Chapter XIII: Introduction (1)

HAVING thus considered, as far as the limits of our work will allow, the Charters, Statutes, Laws and Privileges which regulate the several Public and Corporate Bodies instituted for securing the more regular practice of Medicine[229] in all its branches: and having commented also on the Rights, Immunities, and Liabilities, to which Medical Practitioners are entitled, or subjected, in their several individual capacities, and enumerated the prominent subjects relating to public health, it now remains for us to enter into the discussion of the most important branch of our subject; the most important because, though questions affecting corporate or individual privileges may be and occasionally are of great interest to the public, yet the general administration of justice, as affecting all classes of men in the enjoyment of their natural and acquired rights, stands on higher ground, and demands the best attention of all those who either as principals or assistants; who as judges, advocates, witnesses, or even spectators, are concerned in its due execution. For this reason, we are about to draw the attention of Medical practitioners to the nature and importance of the evidence, which they may be required to give in Courts of Law, on various subjects in which their science is not merely ancillary, but in the highest degree essential to the ends of justice. Nor are these subjects limited, as might at a first and superficial view appear, to the testimony required of physicians and surgeons in criminal cases, but extends in a greater or less degree through every branch of jurisprudence; nor can we yet assert that we have anticipated every point on which medical, chemical, and surgical questions may arise; as recent examples have evinced, that the rapid progress of science which has marked the last half century above all others, is daily eliciting new points both for scientific and judicial enquiry. We must therefore for the present content ourselves with following that arrangement of our subject which is afforded by a natural and immutable scale,—the life and propagation of the human species, from its commencement to its close:—prefacing the subject with some short remarks on the nature of evidence; not indeed as a legal guide to the medical witness, but to point out to him the sources of higher and more general information.

OF MEDICAL EVIDENCE GENERALLY.

As Physicians, Surgeons, and others conversant in medicine and chemistry, are constantly called upon to give testimony in Courts of Justice, it is necessary for us to enter upon this subject of the law of evidence, so far as it immediately affects the medical witness; it is proper that he should understand when he is bound to appear, and on what terms, and it may be useful for him to be prepared, by some previous knowledge of the usual course of examination, for the difficulties and objections which may arise in the progress of it. A scientific witness, fully acquainted with the subject in dispute, and by his particular knowledge well qualified to inform the Court on the most important points, is too frequently rendered miserable in himself, and absolutely ineffective to the ends of justice, by the diffidence which a man of real acquirement generally feels, when impressed at once with the novelty of his situation, a sense of the importance of the duty which he is about to perform, and a consciousness that the truths which he is about to utter, may be obscured, suppressed, or perverted, by technicalities for which he is unprepared with any defence; we do not mean to arraign the present forms of examination in general, when we assert that some abuse in practice too frequently places the witness in as painful a situation, as if he were himself a criminal.

Some knowledge of the law of evidence is the best security against this inconvenience; we propose therefore to lay down a few general rules on the points most likely to occur, and to refer our readers for more particular information to those works which expressly or incidentally treat on this subject.[230]

It is necessary in the first place to consider how the attendance of witnesses is to be compelled by process, under what terms they must appear, their liabilities if they fail to appear, and their duties when in Court.

The writ of Subpœna _ad testificandum_, is the ordinary process of the Courts for compelling the attendance of witnesses; by this the intended witness is required to appear at the trial at a fixed time and place, to testify what he knows in the cause, under the penalty of £100 to be forfeited to the king.

Four witnesses may be included in one subpœna, but a ticket containing the substance of the writ (which is to be shewn at the same time) is as effectual service as the writ itself, (5 _Mod._ 355). The service must be upon the witness in person, (_Cro. Eliz._ 130) and within reasonable time, before the trial, respect being always had to the residence and circumstances of the party.

In Civil suits, the reasonable expense of the witness in going to, staying at, and returning from the place of trial, must be tendered at the time of serving the subpœna: (5 _Eliz._ c. 10, f. 12): if this is not done, the Court will not grant an attachment against the witness (_Fuller v. Prentice_, 1 _H Bl. Rep_. 49) not even if he be present in Court, and refuse to be sworn; (_Bowles v. Johnson_, 1 _Bl. Rep._ 36). But where a witness lives within the weekly Bills of Mortality, it is usual to leave only one shilling with the subpœna: this limitation is not created by the statute of _Elizabeth_, nor have we been able to trace its origin.

The Judge will not compel a witness to be sworn till his reasonable expenses are paid him. (_ubi supra._)

If a witness fail to attend on subpœna, without sufficient excuse, he is liable to be proceeded against in one of three ways. 1. By attachment for a contempt of the process of the Court, from which even a Peer is not exempt. 2. By a special action on the case for damages at common law. 3. By an action on the Statute of _Elizabeth_ for the penalty of ten pounds (5 _Mod._ 355), and for the further recompense recoverable under the Statute; but this must be by the party _aggrieved_, and where the further damage has been assessed by the Court, out of which the process issued. Formerly no remuneration was given to witnesses attending the trial of criminal causes, yet they were bound to appear unconditionally, for “Criminal prosecutions are of public concern, and a witness summoned to appear on a criminal trial has a public duty to perform; and he ought not to be at liberty to make a bargain for his appearance, as he may in the case of a civil suit, where only private interests are involved.” (_Phill. on Evid._). But as such attendance must frequently have been productive of considerable hardship, especially to poor persons, the Statute 22 _Geo._ 2. _c._ 3. _s._ 3. enacts, that when any poor person shall appear on recognizance to give evidence in cases of larceny or felony, the Court may order the Treasurer of the County to pay such person, such sum as to the Court may seem reasonable: as this Statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpœna, it was afterwards deemed reasonable by the Legislature, that every person so appearing on recognizance, or subpœna, should be allowed his reasonable expenses, and also in case of poverty, a satisfaction for his trouble and loss of time. (_Phill. on Evid._). The Statute 18 _Geo._ 3. _c._ 19. _s._ 8. therefore enacts, that “Where any person shall appear on recognizance or subpœna to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the Grand Jury, it shall be in the power of the Court (provided the person shall, in the opinion of the Court, have _bonâ fide_ attended in obedience to such recognizance or subpœna,) to order the Treasurer of the County or Division, in which the offence shall have been committed, to pay him such sum as to the Court shall seem reasonable, not exceeding the expenses, which it shall appear to the Court the said person was _bonâ fide_ put unto by reason of the said recognizance and subpœna, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time.” These Statutes apply only to cases of felony; on prosecutions therefore for misdemeanors, and in other cases not specially provided for by Act of Parliament, the Court is not authorized to order a compensation to witnesses for their attendance; (7 _T. R._ 377: see also _Burn’s Justice_, _tit. County Rate_). As these Acts, and the 45th _Geo._ 3. _c._ 92. which compels the attendance of witnesses in any part of the United Kingdoms, their expenses being first tendered, do not meet many possible and probable cases of extreme hardship, it is to be wished that some further enactments may be made on this subject: it has indeed been doubted whether the obligation on witnesses in criminal causes is as peremptory as we have stated, (1 _Chitty on Criminal Law_, p. 612), but the weight of authority appears to be on the other side. Mr. Serjeant _Hawkins_, 2 P. C. p. 620, observes that “to persons of opulence and public spirit this obligation cannot be either hard or injurious; but indigent witnesses grow weary of attendance, and frequently bore their own charges to their great hindrance and loss;” and Sir _Mathew Hale_ (2 P. C. 282) complains of the want of power in Judges to allow witnesses their charges, as a great defect in this part of judicial administration.

Our present object is to show that whatever hardship may exist in this point in general, it presses with peculiar severity on medical practitioners,[231] to whom time is most valuable, and the nature of whose profession requires that they should be continually within reasonable distance of their ordinary place of residence; to them therefore the tender of mere traveling expenses becomes a very insufficient compensation: the same policy which exempts them from attendance on other public duties may suggest the propriety of allowing them some adequate indemnity when their assistance becomes indispensable, and this not only for their private and immediate advantage, but ultimately for the public benefit; for if properly remunerated for their attendance, practitioners of a superior class would not be unwilling to devote some portion of their time to the assistance of public justice; whereas under the existing system it is notorious, that all who can, will avoid the burthen; and the duty therefore devolves on those who are least competent to its execution: this evil is particularly apparent on Coroner’s Inquests, where the opinion of a shop-boy has often been allowed to determine a question _in limine_, which properly investigated, might have required the first science to obtain a satisfactory result.

As attendance is more burthensome on a professional man than on others, so also it is more frequently called for; men in general can only be summoned as witnesses when they have, or are reasonably supposed to have, cognisance of the particular facts in question; and he may therefore deem himself peculiarly unfortunate or imprudent, who is often present at such scenes as give rise to criminal investigation; but the medical practitioner, in addition to his liability of being called in for his assistance, and so becoming acquainted with facts, may also be summoned on matters of opinion; those therefore who stand highest in public estimation as men of science and research, will be most frequently burthened with the execution of painful and unprofitable duties; we do not believe that they will shrink from the performance of them when necessary, but we may express a hope that they may be rendered as little burthensome as their nature will allow.

Great difficulties must always arise in the examination of a medical or chemical witness, where the examining party is uninformed or at least very partially acquainted with the science in question; for it is next to impossible for Counsel so to frame their examination of a scientific witness, as to elicit the whole truth unless they are, by previously acquired knowledge, acquainted with the bearings of each answer upon the case which they are maintaining; and though there are a few instances of persons of such superior talent, that they can collect from the mere information of their briefs, so much knowledge as will enable them to perform this duty, with credit to themselves and satisfaction to their clients and the public; yet such instances are rare, and even those most gifted will admit that there is a most material difference between examining a witness on matters of fact of which all persons who have applied themselves to the laws and nature of evidence may be competent judges, and the examination of abstract opinions, and speculations of philosophy or physics, where the examiner can as little follow the reasoning of a witness as if he spoke some foreign and unknown language. For it is impossible within the compass of any ordinary _viva voce_ examination to elicit all the points on which explanation may be necessary, or to remove all the doubts which may give occasion to future controversy; hence questions of this kind are seldom determined at the first hearing, but are repeatedly brought before the Courts in the form of new trials; the cases of _Severn, King & Co._ against several Fire Insurances Offices, which in part suggested the undertaking of the present work, may serve as an elucidation of this point. The causes were conducted by professional men of the first eminence, the Judge who presided well known for his love of science, and from having attained more knowledge in several branches of natural philosophy, than can usually be acquired by those whose time is engrossed by severer studies; the witnesses were among the best Chemists of the day, yet the question (simple as it might at first appear) whether oil or sugar at certain temperatures, and under certain circumstances, should be considered the more inflammable substance, occupied three days on the first and six days on the second trial. Notwithstanding which, a third trial took place involving the same question, and controversial pamphlets were published on both sides on the nature and supposed contradictions of the evidence.

It has been supposed that medical practitioners may avail themselves of the privilege enjoyed by legal advisers,[232] and that they are not bound to divulge the secrets of their patients, reposed in them in the course of professional confidence;[233] undoubtedly this confidence ought not to be violated on any ordinary occasion, but when the ends of justice absolutely require the disclosure, there is no doubt that the medical witness is not only bound, but compellable to give evidence; ever bearing in mind that the examination should not be carried further than may be relevant to the point in question; of this the Court will judge, and protect the witness accordingly. In the celebrated trial of the Duchess of _Kingston_, before the House of Peers, (11 _Harg._ St. Tri. 243) this point of medical liability was raised by Mr. _Cæsar Hawkins_, and determined by Lord _Mansfield_ in the following words: “I suppose Mr. _Hawkins_ means to demur to the question upon the ground, that it came to his knowledge some way from his being employed as a surgeon for one or both parties; and I take for granted, if Mr. _Hawkins_ understands that it is your Lordships opinion that he has no privilege on that account to excuse himself from giving the answer, that then, under the authority of your Lordships judgment, he will submit to answer it: therefore to save your Lordships the trouble of an adjournment, if no Lord differs in opinion, but thinks that a Surgeon has no privilege to avoid giving evidence in a Court of Justice, but bound by the law of the land to do it; if any of your Lordships think he has such a privilege it will be a matter to be debated elsewhere, but if all your Lordships acquiesce, Mr. _Hawkins_ will understand that it is your judgment and opinion, that a Surgeon has no privilege, where it is a material question, in a civil or criminal cause, to know whether parties were married, or whether a child was born, to say that his introduction to the parties was in the course of his profession, and in that way he came to the knowledge of it. I take it for granted, that if Mr. _Hawkins_ understands that, it is a satisfaction to him, and a clear justification to all the world. If a Surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a Court of Justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.” The examination consequently proceeded.

The observations of Mr. _Haslam_, in his work on _Medical Jurisprudence_ as it relates to Insanity, (London 1817) are so pertinent to our present subject that we shall give them in his own words: “The important duty which the medical practitioner has to perform, when he delivers his testimony before a Court of Justice, should be closely defined, conscientiously felt, and thoroughly understood,—his opinion ought to be conveyed in a perspicuous manner; he should be solemnly impressed that he speaks upon oath, the most sacred pledge before God between man and man—and that the life of a human being depends upon the clearness and truth of his deposition: he is not to palm on the Court the trash of medical hypothesis as the apology for crime; neither should the lunatic receive his cure at the gallows by the infirmity of his evidence; but above all, his opinion should be so thoroughly understood by himself, so founded by experience and fortified by reason, that it may resist the blandishments of eloquence and the subtil underminings of cross examination. The Physician should not come into Court merely to give his opinion—he should be able to explain it, and able to afford the reasons which influenced his decision—without such elucidation opinion becomes a bare dictum.”

“It is to be regretted that on many occasions, where several medical practitioners have deposed, there has been a direct opposition of opinion:—this difference has sometimes prevailed respecting insanity, but more frequently in cases of poison. It is not intended to account for this contrariety of evidence; much will depend on the sagacity of the Counsel to institute the proper enquiries, and still more will be incumbent on the medical evidence, in order to explain and establish his testimony.

“The lawyer’s object is the interest of his employer, and for the fulfilment of his duty he is frequently compelled to resort to a severity of investigation which perplexes the theories, but more frequently kindles the irritable feelings of the medical practitioner. This distrust on the part of the lawyer, however unpalatable, is fully justified, most witnesses going into Court with the preconcerted intention of _proving_ to a certain extent:—and those most conversant in the history of human testimony, have been extremely scrupulous of admitting it as uniform truth until it has been carefully sifted. Guarded with these precautions, and armed with professional experience, the medical practitioner may approach the tribunal of justice with confidence and advantage to the cause of Truth. However dexterous he may shew himself in fencing with the advocate, he should be aware that his evidence ought to impress the judge and be convincing to the jury.” Their belief must be “the test by which his scientific opinion is to be established. That which may be deemed by the medical evidence clear and unequivocal, may not hit the sense of the gentlemen of the long robe, nor carry conviction to the jury.”

There is a natural propensity in human nature, from which the most honorable minds are not free, to view all questions through the medium of some preconceived opinion; in law and politics it is every day evident, in physic and in science it is too often apparent. Hence our law has wisely contrived its modes of _vivâ voce_ examination, in which the judge, the jury, and the counsel, on both sides, are equally empowered to sift the truth, and thus counteract the leaning which any witness may be supposed to have towards the party producing him: a foreign writer of celebrity objects to this method, and prefers the mode adopted generally on the continent of requiring written reports or depositions; we leave our readers to conclude how liable such documents are, especially with a people of lively imagination, to become controversial pamphlets, straining on either side for victory, and not for truth.

As to the mode in which a medical witness should deliver his evidence, very different advice appears to have been given by different authorities; while some impatient of delay, and dreading the arts of examination, recommend their pupils or readers to open at once all the stores of their reasoning and information; others, fearing the effect which cross-examination may have on nervous or embarrassed witnesses, advise that no more shall be disclosed than categorically meets the question of the counsel; and to this we incline, with this difference, that, as we should deem too costive a retention of the truth as blamable as the flow of garrulity with which we have sometimes seen a court overwhelmed, we recommend the witness to steer a middle course, first answering patiently, distinctly, and tersely, the questions put by the Counsel on both sides, the Court and the jury; and if none of these elicit the whole truth, and any material point remains to be disclosed, the presiding judge will always admit and gratefully receive the additions or explanations which may be necessary to the ends of justice.

The witness is next to consider, what is and what is not evidence: we cannot follow this subject in all its bearings, nor indeed is it here necessary, a few points must however be remembered; and first of notes; these if taken upon the spot or immediately after a transaction, may be used by the witness to refresh his memory; and as to dates, numbers, or quantities, it is generally expedient to have them; the notes should be original, not copies; if there be any point in them which the witness does not recollect except that he finds it there, such point is not evidence, for the notes are only to assist recollection not to convey information.

The witness must relate only that which he himself has seen or observed; that which he has heard from others is not evidence as coming from him; except indeed where some expressions or declarations of the parties concerned have become a part of the _res gesta_. but the declarations of a dying man are evidence when related by a third person on oath, though the party making them was not sworn, for the law presumes that the solemnity of the occasion may dispense with the form, and that a man, trembling on the brink of eternity, will never risk salvation by falsehood. To give this weight to a declaration, it is necessary that the party should believe himself to be dying; Mr. Justice _Bailey_, is reported to have said, that the party must be satisfied that recovery was impossible: we think the reporter must have been mistaken; for such a rule would exclude all such declarations; hope is the latest faculty of the human mind. “I am better,” has not unfrequently been the last articulation of expiring nature.

How far and in what cases opinion is evidence, is next to be considered; in ordinary matters where, from a statement of facts, the jury, in the exercise of sound and ordinary understanding, are capable of arriving at a just conclusion, the opinion of a witness is neither requisite or admissible; but in matters of science it is otherwise, provided that he backs his opinion by such reason as may be satisfactory to the understanding of his hearers; and this is the principal qualification of a medical witness, that he make himself _intelligible to ordinary comprehensions_.

No man is bound to give any evidence by which he may render himself liable to any criminal prosecution. At the Old Bailey Sessions, in June, 1821, Mr. _George Patmore_ was tried for the murder of _John Scott_, in a duel. Mr. _Pettigrew_, (a surgeon,) was the first witness called.

Mr. Justice _Bailey_.—Mr. _Pettigrew_, I think it necessary to give you this caution, if you think the evidence, which you are about to give likely to expose you to a criminal prosecution, you are not bound to give it.

Mr. _Pettigrew_. My Lord, I am not competent to form any opinion of my legal guilt; I have not taken the part of principal or second. The part which I have taken was merely to exercise my professional duty; in that I do not think there is any moral guilt.

Mr. Justice _Bailey_. If you went (knowing a duel was to take place) for the purpose of giving surgical assistance, I apprehend that you are liable to a criminal prosecution.

Mr. _Pettigrew_. Then, my Lord, I must decline answering any questions.

Mr. Justice _Bailey_. I recollect having seen a surgeon of eminence tried in this court, on a similar occasion.

Neither Mr. _Pettigrew_, nor his assistant, were examined.

Dr. _Darling_, who had attended the deceased after he had received his wound, deposed that he heard Mr. _Scott_ on his death bed say——

Mr. Justice _Bailey_. Did Mr. _Scott_ at that time think himself in danger: did he give up all hopes of recovery?

Dr. _Darling_. No. To the last he entertained hopes of recovery.

Mr. Justice _Bailey_. The declaration made by a dying man cannot be received as evidence, unless the party at the time of making it were satisfied that recovery was impossible.

We have before noticed the limitation with which we believe this supposed rule must be taken.

With the exception of dying declarations, all evidence in criminal matters, must be upon oath, therefore the affirmation of a quaker cannot be received on a coroners inquest.[234] In the too celebrated case of the Oldham Inquest on the body of John Lees, Mr. _Earnshaw_, a quaker surgeon,[235] who had attended the deceased, though much urged refused to be sworn, and his testimony was consequently rejected; a paper was subsequently delivered to the jury, containing the matter of his observation; this was very properly resented by the Coroner, as an illegal attempt to influence the jury, who by their oaths were bound to admit no information which wanted that legal sanction. While we were writing this article we were surprised to find that a Coroner for the County of Surry had permitted the letter of a Physician to be read to the jury, as evidence that a person deceased was of unsound mind; and on this evidence, (for we can scarcely suppose that the servants deposition to rheumatic headaches, was allowed to weigh,) a verdict of insanity was returned: we shall have subsequent occasion to comment on this _mala miserecordia_.

OF MARRIAGE.

As both our civil and religious institutions consider the matrimonial union as a necessary preliminary[236] to the legal propagation of our species, this as far as it is connected with medical science, will form the first subject of enquiry, in which we are to investigate who are and who are not capable of contracting this relation.[237] And this being a point originally of ecclesiastical jurisdiction, we shall in its examination, follow the order of the civilians, so far as it is necessary to our purpose; we shall accordingly consider the capacity of persons to contract marriage in respect of age, mental capacity, and corporeal fitness. Another question arises from consanguinity; and this though neither founded in nor determinable by medical evidence, may deserve a moment’s attention, since it is evident that the prohibition of marriage to certain degrees of kindred, though it may not have been suggested by physiological reasoning, is well warranted by it. Experience demonstrates both in the human and brute creation,[238] that a race continually bred through the same blood without admixture of a foreign stock, becomes small, weak, and degenerate; this is a fact too well known to the agriculturist in breeding cattle to require further observation. And it is fatally displayed in the royal and noble families of some foreign countries, whose policy has been supposed to require frequent intermarriages, and whose princes and nobles are thence distinguished from their countrymen by their animal, and frequently by their mental inferiority. Those who have travelled in the south of Europe will not be at a loss for examples in elucidation of this principle.

Many questions may arise on the first point; for, though the Act of the 26th of _George_ 2. _cap._ 33. commonly called the Marriage Act, has fixed the age of twenty-one years[239] as the period in both sexes before which this contract cannot legally take effect by the mere act of the parties. Other points may still arise as to the age at which marriage may take place, the statuable precautions of banns or licence having been complied with.

According to the canon law and the doctrines of precontracts (now exploded)[240] or rather from the abuse of both, infants of the most tender age were formerly betrothed to each other; and this precontract they were considered as bound to complete and perform when they should arrive at a sufficient age; the civil law indeed says,[241] “though spousals are not limited to any age, yet infancy is not esteemed in the calculation: _id est si non sint minores quam septem annis_”[242]. Our law however appears, and with good reason, to have fixed upon the supposed age of puberty, fourteen for boys, and twelve for girls, as the earliest period at which marriage should be contracted. Yet even these relative ages, though somewhat too tender either for public policy or domestic happiness, are not invariably the times of puberty; in some instances it is anticipated, in many delayed. If therefore the law of England, in this as in most other matters of Ecclesiastical jurisdiction, follows the Canon law, which “pays a greater regard to the constitution than the age of the parties; for if they are _habiles ad matrimonium_ it is a good marriage, whatever their age may be,” it becomes an important medical question to consider who are and who are not _habiles ad matrimonium_ in respect of nonage.

It is equally, or perhaps more important, that the parties be _habiles ad consensus_, in respect of mental capacity; for though in an old case _Style_ and _West_, 3 _James_ 1. _Roll. Ab._ 357, it was held that an idiot _a nativitate_, might consent to marriage[243], by later resolutions it has been determined otherwise, because consent is necessary to marriage, and idiots are not capable of consenting to any thing, so also of a lunatic, unless the marriage was in a lucid interval. But as it may be difficult to prove the exact state of the party’s mind at the actual celebration of the nuptials, therefore the statute 15 _Geo._ 2. _c._ 30. has provided that the marriage of lunatics and persons under phrenzies, (if found[244] lunatics under a commission, or committed to trustees by any Act of Parliament) before they are declared of sound mind by the Lord Chancellor or the majority of such trustees, shall be totally void. 2 _Burn. Eccl. Law_ 416. 1 _Bl. Com._ 439. _Collinson on Lunatics_, 554.

Persons deaf and dumb may contract marriage, for they can give their consent by signs: 2 _Burn. Eccl. Law_, 415. _Swinb. s._ 15. 3 _Potier_, 165.[245] but it is essential, that they should be competent in all other respects, for there must always be a _prima facie_ suspicion that a person born deaf and dumb, by absence of the ordinary means of instruction, must be of imperfect capacity.[246]

The third consideration is whether the parties are _habiles ad procreandos liberos_ in respect of corporeal ability, for that being the ultimate use and intention of marriage, the contract cannot be good unless the parties are in the condition of performing it;[247] except indeed where the incapacity arises from old age; _volenti non fit injuria_, and though neither the law of the land, nor the law of nature has, as far as it is known to us, prescribed any well-defined limit to the generative capacity,[248] yet after a certain period it may at least be so far doubtful as to create an implied waiver between the contracting parties.[249]

Some foreign jurists and schoolmen have maintained, that the institution being solely _ad procreandos liberos_, it is a profanation of the rite to celebrate it between parties incapable;[250] but this doctrine is repelled by our liturgy, which even prescribes the omission of the prayer for procreation where the woman is past the age of childbearing;[251] how the priest is to ascertain this point we leave the civilians to determine.

But a much more material question of medico-legal policy arises, as to the marriages of those who are afflicted with some serious hereditary disorder, or predisposition to disorder,[252] as _Scrofula_, _Mania_, &c.[253] in such cases public policy might induce an absolute prohibition,[254] but humanity would pause before it added this bann of excommunication to the misfortunes of its object; a middle course might be adopted: Mahon[255] says that the Protestant church admits epilepsy as a good cause of divorce, and that _Alberti_ has handed down a decision of the faculty of Halle on this subject; we do not know any English case on the point, and very much doubt whether our ecclesiastical courts would admit the principle; unless indeed it were made out, that the disorder constituted a moral impotence, or that one of the parties could not perform the contract but at the risk of life.

FERNELIUS is of opinion that old people beget weak and diseased children, “_Senes et Valetudinarii imbecilles filios vitiosa constitutione gignunt_.” PORTAL supports the same opinion, and thinks that the older people are when they have children, the more likely they are to have acquired imbecillity or disease, and to transmit the same to their children, from whom they may become hereditary, (_Portal_, “_Sur la nature et traitement de quelques maladies hereditaires ou de famille_”). This is altogether a popular error; what innumerable instances, says Dr. Adams, might be cited, in which the younger branch of a family has revived its splendour, which had been decaying for a succession of ages: the late Mr. Pitt was the youngest son, born when his illustrious father was in the fifty-first year of his age.

OF DIVORCE OR NULLITY.

If either of the parties professing to contract marriage be at the time defective in the points enumerated in the preceding section, it is a good ground of divorce; but to establish such defect, and especially the defect of corporeal ability, the strongest evidence must be adduced,[256] not merely on the general maxim that the best possible evidence which the case will allow must always be produced, but also as the particular fact to be proved is or may be contrary to the general order of nature, and therefore requires more than ordinary proof for its establishment: to such points therefore the medical practitioner is required to give his most sedulous attention, first to the question in the abstract, contrasting his own experience with the opinions and traditions which he may find upon the subject, and divesting his mind of all speculative and theoretical doctrines which he does not find supported by well authenticated facts; thus prepared his second object will be an attentive, accurate, and scientific examination of the immediate case in question. The defect may be mental[257] or corporeal; thus it may proceed from antipathy to a particular woman, when it has been called _impotentiam_ or _maleficium erga hanc_; this was the alleged case of the Earl of Essex, in the time of _James_ the 1st; for which see 1 _Harg. St. Tri._ 315: 2 _How. St. Tri._ 786.; and for the very curious argument and narative of _Abbot_, Archbishop of Canterbury, see 10 _Harg. St. Tri. Appendix_, p. 4. How far this case may be depended on, except as a beacon to show us what we ought to avoid, may be exceedingly doubtful. The character of the Lady Essex, afterward infamous as Countess of Somerset for the murder of Sir _Thomas Overbury_, may lead us to suspect every species of imposition and falsehood. The Judges, according to the testimony of their coadjutor the Archbishop, had predetermined to decide in favor of the divorce; no sufficient evidence appears to have been required or received, and the king, making himself at once the advocate and partisan of his unworthy favourite, urged the business with an indecent and arbitrary heat. From the worst of the _Stuarts_, and the pedantic believer in witchcraft (for _maleficium_[258] was then used in this sense) such conduct was not extraordinary; in the present day we may boast with confidence that similar interference would be impossible. With these defects, the case of the Earl of Essex can be of little or no use to the medical jurist; and unfortunately we have no other which is reported with sufficient accuracy or authenticity; we say unfortunately, because though there may be much of good policy and correct feeling in the determination of our Civilians to conceal the detail of such cases from the public eye,[259] yet by drawing their line too strictly, they run no inconsiderable risk of totally excluding those lights of science, of which in so dark and intricate a subject they must necessarily stand in need. It is true that the ecclesiastical courts may have the benefit of medical evidence in every case which is brought before them, but this evidence will be necessarily imperfect, unless founded on previous study, and some knowledge of the points, to which the practice of the Court will require the witness to direct his attention. In France, where causes of this kind may perhaps have been more frequent, and where less reserve is used than suits our national character, several cases have been published, for which see the _Collection des Causes celebres_, and _Bayle’s Dictionary, tit. Quellenec & Parthenai_, with the references there given.

We have stated that the defect of corporeal ability[260] may proceed from mental or bodily causes; of the former the instances must be exceedingly rare, and the latter are certainly not numerous: but the reader will find the information which he may require upon this subject in the following physiological illustrations.

VARIOUS QUESTIONS CONNECTED WITH THE FOREGOING SUBJECTS, ELUCIDATED BY
PHYSIOLOGICAL RESEARCHES.

1. OF AGES, ESPECIALLY THAT OF PUBERTY.

As the period of puberty is intimately connected with the subject of Marriage, and as the age of an individual has many other important relations with civil and criminal transactions, we shall take this occasion to consider the several physiological points which the subject necessarily comprehends.

The age of man is estimated, as it was in the days of David, at _three score years and ten_—not more, however, than one in eighty reaches the tottering confines of mortality, and it has been correctly stated, that one half who come into life, leave it again before the expiration of their _eighth_ year; of a _thousand_ children born in London, _six hundred and fifty_ die before the age of _ten_. It has been computed by Herodotus, and acknowledged as correct by our ablest authors on political arithmetic, that three generations of men pass away in a century, and consequently the whole human species cannot be said to divide one with another more than _thirty-four_ years of existence. The astonishing longevity of the Antediluvians[261] has given rise to much discussion, but neither the researches of the learned, nor the reasonings of the ingenious, have hitherto thrown any light upon the subject; nor is the question of any importance in relation to the objects of the present work; the medical jurist is alone interested in the existing laws of mortality, and in those exceptions which may occur in their general dispensation.

The several ages, or stages of man’s existence, have been differently determined, according to the particular views which have suggested the division, especially as they relate to legal or physiological objects; on the present occasion it is to the latter of these that we have more particularly to direct our attention. _Aristotle_ marked three grand and obvious divisions in our existence, that of GROWTH—that during which we remain apparently STATIONARY—and that of DECLINE; each of which has been subdivided by subsequent authors,[262] so as to constitute seven ages: thus the stage of Growth includes _Infancy_, _Second Infancy_, or _Boyhood_ (_Pueritia_) and _Adolescence_; the stage, during which we appear to remain stationary, consists of _Youth_ (_Juventus_) and _Manhood_ (_Ætas Virilis_). The last division—DECLINE, embraces _Old Age_, and _Decrepitude_. The philosophers and physicians of Greece were led to adopt several divisions corresponding with their superstitious reliance on the powers of certain numbers; _Varro_ divided life into five portions; _Solon_ into ten; but Hippocrates, Proclus, and the greater number of the ancient writers acknowledged SEVEN AGES, a division which has been very generally adopted by the poets and philosophers of later times; in proof of the opinion of the former, we may adduce the testimony of Hippocrates,[263] who says, εν ανθρωπου φυσει επτα εισιν ωραι, and in confirmation of the truth of our remark upon those of the latter, we may remind the reader of the celebrated passage in Shakspeare,[264] in which the progress of human life is so beautifully illustrated. The duration of each of these stages has moreover been considered as under the influence of the same mystical numbers, and will generally be found to be a multiple of _seven_, for the ancient physicians were persuaded that every period of seven years effected some material alteration in the human system; thus _Solon_, although he divided life into ten stages, considered each stage as a _Septenary_;[265] so with the Canonists there are _six_ ages, but the duration of each is _seven years_, or some multiple of that number; thus, INFANTIA from _one_ to _seven_; PUERITIA from _seven_ to _fourteen_;—ADOLESCENTIA from fourteen to _twenty-eight_;[266]—JUVENTUS from _twenty-eight_ to _fifty_; (Quere, _Forty-nine_?)—ÆTAS SENILIS from _fifty_ to _seventy_;—SENECTUS from Seventy.[267]—Before we quit the conceits of the Numerists, we may state that in their notions the number _Nine_ was supposed to possess some mystic power in relation to our ages; and for this reason, superstition has attached considerable apprehension to the age of _sixty-three_, in as much as being the multiple of both the numbers so important to our existence, viz. 9 × 7[268]. This period of life has accordingly been anticipated with fear, and passed with exultation; a conceit, which has been perpetuated in our own times, under the imposing title of the _Grand Climacteric of Life_, while its antiquity is shewn by the memorable letter of AUGUSTUS to his nephew CAIUS, in which he encourages him to celebrate his nativity as he had escaped _sixty-three_.

We shall now proceed to consider the SEVEN AGES of man in detail.

INFANCY—_Infantia_—(from _Infari_, not able to speak) commences at birth, and terminates at the _seventh_ year. The signs by which the age of an infant may be computed, are derived from its moral as well as physical characters; and as circumstances connected with medico-judicial inquiries may render the problem of importance, we shall proceed to offer some data that may assist its solution. The feebleness and size of the infant; its epidermis yet reddish, and wrinkled; its face covered with down; its head soft, and the _fontanelles_ greatly extended; the eye but little sensible to light, and lastly the appearance of the navel, are circumstances which will at once lead the medical practitioner to the conclusion of its not being many days old; while its smiles and tears, its upright posture in the nurses arms, the thickness and whiteness of the skin, the plumpness of its thighs and buttocks, the eagerness with which its eyes seek and follow brilliant objects, its agitation on the occurrence of noisy sounds, and its eager desire for the breast, are occurrences which will, according to the force and degree of each, announce the child’s progress towards the _third_, _fourth_, or _fifth_ month. The pleasure which it testifies at the sight of its nurse, its jealousies, and other passions, the habit of carrying its fingers and different objects to its mouth, the facility and pleasure with which it chews bread, and the copious discharge of saliva, announce the approach of dentition, and assure us that the infant must be in its seventh month. The progress of dentition will at this period afford some farther data; towards the end of the _seventh_ month the middle INCISOR teeth of the inferior jaw perforate the texture of the gums; and soon afterwards the corresponding INCISORS of the upper maxilla make their appearance; then the lateral INCISORS of the inferior, and subsequently those of the superior jaw; about the _twelfth_ or _fourteenth_ month, sometimes sooner, the first of the MOLARES of the under, then the corresponding teeth of the upper jaw appear; the four CUSPIDATI are usually protruded through the gum the last; thus the CUSPIDATI and the second MOLARES will sometimes appear at the same time, and this is usually between the _twentieth_ and _twenty-fifth_ month; so that at, or soon after _two years_ of age, the twenty temporary or _milk_ teeth[269] are to be found in situ. It must however be remembered that the formation and appearance of the _milk_ teeth are subject to considerable variety, and there are some examples on record, though very uncommon, of children born with two Incisors in the upper maxilla, but such teeth have been found to be imperfect in their structure, and without fangs, and they have consequently soon been detached; in other cases, children, although enjoying perfect health, have not cut a single tooth until the end of their second year. Nor are the other signs to which we have alluded, as affording indications of the age, to be considered as immutable; the infant may have been more or less retarded, or accelerated in its march of developement by its state of health and vigour, and it deserves remark, that scrophulous and _rickety_ children very commonly present an aspect of intellectual precocity, by no means commensurate with their age; and hence the popular notion has arisen, that very intelligent children rarely continue to live. The fact of this premature expansion of the mind is too apparent to be doubted; but philosophers have endeavoured to explain it upon very different principles; the physiologist has sought the cause from some peculiarity in the organization of the body, while the moralist has attempted to account for it by supposing that in consequence of the inability of these subjects to partake of the sports and exercises suitable to their years, they necessarily enjoy more of the instructive society of their parents and preceptors.

PUERITIA—_Second Infancy_—_Boy-hood_. At about the age of _Seven_ years, _Detentition_, or the shedding of the temporary or milk teeth commonly commences, in order to make room for the adult set; and this event is considered as marking the arrival of the second epoch, and which, in its turn, is terminated at _fourteen_ or _fifteen_ in boys, and at _twelve_ or _thirteen_ in girls, by that peculiar change which the constitution undergoes, and which we have hereafter to consider under the head of Puberty. Persons of this second age are called _Pueri_, or _Impuberes_, not being considered as yet in possession of the complete powers of reason, although they may be allowed to possess some faint ideas with regard to the customs and habits of society; their memory is also most clear and comprehensive, but it soon becomes governed by the imagination.

ADOLESCENCE or _Puberty_.—This important and tumultuous epoch of our existence commences at about fourteen in males, and at twelve in females, and ends at twenty-one, or later according to constitution, habit, and climate. The body having nearly completed its stature, its powers of growth are directed into other channels; and in the male, the beard begins to sprout; the voice becomes fuller, deeper, and more sonorous;[270] the parts of generation acquire the magnitude which they afterwards preserve, and become shaded with hair; the whole volume of the body augments, and at the same time assumes a character so decidedly masculine, as at once to proclaim the sex of the individual in whom it appears; in addition to these general changes, the secretion of the seminal liquor by the testicles commences, and the individual thus irritated by new desires, soon distinguishes the means of gratifying them, and the _life of the species_ may be said to commence its existence. Nor are the moral changes which take place less remarkable, or less characteristic of the period of puberty than those which appertain to his physical condition; his mind acquires increased tone, and his manners and habits assume a more manly character; these changes however do not immediately succeed, and we are much inclined to admit with _Zacchias_[271] the existence of three gradations in Adolescence, _Incipient_ Puberty (at about _fourteen_), Puberty (from _seventeen_ to _twenty_), and _Perfect Puberty_ (from _twenty_ to _twenty-five_). These distinctions are undoubtedly founded in nature, and are admissible both in relation to sexual and intellectual maturity. Important changes likewise occur at this critical age, with respect to the extinction or kindling of disease; in cases of hereditary predisposition, the particular malady will frequently remain dormant until the age of puberty; this is particularly evinced in maniacal affections,[272] in consumption, and other scrophulous diseases. The phenomena which attend the accession of puberty in females are not less remarkable than those which we have described as occurring in males; and although there is neither the change of voice, nor the production of hair on the face, so remarkable in the other sex, yet the body enlarges in volume, the breasts swell with exuberance, and the excess of vitality no longer required for general growth, invests her limbs with those rounded and graceful forms, which have so universally constituted the theme of the poet, and the admiration and study of the artist: but the most remarkable change which the female system undergoes at this period is indicated by the commencement of a periodical sanguineous discharge[273] from the vessels of the uterus, and which from the monthly interval that it observes has received the name of _Menses_. The period of life at which this change takes place is under the control of various moral and physical circumstances, as climate, temperament of the individual, habits of living,[274] &c. In tropical climates puberty takes place at an earlier period than in northern latitudes; in Greece, the Corea, Indostan, and Java, girls begin to menstruate at eight, nine, or ten; in Spain, Sicily, and the Southern part of Europe, at twelve; but advancing to the northern climes, there is a gradual protraction of the time until we come to Lapland, where women do not menstruate till they arrive at a maturer age, and then in small quantities, at long intervals, and sometimes only in summer.[275] This difference in the time of life at which puberty takes place, has been ingeniously assigned by _David Hume_ as the reason why women in hot climates are almost universally treated as slaves; and why, on the contrary, their influence is so powerful and extensive in colder regions; for in the former, woman may be said to be in the zenith of her beauty while she is yet a child in understanding, and long before her intellect is matured she ceases to be an object of love; but in temperate countries her personal charms and intellectual endowments are simultaneous in their progress to perfection; the united force of her beauty and mental qualities is irresistible, and man voluntarily pays to her the homage which her powers are so well calculated to command[276].

There are, moreover, many cases on record[277], in which both males and females have prematurely arrived at the stage of puberty; a most remarkable instance of this precocity is recorded[278] by Mr. Anthony White, in the history of Philip Howorth, and the author of the present work can bear testimony to the correctness of the statement, for he had frequent opportunities of seeing him, and of tracing from time to time the constitutional changes which so rapidly succeeded each other in the first two years of his existence. Dr. Wall has presented us with a similar instance of precocity in a female infant, in whom the menstrual flux appeared at the age of nine months[279].

Various methods have, at different times, been adopted for determining the age of puberty. One sect of ancient Roman lawyers, called _Cassiani_, fixed it by the state of the body, which _Justinian_ and others after him suppose to have been done by a personal examination, at least in the male sex; for as to the female it is pretended that the twelfth year was the only guide; though others allege that the eruption of the menses served instead of it. The _Proculiari_, on the contrary determined the puberty of males by the expiration of the fourteenth year. _Javolenus_ pursued a middle course, and made use of both methods.[280].