Chapter XVII: Introduction (5)

_Mania_ may be said to be a state of mental alienation, accompanied by an unusual ferocity in language and deportment, and by a comparative insensibility to ordinary stimuli.

_Melancholia_ is a form of insanity which is always attended with some seemingly groundless, but very anxious fear, by which the person is plunged into a gloomy and desponding state, that not unfrequently leads to the commission of suicide.

The approaches of insanity have been as variously described by different authors, as the characters by which the malady itself is to be distinguished; indeed the precursory symptoms of mania are extremely indefinite and variable. _Dr. Haslam_ observes, that “the attack is almost imperceptible; some months usually elapse before it becomes the subject of particular notice, and fond relatives are frequently deceived by the hope, that it is only an abatement of excessive vivacity conducing to a prudent reserve and steadiness of character; a degree of apparent thoughtfulness and inactivity precedes, together with a diminution of the ordinary curiosity concerning that which is passing before them; and they therefore neglect those objects and pursuits which formerly proved sources of delight and instruction; the sensibility appears to be considerably blunted; they do not bear the same affection towards their parents and relations; they become unfeeling to kindness, and careless of reproof; if they read a book, they are unable to give any account of its contents; sometimes, with stedfast eyes, they will dwell for an hour on one page, and then turn over a number in a few minutes; their sleep is disturbed, and they awake in the morning in a state of great disquietude and anxiety; as the malady becomes farther developed, the symptoms are less equivocal, the unhappy objects become loquacious and disposed to harangue, and decide promptly and positively upon every subject that may be started; soon after, they are divested of all restraint in the declaration of their opinions of those with whom they are acquainted; their friendships are expressed with fervency and extravagance, their enmities with intolerance and disgust. They now become impatient of contradiction, and scorn reproof; for supposed injuries they are inclined to quarrel and fight with those about them; at length suspicion creeps upon the mind, they are aware of plots which had never been contrived, and detect motives that were never entertained.”

This picture, however, must be only regarded as displaying the ordinary occurrences which precede the attack; its approaches are sometimes distinguished by a very different train of symptoms; the late _Dr. John Monro_[525] has remarked that “high spirits, as they are generally termed, are the first symptoms of this kind of disorder; these excite a man to take a larger quantity of wine than usual; and the person thus affected, from being abstemious, reserved, and modest, shall become quite the contrary; drink freely, talk boldly, obscenely, swear, sit up till midnight, sleep little, rise suddenly from bed, go out a hunting, return again immediately, set all his servants to work, and employ five times the number that is necessary; in short, every thing he says or does betrays the most violent agitation of mind, which it is not in his power to correct; and yet, in the midst of all this hurry, he will not misplace one word, or give the least reason for any one to think he _imagines_ things to exist that really do not, or that they appear to him different from what they do to other people. They who see him but seldom, admire his vivacity, are pleased with his sallies of wit, and the sagacity of his remarks; nay, his own family are with difficulty persuaded to take proper care of him, until it becomes absolutely necessary, from the apparent ruin of his health and fortune.”

The patient under the influence of the depressing passions will exhibit a train of symptoms altogether different; the countenance wears an anxious and gloomy aspect, he is little disposed to speak, he retires from the company of those with whom he formerly associated, secludes himself in obscure places, or lies in bed the greater part of his time; frequently he will keep his eyes fixed on some object for hours together, or continue them an equal time ‘bent on vacuity;’ he next becomes fearful, and conceives a thousand fancies, often recurs to some immoral act which he has committed, or imagines himself guilty of crimes which he never perpetrated; believes that God has abandoned him, and with trembling awaits his punishment;[526] frequently he becomes desperate and endeavours by his own hands to terminate an existence which appears to be an afflicting and hateful incumbrance.[527]

The approaches of Insanity, are, however, not always slow and progressive: the unhappy victim is sometimes seized without any warning, and where crimes have been perpetrated under such circumstances, it becomes extremely embarrassing both to the judgment of the physician and to the decision of the court; each case, however, must rest upon its own particular merits duly to be weighed and considered both by the judge and jury, lest, to use the expressions of _Sir Matthew Hale_, “there be on the one side a kind of inhumanity towards the defects of human nature, or, on the other side too great an indulgence given to great crimes.”

Before we proceed to consider the several questions which may arise for the consideration of the medical witness, in the discharge of his forensic duties, we shall offer a few observations upon a point which has frequently given rise to discussion—Whether the existence of insanity cannot be equally, or in some cases, more satisfactorily established, or disproved, by witnesses who are not of the medical profession? by persons, for instance, who have had opportunities of observing the individual, where the same advantages have not been in the power of the practitioner. To this we may reply, that the opinions of the generality of persons on the subject of insanity are extremely vague, and frequently very erroneous,[528] and are commonly the result of those glaring exhibitions, those caricatures of disease which the stage represents, or romances propagate; the ordinary observer can hardly be convinced of the existence of insanity, without some turbulent expression, extravagant gesture, or phantastic decoration; while on the other hand he is too apt to infer a state of insanity from those whims and eccentric habits between which the medical practitioner, from daily communication with deranged persons, can alone know how to discriminate; thus was _Democritus_ accused by the people of insanity, but when _Hippocrates_, by public request, had a conference with the philosopher, he declared that not _Democritus_, but his enemies were insane. There is moreover a class of maniacs who are so cunning as to deceive those who are not acquainted with the peculiar hallucinations under which they labour; _Lord Erskine_ was thus unable to detect the insanity of a lunatic who fancied himself to be Jesus Christ, until he had received the medical assistance which the presence of _Dr. Sims_ afforded him.[529] It is unnecessary to urge any farther the necessity of medical testimony upon such occasions, we shall therefore proceed to consider the different points to which it will be more usefully directed.

Q. 1. Whether the person be actually insane? and what are the proofs of
his derangement?

Q. 2. Whether the symptoms are of such a nature as to suffer the
individual, with propriety, to retain his liberty, and enjoy his
property?

Q. 3. Whether there has been any lucid interval, and of what duration?

Q. 4. Whether there is a probable chance of recovery; and in case of
convalescence, whether the cure is likely to be permanent?

Q. 1. _Whether the person be actually insane—and if so, what are the
proofs of his derangement?_

It has been very justly observed, that to constitute insanity it is not necessary to exhibit the ferocity of a wild beast, nor to perform the antics of a buffoon; the most ordinary observer can tell when a person is furiously mad,[530] but, in many cases, “_such thin partitions do the hounds divide_,” that all the skill and discernment of a medical practitioner is required to establish the fact of insanity. It is to such cases as are more likely to become subjects of legal investigation, that the following observations particularly apply. _Sir Matthew Hale_ says, “there is a _partial_ insanity, and a _total_ insanity; the former is either in respect to things, _quoad hoc vel illud insanine_, where persons are perfectly rational, except on some one particular subject.” This fact is universally admitted, constituting a form of mental alienation to which _M. Esquirol_[531] has bestowed the name of _Monomania_, and of which every work on insanity abounds with examples. It is in such cases that the value of medical sagacity and experience becomes apparent, and the full developement of the real state of the patient’s mind and opinions will, in some instances, require considerable time and patience. “It is nearly impossible,” says _Dr. Haslam_, “to give any specific directions for conducting such an examination as shall inevitably disclose the delusions existing in the mind of a crafty lunatic; but in my own opinion it is always to be accomplished, provided sufficient time be allowed, and the examiner be not interrupted. It is not to be effected by directly selecting the subjects of his delusion, for he will immediately perceive the drift of such enquiries, and endeavour to evade, or pretend to disown them; the purpose is more effectually answered by leading him to the origin of his distemper and tracing down the consecutive series of his actions and association of ideas; _in going over the road where he has stumbled, he will infallibly trip again_.” There is, says _Dr. Male_,[532] a madness which shews itself in words, and another in actions; a lunatic may be coherent in conversation, but insane in conduct; he may be rational when under the restraint of a mad-house, but when released, and at liberty to act according to the impulse of his hallucination, will shew by his conduct that he is really insane.

Although it cannot be difficult to form a diagnosis between the ebullitions of passion, the extravagance of intoxication, or the delirium of fever, and the violence of deportment arising from insanity, yet it may in some cases be not easy to discriminate between this latter condition and that which is associated with excessive enthusiasm; nor is it always easy to discriminate between eccentricity and insanity; do we not, says _Dr. Male_, see a wretch disinherit his own children, who have committed no fault, and bestow his wealth upon a stranger? another who prefers poverty and rags, and communion with vagabonds, to the social intercourse and proffered kindness of his friends and relations? yet who shall pronounce them to be insane? that they are so, there can be no doubt, and their disease is perhaps of the most unfortunate character, for all their other actions being consistent with sound reason, it is difficult to convince a jury of their insanity, and to divest them of the power of heaping ruin upon their families, and disgrace upon themselves.

The bodily marks which distinguish the insane are, a peculiar cast of countenance, familiar to those versed in the malady; a quick, oftentimes protruded and glistening eye; the body is generally costive; in some cases the insane person is enabled to sustain cold with impunity, and he is insensible to the agency of ordinary stimuli; and the stomach and bowels, from deficiency of irritability, require large doses of medicine to move them; among the physical phenomena of insanity, _M. Esquirol_ observes that few are more constant or remarkable than want of sleep, and that peculiarly disagreeable odour from the body, as well as the excretions of the patients, which impregnates the clothes and bedding. They are devoured with a burning internal heat; and generally have a voracious appetite, and are afflicted with pain in some organ or part, especially the head, the chest, or the abdomen, which the unhappy sufferers are ready to attribute to the malevolence of their enemies.

In deciding upon that species of insanity which is termed _Melancholia_, we must be cautious in not confounding its symptoms with those of _Hypochondriasis_, which is to be regarded as strictly a bodily malady; the following remarks of _Dr. Cullen_ may tend to direct our judgment upon this interesting subject.

“Hypochondriasis I would consider as being always attended with dyspeptic symptoms; and though there may be, at the same time, an anxious melancholic fear, arising from these symptoms, yet while this fear is only a mistaken judgment with respect to the state of the person’s own health, and to the danger to be from thence apprehended, I would still consider the disease as hypochondriasis, and as distinct from the proper melancholia. But when an anxious fear and despondency arise from a mistaken judgment with respect to other circumstances than those of health, and more especially when the person is at the same time without any dyspeptic symptoms, every one will readily allow this to be a disease widely different from both dyspepsia and hypochondriasis.”

With respect to the phantoms[533] which occasionally appear to the hypochondriac, and are described by him as having all the semblance of reality, _Dr. Haslam_ remarks, that although a person may labour under a delusion, by seeing and hearing those things which do not exist, yet if his belief in their reality is not subscribed, but, on the contrary, he knows them to be delusions,

“A false creation, proceeding from the heat-oppressed brain,”

and he is persuaded that his perception is beguiled, no inference in favour of the existence of insanity ought to be deduced; if, however, he should believe in their reality, and commit an act in consequence of such a conviction, he may be justly considered insane—_it is the belief that, physiologically, constitutes the disorder_.

Q. 2. _Whether the symptoms are of such a nature as to suffer the
individual, with propriety, to retain his liberty, and enjoy his
property?_

We have already offered some observations upon this point, (_page_ 302); the medical practitioner in delivering an opinion that may involve the liberty of the person, cannot well be too guarded in his evidence. As each case must rest upon its own merits, the subject scarcely admits of any general elucidation beyond that which we have already endeavoured to bestow, and the plan of our work must of necessity preclude the more minute details. We must, however, here observe, that coercion should never be employed but as a protecting restraint—to guard the patient from doing mischief to himself, or offering violence to others; and for this purpose the straight-waistcoat is generally sufficient: formerly, coercion was employed with a degree of severity that amounted to vindictive punishment, recourse was even had to the whip, and stripes were actually inflicted by medical direction; while asylums for the reception of the insane, were considered as prisons for safe custody and punishment, rather than as hospitals for the treatment and cure of this most dreadful malady.

Q. 3. _Whether there has been any lucid interval, and of what duration?_

This is a question which a medical witness is always called upon to answer. By the term _lucid interval_, we are not to understand a _remission_ of the malady, but a total suspension of it—a complete, although only a temporary, restoration of reason. The question is generally beset with difficulties, and requires all the penetration and experience of the physician to arrive at a safe conclusion; for in many cases the patient is enabled for a limited period to converse rationally, and where he is desirous of carrying any particular plan into execution, to dissemble so completely as to impose with success upon his attendants; of which the following case, related by Dr. _Haslam_,[534] may serve as an excellent illustration. “A lunatic having received, or fancied he had received, an injury from his keeper, at the lunatic asylum at Manchester, threatened to be revenged, for which he was punished by confinement; he was afterwards a patient in Bethlem hospital, and gave _Dr. Haslam_ an account of the transaction, of which the following is an abbreviation. ‘Not liking this situation, I was induced to play the hypocrite; I pretended extreme sorrow for having threatened him, and, by an affectation of repentance, induced him to release me; for several days I paid him great attention, and lent him every assistance; he seemed much pleased with the flattery, and became very friendly in his behaviour towards me; going one day into the kitchen, where his wife was busied, I saw a knife; this was too great a temptation to be resisted; I concealed it, and carried it about with me; for some time afterwards the same friendly intercourse was maintained between us, but as he was one day unlocking his garden door, I seized the opportunity and plunged this knife, up to the hilt, in his back.’” There is a species of insanity which has been called _intermittent_, in which the patient is perfectly rational for a considerable interval; the malady often recurs two or three times in a year, and lasts several weeks, the subject of the hallucination being always the same.[535]

Q. 4. _Whether there is a probable chance of recovery; and in case of
convalescence, whether the cure is likely to be permanent?_

The _prognosis_, or means of ascertaining the probable event of mental derangement, is founded on the consideration of many different circumstances, such as the particular modification of the malady; the violence of the symptoms; the duration and frequency of the attack; its causes; the age, sex, constitutional temperament, and hereditary dispositions of the affected individual; the general state of his health; and the particular nature of his bodily maladies; upon each of which we shall offer a few observations.[536] It has been remarked that those affected with furious mania recover in a larger proportion than those who suffer under the depressing influence of melancholy, but that when the maniacal and melancholic states alternate, the hope of recovery is farther diminished. The probability of cure is also more or less, according to the duration of the disease; when, however, it has acquired a systematic character, it becomes very difficult to remove it, so that after it has continued upwards of a year, patients at public asylums, as in Bethlem and Saint Luke’s, are pronounced incurable, and treated accordingly. In considering the causes of mania, we must class them in two divisions—_Predisposing_, and _Exciting_. Among the former of these causes stand _hereditary predisposition_; _injuries of the brain_; (these also belong to the class of exciting causes); _certain bodily diseases_; and a _peculiar temperament_. Among the latter we may first enumerate those of a PHYSICAL nature, as _frequent intoxication_; _fever_; _mercurial medicines_, largely administered; _the suppression of periodical or occasional discharges and secretions_; _parturition_; _injuries to the head from external violence_, _&c._ The MORAL causes include those emotions which are conceived to originate from the mind itself, and which, from their excess, tend to distort the natural feelings; or, from their repeated accessions, and unrestrained indulgence, at length overthrow the barriers of reason and established opinion; such are the _gusts of violent passion_, and the _protracted indulgence of grief_; the _terror_ impressed by erroneous views of religion; the _degradation of pride_; _disappointment in love_; and _sudden fright_.

Of Hereditary disposition we may observe, that there does not appear to be any malady more obviously dependant upon its influence than that of madness[537]; for even if one generation escape, the taint is presumed to cling to the succeeding branches until, either by admixture with a purer stock, or by education or management, it is neutralized or drained away. In forming a prognosis it therefore becomes the first object of inquiry, whether any branch of the patient’s family has ever manifested any symptoms of the disease; for where this is made out, our expectations of permanent recovery must be slender; and even should the patient become convalescent, he will be liable to a relapse from every fresh exposure to the exciting causes. Injuries about the head may be considered as both the predisposing and exciting causes of insanity; for a fracture of the cranium has been known to produce disorder in persons who had never betrayed the least obliquity previous to the accident, and whose families had never manifested the slightest disposition to the malady. Although mental derangement has been observed in persons of every habit and temperament, yet there is certainly a complexion which may be said to predominate in these cases; _Dr. Haslam_, for instance, has stated, that out of 265 patients in Bethlem hospital, 205 were found to be of a swarthy complexion, with dark or black hair; the remaining 60 having a fair skin, and light brown or red hair. Among the most powerful exciting causes of derangement of intellect in those predisposed to the malady are to be classed the moral causes which produce mental distress and uneasiness; at the eventful era of the French revolution, and for some years after, the lunatic establishments of France were inundated by its victims; and _Dr. Burrows_ observes, that the annals of insanity will satisfactorily shew that there never was, in any country, a sudden increment of insane persons, without some powerful and evident excitation, physical, moral, theological, or political.[538] I have, says _Zimmerman_,[539] had occasion to see all the great hospitals in Paris, and have distinguished in them three kinds of maniacs: the men who had become so through pride; the girls through love; and the women through jealousy.

The use of ardent spirits or wine to a person predisposed to insanity, is always dangerous; under the same circumstances a long course of mercurial remedies has been found mischievous. The suppression of accustomed evacuations is also a frequent cause of mania, and the restoration of them not unfrequently removes the mental affection. Where there is in women an hereditary disposition to mania, it is frequently called into action immediately after parturition; in such cases, the prognosis is favourable;[540] on the other hand, it has been remarked that in our climate, women are more frequently affected with insanity than men; and it has been considered very unfavourable to recovery, if they should be worse at the period of menstruation, or have their catamenia in very small or immoderate quantities. We have already noticed local injuries of the head among the predisposing causes; we may also observe in this place, that they not unfrequently prove an exciting one; in the case of _Hadfield_ the insanity was occasioned by a blow on the skull. DISSECTION has thrown little or no light on the pathology of insanity; it must be admitted that a peculiar structure of the brain will predispose to madness, but there may exist many alterations in the structure of these parts too minute for the eye to observe, or the scalpel to expose. In some cases, however, the brain of the maniac displays an obvious deviation from the healthy appearances, as we learn from the testimonies of _Chiarugi_ in Italy, _Greding_ in Germany, and from _Dr. Haslam’s_ work in this country. The more general appearances would seem to consist in excessive determination of blood to the brain, with enlargement of its vessels; and effusion of fluids into its cavities; the membranes of the brain have also been found variously altered from their healthy state; ossifications have been observed on the _dura mater_; the _tunica arachnoidea_ has appeared thickened, and more or less opaque; and the _pia mater_ has not unfrequently appeared inflamed and turgid with blood; besides which _Dr. Haslam_ has recorded an appearance of air in the vessels of this membrane; nor is it uncommon to discover effusions of a watery fluid between these membranes. The medullary substance, when cut into, has seemed to contain more blood than usual; the consistence of the branular mass has moreover been stated, by different anatomists, to recede from its natural state in cases of insanity. _Bonetus_, in his _Sepulchret. Anatom._ has asserted that the brain of maniacs is so dry and friable that it may almost be rubbed into powder; but with respect to this we are disposed to doubt. _Morgagni_,[541] however, tells us that he has generally found the brain of such persons of considerable hardness; and _Mr. John Hunter_ has found it so tough as even to exhibit some degree of elasticity; _Dr. Baillie_ has also remarked, that when these changes take place in the brain, the mind is at the same time deranged, there being either mania, or lethargy, or the person is much subject to convulsive paroxysms. Other cases might be adduced in which the brain was found on dissection to have a consistence preternaturally soft. With regard to these phenomena, the experienced anatomist will readily coincide with _Pinel_, that although they may occur in the brain of the maniac, yet that they have frequently been found where no mental affection had ever betrayed itself; in addition to which we may remark that it does not necessarily follow that the morbid appearances disclosed by dissection had existed during the progress of the malady; it has been very truly observed by an intelligent reviewer,[542] that a person may have, for ten years, frequent attacks of epilepsy; he may become at last maniacal, and die comatose. Upon dissection, marks of inflammation and of serous effusion are observed in the brain and its membranes; but can we suppose that any such lesion of structure existed during even the latter half of the epileptic state?

OF NUISANCES, LEGALLY, MEDICALLY, AND CHEMICALLY CONSIDERED.

There are in law many kinds of nuisance; but we shall confine ourselves to the consideration of those only which can be made the subject of medical or chemical investigation; these are such as are directly or indirectly detrimental to health, whether general or individual; or are destructive to comfort; or injurious to property: obstructions to the free course of air, light, and water, volumes of smoke, and noisome smells fall under the two first descriptions, while the fumes of some manufactures combine every species of annoyance.

The question, how far the salubrity of the atmosphere may be affected by the effluvia of particular manufactories, is one that the medical practitioner is often called upon to decide; and upon such an occasion let him beware that his judgment be not swayed by the fastidiousness of the surrounding inhabitants, nor warped by the clamours of invidious rivals or interested opponents; as a man of science and integrity he is called upon to decide between two parties equally valuable to the state,—between the health and comfort of the citizen, and the prosperity of the manufacturer.

The manufactories and occupations which have been considered exceptionable, for reasons to be hereafter enumerated, may be arranged under four divisions, viz.

1. _Those, during whose operation gaseous effluvia, the products of_
PUTREFACTION _or_ FERMENTATION, _escape into the atmosphere, and are
either noxious from their effects upon animals, or insufferable from
the noisomeness of their smell_: such as the steeping of flax, and
hemp; (1) the manufacture of catgut; slaughter-houses; starch
manufactories (2); tanneries (3); the feeding of swine; and the
several occupations of horse slaughterers (4); skinners; fell-mongers;
curriers, &c. &c.

II. _Those, where, by the_ ACTION OF FIRE, _various principles are
evolved, and diffused in the form of vapour, or gas; the inhalation of
which is not only disagreeable to the senses, but injurious to the
health_; as the process of brewing (5); the formation of various acids
(6); the incineration of animal substances, as practised by the
manufacturers of hartshorn; Prussian blue (7) makers; roasters of horn
for lanthorns (8); glue manufacturers; varnish makers (9); soap
boilers(10), and renderers of tallow (11); smelting houses (12);
gasworks; brick kilns; turpentine distillers, and rosin makers, &c.
&c.

III. _Those, which are capable of yielding waste liquids, that poison
the neighbouring springs and streams_, as gas works (13); starch
manufactories; dying-houses, &c. &c.

IV. _Those trades, whose pursuit is necessarily accompanied with great
noises_, as those of copper-smiths; anchor-makers; gold-beaters;
tin-men; trunk-makers; proof-houses, (where cannons are proved); the
tilting of steel; forging bar iron; flatting-mills;[543] &c. &c.

Against these nuisances there are various remedies: by action or indictment at law, by injunction in equity, and sometimes by the summary abatement of the party injured.

If the injury be general (_ad commune nocumentum omnium ligeorum_) the proper remedy is by indictment, 1 _Inst._ 56, 3 _Bl. Com._ 219, 4 _Bl. Com._ 167; and an indictment will lie even though there be another remedy or punishment by act of parliament, as for keeping swine in London, 2 _Will. and Ma. Sess._ 2, _c._ 8, § 20; _Regina v. Wigg_; 2 _Salk._ 460; _Ld. Raym._ 1163. But it is otherwise of an _offence created_ by statute, then the remedy must be in the form prescribed by the statute.

Though indictment is a suit of the crown, and a general pardon will excuse the fine inflicted on conviction for a nuisance, it will not prevent the abatement of it. _Rex et Regina_ v. _Wilcox_, 2 _Salk._ 458; see also _Dewell_ v. _Sanders_, cited 16 _Vin. Abr._ 42, 45.

But if the nuisance be not general, but particular, then an indictment will not lie; yet the individual aggrieved may have his action on the case, 3 _Bl. Com._ 220; _Bull. N.P._ 26; _Esp. N.P._ 635. Individuals also are in some cases permitted of themselves to abate a nuisance, 3 _Bl. Com._ 5; _Lodie_ v. _Arnold_; 2 _Salk._ 458; 16 _Vin._ 40. In _Rex_ v. _Rosewell_, only a small fine was set upon the defendant convicted on indictment of a riot, committed while pulling down some part of a house, it being a nuisance to his lights; see case 2 _Salk._ 459, and authorities there cited; also _Rosewell_ v. _Prior_, _ib._ 460; but contra, see cases where they may not; _Lord Mansfield’s_ judgment in _Cooper_ v. _Marshall_, 1 _Bur._ 259.

The old writs, the assize of nuisance, F. N. B. 183, and _Quod permittat prosternare_, F. N. B. 124, _Palmer_ v. _Poultney_, 2 _Salk._ 458, are now out of use, but might be resorted to on an extreme occasion, 3 _Bl. Com._ 220.

Courts of Equity will also interpose by injunction in cases of nuisance, to restrain and prevent an injury for which courts of law, in many cases, could not give an adequate compensation, 1 _Fonb. Tr. Eq._ 31; _Coulson_ v. _White_; 3 _Atk._ 21; _Atty. Gen._ v. _Doughty_, 2 _Ves._ 453. And though the Court of Chancery, on application to have an assumed nuisance (as a mill-dam which had been destroyed) restored to its original state, has refused an injunction; yet to accelerate the determination of the right it has directed the defendant to bring an action of trespass, and every thing to be admitted on both sides necessary for trying the mere right. _Birch_ v. _Sir Lyster Holt_; 3 _Atk._ 725; 2 _Ves._ 414; on this principle see also _Lord Teynham_ v. _Herbert_, 2 _Atk._ 483, and cases there.

Noxious, dangerous, or highly disagreeable trades and manufactures are nuisances, except when exercised in accustomed places;[546] thus an ancient brewery[547] though in the midst of a populous town, is no actionable nuisance, 2 _Lil. Abr._ 246; _Jones_ v. _Powell; Palm._ 536; _Hutt._ 153; because it shall be supposed to have been erected when there were no buildings near; but if a brewery or glass-house (_Rex et Regina_ v. _Wilcox_, 2 _Salk._ 458) be newly erected, it is a nuisance, 1 _Hawk. Pl._ 199; _Jones_ v. _Powell_, _Hutton_ 135, for the smoke is at least destructive of comfort and may be injurious to health; much more then is a smelting-house a nuisance when, in addition to dense and continued volumes of smoke, the poisonous fumes of sulphur, lead, antimony, and arsenic, not only taint the atmosphere, but so affect vegetation as either to destroy it altogether or poison the cattle that feed upon the adjacent herbage; or where the vapours injure fruit trees, 4 _Ed._ 3, and 4 _as. pla._ 3, cited in a pamphlet A. D. 1639 in Serjeant _Hill’s_ collection of law pamphlets, vol. 5; see also 1 _Roll. Abr._ 89; 1 _Burr. R._ 260. Now though the business of smelting is highly necessary, and it may appear hard to restrain a man from making the most profitable use of his lands and premises, yet public health is of primary importance,[548] and these maxims of law must ever be remembered: _Prohibetur ne quis faciat in suo, quod nocere possit alieno: et sic utere tuo ut alienum non lædas. Palm._ 536; 9 _Co. Rep._ 58.

Next to the fumes of metallic poisons we may rank the vapours of sulphuric, nitric, muriatic, and other acids, when carelessly prepared in large quantities, _Rex_ v. _White and Ward, Burr._ 333.

It was said to be no nuisance to a neighbourhood for a butcher or chandler (_Rankett’s_ case) to set up their trades among them; but it may be by such or other tradesmen (as a dyer, _Hutt._ 136) laying stinking heaps at their doors; in other cases the necessity of the thing shall dispense with the noisomeness of it.[549] _Jacobs’ Law Dict. tit._ Nuisance; 2 _Rolle’s Abr._ 139. But query, how the necessity is to be proved? for though the sale of meat and candles be necessary in a town, the one need not be slaughtered, nor the other manufactured among ordinary dwelling houses; the one is offensive to the feelings of humanity and disgusting to the senses, the other is so disagreeable to the olfactory nerves, that few persons can pass a tallow-chandlers on a melting-day without experiencing some degree of nausea.

In all the best regulated cities of Europe the slaughter-houses are confined to particular situations, generally without the walls;[550] the general neatness and propriety of English towns leave little to be derived from foreign example, but in this instance we are defective. Some years since, a pamphlet was published against the nuisance of street butchers, but evidently without effect; perhaps the mere vending of meat in open shops may not be attended with any evil sufficient to counter-balance the convenience; but where the beasts are also slaughtered in ordinary situations, the nuisance is very considerable, and in many instances likely to be injurious to the health of the neighbourhood; for though the nuisance is not so apparent in some of the streets as before the act of the _57th Geo._ 3,[551] yet the accumulation of filth behind the houses is likely to be the greater from the very circumstance of its being remote from public observation.

Though in making these observations we recommend general markets, and selected situations, for the exercise of particular trades, rather than that they should be dispersed throughout the town; yet we must observe, that unless these districts are made the subject of peculiar regulation, the public evil might be encreased in intensity by accumulation, much more than it had been diminished by segregation. In places for the sale of animal food cleanliness is very generally attended to, as a contrary practice would greatly increase the tendency to putrefaction; self-interest is here the best possible guard against nuisance, but this motive does not so immediately apply to other cases,[552] and we accordingly occasionally observe the utmost disregard of public convenience in the conduct of many disgusting manufactures.

The dictum of _Rolle_ that usefulness shall dispense with noisomness has, however, been broken in upon by many more modern decisions; in _Morley_ v. _Pragnel, Cro. Car._ 510, an innkeeper brought an action against the defendant for erecting a tallow-furnace so near his inn that many of his guests left the house, and he recovered damages for the injury; _Tohayle’s_ case was then quoted; he had erected a tallow-furnace in the Strand, which, on indictment, was ordered to be abated, (see also 1 _Hawk. P. C._ 463 where _Rolle’s_ doctrine is questioned.)

As to the physical effect of each particular species of bad smell, there may always be some doubt, and much contrariety of evidence is to be expected; this however is certain, that those stenches which may be innocuous to persons in full health, are by no means so to invalids or persons of irritable nerves or stomachs; and to pregnant women they are generally allowed to be dangerous.[553]

Habit has also a powerful operation in diminishing the deleterious effects of such effluvia; instances daily occur in which the fumes of certain manufactories affect strangers in the most violent degree, while the artisans engaged in the occupations which produce them; or the persons accustomed from their residence to the full force of their influence, scarcely experience any inconvenience; nay, in some cases, they would even seem to derive a degree of benefit from such an atmosphere, and to suffer whenever they quitted it;[554] like the criminal recorded by Sanctorius, who fell sick when taken out of an infected dungeon, and did not recover until he had been returned into the impure air to which he had been so long habituated. We apprehend that the history of the French bastile would furnish the physiologist with some extraordinary illustrations of the power of habit over the functions of the body. We introduce these remarks for the purpose of shewing, that persons immediately engaged in an indictable manufactory, are not only morally, but physically, incompetent to give evidence in proof of the extent of the mischief it may create: in addition to which it must not be forgotten, that in those works in which are carried on the fusion and volatilization of metals, the workmen employed in the interior of the building escape the deleterious fumes which pass up the flues, and spread desolation over the surrounding district. These views will moreover enable us on many occasions to reconcile the conflicting testimony which is so often given on trials of nuisance, without in the least impeaching the veracity or sincerity of the individual witnesses engaged in the contest.

But for the purposes of legal redress it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable: see _Lord Mansfield’s_ judgment in _Rex_ v. _White and Ward_, 1 _Burr. R._ 333; so in _Aldred’s_ case, 9 _Co. Rep._ 57, which was for keeping hogs; _Regina_ v. _Wigg_, 2 _Salk._ 460, 2 _Lord Raym._ 1163. In _Street_ v. _Tugwell_, for keeping seven pointers close to the plaintiff’s house, whereby he was annoyed by the noise and smell, the jury found for the defendant; and though _Lord Kenyon_ would not grant a new trial, he said another action might be brought for the continuance. _Mic. Term_, 41 _Geo._ 3; 2 _Selw. Ab._ 1006.

Though the obstruction[555] of a fine prospect is no nuisance (_Aldred’s_ case, 9 _Pep._ 58; 3 _Salk._ 247, 459; _Attorney Gen._ at the relation of _Gray’s Inn Society_ v. _Doughty_, 2 _Ves._ 453) yet as an action lies for hindering the wholesome air, 9 _Rep._ 58, query whether building a house across the end of a street, whereby it becomes less wholesome, whether by want of air or by stagnation of damp vapours, is or is not a nuisance? and whether actionable or indictable. For though the rule originally laid down as to indictable nuisances is, that they must be _ad commune nocumentum omnium ligeorum_, yet if it be to the injury of a great many, as to the inhabitants of a whole street, that is enough; _Rex_ v. _Roupel_; K. B. Kingston Assizes, 59 _Geo._ 3; and _Sir Ed. Coke_ says, “there is a writ in the register necessary to be put in execution for the wholesomeness of the air in London, and all other cities.” _De vicis et venellis mutandis_, 4 _Inst._ 252.

The abatement of those nuisances which affect the atmosphere is of the highest importance, for it is not optional what air we shall breathe; and next to them we may rank those which affect running streams or other waters.

“Lourlulary, or lourgary, is an offence when any cast any corrupt thing appoisoning the waters in or about _London_, compounded of these two words _lour_ corruption, and _laron_ a thief or felon, and if any die by reason of such offence within a year after, it is felony; and extendeth to all other cities.” Burgs. &c. 4 _Inst._ 252; (see also 8 _Geo._ 1, _c._ 26, and several modern paving acts.) And by an old statute 12 R. 2, _c._ 13, which if it be (as asserted) obsolete, well deserves to be revived in some form, none shall cast any garbage, dung, or filth, into ditches, waters, or other places within or near any city or town, on pain of punishment by the _Lord Chancellor_!! at discretion!! as a nuisance. The jurisdiction has been rather strangely given according to modern notions, but the provision of the act appears to be wise, and might even now be useful.

To steep stinking sheep-skins (2 _Strange_ 686) or other noxious, noisome, or poisonous thing is indictable. It is a nuisance, for which an action will lie, to erect a lime-kiln[556] so near a fish-pond that it infects the water, and the fish die, or to make a drain which brings in unwholesome food to them, 16 _Vin. Abr._ 33;[557] and if it be on a navigable river it is indictable, as in the recent case of the _King_ at the relation of the city of _London_, conservators of the _Thames_ against _Munroe_ and _Evans_, proprietors of certain gass-works, the refuse from which being discharged into the river is said to have destroyed the fish;[558] the defendants were found guilty. _Croydon Assizes_, 1821.

Noises, whether by day (_Tenant_ v. _Jones_ K. B. Feb. 15, 1821) or by night (_Rex_ v. _Smith_, 2 Str. 704) are nuisances, for these not only render life uncomfortable, but are prejudicial to the health of invalids; there is a case in equity where an agreement not to toll a church-bell was enforced by injunction.

But it is said the fears of mankind, however reasonable, will not create a nuisance; therefore it is no nuisance to erect a building for the purposes of inoculation, (_Jac. Law Dict. Anon Dec._ 18, 1752; 3 _Atk._ 21, 720, 750.) In this case a motion was made for an injunction to stay the building of a house for the purpose of inoculating for the small-pox in Cold Bath Fields; for the motion the following cases and authorities were cited, 2 _Roll. Abr._ 139, (the case of _Browne_ for dividing a messuage) _Hawk. Pl. c._ 75, _s._ 11; 1 _Lutw._ 169. But _Lord Hardwicke_ said, that upon an indictment of that kind there had been lately an acquittal at Rye, and refused the injunction.

This decision does not appear to be reconcileable with the cases and statutes respecting the keeping of gunpowder,[559] which is a nuisance by the reasonable fears of possible danger, (_Rex_ v. _Taylor_, 2 _Str._ 1167, 1169.) So also it was a nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in the time of sickness and infection of the plague, (2 _Roll. Abr._ 139); and this possible evil has often been realised in the obscurer parts of _London_ in cases of typhus, and more frequently in the liberty of _Dublin_ where the narrowness of the streets, and the alleged operation of the window-tax have excluded the possibility of proper ventilation. It is therefore more reasonable to suppose that the utility of the establishment in question in the above cited case, and the comparative openness of the situation prevailed over the fear of possible risk, and that the principal objection was the exercise of the summary jurisdiction of a court of equity in a matter more properly triable at law, rather than from an opinion that a receptacle for highly infectious diseases in a populous neighbourhood was not a nuisance.

But if the disorders for which it is open be not highly infectious, an hospital is certainly no nuisance. In the case of _Rex_ v. _Mac Donald_, 3 _Burr. L._ 1645, it was moved that an indictment against the defendant, for converting his house into an hospital for taking in and delivering lewd, idle, and disorderly unmarried women, should be quashed; _Lord Mansfield_ took notice of the narrow principles of the prosecutors, (the parish, for that they were thereby burthened with bastards) and expressed his surprise how such a bill could ever be found, asking “by what law is it criminal to deliver a woman when she is with child.”

Whether a new comer can have an action for a nuisance has been doubted, for it was his own act that he came into the neighbourhood, and _volenti non fit injuria_; but on the other hand see _Westborn_ v. _Mordaunt, Cro. Eliz._ 191; 2 _Leon._ pl. 129, p. 103; Espin. N. P. 637; and if a man come into possession of the premises by descent, or operation of law, or a clergyman to his parsonage, it would appear that he may at any rate have his action.

It must be observed that every continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie; and very exemplary damages will probably be given, if after one verdict against him the defendant has the hardiness to continue it; (_Westborn_ v. _Mordaunt_, 2 _Leon. pl._ 121; _Beswick_ v. _Cunden Hill, Cro. Eliz._ 402; _Bull_, _N. P._ 75; _Espin, N. P._ 637). And it is a continuance, though the premises constituting the nuisance be let to an under-tenant subsequently to the verdict against the first tenant for years for the erection, for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. _Rosewell_ v. _Prior_, 2 _Salk._ 460, and cases there.

There are other things which may be called nuisances in transitu, such as the removal of night-soil, garbage, soap boilers-lees, (the waste lees are the residual liquor after soap-boiling), and other very stinking refuse; all these should be restrained (as some already are) to certain hours of the night.

OF IMPOSITIONS.

Under this head we shall comprehend the subject of _Feigned Diseases_, and that of the _Adulterations of Food_.

FEIGNED, or SIMULATED DISEASES.

There are several objects, for the accomplishment of which persons are induced to simulate the existence of disease; such as, for obtaining military exemptions and discharges; or certain civil disqualifications; for the purpose of deriving parochial relief, or pecuniary assistance from benefit societies; or the comfortable shelter and retreat of an hospital; for exciting compassion and obtaining alms; for creating public interest and curiosity; for procuring release from confinement, or exemption from punishment; and, lastly, for the dishonest intention of recovering unjust compensation from some person selected for accusation, as the author of the pretended calamity.

The subject has been very ably treated by different authors on Medical Jurisprudence, especially by _Mahon_ and _Foderé_, whose opportunities for observation during the severe operation of the conscription laws, must have been numerous and instructive; in our own country the work of _Dr. Hennen_, on the principles of Military Surgery, will be found to contain some very valuable information upon the detection of such impostures.

The diseases which have been selected for the accomplishment of any of the purposes above enumerated are extremely numerous, although there are some few which may be said to be more generally preferred on such occasions.

In general the medical enquirer will not have much difficulty in detecting such impositions; although there are cases where the investigation becomes a subject of extreme delicacy and importance, as in those of persons reporting themselves sick, and unfit for military service, or _Malingerers_, as they are technically called. It must be confessed that there is a degree of _eclat_ attending the detection of a fraud, which is very likely to lead the practitioner astray, by inducing him to attach undue importance to the supposed proofs of guilt; such cases have unfortunately occurred, and the innocence of the party has been compromised by the vanity of the inquisitor.

Whenever the suspicions of a medical person are excited with respect to the sincerity of a patient’s account, he should always endeavour to conceal them; he should become himself a dissembler, “_superare malitiam malitia_,” for while the impostor is persuaded that the medical attendant is his dupe, he will be less on his guard; he should then be desired to describe with minuteness every symptom and circumstance of his malady; he should be questioned as to its origin, progress, and duration, its seat, and intensity, and the effects produced upon it by remedies; few impostors will be able to withstand such interrogatories without tripping; they will soon betray some incongruity in their statements, and enable the pathologist to elicit the truth. A girl of seventeen counterfeited epilepsy so well in the general hospital of Montpellier, as to elude all suspicion, until _M. de Sauvages_ who being less credulous asked her whether she had not felt an air pass from the hand to the shoulder, and from the shoulder to the thigh, when, upon her replying in the affirmative, he ordered her to be whipped, after which she had never any return of the disease. If a patient complains of a long protracted disease, which has rendered his life uncomfortable, and we at the same time perceive that his body has not undergone emaciation, we are naturally led to suspect the truth of his statement; and we shall find little difficulty in verifying, or dispelling our suspicions; nor ought we to forget, in an inquiry of this nature, to learn whether the patient has in truth ever flown to any remedy for relief; for if he be an impostor, however cheerfully he may have appeared to submit to medical discipline, we shall find upon minute examination that he has uniformly neglected every plan proposed for his cure. _Galen_ was, from a circumstance of this kind, led to the detection of a person who feigned a fit of cholic, in order to avoid attending a public assembly, but he was observed to neglect the remedy (_Philonium_) which had uniformly relieved him, when labouring under the actual attack of the disease to which he was in reality subject. We should, moreover, be informed respecting the previous character, habits, constitution, and former complaints of the suspected invalid; and we should learn the ostensible reasons which the individual in question may have for feigning ill health, whether for temporary or permanent purposes. The inspections should be conducted in private, for it has been remarked by those most experienced in these subjects, that the number of spectators always increases the obstinacy of the impostor.

When the more ordinary modes of investigation have failed in leading to the detection of an imposture, of whose existence we entertain but little doubt, we may proceed to a system of intimidation, and to severe discipline; few impostors, however sturdy, can withstand the cravings of hunger, blistering, the affusions of cold water, and above all a continual nausea from the administration of divided doses of _Tartarized Antimony_; and yet exceptions of an extraordinary kind might be adduced; “I have seen an instance,” says _Dr. Hennen_,[560] “where the patient admitted of all the preparatory measures of amputation before he thought proper to relax his knee joint;” the same author also relates the case of a dragoon who bore very severe riding-school duty for some weeks, secured to his horse, before he could be brought to acknowledge that his chronic rheumatism was assumed. _Mahon_[561] records a very extraordinary instance of a conscript, who feigned blindness, and baffled every attempt to detect the imposition; he was even placed on the margin of a river, and desired to go forward, which he did, and fell into the stream; he was however, without doubt, aware that boats were provided for his safety, for after having received his discharge, he freely acknowledged the imposition which he had practised.

Having offered these general remarks, we shall proceed to consider the particular diseases more usually counterfeited, and the modes best calculated for their detection; although we must here observe, that after all that can be said upon the subject, each case will require an exertion of ingenuity for its detection, for which no previous instruction can ever provide.

INSANITY has in all ages been feigned for the accomplishment of particular objects; we read of its having been thus simulated by David, Ulysses, and Lucius Brutus; the observations which we have already made upon the subject of imputed insanity, will suggest to the medical inquirer a plan of examination most likely to lead to a just conclusion. In general the detection of such an imposture will not be difficult; the feigned maniac never willingly looks his examiner in the face, and if his eye can be fixed, the changes in his countenance, on being accused, will be strongly indicative of his real state of mind; it is moreover, very difficult to imitate the habits of a lunatic for any length of time, and to forego sleep; an insane person generally sleeps but little, and talks much during the night, but the pretender, if he thinks he is not watched, will sleep, and only act his part when he believes his conduct to be observed.