Chapter XVI: Introduction (4)

Q. 10. _What are the causes of Abortion?_

A gratuitous assumption on the part of some writers respecting the _viability_ of the fœtus, has led them to adopt a division into _abortion_ and _premature labour_, according as the exclusion from the uterus takes place before, or after, the sixth month of conception; and the distinction is now generally adopted. Natural abortion may be considered as arising either from accidental or constitutional causes; we shall hereafter consider the different modes by which the premature ejectment of a fœtus may be occasioned by art. The exciting causes of accidental abortion may, in general, be easily detected[443]; those giving rise to the constitutional kind are often more obscure, and without great attention, the woman will go on to miscarry until either sterility or some fatal disease be induced. In many cases there can be no peculiar pre-disposing cause; as, for instance, when it is produced by blows, rupture of the membranes, or accidental separation of the decidua; but where it occurs without any very perceptible exciting cause, it is allowable to infer that some pre-disposing state exists, and this frequently consists in an imperfect mode of uterine action, induced by age, former miscarriages, and other causes. It is well known that women can only bear children until a certain age, after which the uterus is no longer capable of performing the action of gestation, or of performing it properly; now it is observable, that this incapability or imperfection takes place sooner in those who are advanced in life before they marry, than in those who have married and begun to bear children earlier; thus we find, that a woman who marries at forty shall be very apt to miscarry; whereas, had she married at thirty, she might have borne children when older than forty, from which it may be inferred, that the organs of generation lose their power of acting properly sooner, if not employed, than in the connubial state.[444] We also find that one miscarriage renders the woman liable to the accident at the same period of utero-gestation in subsequent labours, and to such an extent is this susceptibility carried, that it is often difficult with every precaution, for a woman to go to the full time, after she has miscarried frequently. These are circumstances which the juridical physician is, for obvious reasons, to keep in mind; females of disreputable character have been frequently known to miscarry repeatedly in succession; and in such cases we ought not, without very cogent reasons, to draw an inference that may subject them to accusation. We do not consider that any farther observations are required upon this subject, as the numerous works upon midwifery are ready to supply the practitioner with a solution of any problem which may present itself.

Q. 11. _Under what circumstances, and by what means, is it morally,
legally, and medically proper, to induce premature labour?_

That premature labour may be induced by a mechanical operation, is too well known to the practitioner in midwifery to require any explanation in this place, while, in a work calculated for circulation beyond the confines of the profession, it would be obviously imprudent to enter into any minute details. It becomes our duty, however, to state, that in those cases of distorted pelvis, through which a full grown fœtus cannot pass without mutilation, the operation may be performed with perfect safety, and with equal advantage both to the child and to the mother. We are informed by _Dr. Denman_[445] that there was in 1756 a consultation of the most eminent men in London at that time, to consider of the moral rectitude of, and advantages which might be expected from, this practice, which met with their general approbation; the morality of this mode of practice, however, says _Dr. Merriman_,[446] has been doubted by many other persons, but probably for want of considering the question in a proper point of view; for the proposal was, that labour should be prematurely induced, _in those cases only_, where it had been _decidedly proved_ that the pelvis was so much contracted in its dimensions, as to render it impossible for a full sized fœtus to pass undiminished; and it is supposed, that this proceeding, while it affords a chance of preserving the child, does not much implicate the life of the mother. _Mr. J. Barlow_[447] has given us the result of an extensive practice in inducing premature labour in cases of distorted pelvis, from which it appears that he has had recourse to this method of delivery _eighteen_ times, in five women, all of whom had been previously delivered once, or oftener, by the crotchet, and that premature labour occurred spontaneously once in two of this number. All the women recovered, a circumstance which adds a further confirmation to the opinion, that the life of the parent is exposed to very little hazard in this way; of the children thus brought into the world, _six_ were dead and _twelve_ were born alive, of which some died soon after birth, _one_ lived ten months, and _five_ were living at the time the account was published. _Mr. Barlow’s_ method consists in exciting premature labour _early_ in the _seventh_ month of pregnancy. _Dr. Hull_, well known for his controversial zeal on these subjects, has offered some remarks so judicious and important, that it would be an act of injustice to withhold them from the reader. “The propriety of inducing premature labour,” says he, “in any deformed woman, can rarely, if ever, be determined upon before the crotchet has been found indispensably necessary, and actually employed in a previous labour; indeed, unless the contraction of the tube or canal of the pelvis be very considerable and pretty accurately ascertained, it will scarcely be justifiable in any case to have recourse to this practice in all the subsequent pregnancies, until the woman has been delivered a second, or third time, by the crotchet; for it has happened in a very great number of instances, that a woman who has been delivered of her first child by the perforator and crotchet, has been afterwards delivered of one or more living children, at the full time; this observation is made not to discountenance the inducing of premature labour, but to prevent the abuse of it.” _Dr. Merriman_, whose extensive practice, and generally acknowledged judgment, stamp a peculiar value upon his opinions, has also pointed out the limitations and cautions which he deems necessary to be observed, to render this operation safe and eligible,[448] and he concludes by observing that “_a regard to his own character should determine the accoucheur, not to perform this operation, unless some other respectable practitioner has seen the patient, and has acknowledged that the operation is advisable_.”

Q. 12. _What circumstances will justify the Cesarean Operation, and of
what value is the section of the Symphysis Pubis, or Sigaultian
operation?_

Where the size of the pelvis[449] will not admit the passage of the child, surgical aid is indispensably necessary; but, says _Dr. Merriman_,[450] it becomes every man to set out with a determination that he will not hastily, nor without due cause, have recourse to instrumental assistance;[451] for he may assure himself that if he were easily to yield to his own apprehensions, or to the expressions of alarm by the attendants in the lying-in chamber, and in consequence were to try to expedite the delivery by his instruments, he would, on very many occasions, do irreparable injury to the parent or her child.

Instrumental delivery resolves itself into three classes,—

1. _Where neither the mother nor the child is of necessity injured_, as
by the use of the FORCEPS[452] and LEVER.[453]

2. _Where the mutilation of the child is the principal object_, as by
the PERFORATOR and CROTCHET.

3. _Where the mother is wounded_, as in the CÆSAREAN and SIGAULTIAN
operations.

It is of the latter class we have now to speak.

_Of the Cæsarean Operation_:

By which a fœtus is extracted from the uterus of the mother through a wound, made for that purpose, in the abdomen. The term _Cæsarean_, according to some authors, is derived from the operation “_cæso matris utero_,” while others have supposed that it owes its origin to the fact, recorded by _Suidas_, of Julius Cæsar having been cut from the womb of his dead mother in the ninth month. Although _Hippocrates_, _Celsus_, _Paulus_, _Ægineta_, and _Albucasis_, all treat upon the subject of instrumental labours, not the slightest allusion is made to the _cæsarean_ section. The _Chirurgia Guidonis Cauliaci_ is the first work in which any mention is made of the operation; and this was published about the middle of the fourteenth century, but the author only describes it as a resource to save the child after the death of the mother, as, says he, happened at the birth of _Julius Cæsar_. _Parè_ also considered the operation as one that ought never to be attempted on the living subject; _Rousset_, however, his cotemporary, published a work[454] in its favour, which becoming popular, was, through the medium of a latin translation by _Caspar Bauhine_ in 1601, quickly circulated throughout Europe; from this period, the cæsarean section acquired a certain degree of vogue, and began to be performed in cases of extreme difficulty, particularly on the continent, where it has not unfrequently proved successful. In this country the operation has been generally fatal: a very extraordinary case[455] is, however, stated to have occurred in Ireland, and however incredible the story may appear, says _Dr. Merriman_,[456] there seems no reason to doubt its truth; it is related by _Mr. Duncan Stewart_, surgeon, in Dungannon, who saw the patient some days after the operation; and the account is confirmed by _Dr. Gabriel King_ of Armagh, who says, that he drew out the needles, which the midwife had left to keep the lips of the wound together. The patient’s name was _Alice O’Neil_, and the operator was an illiterate midwife, one _Mary Dunally_; the instrument used was a razor, with which she first cut through the containing parts of the abdomen, and then the uterus. “She held the lips of the wound together with her hand, till some one went a mile and returned with silk and the common needles which tailors use; with these she joined the lips in the manner of the stitch employed ordinarily for the hare-lip, and dressed the wound with whites of eggs.” The woman recovered in twenty-seven days. It has often been an object of inquiry, why this operation[457] should have been more successful upon the continent than in this country? the answer to this question is obvious and satisfactory. In this country we have only had recourse to it as an operation of necessity, where we can neither accomplish the delivery by diminishing the bulk of the child, nor by any of the other resources already explained; whereas the practitioners of France, and the other states on the continent of Europe, perform it not only as an operation of necessity, but as one of election, in cases where the mother may confessedly be delivered with safety, by sacrificing the life of the fœtus; it would also appear that in general they have recourse to the operation, before the patient has suffered very much from the continuance of labour. How greatly this circumstance is capable of influencing the success of a surgical operation, we have a satisfactory demonstration in the history of that for _Hernia_, and in which _Mr. Bell_[458] informs us, the French were formerly more fortunate, because they proceeded more early to the operation than the surgeons of almost any other nation. It deserves notice that the religious tenets of different countries appear to have influenced the popularity of the cæsarean section; it is easy to suppose that in those catholic nations where, a belief exists of the necessity of baptism to secure the eternal happiness of the infant, the mother would become a willing sacrifice to make her offspring a christian.[459].

In delivering our opinion upon the propriety of performing the cæsarean section in this kingdom, we should say that there are cases in which it is the bounden duty of the accoucheur to proceed without delay, and such appears to have been that described by _Dr. Merriman_, of which the pelvis in the museum of _Mr. Charles Bell_ is a sufficient proof; for so extreme is the distortion, that a marble measuring less than one inch in diameter, cannot be made to pass through it in any direction; in this case, and some others of a similar nature, the _Cæsarean_ section was the only means of preserving the child. We are of opinion, however, that the operation ought never to be performed where by _Embryulcia_ the child can be extricated; and although circumstances of inheritance should induce the husband to entertain a feeling like that which animated Henry VIII, the practitioner has but one broad line of duty to observe, to save if possible the mother and child, but where this is impossible, to feel no hesitation in sacrificing the life of the latter. In the event of a woman, near the full time of pregnancy, dying undelivered, the _Cæsarean_ operation ought always to be performed with as little loss of time as possible; since by this measure a chance of preserving the child will be afforded, and _Dr. Merriman_ states that several cases of such an operation, after the death of the mother, have been recorded, with the desired effect of saving the infant.[460] _Numa Pompilius_ prohibited the burial of a pregnant woman until the fœtus shall have been extracted.[461] We have already stated, upon the authority of _Suidas_, that to such an interposition Rome owed the life of _Julius Cæsar_; and it has been maintained that _Edward_ VI was thus taken from his mother after death, while others have endeavoured to render it probable, that the cæsarean operation was performed while she was yet living. How long after the death of the mother the child may survive _in utero_, is a question which cannot be readily answered; some authors[462] mention twenty-four or even forty-eight hours; and in relating this fact, _Dr. Merriman_ adds an accompaniment which we also feel a great inclination to adopt—_a note of admiration_! In the late _Dr. S. H. Jackson’s Cautions to Women_ (1798) mention is made of a child extracted by the _forceps_, which was restored to life, though the mother had been dead full half an hour before it was taken from the womb.

It must be admitted, that a child taken from the womb of its mother by the cæsarean section, cannot in philological strictness be said to have been _born_. The ingenious purpose to which _Shakspeare_ has applied this quibble has no doubt suggested itself to the reader.

_App._ Macbeth! Macbeth! Macbeth!
* * * * * * *
Be bloody, bold, and resolute: laugh to scorn
The power of man; for _none of woman born_
Shall harm Macbeth.

_Act_ iv, _sc._ 1

_Macd._ * * Despair thy charm;
And let the angel, whom thou still has serv’d,
Tell thee, _Macduff was from his mother’s womb
Untimely ripp’d_.

_Act_ v, _sc._ viii.

The circumstance merits our observation, in as much as it has furnished a subtlety for disputation, as we have already noticed at page 225.

OF EXTRA-UTERINE CONCEPTION.

It sometimes happens, that instead of the impregnated ovum passing into the womb, it is either retained in the ovarium,[463] or it stops in the fallopian tube, or it misses the tube and falls amongst the bowels. Of these, the _tubal_ is by far more frequent than the _ventral_ conception. We learn from the numerous cases which are recorded of extra-uterine pregnancy, that it may terminate in several different ways; in some cases sudden death occurs from hemorrhage;[464] in others, the unfortunate woman survives for a long period; and it has occurred that the fœtus has been converted into a substance somewhat analogous to the _gras de cimetières_,[465] in which case very little inconvenience is felt beyond that which must attend the tumour of the belly for so many years. Nature, however, more generally institutes a process to get rid of the extraneous body; the sac adheres to the peritoneum or intestines, and, after an uncertain period, varying from a few weeks to several years, it either opens externally, or communicates with the abdominal viscera, and highly offensive matter, together with putrid flesh, bones, and coaguli, are discharged through the abdominal integuments, or by the rectum,[466] vagina, or bladder.[467]

The most extraordinary circumstance in the history of these conceptions is the sympathetic enlargement of the uterus, and even in some cases, the formation of the _Membrana Decidua_.[468] _Riolanus_[469] was the first person who noticed these conceptions. _Vesalius_ observed a _tubal_ conception at Paris in 1669; the fœtus was four months old, and the tube was so enlarged, that he mistook it for a second uterus, and actually published an account of it, under the title of “_Demonstration d’une double Matrice_.” _De Graaf_, and afterwards a learned German by the name of _Elshotius_ commented upon this case in a tract entitled “_De Conceptione Tubaria, qua humani fœtus extra uteri cavitatem in tubis quandoque concipiuntur_,” in which is given the figure of the two supposed _uteri_, and the fœtus in the distended tube. In the _Journal des Sçavans_, A. D. 1678, a case is recorded of a woman at Paris who carried an _extra-uterine_ fœtus in the omentum for twenty years; and in the _Philosophical Transactions_ there is an account of a fœtus of this description, by _Dr. Steigerthal_, that remained in the body of the mother for upwards of _forty_ years. In the present state of our physiological knowledge it is impossible to offer any explanation of the cause of these anomalies in the law of Nature, but we recommend to the attention of the student a paper by _Dr. Blundell_, on the Physiology of Generation, to which we have before taken occasion to allude[470] in terms of high commendation.

OF HERMAPHRODITES.

The term _Hermaphrodite_[471] signifies an animal in which there exists a mixture of the male and female organs, and which is therefore capable of begetting or conceiving. There can be no doubt but that some of the lower orders of animals[472] are, in the strict sense of the term, Hermaphrodites; but it is now universally admitted that, in the human species, no such phenomenon ever existed; indeed, if we only consider the osteology of the pelvis, to the bones of which the organs of generation are connected, it is impossible to imagine how the complete parts of the male and female could be placed distinct from each other; nor is there upon record a single case which can be considered authentic;[473] numerous are the instances of preternatural structure, which gives the appearance of a double sex, and it is on the nature of such monstrous productions, that the medical man is frequently called upon to decide. _Baron Haller_ has industriously collected in one point of view, the histories of reputed hermaphrodites, from almost every author that has preceded him; and from this memoir,[474] and the interesting paper by _Sir E. Home_, entitled “An account of the Dissection of an Hermaphrodite Dog, to which are prefixed some observations on Hermaphrodites in general,”[475] we acknowledge ourselves principally indebted for the following remarks.

_Sir E. Home_ considers that all the monstrous productions, hitherto noticed and described as Hermaphrodites, may be reduced to one of the _four_ following classes, viz:

1. _Malformations of the Male._ 2. _Malformations of the Female._ 3.
_Males with such a deficiency in their organs, that they have not the
character and general properties of the male, and may be called_
NEUTERS. 4. _Where there exists a real mixture of the organs of both
sexes, although not sufficiently complete to constitute double
organs._

To illustrate the first case, we may refer to that of a negro described by _Cheselden_,[476] who would appear to have possessed the organs of the male exclusively, only in a state of great distortion, owing to the imperfection of the _scrotum_, which was divided into two separate bags with a deep slit between them, resembling very much the _labia pudendi_, and the opening into the vagina; over these hung down the penis; the imperfection of the septum of the _scrotum_ extended to the canal of the _urethra_; this is not unlike the fissure of the hare-lip being continued through the bony palate, a circumstance often met with. The under surface of the _penis_ was attached, through its whole length, to the two bags containing the testicles, looking like a preternatural _clitoris_; to which it bore a more perfect resemblance from the absence of the _urethra_. The urine passed through a preternatural termination of the _urethra_ in the _perineum_, and came out externally in the space between the testicles, which formed an enlarged aperture that had been mistaken for a narrow vagina, in consequence of its allowing an instrument to pass to some distance, by conducting it to the bladder. Such mal-formation of the male organs[477] is particularly worthy attention, for it is that, more than any other, which has given origin[478] to mistakes respecting the mixture of the sexes. The _lusus_ often occurs in different degrees of imperfection, and may in some instances be materially diminished by art. In the _second_ case, it may be observed that there are two mal-formations of the female organs of generation, which may give to the external parts a doubtful character; one is an enlargement of the _clitoris_; the other, a protrusion of the internal parts. It has been already stated that enlargements of the _clitoris_ are not of rare occurrence, especially in hot climates; and that at birth it is often larger than the penis, and has frequently given rise to mistakes; so that females have been baptised as males.[479] The following remarks may serve to lead to a correct decision upon these occasions:—If the subject be a female, the labia are well formed, and when handled no round bodies are felt in them like testicles; the fissure at the extremity of the glans does not communicate with any canal of the urethra; but under the glans, and at the posterior extremity of the fissure, there is an opening which leads immediately to the bladder.[480]

The other mal-formation of the female genital organs consists in a protrusion of the internal parts, of which we have already given an example (_see page_ 28); the womb when thus displaced, has assumed so close a resemblance to the penis, that it has been actually mistaken for one by medical men of the highest character, as in the instance related by _Sir. E. Home_ in his paper upon Hermaphrodites; another case is also published in the _fifteenth_ volume of the _Philosophical Transactions_, in which the menses periodically flowed through the orifice of the supposed penis. With respect to the third order of imagined hermaphrodites, which _Sir E. Home_ has called _neuters_, and where the subject, although a male, has not, in consequence of organic defects, the characters of his sex, has been said to be more common than is generally supposed, especially in early life, and that by farther developement the anomalies have sometimes disappeared; it is, probably, as _Sir E. Home_ very justly observes, only those whose form is very like females, that have attracted the notice of common observers, so as to have their defects discovered. _Ambrose Paré_ mentions a case, where by violent exertion, the male organs of generation became suddenly developed, and the person who had before been considered as a female, was admitted to the rights of manhood; and a similar case is recorded by _M. Veay_, as having happened at Thoulouse, (_see also Montaigne’s Essay, chap._ xx.) The examples which fall under the fourth order are very uncommon in occurrence,—where there is a real mixture of the organs of both sexes, although not sufficiently complete to constitute double organs; indeed we are very much inclined to question whether a real participation of the nature of both sexes ever takes place; in almost every case where due examination has been made, such persons have been found to belong decidedly to the one sex or to the other. _Petit_[481] has reported the dissection of a soldier, aged twenty-two, who had not only the testes in the abdomen, but also a womb, and nearly the whole apparatus of the female genitals; in this, as well as similar stories, we are disposed to think with _Dr. Gordon Smith_,[482] that things have been called by wrong names.[483]

OF IDIOTS AND LUNATICS.

ALTHOUGH the right of a child to succession and property be established by proving its legitimacy, such right may be suspended or controlled by various incapacities. Idiotism and Lunacy alone require our immediate notice; for though non-age be another impediment to the exercise of a child’s rights, and the fact may sometimes admit of medical elucidation, yet the instances must be rare, and the question will more properly belong to the head of Criminal responsibility; “Idiocy or not is a question triable by jury”[484]; “and sometimes by inspection;” it is distinguished in law from madness[485] & lunacy, being _dementia naturalis vel a nativitate_[486], depending generally on a defective organization, whereas madness and lunacy are _dementia accidentalis_, the former continual, the latter intermittent,[487] both varying in degree, danger, and resistance to cure, yet both capable of cure or palliation by medical treatment, and pre-eminently subjects of medical jurisprudence.[488].

An idiot[489] or natural fool is one that hath had no understanding from his nativity, and is therefore by law, presumed never likely to attain any;[490] 1st. _Blackstone’s Commentaries, c._ 1, _p._ 302. It has been held that an inquisition finding that a person has not had any lucid intervals _per spatium octo annorum_, was a good finding of idiocy; _Prodgers and Phrazier_, 3 _Mod. Rep._ 43, _Skinner’s Reports_, p. 177, and Lord _Donegall’s Case_, 2 _Vesey’s Reports_, p. 408,[491] _contra Prodgers and Phrazier_, 1st _Vernon’s Reports_, p. 12. _see_ 1st _Fonblanque’s Treatise of Equity_, p. 63; but as a person may not have been mentally incapable _a nativitate_, and therefore not an idiot, and yet be affected with madness without lucid intervals, and therefore not legally or logically a lunatic; the better general distinction appears to be, whether the party is _compos_ or _non compos mentis_,[492] but see 1st _Blackstone’s Commentaries_, p. 304, 1st _Fonblanque’s Treatise of Equity_, p. 63, and cases cited there; Lord _Hardwick’s_ Judgment in _Ex parte Barnsley_, 3d _Atkyn’s Reports_, 168,[493] Lord _Eldon’s Judgment in Rigeway and Darwin_, 8th _Vesey’s Reports_, 65; Lord _Erskine’s Judgment in Ex parte Cranmer_; 12th, _Vesey’s Reports_ 445; and _Collinson on Lunatics_. By which authorities it will appear that the jurisdiction of the Court of Chancery[494] over the persons and estates of lunatics extends to those who, being of infirm mind by reason of grief, accident, old age, disease or other cause, are incapable of managing their own affairs.[495]

A person born deaf and dumb is not of necessity an idiot, for he may have received instruction by signs, _Dickenson and Blissett_, 1st _Dicken’s Reports_, 268, but if he be also blind, the presumption is that he is an idiot; Lord _Coke_ indeed says that those who become so, being also deaf and dumb, are idiots, _Coke’s Littleton_, 42; 1st _Blackstone’s Commentaries_, 304, and they are, so far as the jurisdiction of the Court of Chancery extends; for though they may have some mental faculty it is impossible that they can exercise it for the management and protection of their property.

Habitual drunkenness[496] will not alone support a commission of lunacy, _Cory and Cory_, 1st _Vesey_, _Senr._ 19, but in _Ridgeway and Darwin_, 8th _Vesey_ 66, Lord _Eldon_ stated that a commission had been supported on this ground.

Among the legal disabilities under which persons, non compos, labour, one of the most material to the medical adviser is connected with the disposal of property by will,[497] and it is most peculiarly his duty to observe, as in most cases his situation will enable him to do, whether the testator was or was not of sound mind, memory, and understanding, at the time of making his will; for it can scarcely be necessary to observe, that many, who during the greater part of their lives have been of sound mind, gradually lose their faculties towards its close, and become liable to the impositions, restraints, and in some cases even to duress, accompanied with cruelty of those about them, to the disgrace of humanity, and the injury of their lawful kindred; in such cases the medical attendant alone obtains access, it is to him therefore that the law will look for the detection, exposure, and defeat of frauds. An idiot cannot make a will, but a lunatic may, during a lucid interval; and subsequent lunacy does not operate as a revocation of a will. _Forse and Hembling’s_ case, 4 _Co._

If a person be improperly confined under pretence that he is a lunatic, the remedy is by habeas corpus, directing the keeper to bring the party into court; but if it appears on affidavit of some competent person that the party is actually lunatic, and in such a state of mind that he is not fit to be brought into court[498], and more especially if a commission of lunacy is about to be issued, the court will enlarge the time for the return of the writ according to the nature of the case, (_Rex v. Clarke_, 3 _Burr R._ 1363.) And if liberty to have access and inspection of such lunatic be applied for, it must be on behalf of some person who has pretension to demand it, or the Court will reject the request (ibid.)[499].

But though no commission has issued, the Court of Chancery will interpose, as where the Lord Chancellor stopped a lunatic from being carried out of the jurisdiction of the Court (into Scotland), Lady _Marr’s case_, cited in Lady _Annadale’s case_. _Amb._ 82. The Court also retains some jurisdiction after the death of the lunatic, _Ex parte Grimstone, Ambler._ 706; _Ex parte Armstrong_, 3 _Bro. Ch. Ca._ 238; _Fitz-gerald’s Case_, 2 _Sch. and Lef._ 439.[500].

Formerly the inquiry respecting idiots and lunatics was made by Writs to the Escheator or Sheriff as an officer to enquire of the revenues of the Crown, (_F. N. B._ p. 531: 1 _Collinson_, 117: _Ex parte Southcote_, 2 _Ves._ 401:) but these being very strict as to the wording, and as no person could be found idiot or lunatic under them, except those who came under the strict definition of either denomination, the Writs have been superseded by Commissions[501] of a more comprehensive character under the great seal[502]. These Commissions are directed to five Commissioners,[503] who, or any three or more of them, are openly to enquire on the oaths of twelve or more good and lawful men, whether the person be or not an idiot, lunatic, or _non compos_: 1 _Collinson_, 120. And they have power to issue their warrant to any person to produce the _non compos_[504], _ib._ 143; which, if not obeyed, will be enforced by the Lord Chancellor, and costs decreed, if required against the persons having the custody of the party. _Ex parte Southcote_, 2 _Ves._ 401. 405: see also Lord _Wenman’s_ case[505] _ubi supra_. The Commissioners have also power to summon witnesses as incident to their office. _Ex parte Lund_, 6 _Ves._ 784.[506]

Where there is any misbehaviour in the execution of a Commission, whether by the Commissioners, or Jury, (_Ex parte Roberts_, 3 _Atk._ 6.) the Chancellor will quash it, and direct a new Commission.

If there has been a finding against the king, there may be _a melius inquirendum_, but this is for the Crown only (3 _Atk._ 6.), which cannot traverse as the subject can.

The remedy of the subject is by traversing the inquisition, or by bringing the question to an issue at law. The right of traverse has been disputed; Sir _John Cutt’s_ case, _Ley._ 26. 3 _Atk._ 6.; and it was held that permission to traverse was a favour granted by the Court, and not a right; _ibid._ but it is now established to be _de jure_ under the 2 _Ed._ 6. c. 8. § 6. _Ex parte Wragg_, and _ex parte Ferne_, 5 _Ves._ 450. 832. But the petition of a stranger for this purpose will be dismissed with costs: _Ex parte Ward._ 6 _Ves._ 579.

The manner of pleading a traverse is very short, (5 _Ves._ 452). An idiot must traverse in person. _Smithson’s_ case was on motion to be permitted to traverse by attorney, which was opposed; it was agreed that a traverse was given by 2 _Ed._ 6, but it must be _in propriâ personâ_: precedents were shown, but there was no case where an idiot had traversed by attorney, though many where a lunatic had: 3 _Atk._ 7. Vide _Stone’s_ case in _Tremaine’s Pleas of the Crown_, 653, a precedent of a traverse, and for the doctrine of traversing an inquisition, vide 4 _Co._ 54. _b_; (the case of the Commonalty of the Sadlers), and 8 _Co._ 168. _Xaris Storeghtors’_ case. Sir _T. Jones_, 198. _Show._ 199. _Skinner_, 45. _Moseley_, 71. 1 _Collinson_, 171. But though a lunatic may by permission of the Lord Chancellor traverse by attorney, the better rule is that he attend in person. _Amb._ 112.

The appeal in lunacy is to the King in Council, and not to the House of Lords. _Ex parte Pitt_, 3 _P. Wms._ 108: _Rochfort and Ely_, 6. _Bro. Par. Ca._ 329; _Sheldon v. Aland_, 3 _P. Wms._ 107.

If the party be found lunatic the next consideration is as to the disposal of his person and estate. “To prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But it hath been said there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the Court of Chancery, and to the _Non compos_ himself if he recovers; or otherwise to his administrators, 1 _Bl. Comm._ 305. But this rule is not in all cases adhered to, _Ex parte Cockayne_, 7 _Ves._ 591: _Neal’s case_, 2 _P. Wms._ 544, and _ex parte Ludlow_, _ibid._ 635.” The Court will not give the custody of a lunatic to one who may make a gain of it, Lady _Cope’s_ case, _Cha. Ca._ 239, or allow the committee any thing for his trouble, whether as to the person (_In re Annesley. Amb._ 78) or as to the estate, 10 _Ves._ 103.

A stranger may have the custody of a lunatic, _Ch. Ca._ 239. And where no one could be procured to act as committee of a lunatic, a receiver was appointed with a salary, but nevertheless to be considered and give security as a committee. _Ex parte Warren_, 10 _Ves._ 622.

A committee may be removed on sufficient cause, as bankruptcy, but the Court will not change the custody, if the Master finds it proper with regard to the comfort of the lunatic. _Ex parte Mildmay_, 3 _Ves._ 2.

Where there are sufficient funds, a liberal application of the property of a lunatic ought to be made, in order to afford him every comfort his situation will admit, _Ex parte Baker_, 6 _Ves._ 8. _ex parte Chumley_, 1 _Ves. jun._ 296. _Dormer’s Case_, 2 _P. Wms._ 265. 3 _P. Wms._ 104. His comfort, where no creditor complains, is the first object, not the heaping up of riches for his next of kin, _ib._ The Chancellor will not make an order, even for creditors, the effect of which would be to put the lunatic in a state of absolute want, _Ex parte Dikes_, 8 _Ves._ 79; nor unless it is clear that he will have a sufficient maintenance, _Ex parte Hastings_, 14 _Ves._ 182.

We are next to consider how a party once found lunatic, can, upon recovery, resume his natural and civil rights;[507] for this purpose the strongest medical as well as general evidence will be necessary, not only as to absolute recovery, but temporary remissions or lucid intervals, for if a party be once found non compos, the finding is conclusive, till evidence be shown to the contrary, see _Hall_ v. _Warren_, 9 _Ves._ 605: _Attorn. Gen._ v. _Parnther_, 3 _Bro. Ch. Ca._ 441: and if as to a lucid interval there must be this severity of proof, much more must the onus of proving an absolute recovery rest with the party seeking to set aside the former finding of a competent tribunal, or even to negative an established presumption;—“When the party has ever been subject to a commission, or to any restraint permitted by law, even a domestic restraint, clearly and plainly upon him in consequence of undisputed insanity, the proof shewing sanity is thrown upon him; on the other hand, where insanity has not been imputed by relations or friends, or even by common law, the proof of insanity, (which does not appear ever to have existed) is thrown upon the other side; which is not to be made out by rambling through the whole life of the party; but must be applied to the particular date of the transaction. A deviation from that rule will produce great uncertainty.” Lord _Eldon_ in _White and Wilson_, 13 _Ves._ 88; see also 3 _Bro. Ch. Ca._ 241. On motion that a recovered lunatic might settle his estate, Lord Keeper _North_ refused the motion, but directed an issue in the Common Pleas to try the fact of the recovery, 1 _Vern._ 155. so also Lord _Eldon_ in _ex parte Holylands_, 11 _Ves._ 10; but the commission may sometimes be superceded on inspection, when it is usual for the physician to attend. 1 _Fonb. Tr. Eq._ 65. or to make affidavit; but the former mode is the best.

It has been said that there are no degrees of defect of understanding save idiotcy and lunacy, _Hume_ v. _Burton, Ridgw. Par. Ca._ 211; this may be true as relates to commissions of idiotcy or lunacy, and their consequences, but it is neither legally or medically correct in any more extended sense.

Delirium,[508] in the ordinary acceptation of the word, is the temporary derangement of intellect consequent on acute disease; it may be distinguished from lunacy or madness by the invariable presence of fever, and it ceases as its exciting causes subside; this therefore operates no permanent incapacity; for though the patient cannot be permitted to do any act, or execute any instrument to bind his property or estate, and would not be held responsible for any crime committed during such temporary alienation of intellect, yet he becomes competent to act, and responsible for his actions as soon as the paroxysm and its consequences are clearly over.

But there is yet another species of mental disorder which, since it does not incapacitate the patient from performing the ordinary duties and offices of life, does not subject him to the inconveniences of commission of lunacy, or exempt him from criminal responsibility; we mean those partial insanities which are marked by peculiar and unaccountable dislikes, fancies, and apprehensions, a mental idiocyncrasy on some one particular subject.[509]

* * * Fuit haud ignobilis Argus
Qui se credebat miros audire tragædos,[510]
In vacuo lætus sessor plausorque theatro;
Cætera qui vitæ servaret munia recto
More; * * * * *
* * * * * *

Hic ubi cognatorum opibus curisque refectus
Expulit elleboro morbum bilemque meraco,
Et redit ad sese: Pol me occidistis, amici,
Non servastis, ait; cui sic extorta voluptas,
Et demptus per vim mentis gratissimus error.

_Hor. Epis._ 2, _L. ii. v._ 128.

To take out a commission of lunacy against such a man would be a greater cruelty than to cure him, and yet occasionally some legal interference may be necessary.

When a man suffers under a partial derangement of intellect, and on one point only, it would be unjust to invalidate acts which were totally distinct from, and uninfluenced by, this limited insanity; but if the act done bears a strict and evident reference to the existing mental delusion, we cannot see why the law should not also interpose a limited protection, and still less why Courts of Equity, which, in their ordinary jurisdiction relieve against mistake, should deny their aid in such cases.

Mr. _Greenwood_ was bred to the bar and acted as “Chairman at the Quarter Sessions, but, becoming diseased, and receiving in a fever a draught from the hand of his brother, the delirium taking its ground then, connected itself with that idea; and he considered his brother as having given him a potion, with a view to destroy him[511]. He recovered in all other respects, but that morbid image never departed; and that idea appeared connected with the will, by which he disinherited his brother. Nevertheless it was considered so necessary to have some precise rule, that, though a verdict had been obtained in the Common Pleas against the will, the judge strongly advised the jury to find the other way, and they did accordingly find in favour of the will. Farther proceedings took place afterwards, and concluded in a compromise.” Lord _Eldon ubi supra_.

The records of Bedlam and Saint Lukes are full of similar instances of persons insane on only one point; where that point may lead to mischief, it is proper that the party should be placed under restraint; where the aberration is harmless, it would be cruel to add imprisonment to the evil of the disorder, running also the risk of producing an augmentation of the disease; for it may safely be taken as a rule, that persons labouring under limited, will be predisposed to general insanity, and therefore it is at least necessary to watch them minutely, lest some less harmless derangement should seize them at the moment when it is least expected.

LUNATIC ASYLUMS.

The very gross abuses which were formerly practised in Lunatic Asylums, long required legislative interference, till by the _14th Geo._ 3, _c._ 49,[512] many of the most glaring evils were remedied. As the act itself is copied in the _Appendix, p._ 170, we do not now repeat all its provisions; on a few points however some comment is necessary, and more especially as an attempt has been lately made, and is likely to be renewed, to alter the law on this subject. It is proposed that, instead of confiding the choice of licensing and visiting commissioners to the College of Physicians in London, a permanent officer (and the name of the individual intended has been even mentioned) should be appointed by government to execute those duties: however high the authority of the officer of State to whom this selection is to be given, we must doubt whether he can be so competent a judge of medical proficiency as the learned body to whom the trust is now confided; and if he be not, the interest of the public is compromised, that the patronage of the minister may be increased; for, admitting that a permanent officer should be appointed, there is no good reason why his selection should not remain with a competent authority, which has not yet been found unworthy of the trust reposed in them. Our principal objection, however, is to the permanence of the appointment; under the present system much benefit arises from the occasional change of visitors, by which means the unfortunate patients are brought under the view of a greater number of medical observers than could be otherwise obtained for them. A permanent officer may soon be reconciled to abuses, and become callous to suffering; while under the visitation of a temporary Committee the subject is kept fresh and vivid with all the interest of novelty, at least in the minds of the members last elected. The period for which each member serves on the committee, (three years) and the extent of the pecuniary emolument, hold out no inducement to jobbing or canvas, even if the learned and honourable body would allow it, and a consequent security is afforded, that none will be elected from undue motives; there is always a risk of a contrary result when a well paid and permanent office is made the object of patronage; an improper person is frequently selected, and when those who have been originally well appointed become incapable by age, infirmity, or other incapacity, there is always a delicacy and difficulty in their removal.

Hitherto we have confined our observations to the Commissioners for the London district[513], but our objections acquire additional weight when we consider that if the proposed alteration be necessary on principle, it must extend to the country, and consequently that above fifty salaried officers must be appointed to the counties of England and Wales alone.

The bill introduced and passed through the House of Commons was thrown out in the House of Lords; and when we reflect upon the legal acumen which presides there, we feel confident that any future similar attempt would meet a similar fate.[514]

The _14th Geo._ 3 exempts houses where only one patient is kept, from license and inspection; they should at any rate be registered, and some limited power of visitation be allowed to prevent abuses; the exemption may be construed at present into a license for illegal imprisonment, provided the jailor can afford a whole house to his victim.[515]

The custody of pauper and criminal lunatics,[516] and the erection of asylums for their reception, is provided for by _Statute_ 48, _Geo._ 3, _c._ 96, and 59 _Geo._ 3, _c._ 127;[517] but no provision has yet been made for lunatic debtors; when it is considered how frequently the calamity of lunacy is induced by pecuniary difficulty, it is not easy to account for this omission. The observation of _Mr. Collinson_ on this point may be applied to more subjects than are at present under our consideration.

MEDICAL AND PHYSIOLOGICAL ILLUSTRATIONS OF INSANITY.

As the duties of the Jurist and Physiologist in the investigation of mental derangement are distinct in their nature, if not different in their object, so shall we find that the abstract terms used to denote the form or degree of the malady have received from the two professions a somewhat different latitude of acceptation. For legal purposes the adoption of the term “_Non Compos Mentis_,” from the amplitude of its construction, gets rid of those nicer distinctions and difficulties which the pathologist is bound to encounter and investigate; the lawyer only inquires whether such a state of mind exists, as actually disqualifies the person in question from conducting himself with propriety, or managing his affairs; but the medical evidence is bound not only to give his opinion upon the case, but to state the reasons which may have influenced his decision; and hence the necessity of his becoming practically acquainted with those physiological distinctions to which we have alluded. It has been stated that there are two conditions of the human mind, either of which very justly deprives the subject of the control of his person and property, and takes away from him all criminal responsibility, viz. IDIOTCY, (_Amentia_) or a total deficiency of intellectual power; and MADNESS, or a morbid perversion of it. Between these two states we shall not have much difficulty in discriminating; the idiot cannot reason at all; the madman reasons falsely; the idiot acts from animal appetency, he has no will; the madman wills, but his reason being disturbed, his actions are not compatible with the usual relations of society.[518]

Idiotcy may exist from birth,[519] (_Amentia Congenita_ Cull. Syn. LXV, 1,) or it may be the effect of Old Age, _Dotage_ (_Amentia Senilis_ Cull. Syn. LXV, 2,) or it may arise at any period of life from the operation of various causes affecting the functions of the brain, such as epileptic fits,[520] intense study, intemperance, the depressing passions, especially grief, fevers, paralysis, and mania, (_Amentia acquisita_ Cull. Syn. LXV, 3.) In some cases fatuity is symptomatic of another disease.

The law, as we have already stated, makes an important distinction between that species of idiotcy which is congenital, _de nativitate_, and that which may occur in after life; and upon this point, as well as upon the extent of the malady, and the probability of its cure, the medical practitioner may be called upon to give an opinion. In cases of congenital idiotcy there will not be much difficulty in pronouncing judgment, for as it arises from malformation of the cerebral organ, the prognosis must be adverse to every hope of recovery; while the characteristic physiognomy of the unfortunate individual is generally so striking as to enable the common observer at once to ascertain the existence of idiotcy. The vague expression of his countenance is commonly associated with an awkwardness in the gait, which would seem to depend upon a defect in the muscular powers; there is, moreover, a degree of incontinence with respect to the excretory discharges of his body; and owing to a carelessness in not swallowing the saliva, there is a constant drivelling from the mouth; the speech is imperfect, and the extent of this deficiency may, in general, be considered as a good indication of the degree of fatuity, for it is necessary to state, that all idiots are not of the same degree of intellectual depravity; some possess more memory than others, and display a talent for imitation; they will whistle tunes correctly, and repeat passages from books, which they have been taught by ear, but they are incapable of comprehending what they repeat; under such circumstances medical evidence may be required for the purpose of obtaining an estimate of the capacity of such an individual, and upon this subject _Dr. Haslam_[521] has offered the following judicious remarks: “It has occurred to me, in many instances, to be consulted concerning persons whose minds have been naturally weak, or enfeebled by disease, and it always appeared that by patient enquiry, a satisfactory estimate of their capacity might be instituted: the person exercising his judgment upon this question ought particularly to ascertain the power of the idiot’s attention; since his knowledge of objects, and his memory of them, will depend on the duration of his attention; it will also be indispensably necessary to investigate his comprehension of numbers, without which the nature of property cannot be understood; if a person were capable of enumerating progressively to the number ten, and knew the force and value of the separate units, he would be fully competent to the management of property; if he could comprehend that twice two composed four, he could find no difficulty in understanding that twice, or twain ten, constituted twenty. This _numeration_ also presumes he comprehended that so many taken from ten, or subtracted, which is the converse, would leave so many as the remainder. Without such capacity, no man, in my own opinion, could understand the nature of property, which is represented by numbers of pounds, shillings, and pence. The same imbecility of mind is often produced in adults, and in those of advanced age, by paralytic or epileptic attacks, and from various affections of the brain, and requires the same accurate investigation to determine on the competency of such persons to be entrusted with the management of themselves and affairs.”

In cases of _Amentia acquisita_, our prognosis must be directed by different circumstances: the faculties of a person may only be in abeyance, and may revert to a state of sanity, either spontaneously, or from judicious treatment, or they may be only partially affected.[522] It however deserves notice that, in extent of mortality, the most fatal of all the states of mental disorder is _Amentia acquisita_; it has been computed that in the French hospitals a full moiety of the fatuous die; at the same time, it appears from the reports of lunatic asylums, that this disorder is sometimes cured.

Idiots are, in general, harmless; their deportment being characterised by a timidity that guards them from any mischievous attempts, either upon themselves or upon other persons; to this general rule, however, exceptions not unfrequently occur; as, for instance, in the unfortunate case of the idiot in Cornwall who strangled, and afterwards burnt the body of, an old woman who had for some years superintended his person. In some cases of accidental fatuity, a considerable disposition to obesity manifests itself, and the subject becomes lethargic.

Authors who have treated on the subject of _Insanity_ have anxiously attempted to frame a definition of the malady; and, by compressing into a short sentence its prominent and distinguishing phenomena, to establish a fixed and essential character. In this attempt each author has fundamentally differed, and to enumerate their plans would be only to expose their failures; the truth is, that the varied and mutable phenomena of insanity will ever mock the grasp of the nosologist; instead therefore of endeavouring to discover an infallible definition, it will be of much greater importance to investigate the circumstances which should guide the medical witness in a decision that may annul a man’s dominion over property, involve his contracts and other acts which otherwise would be binding, and take away his responsibility for crimes. Modern authors, according to the system of the Grecian writers, have generally divided mental derangement into two classes—_Mania_[523] and _Melancholia_;[524] the former being distinguished by a state of extraordinary excitement, the latter by great depression; although they are frequently convertible affections.