Chapter XXII: Introduction (4)

We wish to be perfectly understood upon this point; no instance of
impregnation has ever occurred, where the virile member has not come
into actual contact with the Labia; we are not so credulous as to
believe with Averroes the case of the woman that conceived in a bath,
by attracting the sperm of a man admitted to bathe near her; nor the
story of the daughters of Lot, who were impregnated by their sleeping
father, or conceived by seminal pollution received at a distance from
him.

Footnote 304:

_See The case of a pregnant woman, in whom the hymen was found entire
at the time of her being seized with labour pains_, by N. TUCKER, M.
D. related in Dr. MERRIMAN’S _Synopsis of the various kinds of
difficult Parturition_, p. 218. See also ZACCEIÆ _Quest. Med. Leg.
vol._ 3, _Tit._ 1, _Q._ 1.—_Instituzioni di Medicina Forens, di_ G.
TORTOSA, vol. 1, p. 61. In the _Bulletin de la Societé Medicale
d’Emulation for 1819_, there is a very curious case related by Dr.
CHAMPION, of a woman who became pregnant of two children,
notwithstanding the presence of the hymen, and in whom _coitus_ during
gestation had taken place _per urethram_. The obstructing membrane
perforated with two minute orifices, which had allowed the escape of
the menstrual blood, was opened by a crucial incision; about an ounce
of bloody mucus was discharged, and the vagina being naturally
dilatable, the children were safely delivered. The first _coitus per
urethram_ is supposed to have taken place subsequently to conception;
the canal was so much dilated as to admit the fore-finger with
facility. The author relates many other instances of fecundation,
_sine penis intromissione_.

Footnote 305:

PHIL. TRANS. vol. xxxii, p. 408.

Footnote 306:

BERTRAND _Opera Chirurg. Tom._ I, _p._ 253.

Footnote 307:

“Minor Penis de reliquo apte conformatus, et qui in cunnum immissus,
rigidus manet, coitum fæcundum omnino exercere valet, licet forte inde
minus œstrum venereum in fœmina excitetur.” LUDWIG _Inst. Med. Leg.
p._ 159.

Footnote 308:

Martin, King of Aragon, is stated by historians to have been so
corpulent, that neither mechanical contrivances, nor medical treatment
could render him any assistance towards the accomplishment of venereal
congress.

Footnote 309:

_De Partib. Generat. inserv. p._ 85.

Footnote 310:

_Delect. Opuse. Medic. tom._ iv, _p._ 313.

Footnote 311:

_Edinb. Essays, vol._ I, _art._ 35, in which an interesting case of
this kind will be found, by Dr. Cockburn.

Footnote 312:

DENMAN’S Midwifery; _Isbrandus de Diemerbroeck_ Anatom. Lib. I, c. 26;
_Johannes Nicolaus Pecklinus_ Observat. Med. Phys. Lib. I, c. 25.

Footnote 313:

_Marcellus Donatus_, De Medica Historia Mirab. Lib. vi, cap. 2;
_Johannes Riolenus_, Art be medendi, sect. iv, tract 2, c. I; _Caspar
Bauhin_, Theatr. Anatom. lib. I, c. 39, et De Hermaphroditis, lib. I,
c. 38; _Felix Platerus_, Observat. lib. I, p. 259-259; _Hildanus_
Observat. cent vi, obs. 67; _Riolanus_ (Filius) Enchirid. Anatom. lib.
ii, c. 37; _Bartholin. Hist. Anatom._ cent ii, hist. 31; _Astruc_ on
the Diseases of Women, vol. i, p. 126.

Footnote 314:

_Nicolaus Tulpius._ Observat. lib. iii, cap. 33; _Christoph Vœlterus_.
Schol. Obstetric, part ii, c. 19; _Acta Berolinen_, dec. ii, vol. v,
p. 85; _Acta Erudit._ Lipsien. ann. 1726, Octob. p. 480; _Antonius
Benivenius_. De Abditis Morb. et sanet. causis, c. 79; _Johannes
Wierus_. Observat. lib. I.

Footnote 315:

_Walter._ Extirpatio Polyporum semper tentanda, atque curatio
eventusque felix sunt expectandi.

Footnote 316:

_Edinburgh Essays_, vol. 3, p. 321. _Morgagni_, de Sedibus et causis,
epist. 46, advised two women upon such an occasion “ut æquo animo
ferrent conjugium male initum potius dissolvi, quam se temere secandas
prœberent.” For a cause of Impotence caused by pressure on the vagina,
see _Edinburgh Essays_, vol. 2, p. 343.

Footnote 317:

_Zitman._ Med. Forens. p. 906.

Footnote 318:

_Zacchiæ._ Quæst. Med. Leg. lib. 9, T. 3, Q. 5: _Edinburgh Essays_,
vol. 3, p. 317; _Baillie’s_ Morbid Anatomy, p. 428.

Footnote 319:

_Edinburgh Med. Comm._ vol. ii, part 2, case 4.

Footnote 320:

Instit. di Med. For. di _Tortosa_, vol. I, p. 46; _Huxham_ de Febr. et
alia Opusc; _Durieu_. Diction d’Anatom.; _Plenck_. Obstetric, p. 137;
_Schener_. De Morbis Intestini Recti, c. iii, sect. 4, (_nota_ 5);
_Richter_. Element de Chir, vol. vi, p. 416.

Footnote 321:

_Palliani_ Epist. ad Hall, p. 268; _Monteggia_. Inst. Chirurg. p. iii,
p. 512.

Footnote 322:

_Edinburgh Medical Essays_, vol. ii, art. 27.

Footnote 323:

_Medical Repository._

Footnote 324:

_Sauvage._ Epist. ad Haller, vol. iii, p. 138; _Stalpart_. ii, 48,
from Opium.

Footnote 325:

_Brown’s_ Vulgar Errors, folio, 1686, p. 173.

Footnote 326:

_Murray’s_ Apparatus Medicaminum, vol. I, p. 395.

Footnote 327:

Treatise on the Venereal Disease, page 201 to 208.

Footnote 328:

_Baumer_, Medicin. Forens. p, 135.

Footnote 329:

_Montaigne’s_ Essay on Impotence, chap. xx.

Footnote 330:

MORGAGNI _De Causis et Sedibus Morborum_, Epist. xlvi.

Footnote 331:

_Journal des Practische Heilkunst._

MEMOIRES DE ACADEMIE DES SCIENCES. Ann. 1705. _Histori_, p. 52.

Footnote 332:

Dr. GORDON SMITH relates a case in which an operation of this kind was
performed with success. See his _Principles of Forensic Medicine_, p.
458.

Footnote 333:

HAMILTON’S _Outlines of Midwifery_, p. 119.

Footnote 334:

BAILLIE’S _Morbid Anatomy_. _Phil. Trans. vol._ 91.

Footnote 335:

DENMAN’S _Midwifery_.

Footnote 336:

For the ancient distinctions of natural, spurious, and illegitimate
children, see _Taylor’s Civil Law_, 270.

Footnote 337:

“It is now held that the husband’s being within the four seas, is not
conclusive evidence of the legitimacy of the child, and it is left to
a Jury to consider whether the husband had access to his wife. See 3
_P. W._ 275. 276; _Pendrell and Pendrell_, 2 _Stra._ 925. So evidence
may be given, that the husband’s habit of body was such, as to make
his having children an impossibility. _Lomax v. Holmden_, 2 _Stra_.
940: see also 1 _Roll. Abr._ 358; 1 _Salk._ 123. But the rule laid
down by Lord _Coke_, was once generally received. In _Jenk._ c. 10.
pl. 18. it is said “that if the husband be in Ireland for a year, and
the wife in England during that time has issue, it is a bastard; but
it seems otherwise now for Scotland, both being under one king, and
make but one continent of land.” (_Co. Litt._ 244.) and see also _Co.
Litt._ 126. _n._ 2. and authorities there quoted. Dr. _Ridley’s_ view
of the civil and ecclesiastical law, and the proceedings in the House
of Lords 1811, on the Banbury Peerage, where this point was much
discussed.”

Footnote 338:

In _Cuthbert & Brown_, Dublin C.P. 1821, an action was brought against
the defendant for deceit, by inducing the plaintiff to marry a woman
who was at that time pregnant.

Footnote 339:

In 1697 the Countess of Macclesfield declared the child with which she
was then pregnant to have been begotten by the Earl of Rivers; in
consequence of which confession, without any previous proceeding in
the ecclesiastical court, an Act of Parliament was passed annulling
the marriage and declaring the child with which she was enseint
illegitimate: 9 & 10 _Will._ 3. _c._ 11. private Act.

Footnote 340:

See note 1 _Bl. Com._ p. 456.

Footnote 341:

The children of _John of Gaunt_, Duke of Lancaster, by _Catherine
Swinford_, though born in adultery, he being then married, were
legitimised by Act of Parliament in 1397; the Duke having married his
mistress in the preceding year; see 9 _Froisard’s Chron._ 225.

Footnote 342:

See the case of Sergison & Sergison. 1820.

Footnote 343:

See the Journals of the House of Lords, and also Speeches and
arguments &c. of the Lords of Session in Scotland in the _Douglas_
trial. _London_, 1767.

Footnote 344:

For the _Annesley_ trials, see 17 & 18 _Howel. St. Tri._ and _Harg.
St. Tri._

Footnote 345:

See _Zacchii Questions Med. Leg. lib._ 1. _tit._ 5. _De similitudine
et dissimilitudine Natorum._

Dr. GREGORY, the late distinguished Professor of Edinburgh, used to
relate to his class, in order to convince them of the resemblance
which so generally exists between parents and children, that having
been once called to a distant part of Scotland, to visit a rich
nobleman, he discovered in the configuration of his nose, an exact
resemblance to that of the Grand Chancellor of Scotland, in the reign
of _Charles the First_, as represented in his portraits. On taking a
walk through the village after dinner, the Doctor recognised the same
form of nose in several individuals among the country people; and the
nobleman’s steward, who accompanied him, informed him that all the
persons he had seen were descended from the bastards of the Grand
Chancellor.

Footnote 346:

Yet it is said that shepherds and others accustomed to the continual
view and contemplation of animals, can discern as strong differences
in their forms and features as in the human species, and can
distinguish individuals accordingly.

Footnote 347:

It cannot however be denied that most astonishing likenesses sometimes
exist between persons utterly unconnected by blood or habit, of this
we shall have occasion to speak more fully when treating of personal
Identity. The name of _Douglas_ suggests a remarkable instance; Mr.
_Frank Douglas_, a well-known man of fashion, was committed for
highway robbery on the positive oath of one of the parties plundered,
and very narrowly escaped conviction. On the apprehension of the
notorious highwayman _Page_, the mystery was explained, the personal
resemblance being so great, as to deceive all ordinary observation.
See _Part_ 3. of _Personal Identity_.

Footnote 348:

_Harg. Coke Lit. p._ 29. _Chap._ 4. _Sec._ 35.

Footnote 349:

This law however prevails both in Scotland & Ireland. _Co. Litt._ 30.

Footnote 350:

But it has been doubted whether the child may not be heard to cry _in
utero_; Mr. DERHAM (PHIL. TRANS. vol. 26. p. 485) has given an account
of a case of _Vagitus Uterinus_, in which the child is said to have
cried for near five weeks before delivery, and what is equally
extraordinary, the author professes to credit the story! ETMULLER, in
his Dissertation “_De abstruso respirationis humanæ negotio_,” c. 9.
agrees with DIEMERBROECK in considering such a phenomenon as
impossible, and attributes the noise to flatulence. The learned
VERZASCHA of Basil gives a long catalogue of cases of _Vagitus
Uterinus_, in his third _Observ. Medic._ see also Dr. NEEDHAM’S work
“_De formato fœtu_.”—CHRISTIAN II. King of Denmark, is said to have
cried before he was born. We must, however require very powerful
testimony to shake our incredulity upon this subject, and we should
then be rather inclined to believe the event with Livy, as a prodigy
of Nature, than to consider it, with Derham, as a natural phenomenon.

Footnote 351:

The words _oyes ou vife_, do not warrant this doubt, (see Notes ibid),
for “the crying is but a proofe that the child was born alive, and so
is motion, stirring, and the like,” or indeed any other evidence to
shew that there was living issue born; such at least appears to be the
present law upon the subject, but it may be doubted whether the
ancient law did not contemplate not only a living child, but a child
born in due course, and therefore likely to live. A Fœtus of a few
months when extracted may move, yet such fœtus could not live, and
cannot be considered as possessing the principles of independent
vitality; so that it should survive its separation from the mother.
But when a child can cry, the lungs, which are to supply the
circulation, for which till then, the infant had been dependant, are
matured for their office, which once commenced the child becomes a
separate and independent being. LOUIS IX. decreed, that in order to
give a child the title of inheritance it should have cried—i.e.
completely respired.

Footnote 352:

And query also, why was a living child required? Foreign writers made
a distinction between vivum and vitale, “Hoc est qui vitam protrahere
hæreditatis particeps fieri, eamque ad alios transferre possit.”
_Ludwig. Ins. Med. For._ p. 42.

Footnote 353:

A cause in illustration of this subject was tried in 1806. FISH _v._
PALMER—and was as follows: _Fish_ had a still-born child by his wife,
and at her death, as no issue had been born alive, he resigned the
estate to his wife’s brother-in-law. He was, however, afterwards
induced to contest the fact of the child having been born dead. The
accoucheur, _Dr. Lyon_, had died before the trial, but it appeared in
evidence, that he had declared the child to be living an hour before
the delivery, and having directed a warm bath to be prepared, gave the
child to the nurse to be immersed in it. It neither cried, nor moved,
nor did it shew any signs of life; but two women swore, that while in
the hot water, there twice appeared a twitching and tremulous motion
of the lips: upon informing _Dr. Lyon_ of this, he desired them to
blow into its throat, but it never exhibited any other signs of
vitality. It was declared by _Drs. Babington_ and _Haighton_, that the
muscular motion of the lips could not have happened if the vital
principle had been quite extinct, and that, therefore, the child was
born alive. _Dr. Denman_, however, gave a contrary opinion, and
declared that the child was not born alive; and he attempted to
establish an important distinction between uterine and extra-uterine
life, and considered that the tremulous motion of the lips might arise
from some remains of the former. _Foderé_ in quoting the case
expresses a similar opinion, and pronounces that the slight convulsive
motions alluded to, ought not to have been received as evidence of the
child’s vitality. The Jury, however, found that the child was born
alive.

Footnote 354:

If a woman seized of lands in fee taketh husband, and by him is bigge
with childe, and in her travel dieth, and the childe is ripped out of
her body alive, yet shall he not be tenant by the curtesie; because
the childe was not born during the marriage, nor in the lifetime of
the wife, but in the meane time the land descended, and in pleading he
must alledge that he had issue during the marriage. _Co. Litt._ 30.

Footnote 355:

If the wife be delivered of a monster, which hath not the shape of
mankinde, this is no issue in the law; but although the issue hath
some deformity in any part of his body, yet if he hath humane shape
this satisfieth. “Hi qui contra formam humani generis converso more
procreantur, (ut si mulier monstrosum vel prodigiosum fuerit enixa
inter) liberos non computentur. Partus tamen cui natura aliquantulum
ampliaverit vel diminuerit non tamen superabundanter, ut si sex
digitos vel nisi quatuor habuerit, bene debet inter liberos
commemorari. Si inutilia natura reddidit membra, ut si curvus fuerit
aut gibbosus vel membra tortuosa habuerit, non tamen est partus
monstruosus. Item puerorum alii sunt masculi, alii hermaphroditæ.
Hermaphrodita tam masculo quam fœminæ comparatur secundum
prevalescentia sexus incalescentis.” _Co. Litt_ p. 30.

Footnote 356:

It is scarcely necessary to guard the reader against a belief in the
extraordinary instances of monstrosity which are to be found in the
periodical collections published during the seventeenth and beginning
of the eighteenth century, as in the _Ephemerides, Journal des
Sçavans, &c._ In one, there is mention made of a child born with a
pig’s head; in another a woman is delivered of an animal exactly like
a pike fish!

Footnote 357:

If two Embryos, contained in the same ovum, be placed back to back,
and the surfaces of contact should become inflamed, their mode of
union may be easily perceived. If we put the fecundated Ova of a
tench, or any other fish into a small vessel, the numerous young not
having sufficient space to grow, become jointed to each other, and
hence will arise monstrosities in fish.—_Richerand’s Physiology._

Footnote 358:

The most remarkable case of this kind upon record is that related by
BUFFON (_Hist. Naturells_, Supplement, tom. ii, p. 410), of a double
infant, joined at the loins and having a common anus, but being in all
other respects, morally as well as physically, separate beings. They
were born at Tzoni, in Hungary, on the 16th of October 1701, and died
in a convent at St. Petersburg, on the 23d of February 1723. Their
names were _Hélène_ and _Judith_; the one having been attacked with
fever, became lethargic and died, upon which the other was seized with
convulsions and survived her unhappy partner not more than three
minutes.

Footnote 359:

In writing a work which is calculated for the instruction of so wide a
range of readers, the authors have felt some difficulty in adjusting
their _Zero_; but when they assure their scientific friends that they
have heard a provincial attorney advocating the legality of smothering
a hydrophobic patient, they trust that they will stand excused, even
should their precautions be apparently trivial. Two women were tried
at the York Assizes in 1812, for drowning a child, which was born with
some mal-formation of the cranium, in consequence of which, it was
likely that it could not survive many hours. There did not appear to
have been any concealment on the part of the prisoners, who were not
aware of the illegality of the act.

Footnote 360:

See ROEBUCK and HAMERTON, _Cowp._ 737, and HAYES _v._ JAQUES, July 1,
1777. There is some account of this latter case in the _Annual
Register_, and in the _Gentleman’s Magazine_. The author of the
present work was present at the anatomical examination of the
_Chevalier D’Eon_, which took place in his lodgings in Milman-street,
Bedford-row. _Sir Anthony Carlisle_ examined the organs of generation,
and satisfied all present of the perfect condition of the testicles.

Footnote 361:

By a decree of the magistracy this unfortunate woman was compelled to
assume the dress of a male, and to change her name and character, in
spite of her own feelings and inclinations; some time, however, after
this event, she consulted _Helvetius_, who succeeded in completely
curing the disease, and she was in consequence actually restored to
her proper sex by a royal ordinance! So much for the value of that
_ultra medico-legal_ system which has distinguished some of the
continental governments.

Footnote 362:

See _An Experimental Inquiry concerning Impregnation, by_ John
Haighton, M.D. Phil. Trans. for 1797, vol. 87, p. 159.

Footnote 363:

_De Generatione Animalium._

Footnote 364:

_Hunter._ Anatomia Uteri Humani Gravidi, Tabulis Illustrata.

Footnote 365:

_Dr. Heberden_ relates a case in his _Commentaries_, (chap. 43) of a
woman who never ceased to have regular returns of the menstrual
discharge, during four pregnancies, quite to the time of her delivery.

Footnote 366:

_Burns’_ Midwifery, edit. v. p. 197.

Footnote 367:

_Denman’s_ Introduction to Midwifery.

Footnote 368:

Principles of Midwifery, edit. v.

Footnote 369:

Cours de Medicine Legale.

Footnote 370:

“Les symptomes qu’on appelle signes rationels de grossesse, ne la
caracterisent cependant, que d’une maniere tres incertaine.”
_Baudelocque_, L’Art de Accouchem. t. 1, p. 180.

“Omnes qui de graviditatis signis scripserunt, quamvis longo artis usu
celebres fuerint, unanimi ore fatentur, primis præcipue mensibus signa
graviditatis satis incerta esse.” (_Van Swieten_ Com. in Aphor Boer.
tom. vi, p. 331.)

Footnote 371:

_Van Swieten_ Com. in Boer. tom. vi, p. 330.

Footnote 372:

_La Medecine Légale, relative a l’Art des Accouchemens. Par J.
Capuron._ A. Paris, 1821. A work which we very strongly recommend to
those who are interested in the subject.

Footnote 373:

_Roeder._ Elem. Art. Obst. p. 52.

Footnote 374:

Instituzione di Med. For. vol. 1, p. 179—also _Plenck_, Art. Obst. p.
38.

Footnote 375:

We all remember the extraordinary instance of _Johanna Southcote_.

Footnote 376:

In the celebrated case of the _Demoiselle Famin_, published at Berlin
and Paris by Valentin, 1768, a charge of pregnancy and child-murder
was erroneously instituted, in consequence of an extreme case of
Ovarian dropsy.

Footnote 377:

_Dictionaire de Chirur. tom._ 1.

Footnote 378:

_Traité des Accouchemens._

Footnote 379:

_Trattato dei Parti, p._ 26.

Footnote 380:

_L’Art des Accouchemens._

Footnote 381:

QUICK, a word of Saxon origin, signifying _living_.

Footnote 382:

It is difficult to say why the embryon of one or two months should not
have the same protection of the law, as that which has been half its
time in the womb. _Mahon_ expressed a similar opinion—“et voilà le
tort immense que font quelquefois les systèmes et les opinions
scholastiques!”

Footnote 383:

The only immunity to which pregnant women are entitled by the law of
England is the suspension of capital punishment until after delivery.
The state of utero-gestation appears in all ages to have secured
certain privileges and honours to the female; the Athenians even
spared the murderer who took refuge in her dwelling; the ancient kings
of Persia made presents of pieces of gold to every woman in this
condition; and even the Jews relaxed the rigid ordinations of the
Mosaic law, and allowed prohibited viands to the pregnant female,
whose delicate and fastidious appetite might make them objects of
desire. In Egypt the woman condemned to die, was never executed until
after her delivery, and the tribunal of the Areopagus observed a
similar regulation, that the innocent infant might not suffer for the
crime of its mother.

Footnote 384:

De Epidem. Lib. 3.

Footnote 385:

Tome xxvi.

Footnote 386:

_La Medicine Legale relative a l’art des accouchemens, Quest._ “DE LA
VIABILITE,” p. 152.

Footnote 387:

“Cette distinction et cette interpretation sont evidemment conformes a
l’étymologie du mot _viabilité_, qui dérive, non du latin _vita_, vie
mais de _via_, voie, carrière, chemin; en sorte que, d’après la
grammaire seule, l’enfant pourrait vivre quelques heures, meme
quelques jours après sa naissance, comme il vivait dans le sein de sa
mère, sans etre pour celà _viable_, ou capable de parcourir la
carrière de la vie.”—CAPURON, p. 195.

Footnote 388:

Cap. iii, §. 12.

Footnote 389:

_Hippocrates_ Lib. de Septimest. et Octomest. Part. edit. _Halleri_.
See also _Aristot._ Metaphys. Lib. 1, c. 5.

Footnote 390:

It is generally computed from a single coitus, or from a fortnight
subsequent to the last menstrual period; in some cases the computation
has been made from the time of _Quickening_; in either of the two
first methods of calculating, _forty_ weeks are allowed, in the last
about _twenty-two_ weeks.

Footnote 391:

Independent of its obvious importance in determining questions of
legitimacy, it may often be important to determine the longest period
of utero-gestation, for the purpose of ascertaining a child’s right to
property. A child _in ventre sa mere_ is capable of taking by bequest
or devise, even from the earliest period after conception; in which
point our civil is more merciful, and more consonant to the course of
nature, than our criminal law, which regards only the time of
quickening. If therefore _A_ bequeath or devise to all the children of
_B_ living at the time of his death, and _B_ six or seven months after
his death is delivered of a child, that child was clearly _in esse_ at
the time of the testator’s death, and is entitled to its share; it is
equally clear at nine months, provided the child be of its full
growth; but after ten it may be made a question whether such child is
or is not entitled.

Si home morust feme ad issue nee 40 weekes & 8 jours puis son mort,
come sil morust 23 _Marcii_ & l’issue est nee 9 _Jan_ ensuant, cest
issue serra legitimate, car ceo poet estre legittimate par nature, &
la ley n’ad limitt ascun certain temps del nestre de legitimate
infants _Mich._ 17 _Ja. B. R._ —— —— —— sur evidence al barr que
concern leire dun _Androwes resolve per Curiam_, en quel case _Doctor
Paddy & Doctor Mumford_ deux _Physitians_ esteant jure informe le
Court, Que per nature tiel issue poet estre legitimate, car ils
disont, que lexact temps del nestre dun infant est le 280 jours del
conception, scilicet 9 moies & 10 jours apres le conception,
accountant ceo _per menses solares scilicet_ 30 jours al chescun mois;
mes est natural auci si le nestre soit ascun temps del 10 moies
_scilicet_ dans 40 semaignes, sont tout un; mes per accident un infant
poet estre nee apres les 40 semaignes on devant; Et en le case al barr
fuit prove que le feme longe pur choses en vie sa baron, & que le
baron morust del plague, issint que il fuit egrote forsque un jour
devant son mort, & que le _father in lawe_ del feme luy persecute &
use ove grand inhumanitie, & cause luy a demurrer en le streete per
divers nuits, & que le feme fuit en travell 6 semaignes devant el fuit
deliver, mes que ceo fuit interrupt per le dit usage del _sa pere in
lawe_, & que el fuit deliver deins 24 heures après que el fuit receive
en un mese & bien use que fuit bon proofe del legittimation, Coment
que fuit prove de l’auter parte, que le feme fuit un lewde femme de sa
corps. Et sur evidence le Jurie luy trove legitimate. _Nota_ que a la
triall un _Chamberlaine_ un home midwife informe le Court sur son
serement, Que il ad conus un feme destre deliver dun infant, & 2
semaignes apres destre deliver deu auter. Et les _Doctors_ disont que
le nestre est _citius_ on _plus tarde_ solonque le nutriment que le
mere ad purluy. 1 _Rolle Ab._ 156.

Footnote 392:

By the law of Scotland, a child born _six_ months after the marriage
of the mother, or _ten_ months after the death of the father is
considered as legitimate.

Footnote 393:

_Elements of Juridical Medicine, edit._ 2, p. 249.

Footnote 394:

Quæst. Med. Leg. Lib. vii, Q. 2.

Footnote 395:

This conference was held in consequence of the writings of BOHN,
Professor at Leipsic, and of ALBERT of Halde Magdebourg, who asserted
that after the first week, any personal examination was
unsatisfactory.

Footnote 396:

_Traité de Med. Leg. par_ FODERE, _tome_ 2, _p._ 18; and _Bulletin des
Sciences Med. de la Societé Med. d’Emulat. de Paris, tom._ 5, _no._
39, _p._ 105.

Footnote 397:

_Tome_ viii.

Footnote 398:

PHIL. TRANS. A.D. 1741.

Footnote 399:

In _Capuron’s_ work before cited many other cases are related, p. 126.
See also _Burn’s_ Midwifery, edition 4, p. 451. _Diemerbroeck_ Anat.
Lib. ii, c. 2. Cours de Medicine Legale, par J. J. _Belloc_.
_Blumenbach’s_ Institutions of Physiology, sect 42. (_Appendix, Note_
H.)

Footnote 400:

The appearances of the uterus, in the celebrated case of Miss Burns,
were explained by Dr. _Carson_, by supposing that a recent expulsion
of an hydatid had taken place; we shall have occasion hereafter to
dwell at considerable length upon the very extraordinary evidence
which was given upon the trial of _Charles Angus, esq. for the murder
of Margaret Burns_.

Footnote 401:

Principles of Midwifery. Edition 5, p. 557.

Footnote 402:

GYNÆCOLOGIA.

Footnote 403:

“Finis gignendi, ut plurimum, viris quidem septuagesimus annus est,
mulieribus autem quinquagesimus.” _Aristot._ Polit. Lib. 7, c. 16.

“Vidi Mares fertiles ad annum nonagesimum, et fæminas quæ ad annum
quinquagesimum secundum fertiles mansere puerperæ.” _Boerhaave_ Op.
Omu. p. 514.

Footnote 404:

_Plinii_ Hist. Nat. Lib. vi, c. 14.

Footnote 405:

_Plott’s_ Nat. Hist. of Staffordshire, chap. viii, section 3.

Footnote 406:

_Elements of Physiology_, translated by Kerrison.

Footnote 407:

Phil. Trans. for 1786. Vol. lxxxvi. p. 349.

Footnote 408:

Journal des Praktischen Heilkunst. Berlin, Jan. 1, 1820.

Footnote 409:

Medical Logic. Edit. 2. p. 35.

Footnote 410:

Phil. Trans.

Footnote 411:

_Hippocrates_ de Super-fœtat: also Epidem. Lib. vii.

Footnote 412:

_Aristotle_ De Generat. Animal. Lib. iv. c. 5.

Footnote 413:

_Plinii_ Hist. Nat. Lib. vii. c. 2.

Footnote 414:

_Gaspar Bauhuin._ App. ad Lib. de Part. Cæsar. Tit. de Superfœtat.

Footnote 415:

Histoir. Nat. de l’Homme—_Puberte_.

Footnote 416:

De Hist. Animal. p. 258.

Footnote 417:

Hist. Nat. Lib. vii. c. 11.

Footnote 418:

Comment. ad Aphorism 38. Lib. v. p. 817.

Footnote 419:

Quæst. Med. Leg. Tom ii. Consilium 76. See also L’Histoire de
l’Academie des Sciences, Ann. 1709.

Footnote 420:

De Partu Exercit. p. 547.

Footnote 421:

Element. Physiolog. Tom x. p. 218.

Footnote 422:

Quæst. Med. Leg. Lib. 1. Tit. 3. Q. 3 and 4.

Footnote 423:

Element. Physiolog. Tom x. p. 212.

Footnote 424:

Medical Transactions. Vol. iv. p. 161.

Footnote 425:

Phil. Trans. for the year 1818.

Footnote 426:

Opera. Tom. iii. p. 388.

Footnote 427:

Memoir de L’Academie, An. 1701.

Footnote 428:

Append. ad Rousset de P. C.

Footnote 429:

Tabul. Anat. Uteri dupl.

Footnote 430:

Element. Physiolog. T. x, p. 38. See also Memoirs of the Med. Soc.
Vol. iv. _Purcell_ in Phil. Trans. lxiv, p. 474. _Canestrini_, in Med.
Facts. Vol. iii. p. 171.

Footnote 431:

De Super-fœtatione.

Footnote 432:

Inst. Med. Leg. p. 77.

Footnote 433:

Dict. d’Anatom. T. ii. p. 537.

Footnote 434:

See _Hamilton’s_ Outlines of Midwifery, p. 105.

Footnote 435:

_Hippocrat._ Aphorism. Sect. v. 51.

Footnote 436:

Opera Omnia C. 1. p. 302.

Footnote 437:

Anthropologia Forensis, Leip. 1753, p. 208.

Footnote 438:

Institut. Med. For. p. 44.

Footnote 439:

L’Art des Accouchemens.

Footnote 440:

An Experimental Inquiry concerning Impregnation, by _Dr. Haighton_,
Phil. Trans. for 1797, Vol. lxxxvii, p. 159. See also Experiments on
recently impregnated Rabbits, by _W. Cruikshank_, Phil. Trans. Vol.
lxxxvii, p. 197; and more recently a paper, entitled “Experiments on a
few controverted points respecting the Physiology of Generation,” by
_James Blundell, M. D._ in the tenth volume of the Medico-Chirurgical
Transactions, p. 246. This memoir bears internal evidence of the
acuteness and experimental accuracy of its author.

Footnote 441:

Chirurg. Forens. T. ii. p. 44.

Footnote 442:

_Gravel_ de Superfœtatione—Leipsic Memoirs for 1725—and _Teischmeyer_
Inst. Med. Leg. p. 75.

Footnote 443:

_Burns’s_ Principles of Midwifery, edition 5, p. 250.

Footnote 444:

_Burns_ ibid.

Footnote 445:

_Introduction to the Practice of Midwifery, 4to p._ 395.

Footnote 446:

_A Synopsis of the various kinds of Difficult Parturition, with
Practical Remarks on the Management of Labours, by S. Merriman,
M.D.F.L.S. &c. p. 171._

Footnote 447:

_Medical Facts and Observations, vol. 8._

Footnote 448:

_Medico-Chirurgical Transactions, vol._ 3, _p._ 144; and _Synopsis of
the various kinds of Difficult Parturition, p._ 173.

Footnote 449:

No infant, at the full time, and of the usual size, can be born
naturally when the small diameter of the pelvis is not equal to _two
inches and a half_. See _Hull’s_ translation of _Baudelocque_.

Footnote 450:

Op. citat. p. 152.

Footnote 451:

Cases of such difficulty as to render the use of instruments
absolutely necessary are so rare as not to occur more than once in
_six_, or, at most, _five hundred_ labours. _Midwifery_, as a
practice, must have been nearly coeval with the creation, but during
the first ages it probably consisted in little else than a knowledge
of the method of dividing the navel string; as difficulties, however,
arose, this knowledge, of necessity, was gradually extended to that of
affording mechanical assistance in the exclusion of the fœtus; but it
would seem that for many ages those artificial means consisted almost
entirely in anointing the pudenda with oil, and in placing the women
in hot baths, as we learn from the writings of _Hippocrates_,
_Avicenna_, and other ancient writers, who appear to have attributed
the whole of the difficulty to a rigidity of the muscles, and to have
entirely overlooked that formidable obstacle to child-birth, the
mal-conformation of the pelvic basin. _Hippocrates_ and _Celsus_,
however advise, that upon the failure of the ordinary means above
alluded to, the head of the child should be opened with a scalpel, and
then extracted with strong iron pincers or hooks; but it appears that
the advice of _Hippocrates_ was rarely followed, and that, in such
cases, the child was mangled by the scalpel, and brought away
piece-meal. See _Albucasis_, Methodus Medendi Lib. ii, and _Ruett_ de
Conceptione et Generat. Hominis.

Footnote 452:

The FORCEPS were invented by _Chamberlen_ in 1672, and in his
translation of _Mauriceau’s_ Treatise on the Art of Midwifery, he
indirectly announces the discovery, but does not describe the
instrument.

Footnote 453:

The _Lever_ appears to have been invented at about the same time by
_Roonhuysen_, of Amsterdam, after his having purchased the secret of
the Forceps from their inventor _Chamberlen_.

Footnote 454:

“_Traité nouveau de l’Hysterotomotokie, ou Enfantement Cesarien, qui
ese l’extraction de l’enfant par incisione laterale du ventre, et de
la matrice de la femme grosse, ne pouvent autrement accoucher; et ce
sans prejudicier à la vie de l’un et de l’autre, ni empecher la
fecondité naturelle par après._”

Footnote 455:

_Edinburgh Medical Essays, vol._ v. _Baudelocque_ has published a
table of operations amounting to 64, 24 of which have been performed
with success to the mother, and all of them might have been attended
with success to the child, if they had been performed in time. See
_Hull’s_ Translation.

Footnote 456:

_Synopsis_, p. 164. In the Appendix _Dr. Merriman_ has given a _list
of cases in which the operation has been performed in the British
islands_. See also _Dr. Denman’s_ Introduction to Midwifery; and the
Defence of the Cæsarean Operation by _Dr. John Hull_, Physician at
Manchester, 8vo. 1798.

Footnote 457:

While correcting the present work, we have received a report of the
Cæsarean operation having been performed in Paris, by _M. Beclard_
with complete success. The incision was made in the direction of the
_Linea Alba_. See also, _A case of Cæsarean operation, in which the
lives of the mother and child were both saved_, by J. J. LOCKER, M. D.
in the 9th vol. of the Medico-Chirurg. Trans.; also _The History of a
Second Operation, performed on the same Patient_, together with an
Appendix by W. LAWRENCE, Esq. ibid. vol. II, p. 201.

Footnote 458:

_Bell’s_ Surgery, vol. 5, p. 300.

Footnote 459:

We have already alluded to this opinion, see _Midwifery_, p. 82. The
same superstition will explain the origin of the jurisdiction which
the priesthood have enjoyed in deciding upon the propriety of
performing the _cæsarean section_; the doctors of the _Sorbonne_, and
the heads of theological schools and colleges have freely given
decisions upon it, and have ruled, that it ought to be performed
whenever it is known that the child is living, and it is impossible by
other means to extract it alive; for they assert that it is a deadly
sin (_péché mortel_) to perforate the head of a living child in the
womb. The clergy are instructed, in the event of a mother refusing to
submit to the operation, to omit no means of persuading her; they are
to point out all its advantages, and to intimate, that the operation
is not so cruelly painful as might be thought; they are directed to
speak of submission to it, as an act of the greatest love to God, and
resignation to his will, that can possibly be shewn: it is even
suggested, that under some circumstances, the patient might be
forcibly confined, and the operation performed against her will. It is
further declared, that physicians or surgeons refusing to recommend or
to perform the operation, when they should think it necessary, would
thereby render themselves guilty of a deadly sin, and ought to be
reprimanded by the magistrates; and praise is given to an edict, in
force in Sicily, which declares that no person shall be admitted to
practise as a surgeon, until he has been carefully examined as to the
manner of performing the _cæsarean_ operation on the living mother.
See _Merriman’s_ work already cited; _Cangiamila_ Embryologia sacra
passim; _Raynaud_ de ortu Infantis contra Naturam.

Footnote 460:

Amongst these cases, the following appears as an interesting instance.
“Wednesday, July 15th, at Eddescastle, Staffordshire, the wife of Mr.
Prescott, an exciseman, being killed by a flash of lightning, was
opened, and a living male child taken out, which was immediately
christened _Jonah_, and is like to live.” _Gentleman’s Magazine_,
1747. See also _Spence’s Midwifery_, 1784, p. 495. _Viardel_ cxxiv.
_Embryologia sacra._ SCHURIGII _Embryologia_, p. 122.

Footnote 461:

_Digest._ Lib. 11, Tit. 8, L. 2.

Footnote 462:

_Van Swieten_ (Com. in Boerh. Aph. tom vi, p. 403) has the following
observation upon this subject, “_Non desperandum tamen est de fœtus
vita, licet post mortem matris notabile tempus effluxerit, uti
pluribus constat observatis_.”

Amongst the different proposals which have been submitted to the
profession with a view to supersede the necessity of the Cæsarean
section, that proposed by _M. Sigault_, a surgeon at Paris, in the
year 1768, deserves some notice. The operation, which from the name of
its inventor was called the _Sigaultian_, consisted in making a
section of the _Symphysis Pubis_; perhaps, says _Dr. Merriman_, there
never was a surgical operation more enthusiastically received and
commended than this. The operator was immediately honoured with a
pension from the French government, and a medal was struck to
commemorate the invention; at length, however, the ill success of the
practice occasioned it to sink into complete desuetude, and the
remembrance of it can now be beneficial only as it may serve to
caution us against the inconsiderate and hasty adoption of modes of
practice unsupported by just reasoning, and unsanctioned by
experience. _Merriman_, Op. citat. p. 168.

Footnote 463:

See a most interesting case of Ovario-gestation, by _Dr. Granville_,
published in the Phil. Trans. 1820.

Footnote 464:

_See a description of an Extra-Uterine Fœtus contained in the
Fallopian Tube_, by GEORGE LANGSTAFF, Esq. Medico-Chirurg. Trans. vol.
7, p. 437.

Footnote 465:

_Fourcroy_, Système, tom. x, p. 83. See also our observations and
references upon this subject at page 96.

Footnote 466:

See _the History of a Woman who bore a seven months Fœtus for seven
years, and was delivered of it per anum, and completely recovered_, by
Dr. ALBERS. Med-Chirurg. Trans. vol. 8, p. 507.

Footnote 467:

See _Burn’s_ Midwifery, edit. 4, p. 189.

Footnote 468:

_Baillie_ Phil. Trans. vol. 79.

Footnote 469:

Anthropolog. Lib. 2, c. 34.

Footnote 470:

_Medico-Chirurg. Trans._ vol. 10, p. 269.

Footnote 471:

The Greek word Ἑρμαφροδιτος is a compound of Ἑρμης, _Mercury_, and
Αφροδιτη, _Venus_—a mixture of Mercury and Venus, i. e. of Male and
Female. The Greeks also called Hermaphrodites Ανδρογυνοὶ, i.e.
_men-women_.

Footnote 472:

In the _Memoirs of the French Academy_, there is an account of
hermaphrodite animals, that not only have both sexes, but do the
office of both at the same time; such are _earth-worms_; _round-tailed
worms found in the intestines of men and horses_; _land snails, and
those of fresh waters_; _and all the species of leeches_. And as all
these are reptiles, and without bones, _M. Poupart_ concludes it
probable, that all other insects which have these two characters, are
also hermaphrodites. Monstrous productions, having a mixture of the
male and female organs, and which have been termed _hermaphrodites_,
(although the _ovaria_ and _testes_ are always too imperfect to
perform their functions) appear to arise most frequently in neat
cattle, and are known by the name of _Free Martins_. The reader will
find much curious information upon this subject in a paper by _Mr.
John Hunter_, in the 69th vol. of the Philosophical Transactions.
_Pliny_ tells us that the chariot of _Nero_ was drawn by four
hermaphrodite horses.

Footnote 473:

The doctrine of hermaphrodites has nevertheless been warmly maintained
by foreign writers, among whom we may notice _Aldrovandus_, _Licetus_,
_Schurigio_, _Paul Zacchias_, and _Bauhin_.

Footnote 474:

_Comment. Soc. Reg. Scient. Gottingen._ T. 1.

Footnote 475:

Phil. Trans. vol. 89, A. D. 1799.

Footnote 476:

Anatomy of the human body, p. 314, and the plate. A similar case is to
be found in the _Sloane M.S._ in the British Museum, no. 4432, 5.
“_Hoc non satis animadvertantes mulierculæ nativitate ejus adstantes,
in dijudicatione sexus erravere, et Infans Elizabethæ nomine
baptizabatur._”

Footnote 477:

This observation applies to the irregular structure of quadrupeds as
well as to that of man; _Haller_ dissected a ram, in which the parts
had been supposed to be those of an hermaphrodite, whereas he found
the animal with the imperfections above related.

Footnote 478:

This appears to have been the fact in the case related by _Mr. Pring_.
See London Medical Repository, vol. 18.

Footnote 479:

_M. Ferrien_ observes, an erroneous opinion prevailed in France that
the greater number of miscarriages between three and four months, were
males; the mistake, says he, evidently arose from the size of the
clitoris at this period—Mem. de l’Acad. Royal des Sciences de Paris,
1767, p. 330. See also _Arnaud_ on Hermaphrodites. _Parsons_, Phil.
Trans. 1751, 142.

Footnote 480:

_Male’s_ Juridical Medicine, edit. 2, p. 266. _Baillie’s_ Morbid
Anatomy.

Footnote 481:

Hist. de l’Academie Royal, &c, 1720.

Footnote 482:

Principles of Forensic Medicine, p. 498.

Footnote 483:

We omitted to state in page 286 that an enlarged Clitoris is almost
endemial in some countries, particularly Egypt and Darfur, where the
excision of it is very commonly practised, and the operation is
performed a little before the period of puberty, or at about the age
of 8 or 9 years; this custom is mentioned by _Strabo_, and also by
_Albucasis_, who in his 7th chapter observes, that every parent knows
when a child has those parts longer than ordinary, and cut and burn
them off while the girls are very young. _De Graaf_ was also
acquainted with the fact, and observes, “Estque hujus partis chirurgia
orientalibus tam necessaria quam decora.”

Footnote 484:

In which case the finding of the jury should follow the words of the
commission, or the inquisition may be quashed. _Ex parte Cranmer_, 12.
_Ves._ 455.

Footnote 485:

The word MAD has been derived by Dr. Haslam from the Gothic MOD, which
signifies _rage_; he observes, “it is true, we have now converted the
O into A, but MOD is the ancient word.”

Footnote 486:

_Ideocy_, or _fatuity a nativitate, vel dementia naturalis_. Such a
one is described by _Fitzherbert_, who knows not to tell 20s, nor
knows who is his father or mother, nor knows his age; but if he knows
letters, or can read by the instruction of another, then he is no
ideot. _F. N. B._ 233. new edit. 517. These, though they may be
evidences, yet they are too narrow, and conclude not always; for
_ideocy_ or not is a question of fact triable by jury, and sometimes
by inspection. _Hale Pl._ 29. _Bl. Comm._ 304.

Footnote 487:

Hence the term LUNACY, from the supposed regulation of the intellect
in certain states, by the influence of the moon; and the distinction
between Idiot and Lunatic was formerly of the greatest importance, as
the King had the custody of an Idiot to his _own use_, not so of a
Lunatic. F.N.B. 530, n. _Dyer_, 25.

Footnote 488:

_Igiter si de insania ejusque variis generibus judicium ferendum est,
hoc ab iis potissimum fierio portet, quibus omnia pertinent, quæ ad
omnem hominis naturam proprius perspecta sunt, atque cognita, medici
igitur de dignoscendis insanis audiendi sunt.—Platner de Insanis et
furiosis._

Footnote 489:

The word is originally Greek, ιδιωτης, a _private person_, or one who
leads a private life, without any share or concern in the government
of affairs.

Footnote 490:

Anciently the king could grant the care of an idiot’s person and the
profits of his estate during his life, without account, except for
necessaries; but since the Revolution the crown has always granted the
surplus to some of his family. _Ridgw. Pa. Ca._ 159. _App. n._ 1.
_Lysart v. Royse. Sch. and Lef._ 153. _Fitz-geralds Case ib._ 436.

Footnote 491:

See also Lord _Wenman’s case_, 1 _P. Wms._ 702, _Beverley’s Case_, 4
_Co. R._ 126; _Rochfort v. Ely, Ridgw. Parl. ca._ 515 _App. note_ 1.

Footnote 492:

This term is recognised by the 4th _Geo._ 2, _c._ 10. _Carew v.
Johnson_, 2 _Sch. and Lef._ 304, and Sir _Ed. Coke_ says it is the
most legal name, 1 _Inst._ 246: “Here _Littleton_ explaineth a man of
no sound memory to be _non compos mentis_. Many times (as it here
appeareth) the Latin word explaineth the true sense; and calleth him
not _amens_, _demens_, _furiosus_, _lunaticus_, _fatuus_, _stultus_,
or the like, for _non compos mentis_ is most sure and legal.” Lord
_Coke_ says, “_Non compos mentis_ is of four sorts: first _Idiota_,
which from his nativity, by a perpetual infirmity, is non compos
mentis; secondly, he that by sickness, grief, or other accident,
wholly loses his memory and understanding; thirdly, a lunatic that has
sometimes his understanding and sometimes not, “_aliquando gaudet
lucis intervallis_;” and therefore he is called _non compos mentis_,
so long as he hath not understanding.”

Footnote 493:

Where it is among other things laid down that mere weakness of mind
only is not a sufficient reason for granting the custody of the person
and of his estate. The cupidity of relations is too apt to magnify
indiscretion, eccentricity, and more particularly pecuniary
extravagance into signs of madness; juries and commissioners cannot be
too much on their guard against such modes of proof, lest one half of
the world should lock up the other. The Romans committed prodigals to
the custody of a guardian, as if they had been infants or madmen; but
this is not the law of England.

Footnote 494:

In common parlance it is called the jurisdiction of the Court of
Chancery; but in strictness, the care and regulation of ideots and
lunatics is a branch of the king’s prerogative (17 _Ed._ 2. _c._ 9.)
which is committed to the Lord Chancellor, not by delivery of the
great seal, as his general jurisdiction is, but by warrant under the
sign manual; therefore the appeal is to the King in Council, and not
to the House of Lords; and neither the Master of the Rolls nor the
Vice Chancellor can sit for the Chancellor, or make any orders in
matters of lunacy.

Footnote 495:

See _Beverley’s Case_, 4 _Co. Rep._ 123. So in the case of Miss
_Kendrick_, 8 _Ves._ 67; Lord _Eldon_ said, “No one can look at this
case without seeing, that every person about this lady is satisfied,
that some care should be thrown round her. If clearly it is fit to
protect her against executing powers of attorney, that she should not
decide where her person, or with what trustees her property ought to
be, all agreeing, that she should not choose the persons who are to
have the care of her property, it is fit for me to put a controul upon
those who may be proper persons to have the controul of her property.
I will not subject her to another commission; but will direct two
physicians, who have not been concerned nor consulted, to talk to
those who have been concerned and consulted, to see the evidence, and
afterwards in the most tender manner, to find the means of visiting
her without alarming her, for the purpose of determining, whether her
state of mind is competent to the management of her affairs. I am
pretty confident Lord _Hardwicke_ would not have gone so far: but
finding when I came here a course of cases establishing this
authority, and feeling a strong inclination to maintain it, or that
the legislature should take measures to preserve persons in a state of
imbecility, laying them as open to mischief as insanity; till these
decisions are reviewed, I will not alter them.”

An order was made accordingly, restraining Miss _Kendrick_ from
executing any instrument, except in the manner and with the
attestation directed by the order.—We have not been able to discover
this order in the Register’s books.

Footnote 496:

A broad distinction, however, is to be made between the immediate and
remote effects of intoxication: we shall have occasion to dwell at
greater length upon this subject, under the consideration of Criminal
Responsibility, in the third part of this work; upon the present
occasion, we shall only observe in the words of Dr. Haslam, that
although the usual effect of fermented liquors is temporary, yet that
a single debauch may produce a state of mind that may be continued
into a permanent insanity; and the person so affected may remain for
many months in a state of mental derangement, and during the
prevalence of his disorder may be compelled to forego all intoxicating
beverage.

Footnote 497:

_See Bl. Commen._ 497; _Hall v. Warren_, 9; _Ves._ 605; _White and
Wilson_; 13 _Ves._ 37; 1 _Fonb. Tr. Eq._ 51, and cases there; 1
_Collinson_, 608, & cases there.

Footnote 498:

A lunatic ought not to be brought before the Court of Commissioners
under any artificial excitement. In a recent instance, a lunatic, or
supposed lunatic, was brought before commissioners for a second
examination, his conduct at the first having been rational; in the
interval he had been permitted to drink a considerable quantity of
ale, spirits, and bottled porter, immediately after which he was again
produced, when his altered demeanor convinced the jury (ignorant of
his potations) that he was lunatic, and a verdict was found
accordingly. One of the commissioners being afterwards accidentally
informed of the circumstance, laid the case before the Lord
Chancellor, who immediately quashed the commission. The conduct of
these keepers could not be too severely reprobated, and we may take
this opportunity of hinting that the practice of holding any judicial
investigation in taverns and public houses (where it can be avoided)
is liable to many objections; at least the _Inquisitio post prandium_
should be abolished.

Footnote 499:

Access has also been denied to a party having an interest, _Ex parte
Littleton_, 6 _Ves._ 7; but query.

Footnote 500:

And when the lunatic’s estate is too small to bear the expense of a
commission, a reference has been directed to the Master, and an order
for the payment of dividends made on his report. This appeared to Lord
_Loughborough_ to be irregular; the precedent was only to be followed
in cases of necessity. _Eyre v. Wake, Ves._ 179. In 1799 the expense
of a commission was about £120. Lord _Talbot_ admitted a defendant who
had lost his memory by extreme age, to answer by guardian, the matter
in demand being but small. 2 _P. Wms._ 110, and Lord _Eldon_
restrained a supposed lunatic by injunction from doing certain acts,
vide ante, Miss _Kendrick’s case_.

Footnote 501:

A Commission must not be sued out to be held in terrorem; if a person
keep the Commission by him several years without executing it, he is
guilty of a contempt, and the Commission will be discharged with
costs. 2 _Atk._ 52.

An Inquisition in England is not sufficient to bind lands in Ireland;
there must be an Inquisition and finding under the Great Seal of
Ireland. _Duchess of Chandos’ Case_, 1 _Sch. and Lef._ 301.

Footnote 502:

A Commission of lunacy, in a proper case, will be granted on the
application of a stranger. _Ex parte Ogle._ 15 _Ves._ 112. _Ex parte
Ward._ 6 _Ves._ 579.

Footnote 503:

The Commissioners are selected by the Lord Chancellor, who generally
appoints experienced Barristers; some benefit might arise if two of
the Censors of the College of Physicians were added to the commission.

Footnote 504:

On foreign proceedings in the nature of Commissions of lunacy, see
_Sylva v. Da Costa_. 8 _Ves._ 316. _Ex p. Gillam_, 2 _Ves. jun._ 587.

Footnote 505:

In this case an Irish Peeress was committed for not producing her
husband.

Footnote 506:

The supposed lunatic should have due notice, and the Commission be
executed near the place of abode. _Ex parte Hall._ 7 _Ves._ 261, for
it is his privilege to be at the execution of it. _Ex parte Cranmer._

Footnote 507:

A lunatic who would have been convicted of a capital crime but for the
plea of lunacy, may recover, and claim his liberty, as was the case of
_Hadfield_, who shot at his late Majesty, and who presented a petition
for enlargement to the House of Commons. It is more than doubtful
whether such applications should ever be complied with; a man restored
to sanity under coercion may very quickly relapse when he becomes his
own master; a moderate quantity of spirits, or exposure to other
irritation, may readily produce a paroxysm which may be attended with
fatal consequences, either to the party himself, or, to some other.
Public policy therefore requires a continuance of the restraint,
however painful to the individual. If there be one case which admits
of relaxation less than another, it is where injuries of the head have
produced the insanity. For the trial of _Hadfield_, see 19 _How. St.
Tri._ 1281.

Footnote 508:

DELIRIUM, a word employed by the Romans, had its origin from the
process of ploughing; for when the oxen deviated from the line to be
pursued, they were said to be _de lira_, out of the track; and this
figure was transferred to the deviations of the human intellect, when
it erred from the established course. Delirium, says Dr. Cullen, may
be shortly defined,—“In a person awake, a false judgment arising from
perceptions of imagination, or from false recollection, and commonly
producing disproportionate emotions.” It is of two kinds; as it is
combined with pyrexia and comatose affections: or, as it is entirely
without such combination; in the latter case it is named _Insanity_.

Footnote 509: