Chapter XIV: Part 14

If a physician gives a person a potion without any intent of doing him any bodily hurt, but with an intent to cure or prevent a disease, and contrary to the expectation of the physician it kills him, this is no (culpable) homicide, and the like of a chirurgeon; _1 Hale_, _P. C._ 429; _4 Bl. Comm._ 197. But query if he were not a regular physician or surgeon? on this there appears to be some difference of opinion; it was anciently holden that if one, that is not of the mystery of a physician or surgeon, take upon him the cure of a man, and he dieth of the potion or medicine, this is covert felony. _Si un que nest physition ou surgeon emprent sur luy un cure, que murrust in sa main, que cest felonie_; _Stanford’s Pleas of the Crown_, _cap._ 9; _Fitzherbert_, _tit. coron._ _p._ 311; _Briton_, _fol._ 14; _Lombard_, _Eiren. tit. Felonie_ saith thus; that _Thorpe_, _43 Ed. 3_, 33, saith he knew one to be indicted accordingly. _Dalton_, _p._ 470, queries this case, as it is difficult to determine the actual cause of death, and there appeareth no will to do harm, but rather to do good, and “the _34 Hen. 8_, _c._ 8, leaveth so great a liberty of such practice to unskilful persons, that it will be hard now to make it felony.” Now the statute of _Henry the eighth_ applies only to the cure of certain diseases or sores, particularly specified, and others like to the same, by external applications, and to drinks for the stone, strangury, or agues, provided (if the preamble may be relied on) “the said persons have not taken any thing for their pains or cunning, but have ministered the same to the poor people only, for neighbourhood, and God’s sake, and of pity, and charity;” in such sense the act is reasonable even to this day, much more then, when from the scarcity of regular practitioners, the charitable in the country were frequently called upon to administer on emergencies, where no medical aid could be procured; but surely this act can never have been intended to warrant the administration of dangerous medicines, arsenic, corrosive sublimate, or cantharides, such indeed as may be fairly classed as absolute poisons, except when in skilful hands, nor the performance of surgical operations. _Dalton_ indeed adds “But if a smith or other person (having skill only in dressing or curing the diseases of horses or other cattle) shall take upon him the cutting, or letting blood, or such like cure of a man, who dieth thereof, this seemeth to be felony; for the rule is, _quod quisque norit, in hoc se (non) exerceat_.” And if it were otherwise, great evils might arise; for persons intending to commit murders, need only cover their design by a pretence of administering medicine;[507] thus in _Vaux’s_ case, the professed purpose of administering the cantharides, was not illegal, yet the prisoner was found guilty of murder. In _Donellan’s_ case, what would a plea have availed, that the chemical principle of laurel water was, in the prisoner’s opinion, a cure for consumption, with which _Sir Theodosius Boughton_ was threatened, and that it had been administered to cure, and not to kill him; or on the death of _Mr. Scawen_,[508] that his mistress had infused or dissolved corrosive sublimate in all his drinks and medicines, to cure him of an ulcer, with which he was afflicted; and that she had done it secretly, because he had an avowed aversion to mercurial medicines. Yet such pleas would continually be made, if the doctrine of allowing all persons however ignorant and unqualified to tamper with medicines, should be admitted. On the other hand there is very considerable weight of authority; _Sir. Wm. Blackstone_ follows _Sir Mathew Hale_ in his opinion, that this doctrine, that if any die under the hand of an unlicenced physician it is felony, is apocryphal, and fitted to gratify and flatter doctors and licentiates in physic; though it may have its use to make people cautious, and wary, how they take upon themselves too much in this dangerous employment; _1 Hales_, _P. C._ 429, 430; _4 Bl. Com._ _c._ 14, _p._ 197; it is difficult to imagine how caution is to be enforced by taking away the liability to punishment. Mr. Serjeant _Hawkins_ takes a different ground; “Also it hath been anciently holden, that if a person, not duly authorised to be a physician or surgeon, undertake a cure and the patient die under his hand, he is guilty of felony;” but inasmuch as the books wherein this opinion is holden (_Stamford_, _P. C._ 16; _Pulton_, 22; _Crom._ 27; _43 Ed. 3_, 33; _Fitz H. Cor._ 163; _Britt._ _c._ 5; and _4 Inst._ 251) were written before the statutes of _23 Hen. 8_, which first excluded such felonious killing, as may be called wilful murder of malice prepense, from the benefit of clergy, it may be well questioned whether such killing shall be said to be of malice prepense within the intent of that statute; however it is certainly highly rash and presumptuous for unskilful persons to undertake matters of this nature; “_and indeed the law cannot be too severe in this case_, in order to deter ignorant people from endeavouring _to get a livelihood_ by such practice, which cannot be followed without the manifest hazard of the lives of those who have to do with them;” _1 Hawk. P. C._ 131. This doctrine does not by any means go as far as _Sir Mathew Hale_; for as the supposed alteration of the law is referred to the operation of the statute, which takes away the benefit of clergy from murders, that is to say from felonious killing with malice prepense, it does not apply to manslaughter, to which the benefit of clergy was still allowed. But there yet remains a question, whether in the case of a person illegally taking upon himself the administration of dangerous medicines, for profit, (and it must be observed that the greater number of nostrums are, from the powerful nature of their ingredients, highly dangerous) does not subject himself to a charge of murder if any die under his hands; for “if a man does such an act, of which the probable consequence may be, and eventually is, death, such killing may be murder, although no stroke is struck;” _4 Bl. Com._ 197. What then if a man for profit administer dangerous preparations of mercury to persons necessarily exposed to change of temperature, and inclemency of weather; nay, delusively hold out to them, that no mercury is employed, by which they are induced to neglect the most ordinary precautions; if death ensue is not this equally murder, _in foro conscientiæ_, as killing with the sword? Malice may be implied in law, as well as apparent; it may be general, as well as particular; and whenever a man has evinced, whether from avarice, cruelty, or wantonness, such disregard for the lives and safeties of mankind, as warrants the imputation of general malice, it is not necessary that individual malice be proved towards the party who has become his victim.[509] _1 Easts. P. C._ 231. “So too if a man hath a beast that is used to do mischief, and he knowing it, suffers it to go abroad, and it kills a man, even this is manslaughter in the owner: but if he had purposely _turned it loose_, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder as if he had incited a bear or dog to worry them;” _4 Bl. Com._ 197. And _Hale_ says, _1 P. C._ 431, I have heard that the owner was hanged for it. Is there much difference, whether the mischief be done by a dangerous beast, or a poisonous drug? to us it appears that the man who vends or administers the one, is as guilty as he who is convicted of turning out the other. If _A_ give purging comfits to _B_ to make sport and not to hurt him, and _B_ dies thereof, it is a killing by _A_, but not murder, but manslaughter; 1, _II. P. C._ 431; _Dalt._ _cap._ 93. Here _A_ is not supposed cognisant of the dangerous nature of the comfits.

With every deference therefore to the very high authorities, which have supported a contrary opinion, we cannot but conclude, that the unlawful administration of medicine for profit, by which death ensues, may constitute wilful murder in some cases, manslaughter in most, and a high misdemeanor in all, according to the quantity of general malice, ignorance, and presumption, evidenced in each case; under what class each individual instance may fall, is a proper subject for a jury. If the law be defective on this point it cannot be too soon amended, and we must express our sanguine hope, that the consideration of revenue, as arising from the stamp duties on patent medicines, will not be allowed to influence the legislature in a matter vitally important to the public health, and to the lives of his majesty’s subjects, more especially as the evil principally operates on the class, whose personal vigour constitutes the strength and sinews of the country. And yet in candour we must admit the difficulties and embarrassments with which the subject is beset: the multiplication of restraints in a free country is very naturally regarded with extreme jealousy, and however anxiously we may desire to crush those harpies of society, who scatter poison and death around, under the pretence of affording relief, yet the object must not be purchased by the infringement of civil liberty.

Doctor _Goodall_, in his historical account of the college’s proceedings against empiricks, published in 1684, mentions many cases in which death has ensued from unlawful administration of medicine; in some of these cases, the college punished the offenders according to their jurisdiction; some by fine and imprisonment, for mala praxis; others they sued at law, for the penalty of five pounds per month for unlicensed practice. But in those instances which appeared to require greater severity of punishment, they consigned the accused to the ordinary course of justice. See _Humphrey Beven’s_ case, _Goodall’s Pro._ 425—_John Hope’s_ case, for giving two apples of coloquintida to a man as a purge, of which he died. _Ibid._ 441.

END OF VOL. II.

London: Printed by William Phillips, George Yard, Lombard Street.

Footnotes

Footnote 1:

“But there is a particular kind of manslaughter proper to be
considered here, from which the benefit of the clergy is taken away by
_Ja._ 1, _c._ 8.” “Where any person shall stab or thrust any person or
persons that hath not then first striken the party which shall so stab
or thrust, so as the person or persons so stabbed or thrust, shall
thereof die within the space of six months then next following,
although it cannot be proved that the same was done of malice
forethought.” See 1 _Hawk. P. C._ This statute was passed in
consequence of the numerous murders committed by the Scots, who with
their dirks stabbed before an ordinary weapon could be drawn.

For an extraordinary case on this statute, and much learning on the
subject, see the trial of _William Chetwynd_ for the murder of _Thomas
Rickets_. 18 _How St. Tri. p._ 290.

Footnote 2:

Od. Lib. v. lin. 757.

Footnote 3:

Tractat. de Peste Lib. iv. Hist. 85.

Footnote 4:

In returning, the ship was cast away on the island of Zante, when this
unfortunate philosopher perished from hunger.

Footnote 5:

_Bruhier, John_, a physician at Paris, in the middle of the
seventeenth century; he was author of many works, but his principal
celebrity rested on his warnings against burying persons, supposed to
be dead, too early. “Dissertation sur l’Incertitude des signes de la
Mort et l’abus des enterremens, et embaumemens precipites.” Paris,
1742. He was at the pains of collecting histories of persons who had
revived after being supposed to be dead, some of whom had been buried.
Bodies ought not to be interred, he says, until putrefaction has
commenced. “Memoire sur la necessité d’un Reglement general au sujet
des enterremens.” 1745. No one should be buried until the fourth day
from their dying. “Addition aux Memoires,” &c. in which he adds to the
number of examples of persons who had been buried alive, or had
revived after being interred. These works have passed through numerous
editions, and have been translated into several other European
languages.

Footnote 6:

Horrible as it may appear, it was a custom in Persia, at the time that
_Herodotus_ wrote, of _burying alive_; and this historian was informed
that _Amestris_, the wife of _Xerxes_, when she was far advanced in
age, commanded fourteen Persian children of illustrious birth to be
interred alive, in honour of the Deity whom they supposed to exist
under the earth.—_Polyhymnia_, c. xiv.

Footnote 7:

“A Dissertation on the _Disorder of Death_, or that state of the frame
under the signs of Death, called Suspended Animation,” by the Rev.
_Walter Whiter_, Rector of Hardingham. Norwich, 1819. 8vo.

Footnote 8:

_Plin._ Nat. Hist. Lib. vii, c. 52; see also _Valer. Maxim._ Lib. 1,
c. 8. For extraordinary histories of persons roused from the tomb, see
_Diemerbroeck_, Lib, ii; _Joannes Mathæus_, Quæst. Med.; _Hildanus_
Cent. 2. Obs. 95, 96; _Phillip Salmuth_ Cent. 2, Obs. 86, 87, 95.
_Maximilian Misson_ relates in his voyages many curious cases of this
kind. “_Nouveau_ Voyage d’Italie.” But the works of _Bruhier_, before
mentioned, contain the greatest collection of such anecdotes.

Footnote 9:

Thus in the Greek, the most philosophically constructed language with
which we are acquainted, the _alpha_ and _omega_, the first and last
acts of life, are conveyed in the verb αω _spiro_ compounded of those
letters. In Latin we also find _spiro_ and _spiritus_.

Footnote 10:

Lettres sur la certitude des signes de la mort.

Footnote 11:

Recherches Physiologiques sur la Vie et la Mort.

Footnote 12:

Phil. Trans. 1811.

Footnote 13:

Phil. Trans. 1667, vol. ii, p. 539.

Footnote 14:

_Hunter_ on the Blood, p. 54.

Footnote 15:

Medical Reports, p. 75.

Footnote 16:

Zoonomia, vol. 1, p. 40.

Footnote 17:

An Essay on Respiration by _J. Bostock_, M. D.

Footnote 18:

A question has arisen, says _Mr. Brodie_, (_Manuscript Notes_) whether
the whole of the brain is essential to the function of respiration, or
whether the power of calling the respiratory muscles into action may
not reside in some particular part of that organ? It has been stated
by _Le Gallois_ that if you expose the cavity of the cranium, and
remove the upper part of the brain, the muscles of respiration
continue to act as usual; if, however, the dissection be continued, as
soon as that portion of the _Medulla Oblongata_ is removed which
corresponds to the _Corpora Olivaria_, their action is immediately
suspended. The theory which such an experiment naturally establishes
has received no inconsiderable support from the history of a fœtus,
published by _Mr. Lawrence_ in the Medico Chirurgical Transactions: in
this monster the _Cerebrum_ and _Cerebellum_ were entirely absent, but
the _Medulla Spinalis_ was continued for about an inch above the
_Foramen Magnum_ of the occiput, so as to form an imperfect _Medulla
Oblongata_, and to give origin to several nerves. Death did not take
place immediately after birth, as in other instances of cerebral
deficiency, but the child breathed for four days after it had been
expelled from the uterus.

Footnote 19:

_Lower_, as early as the year 1667, shewed that if the nerves which go
to the diaphragm in a dog be divided, he breathes “like a
broken-winded horse.” _Phil. Trans._ vol. ii, p. 544.

Footnote 20:

While this work was in progress we have read an account of a person
who, being in a state of debility, died suddenly from the shock of a
shower bath at Brighton. In this case Syncope was probably occasioned
in the same manner as by a blow on the head.

Footnote 21:

_Trance._ Although this term is extremely familiar, it does not appear
that any precise meaning is attached to it; the popular notion is that
the body may for a time be abandoned by the soul, and remain for a
certain period in a deep sleep, during which the exercise of the vital
functions is so obscure, that the individual is reduced to a state of
close simulation of death.

Footnote 22:

A great question has arisen upon this subject, whether rupture of the
heart ever takes place in the sound state of that organ? And it has
been answered by several pathologists in the affirmative. Fischer’s
case from the JOURNAL DER PRACTISCHEN HEILKUNDE, may be seen in the
MEDICAL REPOSITORY, Vol. 11, p. 427, and Vol. 12, p. 164. HARVEY found
in a male subject a rupture in the aortic ventricle, capable of
admitting a finger, and remarked that the parietes of the cavity
possessed their natural strength and thickness (Exercitat III. De
Circulo Sanguinis, T. p. 1. 281.) BOHN also gives a case of a man who
had died suddenly, when a fissure was discovered in the _Ostium
Aortæ_. PORTAL has informed us, that in a rupture of the basis of the
heart, which he examined, the structure of the organ was as firm and
compact as in the natural state, and that in another case the parietes
of the heart displayed their natural solidity. (Memoires de l’Academie
des Sciences, a Paris, 1784, p. 51.) SOEMERING considers it as having
been very correctly remarked by Portal, that the Aortic ventricle
commonly bursts without any previous weakening of the substance of the
heart. (See Soemering’s German Translation of Baillie’s Morbid
Anatomy, with Additions.) DR. WHYTT has likewise seen the heart burst
from protracted grief, and therefore does not regard the term, “BROKEN
HEART,” in the light of a mere metaphor. On the contrary, BOERHAAVE
has recorded two cases, and believes that the rupture was occasioned
by the morbid accumulation of fat; KREYSIG suspects that in most of
these cases of ruptured heart an insidious inflammation had been
established, and he considers that the quantity of adipose substance
in which ruptured hearts are so commonly found enveloped, furnishes an
evidence of this inflammatory state (Sopra i Malattée del cuore.) We
are decidedly of opinion that such ruptures take place in consequence
of a morbid state of the heart capable of diminishing the cohesive
power of its fibres. See a Treatise on the Diseases of the Chest by
_R. T. H. Laennec, M. D._ translated by _J. Forbes, M. D._ London,
1821.

Footnote 23:

Recueil Periodique de la Societé de Medicine de Paris. T. LXI. p. 87

Footnote 24:

Medico-Chirurg. Trans. vol. 1, p. 157. Analogous cases to those
related by _Mr. Chevalier_ will be found in _Bonetus_ Sepulchr. Anat.
vol. 1, p. 383; and _Morgagni_ Epist. 48, Art. 44; see also a
communication by _Dr. Ozanam_ in the Recueil Periodique de la Societé
de Medicine de Paris, tom. 61, p. 87.

Footnote 25:

A young animal may not so soon perish as an older one; and a strong
and healthy individual may survive during a longer period than a
creature that is in a state of debility. By filling the lungs with air
a person may also be enabled to dispense with the act of respiration
for a longer period; _Mr. Kite_ made a very deep inspiration of 300
cubic inches, and was thus enabled to retain this quantity for 72
seconds, without a fresh inspiration; and divers in the pearl
fisheries, inspire deeply before they descend. It has been, moreover,
established by numerous experiments that the demand for oxygen in the
lungs is materially influenced by the nature of the ingesta received
into the stomach; _Mr. Spalding_, the celebrated diver, observed, that
whenever he used a diet of animal food, or drank spirituous liquors,
he consumed in a much shorter time the oxygen of the atmospheric air
in his diving-bell; and therefore he had learned from experience to
confine himself to a vegetable diet, and water, when following his
avocation. And the priest, or conjurer (_Pillal Karras_, in the
Malabar language) who attends the divers in the pearl fisheries of the
east, enjoins, as a religious duty, an abstinence from all food,
before he plunges into the ocean.

Muscular exertions, as in the act of struggling, will without doubt
contribute to the expenditure of oxygen, and increase the demand for
it, and therefore in its absence such movement must accelerate death
by suffocation; this physiological fact will be hereafter more fully
elucidated.

Footnote 26:

We anticipate the objections that will be urged against the truth of
this assertion. It will be asked how it can be reconciled with the
accounts of persons who have recovered after an asphyxia of a much
longer duration? It may be inquired how the statement can be
reconciled with the ordinary histories of divers, who have become so
expert in the art which they profess, as to be capable of remaining
beneath the water for twenty minutes, or even for a longer period: we
are bound to consider such statements as no better than extravagant
fables; not more authentic, says _Mr. Brodie_ (Manuscript Notes), but
certainly less poetical and elegant, than those of the nymphs and
mermaids, whose ordinary residence is in grottos beneath the waves of
the sea; or than those Arabian fictions which have amused and
astonished our youthful imaginations with the description of the
Princes who govern the submarine nations, and pass their lives in
palaces of crystal at the bottom of the ocean—but of this we shall
speak more fully hereafter.

Footnote 27:

Although the term ASPHYXIA merely signifies the absence of the pulse,
yet the name is erroneously applied to every apparent loss of
vitality.

Footnote 28:

DE HAEN thought that death was produced in drowning by the water
flowing into the lungs, and thus stopping the passage of the blood in
the arteries. This belief gave origin to the very erroneous and
mischievous practice, which still continues amongst the more ignorant,
of suspending drowned persons by the heels, or of rolling them over
barrels.

Footnote 29:

_Mr. Coleman_ examined the lungs of a cat which had been drowned, by
placing a ligature on the trachea, removing the lungs from the thorax,
and then making an opening in the trachea under water, so as to
collect the air which issued from the orifice; the whole quantity of
air thus obtained, amounted only to half a drachm; yet the same lungs
when inflated, required as much as two ounces of air, by measure, for
their distention. Nor would the presence of water appear to be
immediately fatal, when introduced into the lungs; Dr. _Goodwyn_
poured two ounces of water into the lungs of a cat, through an opening
made between the cartilages of the trachea; the animal had an
immediate difficulty of breathing, and a feeble pulse, but lived
several hours afterwards without much apparent inconvenience; it was
at length strangled, and the water was found in the lungs. From which
it would appear, that the admission of a certain portion of water,
does not tend to hasten death. The author of this note was present at
an experiment made by Mr. _Brodie_, in which he drowned a guinea pig,
whose trachea had been previously perforated; so that in this case, no
spasm of the glottis could arrest the ingress of the water into the
pulmonary air cells; but this produced no modification of the usual
symptoms; nor did it prevent the resuscitation of the animal, which
was afterwards effected by the appropriate methods.

Footnote 30:

An animal also dies sooner by drowning, than by simple strangulation;
Mr. _Brodie_ considers that the abstraction of heat in the former case
is quite sufficient to account for this difference.

Footnote 31:

_Foderè_, 90.

Footnote 32:

_Walther_, de Morbis Peritonai, et Apoplexia. 3 _Foderè_, p. 106.

Footnote 33:

See the Reports of the Edinburgh colleges, in the case of Sir _James
Standsfield_, as printed in the Appendix, p. 225, also Extracts from
Medical Evidence in the case of _Spencer Cowper_, Esq. for the murder
of _Sarah Stout_, ibid. p. 230. 3 _Foderè_, p. 93. 100. 108. The case
of _Servin_, ib. 125. of _Paulet_, ib. 126.

Footnote 34:

Medicine Légale, vol. iii. p. 85.

Footnote 35:

During such a state of the body there would be but a feeble call for
oxygen; it is muscular action which so rapidly expends this important
principle.

Footnote 36:

In an experiment with a drowned cat, Mr. _Brodie_ found less than a
drachm of water in the bronchial vessels. Other physiologists have
ascertained the same fact by drowning animals in different coloured
fluids.

Footnote 37:

See a very curious paper upon this subject by Mr. _Robertson_, in the
Philosophical Transactions, 1757, vol. 1. p. 30; from which it appears
that the author made ten experiments, in which, with the exception of
one person, he found all the men _specifically lighter_ than water,
and hence he concludes that drowning might be avoided, if the person
who falls into the water were not deprived of his presence of mind.

Footnote 38:

_Franklin’s_ Art of Swimming.

Footnote 39:

Vide _Valent. Pand. Med. Leg._ 297. “De reperto sub aqua Cadavere,”
and 299 “De Submersorum morte sine pota aquæ.”

Footnote 40:

We say, “_generally_” because the comparative size of bone, on the one
hand, or the quantity of fat on the other, will make a very
considerable difference in the specific gravity of different parts of
the human body.

Footnote 41:

See _Southey’s_ Life of Nelson; and the New Monthly Magazine for
January, 1821.

Footnote 42:

This was the opinion of _Boerhaave_ and _Morgagni_. _M. Portal_ also
coincides with them, and observes that the examination of the bodies
of executed criminals formerly carried to him at the _Jardin des
Plantes_ for his lectures, has confirmed him in this idea.

Footnote 43:

See 3 _Foderè_, 130.

Footnote 44:

See several cases cited by _Foderè_, T. 3. p. 134.

Footnote 45:

Memoires de l’Academie Royale, &c. 1704.

Footnote 46:

State Trials, vol. xii.

Footnote 47:

In consequence of plants, in the absence of the sun, giving off
nitrogen and carbonic acid gases, the custom of sleeping with flowers
in the bed chamber is deleterious, and may even, under certain
circumstances prove fatal; a melancholy proof of this occurred in
October, 1814, at Leighton-Buzzard, in Bedfordshire. “_Mr. Sherbrook_
having frequently had his pinery robbed, the gardener determined to
sit up and watch. He accordingly posted himself with a loaded fowling
piece, in the green-house, where it is supposed he fell asleep, and in
the morning was found dead upon the ground, with all the appearance of
suffocation, evidently occasioned by the discharge of _Mephitic_ gas
from the plants during the night.” _Observer_ of 16th, and _Times_ of
17th October, 1814; see also _Currie’s_ “Observations on Apparent
Death,” &c. p. 181.

Footnote 48:

_Rozier_ and _Sir Humphrey Davy_ conclude from their experiments that
carbonic acid kills by exciting a spasmodic action, in which the
epiglottis is closed, and the entrance of this fluid into the lungs
altogether prevented. _Dr. Babington_ appears to entertain a different
opinion, (see “a case of exposure to the vapour of burning charcoal,”
Medico-Chirurg. Trans. vol. 1, p. 83,) and asks how we shall explain
the fact, that the loss of irritability in the muscles of animals
which have been destroyed by immersion in noxious airs, is
comparatively greater than in such as are hanged or drowned, unless we
suppose that the carbonic acid exerts a deleterious influence on the
nervous and muscular systems? The farther consideration of this
subject will be more properly entertained under the head of poisons.

Footnote 49:

Comparative anatomy would furnish us with a variety of beautiful
arguments, if it were necessary, to support these views. The bird
whose muscular exertion is so great during its flight, is provided
with a more than ordinary extent of pulmonary apparatus; and amongst
insects we find that many of the _coleopterous_ species disclose
avenues of air, in the act of flying, which, in their quiet state, are
closed by the cases of their wings, thus procuring for themselves a
larger supply of oxygen, at a period when from their exertions they
most require it. Flat fish who, having no swimming bladder, remain at
the bottom, and possess but little velocity, have gills that are quite
concealed, while those who encounter a rude and boisterous stream, as
trout, perch, or salmon, have them widely expanded. For further
observations upon this subject, the author begs to refer to his paper
in the 10th vol. of the Linnean Transactions, entitled “On the
Physiology of the Egg,” by _J. A. Paris, M. D._ &c.

Footnote 50:

This was the _peine fort & dure_ of our ancient law, which was
inflicted on prisoners who stood mute out of malice, or who feigned
themselves mad, or challenged peremptorily more than the number of
Jurors allowed by law, thus refusing their legal trial. “The manner of
inflicting this punishment may be best found from the Books of Entries
and other law books, all of which generally agree, that the prisoner
shall be remanded to the place from whence he came, and put into some
low dark room, and there laid on his back without any manner of
covering, except for the privy parts, and that as many weights be laid
upon him as he can bear and more, and that he shall have no manner of
sustenance but the worst bread and water, and that he shall not eat
the same day in which he drinks, nor drink the same day on which he
eats, and that he shall so continue till he die.” Some authorities say
till he answers. See 2 _Hawk. P. C._ 330. _c._ 30. § 16. 4 _Bl. Com._
_p._ 319. _Jac._ Law Dict. tit. Mute. The memory of this barbarous
punishment remains “as a monument of the savage rapacity with which
the lordly tyrants of feudal antiquity hunted after escheats and
forfeitures,” for when the criminal died mute, the lord in some cases
lost his escheat; (see 4 _Bl. Com._ 323). But its execution is no
longer permitted by our laws. By Stat. 12 _Geo._ 3. c. 20, sentence
may be passed on those who stand mute as if they had been found or
pleaded guilty.

Footnote 51:

This, however, can but rarely occur; and it seems to have been wisely
ordained by Nature, that the stomach should lose the power of
rejecting its contents, whenever the brain loses its sensibility. See
_Paris’s_ Pharmacologia, edit. 5, vol. 1, p. 150.

Footnote 52:

Manuscript Notes.

Footnote 53:

_Dr. Badenoch_ has very satisfactorily shewn that the _Coup de Soleil_
kills by producing apoplexy.

Footnote 54:

This does not hold universally, for _Beccaria_ mentions the case of a
man whose body became exceedingly stiff, very shortly after having
been struck dead by lightning;—and in one of Mr. _Brodie’s_
experiments, the muscles of a Guinea pig killed by electricity became
stiff.

Footnote 55:

Manuscript Notes.

Footnote 56:

_Mayer_ directed his attention very particularly to the appearances
which were thus produced, and had drawings made of them. It would
appear that they most commonly passed in the direction of the spine.

In the First Volume of the Philosophical Transactions, there is an
account of the dissection of a man killed by lightning, but it
contains nothing remarkable.

Footnote 57:

See also an account of a thunder-storm, by Mr. _Brydone_, in the 77th
vol. of Phil. Trans.

Footnote 58:

_Morgagni_ de Sedibus et Causis Morb. Epist. 68. No. 6 and 7.

Footnote 59:

_Hippocrat._ Aphor. 13. Sect. 2.

Footnote 60:

Osservaz: intorno agli Anim. viventi, etc. No. 3 et 4.

Footnote 61:

This event occurred during the period of the author’s studies at
Cambridge; and he can therefore offer his testimony to the truth of
the statement; he visited the woman soon after her disinterment.

Footnote 62:

See Vol. i. p. 369.

Footnote 63:

Starving to death was a punishment inflicted by the people of Aragon,
some years ago; and it is reported by _Tavernier_, that the chief
ladies in the kingdom of Tonquin, are at this day starved to death for
adultery. The severity of the Roman law on an unchaste Vestal has
often exercised the pencil of the artist. An account of its execution
on _Rhea_, marked as it always was by circumstances of peculiar horror
and solemnity, is to be found in _Plutarch’s_ Life of _Numa_; the
offender, conducted by a mute procession across the Forum to the place
of her interment near the Colline gate, was made to descend a ladder
into the sepulchre, and left there with a lamp, a loaf of bread, and a
cruse of water, the opening being immediately closed with earth and
stones.

Footnote 64:

Corsican Gazette, and London Med. & Phys. Jour. March, 1822.

Footnote 65:

The siege of Jerusalem by the Romans will at once occur to the reader;
and of which _Josephus_ has left us so tragic a history: amongst other
atrocities, an unhappy woman, reduced to the last extremity by
pinching hunger, sacrifices the feelings of a mother to the voracious
calls of appetite, butchers her child, and feeds upon the body!

Footnote 66:

See “Naufrage de la Frégate la Méduse, faisant partie de l’Expedition
du Sénégal en 1816,” par _F. B. Savigny_, ex Chirurgien de la Marine,
et _Alexandre Corréard_, Ingénieur-Geographe. Paris, 1817.—A very
interesting account of this narrative may be found in the Quarterly
Review, for October, 1817.

Footnote 67:

That which we call duration is in fact a feeling of succession, and is
computed by the number of ideas that pass through the mind; whenever
an event occurs which powerfully excites the attention of an observer,
he watches the most minute change, whence he believes that the time
which elapses before the whole event is completed, appears to be
unusually prolonged. When the infidel sultan of Egypt refused to
believe that Mahomet could have ascended into the seven heavens, and
have held some thousand conferences with the Almighty in the space of
a few minutes, the learned mussulman, who was consulted on the
occasion, endeavoured to turn his Majesty to a more strict faith, by
demonstrating to him that a short period of time became converted into
a long one, when a great multitude of important events were crouded
into it.

Footnote 68:

In a tract entitled “Observations on Animal Life and Apparent Death,
by _John Franks_, surgeon, 8vo. London, 1790,” the author says that
“when the late _Mr. Justamond_ (Surgeon to the Middlesex hospital)
lived on the terrace, Palace yard, Westminster, a boy who had been
drowned in the Thames was brought to him; he made an opening into the
wind-pipe, in order to inflate the lungs; but the discharge of blood
which ensued was such as gave him no chance of succeeding in the
recovery; for he could not prevent the blood from pouring down into
the lungs.” Although, says _Dr. Currie_, nothing is said in this case
about the pulse, yet from the blood flowing so copiously, there is
reason to believe that the heart had begun to act; and therefore to
conclude, that life was in fact _destroyed_ by this operation, which
_might_ have been saved without it. See “Observations on Apparent
Death from Drowning, Hanging, Suffocation by noxious vapours, &c.” by
_James Currie_, M.D. London, 1815.

Footnote 69:

The first body galvanised in this country was that of the malefactor
_George Foster_, who was executed in January 1803, before Newgate, for
the murder of his wife and infant daughter, by drowning them in the
Paddington Canal; the experiment was conducted under the direction of
_Aldini_, the nephew of _Galvani_.

Footnote 70:

_Medico-Chirurg. Trans._ vol. 1, p. 26.

Footnote 71:

Elements of Juridical or Forensic Medicine.

Footnote 72:

Newgate Calendar.

Footnote 73:

See _Maclaurin’s Crim. Ca._ _p. 71._ where this circumstance is
alluded to.

Footnote 74:

By the Scottish law, in part founded on that of the Romans, a person
against whom the judgment of the Court has been executed, can suffer
no more in future, but is thenceforward totally exculpated; and it is
likewise held, that the marriage is dissolved by the execution of the
convicted party. _Margaret Dickson_ then, having been convicted and
executed, as above mentioned, the king’s advocate could prosecute her
no farther, but he filed a bill in the high court of Judiciary against
the sheriff, for omitting to fulfil the law. The husband of this
revived convict, however, married her publicly a few days after her
resuscitation; and she strenuously denied the crime for which she had
suffered.

Footnote 75:

The Lord Chief Justice of the King’s Bench is the principal Coroner in
the kingdom, and may, if he pleases, exercise the jurisdiction of a
coroner in any part of the Realm. 4 _Rep._ 57.

Footnote 76:

Except in case of persons dying in jail, the Coroner must not hold
unnecessary inquests on the bodies of those who have died in the
ordinary course of nature. “And the Court of King’s Bench, on two
several occasions within my own memory, blamed the Coroners of Norfolk
and Anglesea, for holding repeated and unnecessary inquests, for the
sake of enhancing their fees, on bodies and parts of bodies which were
cast up by the sea shore, without the smallest probability or
suspicion of the deaths happening in any other manner than by the
unfortunate perils of the sea.” 1 _East. P.C._ 382. See _ib._ the case
of _Rex v. Harrison_, for extorting money for _not_ holding an
inquest.

Footnote 77:

For this purpose the Coroner issues a precept to the constable of such
townships to return a competent number of jurors, viz. not less than
twelve. 2 _Hale, P.C._ 59. 62. 1 _East. P.C._ 380.

Footnote 78:

But this power should be used with discretion. On a late occasion, the
Judge severely reprobated the conduct of a magistrate, who had
committed a poor lad to await the assizes, in company of notorious
thieves and other desperate characters, because he had been the
innocent witness of a felony, and was too poor to find recognizance.

Footnote 79:

Thus in the case of Sir _Edmondsbury Godfrey_, much blood might have
been spared, and much political controversy avoided, if it had been
possible to determine whether the murder had taken place in the field
where the body was found, or at Somerset House, as charged by
witnesses who afterwards confessed their perjury.

Footnote 80:

“It is true that the statute does in terms only require the coroner to
put in writing _the effect_ of the evidence. But this must not be
taken to give him a latitude, such as hath been but too often taken by
persons of this description to the great perversion of truth and
justice, of putting down, not the words of the witnesses, but his own
conception of their tendency. It is doubtless the meaning of the act,
that the examination of the witnesses should be taken down with the
greatest possible accuracy as to all material points of the inquiry:
otherwise one great benefit of the act, which is to enable the Court
to compare the examination with the evidence, must be defeated. _The
effect_ mentioned therein, means the true and genuine sense of the
evidence, as delivered in detail, not indeed in letters, syllables, or
even words; though these should not be needlessly departed from; but
the fair and obvious meaning of the words spoken, and not the final
result of the evidence. Complaints have in my own memory been made by
judges on the circuits of the culpable neglect of coroners in this
respect, and threats of exemplary punishment holden out to them, to
prevent a repetition of the same abuse in future.” 1 _East. P.C._ 384.

Footnote 81:

It must be on the actual view of the body, the coroner and his party
seeing it together. 2 _Hale_ 60. 1 _East._ 380. _King v. Ferrand._ 2
_Barn. & Ald._ 260.

It was evidently the original intention of the Legislature, that the
coroner should view the body on the spot where it was found; that he
and his jury might judge as well by inspection of the body, as by an
examination of surrounding objects, whether the deceased had died by
violence. And Sir _William Blackstone_ says, “He must also sit at the
_very_ place where the death happened,” 1 _Com._ 348. and this should
certainly be done in all possible cases, for the state of surrounding
objects most frequently will testify more strongly than any other
evidence. Modern fastidiousness has introduced the custom of removing
the body to some public-house, even where the death had happened in an
ordinary dwelling; this if not illegal, is at least improper.

Footnote 82:

See also the proceedings on the Oldham inquest, and the subsequent
judgment in the Court of King’s Bench. _A.D._ 1818, 1819. The _King
against Ferrand_, 2 _Barn & Ald._ 260.

Footnote 83:

This was publicly disputed on a late occasion; it is well to question
all extra-judicial dicta, which may be delivered during the heat of
political controversy.

Footnote 84:

The evidence must be on oath; _vide ante_ _p._ 167.

Footnote 85:

In _Scorey’s_ case, _Leach C. L._ 50. the coroner refused to take the
evidence of a man who had accompanied the accused in search of
deer-stealers, and only admitted the man who was with the deceased.
The coroner, on the testimony of this man, told the jury, that the
crime was murder, but they refused to find any other verdict than
_Accidental death_; which verdict the coroner recorded, and then by
his warrant sent _Scorey_ to the county goal for murder.

_Scorey_ being now brought up by Habeas Corpus—The Court, on full
affidavit of the fact, admitted him to bail, and granted a rule
against the coroner to shew cause why an information should not be
filed against him.

Footnote 86:

There are many cases in which there is no substance which can be made
the subject of deodand; as in death by poison or by explosions in
mines, either from inflammable gas, or the powder used in blasting.
The first of these cases calls for immediate remedy; as the instances
of fatal substitution of poison for medicine occur continually,
notwithstanding the repeated warnings published on the subject. Nor
are accidents in mines less worthy of attention; ordinary precaution
might have prevented many which have lately taken place. The Safety
lamp of Sir _H. Davy_ is so firmly established in reputation, that no
doubts can be entertained of its efficacy; some late inventions also
have secured the miner from the numerous disasters to which he is
liable in the dangerous operation of blasting. When the conductors of
mines neglect these ordinary and well-known precautions, they become
morally responsible for any mischief which may consequently occur; we
have only to lament that they are not legally answerable for their
criminal neglect.

Footnote 87:

With respect to a second inquest, the law is thus laid down (3 _Barn.
& Ald._ 266.) So also he (the coroner) may dig up the body, if the
first Inquisition be quashed. _Str._ 533. But it must be by order of
the Court of King’s Bench, on motion, _Str._ 167. And the judges will
exercise their discretion, according to the _time_ and circumstances,
whether he shall or shall not do it. _Salk._ 377. _Str._ 22. 533. 2
_Mod._ 16.

Footnote 88:

It is not for us in this place to argue the question whether excessive
severity of punishment does or does not defeat its punishment; as more
injury is done by inducing that illegal mercy which is here complained
of, than benefit is derived by terror of the unexecuted sentence of
the law: the subject is in abler hands; we shall, therefore, content
ourselves with suggesting, that coroners should be far more strict in
their examination of the bodies of persons supposed to be _felo de
se_; nay, that anatomical inspection of the great cavities should be
absolutely required in all cases. We will not maintain with a French
author on Medical Jurisprudence, that the signs of insanity can often
be discovered on dissection; though we can imagine some cases, as
where there has been an excessive determination of blood to the brain,
in which this inspection may be satisfactory; (See vol. 1, p. 327).
_Fourcroy_ and _Durande_ have also found, on dissecting persons who
had committed suicide, hardness of the liver, and gall stones; and
_Foderé_ observes that, in failure of other evidence, such appearances
deserve to carry some weight. But benefit would still result from the
practice; first from the general horror in which dissection is held,
for if the dread of an ignominious burial, however remote the chance
of its infliction, can be supposed to discourage this offence, under
the existing law, the certainty of personal mutilation would operate
in the proposed alteration. It is related, that when suicide had
become so frequent among the Roman ladies, as to threaten ill effects
to the commonwealth, the Senate decreed that the bodies of all who
died by their own hands should be exposed naked in the public ways.

The effect of the decree was an immediate cessation of the crime;
possibly the same result might be produced by the dread of dissection.

Footnote 89:

Al sessions al Newgate post natalem dom. 1604, 2 _Jac._ Le case fuit
que en home et se feme ayant longe temps vive incontinent ensemble, le
homme ayant consume son substance et cressant en necessity, dit al
feme que il fuit weary de son vie, et qu’il voiloit luy m occider, a
que la feme dit que donques el voiloit auci moryer ove luy: per que le
home praya la feme que el voiluit vaar et acheter ratisbane, et ils
voilont ceo beber ensemble, le quel el fist, et el ceo mist en le
drink, et ils bibe ceo, mes la feme apres prist sallet oyle, per que
el vomit et fuit recover, mes le home morust: et le question fuit si
ceo fuit murther en la feme. _Montague_ recorder cause l’especial
matter d’estre trove: _quære_ le resolucion. _F. Moore_, 754.

Footnote 90:

Vide ante, tit. Coroner’s Inquest.

Footnote 91:

Decency and public policy require that burials should not be delayed,
and it may not be amiss here to observe that the old notion of
arresting a body for debt, is now utterly exploded, as contrary not
only to the civil and canon law, (see _Wood’s Civ. Law_, 148; 2
_Domat_ 628: _Lindw._ 278,) but to reason and the law of the land.
Vide ante, Vol. 1. p. 100.

Footnote 92:

It is said that to act upon the mind by terror, continual griefs or
vexations, though with the intent to kill, is not murder, unless there
be some personal violence, 1 _East. P. C._, _p._ 225: but query this,
the proof of the crime may be difficult, but its perpetration is far
from impossible. To act on the mind of a pregnant woman by extreme
terrors, and so produce abortion and death of malice prepense, would
certainly be murder in its most atrocious form; it might require some
ingenuity in framing the indictment; but our law is fertile in
fictions on less worthy occasions, and ought not to allow its just
vengeance to be avoided. In cases of murder by starvation there may be
no actual violence, yet the law reaches this offence; sometimes indeed
imprisonment forms a part of the crime, but this may not always be the
case; for if the deceased were confined to his bed by disease, so that
he could not seek his own food, and those who were bound to supply him
maliciously neglected their duty, it would be murder by omission
without any personal violence committed. _See_ _Self’s_ case, 1 _East.
P. C._ 226: 1 _Leach, C.C._ 163, and authorities there. So in an
indictment for starving a servant, _Lawrence_, J. intimated, that he
thought the indictment insufficient, in not alleging _that Elizabeth
Williams was a girl of tender years, and under the dominion and
controul of the defendant_. _Rex v. Eliz. Ridley_, 2 _Camp. R._ 650.
See also _Regina v. Gould. Salk._ 381.

Footnote 93:

“Such also was the case of the parish officers who shifted a child
from parish to parish, till it died for want of care and sustinence.”
1 _East. P. C._ 226, and authorities there. Unfortunately this species
of crime is not of very rare occurrence; numerous instances might be
cited where the death of a pauper has been caused by the barbarous
custom of removing the poor, without the slightest regard to their
age, disease, or infirmity.

Footnote 94:

As we are not aware of the existence of any poisonous filth so noxious
as to destroy by its mere stench, we shall not enlarge on this head;
we have indeed heard of an attempt to kill by the smoke of burning
Euphorbium, but without believing in its power. _Vide ante tit.
Nuisance, et post, Aerial poisons._

Footnote 95:

In this case it is not necessary that there should be any signs or
even suspicion of violence; the bare fact that they died in gaol is
enough.

Footnote 96:

One half of the jury should be of the prisoners, 1 _East P. C._ 383,
for they are most likely to know if any unnecessary hardship had been
inflicted on the deceased.

Footnote 97:

The learned Reporter does not appear to have adverted to the
distinction between epidemic and contagious distempers. See vol. 1, p.
105.

Footnote 98:

It is to be feared that grand juries will discontinue their salutary
custom of visiting the prisons, in consequence of a recent decision
that they have no right to demand admission. As the propriety of their
inspection is generally granted, we may venture to hint a wish that
some enactment may pass on this subject, and that the temporary
political objection, arising out of the seclusion of state prisoners,
may not be permitted to operate as a general and permanent obstacle.
It is to the zeal of individuals in tracing abuses, rather than to
legislative enactment for their prevention, that we look for the still
necessary improvements of our prison discipline; for no government,
however vigilant, can guard against the secret misconduct of its
obscurer agents; all it can do, is to encourage enquiry, whenever the
first hint of delinquency or even of suspicion is communicated. The
subject is now under legislative consideration, and we may therefore
hope that a due system may be adopted, one which shall equally steer
clear of the wasteful expenditure of the Millbank Penitentiary, and
the enormities imputed to Ilchester: that prisons may be made places
of confinement, coercion, and punishment; but not of torture,
contagion, and despair.

The improvement in morals, order, and cleanliness introduced into some
prisons by the exertions of a benevolent individual (_Mrs. Fry_)
deserves our notice; her attention indeed has been mainly directed to
the mental and religious instruction of female prisoners, but this
mental improvement is not without its effect on their bodily health;
order, temperance, and cleanliness, will always produce a physical as
well as moral improvement on the minds and persons of the lower
orders.

Footnote 99:

A similar calamity occurred in Dublin in 1776, when the sheriff,
several counsellors, and others, fell victims to this disease. Gents.
Mag. The death of the late Judge _Osborne_ also is attributed to an
ill-ventilated court.

Footnote 100:

The law does not appear to have made any sufficient provision for the
(not improbable) contingency of a highly infectious disorder breaking
out in any prison, yet it is evidently unjust that a prisoner for a
debt of _one shilling!_ or any other sum, should be exposed to the
hazard of his life by remaining in contact with the infected, (see
_Buxton’s_ Inquiry.) Formerly the writ of _Habeas Corpus_ was granted
on such occasions, but abuses having arisen it was ultimately referred
to the judges to consider the legality of this application of the
writ, who decided against it; adding, however, that in case of great
infection some house in some good town might be assigned for the
warden of the Fleet, and the like for the marshal of the King’s Bench,
where they might keep their prisoners _sub arcta et salva custodia_.
_Hutt._ 129. But query, how far this course would be applicable to
other prisons?

Footnote 101:

The learned _Jacob Bryant_ lost his life from mortification in his
leg, originating in the slight circumstance of a rasure against a
chair, in the act of reaching a book from a shelf.

Footnote 102:

See “An account of a case of recovery, after an extraordinary
accident, by which the shaft of a chaise had been forced through the
thorax.” by William Maiden; London, 1812.

Footnote 103:

Memoires de l’Acad. Royale. 1705.

Footnote 104:

Med. Polit. P. 1. C. 1.

Footnote 105:

_Hebenstreit_ observes that if a man is wounded by two different
persons, one of whom stabs in the side, the other in the belly, it
becomes necessary after death to ascertain of which wound the deceased
died, in order that the actual murderer may be punished. By the law of
England this question can never arise.

Footnote 106:

The bites of venomous animals will be considered under the head of
Poisons.

Footnote 107:

This trial is the more remarkable as forming one of the numerous
persecutions to which the prisoner claimant of the Annesley Peerage
was subjected by the rancour of his opponent; for the other
proceedings _see State Trials_.

Footnote 108: