Chapter XIX: Introduction (1)

WE have at length arrived at the third, and most important division of our work, comprehending the consideration of the principal pleas of the crown, three of which, RAPE, ARSON, and MURDER, are pre-eminently the subjects of Medical Jurisprudence.

It is in the investigation of these crimes that the law derives its greatest support from the lights of science, and that the profession of physic demonstrates the value and extent of her judicial utility. Let the physician then, who approaches the tribunal of justice in order that he may promote by his science the due execution of the laws, fully appreciate the heavy responsibility of his situation; let his evidence be so distinguished by its dispassionate and inflexible character, and his opinions be so matured by study, and fortified by experiment, as not only to ensure for himself the respectful attention of the court, but to afford a practical illustration of the just pretensions and importance of the liberal profession which he represents. The observations which we have already offered on the subject of medical evidence (page 153) render it unnecessary for us to enlarge on this occasion upon the various duties it involves; and yet we cannot forbear from again pressing upon the attention of all those, who are likely to be called upon to assist the ends of justice, the great importance of preparing their minds by preliminary studies; let it be remembered, that it is not during the hurry and anxiety of a coroner’s inquest, nor amid the tumult of popular prejudice and execration, that a medical practitioner should, for the first time, adopt the physiological or chemical opinions by which he is ultimately to decide upon the life of a fellow creature; and yet it would be folly to conceal the unwelcome truth, that such a fact has not unfrequently occurred on several of the more interesting trials, upon which the medical witness has evinced any thing rather than a well grounded acquaintance with the philosophical bearings of the question; and while he has endeavoured to conceal his ignorance under the veil of technical phraseology, he has artfully sought to shun the embarrassments it might create by a display of bold and sweeping assertions, alike hostile to the discovery of truth, and the administration of justice. There is yet another evil to which those who are but imperfectly informed on the question at issue are peculiarly exposed; their opinion is always liable to be warped by extraneous circumstances, and they are in consequence involuntarily apt to bend facts to their first view of the case under consideration, to seize on a few circumstances which suit their preconception, and to neglect or distort those which have a contrary tendency; while, on the other hand, the practitioner who has prepared his mind by study and experience, will, with equal diligence, seek every avenue to truth, and will suspend his conclusions, until the result of each investigation be fairly before him; in delivering to the Court the opinion to which his researches have led him, he will be ever careful to distinguish between the duties of an advocate, and those of an unbiassed witness; he will state whether the conclusion at which he has arrived amounts to certainty, or only to high probability, and will separate the doubts and difficulties with which the question has been encompassed by the sophistry of counsel, from those that belong intrinsically to the subject, and are inseparable from it. And it may be proper on this occasion to observe that the medical practitioner is not to withhold an opinion because it may be involved in doubt; he is to furnish the best evidence which the nature of the case will allow, and when he duly performs this task, he may feel proud in the consciousness that he occupies an important station in the administration of justice; and that he conscientiously discharges a duty, without the due performance of which, the laws of his country would be inoperative.

ARSON.

The charge of _Arson_[602] may occasionally become the subject of scientific research, and the accused individual receive an honourable acquittal at the hands of the chemical philosopher; by whose interposition, the conflagration, unjustly imputed to malice, may be proved to have originated from a spontaneous process of decomposition.

_Spontaneous Combustion_ may be defined, _an inflammation occasioned by the re-action of different bodies upon each other, at the ordinary heat of the atmosphere, without the contact or approach of any other body previously raised to a high temperature_. This definition necessarily excludes that class of substances which evolve gaseous matter of a highly inflammable nature, but which requires the approach of an ignited body to kindle it.

The subject of _spontaneous combustion_ has attracted the attention of many very eminent chemists, and an extensive series of experiments has been instituted in several different countries for its complete investigation, the results of which have thrown considerable light upon the causes which operate in the production of the phenomenon, as well as upon the nature of the substances most liable to such an accension, and the particular circumstances which are essential to its occurrence. The following may be considered as the principal sources from which it may originate, viz.

I. FRICTION.

II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES, as that of _hay_,
_oatmeal_, _roasted bran_, _coffee_, _&c._ _rags in paper-mills_,
_&c._

III. CHEMICAL ACTION. _Accension of oils, by various animal, vegetable,
and mineral substances; accension of vegetable matter by concentrated
acids; ignition of lime by the affusion of water; ignition of
pyrites._

We shall proceed to consider these subjects more in detail.

1. FRICTION. The kindling of machinery, when not sufficiently greased, from the friction of its various parts, has occurred too frequently to require much illustration, although the immediate cause of the phenomenon involves in its consideration so many recondite points in the theory of Caloric, as at present to elude our attempts at explanation; we must therefore rest upon it as an ultimate fact, and be satisfied with availing ourselves of the advantages to which a knowledge of it may conduce. The original inhabitants of the New World, throughout the whole extent from Patagonia to Greenland, procured fire by rubbing pieces of hard and dry wood against each other, until they emitted sparks, or kindled into flame; some of the people to the north of California produced the same effect by inserting a kind of pivot in the hole of a very thick plank, and causing it to revolve with extreme rapidity: this fact will explain how immense forests have been consumed, from the violent friction of the branches against each other by the wind.

II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES. In order to establish the process of fermentation, the presence of water appears indispensable; we accordingly find that in all the cases of spontaneous combustion which have originated from this source, the substances have either been in themselves imbued with moisture, or they have possessed the power of absorbing a considerable portion of water from the atmosphere. The firing of hay, when stacked in too moist a condition, is a striking exemplification of this fact; the same circumstance occurs from great accumulations of turf, flax, and hemp, heaps of linen rags in paper-mills, &c. provided a sufficient portion of moisture be present to excite the process of fermentation, and the consequent evolution of heat. _Oatmeal_, from the extreme avidity with which it imbibes water,[603] and the heat which is generated by the absorption of it, is necessarily liable to spontaneous combustion; the following well authenticated case[604] may serve as an illustration of this fact: “A gentleman removed with his family from Glasgow to Largs, in May last, and shut up his house, which was not re-opened until the end of August; the house stands on the side of a steep declivity, so that the kitchen which is in the back part, though sunk considerably below the level of the street, is entirely above ground, and is well lighted and ventilated. In an opening of the wall, near the kitchen fire-place, originally intended it is supposed for an oven, there was placed a wooden barrel bound with iron hoops, and filled with _oatmeal_. This meal, which had heated during the absence of the family, at last caught fire, and was totally consumed, together with the barrel which contained it, nothing remaining but the iron hoops and a few pieces of charcoal.” In some cases torrefaction increases the propensity of vegetable substances to spontaneous combustion; _coffee_, roasted _French beans_, _lentils_, &c. are of this description. Some years ago a great fire broke out in the village of _Nauslitz_, which is said to have been occasioned by the application of _roasted_ bran to the necks of some cattle in a wooden cow-house; in consequence of which, _M. Rude_ an apothecary at _Bautzen_, instituted some experiments, by which he found that if rye-bran, roasted until it acquires the colour of coffee, be wrapped up in a linen cloth, it will in a short time take fire. _Montet_ relates[605] that animal substances may also, under certain circumstances of decomposition, kindle into flame; and he tells us that he had himself witnessed the spontaneous accension of a dunghill. We do not believe that the phosphoric appearances that so frequently accompany the process of putrefaction, especially that of fish, are ever connected with actual combustion. Woollen stuffs are said to have taken fire spontaneously; it is related for instance that the article manufactured at Cevennes, and which bears the name of “_Emperor’s Stuff_,” has thus kindled of itself, and burnt to coal; we are, however, very doubtful whether such a material is liable to this process, unless it be impregnated with oily matter; and this doubt will receive considerable strength from the facts which we shall hereafter enumerate.

III. CHEMICAL ACTION. This proves a very frequent cause of _spontaneous combustion_; and there is perhaps no substance that has so frequently performed the part of an incendiary as _fixed oil_, especially when of a drying nature, which with its various accomplices from the animal, vegetable, and mineral kingdoms, has in darkness and secresy consigned ships, houses, and manufactories to the flames. The following interesting occurrence is related in the _Edinburgh Philosophical Journal_: About twenty-five pieces of cloth, each of which contained nearly thirty ells, were deposited upon wooden planks in a cellar at Lyons, on the eighth of July, 1815, in order to conceal them from the armies which then over-ran France; _in the manufacture of the cloth 25lbs of oil were used for a quintal of wool, and the cloth was quite greasy_, each piece weighing from 80lbs to 90lbs; the cellar had an opening to the north, which was carefully shut up with dung, and the door was concealed by bundles of vine-props, which freely admitted the air; on the morning of the 4th of August an intolerable stench was perceived, and the person who entered the cellar was surrounded by a thick smoke, which he could not support; a short time afterwards he re-entered with precaution, holding a stable lanthorn in his hand, and he was astonished to perceive a shapeless glutinous mass, apparently in a state of putrefaction; he then removed the dung from the openings, and as soon as a circulation of air was established, the cloth instantly took fire. In another corner of the cellar lay a heap of stuffs which had been _ungreased_ and prepared for the fuller, _but they had suffered no change_. In this case the agency of the oil was sufficiently evident. In June, 1781, a similar occurrence happened at a wool-combers in a manufacturing town in Germany, where a heap of wool-combings, piled up in a close warehouse seldom aired, took fire spontaneously; this wool had been, by little and little, brought into the warehouse, and from want of room, been piled up very high and trodden down; that this combed wool, to which rape oil mixed with butter had been added in the combing, burnt of itself, was sworn to by many witnesses; one of whom affirmed that ten years preceding a similar fire had happened among the flocks of wool at a clothiers, who had put them into a cask, where they were rammed down hard for facility of carriage, and that this wool burnt from within outwards, and became quite a cinder. Cotton goods, in which linseed oil had been spilt, have burnt in a similar manner, and there is reason to attribute to an accident of this kind the recent loss of a merchant-vessel homeward bound from the East Indies. Many years since, several fires broke out at very short intervals, in a rope-walk, and in some wooden houses in St. Petersburgh; in none of which instances could the slightest suspicion of wilful firing be entertained; there was lying in the rope-walk, where the cables for the navy are made, a great quantity of hemp, amongst which a considerable portion of oil had been carelessly spilt, and the article was accordingly declared to have been spoilt; in consequence of which it was purchased at a low price, and being heaped up together, it had given rise to the conflagration; the inferior inhabitants had also purchased parcels of this spoilt hemp, for closing the chinks, and caulking the windows of their houses, a fact which offered an easy explanation of the origin of the fires that occurred amongst the houses. It was moreover reported that at the above-mentioned rope-walk coils of cable had been frequently discovered so hot, that the people were obliged to separate them to prevent farther danger. In the year 1757, as _Montet_ reports, sail-cloth, _smeared with oil and ochre_, took fire in a magazine at Brest. In the spring of 1780, a fire was discovered on board a frigate lying in the road off Cronstadt, which, had it not been timely extinguished, would have endangered the whole fleet. After the most severe scrutiny no cause of the fire was to be found, and strong surmises existed that some wicked incendiary had occasioned it. In the month of August in the same year, a fire broke out at the hemp magazine in St. Petersburgh, by which several hundred thousand _poods_[606] of hemp and flax were consumed; the walls of this magazine are of brick, the floors of stone, and the rafters and covering of iron; it moreover stands alone on an island in the Neva, on which, as well as on board the ships lying in the river, no fire is permitted. In the same year a fire was discovered in a vaulted shop of a furrier; it merits notice that in these shops, which are all vaulted, neither fire nor candle are ever allowed, and the doors are all composed of iron: at length the cause of the conflagration was discovered; it appeared that on the evening previous to the fire the furrier had purchased a roll of new cere cloth, (an article much in use for covering tables, counters, &c.) and had left it in his vault, where it was discovered almost consumed. After these several instances of spontaneous combustion, we shall relate the celebrated case which led to a satisfactory explanation of their origin, and induced the philosophers of different countries to confirm the Russian Report by an extensive series of well devised experiments. In the night of the 21st of April, 1781, a fire was seen on board the frigate _Maria_ which lay at anchor, with several other ships, in the road off the island of Cronstadt; the fire was, however, soon extinguished, but the severest examination failed in extorting any satisfactory explanation of the manner in which it had arisen; the garrison were threatened with a scrutiny that should cost them dear, and were placed under circumstances of the most cruel suspense; in the midst of this confusion, the wisdom of the Empress gave a turn to the affair, and, in the following order to _Count Chernichet_, pointed out an effectual method to be pursued by the Commissioners of Inquiry. “When we perceived, by the report you have delivered in of the examination into the accident that happened on board the frigate _Maria_, that, in the cabin where the fire broke out, there were found parcels of matting tied together with packthread, in which the soot of burnt fir-wood had been mixed with oil, for the purpose of painting the ship’s bottom, it came into our mind that at the fire which happened last year at the hemp warehouses, the following cause, amongst others, was assigned; that _the fire might have proceeded from the hemp being bound up in greasy mats, or even from such mats having lain near the hemp_; therefore neglect not to guide your farther inquiries by this remark.”

As it appeared upon juridical inquiry that, in the ship’s cabin where the smoke first appeared, there lay a bundle of matting containing Russian lamp-black prepared from fir-soot, moistened with hemp-oil varnish, which was perceived to have ignited sparks at the time of the extinction of the fire, the Russian Admiralty gave orders to institute various experiments with a view to discover whether such a mixture, folded up in a mat, would kindle spontaneously; a number of experiments was accordingly performed, and the result established the fact beyond the reach of controversy. The Russian Admiralty having thus satisfied the public with respect to the self-enkindling property of this compound, transmitted an account of their investigation to the Imperial Academy of Sciences, at whose desire _M. Georgi_ repeated the experiments, by which he not only confirmed the report of the Admiralty, but extended the information which it contained, and deduced an important generalization of its views.

It sometimes happens that in boiling flowers and herbs in oil, which occurs in several pharmaceutic operations, these herbs after being taken out, dried, and pressed, inflame spontaneously; care therefore should be taken, when such substances are thrown aside, that they are not heaped up near other combustible bodies.

Amongst the mineral substances capable of exciting the inflammation of oils, an ore of Manganese, known by the name of the _Black Wad of Derbyshire_, holds a distinguished place; when this substance is pulverised, and moistened with a little linseed oil, it will in the space of an hour take fire, and become red hot, like burning small-coal; it is supposed that the Pantheon, in Oxford-street, was destroyed by the inflammation of a compound of _Derbyshire wad_ and oil, used in painting the scenery.

In these cases of combustion, oxygen seems to act an important part, and by combining with the hydrogen of oil to excite a chemical action which may be considered the immediate cause of the phenomenon. Saw-dust, and other vegetable matter, has been occasionally excited into flame by the action of the concentrated mineral acids; we have been lately informed by _Mr. Parkes_, that a fire took place some years since in his chemical manufactory, in consequence of the leakage from a carboy of nitric acid. Several instances are also on record of fires having been occasioned by the sudden slacking of quicklime; _Theophrastus_ relates an instance of a ship which was loaded in part with linen, and in part with quicklime, having been set on fire by water that was accidentally thrown over the latter, and that the vessel was in consequence entirely consumed. In the _Journal de la Haute Saone_ there is an account of the burning of a barn, one of the partitions of which being wood had caught fire from a quantity of quicklime, intended for the repair of the premises, having been carelessly thrown against it. In this country a similar accident happened in the last winter at Edmonton, near London; the flood, consequent upon a heavy fall of rain, made its way among the quicklime in a bricklayer’s premises, which took fire and were burnt.

There still remains for notice another source of spontaneous burning,—the ignition of _Pyrites_, and that of cinders from the furnaces of glass-works, from exposure to air and moisture; it was in this manner that the ship _Ajax_ was supposed to have been consumed, from the spontaneous combustion of coal, abounding in _Pyrites_.

HUMAN COMBUSTION.

BEFORE we quit the consideration of _spontaneous combustion_, it becomes our duty to offer a few observations upon a subject which appears to be nearly allied to it, and which certainly belongs to medico-judicial inquiry,—_the combustion of human beings_; the phenomenon, however, has been erroneously designated as _spontaneous_, for in every recorded instance, the approach of some burning body, as that of the flame of a candle, or an ignited pipe, appears to have been necessary for its occurrence. “It can no longer be doubted,” says _Dr. Gordon Smith_, “that persons have retired to their chambers in the usual manner, and in place of the individual, a few cinders, and perhaps part of his bones, were found.” Upon this occasion we confess ourselves more sceptical; the phenomenon is contrary to all our preconceived views, and must therefore require more than ordinary testimony for its support, although we are ready to admit, that upon any other less miraculous subject, evidence even less powerful than that produced on the present occasion, would be deemed amply sufficient. _Plouquet_, in his _Literatura Medica_, enumerates twenty-eight cases. _Dr. Trotter_, in his Essay on Drunkenness, adduces a considerable number of instances of persons addicted to the immoderate use of spirits, having undergone such combustion. In Paris, an essay written exclusively on this subject was published by _Pierre Aimée Lair_, entitled “_Essai sur les combustions humaines, produites par l’abus des liq. spirit: Paris 1808_;” and the journals of various nations[607] present us with a great variety of examples, all of which, with some slight shades of difference, appear to have been attended with the same phenomena: a fact which we freely admit affords internal evidence of their authenticity. On the other hand it deserves notice, that amidst all these cases, _only one_[608] is related where the person survived for a short time, and gave an account of the manner in which he was _struck_ with the fire; in none of the others has it ever been known in what way the fire commenced, or proceeded. The following are the circumstances in which all the recorded cases so singularly concur.

1. The persons who have suffered this species of combustion have been
long accustomed to drink spirtuous liquors.

2. These persons have been generally females, and advanced in years.

3. The body has not burned _spontaneously_, but accidentally, in as much
as it required for its inflammation the contact or approach of some
burning body, or that of electric matter.

4. The extremities of the body, such as the feet and hands, have in
general escaped.

5. The fire has little injured, and sometimes not at all, those
combustible things that were in contact with the body when it was
burning.[609]

6. The combustion of these bodies has left a residue of greasy and fœtid
ashes and fat, that were unctuous, and extremely offensive and
penetrating.

Various theories have been proposed for the explanation of this singular phenomenon; and we may here observe, that if the bodies in question were actually found consumed, in the manner described, it is quite impossible to suppose that they were burnt by ordinary means; nor, even admitting that they had been rubbed over with a highly combustible substance, is the explanation less difficult; at a period when criminals were condemned to expiate their crimes in the flames, it is well known what a large quantity of combustible materials was required for burning their bodies. A baker’s boy, named _Renaud_, being several years ago condemned to be burnt at Caen, two large cart loads of faggots were required to consume the body; and at the end of more than ten hours some remains were still visible. In this country the extreme incombustibility of the human body was exemplified in the case of Mrs. King, who having been murdered by a Foreigner, was afterwards burnt by him; but in the execution of this plan he was engaged for several weeks, and after all did not succeed in its completion.

2. RAPE.

RAPE is the unlawful and carnal knowledge of a woman by force and against her will: a ravishment of the body and violent deflowering her, which is felony by the common and statute law. _Co. Litt._ 190, 124.[610] Formerly it was the law (especially in case of appeals of rape) in order to prevent malicious accusations, that the woman should immediately after, “_dum recens fuerit maleficium_,” go to the next town, and there make discovery to some credible persons of the injury she had received: and afterwards acquaint the high constable of the hundred, the coroners and the sheriff with the outrage. _Glanv. l._ 14. _c._ 6: _Bract. l._ 3. _c._ 28. 1 _Hales P. C._ 632. Afterwards by statute _Westm._ 1. 3. _Ed._ 1. _c._ 13. the time of limitation was extended to forty days. At present there is no time of limitation fixed, for it is punished at the suit of the king, and the maxim of law takes place, that, _nullum tempus occurrit Regi_. The appeal of Rape (for there were formerly several appeals beside that of murder) has been long obsolete; see _Jac. Law Dic. tit. Appeal_, and is now abolished by the statute 59 _Geo._ 3, _c._ 46:[611]. But though there is no time limited, a jury will seldom give credit to a stale complaint. In Scotland it is said the limit was twenty-four hours; the King against Colonel _Charteris, Maclaurin’s Crim. Cases, p._ 66. 69. And in a medical point of view it is yet more necessary that examination should be immediate, many collateral proofs might be observed on an early enquiry, all signs of which would be obliterated in a few hours.[612] This remark applies as well to the supposed criminal as to the sufferer; both should in all possible cases be subjected to immediate surgical examination; the case related by Sir _Matthew Hale_, (_P.C._) furnishes an instance where an innocent man might have been saved from a malicious prosecution, to the hazard of his life, by this precaution. _Foderè_, in his work on Medical Jurisprudence, vol. 4, p. 363, mentions two cases from _Zacchias_, where the falsehood of an accusation was determined by a comparative inspection of both parties. See also the same work, and vol. 4, p. 365. 370.[613]

As this is a crime of which the accusation is peculiarly easy, and the disproof proportionably difficult, more than ordinary acuteness is necessary for its investigation; and this can be best exercised while the event is recent, and before one or other of the parties can have time, deliberately, to frame the account of their injuries or innocence: here, as in some cases of murder, to which we shall have occasion to allude, the medical practitioner is likely to be one of the earliest witnesses to the conduct of the accuser (if not also, of the accused), immediately after the alleged transaction; to him therefore the Court will look, not only for surgical, but also for general observations. The following are among the first that will occur.

1st. What is the age, strength of body and mind, situation in life, and general character of the accuser?

2d. The same of the accused.

3d. Had the parties any, and what previous acquaintance and intimacy?

4th. What external and obvious signs are there of violence?

5th. What surgical proof of coition, whether voluntary or violent?

6th. Is either party tainted by any, and what disease?

Time, place, and circumstances of the alleged offence.

A female infant, under twelve years of age, is in law deemed incapable of consenting to any act, much less to her dishonor; the carnal knowledge of such infant, whether she yield or not, is therefore virtually a rape; but whether, if the child be above ten years of age, it be also a felony, has been questioned: Sir _Matthew Hale_, 1 _P. C._ 631, was of opinion that such profligate actions, either with or without consent, amount to rape and felony, as well since as before the statute of _Queen Elizabeth_; but in his Summary, the learned judge appears to have altered his opinion. And the present practice is, that if the child be under ten years of age, then it is felony by the statute; but if she be above ten and under twelve, then it is no rape if she consented, but only a misdemeanour; _Stat. West._ 1 _c._ 13, see 1 _East’s P. C._ 435.

The abominable wickedness of carnally knowing and abusing any woman child under the age of ten years, in which case the _apparent_ consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion, is felony without benefit of Clergy, 18 _Eliz. c._ 7. It is lamentable to reflect that this crime should have been of very constant occurrence, and that it should not unfrequently have been committed by hypocrites, who had been entrusted with the education of their victims. In 1758, _John Forbes_, chaplain and schoolmaster of Dalkeith,[614] was convicted of a variety of libidinous acts, and also several rapes; and of his having carnal knowledge of a girl (one of his pupils) under twelve years of age. He was sentenced to be whipped and banished: the king’s advocate having “in respect it is known to him, that the evidence of the rape and carnal copulation will be proven only by girls under age,” restricted the indictment to an arbitrary punishment. _Maclaurin’s Crim. Ca. p._ 186. 755.

In 1777, the Rev. _Benjamin Russen_, a puritanical schoolmaster, was convicted and executed for a similar offence, on a girl under ten years of age. See 1 _East._ 438. _Ann Reg._ Many other instances might be cited, if it were necessary here to enforce upon the minds of parents, the expediency of minute enquiry into the habits of those to whom they entrust the custody of their children; and that they should not be deceived by professions of extraordinary sanctity.[615] Nature has this revenge against those who pretend exemption from her frailties, that to sustain their hypocricies, they fall into greater crimes than those which they profess to avoid; assuming to be more than man, they degrade themselves to beasts. See case of _Thomas Weir_ and _Jane_ his sister. _Maclaurin, C. C. p._ 1[616].

The crime of violating a child, under the age of consent, is the more scrupulously to be investigated, as one mode of proof is too frequently excluded; the testimony of the sufferer, if she be of very tender age, is not evidence; the greater therefore the atrocity of the offence, the greater is the difficulty of conviction; “If the rape be charged to have been committed on an infant under twelve years of age, she may still be a competent witness, if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie; nay, though she hath not, it is thought by Sir _Mathew Hale_,” (1 _P.C._ 634) “that she ought to be heard without oath, to give the Court information; and others have held, that what the child told her mother or other relations, may be given in evidence; since the nature of the case admits frequently of no better proof. But it is now settled, by a solemn determination of the twelve Judges; that no hearsay evidence can be given of the declarations of a child, who hath not capacity to be sworn; nor can such child be examined in Court without oath: and there can be no determinate age at which the oath of a child ought either to be admitted or rejected;” but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court. _Brazier’s case_, 1 _Leach’s Crown Law_, 237. _Powell’s case, ib._ 128. _Rex v. Travers_, 2 _Strange_, 700.[617]

A female may suffer violation at any age beyond absolute infancy; and the criminal records also furnish examples of brutality towards women of a very advanced period of life. As to the other sex, it may frequently be necessary to consider, at what age a boy may be capable, or an old man incapable, of committing the offence[618]. No determinate line can be drawn in either case, every instance must therefore rest upon its peculiar circumstances; this may however be allowed as a general rule, an attempt at violation is as extraordinary on the part of extreme youth, as its completion is improbable in advanced old age. Sir _M. Hale_ says (1 _P.C._ 631), “A male infant under the age of fourteen, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies _malitia supplet ætatem_; yet as to this particular species of felony, the law supposes an imbecility of body as well as of mind.” (4 _Bl. Com. c._ 15). This imbecility however is not universal, as we have previously shewn when treating of the age of Puberty.

After having determined the age, the most material examination is as to the relative bodily strength of the parties. It is at all times difficult to believe that in a mere conflict of strength, any woman of moderate power of body and mind, could suffer violation, so long at least as she retained her self possession,[619] All accusation therefore must be viewed with suspicion, if there be not a great disparity of strength in favour of the assailant. But this remark must not be construed to extend to cases, where by long continued violence, intimidation, or other circumstances, the woman is ultimately overcome; for her mental suffering may very considerably exhaust her power of resistance; “and it is no excuse or mitigation of the crime, that the woman at last yielded to the violence; and consented either after the fact, or before, if such consent was forced, by fear of death, or duress,” 1 _Hawk. Pl. c._ 41. _s._ 2. _Co. Lit._ 123. 1 _Hale’s Pl._ 629. The mental power of the sufferer is also to be regarded; if it were considerable, greater power of resistance is to be expected; the contrary, if the woman were weak and timid; and if she were actually imbecile, “A poor innocent that could not say him nay;” the crime varies little or nothing in atrocity from the violation of an infant. We are not aware that any such case is on record, though the late investigations into the conduct of some keepers of mad-houses leave reason to fear that such crimes have been committed.

The external signs of violence ought to be enquired into upon the spot on which the crime is said to have taken place, and that as soon after the alleged commission as possible; that the state of surrounding objects may be determined, as well as the incidental injuries, as bruises, strains, &c. which either of the parties may have received in the struggle; the state of their clothes must be examined, and every circumstance, however minute, carefully noted. The case of _Abraham Thornton_, Warwick assizes, 1817, and the subsequent proceedings on the appeal in the King’s Bench, _Easter T._ 1818, 1 _Bar. & Ald._ 405, will shew how material such examination may prove. Many of the observations to be made on cases of murder equally apply to those of rape; to them we must refer.

It is not necessary that the party violated should be proved a virgin[620] up to the period of the alleged crime; for it may be committed on the person of a married woman, or of a widow; nay more, the law extends its protection against violence to those who have been notoriously unchaste; even a common strumpet is still under the protection of the law, and may not be forced, (1 _Hawk. Pl._ 108.) and it is not certain that she had not repented, and determined to reform. Yet in the case of a person of notoriously bad reputation the strongest possible evidence would be required to warrant a conviction.

“A very considerable doubt having arisen as to what shall be considered sufficient evidence of the actual commission of this offence, it is necessary to enter into an enquiry which would otherwise be offensive to decency. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and consonant to those sentiments of laudable indignation which induced our ancient lawgivers to rank this offence among felonies, if all further enquiry were unnecessary after satisfactory proof of the violence having been perpetrated by the actual penetration of the unhappy sufferer’s body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice _Foster_ has expressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle, or for what rational purpose, any further investigation came to be supposed necessary, the books which record the dicta to that effect, do not furnish a trace.” 1 _East. P. C._ 436.

But on the other hand it must be allowed, that as this is a crime peculiarly easy in accusation, and difficult in defence; and as experience has shewn that prosecutions for this offence are very frequently resorted to from motives of revenge, malignity, disappointment, or extortion; the law has done well to extend its best protection to the possibly innocent, while it reserves its severest punishment for the truly guilty. It has occurred that there has not been the slightest ground for the accusation, that coition has never taken place, or been attempted by the party charged; the ordinary details are easily invented, and very colourable circumstantial evidence is soon obtained by the designing accuser; it is only in the minuter points of examination, to which the present practice gives occasion, that she will trip in her evidence; it is to that only that the accused can look for safety when a well forged tale, artfully compounded of truth and falsehood, is prepared for his destruction. Nor is it uncommon that a woman, who has actually consented to her own dishonor, should, on fear of discovery, or on disappointment, or from jealousy, prefer an accusation of rape against her seducer; here the main fact being true, the coition having taken place, and under the usual circumstances of secresy, the life of a prisoner depends on the mere question of consent or violence; the prosecutrix being the principal, or more generally, the only witness, it is essential that her testimony should be subjected to the most rigid examination, and that all external circumstances should be sought which might tend to confirm or destroy it.

The first and most material point to be proved is, that the venereal congress or coition has actually taken place; but as to the exact legal definition of this act, much difference of opinion has existed; for while some learned authorities have held, that penetration alone is necessary, others have maintained that the crime is not perfected without _emissio seminis_ also. Lord _Coke_, defining “_carnal knowledge_,” says, there must be _penetratio_, that is _res in re_; but the least penetration maketh it carnal knowledge.[621] So in the case of _Russen_ the schoolmaster, it was proved by two surgeons on behalf of the prisoner, and corroborated by four others who had examined the girl, that the Hymen (which _they_ considered an indubitable mark of virginity[622]) was whole and unbroken, and that the passage was so narrow that a finger could not be introduced. But it was admitted that this membrane, the existence or non-existence of which has been strongly controverted,[623] was in some instances situated an inch or an inch and a half beyond the Vagina;[624] and Mr. Justice _Ashhurst_, who tried the prisoner, left it to the jury whether any penetration were proved, for if there were any, however small, the rape was complete in law. The jury found him guilty, and he received judgment of death. But before the time of execution, the matter being much discussed, the learned judge reported the case to the other judges for their opinions, whether his direction were proper. And upon a conference, it was unanimously agreed by all assembled (in the absence of _De Grey_, C. J. and _Eyre_ B.) that the direction of the judge were perfectly right. They held that in such cases, the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity. It was therefore properly left to the jury by the judge; and accordingly the prisoner was executed. This decision appears to be well warranted by physiological observation, for as it is evident from the concurrent testimony of the highest medical authorities, that penetration _in vaginam_, is not necessary to conception, (_vide ante, p._ 203.) it would be absurd to contend that more were necessary to constitute Rape in law, than Generation in nature[625]. The utmost wrong to the one party, and the malignant intent of the other, have been complete; and the injury on the one hand, and malice on the other, are truer criteria for the administration of justice, than the dicta of lawyers, or the etymologies of schoolmen.

Lord _Coke_, (12 _Rep._ 37.) Sir _M. Hale_ in his Summary,[626] and _Hawkins P. C._ say that there must be both _penetratio_ and _emissio seminis_, and this appears to be the law of the present day, as decided by _Skynner_, C. B. _Gould_, _Willis_, _Ashhurst_, _Nares_, _Eyre_, and _Hotham_, against Lord _Loughborough_, _Buller_, and _Heath_, Lord _Mansfield_, though present, having given no opinion of his own; (a circumstance from which we might infer that he agreed with the minority). The argument is stated to have turned on the words _carnal knowledge_, to which the majority contended that _emissio seminis_ was absolutely necessary; if therefore it be true that certain Eunuchs[627] have power of erection, and consequently of penetration, they may morally ravish without incurring the punishment of Rape; for it is certain that they can have no _emissio seminis_;[628] or a man may have perpetrated all the more atrocious parts of his crime, and yet being interrupted in the least voluntary constituent of it, (_Hill’s_ case)[629] escape the well-merited vengeance of the law; while it is evident on the other hand, that the innocent victim has suffered, in body, mind, and reputation, as much, as if the crime had been legally completed.

But admitting the fact of emission to be necessary to the constitution of this crime, it remains to enquire whether the proof of this fact must be specifically made out in evidence, or whether it shall be presumed. In _Matthew Cave’s_ case (Oct. 1747) Chief Justice _Willes_ directed the prisoner to be acquitted for want of proof; but on the other hand, Mr. Justice _Foster_, _Clive_, J. (in _Blomfield’s_ case, A.D. 1758) _Bathurst_, J. and Baron _Smythe_ (in _Sheridan’s_ case, 8 _Geo._ 3) and _Buller_, J. (in _Harmwood’s_ case, Winchester Spring assizes, A.D. 1787) held the contrary; the latter case is the more worthy of consideration, as it was subsequent to the decision in _Hill’s_ case, and tried by one of the judges present at the discussion: “He said, in giving judgment, that he recollected a case where a man had been indicted for a Rape, and the woman had sworn that she did not perceive any thing come from him; but she had had many children, and was never in her life sensible of emission from a man:[630] and that was ruled not to invalidate the evidence which she gave of a Rape having been committed upon her.” 1 _East. P. C._ 440.

A Rape may have been committed on a child too young, or rather too incompetent, to be sworn; yet all the circumstances except this, may be proved by other witnesses; the infant alone could prove _emissio in vaginam_, for no subsequent examination, however immediate, would demonstrate the fact; or when a woman has fainted from the violence committed on her, or has been dishonoured in her sleep,[631] and through the agency of soporific drugs, or has died before the trial,[632] or been murdered by her ravisher, or has been driven to suicide by mental distraction; in all these cases of increased atrocity, this mode of proof becomes impossible.

But emission, it is said, may be presumed from penetration, _Duffin’s_ case, _June_, 1821,[633] but this is not physiologically true in all cases, and as we have stated, that it may be prevented by accident or interruption, so also emission is said to be evidence of penetration; but this is still less reasonable; for it is obvious that it may easily occur in the mere attempt; yet if reliance can be placed on the authorities already quoted,[634] emission alone without any material penetration, but only by injection _inter labia_, will be sufficient to impregnate, and therefore ought in reason to be considered sufficient to constitute the crime of Rape.

When it has been clearly proved that coition has actually taken place between the parties charged[635], the next point to be determined is, whether the woman consented or not. It is not necessary that we should here enter into a detail of all the circumstances which may throw light on this question; but one extraordinary dictum of the more ancient lawyers is worthy of observation, though there is little fear that the error will ever be sanctioned by any tribunal; yet as it is one of the evils of this crime that an unmerited stigma too frequently attaches to the sufferer by it, we are the more anxious to expose the vulgar idea, from which some ignorant persons might still infer that a woman had consented, because she had proved pregnant. “It is said by Mr. _Dalton_, that if a woman at the time of the supposed Rape do conceive with child by the ravisher, this is no rape; for (he says) a woman cannot conceive unless she doth consent. And this he hath from _Stamford_ and _Britton_, and _Finch. Dalt. c._ 160. see also 2 _Inst._ 190.[636] But Mr. _Hawkins_ (_P. C. c._ 41. _s._ 2), observes that this opinion seems very questionable: not only because the previous violence is in no way extenuated by such a subsequent consent; but also, because if it were necessary to shew that the woman did not conceive,[637] the offender could not be tried till such time as it might appear whether she did or not; and likewise because the philosophy of this notion may be very well doubted of. 1 _Hawk._ 108. And Lord _Hale_ says this opinion in _Dalton_ seems to be no law. 1 _H.H._ 131. (see also _Mss. Sum._ 334). That so absurd a notion as that conception evidenced consent, should in modern times have obtained amongst any whose education and intellect were superior to those of an old nurse is indeed surprising: at this day, however, facts and theory concur to prove that the assentation of nature in this respect, is no ways connected with volition of mind.” _Burn’s Just. tit._ Rape.

It is not necessary that the quantum of violence be extreme; it is sufficient that the offence is committed without consent; as where a woman is violated in her sleep, or during a fit, and query if she have been intoxicated for that special purpose, so that in truth she should have no rational power to consent or deny; or if the ravisher imposed himself in the night, on a married woman as her husband.

If a woman be compelled by violence to marry, and carnal knowledge be had by force, it is a rape, 1 _Hale_, 629; but as there is another remedy by _statute_ 3 _Hen._ 7. _c._ 2. for the forcible abduction, it is not necessary to enquire whether an indictment will lie, until the marriage be dissolved.

Nor will a subsequent marriage purge the offence: formerly “it was held for law, that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence, by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.” _Glanv. l._ 14. _c._ 6. _Bract. l._ 3. _c._ 28.; and this was reasonable while the prosecution was at the suit of the party by appeal, for as the king could not pardon, the power of remission might be properly left to the person injured; but that outrages might not be too readily compromised to the injury of public justice, the statue 6 _Rich._ 2 _st._ 1. _c._ 6. enacts, that the woman consenting, and the ravisher, be “disabled to challenge all inheritance, dower, or joint feoffment, after the death of their husbands and ancestors,” and the husband, or if she have none, the father or next of blood shall have the appeal[638]. But Rape having been made felony by _Stat. West._ 2. _c._ 34. and a new appeal given, the option of the woman is now taken away. It would have been unnecessary to have dwelt on this point if a vulgar error did not to this day prevail among the lower orders, that the punishment of Rape might be escaped by the connivance of the nominal prosecutrix, even after judgement.

The party grieved is so much considered as a witness of necessity in this, as in other personal injuries, that in Lord _Castlehaven’s_ case, who assisted[639] another man in ravishing his own wife, she was admitted as a witness against him. The same testimony was received in Lord _Audley’s_ case[640], 1 _East. P.C._ 444. 1 _Hall_, 629: 1 _St._ Tri. 387. 1 _Stra._ 633. _Hutt._ 116.[641]

And if the party be dead “_the deposition_ of the girl taken before the committing magistrate and _signed by him_, may after her death, be read[642] in evidence at the trial of the prisoner, although it was not _signed by her_, and she was under twelve years of age; provided she was sworn, and appeared competent to take _an oath_, and all the facts necessary to complete the crime may be collected from the testimony so given in evidence.” _The King against Fleming and Windham_, A.D. 1779. _Leach’s C.L. p._ 996. But if the declaration be made _in articulo mortis_, the party knowing herself to be dying, then it is not necessary that she be sworn, for the solemnity of the occasion is more than equivalent to the form of an oath, yet it is necessary that the party should have so much sense and discretion, that, if in sound health, she might have been sworn; for if she have not, then even the fear of death and judgment may not have a sufficient impression on her mind. The melancholy case of _Coleman_ will impress every reader with the importance of carefully noticing the circumstances of dying declarations, lest, by receiving as evidence the ravings of delirium, or at least the imperfect impression of impaired faculties, the innocent should be sacrificed to the errors of the dying; and this is the more necessary in those cases where the atrocity of the crime committed creates an immediate prejudice against every party charged or suspected.

END OF VOL. I.

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William Phillips, Printer.

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Footnotes

Footnote 1:

We have preferred this term, as best calculated to express, in the
most comprehensive manner, the application of Medical Science to the
purposes of the law. Different writers, however, upon this branch of
knowledge, have employed various other terms for the same object, such
as _Legal_, _Judiciary_, or _Juridical Medicine_; _State Medicine_,
_Forensic Medicine_, _Medical Police_. The two latter terms, evidently
cannot with propriety be considered synonimous with the former, for
they are, strictly speaking, subordinate divisions. Some authors have
objected to the term _Medical Jurisprudence_, as implying a knowledge
of the laws relating to medical topics, rather than an acquaintance
with the medical science necessary for the elucidation of legal
subjects. As it is our peculiar object to unite the sciences, and to
shew their mutual relevance, the title becomes most applicable to
this, although it may have been improperly affixed to former works.

Footnote 2:

Chap. xiii. xiv.

Footnote 3:

So important was this act in the climates of Asia and Africa, that the
Mahometan, if unable to obtain water in the Desert, was directed to
cleanse his person by frictions with the sand.

Footnote 4:

See _Mill’s_ History of British India.

Footnote 5:

Collection of Voyages, that contributed to the establishment of the
East India Company. Vol. i. part i. p. 182.

Footnote 6:

Aristotle proposed the same means of checking the increase of
population. _Aristot._ de Republica. lib. vii. c. 16.

Footnote 7:

Institutes of Menu. ch. iii. 6 to 10.

Footnote 8:

Chap. xxii. verse 15.

Footnote 9:

See our Physiological Illustrations of Parturition, vol. i. p. 246.

Footnote 10:

Vol. i. p. 280.

Footnote 11:

Priests were among the earlier chemists, and it is asserted that they
frequently instructed the accused, either from a conviction of his
innocence, or from less disinterested motives, in some of those means
of resisting the action of fire, by which modern jugglers are still
enabled to amuse and astonish the vulgar.

Footnote 12:

_Bohn, John._ De Renunciatione Vulnerum, 1689, 4to. Amsterdam.

Footnote 13:

_Valentini._ Pandectæ Medico-Legales, 4to. Francof. 1702.

Footnote 14:

_Boerner, Fred._ Prof. Med. Wirtemburg, 1723. Several Dissertations.

Footnote 15:

_Kannegeiser._ Inst. Med. Leg.

Footnote 16:

_Alberti, Michael._ Prof. Med. Hall.—Systema Jurisprudentiæ Medicæ
Schneeberg 4to. 1725. tom. vi.

Footnote 17: