step further removed from the property.
The presumption of law was certainly always  in favor of
the heir at law with regard to  freehold,  and equally so of
the next of kin with regard to personal property ; the statute
of distribution disposing of an intestate's property among
his next relatives, solely upon the  presumption that such
was his intention, unless  the contrary should be expressed.
It was, therefore, incumbent upon the representatives of the
wife, in this case, to prove her survivorship, as the party in
 whom the  property vested, and from whom in consequence
 they derived their claim  to it.  He  then entered into an
 explanation of the facts  in evidence, and was of  opinion
 that they were  insufficient to repel the  presumption of  the
 husband's having  survived the wife, which the court  was
 bound  to  assume, from the circumstance  of their  having
 been overwhelmed by one common  calamity,  and  having
 perished together; observing, in particular, that though the
 wife might be very active and 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 laboring  under  the bodily affliction
 of an asthma, might still retain his manly firmness in resist-
 ing impending destruction, particularly as, from his situation
 in life, he must have often faced death  in  various shapes.
 He was, therefore, in no  degree  satisfied by the proofs in
 the cause, that the wife survived the husband, and should
 therefore  decree the administration to his next of kin.   In
 thus deciding the  law, however, 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 
632
PRESUMPTION OF  SURVIVORSHIP.
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, em-
barked with his son on board a vessel in India, on a voyage
to England.  The ship  was lost, and all on board perished.
In favor  of the son, the civil law and the Napoleon code
were cited ;  but it was replied, that as the  father's will be-
queathed certain property to each of his children, " who
should be living at the time of his death," it required posi-
tive  proof, and  not presumption.   The opposite  party can-
not prove that the son survived.   The  Master of the Rolls
appears  to have been of  opinion against  the son,  but he
finally sent to a  jury to  try whether Francis Mason was
living at  the death of the testator.!   The  result of this I
have not been able to find.
  To these I will only add the  following:  Mr.  Selwyn of
the war-office, with his lady, perished in the disastrous acci-
dent 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, whe-
ther 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 admin-
istration.
  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
  * 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 follow-
ing remark of the Judge (Sir William Wynne) may however, be quoted: " I
desired the priority of the death of the parties to be considered.  I always
thought it the most rational presumption that all died together, and that none
could transmit rights to another."
  t Merivale's Chancery Reports, vol. 1, p. 308, 
PRESUMPTION OF SURVIVORSHIP.             633
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 lifetime."  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
representatives  of the wife  should not take the administra-
tion, and  as  there was no attempt  on the part of those re-
presentatives  to  establish  an  intestacy, the   court decreed
probate to the  executors.*
  * London  Atlas newspaper.  This case (in re Selwyn) is reported in 3
Haggard's Ecclesiastical Reports, p. 748.  See, also, Colvin v. King's  Proc-
tor, 1 Haggard, p. 92.
  The following are later English cases :
  Case  of Robert Murray, deceased.—Robert Murray, with his  wife and
only child, proceeded on a voyage from Dublin to Quebec on board the barque
Emerald, of  London, in October, 1837 ; on the 25th, during a severe gale, at
eleven o'clock at  night, the vessel  struck the land.  When this happened,
Murray was on deck, and his wife and child were in the cabin.  Murray went
below, and shortly after the vessel  again struck the land and went  to pieces,
and the deceased, his wife and child, were drowned.
  The above circumstances were set forth in an affidavit by the mate, who
survived.  The deceased left a will, in which he had bequeathed the whole of
his property to his wife.
  The court on motion granted administration with the will annexed, to the
next of kin of the husband, as dead, a widower;  there being nothing to show
that the wife survived, the next of kin of the wife consenting.
   Satterthwaite  against Powell.—Major Armett, of the British army, his
wife and four children, sailed in January, 1819,  on a voyage from Bristol to
Cork.  The vessel was lost in the channel, and every one on board  perished.
  Previous to marriage there had been a settlement on the wife, for  her sepa-
rate use, and after her death, for the husband, in case he should survive her.
Subsequent to  this she had the power to devise it among her children. She
died intestate,  and letters  of administration were granted to Mary Satter-
thwaite, widow, as her mother, and next of kin.   She was now dead, and had
left part of the goods of the deceased unadministered, and the question was,
whether administration of  the unadministered effects of  Ann Armett should
be granted to her next of kin, or to the representatives of the husband.
   The counsel  for the latter contended, that the ordinary presumption of law
should be followed,  viz., that where the husband and wife perished by the
same accident, the former shall be deemed to have survived.  " Here the pro-
perty was the wife's, and there  being nothing to  show that she survived, and
the presumption  being that the  husband would live the longest, the adminis-
tration should  go to his representative."
   The court (Sir Herbert Jenner)  said  " the principle had been frequently
acted upon, that  where a party dies possessed of property, the right to that
property passes  to his next of kin,  unless  it be shown to have  passed to
another by survivorship.  Here the next of kin to the husband claims the
property which was  vested  in his wife; that claim must be made out; it must
be shown that the husband survived.  The property remains  where it is
found to be vested, unless there be evidence to show that it has been divested."
  " The parties in this case must be presumed to  have died at the same time,
and there  being nothing to show that  the husband survived his  wife, the
administration must pass to the next of kin."   (Curteis' Ecclesiastical Re-
ports, vol. 1.) 
634
PRESUMPTION  OF SURVIVORSHIP.
  The following is the only American case which I can find
reported :
  Hugh Swinton Ball, with his wife and  adopted daughter,
were lost on board the steamer Pulaski, on  the 14th June,
1838. By his will, he bequeathed to his wife his household
furniture, servants, &c, and in case  he died without chil-
dren,  he gave her all  the property received  by him in mar-
riage, and other legacies  out  of his  own estate.  A claim
was made by her heirs, on the  ground that she had survived
her husband.
  Chancellor Johnston heard  the cause at Charleston, in
January, 1839.   In his opinion he first reviews  the cases
that have  already come before various courts, and remarks
that in all these " the English and American courts have
hitherto carefully avoided the adoption of any rule of decis-
ion.   The  cases have  gone off  by  compromise, or were
decided upon a rule adapted  to the nature of the question
before the  court, and not to the question of right as trans-
mitted by  survivorship;"  or  in  the words  of  Chancellor
Kent, "The English law has hitherto waived the question."
In proof of this he adduces the  well-known cases of Gen.
Stanwix and Selwyn, of Taylor v. Diplock, and Wright v.
Sarmuda.   Still chancellor Johnston  is  not prepared  to
abandon as delusive  all efforts to attain rules capable of
deciding the fact of survivorship, even in instances deemed
conjectural.  But if there  be any evidence  whatever, even
though it be but a shadow, it must govern in the decision of
the fact.  The code  civil  is indeed  grounded  on this.  It
provides that if several persons entitled to inherit from each
other, happen to perish, without the possibility of knowing
which died first, the presumption of survivorship is  deter-
mined by the circumstances  of the fact, and is only in  default
of these that rules  are enacted, applicable to cases of  a
more  conjectural character.
  " In what I have said hitherto I have contemplated a case
where the cause of death consisted of  one disaster, whether
of more rapid or of slower operation.   But  where the dan-
ger consisted of a series of successive operations, separated 
             PRESUMPTION OF SURVIVORSHIP.           635

from each other, and each capable of inflicting death upon
the victims according to the degree of exposure to  it, there
is  certainly more  scope for  testimony and for inference,
from circumstances, than in other cases."
  The facts are thus stated by the chancellor:
  " The  Pulaski left Savannah on the 13th of June, 1838,
and arrived  at Charleston that evening.  The next morning
Mr.  and Mrs. Ball, their  adopted daughter and a servant,
went on board, and she departed north on her course, until
about 11 o'clock of that night when, most of the passengers
having retired to their berths, the starboard boiler exploded.
By the explosion an extensive breach  was made on the
starboard side of the vessel.  Her main deck was blown off,
thus destroying  the communication between  the forward
and  after part of  the  steamer.   The  forward part of the
upper deck  (called the  hurricane deck, in contradistinction
to the  after part, which is called  the promenade deck) was
blown off, carrying with it the wheel-house, in which the
commander  of the boat, Capt. Dubois,  was sleeping at the
time ; the gentlemen's forward cabin was much torn, its floor
ripped up and its bulk head driven in; and Major  Twiggs,
whose berth was  there, gives us reason to suppose  that
many perished in that part of the vessel, by the explosion.
The gentlemen's after cabin  (which was under the main
deck, and immediately beneath the ladies' cabin, which was
on that deck) was  also injured.  Some  part of the floor  was
ripped up,  the bulk head partly driven in, and the stairs
communicating with the deck more or  less shattered.   The
vessel was  careened to  the  larboard,  and as  she dipped
began to fill with water.   In a very short time  the hold was
filled, and the water gained to the level  of the floor of the
gentlemen's cabins.  It rose higher with great  rapidity; the
vessel settled to the centre, where the breach  was, and all
hope that she could hold together  was  abandoned.   She
parted amidships,  and  the forward and after parts pitched
into the  water,  towards the  centre, at an angle of nearly
thirty degrees.  The gentlemen's after cabin was  now en-
tirely filled, and  the forward  cabin was certainly in as bad 
636
PRESUMPTION OF SURVIVORSHIP.
a condition.   There were  some  persons  on the forward
part of the vessel, nearly all of whom  speedily perished,
but the greater number were in the after part, including one
or two who had passed by swimming from the forward to
the after part.  Of those on the after part, as many as could,
climbed to the promenade  deck; but  there were  many,
mostly ladies, among whom was Mrs. Ball, who remained
on  the main deck.   These, as that deck sunk deeper and
deeper, retreated  along the gangways, by the  ladies' cabin,
towards the stern.  The promenade deck, by the action of
the waves, was burst from the top of the boat, and was sub-
merged with all that were  on it.   Whether the stern of the
boat was submerged at, or after this  time,  is uncertain.
Some of the witnesses  think it was, even before the  prom-
enade deck, others that it was not submerged at all.  All
these events had taken  place, according to most of the wit-
nesses, in about from forty to fifty minutes; according to
others, in less  time.
  " Some  few  escaped  in the boats, others on parts  of the
wreck, and others on  rafts constructed by them as they
could. Of Mrs. Ball nothing is known,  after the submerg-
ing of the promenade  deck, nor  for  some  time before.
Before that event, her cries were heard by one witness, who
had gained the promenade deck, as  they proceeded from
the place she  still occupied on the deck below.  No wit-
ness speaks of her afterwards.
  " Within a few  minutes  after  the explosion, according to
one witness who knew her, she came out of the ladies' cabin,
and began to call  upon her husband.  The scene was one of
terror, as  may be supposed ; and  although a crowd was in-
stantly gathered  at  that part of the vessel, there was not
much noise.  The surrounding horrors seem to have subdu-
ed the sufferers, and  in mute astonishment they contempla-
ted the fate that awaited them.  Even the wheels had stop-
ped.  Nothing but the sound of the waters,  which were
somewhat disturbed, and the hasty exclamations of friends,
as  they sought each other out, and the  noise occasioned by
such preparations as the more active and prudent felt them- 
             PRESUMPTION OF SURVIVORSHIP.          637

selves called upon to make for themselves and others under
their charge, were heard.  But the voice of Mrs. Ball was
heard above all others, calling upon her husband.  She ran
forward to the chasm caused by the explosion, retraced her
steps, and continued to traverse the starboard gangway in
search of him, uttering his name in tones so elevated by her
agony, that they reached most parts of the vessel, and seem
to have made an  indelible  impression  upon all  who heard
them.  Her cry, according to one witness, was a cry of bit-
ter despair  and anxious  inquiry, and,  according to all,  it
was lifted in shrill tones,  carrying an irresistible appeal to
all hearts.
   " Mr. Ball was  neither seen nor heard.   Mrs. Ball was
heard and seen by many, but no response Was heard to her
cries, nor was  any one seen to  approach her, for her pro-
tection or consolation.  Two witnesses,  who knew Mrs.
Ball, saw her but did not see him.  One of them  passed and
repassed her,  in a hurried  manner, to be sure, but did not
discover him.
   " He was  neither seen nor heard after the explosion, un-
less he was  the  person referred to by two witnesses, who
stated the following circumstance : Very  shortly after the
explosion, a boat was let down on the starboard side of the
steamer, into which some  persons descended.  As the boat
was lying below, a gentleman came to that side of the deck,
and throwing a coat into the boat,  called to those in it to
hold fast a  moment and  instantly disappeared.   He never
reappeared,  but the next day, the  coat was  found  to be a
black dress  coat of a large  size (such was the size of Mr.
Ball) and in one of the pockets was  discovered a shirt col-
lar, on which was  written the name of Ball, with some ini-
tials,  which the witnesses have forgotten.
   " Now these are the circumstances of the case.  It is not
the case of  an  unknown  calamity,  nor of one  withdrawn
from observation, nor is it a case where the calamity was of
instantaneous operation.  It is a case for  testimony and to
be decided on testimony." 
638
PRESUMPTION  OF SURVIVORSHIP.
   Chancellor Johnston proceeds to say, that as the right on
the part of Mrs. Ball was derivative, the burden is on the
plaintiffs, to prove that she was the survivor.  But although
bound to prove this, it does not follow  that they are to
prove it to demonstration.   We must take the best evidence
that the case affords.
   Although unwilling to rest on the fact, that Mrs. Ball was
the last person seen, yet he inclines  to the opinion, that in
cases of persons lost by a common accident, this should be
the ground of decision.   He prefers in the present instance,
" to put the case upon the ground of probability, arising
from the evidence ; upon a belief engendered by a combina-
tion of  circumstances, and upon the superiority of positive
proof over conjecture or even probability.
   " The explosion produced its most fatal effects in the gen-
tlemen's forward  cabin, and that was  the first part of  the
vessel which sunk.  The after cabin was also much injured.
From the  forward  cabin  many  persons never  escaped.
From the after cabin, so far as we know from the evidence,
all did escape except Judge Cameron, an  infirm old man.
But from the description given of  its  condition, it is possi-
ble that some others may have been detained, either from
being hurt or otherwise, until the cabin filled.
   " It is certain that Mrs. Ball escaped the explosion.  Is it
certain that Mr. Ball did 1  Mr. Ball engaged a berth in  the
after cabin.   The probability is that he got it, but this is far
from certain.  The boat came  with many passengers from
Savannah, which may have occasioned  Mr. Ball to be dis-
placed and transferred forward.  I think, however, it is  not
probable he  was so transferred, because  by an arrangement
between the agents in  Savannah  and at Charleston, they
were entitled to  let berths, in  alternate order, throughout
the boat; and we know, that some of the passengers, who
came from Savannah, had not the advantage of pre-occupy-
ing the after cabin, and that some of the  Charleston passen-
gers were let into the cabin; Mr. Ball, therefore, was prob-
ably in that  cabin.  But there is a probability that he was
in  the forward cabin, and if so, in the greatest danger from 
PRESUMPTION  OF SURVIVORSHIP.
639
the explosion.   Mrs. Ball was  cleared from  that  danger
certainly, Mr. Ball only probably.  Supposing that he was in
the after cabin,  still there are chances of his destruction
there, from which, we  know, Mrs.  Ball  was totally free
on the deck.  We know Mrs. Ball was there.  This is certain.
Is it certain that Mr. Ball had hitherto escaped and was the
person who threw the coat into the boat? It may be that he was
the man.  I think it hardly probable.  I  should have thought
that he  was the man, if he had been seen at any time near
his wife, or had  answered to her heart-rending calls.  But it
is more probable that some one else in the hurry of the mo-
ment may have  mistaken Mr. Ball's coat for his own and
thrown  it into the boat, than that an  affectionate husband
and brave man, as Mr.  Ball is proved to have been, should
have heard such appeals as were made to him by  his wife,
and should at such a time, have failed in his  duty to her.
   " We have indubitable evidence that she had so  far
escaped; the same evidence with a moral force, which can-
not be  resisted, convinces us,  that he must have  already
perished, or he  would have been at her side.  I have, from
all these  considerations,  formed the opinion that Mrs. Ball
survived  her husband."
   On appeal, (February 1840,) the  above decision  was
confirmed."
   The  reporter  gives the argument of Col. Hunt, counsel
for  the appellants.   The burden of this is, that the exact
time of the death of Mrs. Ball is known.   She was from
her terror and feebleness undoubtedly drowned, when the
 decks sank.  Mr. Ball may have survived for sometime after.
 The great error  (he objects,)  on the other side, is the resort
 to negative testimony.   He was not seen—he was not heard
—therefore he was dead—although no cause of  death is
 traced  to him.   There is no proof that he was killed by the
 explosion.  He was a good swimmer—he may have caught
 a fragment of the  wreck and survived a long time.  As to
 Mrs*. Ball, this was impossible.
   Col.  Hunt considers it certain that  Mr. Ball had a berth
in the  after cabin, from which all escaped except Judge 
640
PRESUMPTION OF SURVIVORSHIP.
Cameron.  He is also decided in opinion  that it was Mr.
Ball who  threw his  coat into the boat;  nor because he
was not with his wife, does it prove that he was dead?  He
might have been seeking some means  to save her; he might
have been looking for his adopted daughter.
  " There  is no legal proof that Mr. Ball was dead at the
time the witnesses heard the cries of his  wife.   No human
testimony can fix  the time of his  death,  while that of his
wife is rendered almost  certain.   And thus, so far from the
complainants  having established  their  survivorship, the
weight of  evidence proves that the husband survived.   It is
enough for us, that the fact  is left unsettled.  The burden
of proof was  upon the complainants,  and  they have failed
to establish their position."*
  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  Dun-
can.!  Others again, and in  particular Zacchias, have  laid
down rules for judging in all the various kinds of accidents
that may occur.  Thus in those dead from hunger, the young
should be supposed to have first  perished,  then infants, and
lastly old men; and as to sex, women  probably survive.  In
cases of drowning,  a dissection and examination  of the
organs immediately acted upon, may lead to correct opinions ;
while in those  found dead  from noxious exhalations, we
should examine the  relative situation of  the  bodies to the
noxious air, and the state of thoracic capacity.  In all cases,
the state of health should, if possible, be  ascertained; and
apoplectic habits should always be deemed to have been the
earliest sufferers.J
  Dr. Beatty  has  lately considered these  probabilities  more
in detail, in a  valuable Essay in the Cyclopedia of Practical
  *  Pell and another v. Ball's executors, Cheves' South Carolina Chancery
cases, vol. 1.
  t  Belloc, p. 161.  Edinburgh Medical and Surgical Journal, vol. 1, p. 334.
Orfila's Lecons, vol. 1, p. 535.
  X  Zacchias, lib. 5, tit. 2, quest. 12. He also adds, that when persons are
destroyed in a fire, those who are suffocated expire before those who are burnt
to death.  (See Fodere, vol. 2, pp. 228 to 232. Smith,  p. 380.) 
              PRESUMPTION OF SURVIVORSHIP.           641

Medicine.*   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,  however, struck with  the  difficulty of forming
positive opinions even on this, from an incident related by
Burckhardt.  In giving an account of  a caravan coming in
want of water  in  the  Nubian 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 survive longer than the female ;
but suggests several qualifying circumstances, which should
enter into the estimate.   The greater liability  of the weaker
sex  to fainting—and their ability to preserve  life  longer,
without marked arterial circulation, may,  in many  cases,
tend  to their preservation.   As to habit and variety of  con-
stitution,  all  such that have a tendency  to affections  of
the head and lungs, should be deemed the first victims,  in
case the causes  of death are of a description to affect these.
And  the moral  condition must not  be 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
sulphuretted hydrogen, or  carbonic  acid gas, has  been the
agent of suffocation, it may be presumed  that death  was
rapid in all, and occurred at nearly  the same  time.  A late
writer, however, affirms, that from numerous  observations,
made  for a long period, on  persons dead  from asphyxia,
(and the context shows that he principally  means carbonic
acid gas,) the female adult survives longer than the  male
adult.   The strongest individuals die first.|

  * Vol. 4, p. 97, art. Survivorship.
  t Library of Entertaining Knowledge. The Menageries, vol. 1, p. 296.
  X Sardaillon in Annales D'Hygiene, vol. 10, p. 173. In further confirma-
tion of this, Devergie makes the following statement:  According to official
reports, 360 cases of asphyxia from carbonic acid have occurred in Paris be-
tween  1A'4 and 1835.  Of these,  19 were  double cases, (male and female
                    41 
642           PRESUMPTION  OF SURVIVORSHIP.
   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 vigor  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
Syria3 while the young have escaped.  Cold, on the contrary,
will earliest destroy the infant and the young.
   In cases of two or  more  persons  drowned at the  same
time,  Devergie  remarks  that those who  bear the marks of
apoplexy should be considered  as having died the earliest;
and  again, those who die  from syncope survive longer than
when asphyxia is the cause.*  All  wounds  and injuries
are  to be supposed to  have  accelerated the fatal termina-
tion.
  Such are some of the inferences drawn from positive facts,
and  from physiological researches.   If they are deemed too
few,  or too contradictory,  it  still  remains to  determine,
whether we should not have some positive rules to guide us.
I cannot doubt the propriety and necessity of this.!  And
in adopting any as law,  such  as approach the  nearest  to
natural justice,  will  be the  best.   The provisions of the
affected at the same time,) and three only recovered.  These three were
females.  Out of 73 females, 18 were saved, while out of 83 males, only 19
recovered, a proportion in favor of females of 4 to 5.  Devergie, vol. 2, p.
923.  In conformity to this, is a case in the Transylvania Journal, vol. 10, p.
697, on the authority of Prof. Dudley.  It is that of a man and his wife suf-
focated in a close and small room by the gas from live coals.  At 6 A. M., the
man was found dead, rigid and contracted, the woman lyeathed and was
recovered.  There is a very difficult case cited by Krugelstein—of a husband
and wife of the same age, dead from the fumes of charcoal, in which Metzger
and Pyl, agree that the female died first, because there were no marks of suf-
focation, (swollen and congested lungs, with increased quantity of serum,)
present with her, as there was with the husband.
  * Again, those on  whom the signs both of apoplexy and  suffocation  are
present, must be deemed to have died first. Krtjgelsteix.
  t I cannot, however, agree with a writer in Brande's Journal, vol. 3, p. 41,
who proposes  that in all cases, the order of nature should be presumed to
have taken place, and that the child, whatever be its physical powers or age,
should be deemed to have survived the parent. Certainly this is not warrant-
ed by observation or deduction. 
PRESUMPTION  OF SURVIVORSHIP.            643
French  code,  with some  modifications,  appear to be best

adapted for administering equitably in the majority of  cases

that may occur.*


  *  The following remark will show, that the necessity of enactments is else-
where acknowledged: " With regard to cases of comparative unfrequency,
indeed our law is culpably careless. We have shown ourselves no friends to
codifying; but we contend 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 committing certain crimes.  The period  of absence that is con-
  sidered as presumptive proof of a man's death.  Decisions on this subject
  in England—Scotland—States of New York and South Carolina.  Age be-
  yond which pregnancy is deemed impossible.  The  Douglas cause.  Laws
  on this point—cases.  2.  Identity.   Cases where physicians may be requi-
  red  to identify individuals by physical  marks. Remarkable instances in
  France—Martin Guerre—Francis Noiseu—Sieur de Caille—Baronet—Sieur
  Labbe.  English cases.  Effects of age in altering the personal appearance.
  Case of Casali.  Remarkable cases of disputed identity in New York and
  Louisiana.  Cicatrices, and their value in disputed cases.

   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
minority, majority, &c.; and  if the  registers or testimonials
to prove these are wanting, it is difficult to suggest any phy-
sical  proofs on which  a medical man, more than any other
individual, can venture to pronounce decisively.*
   There are,  however, exceptions  to these remarks, as the
readers of  these pages must have  noticed.   It  is often of the
highest importance to  ascertain  the  age  of a fetus, or a
new-born  child; but  the proofs of  these  have been more
properly, we conceive, investigated in another place.   There
  * 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
fudges, 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 Silver v. Shelbach, (1 Dallas'  Pennsylvania Reports, 166.) 
646
AGE AND IDENTITY.
are also some points in the age of individuals, which deserve

consideration in a treatise on  Medical Police,  such as the

proper period for  contracting marriage and the division  of

life into the  different 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 com-

mitting 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 com-

plete  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  pre-


  * Instances of premature puberty are numerous both in the male and fe-
male.  Of the former I may refer to those related by Drs. White and  Bres-
chet, and Mr. South in the Medico-Chirurgical Transactions, vol. 1, p. 276,
vol. 11, p. 446, and vol. 12, p. 76.  The subjects were each about three years
of age. Ballard mentions a case that lately occurred in Paris, where a female
attributed her pregnance to a boy ten years old.  Instances of Infantile men-
struation are related by Dr. Wall, Medico-Chirurgical Transactions, vol. 2, p.
116, and by  Sir Astley Cooper, do. vol. 4, p. 204 ; also  by Meckel, Lancet,
N. S. vol. 3, p. 264.  Dr. Davis in his Obstetric Medicine, pp. 236, 728, has
collected a number  of cases, with references to many others.   For other
cases of precocity in either sex, see  Stalpart, vol. 1, p. 336; London 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; Lon-
don Medical Repository, vol. 17, p. 353.
  A case by Dr. D'Autrepont of a female child in Monthly Journal of Foreign
Medicine, vol. 1, p. 185, from a German Journal.
  A case by Mr. Thomas. Smith in Scotland, Brewster's Edinburgh Journal
of Science, N. S. vol. l,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 Report-
er, vol. 1, p. 137.
  A case in New Jersey (male) by Dr. Johns, New York Medical and Physi-
cal Journal, vol. 9, p. 237 ; and one at  Quebec, in a female, by Dr.  Tessier,
vol. 9, p. 240.
  A recent  case by Dr.  Le Beau,  of Louisiana, of infantile menstruation,
(American Journal of Medical Sciences, vol. 11, p. 42.)
  A remarkable case  of menstruation at one year, and pregnancy at 9. On
the 20th of April, 1834, this female aged lO years and 13 days, was delivered
of a female child, weighing 7i lbs.   This occurred in Hickman county, Ken-
tucky, and is related by Dr. D. Rowlett of Waisborough in that state. (Tran-
sylvania Journal, vol. 7, p. 447.) 
                      AGE AND  IDENTITY.                  647

mature powers of the individual should  not be considered,
instead  of  his  actual  age, is  a  question for legislators.
While the period is positively fixed by law, no question can
be raised concerning it.*
   2.  Metzger suggests another point,  which may occasion-
ally  require  the  opinion  of a physician,  viz  : How long a
period of absence shall be considered as presumptive proof of a
man's death?^
   There are some law cases which may be quoted  in  eluci-
dation  of  this.    In  Benson  v.   Oliver,   in   the  court  of
exchequer, 5 George II. 1732, before Chief Baron Reynolds :
" Upon trial of  an issue directed by the Court of Exchequer,
the deposition of a witness examined in  1672, was offered
to be read, without any evidence of his being  dead, relying
  A case in Germany, of menstruation at one year, related by Dr. Susewind.
 (Medico-Chirurgical Review, vol. 33, p. 606.)
  A case by Mr. Peacock, of menstruation at five years.  (London Med. Ga-
 zette, vol. 25, p. 548.)
  Menstruation at eighteen months, case by Dr. Lens, of Dantzic (from Cas-
 per).  (British and Foreign Med. Review, vol. 11, p. 225.)
  A boy aged five years, at Lynn, Connecticut, case by Dr. Durkee. (Boston
 Med.  and Surg. Journal, vol. 23, p. 299.)
  A boy aged three years and four months, at Cambray in France, with the
 generative organs like those of a young man in size and appearance.  Semen
 secreted. Case by Dr. Ruelle.  (Bulletin de L'Academie Royale de Medecine,
 vol. 8, p. 622.)
  Menstruation at two years of age, in a girl born in the mountains of Saxony,
 the genitals were covered with hair, and the breasts firm.  This case, related
 by Dr. Carus, was examined by the Academy of Medicine of Dresden.  (Lon-
 don and Edinburgh Monthly Journal Med. Science, vol. 2, p. 1050.)
  A boy, aged nearly four years, born in the state of Mississippi, with geni-
 tal  organs largely developed, and pubes covered with hair.  His strength is
 very great.   Case by Dr. Lopez.  (Amer. Journal Med. Sciences, N. S. vol.
 5, p. 500.)
  Case by Wm. Whitmore, a female child had the catamenia regularly at
 periods of three weeks and two or three days, from a few weeks after birth,
 until four years and some months, when she died.  On dissection, the breasts
 were quite large, and there was hair on the mons veneris.  (Med. Examiner,
 vol. 9, p. 121, from  Northern Journal of Medicine, July, 1845.)
  * " A boy, under fourteen years of age cannot, in point of law, be guilty of
 an assault with intent to commit a rape; and if he be under  that age, no
 evidence is  admissible to show that in point of fact he could  commit the
 offence of rape.  Regina v. Philips, 8 Carrington and Payne's Reports, 736.
 (Amer. Jurist, vol. 23, p. 173.)
  By the civil law, minors under the age of ten and a half, were not punish-
 able for any crime; from  ten and a half to fourteen, if found to be doli
 capaces, they were, but with many mitigations, and not with the utmost
 rigour of the law.  The exception nisi malitia suppleat cetatem must be no-
ticed in many criminal cases, and is approved by our own and the English
law.  See Edinburgh Encyclopedia, art. Crimes.
  X  Metzger, p. 142. 
648
AGE  AND  IDENTITY.
upon the presumption from  length of time, which  would
entitle  the  reading of a  deed at that  date.   The  Chief Ba-
ron  refused to let it be  read, saying, a deed had some au-
thenticity from the solemnity of hand and seal.  He said,
if  proper researches or  inquiry had  been  made, and no
account could be given of him, he would have admitted it at
such a distance of time."*  Again,  in  Dixon v.  Dixon,
where a legatee had been abroad twenty-six years, and had
not been heard of  for twenty-five  years,  the Master of the
Rolls said he would 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.J
  In Scotland  I find the following stated :   " Eighteen years
absence  and being holden and reputed dead, was found  a
sufficient  probation to  take  off the presumption of  life.§
And in 1830, the Court of Session granted a sum of money
to legatees  which had been settled on them by a person who
went to India in 1805 and who had not since been heard of.
Bail  was,  however,  required  to  repay  in case  of  his
return,'1 &c.||
  In a case where a person went as a sailor to Tobago, and
had  not been heard of for twenty years, and his  age, if alive,
would have been about fifty, the Court of Session, in Scot-
  * 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.)
  X McComb, executor of Ogilvie, v. Wright,  (Johnson's Chancery Reports,
vol. 5, p. 263.)
  § Decisions of the Court of Session, vol. 3, p. 435.
  || Edinburgh Law Journal, vol. 1, p. 101.  "In Scotland so far as mar-
riage is concerned, at least a man is presumed to be dead who is not heard of
for seven years, in which case his wife may form a new union, by proclaiming
and calling on her husband to appear at the cross of Edinburgh, and as he
may be in a distant country or at sea, it is necessary to give him a fair oppor-
tunity 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.) 
AGE AND IDENTITY.
649
3and, allowed  the interest of a bequest to the person  next
entitled, and would have given the principal, if security for
its return, should it be required, had been offered.*
  The  French code is very cautious  on this subject.  It
requires thirty-five years of absence, or one  hundred years
since  the birth  of the absent person, before the heirs can
demand  a  division of his property, and be put  in definite
possession of it.f
   In the state of New York, the  presumption of the  dura-
tion 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 ;X but the space of seven years is adopted in  the  act
for the more  effectual discovery  of the death  of persons,
upon whose lives  estates depend.§
   South Carolina.  " An absence from the state for seven
years, without being heard of, raises the legal  presumption
of the death of the husband."||
   Missouri.   " Absence beyond  the  seas  for seven  years,
without being  heard from, raises the presumption of death."IT
  *  Campbell, v. Lamont.  Cases in the Court of Session, vol. 3, p. 98.  For
similar cases, see Fettes v. Gordon, ibid. vol. 4, p. 150.  Case of Mrs. Hyslop,
ibid. vol. 8. p. 919.  In this last the Lord President observed that he remem-
bered  the reappearance of a party, after being unheard of for a period of
thirty-three years.
  t  Code civil, sect. 129. See the whole  chapter.
  X  Revised Laws, vol. 1, p. 113, and Revised Statutes, vol. 2, p. 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.
  IT American Jurist 18, 476, quoted from 3 Missouri Reports, 529, Salle v.
Primm.  The following  is certainly worthy of consideration in a revision of
the  present law:                                               '
  The Master in  Chancery was directed to inquire and  state whether Mary
Bilton was living or dead, and if dead, when she died.  He reported that
she died in  1821, this being seven years after  she was last heard of.  The
evidence in  support of this finding, was given  by  a person not a relation,
who deposed that Mary Bilton, in 1809 or 1810, when she was about 16 or 17
years  of age, clandestinely left the house of her  father, who was a small far-
mer in Yorkshire, and that she had not been heard of since  the year  1814,
when she wrote a letter to her sister, dated at Portsmouth, and announcing
her intention of going abroad.  The court considered the master's report to
be grounded upon insufficient evidence, and refused accordingly to confirm it.
The Vice Chancellor  of England said: " It strikes me that there is conside-
rable difficulty about this case,  which like every case  of the same nature,
must be determined by its  own peculiar  circumstances.  Here, a girl about
16 or 17  years of age, whose father was a farmer, chose, for some reason
which does not appear, to leave her father's house,  and to go no one knows 
 650                 AGE AND IDENTITY.

   3. A third subject discussed under this title has been, the
 age at which pregnancy is possible, and beyond which it cannot
 occur.   The  last was much canvassed in the famous Douglas
 cause, tried  some  years  since  in  England.   Its  leading
 incidents, were as follows : Lady Jane Douglas was married
 August 10th, 1746, to Col. Stewart.   She became pregnant,
 and this fact, was notorious in January, 1748, and  on the
 10th of July, 1748, being in her fiftieth year, she was deliv-
 ered of twins at Paris.  Of these, one, named Sholto, did
 not survive  to manhood—the other, Archibald, did.   Lady
 Jane after their  birth miscarried.
   In process of time, the father and  mother both died.
 Their  positive  declarations had  convinced the Duke  of
 Douglas, and he  left his  dukedom and other estates to his
 nephew, and their son, Archibald, who was the appellant in
 the  cause.   The Duke of  Hamilton appears to have  con-
 ducted the  prosecution,  and at all  events, the  claim  was
 opposed on the ground that they were suppositious 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 apel-
 lant.  The following extracts from that of Lord Mansfield
 are  interesting, both in reference to the  point under  consi-
 deration, and to one  noticed in  another part of this  work,
 {Resemblance  of children to their parents:)
   " Lady  Jane became pregnant in  October,  1747,  at the
 age  of forty-nine years,  a thing (says he)  far  from  being
 uncommon^ as is attested by  physicians of the first rank,
 and confirmed by daily  experience.   It is further proved,
 whither.   But it seems, that in August, 1814,  she was at Portsmouth, and
 that she then intended to go abroad.  Therefore, it is but reasonable to pre-
 sume that all along  she had been concealing herself, and  that she never
 intended to return home.  The mere fact of her not having been heard of
 since 1814, affords no inference of her death, for the circumstances of the
 case make it very probable that she would never be heard  of again by her
 relations.  How can I presume that she died in 1821, from a fact which is
 quite consistent with her being alive at that time ?  The old law relating to
 the presumption of death is daily becoming more and more untenable.  For,
 owing to the facility which travelling by steam affords, a person may now be
 transported in a very short space of time from this country to the backwoods
of  America, or to some other remote region, where he may never be heard of
again." (London Law Review, October, 1846, from Simons' Chancery Reports,
vol. 14, Watson v. England.) 
AGE AND IDENTITY.
651
that the elder child, the appellant, was the exact picture of
his father, and the child Sholto as like Lady Jane as ever
child was like a mother."
  " I  have always considered  likeness as an argument of
a child's  being  the son of a parent, and  the  rather, as the
distinction between individuals  in  the  human  species is
more  discernible that in other  animals; a man may survey
ten thousand people, before he sees two faces pefectly alike,
and in an army of an hundred thousand men, every one may
be known from another.  If there should be  a likeness of
features, there may be a 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 resembled his mother.  Many witnesses have sworn
to Mr. Douglas being  of  the same form and make  of
body  as his father; he has been  known to be  the son of
Colonel  Stewart by  persons  who  have  never seen  him
before, and is  so like his elder brother, the present Sir John
Stewart,  that  except  by  their  age,  it would  be hard to
distinguish the one from the other."
  " If Sir John Stewart,  the most artless of  mankind, was
actor in the enlevement of Mignon and Sanry's children, he
did in a few days what the acutest genius could  not accom-
plish for years.  He found two children, the one, the finished
model of himself, and the other, the  exact picture, in minia-
ture,  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, color  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 Douglas.",
The  House of Lords decided in favor of  the appellant, five
peers only dissenting.*
  * Collectanea Juridica, consisting of tracts relative to the law and consti-
tution of England.  (London, 1792, vol. 2, p. 386.) The appellant was after- 
652
AGE  AND IDENTITY.
   I have incidentally noticed this subject in a former chapter,
and  mentioned  some cases  of births  in  females of an ad-
vanced  age.*   As  to  premature   pregnancy  in European
 wards created Lord Douglas, and died in his 80th year, Dec. 26, 1527.  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 ISl years between  the birth of the grandfather and the death of
 the grandson.  (Annual Biography and Obituary for 1S29, vol. 13, p. 433.)
   Frequent allusions to this cause will be met with in Boswell's Life of John-
 son.  Boswell was a great stickler for Lord Douglas.   (See Croker's Boswell,
 American  edition, vol. 1, pp.  246, 312, 447,  &c.)  In the  Scotch Court  of
 Session, the  judges were divided, eischt for the Duke of Hamilton and seven
 for Mr. Douglas,  and on this the appeal was  brought to the  House of  Lords.
 I am  indebted to Mr. Rich, of London, for procuring for me,  " A Summary  of
 the Speeches, Arguments and Determination of the Right Hon. the Lords of
 Council and Session in Scotland, upon the important cause wherein the Duke
 of  Hamilton  and others were  plaintiffs, &c.:  By a  Barrister at Law, Svo.;
 London, 1767."  And also Letters to the Right "Hon. Lord Mansfield, from
 Andrew Stuart, Esq., Svo; Dublin, 1773.  Lord Campbell (Lives of the Lord
 Chancellors, vol. 5, p. 290) remarks on the Douglas case, as follows :  " I be-
 lieve the general opinion of English lawyers  was in favor of the decision of
 the Court of  Session in Scotland ; but this was produced a great deal by Lord
 Mansfield's wretched argument, and the very able letters of Andrew Stuart,
 the Duke of Hamilton's agent, whose  conduct had  been severely reflected
 upon.  I once studied the case very attentively, and I must  own that I came
 to the conclusion that the House of Lords did well in reversing.  There  was
 undoubtedly  false evidence in  support of the  appellant; but it would have
 been  too much in such a case to act upon the maxim,' false in one thing, false
 in all things,' so as to deprive him of his birthright, from misconduct to which
 he  was not privy.  There seems to be no doubt that the Lady Jane, notwith-
 standing her  advanced  age, subsequently  to the birth of  the appellant,  was
 pregnant  and had a miscarriage; and  insuperable  difficulties  attended the
 theory of his being the son of Madame Mignon.  Being in possession  of his
 status,  I think the  evidence was insufficient to deprive  him of it; and the
 strong family likeness, satisfactorily established, seems to  prove  that the con-
 clusion of law concurred with the fact of his physical origin."
  * Vol. l,p. 246. If such cases present themselves in legal investigations, the
 proofs in favor of maternity should be clear and decisive.   Probably the most
 remarkable' 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 S3, having a child.  (Memoirs of Lite-
 rature, vol. 7, p. 7S.)
  Pliny says that Cornelia, of the family of Scipio, bore a  child at 60.  (Paris'
 Medical Jurisprudence, vol. 1,  p. 173.)  He mentions other cases.   In Dods-
 ley's Annual Register for 1775,  is the following : " June 25, 177-3, 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 up-
wards 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,  (1S33,)  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, whe-
ther this could occur at the age of fifty-one ?  Dr. Epps mentioned the case
at the Westminster Medical Society,  and it was allowed that if she had con-
tinued to menstruate up to the required time, there was no physical reason
why conception might not take  place at any period during the interval.  (Lan-
cet, N. S., vol. 12, p. 45.)  I presume this is the case of Andrews vs. Lord
Beauchamp, in the  Vice-Chancellor's Court, lately mentioned in the  news-
papers. 
AGE  AND  IDENTITY.
653
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 examples of  precocity, resembling those
which occasionally occur in the other sex.
  " The  English law admits of no  presumption as to  the
time  when a woman ceases to  have children, though this
enters into  most other codes."!
  In Scotland, there appears to be a similar provision :   " A
daughter, suing for  her provision, which was due to her,
failing 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
fifty."J
  The subject of identity  seems to have a connexion with
the  one  we have  noticed, and  like  it, may  occasionally
require the opinion of physicians.
  Cases  have not  unfrequently  arisen, both in  civil  and
criminal  courts,  where  the  question   at  issue has  been,
whether an individual  be really the  person  whom he pretends or
states himself to be.    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 expe-
rience  of all who have had  opportunities of  extensive
observation.   The  title of one of the  chapters of Pliny's
Natural History, is Cases of Resemblance, and he enumerates
several persons who could  hardly  be distinguished  from

  *  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  impossible, and would have denied the
motion, but the father consenting, and the other  children consenting, that
their respective shares should stand as security to answer what any after born
child, should there be one,  might be entitled to, the court granted 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 recogni-
zance to refund in case of that happening.
  X  Decisions Court of Session, vol. 1, p. 332. 
654
AGE AND IDENTITY.
each other—the great Pompey from the plebian 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 courts the difference of opinion  that
exists, will generally be of such  a nature as to render the
duty of the tribunal trying  and difficult.  This subject is
calculated to excite  attention, to awaken discussion, and to
cause great positiveness of opinion on one or the other side.
Every feeling  of the heart is enlisted, and the oaths of indi-
viduals must  necessarily be  of the  most discordant  and
opposite nature.   It  may be stated generally, that in  such
instances, the  advice of the physician may assist in leading
to the detection  of falsehood, and  the  establishment of
truth.  If there be any thing like  positive data, which can-
not deceive, he can aid in their development: 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
incidents are so extraordinary, that many have deemed it a
fictitious narrative.
  Martin  Guerre  had been absent from  his  home  for the
space of eight years.  An adventurer named Arnauld Dutille,
who resembled him, formed the design of taking his place,
and actually succeeded so far,  as to be received by the wife
of Martin  as  her husband, and to take possession of his
property.   Children were born to  this union; and he lived
three years in  the family, with  four sisters and two  brothers-
in-law of  Martin,  without their suspecting his identity.  It
became,  however, a subject  of dispute.   Several  hundred
witnesses  were  examined,  and of these,  thirty or forty
swore that he  was the real Martin Guerre; nearly the same
number, that he was Arnauld Dutille; while others deposed
that the resemblance between the two men was so great, that 
AGE AND IDENTITY.
655
they could not decide whether the prisoner was an impostor
or not.  The perplexity of the judges on  this occasion was
very great; but in spite of many things that weakened his
cause, they  were  on the point of  deciding in favor of
Arnauld, when the  arrival of the true Martin developed the
deceit.  Even when confronted, the impudence" and effront-
ery of Dutille was  such as to lead many to doubt, until the
brother and  sister  of the  absent  person  fully recognized
him.
   I am unable  to say whether physical resemblances were
much noticed in this case,  as  the above narrative is all the
authentic  information that I have been able to obtain "con-
cerning it.  In the following instances, however, there ap-
pears 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 conse-
quence 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 call-
ed 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
argument in her favor, since it was not pretended that Noi-
seu had labored 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  appear-
ance of justice.  He observes  that there were evidently
physical marks sufficient to guide to a proper decision, and 
656
AGE AND IDENTITY.
that these were disregarded.  The cicatrix at the knee, ac-
cording 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.  Certainly, 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 surgeons, on examining this cicatrix,
declared that it was made with  a  sharp  instrument; but
others pronounced that it was the consequence of an abscess,
and that no  mark of venesection  was  present.  Lastly, it
was certainly no argument against the maternity of Noiseu,
that the boy bore  marks of smallpox.  He was missing
nearly two years, and might  have suffered under it during
his absence.   It appears also that the subject of the dispute
had some peculiarities in shape, which were not properly
investigated.
   The  Sieur De Caille, being a protestant, fled  to Savoy at
the period of the  revocation of the  edict of Nantes.  His
son died before his eyes  at Vevay.   Some years after, an
impostor 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 nurse  and domestics of the  family)  swore that  he was
the son of De Caille ; and the public  sentiment was strongly
in his favor,  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 dis-
covered, 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 pe-
culiarities in shape and make.  He was  of small height, and
his knees approached each other very  closely  in walking. 
AGE AND IDENTITY.
657
A long head, light  chestnut  hair, blue eyes, aquiline nose,
fair complexion, and a high color, were his other character-
istics.   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
livelihood.  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  neighbor,
named  Babillot,  whose son  had departed about the same
time  that Baronet  went away, to  claim her brother.  Al-
though the  attempt failed, and the individual could not be
prevailed on to continue in the opinion that Baronet was his
son, yet  the  sister had  sufficient influence  to cause her
brother to be condemned as an impostor, and to be sentenced
to the galleys for life.
  A few  years produced a revolution in the minds of those
who had witnessed this cause, and an appeal was made  to
the parliament of  Paris.  The celebrated surgeon, Louis,
was consulted, and his opinion inclined in favor of Baronet,
who was discharged and put in possession of all his rights.
  The  physical facts in this case are so striking, that evi-
dently  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 Ctllbres.  The following is interesting from its connection with
                   42 
658
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
question may be altered, while marks will remain which are
not to be effaced.  It is on such  that  reliance  should princi-
pally be placed;  although  I am  far  from  denying,  that
instances  may occur where, even in  these, a most striking
conformity will be observed.
   In England  several cases of interest have occurred.   Dr,
Paris notices, amongst others, that of Frank Douglas, a  well
known man  of fashion, who was  committed for  highway
robbery on the positive oath of one of the parties plundered,
and  very  narrowly escaped conviction.  On the  apprehen-
sion of the notorious  highwayman, Page,  the mystery  was
explained; the personal resemblance being so great, as to
deceive all ordinary  observation.!
   "  In  cases  (says Blackstone) where  the prisoner after  con-
viction escapes and is retaken, the jury shall be impannelled
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 Com-
mune of Foulanges, in the Department of the Calvados, in passing on horse-
back along the highway with the widow Beaujeau, his servant on foot, was
fired at with a gun from behind a ditch and through a hedge.  He was wounded
in the hand.  It was an hour and forty-three minutes before the rising of the
moon and the night was dark, yet both Labbe and his servant swore, that
they recognized the assassins by the light of the discharge.  One of the per-
sons accused was arrested, tried and condemned to death, but an appeal was
taken to the court of Cassation.   The advocate consulted M. Lefevre Gineau,
member of the Institute and Professor of Experimental Physics in the Impe-
rial College of France, whether it was possible that the priming (amorce) on
being inflamed could produce light sufficient to discover the face of the per-
son firing?  Gineau with his son and Dupuis and Caussin, also Professors,
with several others, retired on the 8th of December at 8 P.  M. into a dark
room and there Prof. Gineau fired several primings, the spectators being sta-
tioned at different distances in order to witness  the effect.   The light pro-
duced was strong, but fuliginous, and so rapidly extinguished, that it was
impossible to distinguish the individual firing.   " A peine etait il possible
d'entrevoir la forme distincte d'une tete.  On ne reconnaissait 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 con-
demned was acquitted.
  Dr. Montgomery in the art. Identity, Cyclopedia of Practical Medicine,
mentions several analogous  cases.  It is however  not to be deemed a settled
point.   Devergie asserts that the light produced as above has been sufficient,
in some cases, and Boutigny remarks that the experiments will require to be
renewed, in consequence of the general use of percussion caps.
  t Medical Jurisprudence, vol. 1, p. 222, and vol. 3, p. 143. 
AGE  AND IDENTITY.
659
to try the collateral  issue, viz. the identity of his person,
and not whether he  is guilty or innocent, for that has been
tried before.   And  in these collateral instances, the trial
shall be instanter, and no time allowed the prisoner to make
his defence or produce his witnesses, unless  he will make
oath that he is not the person attainted."*
   But  there is another subject of consideration suggested
by the present inquiry, which we must not omit;  and that
is, the change which a number  of years produces, as  also
the hazard that this  alteration may be productive of injury
to an individual, in causing doubts of his identity.
   A noble Bolognese, named Casali, left his country at an
early day and  engaged in military pursuits.   He was sup-
posed to have  lost his life in battle, but after an absence of
thirty  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  person.  This  distinguished
physician, in his consultation, assigns several causes which
might  produce such an alteration; as age, change of air,
aliments, the manner of life, and the diseases to which we
are liable.   Casali had departed in the bloom of youth; he
then entered on the  hardships of a military  life, and if the
narrative of the  individual in question is to be credited, he
had  languished  for  years in  prison.   All these causes, he
conceived, might produce a great change in the countenance,
and render it difficult to recognize him.

  * Commentaries, vol. 4, p. 396.   In  the Attorney-General v. Fadden,
(Price's  Exchequer Reports, vol. 1, p. 403,) the defendant represented that
the person who had actually committed the offence, had assumed his name,
and that the question would be one of mere identity. He therefore prayed
to be brought into court by habeas corpus,  (he was now in jail,) in order to
be present at the trial. It was granted. 
660                 AGE AND IDENTITY.


  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.*

  It is not, however, in  foreign countries only that these

difficult 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 question of his identity.  He was called Thomas  Hoag

by the public  prosecutor, but stated himself  to be Joseph

Parker.  Several witnesses  swore that they had known him

under the name of Thomas Hoag, among whom was a female

whom he  had married, and 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 peculiarities were  found on  the prisoner.  Two wit-

nesses deposed  that Hoag  had a scar under his foot, occa-

sioned 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.!


  *  Zacchias, Consilium, No. 61.  It is to such cases, that the beautiful quo-
tation from Marmion, by Dr. Paris, is applicable :

            " Danger, long travel, want and wo,
            Soon change the form that best we know ;
            For deadly fear can time outgo,
               And blanch at once the hair :
            Hard toil can roughen form and face,
            And want can quench the eye's bright grace,
            Nor does old age a wrinkle trace
               More deeply than despair."

  The following singular case is mentioned by Dr. A. T. Thomson : " I recol-
lect a captain of an Indiaman, who was a man of low stature when he left
England, but had  acquired upwards of an inch in height on his return—a
circumstance which the surgeon ascribed to  his having been salivated twice,
in the course of the voyage."  (London Medical and Surgical Journal, vol. 6,
p. 519.) Such cases, in persons beyond the usual period of growth, must,
however, be very rare.
  t  Hall's American Law Journal, vol. 1, p. 70.  Dr. Smith also mentions a
case that occured in England, in 1817, where, on an inquest, an old man de-
clared 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. 
AGE AND IDENTITY.
661
  The following is a still more curious case, and one which
excited  intense interest in  the  community  where it  oc-
curred :
  The plaintiff, Salome  Muller, sued for her  liberty before
the courts of Louisiana.  She  was now  a little more than
thirty years of age, and she alleged that she was unlawfully
held in  slavery, by one Lewis Belmonti;  that  she was a free
white woman, of German parentage; that she left Germany
with her parents when about three years old, in an emigrant
ship, which arrived at the  port of New Orleans in the year
1818; that  her mother  died on the Atlantic  passage;  that
her father died of the fever of  the country a few weeks after
their arrival;  and that then, before  she attained a conscious-
ness of her rights, she was  reduced to slavery, and from that
time until the institution of the suit, had been treated, kept
and sold as a slave.
   Belmonti replied to the petition by a simple  general denial
of  its averments, and annexed to  his answer a copy of the
act of sale,  from John F. Miller to  himself, and  he prayed
  •' When witnesses swear to the identity of a dead person, unless their causa
scientice 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 totalchange 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 churchyard of Stirling—nine
weeks after death, the body was discovered and identified by all the relations,
not only by the features, but by a mark, which they believed could not be
mistaken, she being lame of the left  leg, which was shorter than  the right.
There was a good deal of curious swearing as to the length of time after death,
that the body could be recognized, but the jury were convinced that the libel
was proven, and gave a verdict accordingly.  Now I am certain that this was
not the body of the woman who was taken from the churchyard of Stirling,
but one that, at least six weeks after the time libelled, was  buried  in the
churchyard of Falkirk, from which she was taken by this man, who also took
the other, for which he was tried—she also was lame of the left  leg; thus,
though guilty of the offence laid to his charge, he was found guilty by  a mis-
take of the corpus delicti.
  " Considerable interest is at this moment excited in the public mind, by the
case of a young gentleman of the name of Robinson, who was tried lately, (July,
1824,) for divers acts of theft.   Many people swore positively to his identity,
and the jury found him guilty of several of the acts  charged.   Yet, on a
second  trial,  when he  was  sworn to as positively, most satisfactory alibis
were proved.   The case at present is involved in mystery, but it is generally
believed that  the king will pardon him, as the second trial has  thrown doubt
on the first.
  " Since writing  the  above, the royal mercy  has  been extended to him."
Dunlop. 
662                AGE AND IDENTITY.
that Miller might be cited to take upon himself the defence
of the suit, which was granted.
  Miller, in his answer as filed, denied that Salome is white
and free, and alleges her to be of African descent, and right-
fully a slave.   He denies that he purchased the  service of
her father with his children as redemptioners, and avers that
he received her as a mulatress slave, named Bridget, in 1822,
when she was twelve years old, from one Anthony Williams,
of Mobile, who left her with him for sale.  He annexed to
his answer, the power of attorney from Williams  for this
purpose.  He also annexed the legal deed of sale in 1823,
of  Bridget,  then  twelve years  old,  to  his mother, Mrs.
Canby, and lastly the deed of sale from Mrs. Canby to him-
self, in 1835, of Bridget, then called  twenty-three years of
age, and her  three children, the eldest, a boy, being five
years old.  In the deed of sale to Belmonti, in  1838, the
plaintiff is declared to be twenty-two years old.
  It is proper  to  add  that Mr. Miller is one of the oldest
residents  of New Orleans, of large property, and, as testified
to,  of high character for honor and honesty.
  It appeared  in testimony, that a large number of Germans
(1800) emigrated  from  Alsace to this  country,  They were
defrauded by the person with whom they contracted for their
passage, suffered  much  in Holland, were nearly starved on
board ship, and finally, after a great mortality among them,
the survivors landed at Balize, in March, 1818.  In Louisi-
ana they were subjected to the redemption laws, sold for their
passage, and scattered over the country, although a number
remained in New Orleans.
  The mother of  Salome and an infant son died on the pas-
sage.  The father, a son and two  daughters, survived.   A
brother of the father, and a  sister and  cousin of his wife,
with their families, were also among the emigrants.   Daniel
Muller, the father, and  his  children  were carried by their
purchaser to  the  parish of Attakapas, one hundred miles
above New Orleans.  His brother and family were taken to
Mississippi, and the others  of his relatives remained in New
Orleans.   In a few weeks the last heard that Daniel Muller 
AGE AND IDENTITY.
663
had died of the fever of the country, and that the boy was
drowned in the river.  They immediately  sent for the two
girls, but could gain no information concerning them.  And
nothing was known of Salome (1818 to 1843) until this time,
and nothing is yet known of the other daughter.
  In the summer of  1843,  one  Madame Karl, a fellow emi-
grant in 1818, happened to  be in a part of  New Orleans but
little  frequented  by  any but the Spanish population,  and
passing the cabaret of Belmonti, looked in  there and  saw
Salome performing so'me menial service.  She was so in-
stantly attracted by her peculiar features, and the strong re-
semblance  to those of her friends and fellow  passengers, the
Mullers, that she entered the shop and began to question the
young woman.  In reply, the  plaintiff told  her  she was a
slave,  belonging  to Belmonti,  and purchased  from Miller.
When told by Madame Karl, that she was a white woman,
she gave no credit to the  story.  Madame  Karl, however,
insisted on taking her to those whom she declared were her
German relatives.   She carried her  to the house of her
cousin and god-mother, Mrs. Schubert, who instantly and
without any previous intimation of the discovery, exclaimed,
•' My God, here is the long lost Salome Muller !"   As many
of the German emigrants of 1818 as had any recollection of
the lost girl, were collected, and immediately identified her.
Among the witnesses was  the midwife who assisted at her
birth, and  who took Mrs. Schubert apart,  and asked her if
she recollected two very peculiar marks on the child, resem-
bling moles, and about the size of coffee grains upon the
inner part  of each thigh.   Mrs. Schubert distinctly remem-
bered these ; since, on the  Atlantic passage,  after the moth-
er's death, the care of the child devolved upon her, and she
dressed  and undressed  it  for several  months.   The plain-
tiff was  then called in, and, on examination, these marks
were found.  On the trial,  also, surgeons appointed by the
court,  made an examination and found  them, and testified
they were ncevi materni, congenital, and could not have been
artificially  produced. 
664
AGE AND IDENTITY.
   As to the appearance of the plaintiff, she has no traces of
 African descent in her features.   She had long, straight black
 hair, hazel eyes, thin lips, and  a Roman nose.   The  com-
 plexion of her face and neck is  as dark as that of the dark-
 est  brunette.  The  witnesses  testified  that both  of her
 parents were of very dark complexion.  Salome had  been
 exposed, for many years of her  servitude, to the sun's  rays,
 with head and neck unsheltered, as is the custom of the fe-
 male slaves.   But it was proved that the parts of her person
 which had been sheltered from the sun, were comparatively
 white.
   The trial in the inferior court  lasted several days, and in-
 duced great interest;  the supposed relatives of the plaintiff
 being among the most wealthy and respectable of the  Ger-
 man residents of New Orleans.   The broker who conducted
 the negotiation for the sale from  Miller to Belmonti in 1838,
 swore that he then thought,  and it had always been his
 opinion, that the  plaintiff was  white.  Two or  three  wit-
 nesses, an old Creole  woman, who for many years had lived
 in the immediate vicinity of Miller's residence, and men  who
 were in his employment in 1823, '24 and '25, identified the
 plaintiff, with the greatest certainty, as the same person whom
 they  had  often seen, at that time, in Miller's  possession;
 that she was  then a little  girl, who  spoke the English lan-
 guage quite imperfectly, and with a German accent, and that
 they were told by Miller, or some,of his household, that she
 was an orphan girl who came from a ship, and was taken by
 Miller from charity.
  For the defence, there  was urged, the  improbability of
 the plaintiff's story—the  numerous cases on record, where
 hundreds have testified to a person's  identity, and yet it has
 proved otherwise ; the peculiarly excitable and imaginative
 character of the Germans, and the proved character of Miller
 for kindness to his slaves.  Several persons spoke of seeing
 the plaintiff in Miller's  possession in 1824-25, living  as a
 slave, and perceived no German accent in her speech.  Their
 opportunities for conversation had, however, been very  lim-
ited. 
AGE AND IDENTITY.
665
  No  "Anthony Williams, of Mobile,"  who sold  hereto
Miller, was known.  A feward was offered for information
of his existence or residence, but it was never claimed.
  The main point of defence, however, was derived from the
testimony as to ages and dates.
  The petition averred  that Salome was three years old in
1818.  The defence brought  forward a witness who swore
that the plaintiff was delivered  of her first child in 1825.
It was, however, subsequently proved that the child was born
in 1829 or 1830.   The plaintiff's  counsel  asked  for delay
until  they could obtain a certificate of the registration of
birth from  the place of Salome's  nativity in Germany, but
this was denied.
   The court decided in favor of the defendant, on the ground
that he could not divest a citizen of his property, upon such
testimony of identity as that offered by the plaintiff, although
he  admits that the wonderful  resemblance to the Muller
family, and the congenital marks are a very remarkable co-
incidence, and further said he was  satisfied, from  the evi-
dence of the  plaintiff's delivery in 1825, that she  was not
the lost Salome.
   An appeal  was made to the Supreme Court of  Louisiana,
and the case came up in May, 1845.  In the meanwhile the
 Consul for New Orleans from Baden Baden, had visited Eu-
rope  and  brought  back with him a certified copy of the
 registry of birth, from which it appeared  that Salome was
born on the 10th of July, 1813, and therefore, in 1818 was
five years old, and not three.
   The case was argued by numerous counsel, and on the
 21st of June  the court decided that they were fully satisfied
 that  the  plaintiff was " Salome Muller," and if not so, if
 there was another  person of the same age,  with the same
 peculiar marks, and bearing so strong a family resemblance,
 " it would be one of the  most wonderful facts in history."
 She was therefore declared free.*

   * Monthly Law Reporter, published at Boston, for September, 1845. (Vol.
 8, p. 193.) 
666
AGE AND IDENTITY.
  In all disputed cases, says Fodere, we should particularly
notice  malconformations  or congenital marks.   These can-
not 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.
  Devergie, however, observes that he has often had  occa-
sion to examine cicatrices of this kind, without being able
to distinguish the letters—repeated friction with the  palm of
the  hand being  necessary to revive them.  This was  more
particularly the case when the branding had been inflicted
in youth.  The best general direction then is to use friction.
The mark of the cicatrix remains  white, in  spite of the
stimulus.*
   The most elaborate investigation,  however, on this sub-
ject (cicatrices) is that made by Malle, Professor at Strasburg.
The editors of the Annales D'Hygiene et de Medecine Legale
marked  their sense of its worth, by awarding an honorary
medal to the author.
   I subjoin an analysis of the essay :
   Dr. Malle commences by observing that Orfila is altogether
in  error, wThen he asserts that some cicatrices may  in time
disappear, particularly on young persons, or that they may
undergo  such changes, that we cannot specify the nature of
the original injury.   All this is denied by our author.   A
cicatrix is a  new and abnormal  formation, dependent on  a
previous lesion, and permanent in  its nature.   Unless  we
concede this, we have no data on which to form a diagnosis.
   As illustrative of the variety of cicatrices, and the neces-
sity of occasionally investigating their characterSj Dr. Malle
adduces  the  example of the  discrimination that must be
* Devergie, vol. 2, pp. 32, 929. 
AGE AND IDENTITY.
667
sometimes made between the effects of injuries by fire-arms
and those originating from scrofula or syphilis. So also, we
may be called upon to state the distinction between the
marks  of  vaccination,  and  of smallpox.   In questions  of
disputed identity, or in actions for damages from wounds,
much of the  medical  testimony may be  founded on  the
character of a cicatrix.  The subject is examined under the
following divisions.
  1. The relation of cicatrices to their producing cause.—This
is, in the  first place, greatly modified by the depth of the
original injury.  If the skin only has been  divided, it  ex-
hibits on healing a very different appearance from that of a
closed burn, which has  penetrated much  deeper.  When
there has been a solution of continuity  of any description,
we  should inquire into the mode of cure that has been pur-
sued.  If  the  injury has been treated  by the first intention,
the cicatrix will be nearly linear, and this often happens,
although the  wound  has  been  a contused  one.   But the
tendency in most cases is to the form  of an ellipse.   This
will depend on the elasticity of the skin—its tension influ-
enced by position, and muscular contraction—the convexity
of the subjacent parts, and lastly, the laxness of  the subcu-
taneous cellular tissue.  According as these causes operate
most powerfully on a wounded part of the body, as the
knee or elbow for example, will be the tendency to the latter
form, and it will  even sometimes become circular, or nearly
so.   In parts  the reverse of these, as the spaces between
the fingers and toes,  the  axillary region,  &c,  the  linear
shape  will be most likely to occur.  But these results are
not invariable.   It has been noticed that when the tension
acts irregularly, the cicatrix will incline to the linear form,
and again, a linear wound  may be united  by the  skin only,
leaving the subcutaneous tissue considerably separated.
  It is by attention to the  circumstances just enumerated,
that we can explain why the same  instrument, a sword for
example,  can  inflict  varying shaped  wounds in different
parts of the body, and of course leave cicatrices of different
forms. 
668                AGE AND IDENTITY.
  In wounds from fire-arms, we can seldom infer the form of
the projectile, from that of the cicatrix.   Suppuration, and
sometimes gangrene, increase the destruction of parts.  The
tendency, however, in all, is to a rounded shape, and  the
diameter of  the  cicatrix both  of the entrance  and  exit
wounds, is always less than  that of the projectile.  If the
fire-arm  has  been  discharged  at  a distance, the  cicatrix
resembles a perfect disk, depressed in the centre with the
skin tightened from thence to the circumference, in conse-
quence of its adhesion to the subjacent parts.   On the other
hand, when  discharged  very  near,  the  cicatrix will be
depressed, with  irregular edges, and  if  recent, may be
accompanied with a bluish colored skin from the burning of
the powder.  Sometimes, indeed, this color remains perma-
nent, owing to the grains  of unburnt powder having been
driven into the skin.  It may occasionally become a question
when several cicatrices  are present,  whether  they have
originated  from one or more  discharges of fire-arms.  This
is a difficult problem on the dead body, but we should keep
in mind the extraordinary deviations of projectiles.   One of
the most remarkable is that mentioned by Professor Levy,
in  which a single  ball caused four wounds—two on  the
internal surface of the arm, and two on the back.
   Burns.—The scar here is peculiar.   It is formed by  the
exudation  of lymph on the surface of the  fleshy points of
the suppurating wound,  thin and reddish, and never com-
pletely  supplying the original loss of substance.  It varies
in form  and shape, according to the depth of the injury, and
the nature of the subjacent  tissue  that has been reached.
When superficial, it assumes the form nearly of the burning
body; when  deep, it has a rounded circumference.  The
edges then are rough, concentric, and descending like steps,
as if the cause had contracted its circle of action, in propor-
tion as  it penetrated more deeply.   Solid caustics  on  the
other hand, leave perpendicular edges ; liquid ones resemble
superficial  burns in their effects, unless  they have had  a
considerable  period to  operate, and  then their  cicatrices,
like those of the solid, are circumscribed, deep and depres- 
AGE  AND IDENTITY.
669
sed in the centre.  The scar from a boiling liquid, or from
the rapid contact of a burning body, is  large, irregular on
its surface, and superficial.
  These scars sometimes require weeks and even months, to
complete themselves.  They gradually thicken, and contract
from  the edges to the  centre.  This continues  Until the
surface become white and solid, covered  with a thin shining
epidermis, which is destitute of mucous tissue, sebaceous
follicles, and hair bulbs.  Now and then, a few white hairs
are observed, but the surface  is  constantly dry, although
the whole of the rest of the body be covered with sweat.
Thus those laminae are united to adjacent parts, and form a
depression corresponding to the loss of  substance, and the
full condition of the surrounding tissues.
  In  examining the dead body, we find  some impenetrable
to the minutest injections; others  are  permanently  rose-
colored, or red, and gorged  with venous  rather than arterial
blood.
  Dislocations.—A  simple dislocation immediately reduced
leaves no trace;  but in aged, feeble or  rachitic persons, a
stiffness of the part will remain, and particularly if there
has been a rupture of the muscular fibres of tendinous parts,
we shall find cicatrices.  It remains to ascertain whether
reduction was attempted, or whether there was a mistake
as to  the nature of the case.
  Fractures—Callus is another name for the cicatrix of bone.
A perfect union indicates that a considerable period of time
has elapsed since the injury, and particularly so, if the uni-
ted part is strong,  and  equally with the other, resists our
efforts to break it.   It  is on the dead body alone, that we
can satisfactorily ascertain the actual condition of fractures
and dislocations.   On the living, we can only  partially ex-
amine the surface of superficial  bones, as the clavicle, tibia,
and forearm, and here the swelling may sometimes be felt at
the end of eight or  twelve  months.   We should be careful
not to confound this with spina ventosa  or syphilitic  exos-
tosis. 
670
AGE  AND IDENTITY.
  Surgical cicatrices.—Under this head, Dr. Malle includes
all those scars which are left after a medical  application or
surgical operation; as the effects of long-continued blisters,
of moxa, and the cautery ; the spots induced by tartar emetic
ointment, and the cicatrices left after the surgeon has used
his knife.  In questions of identity, the double  scar of the
seton may be made to resemble the two wounds from a ball.
If epispastics be continued too long, particularly on females,
the skin will be destroyed, according  to Dupuytren, and an
indelible brownish mark will be left.   The scars from moxa
and the cautery, resemble those from circumscribed  wounds
with loss of the tissue, and we have to refer  to  their posi-
tion in order satisfactorily  to designate the cause. •
  Since a certificate of  vaccination has become necessary in
certain cases, the examiner may be  required  to distinguish
between the real and spurious marks.   The last leaves only
red, superficial spots, very different from the figured  cicatrix
of the genuine affection.  Lastly, scars from surgical opera-
tions must necessarily bear a great affinity to those resulting
from wounds.
  Spontaneous solutions of continuity, or the scars which suc-
ceed scrofulous, syphilitic, cancerous,  &c, ulcers. These it
is very difficult to discriminate.  Some  indeed, have assigned
a distinct character to each, as  a round one to the syphilitic,
and an angular one to the cancerous ; but there is an infinite
variety  in all of them, and the examiner should rather refer
the form to the  anatomical state of the part, (such  as  the
elasticity of the skin, convexity or depression of  surface,
&c.,) than to the disease.  We may also draw an inference
from the particular place where the scar occurs.  Thus,  one
in the inguinal regions  may lead to the suspicion of its ve-
nereal origin, and in the  neck or over the parotid, of its
scrofulous nature.  But, in general, we should hesitate long
before pronouncing a decided opinion.
  2. To what depth had the solution of continuity represented
by the scar, extended?   This  can only be answered after
death.  Dissection must trace it through the various tissues. 
AGE  AND IDENTITY.
671
  It has been incorrectly supposed that  some parts of the
human body will not cicatrize.  The process proceeds as
rapidly in  the  mucous  tissue,  as  in the cutaneous.  The
serous  also unites with  adhesion of the contiguous  faces,
by  means  of a  plastic  exudation, while the cellular is in
some measure the medium of adhesions.  Delpech has well
described  the  characters of the tissue of cicatrices.   It is
manifestly fibrous, dense, capable of resisting much force,
and but little extensible,  although it posesses the power of
retraction, which, however  is only partially subservient to
the will.
  A contusion with no injury to the skin leaves no scar, but
is marked  in its progress by various changes of color, and
we can form an opinion from these  of the length of time that
has elapsed since  the injury.  Again, there may be internal
contused wounds, while  the skin is perfect.  Suppose one
of  these, as  of the lungs  or peritoneum,  should heal and
form adhesions, and presently the individual dies of a su-
pervening  disease.  Dissection  here will  prove  that  the
effects of the wound have  not been the cause.  In wounds
with a sharp-pointed instrument, their shape, although de-
pending some on its form, is mainly influenced by the tension
exercised  on  the part.  The cicatrix is  smaller than the
wound, and of course neither of them will enable us to
judge of the size  of the weapon.  The parts return rapidly
after the injury to their original position.   The results ob-
tained  by  Dupuytren and Filhos,  with cylindrical weapons
are hence exceedingly interesting.*  Bellemain  has  also
ascertained that muscular fibres when divided will unite so
perfectly that the point of section cannot be found with the
microscope.   When divided transversely, the scar is scarce-
ly  ever linear, a consequence of their constant contrac-
tions.

  * They ascertained  that a weapon perfectly cylindrical and pointed, will
produce wounds with distinct angles. Sanson, on the other hand,  found
seven oval wounds, produced by a sharp foil on the body of a female who had
been assassinated. 
672                AGE AND  IDENTITY.

  The same tendency exists with tendons and ligamentous
tissue, in  consequence  of their  imperfect  vitality.   The
nervous  tissue, if not completely divided,  also  unites
again.
  As to the bones, it  is highly necessary that the medico-
legal examiner should familiarize himself with  the progress-
ive changes of the callus.  The division of it by Dupuytren
into provisory and perfect callus, should be well understood.
  3.  How long since3 has a cicatrix been formed?  This must
be answered by a reference to the facts  already stated.   In
general, the degree of organization is the measure.  If red,
tender to the  touch,  and  covered with scabs, it is recent.
Its perfect characters  have been already mentioned.  It is,
however, impossible to specify precisely the length of  time
necessary for these changes, and the only exception to this
is with the bones.  For these, authors have assigned exact
periods of progress.   None, however, have invariable terms.
Feeble health, an irritable temperament, advanced age, un-
healthy seasons,  and indeed all the  causes of disease must
operate unfavorably, while the presence of any constitutional
affection must aggravate and increase  the delay in healing.
Lastly, the degree of vitality in a tissue  has some influence,
as also the functions  exercised by a part.  A wound in the
bowels is slow in healing, from the constant motion present,
and  one in the lower  extremities, must  require longer  time
than another in the upper, under similar circumstances.
   In legal medicine,  cicatrices are  to be considered as to
their effects on the functions of particular organs, (local)
and on the system  generally.  Either  of these  may need
investigation  in  questions of  damages.  Inquire whether
they are curable or not, whether connected with permanent
adhesions, or  productive of deformity;  and also recollect,
that an internal injury, though healed, will often predispose
to disease of  the particular cavity.  The  case is peculiarly
uncertain, if it continues fistulous.*

  * Annales D'Hygiene, April, 1840.  Amer. Jour. Med. Sciences,  N. S.
vol. 2, p. 496. 
AGE* AND  IDENTITY.
673
  Finally, we should  notice all peculiarities of physiogno-

my, and  of professions and trades.   These last, as is well

known, develope some members more than others.*

  In the  chapter on Persons  found  Dead, the reader will

find minute directions  for identifying the age and  sex.


  *  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 experi-
ments made by him, that the colour of black hair can be altered by various
agents,—that light-colored hair, with sundry exceptions, c«n be stained of a
dark color—but that  red, or blond, or chestnut colored hair, is changed with
great difficulty, and indeed it can hardly be effected.  In all instances of this
description, he remarks, that the use of these agents may be detected on a
close examination, since it is impossible to effect  a total change.  Some strag-
gling hairs will peep out and testify to their original color.   (Annales D'Hy-
giene, vol. 13, p. 466.)
43 
 
CHAPTER XII.
INSURANCE UPON  LIVES.*
Definition of an insurance upon life—of an annuity.  Objects of inquiry with
  insurers upon lives—exceptions made by them.  What vitiates policies—
  fraud or falsehood as to the health of the insured—gout—dyspepsia, whether
  organic or functional—confinement—omission to mention the actual medical
  attendant—consumption—mental imbecility—disease of the kidneys—habits
  of intoxication—opium eating. Suicide—and the meaning of this term in
  cases of life insurance.  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 whose favor the
policy is granted."!   The nature of the agreement  is such,
that in proportion to the probability of the prolongation of the
life, will be the smallness of the premium.  Annuities are
regulated on the same principles, and the only difference is,
that here the person deposits the 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 appli-
cant  to some professional  man  well  acquainted with his
  * 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.  Several  years after  its publication, I met with a  work entitled,
" The Law of Fire and Life Insurance and Annuities, with Practical Observa-
tions, by Charles Ellis, Esq., of Lincoln's Inn, Barrister at Law."  It is re-
printed 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.
  t Park on Insurance, vol.  2, p.  571, 6th edit.  Paris and Fonblanque,
vol. 1, p. 381. 
676
INSURANCE UPON LIVES.
constitution  and habits, or who, in other words, has been
his medical  adviser;  or persons are directly  appointed as
physician and surgeon to the respective offices, and charged
with the duty of examination.   In either or both cases, the
result of their inquiries guides them in accepting or refusing
an  insurance.   The  leading objects  of 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 in-
telligent witnesses: How long have you known Mr. A. B.?
Has he had the gout?  Has he  had a spitting of blood,
asthma, consumption, or other pulmonary complaint?  Do
you consider him  as at all predisposed to any of these
complaints?   Has  he  been  afflicted  with  fits, or  mental
derangement?   Do you think  his constitution  perfectly
good in the common  acceptation of the term?   Are his
habits, in every respect, strictly regular and  temperate?  Is
he  at present  in good  health?  Is there any thing in his
form, habits of living or business,  which you are of opinion
may shorten his life ?   What complaints are  his family most
subject to?   Are you aware of any reason why an insurance
might  not with safety  be effected  on his life?"!   Whether
the party has had either the smallpox or cowpox ?
  " With respect to the risk which the underwriter  is to
run, this is usually inserted in the policy, and he undertakes
to answer for all those accidents to which the life of man is

  *  Smith's Forensic Medicine, p. 517, 2d edition.
  t  Combe on the Constitution of Man, p. 164, 2d American edition. Mr.
Lawrence, in his Lectures on Surgery, when speaking of the liability of an
organ that has once been inflamed, again becoming so. observes : " Persons
who conduct the business of life insurance, are well aware of this fact.
When a person wishes to insure his life, the insurers inquire not only whether
he is healthy at the time, but whether he at any previous time has had serious
disease; and if they find that he has had such disease, though he is healthy
at the time, they commonly refuse his insurance; they consider him to be an
unsound man."  (Lancet, N. S., vol. 5, p. 266.) 
INSURANCE  UPON  LIVES.
677
exposed, unless the  cestuy qui vie puts himself to death, or
he die by the hands of justice."   Hence, these  are generally
excepted in policies,* and in certain cases, also, the premium
is special,  and  subject to particular  arrangement,  such as
exposure to risk by long voyages, or by  military  service,
and residence in unhealthy  climates.   I observe, also, that
during the  prevalence of cholera in Great Britain, in 1832,
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
required.   I  apprehend  that the  best and most practical
elucidation that I can give of  this subject, is to notice cases
that have occurred,  and I shall do this somewhat in chrono-
 logical order.
   The two following  are  mentioned by Mr. Park in his
 treatise  on insurance.    It  will  be noticed, however, that
 they occurred previous to the establishment of the prelimi-
 nary  inquiries  already  quoted.   Indeed it is  probable that
 the  case  of Sir  Simeon Stuart  led the  offices  to name,
 specifically, gout and other  constitutional  disorders.!
   In  an action  on a policy made  on the  life  of Sir James
 Ross for one year, from October, 1759, to October,  1760,
 warranted in good health  at the time of making the policy; the
  * In a case where the noted Fauntleroy effected an insurance on his life, it
appeared that there was no exception, as to death by the hands of justice, in
the policies of this company, (the Amicable.)  It was urged, however, that
the insured had perpetrated a crime, which the laws of his country punish
capitally, and that therefore his death was as  much his own act as if he had
committed suicide.  But the  court (Master of the Rolls) decided that " the
obligation to pay did not determine, merely because the conduct of the party
insured produced the event, even though such conduct was against the crimi-
nal law of the country.  To avoid the obligation, the act must be done fraud-
ulently, for the very purpose of producing the event."  (Bolland vs. Disney,
3 Russel's  Chancery Reports, p. 351.)  The  House of Lords, however, on
appeal, 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 com-
mitting 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, vol. 1, p. 1.)
  t Paris and Fonblanque, vol. 1, p. 384. 
678
INSURANCE  UPON LIVES.
fact was, Sir James had received a wound at the battle of
La  Feldt, in the the  year 1747, in his loins, which  had
occasioned a partial relaxation or palsy, so  that he could
not retain his urine or fseces, and which was not  mentioned
to the insurer.   Sir James  died of a malignant fever within
the time of the insurance.   All the physicians and surgeons,
who were examined for the plaintiff, swore, that  the wound
had no sort of connexion with the fever;  and that the want
of retention was not a disorder which shortened life, but he
might, notwithstanding that, have lived to the  common age
of man; and the surgeons  who opened him said, that his
intestines were all sound.   There was one physician exam-
ined for the defendant, who said the want of retention was
paralytic; but being asked to explain, he said it was only a
local palsy, arising from the wound, but did not  affect life;
but on the whole, he did not look upon him as a good life.
  Lord Mansfield, before whom the case was tried, observed:
" The  question of fraud cannot exist in this case.  When
a man makes insurance upon a life generally, without any
representation of the  state of  the life insured, the insurer
takes all the risk, unless there was some fraud in the person
insuring, either by his  suppressing some circumstance which
he knew, or by alleging what was false.   But if the person
insuring knew no more than the insurer, the latter takes the
risk.  When an insurance, is  upon a representation, every
material 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 be,
though he have a particular  infirmity.   The only question is,
whether he was in a reasonable good state of health, and such a
life  as ought to be  insured on common terms?"  The jury,
upon this  direction, without  going  out of court, found a
verdict for the plaintiff.*
  In another case, one of  the  terms  of the policy was, that
it should be void if anything  stated by the assured, in a
  *  Park on Insurance, vol. 2, p. 583; Ross v. Bradshaw, and 1 Blackstone's
Reports, p. 312. 
INSURANCE  UPON LIVES.
679
declaration or statement, given by him to the  directors of
the insurance  company before the execution of the policy,
should be untrue.  In this declaration,  the assured stated
that " he was at that time in good health, and not afflicted
with any disorder, nor addicted to any habit  tending to
shorten life;  that he  had not, at any time, been afflicted
with insanity, rupture, gout, fits, apoplexy, palsy, dropsy,
dysentery, scrofula, or any affection of the liver; that he
had not any spitting of blood, consumptive symptoms, asth-
ma, cough or  other affections of the lungs, and that one T.
W. was at that time his usual  medical attendant."  It was
urged  on the part of the defendant, that the above was un-
true, in  this, viz., that  at the time of making the declara-
tion, he had  spitting of blood, consumptive symptoms, an
affection of the lungs, an affection of the liver, and a cough
of an inflammatory and dangerous nature; that  he was thus
affected with  a disorder  tending to  shorten life, and that he
had falsely averred that T. W. was his usual medical attend-
ant.   The defendant  proved on  the  trial, that about four
years  before  the policy was effected, the assured had spit
blood, and had subsequently exhibited other symptoms usual
 in consumptive subjects, and  that he died of consumption,
 three  years after the date of the policy.   The judge, in sum-
 ming  up, read over the several issues  to the jury, and in the
 course of it,  stated to them, that it was for  them to say,
 whether, at the time of his making the statement set forth
 in the declaration,  the assured had such spitting of blood,
 and such affection of the lungs and inflammatory cough, as
 would have a tendency to shorten his life.  It was held that
 this was a misdirection, for that, although the mere fact of
 the assured having spit blood would  not vitiate the policy,
 the assured was bound to  have stated that fact to the assu-
 rance company,  in order that they  might make inquiry,
 whether it was the result of  the disease called spitting of
 blood.*

       * Geach v. Ingall, 14 Meeson and Welsly's Exchequer Reports. 
680
INSURANCE  UPON LIVES.
   Gout.  Again, an insurance had been effected on the life
of  Sir  Simeon  Stuart,  from  April 1, 1779, for one  year.
The policy contained a  warranty that he was  about  fifty-
seven years of age, and in good health on the  11th of  May,
1779.   He died  within the year.   The warranty  of health
was contested, but  it appeared in evidence, that although
Sir Simeon was troubled with spasms and cramps  from vio-
lent fits of the gout, he was in good health when the policy
was underwritten, as  he had been for a long time before.
Lord Mansfield, in commenting on the testimony, observed,
" Such  a warranty can never mean that a man has not the seeds
of a disorder.   We are  all born with  seeds  of mortality in
us.  A  man  subject to the gout,  is a life capable of being
insured, if he has no sickness  at the time to make it an une-
qual contract."  The plaintiff obtained a verdict.*
   Dyspepsia.   In an action brought by  the executors of Dr.
Watson against the Equitable Insurance  Company, to reco-
ver a sum insured on his  life, the  defence was that the de-
ceased  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 symptoms, 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.  Several medical men stated that they had
attended him since the policy  had been effected,  and that he
  * Park, vol. 2, p. 5S3, Willis v. Poole.  In a recent case, (Swete v. Fairlie,
6 Carrington 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 wras seized with depression of spirits, nearly if not quite ap-
proaching to insanity. He was not, however, secluded, but took lodgings in
the country, and came to town every day and attended to business.  This after
some time restored him to health. His 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 pre-
vent the  party from being conscious of what had happened to him while suf-
fering under it." 
INSURANCE  UPON LIVES.
681
was  then quite  free  of the  disorder.   On the  other side,
several medical men stated, that they had seen him at the
time of his visiting Bath, previously to effecting  the insu-
rance, and that they considered him as a failing  man.  It
was  left  to  the jury to decide whether the  patient's com-
plaint was organic dyspepsia, and if it was not, whether the
dyspepsia under whichxhe labored was, at the time of effect-
ing the policy, of such a degree, that by its excess  it tended
to shorten life.  The  jury found that it was neither organic
nor excessive, and gave a verdict for the plaintiff.
  An application was afterwards made to the Court of 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
circumstance 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
uninsurable.  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 contrivance, the  physician  had been prevented  from
stating this fact to the defendants, and therefore directed a
nonsuit.  But on 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  re-
quired the imprisonment  to  be  stated, and although every
* 4 Taunton's Reports, p. 763, Watson v. Mainwaring 
682
INSURANCE  UPON LIVES.
thing called for by the office was answered, yet if the im-
prisonment were a material fact, the keeping it back would
be fatal.   It ought, however, to  have been submitted to the
jury, whether this was or was not a material omission.*
  The omission to mention the actual medical attendant proved
fatal in the case of Col. Lyon.  Previous to the execution
of the policy, the office sent a number of printed questions
to him, among which were the following:  " Who is your
medical attendant?"   He answered, " I have none, except
Mr.  Guy  of Chichester."  And  " Have  you ever had a
serious  illness?"  He answered,  "never."  Mr. Guy was
referred to, and gave  it as his opinion, that Col. Lyon was
an insurable life.   He died in  October, 1823, of a bilious
remittent  fever, and  an annuity  creditor prosecuted  the
present suit.
  It was proved on the part of the insurance company, that
Mr. Guy had not  been called to attend him for three  years
previous to giving his certificate;  but  that in 1823,  Dr.
Veitch, a physician,  and Mr. Jordan, a surgeon, attended
Col. Lyon, from the month of February to that of April, for
an inflammation of the liver and fever, and a determination
of blood to the head.   The former proved that he considered
him in a dangerous way, and had prescribed active medicine,
and  that he would not. have certified him to be in health
until the end of May.   It was, however, agreed on all hands,
that the disease of which he died, had no relation to any of
the complaints 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
effecting an insurance.  He, however, did not suppose that
structural disease was present, and she was then convalescent.
The knowledge of this illness was not communicated to the
insurers, and another practitioner, not then  in  attendance,

  * 6 Taunton's Reports, p. 186, Huguenin v.  Rayley.
  t  Carrington and Payne's Nisi Prius Reports, vol. 1, p. 360. Maynard v.
Rhode, Secretary Pelican Insurance Company. 
INSURANCE UPON LIVES.
683
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
medical attendance, nor the illness  had been communicated
to the insurers, and that the jury must decide whether this
concealment 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.
   In 1824, a policy was effected 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 Lindeneau 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
 physicians  of the Duke certified, that since the  year  1809,
 he  had had a dimness of sight from  amaurosis  in the left
 eye, and  since 1819, had been " hindered " in his speech from
 having had an inflammation of the chest, of which he had
 been perfectly cured: and they further stated that he was
 perfectly free from disease, and symptoms of disease. In a
 communication from an agent in Germany, it was mentioned
 that the Duke had formerly led a  dissolute life,  " by which
 he had lost the use  of his speech, and according  to  some,
 that also of  his cental faculties ; which, however, is con-
 tradicted by the medical men.
    On  this the  company,  instead of asking an ordinary
 premium of X2 17s.  per cent, per annum,  required <£5 per
 cent.
* 4 Bingham's Reports, p. 60. Morrison v. Muspratt. 
684
INSURANCE  UPON LIVES.
  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, wThich one of the  physicians attributed to local
paralysis, and that he had periodical catarrhal affections, ac-
companied with fever.  The chamberlain of the Duke, in his
examination, 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
faculties were impaired, although  his  bodily health was
good.
  On examination after death, no chronic disease was dis-
covered in the viscera or any part of the trunk; but in the
head was found a large tumor 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 in-
ferred that this tumor had commenced in early life.
  The defence was, that there  had been  a  suppression of
material facts.
  Mr. Green,  an eminent English  surgeon,  gave it as his
opinion, that from the history of the case merely, there were
no symptoms of organic  disease.  He further thought that
the tumor in the skull must,  during life, have been in a pas-
sive  state;  and from the appearance on  dissection, that it
must have been  formed in early life.  He was only willing
to allow that the symptoms mentioned above, would lead to
a suspicion of disease in the  head ;  and he was  disposed to
ascribe  the difficulty of speech to want of volition, and not
to the tumor in the brain.  In reply, however, to a question
of Lord Tenterden, he answered :  " If I, as a medical man,
was asked by an insurance company, concerning the state of
a man's health, who was unwilling to move, who was sub-
ject  to  control upon his intellect, 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 mate-
rial facts relative to the Duke's health were concealed, then
the policy was void. 
INSURANCE UPON LIVES.
685
  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 disease  tending to shorten  life.  Bird  died  in January,
1831; and on dissection,  it was  found that a large  fungous
tumor weighing two pounds four ounces, occupied the place
of the left kidney.  Some of the witnesses were of opinion
that it must have  been of five or six years growth, and that it
was an incurable organic disease.   The bladder was also dis--
eased,  but otherwise the rest  of the body was in a healthy
state.   Mr. Bird  had been medically treated for  symptoms
of  his  disease, as  far  back as 1825  or  1826.  The cause
ended  in  a compromise, by the  defendants refunding  the
premium  received.!
   Habits of intoxication.   Two cases, in which it was proved
that the knowledge of these was concealed from the insurers,
although  the individuals in question were at the time appa-
rently hale and healthy, have been  decided against the plain-
tiffs.J  It was urged, in one instance, that the warranty was
  * 3 Carrington and Payne's Reports, 353. 8 Barnewall and Cresswell, 5S6.
3 Manning and  Ryland,  45.  (Lindenau vs. Desborough.)  On  the medical
testimony, and  particularly Mr. Green's, which is severely criticised, 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.
  X 6 East's Reports, 188;  Averson vs.  Lord Kinniard and others.  5 Bing-
ham's Reports, 503; Everett vs. Desborough.
  In a third  case of a similar  nature, although the Judge  (Lord Denman)
charged the jury for  the defendant, the verdict was in favor of  the plaintiff.
(London Med. Gazette, vol. 21, p. 549.)
  There are some additional English cases, more recent than any noticed in
the text, the substance of which may here be briefly given:
  Chattock v. Shawe.  Col. Greswolde  made an insurance on his life, and
died in two years thereafter.  The Company resisted payment on the ground
that the Colonel had been intemperate,  and also had  epileptic  fits, and that
these facts had been concealed from them.  On these points, there was great
diversity of testimony.   The verdict was  for the  plaintiff.  Lord Abinger
charged the jury that all  that was required to be considered, was, whether it
was satisfactorily proved that the Colonel had been subject to fits, and accus-
tomed to intemperate habits before the policy was issued.  It was  not sufficient
to vacate the policy, if an epileptic fit had occurred in consequence of an ac-
cident.  It must be shown that the constitution either was naturally liable to
fits, or by accident or otherwise had become so liable. (London Med. Gazette,
vol. 16, pp. 551, 607. London Med. and Surg. Journal, vol. 8, p.  112.  Ameri-
can Jurist, vol. 18, p. 419.) 
686
INSURANCE  UPON LIVES.
only against any disorder tending to  shorten  life, and  not

against pernicious habits.  Here, however, the reference to

the regular medical attendant had also been omitted.

   In a still more  recent  case, although it was shown  that

the insured would have periods of drinking large  quantities

of ale or cider, although possibly not constantly intemperate,

and when  it was  shown  that he  had a  strong constitution

and died  of  inflammation of the lungs, unconnected with

drunkenness, the verdict was for the plaintiff, but the defend-

ants  subsequently obtained a rule to set aside the verdict,

as being against evidence.   (1  Carrington and Marshman's

Reports, 286.   Southcombe v. Merriman.)

   Opium eating.  Professor  Christison has  directed  the at-

tention of the profession to the effects of this on health and

  Fisher v. Beaumont.  This was tried at York, in July, 1835.   The judge
told the jury  that the question was, whether the individual labored under any
disease likely to shorten life, when the  policies were effected—whether in-
sanity was that disease, and if so, whether it had a tendency to  shorten life.
There was a  verdict for the plaintiff.
  In this case, the presence of insanity was proved, and all the medical wit-
nesses  except one,  swore that  they did not think that it had a  tendency to
shorten life.
  A correspondent of the London Medical Gazette objects to this, and quotes
Lawrence in  proof that the brains of maniacs show more or less of disease.
On the other hand, the long life of many of the insane is urged.   It is evident
that we need statistical tables from lunatic asylums to settle  the point. (Lon-
don Med. Gazette, vol. 16, p. 660.  See also Lancet, N. S , vol. 23, p. 233;
1839.)  Mr. Farr has now furnished us with sufficient facts to decide the ques-
tion.  The mortality of lunatics in England for one year, was 9 per cent; the
annual mortality of the Swedish population from 40 to 45 years, was l£ per
cent.   Madness therefore  increases the  mortality sixfold. (British  and
Foreign Med. Review, vol. 7, p. 21.)
  Dr. Crowther (Observations  on the Management of Madhouses, p. 109)
makes a similar statement.
   Wainewright v. Bland.   The details of this case I have taken from the
London Morning Herald of June 30, and December 4,1835, which I received
through the  kindness  of my friend, Mr. Balmanno, of Geneva. See, also,
London Med. Gazette,  vol. 16, pp. 554, 606.  Miss Abercrombie, the person
insured, was  so indigent as  to petition for a pension of £10 per annum, and
yet her life was insured to the amount of £11,000.  She died very suddenly,
in consequence,  as was asserted, of indigestion, owing to  a hearty supper,
after walking home with wet feet from the theatre.  No proof of poison was
found.   There were twro trials.   In the first, the jury could not agree, and in
the second, their verdict was for the defendant, and very justly, I apprehend.
From some private information that I have received, I entertain a strong sus-
picion that the deathin question was hastened.  The case is reported in Tyr-
whitt and Granger's Exchequer Reports, vol. 1, p. 417; and is also noticed in
the London  Quarterly Review, vol. 64, p. 167, American edit.,  1850.  I am
now at liberty to state that I received the  information in question, from Mr.
Balmanno, (now of New-York,) who, indeed, at  various  times, was kind
enough to favor me with interesting facts relating to recent medico-legal cases.
The whole truth relative to Wainewright (the plaintiff and the brother-in-law
of Miss Abercrombie) is told in Judge Talfourd's " Final Memorials of Charles
Lamb."  Miss A. was  undoubtedly poisoned with strychnine. 
INSURANCE UPON LIVES.
687
longevity.   He was particularly called to it by the follow-
ing case:
  In 1826, the late Earl of Mar  effected several insurances
on his life in various  offices, and among these, one in the
Edinburgh Life  Insurance Company for the sum of X3000.
This was held by a banking-house in Edinburgh, as a secu-
rity 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 in-
stead of being as was represented, temperate  and active,
that he  had drunk to excess, and lead a very sedentary life.
They refused to pay, and a suit was instituted.
  It is  not necessary to go into a detail of the  evidence,
further  than to  state, that  on the one side, the  manifest
change  in his health and spirits in 1827, was ascribed main-
ly to his depressed pecuniary  situation, which  he then dis-
covered 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 favor of  the
plaintiffs,  principally, as  it would seem,  on  a  technical
ground, implying that the insurance company did not make
the  inquiries  relative to his health with the care usually
observed, and 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,* but on  an appeal to  the

  * 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. 
688              INSURANCE UPON LIVES.

Court of Sessions, it was set aside and a new trial was grant-
ed March 9,1832.  The Lord Chief Commissioner observed,
that  " it  was a verdict without  due and sufficiently delibe-
rate consideration  of  the  evidence."   The  parties  finally
compromised the case.*
  Suicide.  I have stated at the commencement of the chap-
ter, that there are exceptions in policies, in  case the  person
insured commits suicide, or dies  by his own hands.   Since the
publication of the last edition,  several cases have arisen, in
which the  meaning of  one or both phrases has been the
subject of  legal decision, and the result would certainly
seem to render it necessary for  insurance companies to  alter
the terms now in use, or  certainly to  make  them more pre-
cise.  The matter will, however, be best understood by an
analysis of the following  (two  English and  one  American)
cases :
  In the  case of Borrodaile v. Hunter and others, tried be-
fore the English  Court of Common Pleas, in December, 1841,
the action was brought to recover the sum  of ,£1000,  on a
policy effected by the Rev. Wm. Borrodaile  on his own life,
in the London Life Association.
  It was shown, that on Friday, the 16th of February, 1838,
the assured was  seen to deposit his hat and cloak in one of
the alcoves of Vauxhall Bridge, to cross  to the Battersea
side  and climb over the parapet, and having  gradually crept
along to where  the water was  deepest, threw himself into
the river, and was drowned.
  It  was also proved that the  unfortunate gentleman,  until
within a  short time of his  death, was a man of remarkable
energy and activity, cheerful in disposition, pious, exemplary
in his dealings, and affable in manner and address.   Unfor-
tunately he became surety for a tax collector named Foster,
who in November, 1837, made  default, and  from that  time
the assured  was observed to  be an altered man.   He ap-
peared to labor under great depression, was  subject  to fits
of absence, lost his appetite and apparently, in some  degree
  * Forbes &  Co. v. Edinburgh Life  Assurance Company.  (Cases in the
Court of Session, vol. 10, p. 451.) 
INSURANCE  UPON LIVES.
689
his memory; spoke little, and did not like to be left alone.
He would stay up late at night, instead of going to bed
about eleven, as was  his  usual custom;  would observe, he
could not bear to go to bed; if he did, he could not sleep,
and even if he  did sleep it was still worse.  He appeared
to feel bitterly  his embarrassment through Foster, and once
observed to that person's wife, " Oh, Mrs. Foster, I am in
such trouble, that  I know not sometimes  where I am going,
or what I am doing."
  He appeared to have a presentiment of what might hap-
pen, and  therefore begged  that  his  brother-in-law would
accompany him to London, observing that he did not know
what  he might do if left alone.   He became remiss in the
exercise of family prayer, in which he had been before most
regular, and latterly he abstained from it altogether.  He,
however, continued to perform his other duties.
  Being vicar of Wandsworth, he performed his duty at the
Parish church on the Sunday  preceding his death;  he read
the service on the  Wednesday following, and on the Thurs-
day, attended a Board of Guardians of the Clapham Union,
where he  remained from eleven to four, and in the evening
attended a reading society, of  which he was a member.
  On the Friday,  (16th,)  he appeared more cheerful than
ordinary,  and rallied his brother-in-law, who was a few
minutes behind the breakfast hour, upon his sluggishness,
saying, he  hoped  his early rising would  not do him harm.
Mr.  Borrodaile ordered the servant  to prepare his clothes
for travelling on the  next day to Worthing, where his wife
and children were  staying, and desired her (the servant) to
get a steak  for  dinner at  six  o'clock.  He then went out,
telling his brother-in-law he was going to the Union and
thence to  London, where he should call on his brother, but
he never returned.
  The  defence in this  case was, that  the  insured died by his
own hand,  in contravention of the stipulation in the policy.
It was also contended by the defendants, first, that there
was nothing to  show aberration of intellect  on the  part of
               44 
690
INSURANCE UPON LIVES.
the insured ;  and secondly, if there were, the simple fact of
the party dying by his own hand would vitiate the policy.
  " In this  case, there could be  no dispute as to the facts,
but the  question resolved itself  into a dry point of law on
the finding of the jury, whether  a  party who dies by  his
own hand, unconscious of right and wrong, thereby avoids
the policy."  No witnesses were called  by the counsel for
the defendants.
  Mr. Justice Erksine told the jury that  in his opinion, the
true construction of the policy was, that where the assured
intended to destroy himself, and had at the  same time a
sufficient mind  to  take  his  own life, the case would be
brought within the condition of  the policy.  His lordship
referred  to the various circumstances of this extraordinary
and important case, and concluded by observing:  " There
could be no  doubt that  the assured throwing himself into
the water was his own  voluntary act,  but whether  he had
the will to destroy himself, knowing what the consequences
of throwing himself into the water would be, was a question
which he must leave to them to decide upon the evidence."
  The  jury  found that  Mr. Borrodaile  threw himself into
the water, intending to destroy himself, adding that previous
to that  time  there  was  no evidence of insanity, but they
were told by the judge, that they must  take the act itself
into  consideration in connexion with Mr. Borrodaile's pre-
vious conduct, and then say whether they thought at the
time he was capable of knowing  right  from wrong.  They
retired again, and on their return stated " that Mr. B. threw
himself  from the bridge  with  the intention of  destroying
himself, but that  he was not  capable of judging between
right and wrong."
  The  verdict  was then  entered for the defendants, with
leave to move to enter it for the plaintiff.
  On the 30th of January, 1842, Sir Thomas Wilde accord-
ingly moved to enter the verdict for the plaintiff, contending
that the verdict was  in fact a  finding that Mr.  Borrodaile
was non compos mentis, and argued that the condition in the
policy, by which it was  provided that the policy should be 
                  INSURANCE UPON  LIVES.              691

 void in the event of the party dying by his own hand, must
 be construed to mean " in the event of the party's becoming
felo de se."  The court granted a rule to show cause.   On
 the 6th of June, Mr. Sergeant Channel contended  that the
 finding of the  jury was, that Mr. B. threw himself from the
 bridge, intending to  destroy life  and knowing that the act
 would destroy life ;  therefore if the  assured by his own agency
 produced death, the policy was void, and the verdict ought to
 remain with the defendants.  On  the other hand, it was
 urged, that the legal result of the verdict excluded intention
 in any sense which could  make the policy void, and that it
 was equivalent to a verdict of non compos mentis.
   The  judges took  the  case under consideration, and, in
 May, 1843, decided that the rule should be discharged and
 the verdict remain with the  plaintiff.  Judges Maule, Ers-
 kine, and Coltman were of this opinion, while Chief Justice
 Tindal dissented.*
   Schwabe, administratrix, v. Clift.
   This case was tried at Liverpool in August,  1845, before
 Justice Creswell.  The plaintiff claimed  900/., the amount
 for which Louis Schwabe's  life  had  been insured in the
 Argus Office.  At his  death, the office refused to pay, on
 the ground now pleaded, viz.: that the party insured had
 terminated his own life by suicide.
   The facts were the following :   The deceased, whose re-
 sidence was at Plimpton Grove, Manchester, was a  native of
 Germany,  and  a silk manufacturer, carrying on his business,
 which was in a large way, at some  distance from his dwell-
 ing house.  He was a man who paid  much attention to his
 business,  and had greatly exerted his mind, which was of
 an  imaginative  turn,  in the  invention of new  patterns.
 There had been five policies effected on his life, but so long
 ago as 1836.   In 1843 he  was observed to  be very much

  * The Jurist, vol. 11, p. 231; Appendix to the Treatise on Annuities, Li-
 brary Useful Knowledge.  The leading point is  thus stated in Scott's New
 Reports, vol. 5, p. 410. After quoting the verdict of the jury, as given above:
 " Held (Dissentiente, Tindal, C. J.) that upon this finding, the defendant was
 entitled to the verdict, the proviso embracing all cases of intentional self-
 destruction. 
692
INSURANCE UPON LIVES.
 excited, and this being noticed by his  medical attendant,
 that gentleman remonstrated with him on his too close ap-
 plication to business, and urged his  going to the sea-coast
 for relaxation : he went, and was partially benefitted.  But
 at one period  of 1843, it was deemed necessary to place him
 under some personal restraint, and a man was placed in his
 house to take  care of him.   He was  a very kind and atten-
 tive person to his family, and on one occasion, during the
 illness of  his  daughter, had watched  himself over her night
 and day, exhibiting, as stated by Mr. Ransom,  his medical
 attendant,  extraordinary coolness,  apparently  from  the
 effort which he made for the sake of his child. On Tuesday,
 the 7th of January last, being  at his place of  business in
 Manchester, he spoke with Mr. Chapel about removing some
 acids, which were employed in the manufacture there car-
 ried on.  The next day, the witness  observed him looking
 at some of the acids in a manner which attracted his atten-
 tion.  On the Friday following, the 10th, Mr. Schwabe came
 to Mr. Chapel and asked for some sulphuric acid, of which
 about half a wineglass full was given  to him.  This was put
 in a phial,  which the deceased  put in his pocket.  At this
 time Mr. Chapel remarked  something peculiar in his look.
 He seemed wild.  But the witness did not apprehend his in-
 tention, as  he was in the  habit of making experiments,
 though he was not considered to be intimately acquainted
with the use of these preparations.   It would  seem that he
 must have taken the phial into a room at the works, shortly
 after having received the contents, and there swallowed the
 acid, the empty bottle being discovered with  a  cork, some
 stains on the  floor, and a  portion of the acid  apparently
 vomited up, after being drunk off.
  The cabman proved that  he was beckoned  to  by the de-
 ceased in  Oxford  street, took  deceased  up, and observed
that he held a handkerchief to his mouth.  On arriving at
his  residence,  whither he desired to be conveyed, he said
something to Mrs. Schwabe, in which he was understood to
say that he had  taken  poison ; and  on Mr. Ransom  being
called in, though deceased was unable to articulate, he gave 
                 INSURANCE UPON LIVES.              693

that gentleman to understand that he had taken sulphuric
acid.  Mr. Ransom enumerated other acids, appealing to
him as a man of  honor to say, if he had  swallowed any of
the acids mentioned.  He shook his head several times, but
finally,  when asked if it was sulphuric acid, he  nodded his
head as  if to say " yes."  He lingered until the next morn-
ing and  then died.
  The case of Borrodaile v. Hunter was animadverted upon
by counsel on both sides.   In that, however, it appears that
the policy contained an exception, " if he should die by his
own hands."   Here the exception was, "if he  should com-
mit suicide."  The Solicitor General, (Sir  Fitzroy Kelly,)
for the defendants, asked what was the meaning of a  man
" committing  suicide."  If a man was in  such a state of
consciousness that he knew that death would be the conse-
quence  of his  act, that was enough.  He did not  mean to
say, that it would be sufficient,  if the  poison acted by mere
accident,  as if he were to shoot himself  unintentionally.
But if they were to hear of a man  having  voluntarily shot
himself, or taking poison, how would they describe it, but
by saying that  he had committed " suicide ? "  Here the
deceased took sulphuric acid, and died in a few hours after
in consequence.   It  was,   then, the plain natural meaning
of the words, according to plain natural interpretation, to
call this  a case of " suicide," and there must have been
something else in the language of  the policy to show that
the words in question should be accepted  in any different
sense.  Were it not so, it  must happen, by and by, that no
similar  clause of exception in  a policy could  be effective,
for it might  be argued that, as no man destroying his life
can be in his right mind, no such case of destruction can be
one of suicide.
   Mr. Knowles,  for the plaintiff, urged that there was no
doubt of the deceased being of unsound mind, when he swal-
lowed the poison; he was morally and legally irresponsible.
Not that the deceased did  not precipitate his own destruc-
tion,  but  that being in the state of mind, which had been
clearly  proved already,  he  was incapable of committing an 
694
INSURANCE UPON LIVES.
act of crime ;  and the counsel contended further, that the
term "commit" did of itself alone imply the doing of some-
thing criminally.
  His lordship,  after recapitulating the facts, as stated in
the evidence, told the jury that it was alleged  on the part of
the defendant, that the policy was void, because the deceased
had  " committed suicide."   To  make  that out,  they must
find, first, that Mr. Schwabe died by his own voluntary act;
and secondly, that at the time he did the act, he could tell
right from wrong, so as to be a responsible moral agent, and
to be capable  of appreciating the quality of his action.   His
lordship observed, that he stated this distinctly, anticipating
that  his judgment might be disputed.   If, in  this case, the
language had been, " dying by his own hands," the decision,
no doubt, would have been in favor of the plaintiff.  These
words were of different meaning from those here  discussed.
The  lord chief justice had said, in Borrodaile v. Hunter, that
"suicide" must  mean a "felonious  suicide."  His  own
opinion was, that the  party must have  been a moral agent,
(or, as he subsequently stated, in a state of mind capable of
distinguishing between right and wrong,) in order to make
the policy void.
   The jury almost immediately returned a verdict  for the
plaintiff, for the full amount claimed.
  This  case  was carried up  by a writ of error, and  after a
full argument  the judges (Chief Baron Pollock and Justice
Wightman, dissenting,) held that the direction of the judge
was erroneous, for that the terms of the condition included
all acts of voluntary self-destruction, and therefore that if
A. voluntarily killed  himself, it was immaterial whether he
was or was not at the time, a responsible moral agent.*
  Breasted and others, administrators, v. The Farmer's  Loan
and  Trust  Company.   The declaration  was on a policy of
insurance upon the life of  Hiram Comfort, the  plaintiff's
intestate.  The policy contained a clause, providing that in
case  the assured should die upon the seas, &c, or by his own
* Common Bench Reports, vol. 3, p. 437. 
INSURANCE  UPON LIVES.
695
hand, or in consequence of a duel, or by the hands of justice,
&c, the  policy  should be  void.   The defendants pleaded
that Comfort committed suicide by drowning himself in the
Hudson river.   Replication, that when the assured drowned
himself, he was of unsound mind and wholly unconscious of the
act.  Demurrer and joinder,  W.  C. Noyes for  the defend-
ants, and T. Sherwood for the plaintiffs.
  Chief Justice  Nelson delivered the opinion of the  court:
" The question arising upon the demurrer is whether Com-
fort's self-destruction in a fit of insanity, can be  deemed a
death by his own hand, within the meaning of the policy.  I
am  of opinion that it  cannot.  Since the argument  of the
case, I have examined  many precedents of life policies used
by the different insurance companies, and  am entirely satis-
fied that the words in the policy in question^ import a death
by suicide.   Provisos  declaring  the  policy  to  be void in
case the insured commit suicide or die by his own  hand, are
used indiscriminately by different insurance companies as
expressing the same idea, and so they are evidently  under-
stood by the writers upon this branch of the  law.
  " The  connection in which the words stand in the  policy
would  seem to indicate that they were intended to express
a criminal  act of self-destruction;  as they are  found in
conjunction with the provision relating to the  termination
of the life of the insured in a duel, or by his execution as a
criminal.  This  association may  well characterize and aid
in determining the somewhat indefinite and equivocal  import
of the phrase.   Speaking legally also, (and the policy  should
be subjected to this test,) self-destruction  by a fellow being
deprived of reason,  can with no more propriety be ascribed
to the act of his own  hand, than to  the deadly instrument
that may have been used for the  purpose.  The  drowning
of Comfort was no more his act, in the  sense of the law, than
if he had been impelled by irresistible physical power; nor
is there any greater reason  for exempting the company from
the  risk  assumed in the policy, than if his death  had been
occasioned by  such means.   Construing these words, there-
fore, according to their true, and as I  apprehend, universally 
696
INSURANCE UPON  LIVES.
received meaning among insurance offices, there can be no
doubt that the termination of Comfort's life was not  within
the  saving clause  of the  policy.   Suicide involves  the
deliberate termination of one's existence, while in the  pos-
session and enjoyment of his mental faculties.   Self-slaugh-
ter by  an insane man or a  lunatic, is not an act of suicide
within the meaning of the law.  I am of opinion, therefore,
that the plaintiffs are entitled to judgment on the demurrer."
Ordered accordingly.*
  Having collected, I believe,  most of the English cases on
this subject,! I will conclude with the narrative of one that
occurred 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 March, 1809, a large sum in the funds,
for the purchase  of an annuity on his own life.  He was, at
the time of the bargain, and  had been for ten years, afflicted
with  hemiplegia, in consequence of an apoplectic seizure,
and he died on the second day after signing the  contract, of
an  attack  of  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 afterwards ?
or in other words, whether the ten years' hemiplegia and
the apoplexy  did not constitute one and the same disease?
  The following is an abstract of  the testimony  presented.
A hair-dresser deposed that he had dressed M. Fried  for

  *  Hill's New-York Supreme Court Reports, vol. 4, p. 73.
  t  Two other cases  of some interest, connected with this subject, will be
more appropriately noticed in subsequent chapters—one relating to the point,
whether a drowning was accidental  or suicidal; and the other, whether apo-
plexy or taking opium had been the cause of death. 
INSURANCE  UPON LIVES.
697
upwards of two years; who, during that time, had been re-
peatedly seized with apoplectic  attacks:  that Fried had,
for  a  long time been paralytic of the right  side, and  was
obliged to write with his left hand.   The day after the new
year, the deceased suffered a severe attack of apoplexy, and
this recurred  several times till  his death.  His strength
gradually failed, so that he was unable to go out and pay his
usual  visits.
  Dr. Schweighauser stated that he had long known Fried,
and that the  paralysis  arose  from an attack of  apoplexy.
He  did not, however, attend him professionally until March,
1808, when he was called in consequence  of an  apoplectic
stroke.  He treated him during ten or fifteen days, and left
him as well as he was before his illness.  In January, 1809,
he  was again called on the  same  account.  This yielded
readily, and he attributed both  to slight  indigestion.   In
March, however, he found, on being summoned, that the
attack was more serious ;  stertorous breathing was present,
and death soon followed.  On  inquiry, he ascertained the
immediate  cause of his 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 unim-
paired.
  The case was, by order of the court, submitted  to the
examination of the Professor of the Faculty of Medicine at
Strasburg and Montpelier, and also to sundry professors and
physicians at Paris.  As is usual, they differed.
                    45 
698
INSURANCE  UPON LIVES.
  The Strasburg physicians were of opinion, that Fried was
affected with the disease of  which he died on  the  day of
signature.  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 hemi-
plegia, affected senses, weakness of mind,  &c.   All, how-
ever, 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 symp-
toms characterizing it have disappeared ; and the professors
apply it to the  present case, by observing that hemiplegia is
one of the principal elements of apoplexy.
  The Professors at Montpelier, in their consultation, totally
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 tempo-
rary 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
apoplexy.
  In this case,  it is  granted that there was a predisposition
to apoplexy, induced by the paralysis, but predisposition to
a disease does  not  carry with it the  idea of its  actual pre-
sence ; many causes may annihilate the predisposition; and
even, if present, a foreign cause, as in this instance, may be
necessary to excite  the complaint.
  Marc, Chaussier,  Desgenettes and  Renaulden  constituted
the Parisian board   of reference.   They agree  in opinioji
with those of Montpelier.
  They observe that palsy consists in a lesion  of the nerves
of motion and  sensation ; apoplexy in a suspension or abo-
lition  of sense.  Hence  different organs  are necessarily 
INSURANCE UPON LIVES.
699
affected in each.   There is no such disease as chronic apo-
plexy, since death must  follow  a prolonged attack, but
paralysis may occur in three ways—independent of apoplexy,
as from  compression, section  of  nerves, &c.—as an avant-
courier of apoplexy,  and  lastly and most  commonly, as a
consequence of it.
  Was it the latter in this case, and if  so, the consequence
of a disease the disease itself?  The remark, that the symp-
toms  must be  removed before the complaint can be con-
sidered as cured, does not  apply here. He had no symptoms
of apoplexy,  and the  different attacks of it, so far from
proving  a continuity of the same disease, directly indicate
the contrary.  Every seizure is  an independent affection,
arising from a particular organic derangement, and this de-
rangement must occur, in order to produce a second.  How
then can paralysis be called chronic apoplexy ?
   The mind of the deceased, from the  most intelligent tes-
timony,  appears  to have been sound.  Even  those, who
question  it, rather speak of loss of memory, than  of the
more essential functions being impaired.
   The professors conclude by giving their opinion—1. That
Fried was of sound  mind when he  made the contract; 2,
that he was predisposed to apoplexy at the above period ; and
3, that the fatal disease did  not exist at the indicated time,
but was excited  by an occasional cause, operating  on the
predisposition.
   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 re-
mark of the former is—that the effects of a disease require
 curative treatment, while the predisposition only calls for
preventive.   Hence, in applying this to the present subject,
 he considers paralysis as an epiphcenomenon (a super-added
symptom) of apoplexy.  The latter is  barely cured, and its
effects remain.*
  * All the papers, opinions and discussions relative to this case, were col-
lected and published by Dr.  Ristelhuebcr, in an octavo volume,  in 1821,
entitled " Rapports et Consultations de Medecine Legale."
I 
700              INSURANCE UPON  LIVES.

  In an examination  made some years since of this case, I
felt strongly inclined in favor  of the opinion of  the Stras-
burg  physicians.*    The subsequent publication of Marc
suggests, however, some additional points which have con-
siderable weight.!  One of the strongest arguments adduced
by him is, that the opposite construction would  render an
individual like Fried, totally incapable of making a contract
during the last  ten years of his life.  The article (says he)
was framed to prevent  an advantage being taken of a  per-
son  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 enactment to a case where there  is
an intermission of disease, wTith supervening  attacks.
   It had  been endeavored in the course of the controversy,
to assimilate this case to one of hemoptysis,  the first attack
occurring, for example, on the day  of signing.   This  is
removed, and the patient has no return of it, but apparently
is well.  On the nineteenth day, however, he has another,
 and dies.  Does this invalidate the  contract?  Orfila  said
 not.J   Marc, however, is  willing to qualify this.   If the
 hsemorrhage 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 tubercu-
 lous state of the lungs, and thus  prove to be the symptoms
 of an  essential affection, the contract is void.  If it be replied
 that the analogy  is close between this and Fried's case,
 since both paralysis  and apoplexy arise from lesions of the
 brain, the objection is met by  denying that the same patho-
 logical  state occurs  in each, and  also by the fact, that the
 attacks  of apoplexy had  preceded the  time of  signing  of
 contract.  The article in question requires  that the  indivi-
 dual  should labor under the particular disease at this  very
 period.

   *  New York Medical and Physical Journal, vol. 5, p. 40.
   t  Commentaire Medico-legal sur l'Article  1975 du  Code Civil, par  M.
  Marc, in Annales D'llygiene, (1830) vol. 3, p.  161.
   X Lecons, vol. 1, p. 457. 
INSURANCE UPON LIVES.
701
  It is  evident,  however, that Professor Marc has some
scruples.   He suggests the necessity of dissection in these
instances, and intimates  that an  alteration of the article
might perhaps be proper, so as to enact that a contract shall
be  void, if signed by  a person laboring under a disease
actually the same {qui a et'e 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
expressing a wish that  the custom of obtaining life insu-
rances  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  demonstrated  their  value   in  other countries.
When  offices of this nature  shall be generally established^
physicians and surgeons will be called upon to act in  their
appropriate stations.  Let them recollect that their opinions
are in all cases reviewed by intelligent and acute  bodies of
men, and that their  medical reputation may be exalted or
diminished, according as they perform their duty.  Above
all, their acts may, as in several of the above cases, be sub-
mitted  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. 123. 
 
CHAPTER  XIII.
                       MENTAL  ALIENATION.


1.  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—disordered appetite—state of the stomach and bowels—condi-
  tion 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.  Monomania—its nature—
  gayety of some; melancholy in others—danger of suicide or violence from
  the insane of this class.   The age most liable to melancholy monomania—
  its symptoms—peculiar cast of countenance—state of the eye—bodily symp-
  toms—concentration of  thoughts  on one  idea—general sanity on subjects
  not connected with the morbid impression—unwillingness to admit any evi-
  dence unfavorable to the delusion—length of time that it may remain.  Age
  most liable.  Incoherent madness of Dr. Prichard—its characters. Demen-
  tia—generally a consequence  of mania and monomania—its characters—
  may be idiopathic.   Hoffbauer's modifications of it into imbecility and stu-
  pidity.   Idiotism.   Its frequency in some countries.  Cretins.   Character-
  istics of idiotism—form  of the head and face—affection 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 luna-
  tics in civil cases.   Introduction  of the term unsoundness of mind—the
  meaning of it according to Lord Eldon and others—used in our own sta-
  tutes—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.  Responsibility of the insane in  criminal cases—ability to  judge
  between  right and  wrong—what this means, and  how it should be con-
  sidered.   Cases showing the construction 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 favor of this. Cases—Dean—
  Howison—Papavoine.   Moral  insanity.   Cases illustrating  its  nature.
  Characters distinguishing it from crime—danger of extending it too far.
  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 respon-
  sibility—characters of this disease—its temporary nature—cases. Old age.
  5.  Of the state of  mind necessary to constitute  a valid will—legal requi-
  sites—nuncupative wills—wills disposing of personal property—testaments. 
704
MENTAL ALIENATION.
  Persons who can not make valid wills.  Diseases which incapacitate. Law
  cases in which various states of mind have been urged against the validity
  of wills.  6. Of the deaf and dumb—their capacity, and the morality of
  their actions—are to be judged of according to their understanding.  A
  person born deaf, dumb, and blind, is deemed an idiot; if he become so, a
  non compos.  A deaf and dumb person may be a witness—may obtain pos-
  session of real estate—may be tried for crimes.  Cases of each.

  I have chosen the term  mental alienation, at  this time,
simply because  it  is more comprehensive than  others  in
common  use.   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,
which occasionally require the investigation of  the medical
jurists.
  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 pre-
pared, to  extend the research over that broad field which is
usually occupied by the medical pathologist.. And we shall
find that the symptoms are the important subject of inquiry,
since a decision is usually founded on the estimate formed
of them.
  I shall accordingly arrange my remarks in the following
order:
  1.  The symptoms that constitute a state of insanity.
  2.  Of feigned and concealed insanity.
  3.  Of the legal definition of a state of mental alienation,
and the adjudications under it.
  4.  Of inferior degrees of diseased mind.
  5.  Of the  state  of mind necessary to constitute  a  valid
will.
  6.  Of the deaf and dumb—their capacity, and the morality
of their actions.

    1.  The symptoms that constitute a state of insanity.
  Insanity, in its ordinary acceptation, is usually divided into
mania, melancholia, and idiocy; but I prefer the classification 
MENTAL ALIENATION.
705
proposed by M. Esquirol, as better calculated to illustrate
the varied appearances of the disease.  The following is the
order pursued by him.  1. Mania, in which the hallucination
extends  to all  kinds of  objects, and is  accompanied  with
some excitement.   2. Monomania, in which the hallucina-
tion is confined  to  a single object, or to a small number of
objects.   3. Dementia, wherein the person is rendered  inca-
pable of reasoning, in consequence of functional disorder of
the brain,  not  congenital.  4.  Idiotism, congenital,  from
original malconformation 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 fre-
quently characterized by the name of moral  insanity.
  Mania.  In many instances,  though it is  far  from being
general,  pain  in the  head  and throbbing of  its  arteries
precede  an attack of insanity; and sometimes giddiness  is
complained of, as a 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 appear-
ance, 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

  * 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 Medicales.
  The above division, although modified and improved by Esquirol, was ori-
ginally presented by Pincl. The term monomania was, however,  introduced
by the former.
  t  Haslam on Madness, p. 41.
  X Hill, p. 68. " It is  curious (says  Dr. Burrows,) that in many persons
predisposed to insanity, the iris is so black that it can scarcely be distin-
guished from the pupil.   The melancholic have generally blueor gray eyes."
(Commentaries, p. 283.) 
706                MENTAL ALIENATION.

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
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 them-
selves  sick,  or  have a presentiment  of  severe disease.
Persons subject to habitual indisposition, which has disap-
peared suddenly, fancy themselves  in high  health, and are
greatly elated.!  A  very vigorous action of body and mind
soon takes  place, and particularly the exertion of great
muscular strength.   And here, it is impossible to present
any thing like a description that  shall be generally applica-
ble.  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 manner,
then suddenly lowering their tone, speak softly and whisper.
The  subjects vary equally.  They  are never confined long
to  one point, but voluble and incoherent, run rapidly  from
one thing  to  another,  totally disconnected with it.   The
same  phrase is sometimes repeated  for a length of time,  or
  * " I have observed (contrary to my expectations) that there was not that
energy, that knitting of the brows, that  indignant brooding and thoughtful-
ness in the face of madmen, which is generally imagined to characterize their
expressions, and which we also 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.)
  t 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. 
MENTAL ALIENATION.
707
conversation is maintained with themselves, as with a third
person, with  all the  variations of violent, and  ridiculous
gestures.   In females, there is frequently a complication, as
it  were of hysteria, with general madness, and laughing or
weeping is a common attendant.*
   The food necessary for the sustenance of life is often ne-
glected, 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.
   The stomach and bowels are usually torpid—costiveness
prevails, and  the stools are white, small, and hard.  Diar-
rhoea rarely occurs except towards the termination of the
disease.  The urine is scanty in quantity, and for the most
part, of a high color.
   The  pulse  is very various, sometimes full  and laboring,
and sometimes natural; and I apprehend that  but little
dependence can be placed  on it as an indication.  Its con-
dition  is,  however, worthy  of  notice.   Of 89 females,
examined  at  La Salpetriere, by  Leuret and  Mitivie, the
pulse was above 100, in only 7; in 10, it ranged from 90 to
99; in 38, from 80 to 89, in 29, from 70 to 79; in 4 from 60
to 69, and in 1, it was under  60.   This was in summer.   In
winter, the results were generally  similar.  And in each
case, according to these observers, the frequency  of the
pulse decreases gradually in  mania, monomania, and demen-
tia; the mean pulsation in the latter being between  70 and
80.!  The tongue is usually moist, and  sometimes has  a
whitish appearance, and there is  often a  preternatural  se-
cretion 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

   * 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 observed this.                                  .
   t De la Frequence du Pouls chez les Aliens, &c, par F. Leuret, Medecin
de l'Hospital de la Reserve, et F. Mitivie, Medecin de l'Hospice de la Salpe-
triere, &c.  8vo. Paris, 1832. 
708                 MENTAL ALIENATION.

stoppage of the secretion of  mucus in the  nose.  Dr. Rush
mentions, that  Dr. Moore,  at  his request, examined the
maniacs in the Pennsylvania Hospital, with reference to this
symptom, and  found  it present  in  two-thirds  of  them.
Where this secretion was not suspended, he found the mucus
of the nose dry and hard.*
   Sir William Ellis states, as the result of his  observations,
that in very many cases, an increased  heat of the head be-
yond the  natural temperature,  is an early symptom.  It is
much hotter even than those  parts which  are  covered with
clothes.   In ordinary cases, the heat extends over the entire
surface of the cranium, though in  many instances, portions
of it only are of a higher temperature.   This condition is
far from being universally connected with a quickened state
of the pulse.!
   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 Has-
lam and Esquirol.  During a paroxysm, indeed, they are in-
sensible  to  either, and particularly to cold, but they suffer
like the sane.   Mortification of the feet is a common occur-
rence,  and  some  indeed  die from the  effects  of a  low
temperature, during the winter,  if not properly secured.  It
is suggested by Esquirol, that the  great internal heat which
some experience, may explain their voluntary  exposure.|
   The senses  are often perverted, constituting what  we
commonly call Illusions.§  The ear more particularly suffers.
  * Rush, p. 146.
  t Ellis' Treatise on Insanity, p. 130, 133.
  X Haslam on Madness,  p. 84.  Dictionnaire des Sciences Medicales, vol.
30, art. Mania.  The temperature of maniacs, according to Dr. Knight, (p.
123,) is always below the natural standard; yet,  during a paroxysm, he
agrees that they are insensible to the effects of cold.
   § An attempt has of late been made to distinguish this term from that of
hallucination.  Dr. Morrison defines them as follows:  " Illusions are  de-
pendant on  the state of the organs  of sense; hallucinations on that  of the
intellectual organs," (p. 35.)  Esquirol who has written on both, makes a
somewhat similar distinction illustrating the latter, (in  which  the brain
only is excited,) when it relates simply to the remembrance of the sensations
of sight, by what is commonly called a vision, or the appearance of appari-
tions, while the former originates from the senses.  When, however, he pro-
ceeds to characterize  illusions particularly, he refers them to two causes,
and one a disordered state of the brain, and acknowledges that the under-
standing and the passions concur in  producing them.  See his Essay trans- 
MENTAL ALIENATION.
709
Haslam observes, that he  scarcely recollects of  a lunatic
becoming blind, but  numbers  are deaf; and those who are
not deaf, are troubled with difficulty of hearing  and ringing
in the ears.  It is from the disorder of this organ, and which
is referable to the original  diseased action of the  functions
of the  brain, that many maniacs derive the delusion  under
which  they  labor.   The commission  which they suppose
themselves to receive from some superior being, is given by
the  ear—they  imagine  it  constantly  repeated.   They are
thus, they  imagine,  urged  to its performance, and  in too
many cases, murder or self-destruction is the unhappy result.
" In  consequence of  some affection of the  ear, the insane
sometimes  insist that malicious agents  contrive to  blow
streams of  infected air  into  this organ.   Others  have con-
ceived, by  means of  what  they  term hearkening  wires and
whizz  pipes, that  various obscenities and  blasphemies  are
forced into their minds;  and it is not unusual for  those who
are in  a desponding condition, to assert that they distinctly
hear the devil tempting them to  self-destruction."*
   The eye is also diseased.  Indeed,  as  Esquirol remarks,
it is as much  so as  any other  sense, since it  is the prin-
 cipal organ of  communication  with  external  objects.   It
 is  a common  circumstance  to mistake various substances
lated by Liddel.  Leuret has lately offered the following definitions :  Hallu-
cination, he proposes to limit to those aberrations which are always connect-
ed or attended with some physical or corporeal uneasiness, pains or  other
distressing feeling  in a part.  On the other hand, delirious ideas or concep-
tions are those visionary and insane creations of  the mind, which spring up
quite independently of any corporeal sensations, as when a man fancies him-
self to be the son  of Napoleon, &c.  The treatment, he adds, requires to be
physical as well as mental  in the former case, whereas the moral is needed
for the latter.  (Medico-Chirurg. Review, vol. 32, p. 531, from Gazette Mi-
dicale.)
  *  Haslam on Madness, p. 69.  A curious case is mentioned by our author,
(p. 71,) of a patient, who was a well educated man of middle age.  He always
stopped his ears closely with wool, and  in addition to a flannel night-cap,
usually slept with  his head in a tin sauce-pan. Being asked the reason why
he so fortified his head, he replied, " to prevent the intrusion of the sprites."
He was apprehensive that his head would become the receptacle of these
imaginary formations; that they would penetrate  into the interior of  his
brain, become acquainted with his hidden thoughts and intellectual observa-
tions and then depart  and communicate to others the  ideas they had thus
derived.  " In this manner," said he, " I have been defrauded of discoveries
that would have entitled me to opulence and distinction, and have lived to
see others reap honors and emoluments for speculations which were the off-
spring of my own brain." 
710                 MENTAL ALIENATION.
or persons.   Their  appearance to  the maniac is  various—
sometimes  fiery  and  bright, and in  these  instances,  the
eye  itself is  sparkling and  protruded.  To  the  changes
thus produced in this  organ, may be  ascribed the  passion
that some have for collecting sparkling objects, as 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
impression.
  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 odor of charcoal.  She immediately
conceived that there was a design against  her life.   She left
her lodgings, but the fumes of charcoal incessantly  pursued
her till her death.
  This depraved state often leads to an abhorrence  of food,
and a  danger of starvation.
  The derangement of the taste, however, is the principal
agent  in this, originating most commonly  in an unsettled
state of the  stomach, and accompanied with a furred tongue
and a  parched mouth.!

  * Esquirol.   Many of the  insane cannot read, as the letters seem to inter-
mingle  with each other, so  as to prevent them from forming syllables or
words.   (Ibid. vol. 1, p. 6.)
  t Sometimes the taste preserves its power, as in the following case, relat-
ed by Sir Walter Scott, who, with Shakspeare, may be considered as the two
master  spirits in describing the various phases of insanity.  I will only refer
to Hamlet and Lear, to Madge Wildfire and Clara Mowbray. " A late medi-
cal gentleman, my particular friend, told me the following case of a lunatic
patient confined in the Edinburgh Infirmary. He was so far happy that his
mental alienation was of a gay and pleasant character, giving a kind of joy-
ous 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 assist-
ants, 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 deceived as his other senses."  (Note to the 
MENTAL ALIENATION.
711
  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  condi-
tions be wanting, the sense  is so  far perverted, that the
insane frequently deceive themselves in respect to the size,
form, and weight of  things around them,  and the greater
number  become unhandy  in  all  mechanical occupations,
music, writing, &c*  This, however, is far from being uni-
versal, as some speak and write with ease, and are remarkable
for  striking  expressions,  deep thoughts,  and  ingenious
associations.
   Wakefulness  is another  symptom, which  sometimes
precedes all others, and  is coeval with pain or uneasiness
of the head, or of some other diseased organ; and its degree
is determined 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 suspicion, 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-arranging articles of  furniture, dress,
 books or papers ;  and by thus placing, displacing and con-
 founding every thing, their ideas become more confused, and
 they  soon give rise to actions of the wild  and outrageous
 nature which we have already described.
   The  memory is early  affected in maniacs.  After a time,
 it seems to be almost destroyed.   Some, according  to Has-
 lam, lose, in  a wonderful degree, their former correctness of
 orthography.!

 Pirate.)  Dr. Young relates the same story in an early volume of the Quar-
 terly Review, vol. 2, p. 152.
   *  Medico-Chirurgical Review, vol.  1, p. 246.
   t  " The hand writing of P.  is neat, and the lines follow each other in pro-
 per distances, but he leaves no margin on the sides or bottom of the page. The
 paper is completely filled with the writing.  This peculiarity is not unim-
 portant, since we constantly notice it in letters written by the insane."  (Re-
 port of Ollivier D'Angers and Bayard on a Monomaniac. Annales D'Hygiene,
 vol. 19, p. 490.) . 
712
MENTAL ALIENATION.
  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 desirous of some  change.  It is this discontent of
mind that detaches  them from their parents and friends, and
causes them to hate  most,  those whom  they previously
cherished with  the  fondest  affection.  The exceptions to
this  are  few,  and  even if  they retain the semblance of
affection,  still they  will bestow no confidence on the objects
of it,  nor pay any  respect to their solicitations or advice.
This  alienation from friends  is  therefore  one of the most
constant  and pathognomonic traits  of  the  malady.  And
frequently the first 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
recovery.  Dr. Rush  states,  that in  one case which came
under his notice, the disease continued from June, 1810, until
April, 1811, with scarcely  any abatement in the excitement
of the body and mind, notwithstanding the patient was con-
stantly under the operation of depleting remedies.  He also
witnessed another  instance,  in which the same  remedies
were insufficient to  produce an interruption for five minutes,
of speech or vociferation,  except during a few  short inter-
vals of sleep, for five months.! Others again have paroxysms
with chronic but moderate derangement in their intervals ;
and in these intervals, the recovery is sometimes so great
as to  indicate insanity on  a particular subject only.  But a
reference  to this will readily excite a return of general
madness.
  If the paroxysm ceases suddenly, we have reason to dread
the return of another.   On its cessation, the patient seems
waked from a dream, he is exhausted, speaks or moves but
  * Medico-Chirurgical Review, vol. 1, p. 247.  Knight, p. 14.
  t Rush, p. 162. 
MENTAL ALIENATION.
713
little, and  seeks solitude ; and if there is an  approach to
reason, he  states what he has  seen, heard or felt—his mo-
tives 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 ardor
and devotion.  They often appear reasonable, when convers-
ing  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
depends on the  predominant  species  of delusion  that  is
present.  It is hence divided into several varieties.   Some
are gay and highly excited—laugh, talk and sing—fancy
themselves deities, kings, learned and noble.   Cases  of this
nature must be familiar to every reader.  Fodere mentions
one  which  is strikingly illustrative.  A merchant at Mar-
seilles, aged seventy, and always a decided royalist, had de-
voted himself to heraldic researches.  He was  so overjoyed
at the  return of the  Bourbons to  France,  that he became
insane.  His predominant mania, was  to recite with  a loud
voice,  the history of the kings  of France, and to fatigue his
auditors with  a tedious catalogue, of chronological facts.  If
they listened with patience, he  was contented and calm, but
if any  impatience was manifested, his fury became ungovern-
able.!
  Some patients, when suffering under this form, are excess-
ively irascible,  and even without any apparent  cause, are
suddenly hurried into a violent  passion or fury.  It is while
laboring under this, that they  become dangerous to  them-
selves  or to those around them.  They will seize any  weap-
on, and strike and injure others or themselves.   Sometimes
consciousness of their situation is so far present, as to allow

  • Parkman.  " The convalescence from insanity, differs from convalescence
from common disorders, in being sometimes suddenly and unexpectedly com-
menced ; 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.)
  t Fodere, Traite du Delire, vol. 1, p. 385.
                    46 
714
MENTAL ALIENATION.
them to warn individuals of their danger, or to entreat them
to prevent 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
favorably.|
  Melancholy, which  is  another form of monomania,  is  a
disease of mature age, and rarely affects young and athletic
persons.  It  is  also generally characterized  by a peculiar
appearance, and particularly by black hair  and eyes—by a
striking  cast of countenance,  as  the  complexion is  either
yellow, brown, or blackish.   This is  to be  ascribed to a
sluggishness  and torpor of the  cutaneous system,  and in
consequence, the impressions 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
peculiarly dull, muddy look, rolling heavily on surrounding
objects, if  it can be roused to move at all.   But ordinarily
it is fixed with an unmeaning stare on vacancy.   The adnata
is commonly painted with a dull purplish red, sometimes on
a deep orange-colored ground,  and this  especially when
advancing age  and hepatic affections exist, or intemperance
has long preceded the attack.   Holding a  strong light near
the eyes, produces a very transient effect.§

  *  Others again refer the pain to the presence of some animal in the brain,
the stomach,  or some other organ, and not unfrequently  it has its origin in
real disease.  An insane woman, who said she had an animal in her stomach,
died at Salpetriere. Esquirol opened her, and found a cancer of that viscus.
(Page 10.)
  t  Parkman.
  X Esquirol considers monomania more common than mania.  (Vol. 1, p. 23.)
  §  Hill, p. 98. 
MENTAL ALIENATION,
715
  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,
accompanied by indifference as to his personal comfort, or
urging him forcibly to  self-destruction, or to the murder of
others.  The state  of revery and delusive ideas gradually
becomes more fixed,  and the thoughts are concentrated  on
one mournful topic, until finally he is, as it were, inanimate,
motionless and speechless.  A fixed position of the body is
a very common  attendant.  In  one  instance, that occurred
to Dr. Rush, the patient sat with his body bent forward  for
three  years  without moving, except  when  compelled  by
force,  or the calls of nature.   In an'other, the sufferer occu-
pied  a spot  in a ward, an entry, or in the  hospital yard,
where he  appeared more  like  a statue than a man.  Such
was the torpor of his nervous system, that a  degree of cold
so  intense as  to produce  inflammation and  gangrene upon
his face and  limbs, did not move him from the stand he had
taken in the open  air.*
   The pulse is extremely  vacillating, and generally is slow
and feeble, yet with all  this, has a laboring 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 and giving  from  one
hundred 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.J With these, transient
purple-colored flushings of the face are sometimes an attend-
ant.   The tongue  is usually of a brownish yellow color,
furred, and has intensely  purple red edges.   Constipation
is a very  common symptom,  accompanied with flatus  and
eructation; and diarrhoea is uncommon, excepting the disease

  * Rush, p. 216.   Dr. Reid  (Essays on nervous affections,) in his usual
figurative language says, " Paroxysms of mania are convulsions of the mind;
those of melancholia its paralysis."              t Hill, p. 101.
  X Some lunatics complain of a burning or stinging in the skin, when on ex-
 amination it appears healthy.  (Knight, p. 116.) 
716
MENTAL ALIENATION.
is about to undergo a salutary change.   The  urine is  pale,
thin and cloudless,  unless it be morbidly retained, which
some do for several  days.  The thirst is usually great, and
a peculiar odor 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
particular hallucination,  and it  is very common that this
absorbs the  whole attention.
  In these  instances, even  when apparently sane, if the
morbid  impression be once referred  to  or  excited, all is
merged  in it.  And it is equally astonishing and melancholy,
how vivid this remains, through the long lapse of years.  A
young clergyman, two days previous to the appointed period
of his marriage, was employed in snipe-shooting  with a
friend.  Accidently he received part of the charge of a gun
in his forehead.  He instantly fell, and  did not recover for
some days,  so as to be  deemed out of danger; but at the
end  of  this  period it was perceived that he  was  deranged.
The interesting event that was to have taken place, became
the leading  object of thought, and  all his ideas seemed to
stop at  this.   " All his conversation was literally confined
to the business of the wedding; out of this circle he never
deviated, but dwelt upon every thing relating  to it with mi-
nuteness ; never retreating or advancing one step farther for
half a century, being ideally still a young, active, expecting
and  happy  bridegroom, chiding  the  tardiness of  time,
although it  brought him at the age  of eighty  gently to the
grave."*
  There are very few melancholies  whose delirium is not
exasperated every two days; many have a strongly marked
remission in the evening and after meals; others are exas-
                       • Hill, p. 421. 
MENTAL ALIENATION.
717
perated 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
position 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  mono-
mania.
   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  opinion.   Infancy seems  to  be  nearly
exempted from its attacks, unless there be some congenital
malconformation,  or unless idiotism be  induced by convul-
sions, epilepsy, or some other previous  and  severe disease.
The  disease, however, often  occurs to very young  persons,
and it is about the age of puberty,  that its causes  begin to
operate most powerfully  on youth.  It  is  at this  period
characterized by its rapid progress and height of 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 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 recollec-
 tions for real existences.    " The  power of reasoning  or
 judgment," (says Dr.  Prichard,)  "  does not appear to be so
 much impaired in madness, as  the disposition to exercise it
 on certain subjects.  Often there is a manifest unwillingness
 to admit any evidence unfavorable to  the false notions im-
 pressed upon the mind.  In many instances, it would appear
 that the characteristic feature of the  disease, is  a morbid
 inclination to indulge  in revery, and to yield the  judgment
 and all the  faculties  to its  control.  The  impressions of
 revery are so modified by disease as no longer to  be distin-
 guishable from those of memory or active reflection."

    * Parkman, Haslam on Madness, p. 80.
    t Medico-Chirurgical Review, vol. l,p. ZOl. 
718                MENTAL ALIENATION.
    Some monomaniacs  indeed reason  accurately, but their
 premises  or facts  are baseless,  as when a wealthy man
 imagines  himself in danger of dying in a  workhouse, and
 lives and acts  as a miser.   Others again, act  on accurate
 premises, but  take  too " rapid a view" of them, as in the
 case  of the clergyman  quoted  by  Dr. Abercrombie, who
 burnt his library, because it consisted altogether of contro-
 versial divinity.*
    Dementia.   This  is  often the  consequence  of mania or
 melancholy, 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 mistaken for reasoning."!   They hate, love,
 or fear particular individuals  uniformly, and kindness  or
 attention will seldom, if ever, give them confidence in those
 they dislike.
   Patients of this  description are usually calm and quiet,
 though occasionally short periods of  fury supervene.   They
 sleep  much, enjoy a good appetite, and are apt, if neglected,
 to become slovenly and dirty in their  appearance.  Esquirol

   * I am unwilling to multiply the divisions of insanity, but there is one
 variety, particularly noticed  by JDr. Pritchard, which may be deemed the
 intermediate one between mania and dementia, as described in the text, and
 therefore deserves a brief notice.  He styles it incoherent madness, and its
 most striking characteristic, according to our author, is the rapidity and dis-
 order 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 of ideas
 that crowd upon him,  while  his habits show  equally restless activity and
 extravagance.
  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 sen-
tences are half pronounced. It is impossible to fix the attention of the pa-
tient, and he is almost insensible to external objects. In favorable 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. 
MENTAL ALIENATION.                719
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 cohe-
rence ; no memory of recent transactions ; no hopes or fears,
desires or aversions.  She is calm, peaceable; sleeps well,
eats with voracity,  and  appears perfectly happy."*
   The ideas,  although  few and isolated, sometimes  pass in
rapid or alternate  succession ; and  this gives  rise to inces-
sant babbling, unwearied declamation, and continual activity,
without object  or design.   Occasionally they assume a me-
nacing 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.J
   Idiotism. Individuals laboring under congenital  idiotism,
are marked by some striking characters.  At its  commence-
ment it is indicated both by feebleness of body and feebleness
  * Medico-Chirurgical Review, vol. 1, p. 270.
  t Fodere, Traite du Delire, vol. 1, p. 413   "The  only crime of which
they are commonly guilty is theft."
 . | 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 idiopa-
thic dementia and idiotism are the most striking examples. Thus, Hoff bauer,
a legal writer of celebrity in his own country (Germany), makes two modifi-
cations of this state, imbecility and stupidity; the one  defective in the pow-
ers of reason and discrimination, the other obtuse in perception and appre-
hension.  He again subdivides imbecility into five degrees,  the last being
identical, as far  as I can judge, with idiocy; and stupidity into three degrees.
It is doubtful whether the practical  benefit to be derived from this minute-
ness, will ever compensate for the endless discussions that might arise on its
introduction into our laws, and this is the object  of Hoff bauer.  I refer to
his work, and to Dr. Prichard, Art. Soundness and Unsoundness of Mind,
in the Cyclopedia of Practical Medicine, vol. 4, p. 39.
  1840.  I am happy to find that I do not stand alone in my estimate of Hoff-
bauer.  " The divisions in a practical view appear to us useless and absurd."
(British and Foreign Med. Review, vol. 10, p. 155.)   Marc also condemns
them. 
720
MENTAL ALIENATION.
of mind.  In some countries this melancholy disease is not
uncommon,  and it has been particularly remarked in the
Valais in Switzerland, and in Carinthia.   In  the former
country, the subjects of it are styled Cretins.   But wherever
found, whether in individual instances,  or  originating in
some national  cause, the appearance may generally be des-
cribed as follows:
  The skull is usually smaller and inferior in height to the
skull of maniacs, and there is a great disproportion  between
the face and head, the'former  being much larger than the
latter.  The countenance is vacant and destitute of meaning,
the complexion sickly, the  stature usually  diminutive, the
lips  and eyelids coarse and  prominent, the  skin wrinkled
and pendulous, and the muscles loose and flabby.   To these,
are usually  added  a  complication of other  diseases.  The
subjects are ricketty, scrofulous or epileptic; the eyes are
squinting  or convulsive, and the hearing is imperfect  or
totally destroyed.  Dr. Reeve visited  the Valais, and saw
several of these unhappy beings.  One  lad twelve years old,
could speak a few words, but was silly, and of a weak and
feeble habit.   Another boy, nine  years old, was  deaf, dumb
and idiotic.   Neither  of these,  however, had goitres.   A
third, a girl, twelve years  old, was deaf, dumb, and cross-
eyed, and had  a monstrous goitre; while a  fourth had  an
enlarged abdomen, and some feeble traces of understanding.*
  While  some  are  dumb,  others  express   themselves  in
inarticulate  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 vora-
ciously, and without discrimination; passed all evacuations
involuntarily, but  the  menses were regular  and abundant.
She walked  little, and all her movements were  convulsive.
  * Edinburgh Medical and Surgical Journal, vol. 5, p. 32. See, also, Edin-
burgh Review, vol.  2, p. 170.  American edition. 
MENTAL ALIENATION.
721
She  was  a perfectly helpless infant—insensible  to heat,
cold, rain, or even  her own internal feelings.  She could
only utter the  words  " papa and mamma,"  which she  fre-
quently repeated.*
  Dr. Rush relates the case of a boy born near Philadelphia,
which is  no  less striking.  He was twenty years old when
that distinguished physician published his  work, and  was
then unable to  walk or speak.   He had  then the head  of a
man, but  all the parts below it resembled those of a child
two or three years  old.  His pulse was from ninety to one
hundred  and twenty in a minute.   He had  shed his feeth,
and  now  exhibited a third set in three distinct  rows in his
upper jaw; and yet with all this, he was unable  to chew his
food, and all that he took of a solid nature was first chewed
for him by  his sister.  His  ears were very large.  When
hungry or in pain he cried, but more commonly  laughed for
hours, and even for whole  nights together, and so loud as to
disturb the  sleep of his family.   He discovers mind,  says
Dr.  Rush, in but three things, viz. in an  affection for his
mother and sister, and in love for a dog, and  for money.
Distress  is  manifest  when the dog is out of his place; and
the  pleasure which  money  gives him,  is owing to  the
association  which  he has been  enabled  to form between
it and the means of procuring gingerbread, of  which he is
fond.!
   I must not,  however, be  understood  as  stating  that all
who belong to the class of idiots are distinguished by equally
striking  marks.  There is  a  variety  in this,  as  in  other
diseases.  Some approach to the description of dementia, or
what is commonly called imbecility; others appear capable
of cultivating  the  memory  and attention.  Though  in

   * 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 individual was a female, about three feet and a half in height. The con-
stantly 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.) 
722
MENTAL ALIENATION.
general  harmless and timid, yet  there are  occasionally
exceptions.*
  There are also some whom Orfila  has well designated
under  the  names of demi-imbecilles.  They are the fools of
a community,  often harmless and  indeed capable of some
merely mechanical occupation.  Some however are mischiev-
ous and occasionally extremely vicious—constantly thieving,
or attempting even worse crimes.
  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 in-
sanity to be either  a morbid condition  of  any intellectual
faculty,  without  the  person being  aware  of  this ; or the
existence of some  of the natural propensities in such violence,
that it is impossible not to yield to them.   Dr. Elliotson, while
approving of this, suggests  that there  should be included in
the definition, the idea of such  irresistible violence  as leads
to criminal acts.%  Pinel was so struck with the peculiarity
of this form, that  he introduced it as a distinct  species in
his  work, under  the title of " madness without delirium or
hallucination."
   Esquirol, indeed, goes so far as to assert, that  this is the
proper characteristic of mental derangement.   "  There are
madmen, (he observes,) in  whom it is  difficult to discover
any trace of hallucination;  but there are none in  whom the
passions and moral affections are not disordered, perverted or
destroyed.   I have in this particular met with no exception."
  * 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 Fonblanqe, vol. 1, p. 311.)
  t Prichard, art. Insanity, in Cyclopaedia of Practical Medicine.
  X London Medical Gazette, vol. 8, p. 168.* 
MENTAL ALIENATION.
723
  Concurring in these opinions from actual observation, Dr.
Prichard, in a late essay on this subject, has'proposed the
following definition.
    Moral insanity or madness consists in a morbid perversion
of  the  natural  feelings,  affections, inclinations, temper,
habits and moral dispositions,  without any notable lesion of
the intellect, or knowing and reasoning faculties, and par-
ticularly without any maniacal hallucination."*
  According to our author, individuals of this description are
often, before the idea of their insanity occurs, reputed to be
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 recognise 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 laboring under this disorder, are capable of rea-
soning  or supporting an  argument on  any subject  within
their sphere of knowledge, that maybe 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 division of insanity,  that the commission
of acts   of violence  very  frequently occurs.  The  French
writers insist much on a faulty education as a principal cause,
and there is no doubt, that they have given in this the key
to most of the histories  with which legal and medical works
are lately filled.  The temper is scarcely attempted to be

  *  Prichard ut antea.
  f  " The errors of the eccentric (says Dr. Gooch) are the results of long
habits continued for u great part of their lives, and fabricated  by slow and
almost insensible degrees; while  the errors of the insane spring up suddenly
within a few months or even weeks."  (Quarterly Review, vol. 41, p. 173.) 
724
MENTAL ALIENATION.
 restrained, nay its very transports are encouraged and justi-
 fied, and it is hence  not  surprising, that as age advances,
 liberty of action should be converted  into licentiousness.
 France has  tried  the experiment.   Other  countries  are
 rapidly feeling its early results.
   Pinel relates the case of a self-willed, violent boy, encour-
 aged 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
 murdering a person who used  offensive language  to him.
 On his trial, this  course of conduct was  adduced as  proof of
 his insanity, and he was  condemned to perpetual  confine-
 ment in the Bicetre.
   The results of  this species  are  various.  In many, it dis-
 plays itself in  an irresistible propensity to commit  murder,
 (homicidal mania;) in others to  commit theft, while some
 are impelled to set fire to buildings, often  of the most ve-
 nerable description.   We are told, that when  this  state is
 connected  with the false belief  of  some  personal injury
 actually  sustained, " it does  not come under  the  head of
 moral  insanity."   Here  is  an hallucination.  " But if the
 morbid phenomena  include   merely  the  expressions  of
 intense malevolence, excited  without ground and provoca-
 tion, actual or supposed,  the case is strictly one of moral
 insanity."
   Though  there  are  many, as above described, who have
 this propensity to commit each and every kind  of mischief,
 yet there are some where the disease commences  and ends
 in intense irascibility.*  A large  proportion are subject to
 melancholy and dejection of mind, unaccompanied, however,
 by any illusion.  It would appear to be  confined to no age,
 and, indeed, is said occasionally to make its appearance in
those advanced in years.  Their  whole moral  character is

  * "Some complain—lie—quarrel. You  cannot  find a single idea truly
foolish; the delirium is in their actions  and moral sentiments.  The judg-
ment only becomes perverted, when the disease is at its height." (Leuret,
Annales D'Hygiene, vol. 1, p. 284.) 
MENTAL ALIENATION.
725
changed—" the pious," says Dr. Burrows, " become impi-
ous ; 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 insan-
ity, I need hardly suggest to the reader the striking resem-
blance  that it bears to  crime.  Owing  to  this,  our  legal
tribunals can hardly be considered as giving an assent  to its
actual  existence.   The difference of opinion which exists,
with examples of cases that have been discussed, will,  how-
ever, 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
others  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 mania of females, connected with a dis-
order 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 phy-
sical and  moral, or bodily and mental; but a separation of
this nature is  not conducive  to  just views  of the disease.
Insanity is essentially  a  bodily  disease,  and  the moral
causes operate in producing it, as they do in producing  other
complaints.
  We may enumerate the following as remote causes :  re-
peated  intoxication, abstinence, injuries  to the head, fever,
suppressed discharges and secretions, excessive evacuations,
mercury largely and  injudiciously  administered, paralytic
affections,  influence of particular seasons, hereditary predis-
position,  sedentary habits,  excess  in pleasure,  factitious
passions, mistaken views  of religion, parturition, errors in
education, intense  application to a  particular study or ob-
ject of  investigation, misfortunes, the excitement of politi-
cal changes, and particularly a state of war.

  * 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 insanity. 
726
MENTAL ALIENATION.
  On ace, 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 in-
sane, than among the sane population in general.*
  It should be remembered, that  the insanity of females is
always  aggravated at the period of menstruation, particu-
larly when it is in a morbid state.!

           II. Of feigned and concealed insanity.
  The medical witness is often required to decide on the
actual  existence of insanity, and  it therefore behooves him
to be well acquainted with  its  actual symptoms.  It is  in
this point of view that the enumeration  given in the pre-
vious section becomes valuable.  It will also materially aid
in detecting feigned or concealed  insanity.
  There is no disease, says Zacchias, more easily feigned,
or more difficult of detection than the one under considera-
tion.   And hence, he remarks, many great men of ancient
times, in order to elude the  danger that impended over
them,  have pretended 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  conse-
quently great.  It is his duty, and should be his  privilege,
to spend several days in the examination of a lunatic, before
he  pronounces  a  decided  opinion.  If this  be allowed to
him, and also if he be enabled to obtain a complete history
of  the antecedent circumstances, much may be effected to-
wards  forming  a correct opinion.  The following remarks
may serve as points on which the inquiry is to be  grounded,
and the comparison instituted.
   1.  Insanity is seldom sudden in its attacks.  The aberra-
tions from reason are at first slight and almost imperceptible,
but gradually acquire more  marked characteristics.   With
  * Haslam on Madness, pp. 208,210. Medico-Chirurgical  Review, vol. 1,
 p. 251.
  t Marc, in Godman's Western Reporter, vol. 2. p. 68.  Esquirol. 
MENTAL ALIENATION.
727
the feigned, on the other hand, they are sudden, abrupt and
violent.
  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
pretenders 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 accompa-
nying 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
itself, and seem desirous to exhibit themselves in its most
violent and  disgusting forms.  They  overdo their part.
" They seek to exhibit the total abolition of the  rational
faculty, instead of its partial perversion."
   4.  Real lunatics, at the period of remission, are desirous
of being deemed free  from the malady, and often assiduously
endeavor 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."i
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
enacted 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."J

  * Haslam's Medical Jurisprudence of Insanity, p. 322.
  f 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 founded high  hopes. See an account of him in the Li-
brary of Entertaining Knowledge, vol. 3, p. 186.
  X Cyclopaedia of Practical Medicine, art. Feigned Diseases, vol. 2, p. 146.
When soldiers or sailors are suspected of feigning, they should be confined 
728
MENTAL ALIENATION.
  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 inquiry may lead to the
development of some probable  motives for his present con-
duct.*  Unless highly irritated, or suspicious of his medical
attendant, 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 pru-
dent management, the lunatic thus often makes him a confi-
dant.  Not  only should the physician  frequently converse
with the  patient, but  also endeavor to have him write.  In
many instances the style, or the manner of penmanship will
detect, when a verbal examination might fail.!
  7. Mr. Hill also recommends attention to the presence or
absence  of  the peculiar  animal odor  that  is observed in
maniacs.  And  " the best mode of making the discovery of
it, is to  enter  the bed-room of the  subject on his first
awaking, after  having  slept in a small, ill-ventilated room,
in sheets and body  linen 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
circumstance: 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 mentioned the  following case in which
it was  applied, and which deserves  quotation.  Two men
were condemned to die  in  1794,  for treason, committed
against the  general government  in the western counties of
Pennsylvania.   One  of these  was  said  to  have become

alone, and so that they can be overlooked when  not  suspecting it.  (Mar-
shall, p. 144.)
  * Hill, p. 396.                 t Conolly, p. 467.
  X Dr. Knight recognizes the  correctness of this, and says Boerhaave and
Van Swieten have each noticed it, p. 121.  Esquirol also mentions it. Bur-
rows says, (p. 297)  "If I detected it in any person, I should not hesitate to
pronounce him insane, even though I had no other proof of it."  Sir W. Ellis
(p. 133) concedes its frequency in the insane, but not its universality. 
MENTAL ALIENATION.
729
insane after sentence of death was pronounced on him.  A
physician was consulted upon his case, who declared the
madness to be feigned.  General Washington, the president
of the United States, directed a consultation of physicians,
and  Drs. Shippen, Rush, and Samuel P. Griffits were ap-
pointed 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  natu-
ral,  both in frequency and in force.   This discovery induced
the physicians to unite in a  certificate, that the  individual
was really mad.  He was respited, and subsequently  par-
doned.*
   9. The administration of a strong solution of tartar emetic,
unknown to the suspected person, has been advised.  Where
a common dose  takes a full and  powerful effect, deception
may be suspected, as it is stated  that this never follows its
administration in any stage of approaching or actual insanity,
and  more especially in the maniacal form, which is common-
ly attempted  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 opinion or wishes. J
   11.  Dr. Willis has suggested the following as  proofs of
recovery: " If a patient, after being perpetually restless,
can  sit  quiet in his chair for  half an hour, we may judge
favorably of  him, though his delusions  be as strong as
before.  When  he remains  composed for whole  days  to-
gether, we may look for a return  of reason."

  * Rush's Introductory Lectures. Lecture xvi., p. 369.
  t Hill, p. 306.  " Some  melancholies, as well as maniacs, are very insensi-
ble to the action of drastic purgatives."  (Marc, Godman's Western Reporter,
vol. 2, p.  67.)  See also Male, p. 257.
  X Fodere, Traite du D61ire, vol. 2, p. 500.
                     47 
730
MENTAL  ALIENATION.
   He further  adds, that  in  his opinion,  no  one  can  be
 considered 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.*  " I do not  think it quite fair  to expect
 this, (says Sir Henry Halford.)   Something must be  conced-
 ed to the pride of human nature."!
   But it  must  also be  remembered that  the  insane  may
 conceal  their delusions, and  they  frequently  do  this with
 great cunning.   Hence  it  requires particular attention  on
 this  point, and  it should also  be ascertained whether  they
 sleep habitually  well.
   12. The attempt to  feign  melancholy is more difficult,
 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
 characterise  insanity; they are unable to mimic the  solemn
 dignity of characteristic madness, nor recur to those associ-
 ations which mark this disorder;  and they will  want  the
 peculiarity of look which so strongly impresses an  experi-
 enced observer."!
   13. In cases  of doubtful  idiocy, the fact should be  noticed
 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

   * Medico-Chirurgical Review, vol. 6, p. 371.
   t Halford's Essays, p. 141.  Probably, as a general rule, the insane do not
 recollect occurrences passing during their illness.  The whole is as a dream
 to them. There are, however, numerous exceptions to this.  Esquirol as well
 as other observers,  have witnessed instances, in which convalescents were
 able to recollect every thing that had happened.  (Annales D'Hygiene, vol.
 16, p. 172.)  And in his collected works,  he repeatedly mentions this circum-
 stance, (vol. 1, pp. 19, 97, &c.,) so that  I am hesitating whether the rule is
 not the exception.  They recollect, when cured, (he  states,) their sensations
 most accurately, and the reasonings and determinations consequent on these.
 Both melancholies  and maniacs will recount their language and actions with
 surprising accuracy.
   Orfila (Lecons, 3d ed. vol. 1, p. 472,) also affirms that the exceptions to this
 are quite few, and even insinuates, that  of the last  there may  be some who
 intentionally deny their want  of recollection.
   X  Haslam's Medical Jurisprudence of Insanity, p. 323. 
MENTAL ALIENATION.
731
description.  Their memory and conception should also be
put to the test.*
  14.  However skilful may be the  attempt to  counterfeit
dementia, and it is the most easily assumed of all the forms,
yet there is always in the pretender a kind of hesitation and
reflection to be observed in his discourse.  His wild ideas
do  not succeed each other with the  same rapidity as those
of a person whose understanding has been really destroyed.
Marc  proposes, as another test,  to repeat  to  the insane
person a  series of ideas  recently  uttered.  The pretended
madman, instead of wandering incoherently, would judge it
most expedient to repeat the same words for the purpose of
proving his madness.!
  15.  There are  many instances, where, without any  pre-
cise 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 Shakspeare,  as given in the follow-
ing 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 / 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 derang-
ed, and was attended by Sir Henry Halford and Sir George
Tuthill.   After a  month's violence, he  was composed and
comfortable,  but extremely weak,  and manifested  great

  *  Marc, Godman's Western Reporter, vol. 2, p. 66.
  t  Marc, ut antea, p. 68. 
732
MENTAL ALIENATION.
anxiety to make his will.   This request was evaded as long
as possible, but at last consented to.  The solicitor received
the same instructions, drew it,  and it was signed by  the
physicians as  witnesses.   They  inquired,  at  the time  of
executing it, whether such were his intentions ; and to each
and every question,  he  answered affirmatively.   On  going
down stairs, and conversing on the delicacy of their situation,
it occurred to  Sir Henry Halford  to apply  the  above test.
They returned to his room, and asked him as to  the disposi-
tion of his property.  With respect to his  legacies, he  an-
swered 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 punish-
ment.  The really insane do not heed these, being occupied
with the phantasms of the imagination, and they are hence
insensible to the operation of hope  or fear;  the  feigned, on
the other hand, will often 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 whipping 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.!
  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,

  * 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 applicable to feigned insanity among soldiers and sailors. Occa-
sionally the physician, in spite of every precaution, proves to have been mis-
taken,  and he may cause the innocent much suffering. (Cyclopaedia of Prac-
tical Medicine, vol. 2, p. 147.) 
MENTAL  ALIENATION.
733
she had repeatedly, through her ingenuity  in feigning in-
sanity, escaped punishment from several tribunals in Savoy
and Geneva.   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 prisoner had
slept quietly during the night,  and the patient 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 periodi-
cal 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
relates 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
desired to visit him.   His companions in confinement stated
that  they had not witnessed any  thing inconsistent with


  * Fodere, Medecine Legale, vol. 2, p. 461.
  f Dictionnaire des Sciences Medicales, Art. Alieni.
  " The best mode that has yet been discovered, for forcing a man who feigns
madness, 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
beino- tried for sinking ships to defraud the underwriters; but he betrayed
himself to the medical  men  by the common fault of impostors,  not having
' a method  in his madness,'  but mixing up the two irreconcilable charac-
ters of
           ' The moping idiot and the madman gay.' "     Dttnlop. 
734
MENTAL ALIENATION.
sanity, and that he .testified regret for his conduct.   Doux's
own account was, that his wife  had proved faithless, and
that he was  constantly witnessing her attachment to her
paramour;  a violent quarrel  finally  ensued, when he beat
her, and left her apparently dead.
  These facts appearing probable, and  presenting nothing
like insanity, they  repeated  their examination three days
after.  He  made a similar statement, and on being asked as
to his health, said  he was well.  On examining witnesses,
however, the wife and neighbors knew nothing of the para-
mour, 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 extra-
ordinary, 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  incohe-
rent.   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 evident-
ly verging to dementia, combined with palsy.
  Another instance is derived from the narrative of Professor
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 phy-
sicians who  examined  him,  were inclined  to  doubt its
reality from  the suddenness of the attack—from its some-
    f 
MENTAL ALIENATION.              735
times seeming to be melancholy, then  exhilirated insanity,
and  then  complete dementia.   He made  no answer to
questions, except by single words, as book, priest, crown,
crucifix ; and if  he made an attempt, as it would sometimes
appear, it ended in the repetition of some of these words.
  In his presence,  the physicians stated, that there  were
several peculiarities in the case, and among these, that he
made noise during the night, and was quiet  in the day time
—that he never  sighed, and that he never fixed his eyes on
any  object.  The drift of their  conversation was, that the
opposite of all  these  would induce them to suppose him
insane.  Shortly after, in  fact,  he ceased making noise at
night,  and did every thing  that they had indicated.  A blis-
ter applied to  his neck had no effect, except to change a
state of complete muteness which had been present for some
time, to the former babbling of disconnected words.
   All  these things  strengthened the idea of feigning.   In
July, 1793, he was  transferred to the  prison at  Milan, and
Monteggia was ordered to  visit him.  He still appeared
demented.  He  could  not  look at a person  steadily—never
spoke—but made a  hissing noise at the sight of any  thing
that pleased or displeased him.  He  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 some-
times 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, I am dying.   His
attendant, who  had never  heard his voice  before, was  ex- 
736
MENTAL ALIENATION.
tremely frightened, and  sent  immediately for  Monteggia.
The  patient was tranquil, and speaking sensibly, without
any appearance of insanity.  He said that he had no recol-
lection of the past; but that he had heard persons say, that
poisoned soup had been given  to him.  He complained also
of the state of his stomach.   An emetic  was given, which
acted freely.  From  this  time,  he appeared  cured.  He
remained  a month, and then was  conducted  to his  criminal
associates in prison.
  Monteggia asks, whether this man was insane 1 If so, was
he cured by the  opium 1   Or did  its effects produce such a
state that he imagined he was going to die 1   Why then did
not the first dose produce some effect 1   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 1
  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 de-
mentia, accompanied with inability to speak.  Drs.  Biessy,
Faivre and Brachet were directed to visit him.  They un-
derstood that  he ate well, but never spoke, and remained
on his bed constantly, without scarcely ever moving. When
food was  administered to  him, he was placed in a proper
position, and he  remained in that, without appearing to hear
or attempting to speak.
  Reflecting on this, it  was  agreed  that they  would not
show themselves to him, lest  his suspicions might  be ex-
cited ; but as this was a case nearly approaching to  idiotism,
with apparent paralysis of the nerves of the ear and tongue,
the actual cautery to the soles of the feet would be a proper
application.  It was accordingly applied for several days,
with  active purgatives,  without  any effect. It was next
agreed that the cautery should  be used on the  neck,  as
nearer to  the seat of disease. Two days passed  without
any result.  On the third, however, while  making the ne-
cessary preparations for another trial of the remedy, Gerard
signified  by signs his objections to it.  When urged to ex- 
MENTAL  ALIENATION.
737
plain, he spoke—" They accuse me of  a  crime of which  I
am innocent.   They call me a fool," &c.
   The  disease was  thus removed, and the  physicians re-
ported 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 dis-
cuss.  In disputed cases, both of feigned and concealed in-
sanity, it is very common for persons in every class in so-
ciety,  to  come 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 examinations, or  on a slight notice of counter-
feited  or ordinary  actions.  That these  are not calculated to
determine the true state of mind, has, I hope, been already
shown.  That they may lead to serious errors, will particu-
larly appear, when we hereafter notice that form of insanity,
in which the  boundaries between it and sanity approach so
near, that judges  and juries often doubt whether the act  is
the result of  madness or of wickedness.!
   This disease  is  observed  to be concealed, in the hope  of
escaping the  restraints of confinement.  And  the difficulty
of detection  is increased by the remarkable cunning and
dissimulation, 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,
 " had on one occasion so completely masked his disorder,
that I was induced to suppose him well, when he was quite
otherwise.  He had .not been at home many hours, before
his derangement was  discernible by all those who came  to

   * Annales D'Hygiene, vol. 2, pp. 353 to 392.  Additional Reports of cases
 of doubtful insanity, examined by Marc and others, are given in vol. 4, pp.
383 to 404.                                 , „
   t In  Hathorn  v. King, (Massachusetts Reports, vol. 8, p. 371,) the ques-
tion of  the sanity of a testator was agitated, and the counsel for the appel-
lants moved to inquire of the attending physicians, whether, in their opinion,
 at the time of executing the will, the deceased was of sound, disposing me-
mory.  It was objected, that the sanity of the party must be determined  by
his conversation and actions. These were the only standard, and the exami-
nation 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. 
738               MENTAL ALIENATION.

congratulate him on the recovery of his reason.  His im-
petuosity and mischievous disposition daily  increasing, he
was sent to a private mad-house ; there being, at that time,
no vacancy in the hospital.  Almost from the moment of
his confinement he became tranquil, and orderly, but remon-
strated on the injustice of his seclusion.
  " Having  once deceived me,  he  wished much  that my
opinion should be taken respecting the state of his intellects,
and assured his friends  that he would submit to my determi-
nation.  I had  taken care to be well prepared for this in-
terview, by obtaining an accurate account of  the manner in
which he had conducted himself.  At  this examination, he
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 expressed 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  cer-
tain persons and circumstances, 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 protracting the conversation, he
let fall  sufficient to satisfy my mind that he was a madman.
In a short time  he was removed  to the hospital, where he
expressed great satisfaction in  being under  my inspection.
The private mad-house which  he had formerly so much
commended, now became the subject of severe animadver-
sion ; 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 inquiring of some  con-
valescent 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 
MENTAL ALIENATION.
739
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 de-
cision, and urged the correctness of his conduct during con-
finement as an argument for his liberation.  But when I in-
formed him of circumstances he supposed me unacquainted
with, and assured  him that he was a proper subject for the
asylum which he then inhabited, he suddenly poured forth
a torrent of abuse ; talked  in the most incoherent manner ;
insisted on the truth of what he  had formerly denied;
breathed vengeance against  his family and friends, and be-
came so outrageous that it was necessary to order him to be
strictly confined.  He continued in a state of unceasing fury
for more than fifteen months."*
   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 the day, in
this very place, (the Court of King's Bench,) an unfortunate
gentleman, who had indicted a most affectionate brother,
together  with  the keeper of a mad-house at  Hoxton, for
having imprisoned him as a lunatic, whilst, according to his
 own evidence, he  was in his perfect senses.   I  was, unfor-
 tunately,  not  instructed  in what  his lunacy  consisted,
 although  my instructions  left me no doubt of the fact, but
 not having  the clue, he  completely foiled  me  in  every
 attempt to expose his 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 a most wanton oppres-
 sion; 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 in the habit of exerting, believed himself
* Haslam on Madness, p; 53. 
740               MENTAL ALIENATION.
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 exami-
nation  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  nothing at all in that, because, having been
(as every body knew,) imprisoned in a high tower, and being
debarred the use  of ink, he had no  other means of corres-
pondence, but writing his letters in cherry juice, and throwing
them into  the river which surrounded the tower, where the
Princess received them in a boat.  There existed, of course,
no tower,  no imprisonment, no writing in cherry-juice, no
river, no boat, but the whole was the inveterate phantom of
a  morbid imagination.   I immediately,"  continued  Lord
Mansfield,  "directed Dr.  Monro to be acquitted;  but this
man Wood,  being a  merchant in Philpot-lane, and having
been carried through the city on his way to the mad-house,
indicted Dr. Monro over again, for the trespass and impri-
sonment in London, knowing that he had lost his cause by
speaking of the Princess at Westminster ; and  such," said
Lord Mansfield, " is the extraordinary subtlety and cunning
of madmen, that when he was  cross-examined on  the  trial
in London, as  he had successively been before, in  order to
expose his madness, all the ingenuity of the bar, and all the
authority of the  court,  could not make him say a single
syllable upon that topic, which had put an end to the indict- 
MENTAL  ALIENATION.
741
ment  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 occa-
sioned his defeat at Westminster, he obstinately  persisted
in holding it back."*
   Some directions as to the best method of detecting conceal-
ed insanity, may readily be drawn from the above narratives,
but  the subject is in itself a very difficult one.!  The medi-
cal  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
  * This evidence at Westminster was then proved against him by the short-
hand writer.   LordEldon, since he has been Lord Chancellor, has mentioned
from the bench a case which occurred to him while at the bar,  also illustra-
tive of the difficulty that occurs in  such cases.  After repeated conferences
and much conversation with a lunatic, he was persuaded of the soundness of
his understanding, and prevailed on Lord  Thurlow to supersede the commis-
sion.  The lunatic, however, immediately afterwards, calling on his counsel
to thank him for his exertions, convinced  him in five minutes, that the worst
thing that he  could have done for  his client, was to get rid of the commis-,
sion.  (Vesey junior's Reports, vol.  11, p. 11.  Ex parte Holyland.)
  f Hoff bauer 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 pa-
tient, 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 exhibit some astonishment, and even contradict
him upon some unimportant points, so as to excite him to a more full expla-
nation; but always in such a manner as indicates attention, and never incre-
dulity."
  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 following cases, related by Esquirol, illustrate this observa-
tion, and prove the  necessity of subjecting such individuals to seclusion:
  " A girl who has been maniacal, and on this account was taken to Salpe-
triere, 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, unless  prevented by seclusion,  drinks  until she is intoxicated, be-
comes furious, and attempts suicide."
  "A lady has been several times taken to Charenton, on account of her fre-
quent intoxication,  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 inclination,  the  douche has been administered,
her dismission has been refused, and she has been threatened with seclusion
for life.  When she has again been  brought back, she makes the  fairest  pro-
mises and the strongest resolutions; but nothing  can prevent the return of the
paroxysm."   Darwall. 
742
MENTAL ALIENATION.
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 meeting  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
trivial  points, provided they do not become associated with the
prevailing notions which constitute their insanity.f   And this
circumstance is very apt  to become a source of error, since
unobservant persons will be readily deceived by this tempo-
rary display of rational discourse, and form a hasty conclu-
sion.  Hence the importance of continued examination.  At
the commencement of an interview, it may be all calmness
and apparent  rationality—yet  when  least expected,  the
disorder breaks forth,  and in many instances, there  seems to
be no cause for this conversion from apparent sanity to evi-
dent  derangement.  Even  when placed  in  the  society of
other madmen, he is  capable of detecting their  folly  and
aberration  from reason, and will endeavor to convince them
of the absurdity of their prevailing opinions ; " yet in a mo-
ment, his  mind  launches  into the regions of fiction, its
admired clearness becomes  obscured, and its seeming regu-
larity exhibits a  confused assemblage of  violent distortion.
There is no intermediate condition which separates  these
states, and the transition very much resembles the last con-
nected  glimpses  of our waking thoughts, followed by the
abrupt creation of a dream."J
  To conclude then on this  point, the examiner must have
sufficient time allowed him,  and he should not be  interrupt-
  *  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 accustomed to the management or cure of lunatics, become tenfold
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."
  t  Haslam's Medical Jurisprudence of Insanity, p. 295.     X lb- P- 296. 
MENTAL ALIENATION.
743
ed during it.  The subtlety of the patient should be recol-
lected, and his artful concealment of his real opinions.   And
these should not be  directly commenced with, as subjects of
discussion, since ne  would soon perceive the drift of the in-
quiries-, and  endeavor to evade, or pretend to disown them.
" The purpose is  more effectually answered by leading him
to the origin of his distemper, and tracing down the consecu-
tive  series of 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 accquainted with, in
 his capacity as a witness.  To go beyond,  and to endeavor
 to give the whole law on this subject, would be like a law-
 yer instructing in anatomy.
    The common law of England on the subject before us, is
 thus expounded by Blackstone :  " An idiot or natural fool/'
 says he, " is one that hath no understanding from his 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
 glimmering of reason,  so that he can tell his parents, his
 age, or the  like common matters.!  Over individuals of this
 description, the king  is appointed guardian,  and the  lord
 chancellor  acts  under  his  authority, as the conservator of
 their property.  He also is to provide  for  them, and at
  their death renders their estates to their heirs.
    " A lunatic or non compos mentis, is one who  hath had 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
  someties not, and that frequently depending upon the  change
  of the  moon.  But  under the general name of non compos

    * Haslam's Medical Jurisprudence of Insanity, p 331.
    f Blackstone's Commentaries, vol. 1, pp. 3U-, 6m. 
744
MENTAL ALIENATION.
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 born so ; or such, in
short,  as  are judged by  the court of chancery incapable of
conducting their own affairs."*  Over such,  the crown is
also guardian, but in a different manner, as the law suppo-
ses that these accidental  misfortunes may be  removed, and
therefore  he  or his special delegate, the lord chancellor, acts
only as a trustee, and preserves the  property  for the use of
the insane 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,
unsoundness of mind.
  Lord Chancellor Eldon was, I believe, the individual who
first gave it a distinct place  among the legal  varieties of
mental alienation, and the question of its existence has been
a fruitful  source of litigation.   To appreciate the changes
occasioned by its introduction,  it will be sufficient to refer
to  the  opinions of various chancellors  of  England.  Lord
Hardwicke held that unsoundness of mind imported,  not
weakness of understanding, but a total 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 author-
ized to issue the commission de lunatico inquirendo, provided
it is made out that the party is unable to act with any pro-
per 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 in-
sanity."!  And this opinion,  according to the commentary
of  Mr. Shelford, imports  that the party is in some such state
of mind, as is contradistinguished from idiocy and from lunacy,
  * Blackstone, vol. 1, p. 304.
  t He deemed it equivalent with the term non compos mentis, and said that
by unsound mind must be understood a depravity of reason, or want of it,
and not mere weakness of mind.
  X 8 Vesey junior's Reports, p. 67. Ridgway v. Darwin. 
MENTAL ALIENATION.
745
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  affairs 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.*
  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
incompetent to the  management of his affairs,  and conse-
quently that he was  of unsound  mind, and had been so for
two years.!   Lord  Lyndhurst quashed this inquisition, and
ordered a  second  commission, which found the person to be
of unsound mind.|
  As to what  is  the legal  acceptation of this term, I will
quote  the  sentiments of an eminent  barrister, Mr. Amos,
late professor of medical jurisprudence in the University of
London.   "This  state of unsoundness of mind, in the legal
sense of the present  day, is  perhaps not very  easy to define;
for  it is neither lunacy, idiotcy, imbecility, or incompetency
to manage a person's own  affairs.   And yet we have seen
that an inquisition finding a person  unfit to manage  his own
affairs, and therefore  not  sound of mind, has been found bad.
The term unsoundness of mind, therefore, in the legal sense,
seems to involve  the idea of a morbid  condition of intellect,
or loss of reason,  coupled  with an  incompetency  of the
person to manage  his own affairs."  And again,  " Sound-
ness 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  scientific precision."^
  * Shelford, p. 87.
  t 4 Russel's Chancery Reports, p. 182.  In Re Holmes.
  The Rev. Mr. Holmes was seventy-seven years old.  Two medical  men (Drs.
Pennington and Arnold) who had examined and  conversed with him, consi-
dered 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 pecuniary affairs. It  was on this testimony that the
first verdict was rendered.  (Medico-Chirurgical  Review, vol. 12, p. 244.)
  X A legal friend has suggested tome that probably LordLyndhurst's objec-
tion was to the argumentative nature of the verdict.
  § London Medical Gazette, v. 8, pp. 419, 421.
                    48 
746                MENTAL ALIENATION.

   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 unsound mind does not mean a deprivation of reason,
but a degree of weakness, and the Crown can issue commis-
sions 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 Statutes of the State of New York, it is  enacted,
that the Chancellor shall  have  the care and custody of all
idiots, lunatics, persons of unsound mind, and habitual drunk-
ards.!  Again it is ordained, that every person  capable of
holding  land, except  idiots, persons of unsound  mind,  and
infants, may alienate it.J   It is, therefore, of great  impor-
tance that medical men and lawyers  should agree on some
definite meaning to be applied to it, and I know none better
than that suggested in the following extract.  It  is deduced
from the  current of decisions.
   After remarking that the terms insanity, lunacy, unsound-
ness of  mind, and imbecility,   are employed under very
  * Shelford, p. 5.  Mr. Stock, a late English legal writer on Insanity,  fully
concurs in the difficulty produced by the introduction of this term, and enti-
tles his treatise " On the Law of  JYon Compotes Mentis."
  X Revised Statutes, vol. 1, p. 52.  It is also in use in Pennsylvania.  Ash-
mead's Reports, p. 82.  In the matter of O'Brien, a lunatic.  In Illinois and
New-Hampshire the term " distracted person," is  used  in their statutes to
express the state of insanity. (Revised Laws of Illinois, 1833, p. 332.  Di-
gested Laws of New-Hampshire, 1830, p. 339.)
  X Revised Statutes,  vol. 1, p. 719.  Before these distinct enactments, it
would not appear to have been entertained  by our courts. In Jackson ex
dem. Cadwell v. King, the Supreme Court said, that idiots,  lunatics, or per-
sons  non compos, are alone persons 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, according to the modern doc-
trine of the Court of Chancery, one would be the proper subject of a commis-
sion 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.
747
different 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
evidence, when  in  fact the chief difference between  them
consisted in  the meaning that  each attached to the vague
and  unscientific terms sanctioned by  the  practice of the
courts.   These inconveniences have been abundantly felt on
many recent occasions,  and appear, in particular, to have
been the origin of the  chief difficulties experienced in the
late Portsmouth cause.   In defence of our medical brethren,
and in justification  of the awkward  appearances they have
made, we may safely maintain, that the source of confusion
does not lie with them.  This  has been clearly shown, we
think, in a letter addressed a few months ago, by Dr. Has-
lam 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 commis-
sion of lunacy.   His lordship  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 comprehends
all those who have once been  sound in mind, and who still
possess the power  of reasoning, though on  imaginary or
false principles.   But  as to the term Unsoundness of mind,
as 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.  ' Whatever,'
 says the Chancellor,  ' may  be the degree of weakness or
imbecility of the  party  to manage  his own affairs, if the
 finding of the jury is only that he was of an extreme imbe-
 cility of mind, that he has an imbecility to manage his own
 affairs, if they will not proceed to  infer from that, in their
 finding  upon oath, that he is  of unsound  mind, they have
 not  established  by the result of their inquiry, a case in
 which the Chancellor can make a grant constituting a com-
 mittee, either of the person or of the estate.  All the cases
 decide  that mere imbecility will not  do, unless that imbe- 
748
MENTAL ALIENATION.
 cility and  that  incapacity to manage  his  affairs, amount to
 evidence that he is of unsound mind, and he must be found
 to be so.'  On carefully considering these expressions, we
 imagine this unsoundness of mind to be nothing else, in strict
 language, than imbecility, amounting  to an inability to man-
 age one's affairs,  a state which  is  precisely a minor degree
 of idiocy, and need not be distinguished  from it, except as
 a mere variety."*
   " It is satisfactory, (says  a late English writer,) to  be able
 to add that a recent enactment has put an end to much of
 the ambiguity which thus prevailed respecting weakness of
 intellect.   The  statute, William 4th, chap. 60, relative to
 trustees and  mortgagees, has introduced a power to issue a
 commission of lunacy  in all cases  where an individual is
 ' incapable of managing his  affairs,'  although he be neither
 proved to be an idiot or a lunatic"!
   The methods of proving a person  an idiot or non compos,
 or of unsound  mind,  are, in  every  important particular,
 alike.  But in the  first, a writ is issued to inquire into the
 state  of the  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 summoned by the  persons appointed commis-
 sioners.J   If the result of the commission be a return  that
 the individual is a lunatic, he is then committed to the  care
 of tutors or guardians, who are  styled  his committee.
   Should the individual recover his state of sound mind, the
 chancellor must be  petitioned to supersede the commission;
 and on hearing of this, the individual should attend, that he

  * Edinburgh Medical and Surgical Journal, vol. 19, p. 612.  Dr. Morrison,
 (2d edition, p. 28,) presents the following definitions:  " Unsound mind suf-
 ficient to excuse the commission of crime, is marked by delusion—confounds
 ideas of imagination  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 delu-
sion, 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.
  t Dr. William Cummin. London Med.  Gazette, vol.  19, p. 884.
  X Highmore on the Law of Idiocy and Lunacy, pp. 20, 21. 
MENTAL ALIENATION.
749
may be  inspected in person;  and it  is also usual for the
physician to  attend, or to make an affidavit that he is per-
fectly 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 be of a nature to
justify the confinement of the individual,  or the imposition of
restraint upon him as regards the use or disposal of his proper-
ty ?\  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 hypo-
chondriasis.   Finding  himself also deficient in education,
he  endeavored 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  and permission.  He dared not go to the play, or

   *  Highmore, p. 73.                        . .         .
  f  Or, to put it  in another point of view, the physician  and the jury are
" to determine, not the mere existence of a mental affection, but the limit at
 which that affection begins to deprive the individual  of the power of propir
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.) 
750
MENTAL ALIENATION.
leave the house for a few hours, without asking her consent;
and indeed she turned him out of his shop, if he displeased
her.  Foreseeing that if he married, she would be displaced
from the management of his  house and  concerns, she pre-
vented 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
combining  against him.   Mr. Lawrence  considered him  of
unsound mind, but that the antipathy to his mother was the
chief delusion. The disease would be removed, if he could
be reconciled to her.
  About this time, his mother placed him under the care of
Dr. Burrows,  against whom  it appears he  entertained a
strong  aversion.    He now  consulted Dr.  Latham on the
subject of his  supposed insanity.  In the conversation with
that physician, he used much gesticulation and theatrical
gestures;  was apprehensive  that any one should hear the
narrative;  spoke  of his  wealth,  and occasionally quoted
Byron  and  Shakspeare.   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.
Monro, Dr. Macmichael and  Dr. Sutherland;)  and the ma-
jority being of opinion that he was of  unsound mind, the
Chancellor granted a commission. 
                   MENTAL ALIENATION.                751

  The testimony adduced, was  principally what has been
already stated.  The state of his affections was much dwelt
on as a proof; so also his  having purchased some property
at an  extravagant  rate.   He  expressed much indignation
at his confinement, but was calm and correct in his conver-
sation.   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
correctness of the opinions of the principal medical witness-
es,  and  there  possibly may be some coloring given more
favorable to the  individual implicated, than the testimony
warrants.   But it is evident, so far as I can judge, that a
sufficient inquiry was not made into the state of his domestic
relations—of  his capacity for business, and above all, of his
actual state of mind, previous to the charge of insanity.  It
is well  remarked by the author from whom  I  am quoting,
(and who I  believe was Dr. Gooch,) that Davies was always,
and  probably would continue to be, what we usually call a
man of weak mind; but he had capacity sufficient for making
money—was  inoffensive in  his habits, although eccentric,
and absolutely indulged in no delusion, unless antipathy to
his mother's government  was so considered.  This, if his
history  had been properly inquired into, would never have
been so  denominated.  The important rule evidently deduci-
ble  from the  whole, is to  ascertain the  person's  natural
character, and to reason from that as to deviations.*

  * I have taken the narrative of this case from the Quarterly Review, vol.
42, p. 345.  I will remark, that the observations of Dr. Gooch on the testi-
mony 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 principle, that they should have thoroughly
informed themselves, yet this is more easily recommended than accomplished.
  Dr. Duncan, junior, of Edinburgh, seems  to have publicly noticed some of
the offensive parts of the review.  (Lancet, N. S. vol. 6,  p. 214.)  To avoid
the charge of plagiarism, I will state, that the concluding idea in the text is
derived from Dr. A. Combe. " The true standard," says he, " is the patient's 
752
MENTAL ALIENATION.
    Another case that equally interested the intelligent  por-
  tion of the community in England for a  time, was that of
  Miss Bagster.   This was in 1832.
    Miss Bagster was a young lady of fortune, who perpe-
  trated 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 matri-
  mony, having engaged herself to  several persons,  and that,
  in many respects, she,  evinced little of the delicacy becom-
 ing her sex.  Dr. Sutherland had visited her  four times,
 and came to the conclusion that she was incapable  of taking
 care of  herself or of her property.  She  had memory, but
 neither 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 extremely passionate,  and
 occasionally indelicate  conduct.   On her examination, how-
 ever, before the commissioners, her answers were pertinent
 and in a proper  manner. No indelicate remark escaped from
 her.  Drs. Morrison and  Haslam  had  both visited  her, and
 were not disposed to consider her imbecile or  idiotic.  She
 confessed  and  lamented her ignorance of arithmetic,  but
 said that her grandfather sent excuses when she was at
 school, and begged that  she  might not be pressed.  Her
 conversation generally  impressed  these gentlemen in a fa-
 vorable 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.

 own-natural character, and not that of the physician  or  the philosopher."
  It is the prolonged departure, without an adequate external cause, from
tne state of feeling and modes of thinking  usual to the individual when in
neaitn, that is the true feature of disorder in mind." 
MENTAL ALIENATION.
753
   However little we  may be disposed  to sympathize with
Mr. Newton, this certainly would  seem to be  a hard  deci-
sion against  the female.   With a  neglected education—in-
dulged 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 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 educa-
tion," he said, " would account for all  the appearances ob-
served  in Miss Bagster."*
   From the  above statement,  an  idea may be formed  of
the  principles and practice  of  English law relative to the
insane in Civil cases.f  I come now to notice such as are in
force in Criminal ones.
   Insanity  or idiotism excuses  an  individual from the guilt
of crimes, and he is not chargeable for his own acts, if com-
mitted when under these incapacities.   " And  if  a man in
his sound memory, commits a capital offence, and before ar-
raignment 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
  * London Medical Gazette, vol. 10, pp. 519, 553.  London Atlas, newspa-
per, July 8 and 15, 1832.
  In the suit for the dissolution of the marriage of the Earl of Portsmouth,
on the ground that he was of weak, and afterwards of unsound mind, it was
proved that his servants were his play-fellows—that he was fond of driving   i
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, carry-
ing lancets with him—would follow funerals, &c.
  The commission found him of unsound mind, and the marriage was subse-
quently dissolved.  (Haggard's Ecclesiastical Reports, vol. 1, p. 355.)
  t In Scotland, besides the usual provisions as to lunatics and idiots, a legal
restraint may be laid on those who by imbecility or weakness of judgment,
are considered as fit subjects for it. This is called an interdiction, and when
under  its operation, they are disabled from disposing of their property with-
out the consent of curators.  An interesting case of alleged idiocy, but pro-
bably coming under the above description, was recently agitated in Scotland.
  See  Mr. Colquhoun's Report of Proceedings. Duncan  against Yoolow.
(Edinburgh Med. and Surg.  Journal, vol. 49, p. 530.) 
754
MENTAL ALIENATION.
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 crimi-
nal action committed under such deprivation of the senses :
but if a  lunatic  hath lucid intervals of understanding, he shall
answer for what  he does in those intervals, as if  he had no de-
ficiency."*
  The French law makes similar provisions.  " It is  nei-
ther 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 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.J
  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 property is to be restored, but should  the idiot or lunatic
die, it goes to his heirs or next of kin.§
  Two or more justices are also allowed  to cause to be
apprehended and kept safely in custody, any persons who
by  lunacy or otherwise, are furiously mad, or  are so far dis-
ordered  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.||
  * Blackstone, vol. 4, p. 24.
  t Code Penal, art. 64.     J  Causes Celebres par Mcjan, vol. 6, p. 310.
  § Revised Laws, vol. 1, p. 147.  Revised Statutes, vol. 2, p. 52.
  II Revised Laws, vol. 1, p. 116.  Revised Statutes, vol. 1, p. 635. 
MENTAL ALIENATION.
755
  The mode pursued of proving a person a lunatic or idiot,
is to make  an application to the chancellor, who appoints
commissioners 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  re-
sponsibility is laid down.  " No act done  by a person in a  '
state of insanity can be .punished as an offence, and no  in-
sane person can be  tried, sentenced to any punishment,
or punished for  any crime or offence which he commits in
that state."J  Some  special  provisions  have also been  re-
cently 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
  * In the matter of Wendell, a lunatic.  Johnson's Chancery Reports, vol.
1, p. 600.
  t In the matter of Hanks, a lunatic.  Johnson's Chancery Reports, vol. 3,
p. 567.
  A case further illustrative of this, occurred in 1836, before the Supreme
Court of Massachusetts, which has the powers of Chancery.
  Andrew C. Davidson, confined in the State Lunatic Asylum, was at his own
request brought up on a writ of habeas corpus, and the superintendent sum-
moned to show cause of detention.
  Mr. Davidson was a well educated man, aged 45, and had been esteemed
amiable and intelligent, but became embarrassed in his circumstances, and
finally intemperate.  His insanity consisted in false hearing.  He supposed
that his tenant used insulting language, and this delusion extended to his
family.   He became very passionate, and particularly to those who denied
that they heard the noises of which he complained.
  He was sent to the hospital in  1834,  was discharged—appeared well, but
the illusion returned, and he was again confined.  He now persists in believ-
ing that these sounds are transmitted through a great extent of space, and
deems his own organs more perfect in hearing them.  On all other subjects,
he is rational and intelligent. No one would suspect his insanity, when with
strangers.  The court remanded him, not deeming it safe that he be at large,
especially with reference to those by whom he supposes himself injured and
insulted.  (Boston Med. and Surg. Journal, vol. 14, p. 352.)
  X Revised Statutes, vol. 2, p. 697. 
756
MENTAL ALIENATION.
 can subpcena witnesses.  If found  insane, 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 Lu-
 natic Asylum, at the expense of the state.!
   In  other  states, where no separate equity jurisdiction
 exists, the examination and guardianship of these individu-
 als is usually  confided to high judicial tribunals, or to offi-
 cers specially  appointed for that purpose.J
   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
 already 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 commis-
 sion and jury to be examined by them, and to satisfy them
 as to his or her state.
   In the instance of Lady Kirkwall, for  example, of undoubt-
 ed and long  insanity, but whose case was one of property,
 the  commission spent eight  entire days in  this inquiry.§
 How different  the  proceeding is, when the individual is ac-
 cused of crime, need not be mentioned.
   There is a still more striking distinction.x  If a lunatic be
perfectly recovered and  not  otherwise, his  property is to be
 restored to him.||  But in  criminal  cases, if he  exhibits a
  * Revised Statutes, vol. 2, p. 658.
  t Revised Statutes, vol. 2, pp. 756,771.
  X The following is made a crime in Ohio : " Having carnal intercourse with
 an insane woman, not the offender's wife, he being over 18 years of age.  The
 punishment is confinement in the penitentiary  from 3 to 10 years."  (Ameri-
can Quarterly Review, vol. 10, p. 41.)
  § London Med. Gazette, vol. 17, p. 816.
  || In ex parte Atkinson, in the matter of Parkinson, the jury  under a com-
 mission of lunacy against Parkinson, returned " that the said  T. Parkinson 
MENTAL ALIENATION.
757
lucid interval of understanding, he may be punished for acts
committed during its presence, in the same manner as a sane
person is punished.   It will hence be proper to offer a 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.*
This, however, is an  opinion long since abandoned.   Ob-
servers have  repeatedly  noticed,  that  the access  of  the
paroxysms has no connexion with the phenomenon in ques-
tion;  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 corres-
pond  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  excite-
ment  at  both these periods.   Light, he asserts, frightens
some  lunatics,  pleases others, but agitates all."!
  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
proceedings ?   I answer  this  by  some  quotations from the
writings  of distinguished advocates and enlightened physi-
cians.
  Daguesseau, one of  the  greatest  names in French juris-
prudence, thus defines it:  " It must not be a superficial
tranquility, a shadow of repose ; but on the  contrary, a pro-
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 him-
self and the administration of his own affairs." The Lord Chancellor (Eldon)
refused on this to grant a committee, and issued a new commission.  (Jacob's
Chancery Reports, vol. 1, p. 333.)
  * Haslam on Madness, p. 214.
  f Medico-Chirurgical Review, vol. 1, p. 251. 
758
MENTAL ALIENATION.
found tranquility, a real repose ; it must be, not a mere ray
of reason, which  only makes  its  absence more  apparent
when it  is  gone—not a  flash of  lightning, which  pierces
through the darkness only to render it more  gloomy  and
dismal—not a  glimmering which unites the  night to  the
day ;  but a perfect light, a lively and continued lustre, a full
and entire day, interposed  between the twTo 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 diminution,  a  remission of
the complaint, but a kind of temporary cure, an  intermission
so clearly marked as in every respect to resemble the resto-
ration 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 possi-
ble 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 insan-
ity," says  Percival, " the  testimony  of  a physician  is
sometimes required in courts of law.  The  complete remis-
sion  of madness is  only to be decided by. reiterated  and

  * Highmore on the Law of Idiocy and Lunacy, p. 6.
  In further noticing this subject, he remarks, that " much of the difficulty of
discriminating, arises from confounding a sensible action with a lucid inter-
val.  An action may be sensible in appearance, without the author of it being
sensible in fact; but an interval cannot be perfect, unless you can conclude
from it, that the person in whom it appears is in a state of sanity.  The action
is only a rapid and momentary effect; the interval continues and supports
itself: the action only marks a single fact; the interval is a state composed
of a succession of actions." And again: " If it was true that a proof of some
sensible action was sufficient to induce a presumption of lucid intervals, it
must be concluded that those who allege  insanity, could never gain their
cause, and that those who maintain the contrary, could never lose it; for a
cause must be very badly off, in which they could not get some witnesses to
speak  of  sensible actions.  A reasonable action is an act—an 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." (Pothier's Treatise  on the
Law of Obligations, vol. 2, appendix 19, p. 670. London, 1806.) 
                    MENTAL  ALIENATION.                759

attentive  observation.   Every  action, and  even gesture
of  the patient,  should  be  sedulously watched; and he
should be  drawn  into  conversation  at  different  times,
that may  insensibly lead him to develope the false impres-
sions 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 produce
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
former 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 un-
acquainted  with  his  peculiar opinions,  he  may  be  easily
deceived; because, wTanting this information, he  will have
no clue to  direct his inquiries, and madmen do not  always
nor immediately intrude their  incoherent notions.   They
 have  sometimes such a high degree of control  over their
minds, that when they have any particular purpose to carry,
 they •will affect to renounce those opinions which  shall have
 been  judged inconsistent; and it is well known that they have
 often  dissembled their resentment, until a favorable opportunity
 has occurred of gratifying their revenge."\

   * Percival's Medical Ethics, p. 214.
   t Haslam on Madness, pp. 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 maybe of so short a dura-
 tion as a few hours, or a day, or more; and yet,  as the paroxysm uniformly
 returns, it is obviously the continuation of the same morbid action.  Do we  <
 not admit that fevers have perfect intermissions ? But do we pronounce the
 patient, therefore, freed from his insanity ?  Thomas Willis describes 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' Commentaries on Insanity, p. 280.)
   In conformity to the above, are the observations of Dr. Ray.  The lucid in-
 tervals in insanity, he observes, are with great justice resembled to the inter-
 missions in intermittent fever, or the periods between the attacks of epileptic 
760                 MENTAL  ALIENATION.
      Lord Thurlow has also, with great clearness, stated  what

   should be the state present to constitute an actual lucid interval.

   " By a perfect interval,"  says he, " I do not  mean a cooler

   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

   competence at  the period  when the act  was done, and to

   which the lucid  interval refers, and it is certainly of equal

   importance that the evidence  in support of the allegation of

   a lucid interval,  after derangement at any  period has been

   established, should be as strong and demonstrative of such

   fact,  as where the object  of the  proof is to  establish  de-

   rangement.   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.*


   fits.  The patient still labors  under the disease, although the leading symptom
   is for  the time absent.  He therefore condemns the too broad assertion of Dr.
   Haslam.  During these periods of apparent reason, there is a weakness of
   mind remaining, or what Dr. Combe styles an irritability of the brain.  As to
   the commission of crime during the  lucid  interval,  Dr. Ray remarks,  that
   crimes are generally the result of momentary excitement, produced by sudden
   provocations.  These provocations  put an end to the temporary cure, by im-
   mediately reproducing that pathological  condition of the brain, called irrita-
   tion;  and this irritation is the essential cause of mental derangement, which
/   absolves from all the legal consequences of crime.  The conclusion from this
   is, that we ought never, perhaps, to convict for a crime committed during the
   lucid interval.  The difference between a person in the lucid  interval,  and
   one who has never been insane, is,  that while in the  latter the passions are
   excited to the highest degree of which they are capable in a state of health,
   though still more or less under his control; they produce  in the  former, a
   pathological change, which deprives him of every thing like moral liberty.
   (Ray's Med.  Jurisp. of Insanity, chap. 14. American Jurist, vol. 18, p. 390.)
    Orfila says, (Lecons, 3d edit., vol. 1,  p. 481,) that in maniacs alone are there
,  intervals of reason, and these are frequently very regular, daily, weekly, or
  monthly.  Monomania has them not.  The patient is cured,  when the influ-
   ence of the ruling idea is overcome.
    *  Brown's Chancery  Cases, vol. 3, pp.  443, 444.  The Attorney-General v.
  Parnther. Lord Eldon has, however,  intimated his disagreement from Lord
  Thurlow's proposition.  (Exparte Holyland, Vesey's Reports, vol. 11, p. 10.)
  And in a late (July 20,1822) trial 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-General v. Parnther.)  The noble lord was
   of opinion, that if the existence of insanity was  once established, the evi- 
MENTAL  ALIENATION.
761
   On  the  other hand, somewhat differing  from the above

opinions, Sir John Nicholl in a late decision, observes, " nor

am I able  exactly to understand what is meant  by a 'lucid

interval,' if it does not take place when no symptom of de-

lusion can  be  called  forth  at the  time.  How  but by the

manifestation of the delusion, is the  insanity proved  to exist

at  any one time.   The  disorder  may not be permanently

and altogether eradicated—it may only intermit—it may be

liable to return, but if the mind  is apparently rational upon

all subjects, and no symptoms of delusion can be called forth


dence of a lucid interval ought to 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 sufficiency of
mind and understanding, and with the greatest ability.  Now if Providence
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 required 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 per-
formance of which a person of ordinary intelligence is  competent?'  His
lordship observed, upon the case of Mr. Cogland: He was a person who lived
in Prince's street,  Oxford road;  and a fire happening in  his house, he was
taken out of a two pair of stairs window.  It had such an effect upon him,
that he became insane.  He afterwards  made his will in a house  kept by a
person who had the care of lunatics.  His will was precisely according to
what he had previously told Mr. Winter,  the bank solicitor, he had intended
to make.  He had stated to him what provisions he had  made, and what he
intended to make, and his will was in conformity with  what he had so stated
of his ideas of justice.  The will was contested, on the ground that it was not
made during a  lucid interval; but the delegates were of opinion,  that as it
was a will effecting the very purposes he  had before expressed, it was a good
will.  For these reasons, he could not agree  in the doctrine of Lord Thur-
low."
  In the matter of Parkinson, a lunatic.  (Albion newspaper of  the 7th of
Sept., 1S22,  extracted from an English paper.)  In the course of the plead-
ings, it was mentioned that Dr. Powell, an eminent physician in London, and
for many years secretary to the commissioners for licensing mad-houses, held
there was no such thing as a lucid  interval, (in the ordinary acceptation of
the term, I presume.)  Dr. Powell probably holds the same opinion that Dr.
Haslam does.
  " Hoffbauer, after stating that during a  lucid interval, a lunatic ought to be
held responsible for his  actions, and to be esteemed able  to make  legal con-
tracts, observes, ' that we must not act too  strictly upon this opinion, although
it is generally  correct;  for however  a lunatic maybe 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
endanger 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  present 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."—Dahwall.

                       49 
762                MENTAL ALIENATION.
on  any  subject,  the disorder is for that time absent, there
is then an interval, if there be any such as a lucid interval.
It may often be difficult to prove a lucid interval, because it
is difficult to ascertain the total absence of delusion."*
  Such then is the construction attached to the term  lucid
interval 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 understand-
ing as will  make the individual accountable for his actions.
It is allowed by all  commentators " that the line which di-
vides  them  is  invisible, and cannot be  defined; yet one or
other  of these  states must  be collected  from  the circum-
stances of  each particular case, duly to be weighed by the
judge  and jury."!  Sir Vicary Gibbs, when attorney-gene-
ral of  England, and trying Bellingham for the murder of the
Hon. Spencer Percival,  used the following language :   " A
man may be deranged  in  his  mind—his intellects  may be
insufficient for enabling  him to conduct the common affairs of
life, such as disposing of his property, or judging of the claims
which his respective relations 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

  * 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 before 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 de-
manded of his insanity at the precise moment when the act was committed,
yet there being no reason for  believing him to have  been at that period, a
rational and accountable being, he ought to be acquitted; and the jury
accordingly acquitted him. (Ibid. vol. 1, p. 488.)
  Hadfield shot at the King on the persuasion of Truelock, a maniac, who
prophesied that the Messiah should proceed from his mouth, and told Hadfield
that the only obstacle was the King, and who must first be despatched. They
both became tenants of Bedlam for life.  Hadfield was still alive in 1823, and
may be at present. At the time now referred to, he did not evince any symp-
toms of insanity, but his impatience 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.) 
MENTAL ALIENATION.
763
same time, such a man is not discharged from his responsi-
bility 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 incapable of conducting
his own affairs, he may still  be answerable for his criminal
acts, if he possess a mind capable of distinguishing right from
wrong."*
   Lord Chief Justice Mansfield, in his charge to the jury on
the same trial, observed that " there were various  species of
insanity. Some human beings were void of all power of 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 wrould  be, to all intents
and  purposes,  amenable  to  justice.  So long as they could
distinguish good from evil, so long would they be answer-
able for their conduct.   There was a third species of insanity,
in which the patient fancied the existence of injury, and
sought  an opportunity of gratifying revenge by some hostile
act.   If such a person were capable, in  other respects, of
distinguishing right from wrong,  there was  no excuse for
any  act of atrocity which he might  commit  under this de-
scription of derangement."!
   Sir John Nicholl, in the  case of Dew v.  Clark, which I
shall hereafter notice,  takes the following distinction be-
tween the responsibility of lunatics in civil and criminal cases:
"The true criterionin 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
  * Collinson on Lunacy, vol. 1, p. 657.
  t 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
doc or a cat, that he killed.  Dr.  Sims on the contrary asserts, that no mad-
man ever made this mistake.   (Memoirs Medical Society of London, vol. 5,
p. 372.) 
764
MENTAL  ALIENATION.
  which,  neither argument or proof can convince them,  they
  are of unsound mind, or as one of the counsel has accurately
  expressed it,  ' it is only  the  belief  of facts,  which  no
  rational person would have believed, that is insane delusion.'
  This delusion  may sometimes exist in one or two particular
  subjects,  though generally there  are   other  concomitant
  circumstances,  such  as  eccentricity, irritability,  violence,
  suspicion, exaggeration, inconsistency, and other marks and
  symptoms which  may tend  to confirm the existence of de-
  lusion,  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 re-
  sponsibility, 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
  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'?  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.*
    * 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 remem-
  brance of these acts.  Certainly such could not judge of what was right or
  wrong.
    The observations of Dr. Mittermaier, a German jurist, are of considerable
  interest on this point. I derive them from an analysis of his work on the
  Influence of Insanity on Criminal Responsibility, (in the American Jurist,
  vol. 22, p. 311,) by Dr. Ray.
    Two conditions are, according to Dr. M., required, to constitute that free-
\  dom of the will which is essential to responsibility, viz., a knowledge of good 
MENTAL  ALIENATION.
765
   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

knowing what  he  did, and of judging  the consequences  of

his  actions.  He had harbored  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 unanimous verdict  of guilty was found,

and the Earl was executed.*


and evil, and the faculty of choosing between them.  This knowledge of good
and evil requires, first, that knowledge of one's self by which he recognizes
his personal identity and refers his acts  to himself; second, a  knowledge of
the act itself, i. e., of its nature ahd consequences; third, a knowledge of the
relations of the act both in regard to men and measures ; fourth, a knowledge
that the act in question is prohibited either by the moral or the statute law.
He rebukes the English jurists for  their rigid adherence to the antiquated
doctrine, that whoever can distinguish good from evil enjoys freedom of will,  >
and retains the faculty, if he please to use it, of conforming his actions to  '
the requirements of law.  " The true principle (he observes) is  to look at the
personal character of the individual where responsibility is in question, to
the grade of his mental powers, to the notions by which he is  governed, to
his views of things, and finally to the course of his whole life, and the nature
of the act with which he is charged.  A person who commits a criminal act, \
may be perfectly well acquainted with the laws and their  prohibitions, and  ';
yet labor under alienation  of mind.  He may know that homicide is punished
with death, and yet have no freedom of will."
  In the same spirit  are the following remarks: " It appears to us that the
true test for irresponsibility should  be, not whether the individual knew that
what he was doing was criminal, but whether he had sufficient power of con-
trol to  govern his actions.   It might fairly be asked, how is such a test to be
applied, so as to ensure protection to society and prevent  injustice to  those
laboring under mental disease ? We  can only reply, that we must judge from
circumstances,  a practice  now daily followed  in the determination of the
shades  of guilt, by which murder passes into manslaughter.  The sole differ-
ence between these two crimes  rests, in a large number  of instances,  upon
the power of self-control in the accused party."  (British and Foreign Med.
Review, vol. 10, p. 140.)
  * Hargrave's State Trials, vol. 10, p. 478.   Lord Campbell  (Lives of the
Lord Chancellors, vol. 5, p. 195,) makes the following remarks  on  this case:
" Were such a case now to come before a jury, there would probably be  an
acquittal on the ground of insanity ; although the noble culprit was actuated
by deep malice towards the deceased, although he had contrived the opportu-
nity of satiating his vengeance with much premeditation and art, and although
the steps which he afterwards  took showed  that he was fully sensible of the
magnitude and the consequences of his crime."
  Charles Yorke was Solicitor-General at  this  time, and along with Pratt, 
766                MENTAL ALIENATION.
   Edward Arnold  was  indicted for maliciously  shooting
 at Lord  Onslow.  He had  for  years harbored an  idea that
 Lord Onslow was an enemy to him, and in consequence had
 formed a regular, steady design to murder him, and had pre-
 pared 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.*
   Again, in Rex v. Offord, who was tried at the Bury Assizes,
 (1831,) before Lord Chief Baron  Lyndhurst for murder, by
 shooting with a gun  ; the defence was insanity.   It appeared
 that the prisoner labored 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
 dealings  or  acquaintance of any kind.   In his waistcoat
 pocket a paper was found, headed " List of Hadleigh Con-
 spirators 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  labored under that species of insanity
 which is called  monomania, and that he committed the act
 while under the  influence of that disorder, and might not be
 aware that, in firing the gun, his act involved  the crime of
 murder.
   Lord Lyndhurst told the jury, that they must be satisfied,
 before  they  could  acquit the  prisoner  on  the  ground  of

 Attorney-General (afterwards Lord Camden) was  the public prosecutor.
 Lord Campbell says  (vol.  5. p. 398): " The Solicitor-General's reply on this
 occasion was one of the finest forensic displays in our language, containing,
 along with touching eloquence,  fine philosophical reasoning on mental dis-
 eases and moral responsibility.   ' In some sense,' said he, ' every violation of
 duty proceeds from insanity.  All cruelty, all  brutality, all  revenge, all in-
justice, is insanity.  There were philosophers in ancient times, who held this
 opinion as a strict maxim  of their sect; and, my lords, the opinion is right in
 philosophy, but dangerous in judicature.  It may have a useful and a noble
 influence to regulate  the conduct of men to control their impotent passions,
 to teach them that virtue is the perfection of reason,  as reason  itself is the
 perfection of human nature, but not to extenuate crimes, nor to excuse those
 punishments which the law adjudges to be their due.' "
  * Collinson on Lunacy,  vol. 1, p. 476. 
MENTAL ALIENATION.
767
insanity3 that he did not know, when he committed the act,
what  the  effect of it, if fatal, would be, with reference to
the crime of murder.  The question was, did he know that
he was committing an  offence against the laws of God and
nature 1   His lordship  referred to the doctrine laid down in
Bellingham's case by Sir James Mansfield, and expressed his
complete accordance in  the observation of that learned judge.
The jury acquitted the prisoner on the ground of insanity.*
  Lord Erskine, in his famous speech on the trial of Had-
field, proposed the following distinction :   To absolve from
criminal  responsibility, there  must first  be  delusion,  and
secondly, the delusion and the act must be connected.   Valu-
able as is this  suggestion, yet it must be  understood, that
there  are cases in which  no connexion of this  description
can be shown, and indeed from the nature  of the disease, it
is often  impracticable  to prove it.  We  may be satisfied as
to the insanity (partial or  total) and yet not be able to trace
its union with the act that constitutes the subject of investi-
gation.   The  difficulty is  increased  when we take  into
account the form of insanity which most commonly leads to
the perpetration of acts  of homicide.  It  is that of melan-
 choly, where the mind broods  often in silence over a single
idea, and that  idea may be his own destruction, or the de-
 struction 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 conception, and cannot be
 persuaded that insanity exists without turbulent expression,
 extravagant gesture, or fantastic decoration."
   What can  be more  alike than the anger of the sane and -
 the insane?  What a similitude between the maniac and the
 habitually passionate,  between the melancholic and him who
 habitually broods over his malignant and revengeful concep-
 tions.!   In fine, if madness were not stamped on its front,

   * Carrington and Payne's Reports, vol. 5, p. 168.
•   f In speaking of Carlos, son of Philip of Spain, Sir James Macintosh re-
 marks, " The clouds which always darkened his feeble reason might some- 
768
MENTAL ALIENATION.
would not the following be ranked among  the foulest and
most deliberate  murders ?   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 con-
fined 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 threatened him, and
by an affectation of repentance,  prevailed on him to release
me.   For several days I paid him great attention, and lent
him  every assistance.   He  seemed much  pleased with the
flattery, and  became very friendly in his behavior  towards
me.   Going one  day into the kitchen, where his wife was
busied,  I  saw a knife; (this was  too great a temptation to
be resisted,) I concealed it, and  carried it about me.  For
some time afterwards  the  same  friendly intercourse  was
maintained between us, but  as he was one day unlocking his
garden-door, I seized the opportunity, and plunged the knife
up to the  hilt in his back."*
  It  is from long continued and  anxious  reflection  on  the
difficulties which  thus present themselves to the considera-
tion  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
times quench it.  The subtle and shifting transformations of wild passion into
maniacal  disease, the return of the maniac to the scarcely more healthy
state  of stupid anger, and the character  to be given to acts done by him
when near the varying frontier which separates lunacy from malignity, are
matters which have defied all the experience and sagacity of the world."
(History of England, vol. 3, p. 36.)
  * Haslam on Madness, p. 169. 
MENTAL ALIENATION.
769
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 Com-
mentators  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  effecting all
this, it  is very  necessary that the  medical witness should
have every facility allowed  him for studying the nature of
the  case, and that its history should be well ascertained.
Need I add that juries should be carefully instructed as to
this particular form of insanity.
   " Whether it  should be added to the description,"  says
Baron Hume, " that  he  must have lost all knowledge of
good and  evil,  right and wrong;  this  is a more  delicate
question, and fit perhaps to  be resolved differently accord-
ing  to  the sense in which it is understood.  If it be put in
this sense, in a  case,  for instance of murder: did the panel
(prisoner) know that murder was a crime ? Would he  have
answered on the question that it was wrong to  kill a neigh-
bor?  This is hardly to  be  reputed  a just criterion of such
a state  of soundness, as  ought to  make a man  accountable
in law for his actions.  Because it may happen, a person to
answer in  this  way, who yet is so absolutely mad, as to
have lost all true  observation of facts, all understanding of
the  good or evil intentions  of those who are about him, or
even the knowledge of their persons.   But if  the question
be  put  in this other and more special sense, as relative to
the very act done  by  the panel,  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 it1?
Was he impressed with the  consciousness of guilt  and fear
of punishment 1  It is then a pertinent and material question,
but  which  cannot to any substantial purpose be answered, 
770
MENTAL ALIENATION.
without taking into consideration the  whole circumstances
of the situation.   Every judgment in the matter of right and
wrong, supposes a case or state of facts to which it applies,
and though the  panel 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,  c absurda  et tristia  sibi  dicens  atque fingens,' these
remains of intellect are thus of no use to  him  towards the
government of his actions, nor  in any way  enable him to
form a judgment upon any particular situation, or  conjunc-
ture, 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 complex and appropriated sense, as
relative to the thing  done  and  the situation of the panel's
feelings and consciousness on that occasion, that this inquiry
concerning his intelligence of moral good and evil is mate-
rial, 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 panel  understands perfectly  the  distinction of right
and wrong, yet  if he labors, 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 conduct,  he  is in that state of mental  aliena-
tion which renders  him not criminally answerable  for his
actions."!
  In this fluctuation of legal opinion (if  I may so style it)
and certainly of practice, occurred the death of Mr. Drum-
mond,  in  London,  by a  pistol  shot  inflicted  by  Daniel
McNaughton, on the 20th January, 1843.  The  crime was
readily proved,  but  it was  shown on the trial, that the pri-
  * Hume's Commentaries, vol. l,pp. 24, 25.
  t Alison's Principles of the Criminal Law of Scotland, pp. 645. 
MENTAL ALIENATION.
771
soner had labored for some time, under manifest symptoms
of insanity.  He was now declared to be insane by the tes-
timony  of nine medical witnesses.   The Chief  Justice
(Tindal) stopped the case, declined to hear the  summing up
of the prosecuting counsel,  and directed the jury to bring
in a verdict of not guilty on the plea of insanity.
  There were circumstances about the case, which produced
intense excitement throughout the length and breadth of the
land.  McNaughton intended to kill  Sir Robert Peel for a
fancied  injury, and mistook Drummond for the latter.  There
were also many appearances of cool  premeditation about
the  transaction  wThich naturally excited men's minds  in a
high degree.  The House of Lords partook of  this feeling.
Their deliberations resulted in putting various  questions on
the "Plea of Insanity to the fifteen judges."   An abstract
of their answers is given below.
   The answers were read in the name of all the judges, ex-
cepting  one,  (Mr. Justice Maule) by  Lord Chief Justice
Tindal, on the 19th June, 1843.
   Question I. What is  the  law respecting alleged crimes
committed by persons afflicted with insane delusion, in re-
spect of one or more particular subjects or persons : as for
instance,  where at the time of the commission of the alleged
crime the accused knew he was acting contrary to law, but
did  the act complained of with the view, under  the influence
 of some  insane delusion,  of redressing or avenging  some
 supposed grievance or injury, or of producing some sup-
 posed public benefit'?
   Answer. The opinion of the judges was that notwithstand-
 ing  the party committed a wrong act, while laboring under
 the  idea  that he was redressing a supposed grievance or in-
 jury, or  under  the  impression of obtaining some public or
 private benefit,  he was liable to punishment.
   Q. II. What are the proper questions to be  submitted to
 the  jury, when a person alleged to be afflicted with insane
 delusion, respecting one or more particular subjects or per-
 sons is charged with the commission of a crime, murder for
 example, and insanity is set up as a defence'? 
772
MENTAL ALIENATION.
    A. The jury ought in all cases to be told that every man
  should be considered of sane mind until the contrary were
  clearly proved in evidence.  That before a plea of insanity
  should be allowed, undoubted evidence ought to be adduced
  that the accused was of diseased mind, and that at the time
(  he committed the act he was not conscious of right or
  wrong.   This opinion related to every case in which a party
  was charged with an illegal act, and a plea of  insanity was
  set up.  Every person was supposed to know what the law
  was, and therefore nothing could justify a wrong act except
  it was clearly proved that the party did not know right from
  wrong.  If that was not  satisfactorily proved, the accused
  was liable to punishment; and it was the duty  of  the judge
  so to tell the jury when summing up the evidence,  accompa-
  nied by those remarks and  observations which the nature
  and peculiarities of each case might suggest and require.
    Q. III. In what terms  ought the question to be left to
  the jury as to the prisoner's state of mind at the time when
  the act was committed 1
    No answer was returned to this question.
    Q. IV. If a person, under  an insane delusion as to  exist-
  ing facts, commits an offence in consequence thereof, is  he
  thereby  excused'?
    A. If the delusion were only partial, the party accused
  was equally liable with a person of sane mind. If the ac-
  cused killed another in self-defence, he would be entitled to
  an acquittal; but if the  crime  were  committed for any
  supposed injury, he would then be liable to the punishment
  awarded by the laws to his crime.
    Q. V. Can a medical man, conversant with the  disease of
  insanity, who never saw the  prisoner previously to the trial,
  but who was present during the whole trial and examination
  of all the witnesses, be asked his opinion as to the state of
  the prisoner's mind at  the  time of the commission  of the
  alleged  crime,  or his opinion whether the prisoner was
  conscious,  at the time of doing the act, that he was  acting
  contrary to law ? or whether he was laboring under any, and
  what delusion at the time ? 
MENTAL ALIENATION.
773
  A. The question could not be put in the precise form sta-

ted above, for by doing so it would be assumed that the facts

had been proved.   When the  facts were proved and admit-

ted, then the question, as one of science, would be generally

put  to  a witness under the circumstances stated in the in-

terrogatory.

  Mr.  Justice  Maule  agreed with the judges in respect to

the answers returned to all the questions excepting the last;

from this he entirely dissented.  In his opinion, such ques-

tions might be at once put to medical men without reference

to the  facts proved;  and he  considered that this had been

done, and the legality of the practice thereby confirmed on

the trial of  McNaughton.*

  In the  discussions, both  previous  and subsequent  to the

publication of the above opinions, the principal objection is

made to retaining the doctrine of ability of judging between

right and wrong.

  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 in-

tricate in its nature, its symptoms are so liable to be mista-

ken, that the  hazard is too  great to punish an indivdual in

whom  we  have  once  recognized  its  existence, merely be-

  * British and Foreign Medical Review, vol. 16, p. 273.  The opinions of
the judges are reported in full in Clark and Furnelly's House of Lords Re-
ports, vol. 10, p. 200.  The trial of McNaughton (also published separately)
is given in Townsend's Modern State Trials, vol. 1, p. 314.
  The legal  reader will readily perceive the difference between the English
and Scotch opinions on this subject.  Sir James Mansfield held that Belling-
ham was accountable, because he knew murder was a crime, and could distin-
guish right from wrong.  " On this case," says Mr. Alison, " it may be ob-
served, 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 received, they would have
furnished no excuse for the shedding of blood; but on the other hand such
an illusion as  deprives  the panel 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 Hadfield, than  in this instance."  (Edin-
burgh Law Journal, vol. 1, p. 524.)  It is the opinion of many physicians in
England, that  Bellingham was insane when he murdered Mr. Percival.
  " On that day week," (referring  to the period of the murder,) says Lord
Brougham, " Bellingham having been tried and convicted, was executed, to
the eternal disgrace of the court which tried him, and refused an applica-
tion for delay, grounded on a representation, that were time given, evidence
of his insanity could be  obtained from Liverpool, where he resided and was
known." 
774
MENTAL ALIENATION.
cause 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, can  only be inferred
from conversation  and  conduct 1   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, wThat are we to think of making distinc-
tions, as if all were clear, between partial and total insanity,
and  drawing the  line of responsibility with perfect confi-
dence ?   We humbly  but  earnestly suggest, that instead of
deciding for responsibility 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 con-
finement, than  to  run the risk of putting to death an irre-
sponsible 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 definition 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 law, and the whole
value of a witness's evidence is often made to turn on  its
relation to a standard, which is in itself the merest assump-
tion. It would be a safer rule for courts of law to direct
their attention  to the  proof generally of diseased manifesta-
tions 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
extended to youth, to seduction, even to great provocation, 
MENTAL ALIENATION.
775
how much more ought it to shelter disease of the mind when
clearly established 1   If it be true, and no physician denies
it, that to diseases of the inflammatory class it is impossible
to prescribe  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 the brain,  a usual cause of insanity, has
known boundaries, and  shall not suddenly extend from par-
tial to produce total insanity 1  We feel assured that no one
conversant with insanity will deny the fact, that the insane,
however partially, are not safe from sudden paroxysms and
aggravations of symptoms."*
   In applying this argument, cases are adduced which it will
be useful to  review.   Out of a great multitude, I will prin-
cipally 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 deter-
mined 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 impulse to shed blood had taken irre-
 sistible 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,  condemned, and executed in the
 county of Surrey, (England,) in 1819.  " The  act, itself a
 sufficient  proof  of insanity,  was  strengthened by  insane
   * " Observations on the degree of knowledge yet applied to the plea of In-
 sanity, in trials for crimes."  (Edinburgh Law Journal, vol. 1, p. 542.)
   The  paper from which this is a quotation, was written  by James Simpson,
 Esq., of Edinburgh, and is republished in the appendix to his work on Popu-
 lar Education.
   I add another observation by the same author, but have mislaid the refer-
 ence :  " There is so much evil in the very risk, that man's vengeance should
 follow  God's visitation, that all cases of crime or violence, in which previous
 mental disease is unequivocally proved, should have the whole benefit of the
 presumption, that such a case may in a moment run into irresponsible mania,
 and the unhappy patient judged fit for confinement and not for punishment." 
776
MENTAL ALIENATION.
notions and actions, and  absolute  raving  even on the scaf-
fold."*
   John Howison,  aged  45  years,  a  sturdy  beggar,  but
formerly a  hawker of small wares, was tried  before the
High  Court  of Justiciary in Scotland, December 31, 1831,
for the murder of the widow Geddes, on the 2d of the same
month.   For a fortnight  before  the fatal  act, he was wan-
dering round the country, and  no evidence of the  state  of
his mind during that time was obtained before the trial.   He
entered the  village where Mrs. Geddes (and who was an
aged woman) resided, with a black handkerchief covering
the lower part of his face, (which it was his constant practice
so to wear,)  a stick in  his hand and a book hanging from
his wrist.   He asked alms  from  several persons, without
success ;  was seen  to enter the cottage, and in a very brief
space  to come out again  hurriedly, shut the  door after him,
and run  from the  village, quickening his  pace  when  he
thought himself observed.  One witness heard the sound of
a blow, when Howison was  in the  cottage.  He  had mur-
dered  her by striking on  the  head  with the sharp edge of a
spade, and thus dividing it nearly in two.
  * 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 homi-
cidal 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 acting and suffering.  Thus in Denmark,
during  the middle  of the last century, a large number of individuals were
found, who imagined that  by committing premeditated murder, and being
afterwards condemned to die, they would be the better able, by public marks
of repentance and conversion as they went to  the scaffold, to prepare them-
selves for death and work out their salvation.  They generally selected chil-
dren, to avoid sending any one out of the world in an unprepared state.
Capital punishment 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 labor in  the House of Correction. Every year, on
the day of their crime, they were to be publicly whipped. (Quarterly Review,
vol. 12,  p 219.  London Magazine, 1768.)
  I need hardly mention the frequency of suicide, resulting directly as  a
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 consequences, and the freedom of our institu-
tions, 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. 
MENTAL ALIENATION.
777
  He was apprehended  the  next day,  some two  or three
miles from the place, and when taken, denied all knowledge
of the murder, and said he had come from Glasgow.  It did
not appear that  he  had taken  a single article  from the
cottage, although there was some money open in a cup.
  Howison was  visited by Dr.  Spens and  Mr. Watson
several times before the trial, but they could discover no
indications  of insanity—no  hallucination—no disorder  of
intellect.   He appeared, 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 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 per-
son, 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
generally filthy.   After  this, he  would eat two  or three
pence  worth of bread.   He habitually wounded his hands,
wrists and arms  with needles and pins; and if he went to
bed without his weapons, he rose and procured them.  In
this state, he would sally forth,  brandishing  a stick  and
playing extravagant  tricks,  till  the  neighbors 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.
                    50 
778
MENTAL ALIENATION.
   He had  taken a fancy to become a Quaker some weeks
before the  murder, and attended the meetings, but paid no
respect to  the worship, muttered to himself, and pricked his
body with  pins and needles.  On one occasion he violently
demanded  instant 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 feel-
ing in his head.
   For the defence, Drs. Mackintosh, Scott and Alison, were
witnesses.   Some of them do not appear  to have examined
the prisoner ;  but from the testimony adduced, they agreed
in opinion, that  as  there was  every indication of previous
insanity while a  lodger with the witness already noticed,
there was  probably in this case a  morbid determination to
acts of violence.   The 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 cunning evinced, with the  subsequent denial, were as-
serted to be altogether consistent  with insanity.   The ab-
sence 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  un-
provoked and boisterous acts of violence, immediately pre-
vious 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
interest in  France, the country  where it occurred.

  * 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 cler-'
gyman, no indications of insanity were discovered in his conduct. 
MENTAL ALIENATION.
779
  Louis Papavoine was born at Mouy, Department of the
Eure, in 1784.  His father was a woollen manufacturer, and
gave his son  a liberal education.  At an early age, he was
destined for the employment of a clerk, and accordingly, in
1804, was received as an extraordinary one in the navy de-
partment.  He rose  gradually, through good conduct and
attention to business,  to the office of first clerk at the port
of Brest.  Although very faithful, yet he was observed to be
unsociable and melancholic—much addicted to solitary walks
in unfrequented places.  He had no confidant—but in ordi-
nary conversation, his ideas were correct and sensible. One
of his fellow clerks deposed, that during the last year of his
clerkship, Papavoine complained that an individual appear-
ed  to pursue him in his sleep, and threatened to  kill him,
but that when he awoke he saw no one.  This condition of
mind continued for  ten days, after which  nothing remark-
able was observed.
  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 dismis-
sion.  Difficulties, however, soon occurred.   The manufac-
tory had been in the habit of furnishing  clothing for the
troops, and notice was received that the contract would not
be renewed.   The pecuniary situation of the family became
in consequence very critical.
  Papavoine  now seemed to repent having quitted his em-
ployment,  and made some  fruitless attempts to recover it.
Their failure seemed to aggravate the  severity of his tem-
per and the gloominess of his appearance.  He one day ap-
peared before his  mother and addressed her,  saying,  " Mo-
ther, my father is not  dead.  I have the proof in this paper.
They sometimes bury  persons who are  alive." Alarmed at
this, she  appears to have  avoided taking her  meals with
him, although she continued residing under  the same roof.
  In this state of things, at the end of Sept. 1824,  Papa-
voine complained of  illness.  A physician  who was con-
sulted, found some symptoms  of fever. He prescribed an
emetic with good success, and further directed exercise, and 
780               MENTAL ALIENATION.
particularly an excursion.  P. complied,  and proceeded to
Beauvais, where he had relatives and some commercial con-
nexions. His misanthropy did not, however, desert him here ;
he was habitually taciturn and sad, although his conversa-
tion, when  he indulged in it,  was correct.  The only pecu-
liarity noticed was a question to his relative, whether his
father and brother were really dead.  " I  have a paper here
(said  he) which contradicts 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 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 completing the necessary formalities of his contract.
From this day until the 10th, he appears  to have kept him-
self very retired—at least he  was not noticed by any one.
At the time last  mentioned,  after taking  a slight repast, he
directed his steps to the Forest of Vincennes.
  In this place, a female was walking with her two boys,
one  aged five, and the other six years  of  age.  A young
woman, also walking, noticed the  children, and requested
permission  to caress them.  Papavoine at this instant pass-
ed by them, took off his hat, bowed, and proceeded on.   The
young woman also pursued her walk.  She was encountered
by P., who  addressed  her : " Do you know whose children
you were  caressing?"   She replied,  "We  may  caress
children, although we do not know whose they are."  He
abruptly left her, and appears to  have gone immediately in-
to an adjacent shop,  where  he  inquired for a case knife. 
MENTAL ALIENATION.
781
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 children, as if  to embrace it, plunged his knife  into
its  breast.  Alarmed  with its shriek, though ignorant of
the cause, she struck him with an umbrella which she had
in her hand.  He did not heed this, but immediately struck
the second  in an equally fatal  manner.   Both died almost
instantly.   Papavoine escaped into the wood; nor was it
until  some  hours  had elapsed, that  he  was arrested  by a
gendarme.   He had, a few minutes previous, emerged  near
where a soldier was walking, of whom, after examining his
clothes, he inquired whether they were not soiled.   He also
asked the way out of the  forest.  He was identified by the
mother, and gave up his name.
  On his examination,  he denied having committed the crime,
and persisted in this  for upwards of a month; at the end
of which period, he declared that he  had some important
disclosures  to make.,  but could divulge them only to two
royal princesses.  His application to see them was refused;
and he then  declared that  he had committed a mistake  in
 murdering these children, having intended to destroy those
of the Duke de Berri.  (The Duke had been  assassinated
previous to this.)
  This audacious statement was considered as an artifice, to
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 pre-
 vented 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." 
782
MENTAL ALIENATION.
 He was tried on the 25th of February, 1825, on two indict-
 ments—for murder, and for an attempt to kill.
   At the bar, he was calm, though his countenance bore the
 marks of sadness.  On being interrogated, he confessed the
 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.
 Laboring under insanity, he committed the act; but its exe-
 cution being completed, he became conscious of its enormi-
 ty, and endeavored 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 confine-
 ment and by bad treatment.  The  keeper of the prison de-
 posed that Papavoine was sometimes in a most fearful fury ;
 his hair literally bristled—he had never seen a person's hair
 in such a state; his countenance was  highly inflamed, and
 he  actually frightened the soldiers who surrounded  him.
 Although believing at first that this  was intended as a de-
 ception, the witness had been finally constrained to  consider
 it as a real disease.
  The  public prosecutor, in his argument, endeavored  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
 adduced examples  from the history of  revolutionary France.
  M. Paillet, the advocate of the prisoner, dwelt  much on
 the evidence of his previous illness, as indicative of a dis-
 ordered state of mind.  His misfortunes, his  conversation
with his mother—with his relatives at Beauvais—his hallu-
cination concerning a person persecuting him and threatening
his life, and the apparent want of premeditation in the mur-
der, evidenced by the  rapidity of his actions, all were urged
in his  favor; and  the advocate expressed his decided con-
viction  that this was  a case of monomania without delirium, 
MENTAL ALIENATION.                 783
as described by Pinel, in which  the unfortunate subject is

often hurried to commit atrocious crimes, from the current

of ideas by which he is unwillingly haunted.   Such persons

often  take  strong aversion,  and even  hatred against  indi-

viduals  in  an instant, and without any assignable cause.

Thus parents have sometimes murdered their children, and

the wife her husband.  Might he not then, at the moment of

his several  crimes, have been laboring  under  the  access of

fury incident to this disease ?  Let him be confined, so as to

guard the public from further violence ; but do not  send him

to the scaffold.

   The jury,  after  retiring  for  half an hour, brought in a

verdict  of guilty on both  indictments.   He was condemned

to death, and executed on the 19th of March.*

   I might adduce a multitude of similar examples, differing

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 deci-

ded presumption of its continuance to the time in  question.

But my limits forbid, and  I will  hereafter  add additional

references  for those who may be desirous of pursuing the

subject.!


  * Causes CeTebres du dix-neuvieme siecle, vol. 1, pp. 203 to 290.
  t I decline entering at this time upon an analysis of the cases of Enford Mc-
Naughton, Abner Rogers, Baker, Freeman, the very recent one of Pate, in Lon-
don, for striking the Queen, and a multitude of others, for several reasons. The
analysis would occupy more  space than I can at present allot to it.  Again,
several of the cases referred to have produced great excitement in this coun-
try (and indeed also in England); men's feelings have become enlisted on one
or the other side, so that they can hardly tolerate a diversity of opinion.  But
above all, do I decline this, because,  as appears to me, each case of alleged
insanity would seem to be tried as  an individual one, without  establishing
or strengthening any great or leading principles.   In one instance, the judge
stops the trial; in another, the jury disregard his directions; now the testi-
mony of physicians is taken without comment, and the verdict is given accord-
ingly ;  then, again, the physician is  told that he is encroaching on the pro-
vince of the judge and jury.  In some instances, the doctrine of moral insa-
nity rules pre-eminent; in others, the English law, as it existed in the time
of Sir Matthew Hale, is the rule.
  Much of this discrepancy is owing to recent changes in the opinions of phy-
sicians, and I doubt not, also to the better knowledge of the various phases
of insanity.
   I hold it to be a high and imperative duty on the part of the medical superin-
tendents of lunatic asylums, to unite their best abilities in establishing some
certain rules by which  the precedent and actually existing symptoms of 
784                MENTAL  ALIENATION.
  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 exam-
ple, I may concede, was an extreme one, yet his is not to be
a rule for subsequent decisions.  In the same volume which
contains the narrative of his trial, is another, of an individual
guilty of the murder and robbery  of  his aunt, and yet, though
condemned, he received the royal mercy, on a representation
of his weak state of mind.   It is evidently impracticable to
lay down a rule of  exemption  on the ground of insanity,
when that insanity passes through so many varying shades,
(from the stupidity, for example, of Hoff bauer, to the raging
mania of authors,) that before we have 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 announced  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

insanity can be identified, and thus applied, not only for the detection of crime,
(if crime has actually been  committed) but what is of still greater impor-
tance, the security of the public.  They are the persons from whom the com-
munity in this country would take the law,  and their well known humanity
inclining them to  the side of mercy,  even in  cases scarcely doubtful,  would
be a guarantee of the mildness of their enactments.
  I may here add, that I intended in the  next edition of this work, to have
left out the chapter on Insanity, and make it, with a notice  of the Medical
Police of the same, the subject of a separate volume.   In doing this, I was
promised the co-operation and assistance of the late Dr. Brigham.  Differing
as I did  with him on several points, I was the more induced to hope that
together we might have done something that would have united the opinions
of the lawmaker and  the physician,  and thus avoided the repetition of those
wretched cases which almost annually distract the  community.   But, alas,
his labors are  ended; and the "lengthening shadows" admonish his friend
of the short space left for himself.
  *  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 patients.   She was a wife, and supposed her husband to
be unfaithful to her, which was probably the case.  She brooded over this, 
MENTAL ALIENATION.
785
justly observes, that no such disorder has been recognized
in the English courts of judicature, or is it even  in general
admitted  by English medical writers.  If however, such a
disease does exist, our legislators and judges should be ap-
prised of it.
   The idea of such a state was first advanced by Pinel, who
characterized it by  the name of manie sans delire^ and ob-
served, that persons laboring under it, appear to be governed
by a  sort of instinctive madness,  as  if the affections  alone
had suffered injury.   Esquirol, when he wrote his valuable
articles  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  character.*
   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 intreated  that she might be sent  out of the
house.   Her mistress astonished, inquired  the reason, and
learned that whenever this unhappy servant undressed the
little child which she nursed, she  was struck  with the
whiteness of its skin, and experienced the most irresistible
desire to tear it in pieces.  She felt afraid  that  she  could
not resist the desire, and  preferred to leave the house.
   " This  circumstance occurred about twenty years ago  in
the family  of M. Le Baron Humboldt, and  this  illustrious
person  permitted me to add his testimony.
   "A young lady whom  I examined in one  of the asylums
of the capital, experienced a violent inclination  to  commit

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 ?  If not, what  constituted  her insanity ?   This  case is
mentioned in the Quarterly Review, vol 41, p 180.
  * Note de Monomanie homicide, par M. Le Docteur Esquirol.  Pans, 1827. 
786               MENTAL  ALIENATION^.
homicide, 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 straight-waistcoat put on, and to be carefully guarded
until  the paroxysm, 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 Faubourg St. Antoine.  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  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  to-
gether 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 mur-
der was only felt; while in  others, as in mothers with their
young infants, the desire at last became irresistible and they
destroyed  them.   Nor  is this confined to  the  puerperal
period,  when we might 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 belonging 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 gayety and
vivacity, and remarkably fond of children.  In the month of
June,  1825, a  singular change occurred in her character.
She became silent, melancholy, absorbed in revery, and was

    Dr. Prichard, art. Soundness and Unsoundness of Mind, in Cyclopaedia
of Practical Medicine. 
MENTAL ALIENATION.               787
soon dismissed from her service.  She fell gradually into a
permanent stupor.  Her friends were alarmed, and suspected
that she was pregnant, which however was not the case, but
they could never obtain from her any account of the cause
of her dejection, though she was 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
employment 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 neighboring shop kept by
Dame Belon, to buy some cheese.  Henriette had frequently
gone to this shop, and when there always caressed a beauti-
ful  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 staircase with a large knife which she
took from the  kitchen, and stretching the child  across her
own bed, with one stroke cut off its  head.   This she placed
by the casement, and then put the body  on the floor near to
it.  All these proceedings occupied about a  quarter of an
hour;  and during this time, Henriette  remained perfectly
calm.  Dame Belon presently came  to seek for her child,
and called her from the bottom of  the stairs.  "What do
you want?" said the latter, advancing on the  corridor.  "I
come to seek my child."   "Your child is dead," replied
Henriette with perfect coolness.   The mother, alarmed,
became more earnest, and she again  pronounced the words,
" Your  child is dead."  As Belon forced her way into the
room,  Henriette took the  child's head from  the  casement
and threw it by the open window  into the street.   The
mother rushed  out of the  house struck  with horror.  An
alarm  was raised;  the  father of the child, and officers of 
788
MENTAL ALIENATION.
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 design, and the perfidy of her caresses,
which  had  persuaded the unhappy mother to entrust  to
her the child.   It was found impossible to excite in her
the slightest emotion  of remorse  or grief: to all that was
said, she replied with indifference, " I 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 Salpefriere.  There  she was
repeatedly inspected by the physicians, whose  last report
concludes, that from February  25, to June 3, they "  had dis-
covered merely  a dejection of mind, slowness in the mani-
festation of thought, and profound grief: secondly, that the
phenomena are explained by circumstances, and, therefore,
are no  proof of derangement;  and thirdly, that the opinion
as to her sanity is materially affected by facts  relating  to
her previous history. .  If the allegation is  proved, that long
previous to the committal, her habits, and her whole cha-
racter, were changed :  that she had become, at a particular
period, dejected, gloomy, taciturn, restless, prone to revery,
and had occasionally attempted suicide, it wrould 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 materi-
ally altered."
  On the  trial, M. Esquirol and  several  other physicians
were examined.   Their opinions leaned  generally  towards
the presence of  real  derangement.   The Advocate-General
treated the  existence of monomania as  a mere fancy, in-
vented for the purpose of paralysing  the hands of justice.
The jury brought in a verdict that  Henriette had committed 
MENTAL ALIENATION.              789
murder voluntarily, but without premeditation, and she was
condemned to perpetual imprisonment with hard labor, and
to be branded.   She heard the sentence without betraying
the least emotion.
   It is a  remark of Esquirol, that occasionally moral and
physrcal causes can be assigned for this disordered state.  In
two cases, it resulted from the change produced by puberty;
but  in many others  it seems  to  be founded on imitation.
The fatal propensities are excited by  the description of cri-
minal actions.   In several cases where our author  was con-
sulted, 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 in-
sane persons, have generally been preceded by other strik-
ing peculiarities 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 exe-
cuted as criminals :
   " 3. These  acts are without motive ; they are  in  oppo-
sition to the  known influences of all human motives.   A
man, known to be tenderly attached  to them, murders his
wife and children—a mother destroys her infant:
   " 4. The subsequent conduct  of the  unfortunate indivi-
dual, is generally characteristic of his state :  he  seeks no
escape  or flight—delivers himself up to justice—acknow-
ledges the crime laid to his charge—describes the state of
mind which led to its perpetration ; or he remains stupefied
and overcome by a horrible 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 
790               MENTAL ALIENATION.
commission—motives of self-interest, of revenge, display-
ing wickedness premeditated.   Premeditated are, in  some
instances, the acts of the madman :  but his premeditation is
peculiar and characteristic."*
  Dr. Ray has given some additional  characteristics,  {a)
The impulse  to destroy, is powerfully excited by the  sight
of murderous weapons, by favorable opportunities of accom-
plishing  the  act, by contradiction, disgust, or  some  other
equally trivial and even imaginary  circumstances,  {b) The
victims of  the homicidal maniac are  mostly, either entirely
unknown or indifferent  to  him, or they are among his most
loved and cherished objects, and it  is remarkable how often
they are children and  especially  his  own offspring,  (c)
While the  greater number deplore the terrible  propensity
by which they are controlled, and  beg to be subjected  to
restraint, a few diligently conceal it, or if they avow it, de-
clare their  murderous designs, and  form divers schemes for
putting them in  execution, testifying no  sentiment of re-
morse  or grief,  {d) The most of them having gratified their
propensity to kill, voluntarily confess the act, and quietly
give themselves up  to the proper  authorities;  a very few
only—and  these to an intelligent observer show the strong-
est  indications of insanity—fly, and persist in denying the
act.!
  Under this head of moral insanity, besides the  impulse  to
murder, there is also included a propensity to  break and
destroy whatever comes within reach of the invididual; " in
short,  an irresistible impulse to  commit  injury, or do mis-
chief of all kinds."  And this is observed in cases in which
it is impossible to discover any motive influencing the mind
of the  person who is the subject of it.  " No illusive belief,
for  example, can be  detected, that the lunatic is performing
a duty in perpetrating that which manifests his disease."J
  Many cases of suicide are also classed under  this  head.
In these  instances," there  is generally no particular illusion
impressed  on the understanding of  the self-destroyer,  but a
  *  Prichard ut antea.     X Ray's Med. Jurisp. of Insanity, p. 230.
  X  Prichard. 
MENTAL ALIENATION.
791
perversion of the strongest instinct of nature—self-preserva-

tion.    Again, the  propensity of setting  fire to houses or

public buildings, 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 motive.!

   The cases of Papavoine, Cornier and  others,  to which I

will hereafter refer, have excited  great interest on this sub-

ject in  France,  and  numerous  publications  have  been the

result.   In that  country,  Esquirol, Gall,  Broussais, Orfila,

Andral, Marc, Georget,  Michu and many others, have avow-

ed their belief in the various  forms  of  homicidal insanity

which  I have now described;  while in  England, Prichard

and Elliotson, and  I doubt not,  many others  are among the

supporters of the doctrine.   Dr.  Woodward,  the able phy-

sician of the  State  Lunatic Asylum of Massachusetts,  and

Dr.  Ray, have, in this country,  published  their  coincidence

with it.J

   On  the other hand, Regnault  and Collard de Martigny,

two advocates, have opposed it strongly in their writings.§

   The main scope  of their  argument is, that most of these

cases are only the evidence of depraved passions, and while


  * Jonathan Martin, who set fire to  York Minster, and in consequence
destroyed that splendid  and venerable relic of antiquity, does not belong to
this class.  He was undoubtedly a monomaniac, and stated that he was in-
spired 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.)
   f Lecons, vol. 2, p. 65, 2d edition. There is a curious case given in the
Annales D'Hygiene, vol. 3, p. 198, and styled Monomanie  trotique.  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 pri-
sons 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 incohe-
rence in language or reasoning, and nothing in his physical appearance.  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.
  X Fourth and Fifth Reports of tlm State  Lunatic Hospital at Worcester.
Ray's Medical Jurisprudence of Insanity.
   § Regnault, Du Digre de Competence  de Medecins, &rc, and JVouvelles
Reflexions sur la Monomanie, 8fc. 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 Liberti Morale. 
792
MENTAL ALIENATION.
they allow  that some are correctly styled maniacal, and
therefore do not bring these  into  controversy, they assert
that all countries have at various periods presented criminals
whose  actions in every respect resemble those of the homi-
cidal monomaniacs of the present day.   Nero and Tiberius,
Robespierre 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 is under  their  influence, yet on points not con-
nected 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
character.   Such persons may acquire  a passion for blood.
The desire to kill exceeds the desire to obey the laws.
  The  frequency of cruelty in children, the tournaments  of
former times, the gladiators  of Rome, the bull fights  of
Spain,  and  the fondness for  witnessing executions in all
civilized countries, are urged as proofs that this disposition
can be extensively and permanently encouraged.  Above all,
they object to the act itself being deemed the material proof
of the  presence of insanity.   Because  one  person murders
another without any assignable motive, is  the criminal by
consequence to be considered a maniac?
  The  authors whom I have quoted on the other side, adduce
a multitude of facts in favor 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 abo-
lished, why may  not the will ?•  Leuret,  in  his  reply to
Regnault, observes, that  there are instinctive  impulses,
which deprive a man of liberty, but not of conscience.   The
criminal  has conscience, liberty,  will; the  monomaniac,
conscience  without  liberty.   Thus some  will  withdraw 
MENTAL ALIENATION.
793
themselves, when they  feel  the disposition for committing

injury.   If this reasoning  be correct, can such a person be

held responsible for his actions, even if he knows what he is

doing?

   There  are,  however,  many  others, who go far beyond

these  experienced observers, and seem  disposed to include

all crime under the category of insanity.   Professor Fried-

reich  lays down  this dictum,  " Plus I'acte est atroce, plus  )

l'irresponsibilite devient probable."   A Review, in England,

important as the  organ of a  party  in political ethics, uses

these  words—" The  public  mind is awakened to the fact,

that all  crimes are the result of perversions of intellect, and

like other species of insanity deserve  to be treated with  more

of compassion than vengeance."  In Germany, the follow-

ing question has  been gravely discussed among its medical

jurists :   If monomania consists in a subjection of the intel-

lectual faculties  to  one predominant idea, ought we not to

regard a person monomaniacal,  whose mental faculties are

governed by a vivid affection—a violent passion? or in  other

words, is the existence  of monomania  to  be  conceded,

whether the reason is affected by an erroneous conviction or

a violent  passion  ?  The answer to  this is generally in the

negative, yet  some contend that there  is  a mixed diseased

state  of the  mental  faculties, a mixture  of  passions and

insanity.*


   * Friedreich, in Annales D'Hygiene, vol. 14, p. 460.  Westminster Review,
vol. 23, p. 222.  American edition. Taufflieb, in Annales D'Hygiene, vol. 14,
p. 187.  To illustrate the far-spread speculations of the Germans on this sub-
ject, I may add, that Professor Heinroth insists that moral depravity is the
essential cause of insanity.  With him, guilt and sin are its real sources.
   Most of my readers will recollect the dreadful murders committed not long
since in the county of Kent, in England, under the direction of the maniac,
Thorn   His followers came justly under the power of the law ; and in excuse
of their conduct,  Dr. Hall ushers before the public, the following doctrines
promulgated by Dr. Hunt: " The fact to which I allude is this—that there is
a species of insanity, of a contagious nature, and  of a temporary  duration,
totally unconnected wish diseased structure, but yet evidently consisting in
a suspension of the healthy action of the intellectual function of the cerebel-
lum—a disease which will certainly yield to circumstances, and which ought
not  on any pretence, to become  the subject of judicial retribution.  I have
seen many such cases ; they are closely allied to the contagious hysteria of
hospitals, and are chiefly, but not wholly,  confined to the female sex.  They
are commonly connected with extravagant  notions  of religion.  I should not
hesitate to say that the late Rev. Mr. Irving, and nearly all his followers, were

                      51 
794                MENTAL ALIENATION.
   To  such  doctrines and their consequences, let me inter-
pose the remarks of the judicious Andral.   iy4"W*:-?  ^
   " It  is only where the insanity at the time of committing
the crime is quite unequivocal, that the individual should be
saved  from the  penalty.  The interests of society must be
regarded, and we must act upon the minds of men by exam-
ples of severity,  so as to make an impression, and restrain
others  by a  salutary fear.  I have dwelt upon this point the
more, because I think that of  late medical men have fallen
into the error of laying too much to the charge of insanity
as regards crime."*
   Again, " There are some who hold that the mere act  of a
party, without any corroborating circumstances, is sufficient
to indicate sanity or insanity, and to justify responsibility or
the contrary.   Such persons, we presume, would  have  pro-
nounced this  prisoner insane,  and therefore  irresponsible,
since her act was committed without motive, and  against all
the  common feelings of humanity.   We  cannot  hold with
this  doctrine.   It is true, that crime is rarely committed by
a sane person without motive, but there are numerous  cases,
in which we are unable to trace the motive, and  were we,
on the principle  assigned, to  allow  of irresponsibility on
these  occasions,  we   should  be  assuredly  overthrowing
the subjects of monomania of a contagious nature.  What I wish now par-
ticularly to urge, is, that those poor deluded men, who are about to be tried
for murder, are, in fact, now as harmless and as innocent as any of her Ma-
jesty's subjects; and as theiv leader was once pardoned for perjury, being
insane, so, a fortiori, these poor fellows ought to be pardoned on the same
ground.  He might have been a desperate impostor;  they, to believe his lies,
must have been temporarily insane.  The cause of  their  insanity being re-
moved, the effect has ceased. Out of about 1500 persons in the neighborhood,
who believed in his pretensions, not one, I believe, remains deluded now.
That they caught the disease of him, as the smallpox  and typhus fever  are
sometimes supposed to be caught, throtfgh the medium of the nervous system,
I cannot entertain a doubt."  (Lancet, N. S., vol. 22, p. 453.)  What an ad-
mirable defence of mobs and lynch law!!
  Dean Tucker, domestic chaplain of Bishop Butler,  the author of the " Ana-
logy," relates, that in one of their conversations at Bristol, the Bishop asked
him the following question: " Why might not whole communities and public
bodies be seized with fits of insanity, as well as individuals?"  "My lord,  I
have never considered the case, and can give no  opinion concerning  it."
" JVothing but this principle, that they are liable to insanity, equally at least
with private persons,  can account for the major part of those transactions
of which we read in history." (Quarterly Review,  vol. 64, p. 186.  Ameri-
can edition.)
  *  Lectures, London Med. Gajette,vol.  18, p. 811. 
MENTAL ALIENATION.
795
one  of the great barriers established  for  the protection of
society."*
  " Some  writers have called this moral insanity, or instinc-
tive  homicidal mania {mania sine delirio,) and have accumu-
lated  instances of fond parents  murdering their  children,
husbands  their wives, and servants  their masters.   The
difficulty  to  the admission  of such a state appears to  us to
consist in the fact that the insanity is  pleaded for the  crime
only,  that it did not exist  before or after  its perpetration,
and that  it may thus be converted to  a specious means for
totally exempting criminals from punishment.!
   As  a corollary to all this, may I make the following sugges-
tion :  Why should it not be enacted that the Murder {for all the
difference  of opinion is only about this) shall not be the first and
earliest proof of the Insanity ?
   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 recognised.
   Abraham  Prescott, of Pembroke,  New-Hampshire,  was
recently 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
  * British and Foreign Med. Review, vol. 3, p. 535.  That the bar is equally
becoming startled at the extent to which the new doctrines on insanity are
carried is evident, I think, from the publication of Mr. Stock on the Law of
Non-Compotes Mentis, London, 1333.  See a Review of this work in the
London Law Magazine, vol. 20, p. 1.
  + British and Foreign Med. Review, vol. 10, p. 143.
  " We must confess, that great as is our deference to Dr. Prichard's superior
observation, we have some difficulty in admitting the existence of any form
of moral insanity disjoined from some degree of mental infirmity, less per-
ceptible in the slighter cases, but manifest in the  severer."   (British and
Foreign Med.  Review, vol. 7, p. 6.)
  I am pleased also to add the following remarks of Dr. Ray: (American
Jurist vol. 22, p. 321,) " Where this affection is  alleged in excuse for crime,
it must be proved, first, that it was really present; second, that it had arrived
to that stao-e in which its impulses are irresistible; thirdly, that it should be
the exclusive cause of the criminal act." 
796
MENTAL ALIENATION.
was  no previous malice  exhibited.  On  the  23d of June,
1833, he accompanied Mrs. Cochran  to a field, for the pur-
pose of gathering stawberries.  He came upon her unawares,
and murdered  her, by beating her head with a stake, after
which he dragged the body about two rods from the scene
of violence, where it was concealed in brushwood.  Very
soon  afterwards, 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 way stated that he had the toothache, sat down by a
stump, fell asleep, and  that was the  last he knew, until  he
found that he had killed Sally."
  Soon after being arrested, in conversation wTith the coro-
ner, the prisoner confessed the crime with which he was
charged, and that officer further stated the language held by
him.   " He and the deceased went out into James Cochran's
pasture together, from  thence down into the brook field;
that  when about to return  home he  made her a proposal,
which she indignantly repelled—calling him a rascal, &c,
and  said she  would tell her husband, and  he would be
punished.  The prisoner then sat down on a stump—consi-
dered  his situation—thought  he  must go  to jail for his
offence, and had as lief die as go  there.  Saw a stake near
him,  caught it up and killed her."
  The prisoner  on his indictment pleaded  not guilty, and
his counsel set up the defence of insanity.
  He was described as a moody,  odd sort  of  person.   It
was  also proved that there  was a  hereditary predisposition
to insanity in the family on the paternal side, exhibited in
the grandfather  and one or tw*o of his brothers, the grand-
uncles of the prisoner.
  His parents testified, that when an infant, six weeks old,
his head began to enlarge,  and at three years was as large
as his father's.  He suffered with sores in his infancy, and
was very much addicted to sleep-walking.
  Drs. Wyman and Parkman (the perusal of whose testimony
I particularly recommend,) gave the result of their extensive 
MENTAL ALIENATION.
797
experience on the subject of hereditary insanity, illustrating
its great frequency, and the predisposition to its occurrence
that thus  existed.   Dr.  Wyman  has been  sixteen  years
physician of the McLean Asylum for the insane in Charles-
town (Massachusetts,) and  I was hence struck with  one  of
his answers. " Insanity is sometimes manifested by a sudden
disposition to  violence, and  sometimes to  great violence,
but I do not remember that I have  seen any case  where the
first symptom  was  a disposition to  kill."
   Dr. Cutter, who had for a number of years kept a private
asylum, corroborated the  opinion of  the other medical
witnesses.   Hereditary  insanity  may  manifest  itself,  he
observed,  without any  known cause.  It  is often sudden
and intermittent, and is  sometimes accompanied by an irre-
sistible disposition 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
induced Crawford, by threats, to  go with him  and gather
some flags.  In a very short time, he began to whip the boy.
A neighbour heard the crying and  took the prisoner off, and
sent Crawford home. Mitchell, however, intercepted him,
and, after various threats, carried him into the woods, threw
him into the bushes, then carried  him to a pond  and  thrust
him in, took off his clothes, tied his hands, and  then whip-
ped him severely with withes.   Finally, he took a piece of
sharp tin and cut out one of his testicles.   His cruelty did
not cease  even with this, as he afterwards continued to beat
 him.
   On the  trial, the counsel for the defendant stated that he
would prove that the prisoner, in early infancy, had received

   * I am indebted for the facts  in this case, to the  Boston Medical  and
Surgical Journal, vol. 11, p. 361.  On referring to the account of the trial,
with which I was favored by Dr. L. V. Bell, I find the above abstract to be
entirely correct. 
798
MENTAL  ALIENATION.
  a dangerous hurt on  the top of his head,  and that a strik-
  ing malformation of that part was now present;  but owing
  to the absence of the parents of Mitchell, a part of this was
  not corroborated.   Dr. Mighels of Portland,  however  de-
  posed that there was an unusual appearance in the construc-
  tion of the head—a  palpable  depression on  the cranium,
  and the right ear was lower than the  left.
    Mr. Bailey, at  whose school Mitchell had attended  for
  about two months,  swore that he could read in spelling les-
  sons, but not in reading lessons.   He did  not  learn so fast
  as others did, but made improvement.  " He  was more  sly
  than  other boys;  he would  watch  me  narrowly, and was
 mischievous when I turned my back.  Punishment influenced
 his conduct.  I do not consider  him so bright as others, but
 far from being a fool."   He had been punished for quarrel-
 ling.
   The jury found the prisoner guilty, and he was sentenced
 to nine years' hard  labor 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 his-
 tory, and peculiar physical conformation."*

 n/i^^f f Voof °f^aj£r Mitchell> etc. by James F. Otis, Attorney-
   404  °rtland' 1834>  Also Boston Medical and Surgical Journal, vol.  11,
 ♦w™?-?1 tWs 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
 Z^J7   6nt' they haVe universally received the general appellation of
 homicidal monomania  suicidal monomania, infanticidal monomania, Sec.
 6fc.  And this is probably in deference to Esquirol, who, in his .Vote sur la
 7ZZZ£°miClde^ 4' makeS^ division of this form of dis<*se   Some
 delusion hv?irr Gre-S'  acKcordinS t0. h™> are prompted to the act by a
 SrSt?8efrT0mn;-by a dehrium; others again exhibit no appre-
 h  Sf at-!?n otJh? lntellect or affections; they a?e impelled by a blind
 s undo^^Hw" WhlCh f°-VCeS  f™ *° aCtS 0f Vi0lence-  N™ the first class
DrTitS mo?oinai»a>  a*d should not be connected with  the others.
nia imXt TlfT J7Uf"y condfmn« tlie union> since the very term monoma-
?nL2 wl  llhl,U8">n> the absence of which is the essence of his moral
will be bS^' ™t  pr°Ceed t0 anal?ze the cases> some difficulty
si - zr^zfo^^tthem-* content myseif ™th indicatin^ 
MENTAL ALIENATION.
799
            IV.  Of inferior degrees of diseased mind.


   There  are  several  forms  of disease,  which  either in a

partial or  temporary  manner,  bear a strong resemblance to

insanity.   The  diagnostic  appearances  of  such deserve a

brief notice, accompanied with a consideration of the ques-



  Many are contained in the three pamphlets of Georget—Examen Midico-
Ugale, Discussion Medico-Ugale, and J\Touvelle Discussion Medico-Ugale ;
Esquirol andMichu on Monomanie-Homicide.
  Orfila's Lemons, vol. 2, pp. 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, 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, pp. 431, 438.)   Homicidal monomania.  (Vol. 11,  p. 242; vol. 12, p. 127.
Ibid. p. 94.)  Arson by an  uneducated girl, who was passionate and deemed
a fool.  (Vol. 13, p.  220.)   Case of Nonnent, a raving  madman.  (Vol. 14,
p. 154.)  Taufilieb on the present state of medico-legal doctrines on Insanity
in Germany.  (Ibid. pp. 389, 426 ;  vol. 15, p. 128.)  A young man, murderer
of his brother, sister and  mother. There was hereditary insanity in the
family, and he had  been  of a moody disposition from  childhood upwards.
This is  a very interesting case, showing how a desire of  eclat enters into the
mind of the maniac.  (Vol. 16,  p.  121.)  On Homicidal monomania, by M.
Cazauvieilh.  (Vol. 17, p.   374.)  A pregnant female murdering two of her
children, at various times, by blows and other severe treatment.   This is the
history of a passionate woman, and the only extenuating circumstance I can
find is that several of her relatives had become insane.  The decision of the
medical examiners was as follows: " Declarons qu'il est possible que la femme
R. ait agi par suite de quelque affection ayant trouble momentanement, l'ex-
ercise de ses facultes mentales."   She was condemned to six months' impri-
sonment.  (Vol. 18, pp. 219, 374.)  A female guilty of many acts of theft.
She was 50 years of age, of excellent character, and easy property.  On arriv-
ing at Paris, she committed numerous larcenies at shops. Esquirol and Marc,
to whom the case was referred, reported in favor of her being monomaniacal.
She had been previously subject to puerperal mania.  (Vol. 20, p. 435.)  Cases
by Esquirol.  (Vol. 23, p. 204.)
   American Jurist, vol. 14, p. 253 , vol.  15, p. 82;  vol.  16, pp. 43, 315, 341.
Essays principally by Dr. Ray, vol. 22, p. 27.
   Trial of Sir Alexander G. Kinloch, for the murder of his brother, at Edin-
burgh, in 1795,  in State Trials;  and Gordon Smith on Medical Evidence, p.
334.
   Edinburgh Medical and Surgical Journal, vol, 12, p.  380.  A man in per-
fect 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.
   Ibid., vol. 48, p. 443.  Case by Marc, of Augusta Strohm of Dresden, who
was incited to murder, by  seeing several persons executed.   (From the Me-
moirs of the Royal Academy of Medicine.)
   Medico-Chirurgical Review, vol. 10,  p.  226.  Cases of homicidal mania,
etc., in Paris, by Barbier, Esquirol, Marc, &c—Vol.  10, p. 482. Do., including
the cases of Cornier, Schmitt a parracide, Tristel and several others.—Vol.
13, p. 244.   Homicidal and infanticidal mania; cases by Professor Outrepont
0f Wurtzburg.—Vol. 13, p. 441.  Cases of infanticidal monomania at Copen- 
800
MENTAL ALIENATION.
tion, 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, how-
ever, distinguished by its antecedent or accompanying dis-
ease—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 character-
ize the  alienation accompanying synocha and its consequen-
ces.   " In delirium all the powers of the mind are implica-
ted, 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.
   The shortness of its term3 its evident connexion  and de-
pendence  as a symptom on  an obvious bodily disease,  and
the almost total abolition of the  mental faculties, are deci-
ded diagnostics.!
   The  unconsciousness that accompanies the low delirium
of typhus, shows how profound is the disorder that weighs on
the mind.
hagen, by Dr. Otto.—Vol. 14, p. 474.  Similar case  by Dr. Hawkins of Lon-
don.—Vol. 32, p. 84.
  Dr. Blake on the case of Greensmith, who strangled four of his children.
  New-York Medical and 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, labor-
ing 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 imbe-
cility 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 considera-
ble time previous, and was deemed insane by several of his neighbors.  His
wife deserted him.   He went to New-York, and finding her in an equivocal
situation in a bawdy-house, stabbed her with a knife.
  * Halford's Essays, p. 122.  The return to a sane mind just before death,
which occasionally occurs in Brain Fever, is admirably described at page 88.
  t Georget De La Folie, p. 237.
  Brierre De Boismont has, not long since, pointed out the occurrence of acute
delirium in insane patients.  This  can  certainly be only a consequence or
symptom of cerebral inflammation, either acute or chronic.  See Medico-
Chirurgical Review, 1845, vol. 2, p. 228. 
MENTAL ALIENATION.               801
  In the former case, suicide  and murder are often commit-
ted while laboring under it; and in  both, the actions must
be estimated 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
similitude to melancholy.  Those who are affected with it,
are usually of a lax fibre, and engaged in sedentary occupa-
tions.   There  is a  languor  and  want  of  resolution that
accompanies all  their undertakings, and a castsof sadness
and timidity generally marks the countenance.  As to all
future events, says  Cullen in his graphic  sketch  of this  dis-
ease, there is a constant  apprehension  of the worst or most
unhappy state of them, and therefore  there is often, upon
slight grounds, an  apprehension of  great evil.  " Such per-
sons are particularly attentive to the state of their own health—
to even the smallest  change of feeling in  their bodies."   He
also remarks, that hypochondriasis is  always accompanied
with dyspeptic symptoms, and in elucidation of the diagno-
sis between it and melancholy, presents  the following  ob-
servations :  " When an anxious fear and despondency arise
from a mistaken judgment with respect to other circumstan-
ces than those  of  health, and  more  especially when  the
person is at the same time without any dyspeptic symptoms,
every one will  readily allow this  to  be a disease widely
different from both dyspepsia  and hypochondriasis."  " As
an exquisitely melancholic temperament may induce a tor-
por and slowness in the  action of the stomach, so it gene-
rally produces some  dyspeptic symptoms ; and from thence
there  may be some difficulty in  distinguishing such a case
from hypochondriasis.  But I would maintain, however, that 
802
MENTAL ALIENATION.
 when the characters of the temperament are strongly mark-
 ed, and more particularly when the false  imagination turns
 upon  other  subjects than that of health, or when, though
 relative to the person's own body, it is of a groundless and
 absurd kind ; then, notwithstanding the appearance of some
 dyspeptic  symptoms,  the  case is  still to be considered as
 that of a melancholy,  rather than a hypochondriasis."*
   Fodere mentions the following circumstances, as distinct-
 ive of these  diseases  : The habit of body—the illusion, as
 illustrated in the above  quotation from Cullen, one being
 relative to physical subjects, and the other to moral ones—
 the species of fear;  that of the melancholic being reserved
 and prudent, and not destructive of his courage—while that
 of the hypochondriac  renders  him credulous,  variable and
 timid.  He is in every  respect selfish, while the melancholic,
 although laboring under the pressure of his disease,  often
 retains noble sentiments.!
  ^ 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
 furious and irritable to describe any complaint; the melan-
 cholic  is  generally  disinclined to  do  so, but the  hypo-
 chondriac's chief solace is in a  detail of  all his feelings and
pains, real and imaginary."
  It rarely, he adds, does  mischief to let the insane know
you are fully apprised  of the nature of their malady.   But
beware of giving a hypochondriac reason to think his mind
is deranged;  it is the surest way to make it so.§
  Hypochondriacs often talk of, and sometimes attempt sui-
cide, but rarely have courage enough to complete it.||  They
are generally aware of the nature of criminal acts, and should
be judged accordingly.  But it must  be remembered that


  l W^XM lfph 5P5P0: ^ ^     f ^^ V°L h » ^
  § Burrows' Commentaries,  p. 480.          || Parkman. 
MENTAL ALIENATION.
803
this disease, as well as hysteria,  when of long  standing, or
severe, often degenerate into insanity, and indeed are some-
times its first degree.*
  Hallucination.  " An  idea  reproduced  by the  memory,
associated and embodied by the imagination."!  This state
of mind is styled  illusion or waking dreams by Dr. Rush,
and  it  is strikingly illustrated in the remarkable story of
Nicolai, of Berlin, who  for a length of time was visited at
his bedside  by individual forms, that were visible to his
sight,  and addressed him.  During all  this period, how-
ever, 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 familiar illustration is
given  by Collinson, and  I presume there are  many of my
readers, who at one  time or  another,  have experienced  a
somewhat similar state of mind.  " Ben  Jonson, the cele-
brated  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
remarked, that many maniacs have hallucinations, resem-
bling 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 demen-

  * " When a hypochondriac fancies his legs are made of glass, or his head
is larger than his body, or if he labors 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 gra-
tuitous and ill-founded.
  f Parkman.
  X The narrative by Nicolai himself, is given in Haslam's Medical Jurispru-
dence of Insanity, p. 303.
  § Collinson on Lunacy, vol. 1, p. 34.
  || On the subject of apparitions, or spectral illusions, see Hibbert, Alder-
son and Ferriar's Essays.  Bostock's Physiology, vol. 3, pp. 91, 161.  Edin-
burgh Journal of Science, vol. 2. 
804
MENTAL ALIENATION.
tia.  It gradually destroys  the memory and impairs the in-
tellect.  Lord Eldon, indeed, expressly recognizes this dis-
ease 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 289 epileptics at Salpetriere  in 1815,  80 were
maniacal, and 56  imbecile or in a state of dementia.!   " 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 ferocious, ma-
lign  and  murderous paroxysms, and  often it is as instanta-
neous as  it is violent.   The effects are sometimes directed
against themselves, oftener against others, and not unfre-
quently 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 circum-
stances that indicated considerable ill-will against the prose-
cutor, 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-
meanor.   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.
  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 illu-

  * Ridgway v. Darwin, 8 Vesey's Reports, p. 87.
  t Devergie, vol. 2, p. 958.               J Burrows, p. 155. 
MENTAL ALIENATION.
805
sion, 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

despair, 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.  Indi-

viduals laboring under  it seldom, if ever, commit violence

on others.

   Intoxication.   Delirium tremens.  It  is a well-known and

salutary  maxim  of our laws, that crimes committed under

the influence  of  intoxication, do not excuse the  perpetrator

from punishment.  The temporary alienation has been  vol-

untarily induced, and the individual is the more inexcusable,

if by previous experience he has learnt that his angry  pas-

 sions are inflamed 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  con-

 stant  state of intoxication,  he  was incapable of managing

 his property.§


   * Starkie on Evidence, vol. 3, p. 1704.                t  Page 33.
   t " To admit drunkenness as a defence,  or even  to allow it publicly as a
 mitigation, seems extremely dangerous.  But as the example of punishment
 does not influence a man who is drunk, any more than one who is mad, it is
 plain that to hang a man for what he does in such circumstances, is to make
 drunkenness, when followed by an accidental consequence, a capital offence.
 This execution will not deter drunkards from murder it only deters men who
 are sober from drunkenness."  Sir James Mackintosh, (Life by  his son, vol.
 2, p. 27, Amer. edit.)  This is strongly put; but if conceded, may not  the
 same defence be made in most cases  of murder, committed not merely during
 the heat of passion, but after continued deliberation.  Is it not  a legitimate
 deduction from this reasoning, to assert, that to hang a man under such cir-
 cumstances, is to make violent  passions, when followed by an accidental
 consequence, a capital offence 1                            a\.n„~ ti,„t
   The case of Rex v. Carrol  (7  Carrington and Payne, p. 145,) shows that
 there is no change in this point in the law of England.
   § Collinson on Lunacy, vol. 1, p. 71.  Dr. Drake, some time  since  made
 a suggestion, which if acted upon, would doubtless subserve the ends of jus-
 tice and morality.  A habitually intemperate man is enfeebled m his mental
 powers. When summoned as a witness, should his testimony have full weight.
 Without questioning his  competency, should not his capability be called in
 question?   (Western Journal of  Medical and Physical Sciences, vol. 1,
 p. 81.) 
806
MENTAL  ALIENATION.
  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 Chan-
cellor for the exercise of his power and jurisdiction.  And
in certain  cases, when  the person considers himself ag-
grieved, it  may  be  investigated by six freeholders, whether
he is actually what he is described to be, and their declara-
tion is prima facie evidence of the fact.*  The Chancellor
also in a recent  case  decided that the court has the custody
and  control of the person,  as well  as  of the estate of an
habitual drunkard, and can exercise that control by means
of a committee, as  in the case of a lunatic!
  The Scotch Law is thus explained by Mr. Alison.  Drunk-
enness  is no excuse  for crimes:  " But, on the other hand,
if either the insanity  has  supervened from drinking, without
the panel'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 in-
firm state  of mind, or a  previous wound or illness which
rendered spirits  fatal  to  his intellect, to a degree unusual
in other men, or which could not have been 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."J

  * Act, passed March 16,1821.  There are other provisions in this, (which,'
however, 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 Pennsylvania, in February, 1819. (See Commonwealth v. Coxe,
in Ashmead's Pennsylvania Reports, vol. 1, p. 71.)  And also in New-Hamp-
shire, in 1822.  (Digest of  the Laws of New-Hampshire, 1830, p. 340.)
  t 5 Paige's Chancery Reports, p. 120.  In the matter of Ann Lynch.
  X 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. 
MENTAL ALIENATION.
807
  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 common causes.  The conduct of individuals  of this
description should therefore be  particularly  noticed dur-
ing  the  intervals  of temperance, if any  such exist.   If
spirituous liquors  exercise  such an influence  as to render
us doubtful concerning the state  of mind at this time, we
may reasonably infer  that  the  alienation is becoming per-
manent.
   There is, however, in addition to all  this, a  well  marked
and  distinct disease, induced from  the  intemperate use of
spirituous liquors, or certain  other diffusible stimuli, but
which has only attracted attention within  the  present cen-
tury.  It is styled delirium tremens, or mania a potu,  and has
some peculiar 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 sleeplessness.   The mind is incessantly agitated
 on some one or other subject, often fanciful, and as  the hal-
lucination increases, apparitions, 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 for-
 tunately 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 tracta-
 ble.*   There are, however, exceptions; and it is precisely
 these exceptions which render the subject worthy of  consi-
 deration in legal medicine.  Dr. Carter (and the experience
 of other physicians corroborates the assertion) state,  that a
 medical friend of his nearly lost his life by the violence of a
 person labouring under delirium tremens.!
   * 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, Ware, &c.
   f  Cyclopedia of Practical Medicine, art. delirium tremens. 
808
MENTAL ALIENATION.
   One circumstance connected with the history of this dis-
 ease I have omitted until now, for the purpose of placing it
 singly before the reader, and thus pointing out a most im-
 portant diagnostic.  It is, that  although the habitual and
 excessive indulgence  in strong liquors or  other  diffusible
 stimuli, is the predisposing cause, yet the privation of them
 is the exciting one.  Individuals are seldom, if ever, seized
 until after several hours or  sometimes days  of  abstinence.
 Insanity or delirium, on the other hand, may follow immedi-
 diately 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.
   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 parox-
ysms, 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 concealed himself between the feather
and straw bed in his own house.  He would  point  his gun
from  his  window, as if for defence against  imaginary per-
sons.  He was also very watchful.   The prevailing mania-
cal delusion was, that his wife was in combination with his
neighbors (one his son by his first wife) against his life. He
had charged her during his paroxysms,  with criminal  inti-
macy with these, and had threatened to kill her.
  * The importance of the above distinction is fully discussed in a communi-
cation of the diagnosis of Delirium Tremens, by Samuel Jackson, M.D., late
of Northumberland.   (Amer. Journal  Medical Sciences, vol. 23, p. 29.) He
considers the latter  to be a pyrexia, and  the other a neurosis.  Dr. N. R.
Smith also recognises the two forms, although he is more disposed to consider
them as varieties of  the same disease. (Transylvania Journal of Medicine,
vol. 12, p. 42.) 
MENTAL ALIENATION.
809
  On Sunday he was  intoxicated; Monday, Tuesday and
Wednesday presented nothing  special.   On Wednesday
evening he complained of being unwell, but seemed  to be
rational. He  slept none that night, and next day the family
thought him crazy, but were not alarmed.  In the course of
it, he took an axe and went to a neighbor, 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  agita-
tion ; manifested jealousy  of his wife; barred the doors,
and fancied that the persons 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
yielded, and took a scythe and attempted to strike her. She
defended  herself until the door was opened.  When arrest-
ed, he acknowledged the homicide, and knew, (he said) that
he would be hung, but ought to have  done it  sooner.  He
talked at this time so rationally that many of the witnesses
could not believe him deranged.  He evinced no dread of
punishment,  but was still in great apprehension of those
who, he had  believed, intended to kill him.   After being
committed, he  became regular, and expressed sorrow for
what he had  done.
   On the  trial, three  medical  witnesses  agreed  that  he
labored under mania a potu, when he committed the homi-
cide.  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
                   52 
810                MENTAL ALIENATION.
this individual.   Some of  his  observations I  shall  here
condense..
   He  remarks that the paroxysms of delirium tremens are
never  permanent, but always transient, or for two  or  three
days only, and seldom extending beyond a fortnight.  That
in  this state there is actual delusion, as  much so  as  in
common insanity.  That of Birdsall, was jealousy and ap-
prehension of his wife.  The court and jury seemed to hold
that he was  not deranged in the  degree that  destroyed his
perception of right or wrong, in reference to the  murder ;
and that even if he had been, still he  could not  have been
acquitted, because his alienation originated in intemperance.
Dr. Drake, on the other hand, justly supposes that he was
not capable of judging between right and  wrong, or at least
of controlling his actions, on the subject of his hallucination.
In  all  his  maniacal 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, but 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.
   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
disease equally arises sometimes from opium, and even from
liquors not taken to intoxication.  In the eye of the  law,
even drinking to excess is not criminal; nor did the prisoner
take liquor with malice prepense.
   From  these considerations,  Dr.  Drake  is disposed  to
doubt  the justice  of  the  sentence  of McDonough, for the
murder of his wife.*

  * 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 se-
vere injury of the head; and that, although relieved of this, yet its effects 
                    MENTAL  ALIENATION.                811

  In consequence of a petition from many of the inhabitants
of the  State,  who  became  convinced  of  his  insanity, the
punishment of Birdsall was commuted by  the governor  to
that of imprisonment.   During the period that elapsed be-
tween his sentence and this commutation, he  again became
insane  in  prison.   Although on the trial he  had confessed
the murder of his wife, and urged  that he had been  insane
when  committing it, yet now  he denied  it positively, and
said she  was alive.   He told Dr. Drake that she had not
only  spoken to  him through the walls of the jail, but had
actually visited  his apartment several times.  On the day
previous to his appointed execution, while he knew nothing
of the change of punishment, he was urged to sign a petition
for pardon to the governor,  in which there was an admission
that he had  killed his wife, but  that he must have been
insane when he did it.  He refused it obstinately, and with
violence ; although he  wished to live, he would not consent
to introduce  this.
  Birdsall  did not  use tobacco, yet during  this period he
spat profusely.  His pulse,  when excited, was from 86 to  94
beats in a minute.  Dr. Drake supposes,  with great proba-
bility, 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 in Boston, in  May, 1828.
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 volun-
tary 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 my-
self 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 ordinary paroxysms, he would have been condemned ?  The
case, however, is not one of delirium tremens, as the murder was committed
during the fit of intoxication, and it thus rendered him obnoxious to the usual
legal enactments.
  Dr. Ray (Med. Jurisp. of Insanity, p. 447) does me injustice, in quoting a
portion only of this paragraph.
  *  Western  Journal of the  Medical and Physical Sciences, vol. 3, pp. 44,
215, 598. 
812
MENTAL ALIENATION.
  Alexander  Drew, commander of the whaling ship John
Jay, was indicted before the United States Circuit Court, for
the murder of his second mate, Clarke, 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 be-
nevolent disposition,  but that for several  months, he had
been addicted to the use of ardent spirits; and for weeks
during the voyage, had drunk to excess.   In  August, 1827,
they spoke a vessel, from which Capt. Drew obtained a keg
of liquor.  He drank  until he became stupified ; but when
he recovered, he ordered the keg and its  contents to be
thrown 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 ; wTas unwilling to be
alone ; expressed great fears of an  Indian who belonged to
the ship ; called him  by name when  he  was not present;
begged  he would not  kill him, saying to himself he would
not drink any more rum.   He would sing obscene songs, and
then hymns,  and alternately pray and swear.  He made an
attempt to throw  himself overboard, but was  prevented.
The next morning, he, with Clarke and the first mate, were
at breakfast, when he suddenly withdrew from the table, and
appeared to conceal something under his  jacket, which lay
in another  part  of the cabin.  He immediately turned to
Mr.  Clarke, and requested him to go on deck.   " When I
have done my breakfast, sir," was the answer.   Drew said,
" Go upon deck, or I will help you ;" and instantly  took up
the knife which  had been covered  by his jacket, and stab-
bed  Clarke in the right side  of the breast.   As one of the
witnesses was passing out of the  cabin,  Drew snapped a
pistol at him, but it missed fire.  He was secured  and bound,
but remained for  some weeks in this state.  When he re-
covered, and was  told of the murder, he replied  that he
knew nothing of it—all that he was conscious of, was, that
when he awoke, he found himself handcuffed.   It did not 
MENTAL ALIENATION.
813
     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 ad-
     mitted facts, cannot be maintained.  The prisoner was un-
     questionably 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 liquor.   We are clearly of opinion,
     that  insanity is a competent excuse in  such a  case.  In
i    general,  insanity is  an  excuse for the commission of every
     crime, because the party has not the possession of that rea-
     son,  which includes  responsibility.  An exception is when
     the crime is committed by  a party, while in a fit of intoxica-
     tion, 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 respon-
     sible 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 neglect or fault  of the  party, as from religious
     melancholy, undue exposure, extravagant  pride, ambition,
     &c.   Yet such insanity  has always been deemed  a sufficient
     excuse for  any crime done under its influence."*
        * Mason's Reports, vol. 5, p. 28.  United States v. Drew.  American Ju-
     rist, vol. 3, p. 4.
        In a recent trial in the western part of this state, of a parent, for the mur-
     der 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. 
814
MENTAL ALIENATION.
   That this subject has not escaped the observation of Eu-
 ropean 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 dif-
 fers 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
 referred 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  the  homicide, he had ill treated  his wife,
 and  for  a few  days,  she  refused to live  with him, but at
 length returned home.

  * Orfila's Lecons, 2d edit. vol. 2, p. 127.  Henke would also seem to have
 advanced a similar opinion.  "JEnomania (amenta vinolenta,) from the abuse
 of Brandy."  " Et de la 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 cannot be questioned, and may render judicial proceedings more
 secure.  Is is, that delirium tremens is a disease, that from its striking pecu-
liarities, cannot be feigned. 
                   MENTAL ALIENATION.               815

    After the deed was done,  his  actions and conversation
induced 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.
  " The prisoner's  counsel  dwelt  upon the proof  of his
having been affected with delirium tremens the winter pre-
vious, and on the evidence that he was addicted to drinking ;
and they endeavored to infer from that evidence, in connex-
ion 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 winter.  Is it not an authorized presumption
that he  was insane when he committed the act ?"
   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 consti-
tution, 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 intoxica-
tion.*  The proofs of the presence of either, should never
be merely presumptive.
  * In the former edition, (vol. 1, p. 370,) I made the following remark : "It
is to be feared, that cases may sometimes occur, in which the dividing line
between sanity and insanity may be overleaped, in the ardour to punish a
foul homicide."  The remarks of Mr. Buel on this are so just, and indeed so
conformable to my subsequent experience, that I cannot avoid quoting them. 
816
MENTAL ALIENATION.
  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
recognises persons with whom he has been long acquainted.
There is therefore an incapacity for attention and for receiv-
ing 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 person 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!
  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 lunatic,) and his want of understanding were
such, as to render him incapable of managing his affairs.
The Chancellor awarded  a commission in the  nature of  a
writ of lunacy, to inquire whether the facts were  accordant
to the above statement, and he  also directed that the indi-
vidual 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,

" In my experience, juries in this country, in capital cases, are not apt  to
convict under the influence of excitement produced by the atrocious nature
of the crime.  On the contrary, I think there is rather an increasing readi-
ness to find a place to hang a doubt on—and doubts, you know, insure ac-
quittal."
 ^* Prichard, art. Insanity, in Cyclopaedia of Practical  Medicine, vol. 2, p.
8/2.
  t Collinson on Lunacy, vol 1, p. 66. 
                   MENTAL ALIENATION.                817

of  unsound mind,  and  mentally  incapable  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
unacquainted with the individual, and the result is a restraint
and watchfulness on the part of the aged, which naturally
induces an appearance  of perfect correctness of deportment.
A slight  suspicion  excited by sordid domestics,  or other
interested  persons,  may  prevent an exhibition of the actual
enfeebled state of mind, and more decidedly  give  them  up
to  the  plots by which property is so frequently alienated
from the  legal heirs.  These circumstances should therefore
be  remembered in all  commissions,  and a free and unre-
strained  intercourse be deemed a most  essential means in
forming  a  proper  opinion.!   But on the other hand,  no
language is too strong to characterise  their  conduct who
shall endeavor to make the imbecility of age an excuse  for
robbing its subjects of their comforts, or for confining them
in an asylum.
   It  is impossible  to extend  this  investigation  into  the
numerous cases, which may present doubts as to the' strength
of mind  of individuals.  Every instance must be judged on
its  own  merits;  and  while  weakness  of   understanding
deserves protection, it should  be remembered that too nice
an investigation  of eccentricities and  imperfections may
lead to oppression and injustice.J

   * 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 testator's age is not alone a proof of his incapacity to make
a will, for  a  man  of one hundred years of age may yet be very competent.
(Call's Virginia Reports, vol. 4, p. 423.  Also, Darling v. Bennet, Massachu-
setts Reports, vol. 8, p. 129.  Johnson's Chancery Reports, vol. 5, p.  158.
Van Alst v. Hunter.)
   t Conolly on Insanity, p. 440.
   X In the case of Lord Donegal, it was found that he was of weak under-
 standing, 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 commis-
sion, 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 intimating that the incapacity. 
818
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  testaments, or at least so far  as relates to the  formal
part of their execution, they might often use this knowledge
with  advantage, to  families, upon sudden  emergencies.*
Having such authority, it will not,  I trust, be deemed  pre-
sumptuous, if  I preface  the consideration of the present
subject  with a brief sketch of the legal requisites for making
these.   This must also be my apology  for  noticing some
points in this  section, which might, with perhaps greater
propriety, have been considered in previous ones.
  It must be  observed, in the  first place, that the law  makes
an important distinction between the disposition of real and
of 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 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 testa-
tor, at the time of pronouncing the same,  did bid the persons
present, or some of them,  bear witness,  that such was his
will, or words  to  that effect—nor unless such nuncupative
will, be made at the time of the last sickness of the deceased,
and  in  his dwelling-house, or where he had been resident

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.)
  * Blackstone's Commentaries, vol. 1, p. 13. 
MENTAL  ALIENATION.
819
for ten days or more, next before the making of such will,
except such person was surprised or  taken sick, being from
home, and died before his  return to the same.  It is further
ordained, that after  six months from the speaking of the pre-
tended  testamentary words, no testimony shall be  received
to prove any nuncupative 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 let-
ters testamentary or probate of any nuncupative  will, shall
pass the seal of any court until  fourteen days, at the least,
after the death of the testator, shall be fully expired,  nor
shall any nuncupative  will  at  any time be  received  to be
proved, unless  process  has first issued to call in the widow
or next of kin  to  the  deceased, to  the end that they may
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 over-
taken 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 ex-
 tremity.!
   By the Revised  Statutes, however, the power of making
 these wills is nearly taken away.  The following is the ex-
 isting 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
   So also, in  England,  by a recent enactment,  (1 Victoria,
 chap.  26, July 3, 1837,) there  can be no  longer parol or
 nuncupative wills, except in  the  cases  of  soldiers  and
 seamen.§

   J Son'^R/port vV^p. 205.  Prince v. Hazletonu lo^ «jj. **
 supposed nuncupative will was made several days before thdeath0the tes
 tator, and although ill of a liver complaint, it does not appear that he had
 any idea that his dissolution  was so near.
   X Revised Statutes, vol. 2, p. 60.
   § Companion to the British Almanac, 1838, p. 16V.        rtllP9t?nn  as to
   In Pennsvlvania, where the old English law is in force, the question, as to
 what consoles a vllid nuncupative till, lately came up under ^following
 circumstances: The testatrix, Priscilla Yarnall, had been afflicted with pul 
820
MENTAL ALIENATION.
   Secondly, a  will  or bequest of personal  property.   The

handwriting 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

devised, must be in writing, and signed by the party making

the same, or by some other person, whom he expressly di-

rects to sign it for him,  and  they must be attested and sub-

scribed by two witnesses, at least.  This provision applies

equally to wills of  real  or personal property, and the wit-

nesses are further required to add their place of residence.*

   We may now  add  that none of these are valid  in law, if

made  by  an infant,  idiot,  or person  of insane  memory.

Here is the point  at which the subject enters into  legal

medicine, and under this law, it happens that the testimony

of a physician is often required.

   In law, a person is considered an infant, vyitil he arrives

at the age  of twenty-one, and the construction of this is, that

if he is born on the first day of January, he  is of age  to do

any legal act on the morning of  the last day of December.!

Infants, according to the ecclesiastical or civil law, if  above

the age of fourteen, may, however, bequeath personal pro-


monary consumption for six months before her death.   She  seems to have
been conscious of the danger of her situation, but it is not very clear that
she had abandoned all hopes of recovery.  Nine days before  her death, she
made the alleged nuncupative will.  She retained all her faculties to the last,
although weak in body.
  The court, among other objections, decided against the validity of the will,
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.)
  * Revised Statutes, vol. 2, p. 63.  The Revisors of the laws of Pennsyl-
vania have proposed a similar enactment in that state, viz:  that all wills
shall be in  writing and  signed as above, except  in extremis.  (American
Quarterly Review, vol. 13, p. 44.)
  t As in the following case, which was  decided by the House of Lords, in
February, 1775, on an appeal from the Court of Chancery.  An estate was
bequeathed to Thomas  Sansam,  as soon as  he  should arrive at the age of
twenty-one.   Now he was born between  the hours of five and  six  on the
morning of the 16th of August, 1725, and died about eleven, in the forenoon
of the 15th of August, 1746, being killed by a fall from a wagon.  The ques-
tion 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.  (Dodsley's Annual Register, 1775; Petersdorff's Abridgement, vol.
10, p. 536.) 
MENTAL ALIENATION.
821
perty, 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 up-
wards, 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."!
  Among the diseases which incapacitate an individual from
making a valid will or at least render his rationality doubtful,
may be enumerated the following : lethargic and comatose
affections, or from external injury.  These suspend the ac-
tion of the intellectual faculties ;  so also does an  attack of
apoplexy, and even, if patients recover from its first effects,
an imbecility of mind  is often left, which unfits an individual
for  trie 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  disposi-
tions of property made by him are of course valid.   Of these,
none is more striking, than the clearness of intellect  which
sometimes attends the last stages of phthisis pulmonalis.
  The symptoms—the state of the individual, his conversa-
tion and actions,  should all be canvassed, and from  them
an opinion must be formed.J
  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
  * Revised Statutes, vol. 2, p. 63.
  t Blackstone, vol. 2, p. 497.             X Fodere, vol. 1, p. 261. 
822                 MENTAL ALIENATION.
of them may prevent many of those difficulties which are so
apt to embarrass medical witnesses.   I have arranged them
under the  respective  diseases  that  were  the subject  of
inquiry.*
  Apoplexy. In Cook v. Goude and Bennet, the testator had
made  a will after an  attack of apoplexy, from which  he
recovered.   He subsequently attended to business of every
description and travelled to various places.   Death followed
in three years after the first attack, from a "second apoplec-
tic fit.  The testimony varied, and it was asserted by some
that he had been frequently dull and lethargic, but Sir John
Nicholl  decided in favor  of the will, because  (along with
other circumstances,) incapacity  was not proved.!
  In Waters v. Howlett,  Sir John Nicholl remarked, that
the  allegation pled  an attack of apoplexy  in June, 1826;
that the will.was executed in November,   1826;  and  that
there was a subsequent attack of the disease in 1828, with
consequent imbecility.  He  adds,  that  " the fifth  and the
remaining articles  heap together a number of circumstances,
which usually, or  at  least frequently occur in persons who
are  subject  to  apoplectic or paralytic  attacks, especially
about the period of those attacks, but which also generally
subside after a time,  and then the patient again is  rational
and  capable.  In  support  of such circumstances,  (he  ob-
serves,) persons who accidentally visit the  deceased, are usually
brought to depose; but their evidence almost universally turns
out  to be of no weight against acts of capacity at other times,
particularly if there is no appearance of fraud in the testamen-
tary act itself." %

  * There is additional advantage from studying these cases, and applying
them, which is well put in the British and Foreign Med. Review, vol. 10, p.
131:  " The decisions in the Ecclesiastical Courts are far more consonant with
our present knowledge  of the present forms of insanity, and they are not re-
stricted to the antiquated or incorrect divisions of the common and chancery
law."
  Having been one of the earliest to collect these cases, and present them to
the medical public, it is extremely interesting to observe how familiar subse-
quent writers have become with them. I have added several in this edition,
for their general benefit.
  t Haggard's Ecclesiactical Reports, vol. 1, p. 577.
  X Haggard's Ecclesiastical Reports, vol. 3, p. 790. 
MENTAL ALIENATION.
823
  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 under-
standing, 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." *
  Dr. Hastings was required professedly to visit, on the 6th
of June, 1826,  a rich farmer  in the county  of Hereford,
England, and found him in a  very lethargic state.  It ap-
pears that although formerly sober,  yet of late years he had
become a  confirmed drunkard.  His speech was much im-
paired, and  he was not always able to articulate so as to
express the idea in his mind.   He  complained of  noises in
his ears, and imperfect vision.   His gait was unsteady,  and
there was a constant trembling  of his hands.  He,  however,
answered all  the questions  put to  him  with propriety,  and
did  not exhibit  any  imbecility  of mind.   He performed  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  dis-
tance of his dwelling from the  adjoining town.
  The  bodily  symptoms evidently threatened an attack of
apoplexy,  and  such  indeed was the  result.   After  many
fruitless attempts to break up the  habit of intoxication, he
sunk into a state of mental imbecility, and died of  apoplexy
in  January,  1827.  Dr. Hastings never saw him  after the
first visit, until the day before his death.
* Lee's Ecclesiastical Reports, vol. 2, p. 229.  Bittleston, by her guardian,
Clark. 
824
MENTAL  ALIENATION.
   The testator had made a will, on the 26th of April, 1826,
and its validity was contested.  It seems that some time in
1825, he  had  been seized with  symptoms  of  palsy,  but
which, by proper remedies, had been considerably relieved.
He, however, was subject to fits of delirium tremens ; and
during these, acted  strangely and incoherently.  Generally
speaking,  from the  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 favor 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
continued  until his  death.   He was  confined to  his  bed
during  these four years, although  able to  ride out a  few
times, being  helped  into  his carriage.  His  speech  was
much impaired, but he was able to make himself understood
by those who were well acquainted with him.   The contested
will was made in May, 1827, a short time previous to his
death.
   The  Chancellor  (Walworth) in his  opinion, states  that
upwards of fifty witnesses were examined before the surro-
gate.  As usual,  great  diversity of opinion existed among
them.  Aware  of the  tendency of prejudice  or feelings to
bias  their  views,  he reviews  the evidence, and establishes
from incontestable proof, that  the  testator's mind, at  the
commencement of  his  disease, was such  as  totally to inca-

  * Midland  Medical and Surgical Reporter, vol. 1, p. 410.  Dr. Hastings
mentions two other cases, in which apoplectic symptoms, evidently resulting
from long continued and severe disease of the brain, were still unaccompa-
nied with any material injury of the intellectual functions.  In another, the
individual, aged between fifty and sixty years, roused suddenly from his ster-
torous 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 servant to him."
This, however, was a case in which the comatose symptoms supervened on an
attack of erysipelas. 
MENTAL ALIENATION.
825
pacitate  him from making a will.   After  the  first year, he
was but seldom visited  by those who were  formerly ac-
quainted 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, however, is so common
during the  decrepitude  of old age,  that the  Chancellor
remarks, it can hardly be relied on  as  a proof of mental
capacity.  At the period,  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.*
   The following is* a Scotch case:  Mr. Gardner had been
 for many years an active man of business, and of a vigorous
 mind.   He was  struck  with  palsy in 1814,  by  which his
 right  side was disabled,  and his speech considerably affect-
 ed.  He ceased to  take any active charge of business, but
 various loans were  made by him  through the assistance of
 his wife and by the agency of his law agent.   He occasion-
 ally became  intoxicated,  and  was allowed to take two or
 three glasses  of  whiskey daily.   His general  health was
 good, but he  sometimes cried and laughed without any ap-
 parent  cause, which some of the witnesses imputed  to im-
 becility, while others stated that it was a nervous or hysteri-
 cal affection.  He occupied his time in reading, and although
 it was difficult to communicate with him, yet those witnesses
 who  did  come  into communication with his mind, deposed
 that  it was quite  sound and acute, and that his memory,
 both of old  and recent occurrences, was particularly vivid
  and  correct.  His  mode of communicating was by writing
  on a slate or piece of  paper, (he having taught himself to
  write with his left hand,) and he also made use of an alphabet,
  pointing out the letters of the words he meant to express,

    * Pair's Chancery Reports, vol. 1, p. 171.  This case did not however end
  here  Under the name of Clarke v. Sawyer, it was continued in the Vice-
  Chancellor's Court, (3 Sandford's Chancery Reports, 351,) and finally adjudi-
  SS? October" 1849,  by an affirmance of the decree  of the  Chancellor.
  (Comstock's Reports of the Court of Appeals, vol. 2, p.^498.)
    See also, on this subject, Scribner, v. Crane.  (2  Paige, 147.;
                      53 
826
MENTAL ALIENATION.
with a nod, or with  his  finger.   In 1823, he had a second
shock, which affected  his left arm to the elbow; his speech
was also  much impeded, and he could only say aye and no.
He thenceforth ceased to go out of the house, but occupied
his time in reading and communicated as formerly.  Almost
all the pursuer's  witnesses gave it as their opinion, that he
had not a mind capable of making such  a  settlement as the
one in issue, but one of them, (the gentleman  who had acted
as his law agent in regard to the loans,) stated, that although
he did not think he  was capable of originating such a deed,
yet he thought  he  had mind sufficient to understand it, if
read over to him.  The witnesses for  the defenders (who
stated various facts  as to his memory,) gave it as their opin-
ion, that  his mind was quite sound.  It  was proved, that at
the time  of execution, the deed was not read over, and no
written instructions were put in evidence, but it was proved
that the deed of 1827 had been read to,  and approved of by
him, and that both under that  deed,  and the  one under dis-
pute,  the daughter and her  children derived much more
benefit than they  could if it were set aside.
  Lord Cringletie in his charge to the jury, urged that it was
in proof,  that the memory of the grantor was  entire, and ob-
served that it is the first of the intellectual faculties that
decays.   The  weight of testimony of those  who held the
most communication with him, was also in favor of his abili-
ty.   The jury found for the  will.*
  A testator,ten years before his death, and in perfect health,
executed a will,  and  subequently  a codicil;  and two and a
half years before his  death, after a paralytic stroke produ-
cing at least great bodily infirmity, having executed a second
codicil,  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,

  * Cases in the Court of Session,  (Scotland,) vol. 11, p. 1849.  Simpson v
Gardner's trustees. 
MENTAL  ALIENATION.
827
and the evidence of volition  and capacity being  at least as
strong in support of the third as of the second codicil.*
   In  a case before Sir George Lee, (1752) the testator having
the palsy, and being  dissatisfied with a former will, ordered
a new one to be executed.  The attorney drew it according
to  her directions,  read it to her, and  she approved, by 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  favor
 of the unexecuted will.!
    Esquirol was consulted  on the following case:  A bon
 vivant of apoplectic  make,  was at  the age  of 64, attacked
 with hemiplegia arid its  usual symptoms.   He became mo-
 rose and  sluggish, and suffered under trembling of the limbs,
 deafness, difficulty of speech, &c. Could a person, under these
 circumstances, dictate and understand a will written for him
 two months previous to death 1  It was replied, that although
 the  above are signs of cerebral lesion, yet they do not neces-
 sarily suppose a loss of  intellect.   Reason may be present,
 although not so perfect.   The number of witnesses required
 in France to attest a legal signature to a will, is also urged
  sa a proof that so many persons could not have been  mista-
 ken as to the state of mind4
    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
502
  * King and Thwaits v. Farley, Haggard's Ecclesiastical Reportsvol. 1,j>.
502.  See also Marsh v. Tyrrel, 2 Haggard's  Ecclesiastical Reports ]p 8£
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 ^ »J^al I«^
strokes Dr  Burrows would only give a limited opinion, and desned a secona
interviewThe will was  in  direct opposition to two previous ones, made
when in perfect health. Judgment against it. .            , ,  „,  T ,
  The state of mind after a paralytic stroke  is also discussed by Sir John
Nicholl in Blewitt v. Blewitt. 3 Haggard, p. 410        OTnttftfl
  t Lee's Ecclesiastical Reports, voh 1, p. 180.  Martin v. Wo ton
  t Annales D'Hvsriene,  vol. 7, p. 203.  Dugald Stewart, although swuck
wi hApryfn?8?2ySandunable'toP take  general exercise or■ tc> use^s right
hand, or to  articulate distinctly,  notwithstanding composed *° ^* *™
fourth volumes of his work on the Philosophy of the Human Mind> ^en
it and 1828, when he died.  (Brewster's Edinburgh Journal of Science, vol.
10, p. 201.) 
828
MENTAL ALIENATION.
departed from a former one deliberately made a few months
before, was pronounced against, the evidence in favor not
being satisfactory.   She suffered much from pain and weak-
ness, and took laudanum largely during her illness.*
  In Scotland, there is a peculiar law to protect dying per-
sons 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 grantor be not confined
to his bed.  If he survives sixty days  after, or has been to
market unsupported, it is good.!  I will mention one or two
decisions under  this law :
  A person in advanced life had been afflicted with a stuffing
and cough, and swelled leg, but it did not appear that these
complaints  existed within  sixty   days  before,  or  were
the cause  of his  death.   It was proved that though  not
regularly confined to bed or to  the house, his general health
was infirm, and he died in the act of stepping out of his bed.
He  made  his will  thirty-eight days before  his death.  As
there was no distinct evidence  that a fixed disease was pre-
sent within sixty days, or that it was the  cause of death,
the decision was in favor of the deed.J
  In another case, a person addicted to habits of excessive
drinking, and  who had been  confined to bed for several
weeks from debility and exhaustion, having executed a set-
tlement of her landed  estate  and died in eight days there-
after, without having been once up, except to have her bed
made—and a medical gentleman having deposed that she
had no formed  disease, when  he saw her on the third day
after the execution of  the  deed, and that she died of an ac-
cess of peripneumonia notha,  which  is  a very  common,
though not a necessary result of the  state in which the party
previously was, it was held that she was not to be considered
on  death bed at the  date of the execution of the deed.§

  *  Haggard's Ecclesiastical Reports, vol. 2, p. 169.  Mynn v. Robinson.
  t  Bell's Dictionary of  the Law of Scotland, art. Death Bed. As  to the
last provision, see Kyle v. Kyle.  Cases, Court of Session, vol. 3, p. 449.
  X  Cases, Court of Session, vol. 2, p. 474. Robertson v. McCaig.
  §  Cases, Court of Session, vol. 6, p. 367. McKay v. Davidson.  Additional 
                   MENTAL ALIENATION.               829

  Imbecility.  A remarkable case under this  title occurred
some years since in the courts of the State of New-York.  I
shall give its details as briefly as possible, referring for fur-
ther examination to the works named below.
  Anthony Lispenard, Sen, died in 1806, leaving sons and
daughters.  His last will and testament dated December 24,
1802:
  " My will further is,  that the sum of seven hundred and
fifty dollars be allowed and paid to my beloved wife Sarah,
every year during  her natural  life,  either in half yearly or
quarterly payments, as  she may elect to receive the same,
to commence immediately after  my decease, but which pro-
vision is intended to be in full and lieu of her dower.   And
as  it has  pleased  Almighty God that my daughter  Alice
should have such imbecility of  mind, as to render her inca-
pable of managing  or  taking care of property, my will fur-
ther is that she be«allowed for her maintenance the sum of
five hundred dollars annually  during her natural life, and
that my executors hereinafter named pay out  of the income
of my estate to my said daughter Alice, the said sum of five
hundred dollars, in half yearly payments, to commence im-
mediately after my decease."
  The remainder of his estate was  to be  equally divided
among his other children and his grand-daughter.
  In January, 1818, Anthony Lispenard, Jun., died unmar-
ried, intestate and without heirs, whereby his sister  Alice
succeeded to one-fourth of his estate, or one-sixteenth of the
estate whereof her  father died seized and  possessed.
  In January, 1836, Alice Lispenard died, aged 55, leaving
the following will, dated August 27, 1834:
  " I give and devise all my estate, real and personal, what-
soever and wheresoever,  whereof I shall die seized or pos-
sessed,  or entitled unto, of what nature and kind soever, to
Alexander L. Stewart,  his heirs, executors, administrators
and assigns forever, to his and their  own use and benefit,

cases on this law of Death Bed, as it is called, will be found in Ibid. vol. 12,
p. 569. Cogan v. Lyon.  See, also, Murray's Reports-of Jury Court Cases in
Scotland, 5 vols. 
830
MENTAL ALIENATION.
and I hereby constitute and appoint him sole  executor of
this my will, and in  case  of his decease before me, then
I give, devise, and bequeath all  my said estate to his daugh-
ter, Sarah Skillman, her heirs, executors, administrators and
assigns forever, to her and others own  use and benefit, &c.
&c.  This  disposition being made by  me in consequence,
and as a testimony of my remembrance of the care and kind-
ness manifested towards me by my said  relatives, Alexander
L. Stewart and Mrs. Skillman."
  On Mr. Stewart, the executor above  named,  asking pro-
bate of this will at the Surrogate's Court for the County of
New-York, its validity was contested by several of the heirs-
at-law, and the  state of mind of the deceased during her
whole  life, but particularly at  and near the time of making
the will, became the subject of investigation.
  The testimony, taken before the  Surrogate occupies an
Qctavo volume of  nearly three hundred pages.  Much of the
import of this will be  understood by an abstract of the opin-
ions delivered.   The  Surrogate  (James  Campbell,  Esq.,)
made  a decree on the 26th of July, 1838, refusing to admit
the will to probate.  His opinion is given in full in  the 26th
volume of Wendell's  Reports.  He reviews the life of Alice
according to three periods ; whilst she lived in her father's
house, the time when she  boarded with strangers, and that
during which she lived in the family of her brother-in-law,
Mr. Stewart.
  Of the first, he  remarks, that  the attempt to instruct Alice
failed, and the  extraordinary and mortifying fact  was dis-
closed that she was incapable of  being taught to read, and
much less to write, and her parents were obliged to abandon
the attempt as altogether hopeless.   As she passed from
adolescence to womanhood,  he  observes that her mental
defects became more apparent and striking, and he refers to
the testimony of  Mrs. Satterthwaite,  of Baldwin and of
Elizabeth Stanton, as  far more decisive and positive than
that of Mr. Davidson, Mrs. Lee, Mrs. Brower, Mrs. Martin,
and Mrs. Vreeland, whose means and  ability of observing
and judging of the actions and  character of Alice were cer- 
MENTAL ALIENATION.
831
tainly  inferior to those produced on the other side.  The
will of her father is quoted as an evidence of his solemn and
dehbera te  opinion.  He doubts whether the habit of too
free indulgence in liquor was so great, or so long continued,
as to produce any marked effect  on her mind.
  The  testimony  of  those  individuals  with  whom she
boarded, and who were residents with her,  must outweigh
that of casual acquaintances and visitors.
  The Surrogate also lays great stress on the value of the
testimony  of the servants in the family  of Mr.  Stewart,
(Fisher, Henderson, and King,) and attaches but little to that
of  " the  physicians,  clergymen,  lawyers, seamstresses,
washerwomen, carpenters,  masons, members of  his 'own
family, and occasional visitors at his  house.  Vague gener-
alities and opinions,  (he observes,)  accompanied by no
specific facts, actions  and circumstances, characterize this
testimony  on  the part of the executor; and when properly
weighed and analysed, will be found to amount to little more
than this,  that Alice had her prejudices  and attachments,
and was  not  insensible to neglect  or  attention; that she
could remember persons whom she  had not  seen for a long
time;  that  she  could  carry  and bring back messages with
accuracy and a kind of mechanical precision; and that she
could make and answer inquiries and questions on trite and
familiar subjects, such  as the state of the weather and  of
health.  Now the ability to do all this, and even more,  is not
incompatible with great imbecility of mind," and  in corro-
boration, he adduces the dicta of Sir John Nicholl in Ingram
v.  Wyatt.
  The fact  of the  employment of Alice in a daily round of
drudgery imposed on her, is considered as a  strong and con-
clusive proof of  want of  understanding, and the  injustice in
the disposition of her property is also dwelt upon.  His final
decision was, that Alice Lispenard at every period of her life
was intestable for want of understanding, and the instrument
propounded as her last will and  testament was rejected.
  The cause was affirmed pro forma in the Circuit Court, the
next in judicial order, and from that carried  up to the Chan- 
832
MENTAL ALIENATION.
cellor's.   That officer, in his opinion, remarks, that after a
"very careful examination of all  the  testimony, I am per-
fectly satisfied  that children  in general at the age of eight
years, who have had the same care bestowed upon them that
Alice Lispenard had during the life of her parents, and par-
ticularly during the  first twelve or fifteen years of her life,
would be as competent to understand the nature and value
of property,  and to dispose of it by deed or will as she was
at the time she made her mark to the instrument propounded
as her will in this case."  He also considers the declaration
of her father, as made in  his will, to be  a strong  and con-
trolling circumstance.   The decision of  the  Surrogate was
consequently affirmed.
  The cause  was finally argued and decided in the Court for
the Correction of Errors, in 1841. C. W. Sanford and Wil-
lis Hall (Attorney-General) appearing for the  appellant, and
B. F. Butler  for the respondents.  It is remarkable that no
judge of the  Supreme  Court gave an opinion on  the case,
and that the  decision of it remained with the lay members,
as they are called.   The  decree of the Chancellor was re-
versed by a vote of twelve to six.   The opinions of G. C.
Verplanck and J. B. Scott, senators,  and  both for reversal,
are published in detail.  I may briefly notice  some new and
interesting points considered by the former.
  Mr. Verplanck assumes and asserts the principle, that the
right of testamentary bequest is not  a mere institution  of
positive law,  but a natural right,  subject to the restrictions
and regulations of civil legislation,  yet not  its mere crea-
ture.  According to the statutes of the State  of New York,
all persons except idiots, persons of  unsound mind, married
women  and infants, may  devise their real estate, by their
last will and testament, duly executed.   Now the  line of
unvarying authorities, shows that in legal intent, the natural
defect of mind, thus  excluding persons from the ordinary
rights of society, does not consist in  a limited degree of in-
telligence, but in an entire absence of it.  An idiot is one,
according to  Fitzherbert,  " who has not  any use of  reason
has no understanding to tell his age, who is his father or 
MENTAL ALIENATION.
833
mother, what shall be for his profit and loss."   Again,  the
term  non-compos mentis, or  of unsound mind, imports  not
weakness of understanding, but a total deprivation of rea-
son.  " The ancient rule is thus expressed and reiterated by
the latest and best text writers on this subject"—(Shelford
on Lunacy.)  " A person being of a weak understanding, so
he be neither an idiot  nor a lunatic, is no objection in law
to his disposing of his  estate.  Courts will not  measure the
extent of people's understandings and capacities; if a man,
therefore, be legally compos mentis, be he wise or unwise, he
is the disposer of his own property, and his will stands as
the reason  for his actions."
   True, the courts have in many  cases, made the bequests
 of the imbecile void, but not on account of the general and
 positive  disability  of  the  party for all  similar acts, but
 because of the  relative character of the will or contract
 itself, and  of all the external circumstances in proof, to the
 mental capacity of the party.  The whole transaction taken
 together,  with all  its facts, of which the proof of mental
 weakness  was  one,  showed that  the  consent,  the  very
 essence of the act, was wanting to that particular act.
    In applying this view of the law to the case before him,
 Mr.  Verplanck dwells on the numerous witnesses, who have
 spoken favorably of a measure of understanding in  Alice,
 while  others,  he  concede,  concur  in representing  her as
 silly and  stupid.   If, however, we regard the whole evi-
 dence,  we shall  find that the  testimony  of those who
 represent  her as  having been merely a dull  and imbecile,
 but  not an idiotic person, much outweighs those who depose
 to the  lowest grade of intellect, both in numbers, station,
 education, and intelligence ; and it is positive and affirmative
 in its character.
    The clause in the will of her father is to be taken as it is
  expressed.  He considered her incapable of managing and
  taking care of property.  If he had deemed her an idiot, the
  payment  of the annuity would have been directed to be
  made  to trustees for her support.  In the  words of Judge
  Washington, " The  capacity may be perfect  to dispose of 
834
MENTAL ALIENATION.
property by  will, yet very inadequate for the management
of other business, as for instance, to make contracts for the
purchase and sale of property."*
  Old age, implying mental imbecility. Kinleside v. Harrison.
In this  case, the testator between 86 and 88 years of age,
made several codicils to his will, which were disputed on
the ground of mental imbecility, the  result of old age.  A
large mass of contradictory  evidence was  presented.  It
appears to be admitted that there was  occasional incapacity
from violent nervous attacks, but he  survived  two  years
after making  the codicils, and managed his  own concerns.
Thus he drew drafts, all of which were accurate and  con-
formable to the variations 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 favor of his capacity.!
  In Brydges v. King, Mrs.  Brydges 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 com-
plaint was visceral, and  from laying in bed she had become
excoriated so that it was necessary to dress the  sores  from
shoulder to hip, and although her bowels were so torpid as
to require injections,  yet from  her weakened  state, she was
not  able to bear  them.   In this  condition,  the  codicil in
favor of her personal attendants, was executed.  The regu-
lar physician of the deceased had not seen her for several
days previous and subsequent, but he  deposed to her  being
more or less lethargic for months, and did not believe her
capable of transacting important business.  It was also in
evidence, that her relatives and  solicitor were  excluded,
  * For the details of this case, see the " Lispenard case; Stewart v. Nichol-
son," in the New-York State Library.  Wendell's New-York State Reports,
vol. 26, and an  analysis of the case and the testimony  in Amer. Journal
Med. Sciences, N. Series, vol. 6, p. 507.
  t 2 Phillimore, p. 449. 
MENTAL ALIENATION.
835
under various pretences from seeing her.   The codicil was
declared invalid by Sir John Nicholl.*
  In Ingram v. Wyatt, Sir John Nicholl notices particularly
the subject of imbecility of mind.  This defect, he remarks,
seems to proceed from want of quickness, activity and mo-
tion in the intellectual faculties.   And thus  sometimes dif-
ferent faculties are found failing in different persons.  "For
example, the  memory is sometimes perfect  where higher
powers of the understanding are greatly defective."   In an
individual of  imbecile mind, " the understanding has made
little progress with years ; it  has not matured and ripened
in  the usual  manner; yet even in such individuals, unless
the imbecility  be extreme, some improvement will have
taken place; some progress in knowledge beyond mere infan-
cy will have been made.  By the help of memory,by imitation,
by habit, such an  individual will acquire many ideas, will
recollect facts and circumstances and places and hacknied
 quotations  from books, will conduct himself orderly and
mannerly, will make a few rational  remarks 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 labor under  great infirmity of
 mind, and be very liable to fraud and imposition."
    " The  principal  marks and features of imbecility are the
 same which belong to childhood, of course, (as already 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
 control, acquiescence under influence and the like.   Hence
 these infantine qualities have acquired for this  species of
 deficiency  of understanding,  the name  of  c childishness.'
 The effect is, that where  imbecility  exists at  all, and in
 proportion to its degree, it becomes necessary especially in
 a case exposed to other adverse ' presumptions,' to ascer-
 tain its extent with some accuracy, to see how far the indi-
 vidual was liable to be controlled by influence, to submit
* Haggard's Ecclesiastical Reports, vol. 1, p. 256. 
836               MENTAL  ALIENATION.
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 >aclverse wit-
nesses, and  by the  deceased's  affections and declarations.
Will pronounced for.!
  A testatrix was old and greatly debilitated by the disease
under which she labored when she made her will and codicil,
and the usual  state of her mind, until her death, was  that
of  great torpor  and inactivity;  "but her  mind  (say  the
Court) was evidently not deranged.  It was in fact, rather
a want of sensibility than a want of intellect, which marked
her condition ; for most, if not all the witnesses agreed, that
she could, by any thing  sufficiently interesting to  attract
her attention, be awakened  and roused to activity ; and
when she was so, that she conversed intelligently, and in-
variably gave  rational and pertinent responses to any inter-
rogatories 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 witnesses were  also decided
as to her competency at the time of executing the will. The
court therefore adjudged in favor of the will.J
   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 Chan-
cellor Kent,  in  a case before  him,  are  decisive.   " The

  *  Haggard's Ecclesiastical Reports, vol. 1, p.  384.
  t Haggard's Ecclesiastical Reports, vol. 2, p.  142.
  X Littel's Kentucky Reports, vol. 1, p. 252.  Watts v. Bullock. 
MENTAL ALIENATION.
837
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 remarks, "seemed to apply the inca-
pacity only to an extreme failure of memory—as for a man
to forget his own  name, fatuus prcesumitur qui in proprio
nomine errat.   The  want of  recollection of names is one of
the earliest symptoms of a decay of the memory; but this
failure may exist to a very great degree, and yet ' the solid
power of the understanding ' remain."*
   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 endeavored to be shown that he had been laboring under
a delirium caused by a fatal attack of peripneumonia.   This
attack had been on him for some  days.   He made the will
on the 21st of April, and died on the 24th.   The physician
who was called in, and who  saw him  a short time, inclined
to the opinion  that he was  not in sound mind, but denied
that he was in a state of mental derangement; " and in spite
of a  marked confusion of intellect, he could answer ques-
tions  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 favor
 of the will.|
   * Johnson's Chancery Reports, vol. 5 p.  161.  Van Alatv  Hunter  in
 Turner v. Turner,  (Littel's Kentucky Reports,  vol. 1, p. 101,) the Court
 make a remark which  is probably correct; and if  so, d«^»"«^J-
 "There is less presumption of insanity at the ^me^hZ%Z  ^tZZntA
 where  the testator is shown to have been previously afflicted with *e mental
 debility attending old age, than there is where the mental malady is ordinary
 ^tTyrey v. Hill, 2 Addams, p. 206.  See also Dodge v. Meech, (where the
 will was invalidated,) 1 Haggard's Ecclesiastical Reports, p. 612.
   X 1 Addams, p. 229.   See also Lemannv. Bonsall, Ibid. p. 6V6. 
838
MENTAL ALIENATION.
  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
derangement."  Here the testator conversed  sensibly and
collectedly,  and appeared  perfectly rational  when giving
the instructions.*
  The  existence of a lucid interval.  The case of White v.
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
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
awakened, and their vigilant  observations called forth," it
appeared that she was sane and rational during the transac-
tion ; and indeed it seemed  proved,  that she continued  so
until her death, which  was on the next day.  The disposi-
tion of her property, as made by the will, was " neither in-
sane nor unnatural."  Sir  John Nicholl, (the judge,) there-
fore pronounced it valid.!
  In another  case,  (Cartwright v. Cartwright,) Sir William
Wynne enters more in detail into the circumstances which go
to prove the existence  of a lucid interval.  " If it can  be
proved and established, that it is a  rational act rationally
done, the  whole case is proved.  What can  you do more to
establish the act?   Because, suppose you are able to show
the party  did that which appears to be a rational act, and it
is his own entirely, nothing is left to presumption in order
to  prove  a  lucid  interval."   The  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
  *  Burrows v. Burrows, 1 Haggard's Ecclesiastical Reports, p. 109.
  t  1 Phillimore's Eeclesiastical Reports, p. 84. 
MENTAL ALIENATION.
839
proper in the way she has done.  She not only formed the
plan, but pursued and carried it  into execution with propri-
ety and without assistance.  He was therefore in favor 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
hatred or malice against individuals, and which are evident-
ly groundless.
  Lord Erskine, in his celebrated speech for Hadfield, made
the following remarks:
  "In the very recent instance of Mr. Greenwood (which must
be fresh in his lordship's recollection), the rule in civil cases
was considered to be settled.  That gentleman, while insane,
took up  an idea  that a most affectionate brother had admin-
istered poison to him.  Indeed  it was the prominent feature
of his insanity.  In a few months  he recovered his senses.
He returned to his profession as an advocate, was sound and
eminent in his practice, and in all respects a most intelligent
and useful  member of society, but he could never dislodge
from his mind the morbid  delusion which disturbed it, and
under the pressure, no doubt, of diseased prepossession, he
disinherited  his  brother.   The cause to avoid this will was
tried here.   We  are  not now  upon the evidence, but upon
the principle adopted as the law.   The  noble and learned
Judge who presides upon this trial and who  presided upon
that, told  the jury,  that if they believed  Mr. Greenwood,
when he made the will to have been insane, the will  could
not be supported, whether it had disinherited his brother or
not; that the act, no doubt, strongly confirmed the existence
of the false idea, which, if believed by the jury to amount
to madness, would equally  have affected his testament, if

  *  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 pre-
sumption against the papers.  It was, however, very doubtful, whether the
testator had a lucid interval. (Haggard's Ecclesiastical Reports, vol. 2, p. 433.) 
840               MENTAL ALIENATION.
the brother,  instead of being disinherited,  had been in his
grave, and that on the other hand, if the unfounded  notion
did not amount to madness, its  influence could not vacate
the devise."
  Strange as it  may appear,  this  remarkable and leading
case, so strongly urged, and so frequently quoted ever since,
in cases where it applies, was never reported nntil 1844,
although the  trial itself was held  before Lord Kenyon and a
special  jury  on the  13th of  May 1790.  Thus, after more
than fifty years, Dr. Curties, in  an appendix to the third
volume of his Ecclesiastical  Reports, published the  charge
of Lord Kenyon, from the short-hand notes of Mr. Gumey.
  It appears, that previous to this trial, William Greenwood,
the disinherited brother, had brought  an  ejectment  in  the
Court of Common Pleas, and obtained a verdict against  the
will.   The defendant (a cousin) in that  action was then in
America, but hearing of the  verdict, immediately returned
to England, and commenced  the  present  action.  Mr. Er-
skine was engaged in his favor and Sergeant Adair for  the
brother.
  The charge of Lord  Kenyon is  elaborate and minute, and
contains a full analysis of the testimony.
  After adverting to the caprice which is often shown in the
disposition of property, but yet without any suspicion of the
sound state of mind of the testators, he  observes that there
was a possible fallacy in the statement of the  question by
the learned Sergeant.
  " He stated that the question was, whether the disposition
was the effect of madness or of sound mind.  I am  rather
inclined to believe that some persons in judging of it, would
look first to  the  act  done, and argue up from that  to  the
sanity or  insanity of the mind, instead of looking  at  that
which is the real question, and which the law ever considers
to be the question, namely, whether the testator was of sound
and disposing mind and understanding when he made his will ?
This is the question  which the wisdom of ages has framed,
and which as often as the question  arises in Courts of Justice,
and is put into form, in  those words, it is put into form." 
MENTAL ALIENATION.
841
   In  favor of the  sanity of the testator, was adduced the
 testimony of a number of repectable and intelligent persons,
 who had  known Mr. Greenwood from the time of leaving
 school and  going  to college—during his  study  of the pro-
 fession  of the law, and subsequently in family  intercourse,
* and in business affairs.  They all agree, that there was no
 appearance  of  derangement of mind, either  in conduct or
 behavior.   Several, however, remarked  that the brothers,
 although they lived together, appeared to hold no communi-
 cation with each other, there was no conversation between
 " them, when they sat together at dinner."
   Dr. Reynolds, a physician, stated that in November, 1787,
 Mr. Greenwood consulted  him on his illness, which  was a
 consumptive case; there was no appearance of derangement
 of the intellect; he conversed as  a sane man,  and described
 his disorder with accuracy.
   Mr. Greenwood's friends pressed him to go to Lisbon for
 the recovery of his health.  He replied  that he could  not,
 until  he  had settled  his  affairs.   When  his brother  was
 suggested as an agent, he said in a determined  way,  "he
 shall  have  nothing to  do with my affairs."  He  appointed
 an agent, drew up instructions, marked with great accuracy
 and good sense, and after this departed for  London.  While
 there, on the 7th  of December, he drew up and  executed
 his will.  The friend  who gives this testimony, adds, that
 he received a letter, dated Lisbon, January  10, giving a long,
 accurate  and sensible account.   He also had,  however,
 observed other instances of marked dislike to his brother—
 such  as, if Mr. Greenwood wanted to be  helped to a  dish at
 table that stood near his brother, he had the dish removed
 to him, rather than ask his brother to help  him.
   The great majority of the witnesses, however, having met
 him in the  ordinary intercourse  of conversation and busi-
 ness, united in pronouncing Mr. Greenwood a man of sound
 mind and understanding, and perfectly competent to dispose
 of property.
   The  first  witness  called on the  part of  the  defendant
 was Mr.  Hingerston, the apothecary.  He deposes that on
                    54 
842
MENTAL ALIENATION.
the day after his father's death, he was sent for to Mr. John
Greenwood—who was  extremely feverish—this  continued
for several days, and was finally accompanied with delirium.
The patient was restless and suspicious, made complaints to
him of his brother and servant, and hinted that there were
plots against him.  This was on the 25th of April—and that
he  attended him until the 23d of June—that he never was
free from delirium, as  long  as he attended him.   Coercion
was thought necessary, and a keeper was employed from
the Horton establishment, who remained ten weeks and did
not consider him in  his  right mind.  He  thought him  not
quite well when he left, though much better—noticed violent
paroxysms of passion in consequence of the detection of an
untruth.
   Dr. Pitcairn  was  called at the instance of Mr.  Jones.
Mr. Greenwood was  ill, and unmanageable on the 26th of
April.   "He thought  no one could look at him without
perceiving that he was  in  an insane  state."  Dr. Budd
prescribed for  him, and concurred in the  belief of  his in-
sanity.   He was very shy, particularly when his brother
was present.
   Mr. Livie, an old friend of the family, states that  on  the
death of the father, all were in great distress.  Mr.  Green-
wood was ill the next day, and  some days  after, he sent for
his brother and witness; expressed  his  apprehension of
immediate death, and said that, if this should happen, his
whole  property would go to his brother  and sister.  Mr.
Livie soon thought that a keeper was necessary—but saw
very little of him, until Price was removed.  He met him
some time after, put out  his hand, but Greenwood would
not shake hands,  and ever  afterwards, when  he  passed,
would not bow  or speak to him.
   The Rev. Mr. Jones was the tutor of Mr. Greenwood at
Trinity College, Cambridge.   Mr. Greenwood having es-
caped  out of the window, came  to him on the 5th of May,
1786.  He found him dressed in deep mourning, very pale,
in  great  distress, said  he  had lost  the best of fathers, that
his friends had  deserted him, the Higginsons; Livie  and his 
                  MENTAL ALIENATION.               843

brother, too, had deserted him and had spread a villainous
report of  him, that he had been undutiful to his father, and
been accessory to his  father's death,  and that  they had
confined him.  He urged him to accompany him to London,
which he  did.  He was low and melancholy, and Mr. Jones
did not think he was in his right mind.
  On the 20th of June Mr. Jones again saw him; he was
still low  and melancholy, but not so bad as before.   He
appeared  to have a great dislike of his brother.   In Decem-
ber, 1786, he appeared  to have recovered his senses.   The
witness  then talked with  him  about  his brother.   The
deceased  said  he would convince  him that his  brother
had not done right;  and he called him a hound, a scoundrel
and a villain.
  Mr. Jones saw Mr. Greenwood again  on  the 4th of  June,
when he  noticed, for the first time, that the deceased had
taken a dislike to  himself; talked of friendship being only
a name, and of being deserted; and at a subsequent inter-
view in July, 1787, burst into a violent rage; accused him
of calling in Dr. Budd, and of retaining Price.  He left him,
refusing to give his hand.
  To another witness, a college acquaintance, he stated, in
July, 1787, that his brother  had been the author of  the
" force used to him.   He also charged his brother with hav-
ing accused  him of  not feeling for his  father.   He further
said that they  had  given him brandy  and water, in which
they had put poison  ; and that they had put arsenic into his
tea-kettle ; that he asked the witness whether he would not
have  him prosecnte  his brother ;  that  he  would  certainly
prosecute his brother."   This witness also proved his con-
stant  sullenness and unkindness to both brother and sister.
He promised to  alter this, but very shortly  after returned to
his former habit.
  Other witnesses proved that this feeling was entertained
even after his arrival at Lisbon.
  Lord Kenyon concluded his charge  as  follows:  " The
inquiry, and the sole inquiry, in  this cause is, whether he
was of sound and disposing  mind and  memory at the time 
844
MENTAL ALIENATION.
when he made his will.  However deranged he  might be
before, if he  had recovered his reason at  the time, he was
competent to make his will.
  " And I take it, a mind and memory competent to dispose
of his property, when it is a little  explained, may stand
thus: having that  recollection about him that would enable
him  to  look  about the  property he had to dispose of, and
the persons to whom he wished to dispose  of it.  If he had
a power of summoning up his mind so as to know what his
property was, and  who those persons were that  then were
the objects of his  bounty, then he was competent to make
his will.
  " The conduct which he held to his brother was certainly
considerably  unaccountable.   If, whenever his  brother's
name occurred, instantly a fit  of delirium had seized him,
then I should conceive that he was  not competent to make
his will; but if his mind  remained  entire—if he  had new
raised up  prejudices  against his  brother, though upon im-
proper grounds, yet if they were such prejudices as might
reside in a  sound  mind, it  is hard that  those prejudices
should lead  to  conclusions unfavorable to his brother; but
hard as  the case may be, it  is better  that a thousand hard
cases should take  place than  that we should remove the
landmarks by which man's property is to be decided.
  " It is for you to  look at that conduct to his brother, to see
whether it is  evidence of a derangement of mind, or whether
only an  unreasonable  prejudice which he  indulged against
his brother; if it be the last, that  did not unfit him to make
his last  will and testament.
  " A multitude of instances there have been, where  men
have taken up prejudices  against their nearest and dearest
relations;  it  is the history of every week in the year, and
the history of almost every family  at one time  or other—
that  harsh dispositions have been made—that unreasonable
prejudices have taken place—that one child, standing equally
near in  blood,  has been preferred to another; and if once
we get into digressions of that kind, then we get upon a sea
without  a rudder.   Where will you  stop 1 what partiality 
                  MENTAL ALIENATION.               845

will be enough to set aside a will? and what  partiality will
you give way t0j and  gay the wil]  ig gQod?  Thege  are
questions which the most correct  and acute mind that ever
addressed  himself to the consideration of  questions, will
not be able to settle.
    You are to consider whether his mind  was entire to
make  the  disposition;  not whether  the  disposition was
whimsical, cruel;  what none of you, retiring to your own
bosoms, and collecting your own feelings, would have made ;
but to see whether it was the disposition of this man's mind,
exercising the faculties of his mind, when  in possession of
those faculties.
  " If you think that, whenever that topic occurred to him,
it totally deranged his mind, and prevented him from judg-
ing of whom the  objects of his bounty should be, according
to his own will, then the will cannot stand, and then  you
will find for the defendant; but if you think  he was of com-
petent  mind  to  make  his will, to  exercise his judgment,
however that might be disturbed by passions which ought
not to be encouraged, then the will ought to stand.  It is for
you to decide; and the care  and attention you have paid
have  made it unnecessary for  me to say so much as I have
said,  in addition to the  evidence."  Verdict for the plaintiff.
  The reader will observe that an opposite verdict had been
obtained for the defendant in the Common Pleas.  In conse-
quence of  this, a compromise  took place.*
  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 in-
sanity.
   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  labored under
  * American Journal Medical Sciences, N S., vol. 9, p. 508, condensed from
Curties' Reports. 
846
MENTAL ALIENATION.
the strongest aversion against  her, declaring that she was
invested by nature with a singular depravity, was the vic-
tim of vice and evil, &c, and  he continued  in this opinion
and  made similar  assertions as she advanced  in life, and
even until his death, in 1821.   He left her <£100 per an-
num, and she now sought, on  the ground of his partial in-
sanity, 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 un-
natural feeling merely, can avail in proof of  the allegation;
she can only prove it  by making out  a case of antipathy,
clearly resolvable into mental perversion, and plainly evinc-
ing that  the deceased was insane as to her, notwithstanding
his general sanity."
  His  decision on  the will  occupies many  pages.  He in-
quires what is the true criterion or test of the  presence  of
insanity, and in answer, deems it comprisable  in a  single
term, viz. delusion—a delusion out of which the patient is
incapable of being  permanently reasoned.  The  term partial
insanity is perfectly consonant with the law of England—a
man is not mad on all subjects.
  In addition to the  circumstances mentioned above, as  to
the delusion of Mr. Stott against his  child, it  was proved
by many witnesses, that even in early age, the burden of his
conversation was  her depravity and profligacy ; and this
went on from year to year, progressively increasing.  His
treatment of her was harsh  to an extreme; he burst into
rage whenever she appeared, and could not  bear the sight
of her.   She never sat down to  table with  him, was com-
pelled to do the most menial  work,  and was denied  every
thing, except the most common articles of dress.  He strip-
ped  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  assist-
ance of her friends, a situation in a  school,  and where she
was fitted for a governess.   The clerygyman of the parish, 
MENTAL ALIENATION.
847
to whom Mr. Stott had complained of his daughter, became
acquainted with her, and was surprised to  find her far dif-
ferent 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
different from that of a merely wicked man or of one under
the  influence of a prejudice, however strong."   It was  a
complete delusion, which he had no power of resisting, and
which was liable  to, and did, go  frightful lengths, in the
absence  of temporary external restraints.
   It appeared  in  testimony, that Stott  had  required his
daughter to write down her thoughts for his inspection.
   Other circumstances  were proved, indicative of insanity
 on several subjects—such  as his conduct to his  first wife,
 his  blasphemy  while reading the Bible, and  his extraordi-
 nary 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.
   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  al-
  ways eccentric in his habits,.and of late years had been very
  retired.  In consequence  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 rational grounds for  his suspicions, an
  investigation was made, but the gentlemen who conducted
  it were satisfied that  there were none.   The testator, how-

   *  Dew  v. Clark, in 1 Addams, p. 279; 2 Addams, p. 102; 3 Addams, p.  79. 
848
MENTAL ALIENATION.
ever, 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
erasure or alteration, regularly attested by two clergymen,
who, although aware of his opinion  respecting poisoning,
unhesitatingly swore to their  belief of his perfect mind.
The solicitor and physician gave similar  testimony.   His
property was all bequeathed to Queen's College, in trust for
the poor of the parish where he resided, and it appeared on
the trial that he expressed an  intention of doing this long
before he had the notion of poison.
   The testamentary papers were opposed by the next of kin,
on the ground that they were prepared  and executed when
the testator was impressed with the belief of poisoning, and
while he was of unsound  mind and under  mental delusion.
Sir John Nicholl  said, that " at all events, it was a case of
monomania,  for upon every other subject,  from the time in
question  to   his  death, the  deceased acted as a person of
sound mind, as much as he had ever "been;  he managed his
house, his property and his  farm, granted leases, received
tithes, kept accounts, recognised his will, held rational con-
versation, and did church duty.   A monomaniac,  to affect
such an  instrument, under such  circumstances, should  be
clear in point of existence and  decided in character, beyond
all doubt.  That the deceased thought and  believed that an
attempt had  been made to poison him, seemed to be a fact
established;  but was it proved that his opinion in that re-
spect was a mere morbid insane delusion, rendering him in-
testable ?  The question  was not,  whether the attempt to
poison was  really made,  but whether he had grounds for
suspecting it? or whether, as pleaded ' the deceased had no
rational grounds whatever for his belief.' "   The court pro-
nounced in favor of the will.*
  The following case was  adjudicated in Kentucky, in 1822.
George Moore made his  will  on the 11th of April, 1822,

  * Haggard's Ecclesiastical Reports, vol. 3, p. 527.  Shelford, p. 301. Fulleck
v. Allinson. 
MENTAL ALIENATION.
849
He was sick and low, but in his right mind, and indeed more
so than  the  witness had  seen him for some time.   About
twenty-four years previous to his death he had been  seized
with a dangerous fever, from which he, unexpectedly  to all,
recovered.  Some years afterwards, he indulged in habits of
intoxication, and these continued to the period of his disso-
lution.   When not  under the influence 'of  liquor, he  was
feeble and inactive ; and it  was precisely in this situation
that he executed his will, evincing intelligence sufficient, in
the opinion  of both of  his  physicians  and the attesting
witnesses.  The court therefore observed, that they would
have  no hesitation  in  admitting the  instrument to record,
were it not for the following circumstances :
   The testator was  a bachelor, but had two or three bro-
thers who resided within the  state.  He owned a  female
slave, his mistress, and who  posessed considerable influence
over him.  During his severe  illness, many  years previous,
he  was  completely deranged, talked much  of his immense
wealth,  and  then conceived  an antipathy to  his brothers,
contending that they designed to destroy or injure him, al-
though they attended him constantly in his illness.  This
antipathy continued, with a single exception, when he made
a will in their favor, (afterwards cancelled)  until his death.
When inquired of by one of the witnesses, why he disinherited
his brothers, he became violently irritated, and declared that
they  had  endeavored to get  his estate  before  his  death.
"He  cannot, therefore,"  said the  court, in their opinion,
" be accounted a free agent in making his will, so far as his
relatives are  concerned, 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 de-
fect 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  effect  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 
850
MENTAL ALIENATION.
he spoke  rationally.   All which are strong evidences of a
derangement in one department of his mind, unaccountable
indeed, but directly influencing  and operating upon1 the act
which is now claimed as the final disposition of the estate."
  The counsel for the appellants  presented a petition (in
writing) for  a  rehearing, in which the objections to the
doctrine of partial insanity are considered.   It is well worthy
of perusal,  and its main object is  to show that what by
many are  deemed  delusions of the head, may originate from
depravity of the heart.  The court,  however, overruled the
petition.*
  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 dis-
contented with the division of some property made  by his
parents during  their lifetime.  He was suspicious of all, but
particularly of his brothers and sisters.  This soon extended
to his  domestics, whom he believed in a plot against him.
He supposed  himself surrounded  by assassins, and  went
constantly armed.  An anonymous letter completed his dis-
tracted state.  In this condition he made his will, in which
he stated his apprehension of being murdered by his rela-
tives, 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 accom-
plices of his relatives.   In  six  days after signing a third
codicil, he hung himself, and in his  room a letter was found,
saying that in consequence of discovering new plots, he had
resolved to destroy himself.  Esquirol was consulted on the
validity of the will.  This change  had  gone  on  for  three
years, and was  literally a panophobia—a fear of every body—
although,  on other subjects, he had appeared rational.   He
did not doubt the insanity of the testator.!

  * Littel's Kentucky Reports, vol. 1, p. 371.   Johnson v. Moore's heirs.
  t Annales D'Hygiene, vol. 3, p. 370. A similar case, where long continued
jealousy led to suicide, was tried at Liege in  1802; and the will made under
the influence of this passion was annulled.  (Causes  Celebres, par Maian,
vol. 13, p. 427.) 
MENTAL ALIENATION.
851
  Eccentricity.   A testator himself drew up his will, and by
it left a large fortune to his  housekeeper.  " The relatives
disputed it on the ground that it  bore intrinsic evidence of
his not having been in a sane state of mind.   After having
bequeathed his  property, the  deceased  directed that  his
executors should cause some part of his bowels  to be con-
verted into fiddle strings, that others should be sublimed
into smelling salts, and that the remainder  of his body should
be  vitrified into lenses for  optical purposes.  He  further
added  in a letter, < the  world may think  this to be done in
a spirit of singularity or whim;' but he expressed himself
as having a mortal aversion to funeral pomp, and wished his
body to be converted to purposes useful  to mankind.   Sir
Herbert Jenner, in giving judgment, held that insanity was
not proved, the facts merely amounted to eccentricity, and
on this ground  he pronounced for the validity of the will.
It was proved that the  deceased  had conducted his affairs
with great shrewdness and ability; that he not only did not
labor under imbecility of mind, but that he was treated as a
person of indisputable  capacity by those with whom he had
to deal.   The  best  rule to  guide the  court, the  Judge re-
marked, was the conduct of parties towards the deceased;
and the acts of his relatives evinced no distrust of his sanity
or capacity."
   In this instance, the  testator  had been noted during life
for his eccentric habits, and  had actually  consulted a physi-
cian upon  the  possibility of his body  being devoted to
chemical experiments after death.*
   As to the mode of proving whether an individual is com-
petent to make a will,  this, of course, must  be according to
the ordinary rules of evidence.  A testator is always deem-
ed 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 incumbent on the devisee to show a lucid interval,

   * British and Foreign Med. Review, vol. 10, p. 138.  Morgan v. Boys. 
852
MENTAL ALIENATION.
or the sanity of  the testator at the time  of  executing the
will.*
  It may sometimes, although  not  frequently happen, that
a will is required to be made by a person in apparently his
last illness, and  the opinion of the  physician as to his capa-
city  is asked.  The following directions with  others already
given, are here worthy of attention :  Avoid putting leading
questions, namely, those  which suggest  the answer  yes or
no.   Be not satisfied with having the instrument read over
to him, and  obtaining the assent of the  dying man, but re-
quire him to dictate the  provisions of the document.   " If
he does this  accurately,  there  is no doubt of his having a
disposing mind."  In the other case, he may have assented,
although he did not understand the full  purport  of the in-
strument.!
  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 in-
capable 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 plaintiff examined several of the nobility and
principal  gentry of the county of Worcester, who frequently
and  familiarly conversed with the testator during that whole
period, and  some on  the day whereon the will was made ;
and  also two eminent physicians who  occasionally attended
him, and who all strongly deposed to the entire sanity, and
more than ordinary vigor of the testator.  Other testimony
corroborative of this, was adduced ; the validity  of the will

  * Johnson's Reports, vol. 5, p. 144. Jackson ex dem. Van Duzen and others,
v. Van Duzen.
  In  a case, however, where the attesting witnesses were disinterested medi-
cal men, and gave evidence strongly in favor of the testator's sanity, the Ec-
clesiastical Court would not set aside the will, on proof by interrogatories,
without plea,  that the deceased, seventeen vears before,  had been under an
insane delusion. (Haggard's Ecclesiastical Reports, vol. 3, p. 273.  Kemble
and Smales v. Church.)
  t British and Foreign Med. Review, vol. 10, p. 147. 
MENTAL ALIENATION.
853
was established, and subsequently several of the defendant's
witnesses were tried, and convicted of perjury.*


   •  Of the deaf and dumb; their capacity,  and the morality
                        of their actions.

   On this subject, little can be found in our jurisprudence ;
but  the general rule, deducible from adjudications, both in
civil and criminal cases, is, that they must  be  judged  of  ac-
cording to the intelligence  and knowledge they are known
to possess.   A deaf and dumb person, educated at the pre-
sent day under Sicard  or Braidwood, or  in one of the esta-
blishments 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.!
   A person born deaf and dumb, is competent as a witness,
provided he evinces sufficient understanding.  This was  de-
decided in the following case :
   At the Old  Bailey, January sessions, in 1786, on the trial
of William Bartlett for simple grand larceny, John Ruston, a
man deaf and  dumb from his birth, was produced as  a wit-
ness on the part of the crown.   Martha Ruston,  his  sister,
being examined on  the voir dire, it appeared that she  and
  * 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 signa-
ture of a deed from his wife, whilst she was  in extreme labor pains.  The
judges decided that she was not at that time in the full exercise of her rea-
sonable 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 understand-
ing, as wanting all those senses which furnish the human mind with ideas."
But if he grow deaf,  dumb  and blind, not being born so, he is deemed non
compos mentis ; and the same rule applies to him as to other persons supposed
to be lunatics.  (Blackstone, vol. 1, p. 304.) See also Dyer's Reports, 56 a.,
Yong v. Sant.
  The Code of Justinian appears to have considered the deaf and dumb as
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.)
"The disabilities which the Roman law and the older  codes of every European
Jurisprudence  imposed on the deaf and dumb,  were  all founded on the prin-
ciple, surdus natus est mutus et plane indisciplinabilis, as Molinaeus has it."
(Edinburgh Review, vol. Gl, p. 219. Amer. Edit.) 
854
MENTAL ALIENATION.
her brother had been, for a series of years, enabled to un-
derstand each other by means of certain arbitrary signs and
motions, which time  and necessity had  invented between
them.   She  acknowledged that these  signs  and motions
were not significant of letters, syllables, words or sentences;
but were expressive of general propositions and entire con-
ceptions 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 Chris-
tianity ;  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 per-
fect notions of the vast and complicated system  of the  Chris-
tian religion, and  thence  the witness could not  with pro-
priety 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  in-
structed  in the nature of the proceedings against him, was
also urged against the admissibility of the witness.
  But the  court  overruled the objection, and John Ruston
was sworn to  depose " the truth;"  and  Martha Ruston,
" well and truly to interpret to John Ruston, a witness here
produced in  behalf of the King against William Bartlett,
now a prisoner at the bar, the  questions and demands made
by the court to the said John Ruston, and his answers made
to them."  The  prisoner  was  found guilty,  and received
sentence of transportation for seven years.*
  In the case of Morrison v. Lennard, the witness had been
born deaf and dumb.  An  interpreter was sworn, who put
questions to him by signs  made with his fingers, and was

  * Phillip's Law of Evidence, p. 14.  Leach's cases in Crown Law, p. 455. 
                                                    855
                  MENTAL ALIENATION.               "^

answered in the same mode.  The interpreter said, that he
spelt  every word  to  the witness completely.   It appeared
that the witness was  able to write.
  Chief  Justice Best observed, "I  have, been  doubting,
whether as this lad  can write, we ought not  to  make him
write his answers.  We are bound to adopt the best mode.
I should certainly receive the present  mode of interpreting
even ,in a capital  case, but  I think, when the witness can
write, that is a more  certain mode.*
   In Scotland the deaf and  dumb may be witnesses, if of
 sufficient  intelligence to understand the nature of an oath.
 Thus the chief witness in a case of rape was deaf and dumb,
 but had been instructed,  and her intelligence proved by an*
 examination of her teachers.!
   But, in the case of James Whyte, charged, in April, 1842,
 at the Circuit Court of Justiciary held at Stirling, in Scotland,
 with robbery, the principal witness  James Shaw, was called,
 and  one of the crown witnesses, named M'Fariane, having
 been sworn to act as interpreter, M'Fariane deposed that he
 had known Shaw from  his  earliest years, had been on  in-
 timate  footing with him, and was,  on that account,  able to
  communicate with him better  than any other person whom
  he knew ; that Shaw was not born  deaf, but became  so from
  disease,  about the  age  of  seven years; that he had been
  stone deaf ever since, and had lost, in a great measure,  the
  faculty of speech; that he could talk a little, but  so very
  inarticulately  that  none but those who were in the habit of
  communicating with  him  could understand his meaning;
  that the mode of communicating  with him  was partly by
  signs  and partly by the motion of the lips.  The interpre-
  ter having been desired by the court to repeat the oath to
  the witness,  after communicating with  him, stated, that
  though he believed Shaw to be naturally honest and trust-
  worthy, he  found  it  impossible to convey to his mind  any
  idea  of an  oath; that  the  subject  of their  communications

    * 3 Carrington and Payne, p. 127.  The Hon. John C. Spencer has kindly
   r1elnSomnV?mticeaof Criminal Law of Scotland, p. 436. 
856
MENTAL ALIENATION.
had always been about ordinary country matters, and that as
Shaw had received no education whatever, it was his decid-
ed  opinion that he could not comprehend the obligation of
speaking the truth.
  In these circumstances the court held that the witness
could not be  sworn, and he was accordingly rejected.*
  In France, if the accused cannot write, some person inti-
mate  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.!
  The deaf and  dumb are also allowed to obtain possession
of their real estate, if  they show sufficient understanding.
A female so situated, on attaining the age of twenty-one,
applied to Lord Hardwicke (1754) for this purpose.   Hav-
ing put questions  to the party in writing, and she having
given  sensible answers thereto in writing,  the  same was
ordered.J
  As  to the marriage  of the  deaf  and dumb, I  find the
following occurring before the supreme tribunal at Berne:
It appeared, that  Anne Luthi, the person  in question, an
exceedingly  pretty young woman, of twenty-five, and pos-
sessing a fortune  of  30,000 francs,  had been placed in a
deaf  and  dumb institution near Berne,  where she  had
received an excellent education.  On her return home to
Rohrbach, her hand was demanded by a M.  Brossard, who
had been  deaf from fourteen  years of age, and had  been
employed for some years as a teacher, in  the institution.
He  was thirty-two years of age, bore an excellent character,
and had saved some  money out of his  salary.  As Art. 31
of the civil code of Berne enacts that deaf and  dumb persons
could not marry without having  first obtained permission
from the  tribunal, Mdlle. Luthi made application in the
usual manner, but  was opposed by her relations and by the
commune  in  which she lived.  The grounds  of opposition

  * London and Edinburgh M. J. of Medicine, vol. 3, p. 486.
  t Code DTnstruction Criminelle, art. 333.
#  X Dickenson v. Blisset, 1 Dickens' Reports, p. 268.  See also on this sub-
ject generally, Johnson's Chancery Reports, vol. 4, p. 441, Brower v. Fisher. 
MENTAL ALIENATION.
857
were,  that Brossard had taken an undue advantage of his
position, in the  institution, to captivate  the young  girl's
affections—that it was to be feared that the children would
labour under  the infirmity of the parents—and that the
latter could not,  in case  they were like other children, give
them the cares required for a good moral  education.  The
objections relating  to  the children being proved, by the
testimony  of  medical men, to be  perfectly chimerical, and
letters being  produced  from the female herself, admirably
written,  breathing the  utmost affection for Brossard, the
court decided that as from their infirmity being mutual, and
their consequent habit of interchanging ideas by signs, they
were well suited to each other, and there were good grounds
for expecting that the female  would be happier with Bros-
sard, than  with  any other  person,  no  just  grounds  for
opposition existed,  and permission must accordingly be
given for the marriage.*
   As to criminal  cases the following may be cited:  A  deaf
and dumb person was indicted for  larceny in Massachusetts,
and  being sent to the bar for his arraignment, the solicitor
general suggested to the court that he was deaf  and  dumb,
but that the evidence would prove him of sufficient capacity
to be a proper subject for  a criminal prosecution, and that
he had formerly been convicted of  larceny, and  he moved
that one Nelson then in court, and an acquaintance  of the
prisoner, should  be sworn to interpret the indictment  to
him, as it should be read by the clerk.   The indictment was
accordingly read by a sentence at a time, and Nelson having
been sworn,  explained  its purport to him,  making  signs
with his fingers.  After which the court ordered  the trial to<
proceed, as on a plea of not guilty.!

  * AthcnEeum, July 30, 1842, p. 686.
  + 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 communicating his ideas  by signs, was  sworn as an interpreter to
him  The trial proceeded and he was convicted. King v. Jones.  (Leach'B
n C  Cases, p. 120.  See also King v. Steel, Ibid. p. 507.)
55 
858
MENTAL ALIENATION.
  A very curious case came before the court of justiciary in
Scotland, on the 1st of July, 1807.  The prisoner,  Jean
Campbell, alias  Bruce,  was charged  with murdering her
child by throwing it over the old bridge at Glasgow.   Mr.
McNeil, her counsel, stated an objection against her going
to trial, on the ground of her being deaf and dumb from her
infancy, and that he  was totally unable to  get any informa-
tion from her to conduct her defence.
  Mr.  Drummond, counsel for the crown, now  gave in a
minute, stating that  he was satisfied of the prisoner's being
deaf and dumb from her infancy, but he  offered to prove
that she was  capable of distinguishing between 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 ration-
ally ; made signs  to the turnkey of a certain description
when she wanted any thing, and when the  articles  were
brought her she seemed satisfied ; he has also seen her make
signs to herself, as  if taking something out  of her breast
and counting  it with  her hands; and  that when she  came
first into  prison, she clasped her hands together and made
a sign as if something had fallen from her back, and  seemed
to indicate distress  of mind; that he had seen her weep
while in prison ; and upon certain kinds of  food having been
brought  to her, he had  observed her express herself as if
satisfied; and when  she was weeping,  as before mentioned,
she  made the same signals as if something had fallen from
her back.
  Robert Kinniburgh, teacher of the Deaf and Dumb Insti-
tution, deposed, that he had seen the prisoner once in the

  By the law of the state  of Ohio, if a person stands mute, a jury is to try
whether he is so by the act of God, and if they find this, he is to be remanded
to prison, and not proceeded against until he recovers. The Reviewer very
properly asks, what is to be done with a person born deaf and dumb ?  (Ame-
rican Quar. Review, vol. 10, p. 46.) 
MENTAL ALIENATION.
859
jail at Glasgow, and repeatedly in the jail of Edinburgh;
that he has had communication with her by means of signs;
in general he understood her,  but in particular instances he
did not; that she,  by her  signs, communicated to him the
circumstances which took place relative to her child; that
the death of her  child was altogether accidental, and that
when it happened, she was intoxicated ; that she communi-
cated 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 while she  was in the
act of putting her hand in  her breast, where she had money,
and which  she was afraid was lost, and by so putting her
hand into her breast he understood she had lost hold of her
 child, at which time the  child was asleep, and had then fall-
 en over the bridge.   She communicated to the witness, that
before the  act, she  had  that  day  drank eight glasses of
 spirits.   That his communications  with the prisoner chiefly
 turned upon the accident,  and that she seemed to understand
 him about as much as he understood  her; that is, in gene-
 ral, 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 herself, which leads
 him to think that she understands them : that she makes two
 or three other letters,  but is  not  sure  if they denote  her
 children or not.  He understood from her that she had three
 children, and that the one the accident happened to was one
 of them ; that he rather suspected that she was not married,
 as the children were to different individuals ; that as far as
 the  communications could take place betwixt him and the
 prisoner  she is a woman of  strong powers of mind:  that
 nothing  appears to have been wanting,  humanly speaking,
 to have  saved  her  from the  pitch of depravity  she appears
  to have  attained, but some hand to have opened for her the
  treasures of knowledge in proper time: that he conceives
  that the prisoner must be possessed  of the power of con- 
860
MENTAL ALIENATION.
science in a certain degree, and that she seems a woman of
strong natural affection towards her children,  as he was in-
formed by persons at Glasgow; and which she  manifested by
the indignant denial 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 per-
sons,  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
general.   That she communicated to the witness  her in-
dignation at  the fathers of the children for  the way they
used her, and one of whom she has sometimes represented
as her husband.  That sometimes  he  could not understand
whether  she  understood  the  ceremony of marriage or not,
or sometimes wished to evade  the questions,  or did not un-
derstand them ; that he has seen her use the form of a ring
as a token of marriage; and she  made signs that  that had
been taken away by the man she called her husband ; that is
to say, that the marriage  had been dissolved by him, and he
had taken another wife.   That from what he saw of her at
Glasgow, as well as what he observed in the jail  of Edin-
burgh, he is convinced  she  was  aware that she was to be
brought  at Glasgow  before a  court of justice, and that he
was confirmed in this from his having a conversation with a
woman there, who seemed to understand her  signs  perfectly
well  in  general; and who mentioned to him that she had
made signs  to  her with  regard to the dress of the judges:
that he  understood that she connected the death of her child
with  her appearance in  court.   (Being 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 T)  Answers, 
MENTAL ALIENATION.
861
that from the way in which he put it,  by asking  her  by
signs,  whether she threw her child over  the bridge or notl
he thinks she could plead not guilty by  signs,  as  she has
always communicated to him,  and this  is the  only way in
which  he can so put the question to her;  but he has no idea,
abstractly 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 hus-
band is, or  what  was  his name ; neither  could  she  commu-
nicate by natural signs any particular place, unless he had
been at that place with her before, or had some mark for it;
and that she could not communicate to him about any person
unless there was some sign by  which he  could bring that in-
dividual to her  recollection, or had been seen together in
certain circumstances; that in  referring  to the  accident, the
prisoner communicates that there was a baker's boy near her
who heard the  child  plunge  into the  water  and gave the
 alarm, and  that upon  this  she  laid her hands upon the ears
 of her little boy near her,  but  for what purpose he cannot
 say, unless to prevent him from crying out.
   Here  the court expressed a wish to see  Mr. Kinniburgh
 put the question  to  the witness in open court,  and  she
 answered by  signs in the same manner as he had described.
   The Lord Justice  Clerk  thanked Mr. Kinniburgh for his
 attention, and the assistance the court had derived from his
 professional 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 feigning to  be deaf and dumb : and that when he first
 saw her, she did not  seem to understand his signs so well  as
 after  being visited  by Mr. Kinniburgh; and the  witness
 made that observation to Mr. Kinniburgh himself: that he 
862
MENTAL ALIENATION.
 had communications the first time with her as to the loss of
 her child, and used signs in regard to a child then in prison,
 as if throwing  it away; upon  which she made the  same
 signs as to the accident, as she has  now done to Mr. Kinni-
 burgh 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 hav-
 ing 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,
 mentioning that  he had visited the prisoner in prison, and
 was of opinion that she was altogether incapable of plead-
 ing 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  information the counsel on each  side could  procure
 and furnish.  The court then ordered informations on each
 side to be prepared and printed.
   At a subsequent period, the judges delivered their  opin-
 ion as follows:
   " Lord  Hermand was of opinion that the panel (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
 Taw, to be no pleading whatever. 
MENTAL  ALIENATION.
863
  " 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  panel was
doli capax quoad the actual crime she was charged with.  It
was true  that  this  was  a new  case  in Scotland,  but in
England  a case of a similar nature had occurred.  One Jones
was arraigned  at the Old Bailey in 1773, for stealing  five
guineas.   He appeared to be deaf and  dumb.  A  jury was
impannelled to try whether  he wilfully stood mute, or from
the  visitation of God; they returned  a verdict ' from the
visitation of God ;'  and it having appeared that the prisoner
had been in  the use of holding  conversation by  means of
signs, with a woman of the name of Fanny Lazarus, she was
sworn  an interpreter.  He was tried, convicted and trans-
ported.  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 panel
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 brought to
trial, and it turned out that the accident occurred in the way
she described it, she  would immediately be set at  liberty.
The court found her a fit object for trial."*
  * The first part of this case I have taken from an English newspaper, and
th* opinion of the iudges, from Smith's Forensic Medicine, p. 430.
  "The sequel of thisgis worthy of record.  The woman was brought to the
bar  and the indictment read in the usual form; the question was then put,
D-,,n'tv or not > Mr McNeil, the counsel for the prisoner, then rose, and stated
that  he could not allow his client to plead to the indictment, until it was
Plained 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 simpticiter.  Thus, though it is  established that a deaf mute is
JnHravax no means have yet been discovered of bringing him to trial.
  "Another interesting discussion  took place last winter in the High Court
nf Tusticiary, as to whether or not a deaf mute was capable of giving evi-
dence A rape had been committed on a deaf and dumb girl, and her evidence 
864                MENTAL ALIENATION.


   A  case quite  similar occurred at  the York  Assizes  in

England  in  1831.  The prisoner a girl deaf and  dumb, was

indicted for the murder of her infant bastard child.   Through

an  interpreter, she plead not guilty.   She  was then asked,

through the interpreter, if she  desired  to  challenge any  of

the  jurors.   The  interpreter  informed  the court that  he

could not make her  understand what was meant.   "I can-

not (he said) make  her understand any thing she has not

seen before.  I  can make her understand  what she was

brought here for, but I cannot make her understand for what

purpose  she now  stands  in court."   The  Judge (Parke)

impanelled a jury, to try whether she was sane or not, and

testimony to the above effect  having  been given by two

witnesses, the jury  were  directed to inquire whether the

prisoner is sane, not  whether she is at this moment laboring

under lunacy,  but whether  she  has   at this time sufficient

reason to understand the nature of this  proceeding, so as to

be  able to conduct her defence with  discretion.   The jury

returned a verdict  that she was insane.*

   At  the  court  of Assizes of  L'Ardeche,  on the 25th  of

August, 1846, Lewis Chavanon, aged between fifty-five and


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
eould 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 testi-
mony must go for nothing."   (Dunlop.)
  The following extraordinary and untrue statement is made in the Foreign
 Quarterly Review for July, 1844 :  (Vol. 33, p. 360.)
  " It was under the Restoration, also, and in  1826, in the cases of  Nadeau
and Fillerou,  both  deaf and dumb prisoners,  that Charles Ledru,  (in
France,) first raised  the question as to how far  the penal law was applicable
to a deaf and dumb person without instruction.  This medico-legal question
was treated by M. Ledru  with great general ability and enlarged physiolo-
gical views. Both prisoners were acquitted.   Mr. Cockburn did not disdain
to use many of the arguments of M. Ledru in his able and ingenious defence
of Daniel M'Naughten, at the Central Criminal  Court."
  It is quite sufficient to  add that the subject  in question was discussed as
above with great ability before the Scotch Courts in 1807.
   * Lewin's Crown Circuit Reports, p.  65.  Case of Esther Dyson.
  Rex  v. Prichard, (7 Carrington and Payne, p. 303,) is a precisely similar
case, occurring in 1836, and here also the prisoner was found not  capable of
taking his trial.  In this, as well as Dyson's case, the prisoners were ordered
to be confined in prison during the king's pleasure. 
MENTAL ALIENATION.
865
sixty years, was arraigned  for murder.   His countenance
was  remarkably expressive, and' he signified by gestures to
the court, that he was deaf and  dumb.   A near neighbor
was  sworn as  interpreter.
  It  appeared  in evidence, that Chavanon had been deaf and
dumb from birth ; that he is, notwithstanding, a man of intel-
ligence,  and of  extremely  violent temper and vindictive
habits, so as to be feared by many.  He appears particularly
to have treasured enmity against  all those who at any time
had  made purchases from his father.
  A witness deposed, that repeatedly Chavanon had threat-
ened to shoot him, if he found him on  land which he.had
purchased three  years  previous  from the father, and these
threats deterred him from further purchases.
  M. Billon had purchased, about four years ago, from  the
father and brother of the criminal a part  of the house occu-
pied by them.   The entrance and stairs were to remain free
to both.   This  sale encountered the intense displeasure of
Chavanon, and his repeated threats induced Billon to retell
to a person named Treille.  The  hatred was now transferred
to the new purchaser.
   On  the 24th of May, Chavanon encountered froilie on
the  common stairs, and by shaking his fist and putting him-
self in the way, endeavored to  prevent his  passage  up.
Treille repelled him and caused him to stumble.  On rising
he drew a pistol from his pocket  and fired it after Treille,
inflicting a wound which caused immediate death.
   The violent temper  and malignity of the  accused were
proved even by his sister.   It appeared also, that he had for
a long time threatened injury to Treille and to his wife, so
that the  latter scarcely dared  to pass  in and out of the
door.
   The king's  attorney urged his punishment, on the ground
of his superior  general  intelligence.  He was sentenced to
ten  years imprisonment and to a payment of  1000  francs to
the  widow and chrldren.*

              ' 'iizctte des Tribunaux, Sept. 4, 1846. 
€■?
866                MENTAL ALIENATION.

   There  are  several  points connected with the subject of
mental alienation, which properly belong to Medical Po-
lice.  Of this nature are the general causes, and the possi-
bility of their removal; the treatment the insane should re-
ceive, and the care that the government  should bestow on
their safe keeping.*

  * There have been trials of deaf and dumb persons for robbery, in Paris.
They appear to have been uneducated, and were acquitted.  (Causes Cele-
bres du xix. siecle, vol. 4, p. 193.)  One of the cases is noticed in the Ameri-
oan Jurist, vol. 3, p. 158.
END OF VOL.  I. 
 
 
            "UlttMi.P - •) AND VV JCLW'.N .lilJLTK, J
         UBNEttAX  MAN'iOEB'S  Of-KICFi,    >
              RlC>:iK)]*D,V-\.» July 29,1873.  )

   THE  TRAINS  ON  '/JUS  ROUTE  run
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and v.w  P.M., arrifO"- at'TMersbursr at 6:10 A. M,
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  FREIGHT TRAINS; with a  passenger coach at-
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  RETURNING M-AID TRA3XS leave Weldon at
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the WasTMnrton-StFty* rlepoti.
  PULLMAN'S  PALACrO SLEEPING-CARS are
attachec M>all the N*hfc;Mlili'I^iafiiBs.
                      THOMAS H. WYNNE,
  jy 29          ___________General Manager.
s
Richmond, fkedismcksbdro and Potomac"!
         Kah,b#a» Oos&PAifx, Office of    I
GEXEr..fcL,Ticket.±m» Frmigst Agent,      J
                  Rtchmonik Junae 16, 1873.  J

   CHllDULE OS* TRAMS.

RICHMOND, FREDERICKSBURG AND POTO-
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P. M.f except on Sundays.)                       '
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NLM032783985