Chapter XXIII: Part III (5)

It is a curious circumstance, that, although _Hippocrates_ prohibited
physicians from assisting in procuring abortion, he relates the case
of a young woman whom he had recommended to dance, and use other
violent exercise, for that purpose, in whom it produced the effect,
and without materially injuring the woman.

Footnote 63:

Amor. l. 2, eleg. 14.

Footnote 64:

Tertull. de Anima, apud oper. p. 323, ed _Rigalt_.

Footnote 65:

On the uncertainty of the signs of murder in the case of Bastard
Children. Read before the London Medical Society, and published in the
sixth volume of “Medical Observations and Inquiries.”

Footnote 66:

A dissertation on Infanticide, in its relations to Physiology and
Jurisprudence, by _W. Hutchinson_, M.D. Edit. 2, London 1821.

Footnote 67:

See our chapter on the methods of treating Asphyxia, vol. ii, p. 75.

Footnote 68:

We have no word in the English language so expressive as _viable_.
That adopted by Dr. _Gordon Smith_, _rearable_, is a very clumsy
substitute. The subject has been very fully discussed by _Professor
Capuron_, to whose most excellent work, entitled “La Medecine Legale,
relative a l’Art des Accouchemens,” we must refer the reader.

Footnote 69:

Dr. _Hutchinson_ states that the weight of the fœtus at the full term
of utero-gestation has generally been rated too high; apparently from
this having been stated from conjecture, rather than from the evidence
of the balance.

It appears from the observations of _Dr. Hunter_, made at the British
Lying-in hospital, on the bodies of several thousand new-born and
perfect children, that the weight of the smallest was about _four
pounds_; and of the largest _eleven pounds two ounces_; that of by far
the greater proportion was from _five to eight pounds_. _Dr. Clarke’s_
inquiries furnished nearly similar results; he found that the average
weight of male children was _seven pounds five ounces and seven
drachms_; and that of female, _six pounds eleven ounces and six
drachms_, (Phil. Trans. vol. lxxiv.) _Dr. Clark_, of Dublin, found it
vary from _four_ to _eleven pounds_. _Dr. Merriman_ states, in his
lectures, that he delivered one which weighed _fourteen pounds_, (it
was born dead,) and _Dr. Croft_ delivered one alive weighing _fifteen
pounds_. It is somewhat less in France than in England; of fifteen
hundred and forty-one examined by _Camus_, under circumstances similar
to the foregoing, the greatest weight was _nine pounds_, and of this
there were sixteen instances; the ordinary, from _five_ to _seven_;
and the average _six pounds and about a quarter_; there were
thirty-one instances in which it was as low as _three pounds_,
although _Baudelocque_ states that he saw several instances in which
the weight was about _ten pounds_, a few where it was _twelve_, and
one of _thirteen_. Subsequent observations on twenty thousand children
at the Hospice de la Maternité, at Paris, have shewn a few instances
where it has been _one hundred and sixty-eight ounces_, that is _ten
pounds and a half_, which has been the highest term. In Germany it
appears to be nearly the same as in France; for _Roederer_ states the
average weight to be from _five pounds_ to _six pounds and a
half_.—_Hutchinson, L. C._

Footnote 70:

We have already given a scale of the dimensions of the skeleton of the
fœtus, according to the accurate observations of _M. Beclard_, vol.
iii, p. 75.

Footnote 71:

See _Dr. Merriman_ on difficult parturition, p. 51.

Footnote 72:

_Baglivi._ Op. Omnia, p. 299.

Footnote 73:

_Margaret Dickson_, whose remarkable resuscitation after execution we
have already noticed (vol. ii, p. 91) was convicted on the evidence of
a medical person, who deposed that the lungs of the child _swam in
water_.

Footnote 74:

De. Offic. Med. de Vulner. renunciat.

Footnote 75:

Op. Patholog. Pract. t.i.

Footnote 76:

De Fallaci Pulmon, Infant. Experiment.

Footnote 77:

On the uncertainty of the signs of murder in the case of bastard
children.

Footnote 78:

Memoires de l’Academie Royale des Sciences, Année, 1769.

Footnote 79:

Anatom. Reform. p. 71.

Footnote 80:

It should be understood, adds _Dr. Hutchinson_, that these children
had never been fed before they were placed in the _turning box_ at the
hospital; which, perhaps, with the want of due warmth, &c. may have
prevented their lungs being as much dilated as those of children of
the same age, under ordinary circumstances.

Footnote 81:

Stockholm, Acad. Hand. t. xx, p. 40.

Footnote 82:

Dissert. de Docimas. Pulm. Ploucq.

Footnote 83:

This author relates the results of four hundred examinations of bodies
of children made at the Hospice de la Maternité at Paris, for the
purpose of furnishing some evidence on this subject, and the results
of them are almost as various as it was possible for them to have
been, within a certain range.

Footnote 84:

Principles of forensic medicine, p. 336.

Footnote 85:

The umbilical cord generally separates from the navel on about the
_fifth_ day, and is almost always partially detached on the _fourth_;
the ulcerated surface is commonly healed by the _eighth_ or _ninth_
day.

Footnote 86:

Principles of forensic medicine, p. 311.

Footnote 87:

See _vol._ i, _p._ 219, _tit. Supposititious Children_.

Footnote 88:

At this moment London is infested by numerous bands of infant
depredators, who in desperate hardihood, skill, perseverance, and
combination, emulate the oldest criminals; female infants are
permitted to walk the most public streets at mid-day, whose _apparent_
age might bring their criminal associates within the statute _18
Eliz._ The new vagrant act may give an useful stimulus to the police
on this point, however vexatious and impolitic it may be on others.

Footnote 89:

_Alice de Walborough_, æt. 13, was burnt for murdering her mistress.

Footnote 90:

At _Abingdon_ assizes, Feb. 23, 1629, before _Whitlock_ justice, one
_John Dean_, an infant between eight and nine years, was indicted,
arraigned, and found guilty of burning two barns in the town of
_Windsor_; and it appearing upon examination that he had malice,
revenge, craft, and cunning, he had judgment to be hanged, and was
hanged accordingly. _Note_, _1 H. P. C._ _p._ 25. At _Dorchester_
assizes, March 1794, _Elizabeth Marsh_, aged 15 years, was convicted
of the murder of _John Nevil_, her grandfather, at _Morden_, and was
executed.

Footnote 91:

_Giles East_, a boy under 17 years of age, was convicted at the
Kingston Assizes of carnally knowing a girl of 9 years of age, (stat.
_18 Eliz._) and was executed Jan. 20, 1823.

Footnote 92:

At Bury assizes 1748, _William York_, a boy of ten years of age, was
convicted before Lord Chief Justice _Willes_ for the murder of a girl
of about five years of age, and received sentence of death: but the
Chief-Justice, out of regard to the tender years of the prisoner,
respited execution, till he should have an opportunity of taking the
opinion of the rest of the judges, whether it was proper to execute
him or not, upon the special circumstances of the case, which he
reported to the judges at Serjeant’s-inn in Michaelmas term following.

The boy and girl were parish children, put under the care of a
parishioner, at whose house they were lodged and maintained; on the
day the murder happened, the man of the house and his wife went out to
their work early in the morning, and left the children in bed
together; when they returned from work, the girl was missing; and the
boy being asked what was become of her, answered that he had helped
her up and put on her cloaths, and that she was gone he knew not
whither. Upon this, strict search was made in the ditches and pools of
water near the house, from an apprehension that the child might have
fallen into the water. During this search, the man, under whose care
the children were, observed, that a heap of dung near the house had
been newly turned up; and upon removing the upper part of the heap, he
found the body of the child about a foot’s depth under the surface,
cut and mangled in a most barbarous and horrid manner.

Upon this discovery, the boy, who was the only person capable of
committing the fact that was left at home with the child, was charged
with the fact, which he stiffly denied.

When the coroner’s jury met, the boy was again charged, but persisted
still to deny the fact. At length, being closely interrogated, he fell
to crying, and said he would tell the whole truth. He then said, that
the child had been used to foul herself in bed; that she did so that
morning (which was not true, for the bed was searched and found to be
clean); that thereupon he took her out of the bed, and carried her to
the dung heap; and with a large knife, which he found about the house,
cut her in the manner the body appeared to be mangled, and buried her
in the dung heap; placing the dung and straw that was bloody under the
body, and covering it up with what was clean; and having so done, he
got water and washed himself as clean as he could.

The boy was the next morning carried before a neighbouring justice of
the peace, before whom he repeated his confession, with all the
circumstances he had related to the coroner and his jury. The justice
of the peace very prudently deferred proceeding to a commitment, until
the boy should have an opportunity of recollecting himself.
Accordingly he warned him of the danger he was in if he should be
thought guilty of the fact he stood charged with, and admonished him
not to wrong himself: and then ordered him into a room, where none of
the crowd that attended should have access to him.

When the boy had been some hours in this room, where victuals and
drink were provided for him, he was brought a second time before the
justice, and then he repeated his former confession: upon which he was
committed to gaol.

On the trial evidence was given of the declarations before-mentioned
to have been made before the coroner and his jury, and before the
justice of the peace; and of many declarations to the same purpose
which the boy made to other people after he came to gaol, and even
down to the day of his trial; for he constantly told the same story in
substance, commonly adding that the devil put him upon committing the
fact. Upon this evidence, with some other circumstances tending to
corroborate the confessions, he was convicted.

Upon this report of the Chief-Justice, the judges, having taken time
to consider it, unanimously agreed,

1st, That the declarations stated in the report were evidence proper
to be left to the jury.

2dly, That supposing the boy to have been guilty of this fact, there
are so many circumstances stated in the report, which are undoubtedly
tokens of what my Lord Chief-Justice _Hale_ somewhere calleth a
_mischievous discretion_, that he is certainly a proper subject for
capital punishment, and ought to suffer; for it would be of very
dangerous consequence to have it thought, that children may commit
such atrocious crimes with impunity.

There are many crimes of the most heinous nature, such as in the
present case the murder of young children, poisoning parents or
masters, burning houses, _&c._ which children are very capable of
committing; and which they may in some circumstances be under strong
temptations to commit; and therefore, though the taking away the life
of a boy of ten years old may savour of cruelty, yet as the example of
this boy’s punishment may be a means of deterring other children from
the like offences; and as the sparing this boy, _merely on account of
his age_, will probably have a quite contrary tendency, in justice to
the public, the law ought to take its course; unless there remaineth
any doubt touching his guilt.

In this general principle all the judges concurred: but two or three
of them, out of great tenderness and caution, advised the
Chief-Justice to send another reprieve for the prisoner; suggesting
that it might possibly appear on farther inquiry, that the boy had
taken this matter upon himself at the instigation of some person or
other, who hoped by this artifice to screen the real offender from
justice.

Accordingly the Chief-Justice did grant one or two more reprieves; and
desired the justice of the peace who took the boy’s examination, and
also some other persons in whose prudence he could confide, to make
the strictest inquiry they could into the affair, and report to him.
At length he, receiving no farther light, determined to send no more
reprieves, and to leave the prisoner to the justice of the law at the
expiration of the last: but, before the expiration of that reprieve,
execution was respited till farther order, by warrant from one of the
Secretaries of State: and at the Summer assizes 1757, he had the
benefit of his Majesty’s pardon, upon condition of his entering
immediately into the sea-service.

Footnote 93:

There is a precedent in the register, _fol._ 309, _b_, of a pardon
granted to an infant within the age of seven years, who was indicted
for homicide: in this case the jury found, that he did the fact before
he was seven years old. _1 H. P. C._ _note_, _p._ 27.

Footnote 94:

See preceding _Note_.

Footnote 95:

Vide ante, vol. i, tit. Ideots and Lunatics.

Footnote 96:

If the _fact_ be found, he must be committed under the statutes 48 &
_49 Geo._ 3, for safe custody. See vol. i, p. 306.

Footnote 97:

“By the common law, if it be doubtful whether a criminal, who at his
trial is in appearance a lunatic, be such in truth or not, it shall be
tried by an inquest of office to be returned by the sheriff of the
county wherein the court sits, and if it be found by them that the
party only feigns himself mad, and he still refuse to answer, he shall
be dealt with as one that stands mute.” _1 Hawk. P. C._ _p._ 2, and
authorities there cited; as to standing mute see vol. 2, _p._ 56, and
_12 Geo._ 3, _c._ 20.

Footnote 98:

For the case of _Bellingham_ executed for the murder of _Mr.
Percival_, see Appendix to _Collinson_ on Lunacy.

Footnote 99:

_Lord Ferrers_ committed the murder of his steward _Johnson_ after
drinking porter to excess. See State Trials. _John Dey_ of Dereham, in
Norfolk, after a paroxysm of drunkenness rose in the middle of the
night, and cut the throats of his father and mother, ravished the
servant maid in her sleep, and afterwards murdered her! A somewhat
analogous case was presented to us in the history of _Nicholson_, who
murdered _Mr._ and _Mrs. Bonar_ at Chiselhurst. These men were,
however, condemned and executed.

Footnote 100:

Here again the law of the land is at variance with what we conceive to
be the law of Nature; and it is at variance with itself, for it is a
strange anomaly that by the law of real property, an infant _in ventre
sa mere_ may take an estate from the moment of its conception, and yet
be hanged four months afterwards for the crime of its mother.

Footnote 101:

This is another instance in which the question of superfœtation may
arise, for a woman, according to that doctrine, may be delivered of
one child, and at the same time be pregnant of another.

Footnote 102:

_Sir Mathew Hale_ says this case did occur at Aylesbury.

Footnote 103:

For the Scotch law on this subject see _Burnett_’s Crim. Law, 595.

Footnote 104:

Cases of mistaken identity have occurred more frequently than persons
unacquainted with the subject could suppose. We shall relate a few
instances. At the Old Bailey sessions, for September 1822, before the
Common Serjeant and Middlesex Jury, _Joseph Redman_ was indicted for
assaulting _William Brown_, on the King’s highway, and taking from his
person a gold watch, &c. his property. Prosecutor stated, on
cross-examination, that he knew a man of the name of _Greenwood_, so
much like the prisoner, with his hat on, that he should hardly know
one from the other. _Greenwood_ was in custody, and appeared at the
bar, when the similarity between them struck every body with
astonishment. The prisoner, _Redman_, proved an _alibi_, and the jury
returned a verdict of _not guilty_. We have frequently in the
preceding parts of our work alluded to the case of _Richard Coleman_,
a brewer’s clerk, who was indicted at the assizes held at Kingston, in
Surry, in March 1749, for the rape and murder of _Sarah Green_ on the
23d of July preceding, when he was capitally convicted, and executed
on Kennington Common, on the 12th of April 1749. In this case,
_Coleman_ was positively sworn to by _Sarah Green_, just before her
death, as being one of the assailants. Two years after the execution
of this unfortunate man, it was discovered that _James Welch_, _Thomas
Jones_, and _John Nicholls_, were the persons who had treated _Sarah
Green_ in the inhuman manner which had occasioned her death. _John
Nicholls_ was admitted King’s evidence, and _Welch_ and _Jones_ were
accordingly convicted and executed. Another case in which the identity
of a person was erroneously sworn to, was that of _Mr. James_, a
tailor, who was robbed on the Dulwich road, by the notorious gang of
highwaymen that infested the environs of London, and was headed by a
person named _Cooper_, who, after a life of crime, suffered death for
the murder of _Saxby_, near Dulwich. In this case _Mr. James_ swore
positively to two soldiers in the Guards, who were accordingly tried
for the offence, but, fortunately, acquitted. A short time after this
event the same gang robbed one _Jackson_, a farmer, in a lane near
Croydon, for which robbery two farriers, named _Skelton_ and _Killet_,
were apprehended, and being tried at the ensuing assizes for Surry,
the latter was acquitted, but the former was convicted on the positive
oath of the person robbed, and, although innocent, suffered death.

_Martin Clinch_, bookseller, and _James Mackley_, printer, were tried
at the Old Bailey, in 1797, before _Mr. Justice Grose_, for the wilful
murder of _Syder Fryer, Esq._ at the back of Islington workhouse, and
were convicted and executed. On this occasion the identity of the
prisoners was positively sworn to by _Miss Ann Fryer_, who was in
company with her cousin, the deceased, at the time of the robbery and
murder. Some years afterwards _Burton Wood_, who was executed on
Kennington common, and _Timms_, who suffered a similar fate at
Reading, severally confessed at the gallows the commission of the
deed, for which _Clinch_ and _Mackley_ had innocently suffered. To the
above interesting cases we may add that of _Robert_ and _Daniel
Perreau_ (twin brothers,) who were tried in 1775, and executed for a
forgery upon _Mr. Adair_. These persons so nearly resembled each other
that _Mr. Watson_, a money scrivener, who had drawn eight bonds, by
order of one or other of the brothers, hesitated to fix on either, in
consequence of their great personal resemblance; upon being pressed,
however, to make a positive declaration, he at length fixed upon
_Daniel_. The name of these unfortunate men is familiar to the public,
from the well known exclamation of our late king, upon being asked to
pardon _Dr. Dodd_, “if I _save Dodd_, I shall have _murdered_ the
_Perreaus_.”

Upon the subject of personal identity, a curious question has
presented itself for discussion, which requires some notice on this
occasion—_the degree of light which may be necessary to enable an
observer to distinguish the features, so that the person maybe
hereafter identified_? In a case which occurred in France in 1809, of
a person shot in the night, it was stated that the flash of the pistol
enabled the witness to identify the features of the assassin. The
possibility of the statement was referred to the physical class of the
Institute, who reported against it. Still, however, _M. Foderé_, who
relates the circumstances, is inclined to believe that, if the persons
be at a small distance, and the night be dark, such an event is by no
means impossible. (_Med. Leg._ t. i, p. 28.) The following English
case may be here introduced in illustration of the question. “_John
Haines_ was indicted, _January 12, 1799_, for maliciously and
feloniously shooting at _H. Edwards_, _T. Jones_, and _T. Dowson_,
Bow-street officers, on the highway. _Edwards_ deposed that, in
consequence of several robberies having been committed near Hounslow,
he, together with _Jones_ and _Dowson_, were employed to scour that
neighbourhood; and that they accordingly set off in a post-chaise on
the evening of Saturday, November 10th, when they were attacked near
Bedfont by two persons on horseback, one of whom stationed himself at
the head of the horses, while the other went to the side of the
chaise. The night was dark, but _from the flash of the pistols_ he
could distinctly see that it was a dark-brown horse, between 13 and 14
hands high, of a very remarkable shape, having a square head, and very
thick shoulders; and, altogether such that he could pick him out of
fifty horses; he had seen the horse since at _Mr. Kendall’s_ stables,
in Long Acre. He also perceived, _by the same flash of light_, that
the person at the side-glass had on a rough-shag, brown great coat.”

Writers on forensic medicine have enumerated the various
circumstances, by which the countenance of an individual may be so
changed, as to defeat every attempt to identify him. _Foderé_ mentions
the following, _age; loss, or acquisition of fat; change in the colour
of the eyes or hair; the effects of climate, diet, diseases, and
passions of the mind_. These may also be metamorphosed by art. The
influence of mental anxiety in changing the countenance is universally
acknowledged—

Danger, long travel, want, or woe,
Soon change the form that best we know;
For deadly fear can time outgo,
And blaunch at once the hair;
Hard toil can roughen form and face,
And want can quench the eye’s bright grace,
Nor does old age a wrinkle trace
More deeply than despair.

_Marmion, Canto I._

Footnote 105:

Or _Guillot’s_ daughter, so named from a physician of the name of
Guillot, its inventor; it is singular, that a somewhat similar engine,
which is or was preserved in the Tower of London, was called the
Maiden in Scotland, and in England the Earl of Exeter’s daughter. By
the same figure, the Gunner’s daughter is the carriage to which a
sailor is lashed for punishment.

Footnote 106:

In this opinion we are further confirmed by the debate in the House of
Commons, March 1823, on the case of Colonel _Allen_.

Footnote 107:

We have heard of Martinets of the old school who have reprimanded
their surgeons for such interference; we hope the instances are rare.

Footnote 108:

No person ought to be entrusted with the execution of any sentence,
who has been personally offended by the crime committed; for this
reason the commanding officer of a regiment, who has a direct personal
interest in the preservation of its discipline, and therefore may
entertain angry feelings towards offenders, is not the most proper
person to superintend executions.

Footnote 109:

This species of defence was set up in the case of _M‘Quirk_, who was
pardoned for the murder of _George Clarke_ at a contested election,
for Middlesex, (_see Foote’s_ Remarks.) We have again to report that
precedents ought not to be drawn from times of turbulence or political
dissention.

Footnote 110:

See _Apoth. Comp._ v. _Warburton_, _3 Barn. & Ald._ 46; _Apoth. Comp._
v. _Roby_, K. B. Feb. 28, 1822; _Apoth. Comp._ v. _Barstow_, York
assizes Aug. 1822.

Footnote 111:

Skinner 568. 4 Inst. 251. 2 Brownl. 255, 256, &c. 1 Ld. Raym. 454.

Footnote 112:

2 Brownl. 256, 260.

Footnote 113:

14 & 15 H. 8. cap. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physicians 3. 2
Bulst. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486.

Footnote 114:

1 Mar. c. 9. Rastal’s Physicians 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cr. Jac. 121. 4
Inst. 251. 2 Brownl. 257, 262, 265, 266.

Footnote 115:

2 Brownl. 261, 262.

Footnote 116:

14 & 15 H. 8. cap. 5.

Footnote 117:

11 Co. 59. a. Co. Lit. 36. a. 2 Inst. 81. Hard. 305.

Footnote 118:

Rastal. Physician 1.

Footnote 119:

14 & 15 H. 8. c. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physician 3. 2
Bulstr. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486. Cart. 115.
6 Mod. 125.

Footnote 120:

1 Mar. c. 9. Rastal Physician 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cro. Jac. 121. 4
Inst. 251. 2 Brownl. 357, 262, 265, 266. Cart. 115.

Footnote 121:

2 Brownl. 264.

Footnote 122:

2 Brownl. 264.

Footnote 123:

2 Brownl. 264.

Footnote 124:

2 Brownl. 264.

Footnote 125:

2 Brownl. 258.

Footnote 126:

2 Brownl. 264.

Footnote 127:

2 Brownl. 263.

Footnote 128:

2 Brownl. 258.

Footnote 129:

Gobd. 418. 2 Roll. Rep. 356. Wing. Max. 239.

Footnote 130:

2 Co. 55. a. 3 Co. 59. b. Gobd. 324. Co. Lit. 381. 5 Co. 99. a.

Footnote 131:

Wing. Max. 239.

Footnote 132:

Wing. Max. 239.

Footnote 133:

2 Brownl. 264. Cart. 115.

Footnote 134:

2 Brownl. 264.

Footnote 135:

Co. Lit. 141. a. Hob. 87. Bridg. 11. 2 Brownl. 266. Dyer 220. pl. 14.

Footnote 136:

Co. Lit. 141. a.

Footnote 137:

7 Co. 14. a. Calvin’s case. Hob. 87. 2 Brownl. 198, 265. Hard. 140.

Footnote 138:

8 E. 3. 30. b.

Footnote 139:

2 Inst. 401, 402.

Footnote 140:

2 Brownl. 265. 2 Inst. 402. F. N. B. 209. f.

Footnote 141:

2 Brownl. 265. Vet. N. B. 138. b. 2 Inst. 442.

Footnote 142:

2 Inst. 580, 581, 582, &c. Skinner 464.

Footnote 143:

2 Inst. 588. 2 Brownl. 198, 265.

Footnote 144:

2 Brownl. 265. 2 Inst. 587.

Footnote 145:

Dy. 313. pl. 91. 1 Co. 47. a. Dav. 2. a. Co. Lit. 1. b. Cro. Car. 82,
83. 2 Roll. Rep. 246, 247. 1 Jones 234. Lit. Rep. 43.

Footnote 146:

1 And. 45. 3 Leon. 58. 4 Leon, 40, 41.

Footnote 147:

4 Co. 43 a.

Footnote 148:

2 Ventr. 170. 4 Co. 43. a. 5 Co. 61. a. 11 Co. 59. b. 1 Roll. Rep. 95.
Cawly 78. Noy 82. Bridgm. 122. Cro. Jac. 481. Wing. Max. 695.

Footnote 149:

Postea 154. b. Raymond 330. Hawkes’s Max. 21. Styles 391.

Footnote 150:

Cro. El. 208. 2 Leon. 47. Owen 84, 85. 1 And. 245. 6 Co. 64. b. 3
Bulstr. 66, 185. 2 Roll. Rep. 276. Winch. 92. Lane 69. Lit. Rep. 64,
67, 289. Styles 391.

Footnote 151:

Wing. Max. 67. Lit. Rep. 66.

Footnote 152:

Lit. Rep. 66. Wing. Max. 67. Styles 78.

Footnote 153:

Cart. 120, 121.

Footnote 154:

Postea 121. a.

Footnote 155:

2 Inst. 379, 380. W. 2. c. 11. Plowd. 17. b. Rast. Account 2.

Footnote 156:

Postea 120. b. 2 Brownl. 266. 2 Inst. 380. 2 Bulstr. 139. Fitz. Barr.
44. Br. Account 6. Br. Det. 16. Br. Execution 135. Br. Faux
Imprisonment 32.

Footnote 157:

2 Brownl. 266. 15 R. 2. c. 2. 8 H. 6. c. 9. 6 Mod. 125.

Footnote 158:

Antes 60. b. 41. a. 8 Co. 41. 11 Co. 43. b. F. N. B. 73. d.

Footnote 159:

Antes fo. 38. b. 41. a. 60. b. F. N. B. 73. d. 10 Co. 103. a. Rep. Q.
A. 146.

Footnote 160:

2 Brownl. 257, 262, 265, 266. Rast Phys. 7. Lit. Rep. 169, 172, 173,
212, 213, 248, 249, 350, 331. Cr. Jac. 121. Cr. Car. 257. 1 Jones 263.
Car. 115. 4 Inst. 251.

Footnote 161:

14 & 15 H. 8. cap. 5. Roll. 598, 4 Inst. 251. Rast. Phys. 3. 2 Bulstr.
185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones
261. Cro. Jac. 121, 159, 160. Cro. Car. 256. Palm. 486. Cart. 115. 8
Co. 133. b. 1 Lev. 195.

Footnote 162:

Cro. Jac. 133. Doct. pl. 70, 325. Lit. Rep. 172. Moor 464. 1 Sid. 336.
Dyer 39. pl. 62. Fitzgib. 250.

Footnote 163:

Cr. Jac. 133. Cr. Car. 5. Mo. 464. Postea 133. b. 9 Co. 110. b. Doct.
pl. 70, 325. Palm. 287. Lit. Rep. 172, 252. 2 Bulstr. 94. Antes 93. a.
1 Sid. 336.

Footnote 164:

7 Co. 25. a. Dyer 15. pl. 78. Cr. Car. 209. Co. Lit. 303. b. 6 Mod.
119.

Footnote 165:

Hob. 199. Hard. 38.

Footnote 166:

Styles 354.

Footnote 167:

3 Co. 52. b.

Footnote 168:

3 Co. 52. b. Cro. El. 62. 1 Leon. 242.

Footnote 169:

Antea 119. b. 2 Brownl. 266. 2 Inst. 380. Bar. 44. Br. Account 6. Br.
Det. 16. Br. Exec. 135. Br. Faux Imprisonment 32. 2 Bulstr. 139. 6
Mod. 125.

Footnote 170:

2 Brownl. 266. Hardr. 482.

Footnote 171:

Antea 119. b.

Footnote 172:

13 El. cap. 7. 1 Jac. cap. 15.

Footnote 173:

4 Inst. 277 & 278.

Footnote 174:

15 R. 2. c. 2. 8 H. 6. c. 9.

Footnote 175:

Dr. _Stanger_ had before made an unsuccessful application to this
Court. He had obtained a rule calling on the president and fellows of
the college to shew cause why a mandamus should not issue “commanding
them to admit him to examination for admission into the class or order
of candidates for election into the society or fellowship of the said
college.” But as Dr. _Stanger_ had presented himself to the _comitia
minora_ to be examined, which court is constituted by one of the
bye-laws with power only to examine candidates of a certain
description within which Dr. _Stanger_ did not come, this Court in
_Easter_ term 1796 discharged the rule for the mandamus; saying that
it did not appear that Dr. _Stanger_ had a right to be examined by the
_comitia minora_; but that if he had any title as being one of the
_homines facultatis_ under the charter, he should apply to the body at
large. The Court also intimated at that time a strong opinion that the
bye-laws were reasonable and valid.

Footnote 176:

_V._ 1 _Salk._ 193 S. C.

Footnote 177:

_N. B._ Mr. _Nourse_ was in fact a very good Scholar.

Footnote 178:

2 _Wils._ 359.

Footnote 179:

In the close of the first book of _Paulus Zacchias’s famous Quæstiones
Medicolegales_, there is a full discussion of the point of filiation,
as between two husbands, where a woman soon after the death of her
first husband marries a second. The question is raised in these words.
“_Filius mulieris, quæ illico ab obitu conjugis alteri nupsit, et
novem decemve mensium spatio peperit; cujusdam præsumi debeat._” See
Paul. Zacch. lib. 1. tit. 5 _quæstio ultima_. The same point is
investigated in the learned treatise by Alphonsus a Caranza, De Partu
Naturali et Legitimo. See cap. 26. s. 71. The first book of Paulus
Zacchias, who was a physician at Rome, first came out in 1621. The
tract by Alphonsus a Caranza was first published about five years
afterwards.

Footnote 180:

The book here cited is a collection of adjudications in the supreme
court of Friesland. The author was _Johannes a Sande_, who was himself
a senator of that court. An improved edition of the book came out in
1656. The particular case above cited was adjudged 27th October, 1617.
What increases the latitude of the decision for the legitimacy is,
that the husband was for some time a valetudinarian, and for 14 days
before his death confined to his bed. The book being probably rare
amongst English lawyers, and the arguments in the case comprising very
ancient and curious research in a moderate compass on the _ultimum
tempus pariendi_ for women, the whole of Sande’s report of the case
will be given in a note at the end of the present article.

Footnote 181:

_27. Octobris. Anno 1634._

Footnote 182:

See the case of _Carrascola_, the Neapolitan Admiral.

Footnote 183:

For a curious argument on this case see one of the subsequent
pamphlets in Howell.

Transcriber’s Note

This book uses inconsistent spelling and hyphenation, which were retained in the ebook version. Many typographical errors in Latin and French sections were left as printed. Ditto marks and dashes used to represent repeated text have been replaced with the text that they represent. Some corrections have been made to the text, including adapting the spelling in the table of contents and Index to match the main text, and normalizing punctuation.

Page numbering is restarted in the appendix so to page numbers in the appendix have been prefixed with a_.

Further corrections are noted below:

p. 17: from having being intoxicated -> from having been intoxicated Footnote 8: Feb. 7, 16S3 -> Feb. 7, 1683 p. 30: to solve this problemn without -> to solve this problem without p. 35: our chaprer on rape -> our chapter on rape p. 50: be too frequently, or too forcible urged -> be too frequently, or too forcibly urged p. 84: Alhough a child -> Although a child Footnote 48: this law occured at Stafford -> this law occurred at Stafford Footnote 54: physicians from assissting in procuring -> physicians from assisting in procuring p. 96: will be very liable so endanger the life -> will be very liable to endanger the life p. 98: evidence of the orensic physician -> evidence of the forensic physician p. 156: Cave’e case -> Cave’s case p. 172: earliest and lastest periods of -> earliest and latest periods of p. 172: indentity of, 222 -> identity of, 222 p. a_25: the aid Act expressed -> the said Act expressed p. a_38: belonging to the said Corporaration -> belonging to the said Corporation p. a_59: Mystery or Profession of an Apothcary -> Mystery or Profession of an Apothecary p. a_62: ascertaining the skill and abililities -> ascertaining the skill and abilities p. a_64: Certificate of such fitness aad qualification -> Certificate of such fitness and qualification p. a_69: be deemed a Trespassser -> be deemed a Trespasser p. a_70: pass against the Plantiff -> pass against the Plaintiff p. a_74: sive aliquibus Pharmacpœiis -> sive aliquibus Pharmacopœiis p. a_86: nominand’ & sssignand’ & successores -> nominand’ & assignand’ & successores p. a_95: onely are to be undetstood -> onely are to be understood p. a_98: unskilfull or temerarious practice -> unskilful or temerarious practice Anchor position of Footnote 111 assumed Footnote 115 2 Brownl. 201, 202. -> 2 Brownl. 261, 262. Anchor position of Footnote 148 assumed p. a_137: one of the two univerties -> one of the two universities p. a_142: means of constituing a -> means of constituting a p. a_144: but it sufficient to say -> but it is sufficient to say p. a_146: _Mary_ instituled _An Act touching the Corporation of Physicians in_ -> _Mary_ intituled _An Act touching the Corporation of Physicians in_ p. a_147: was repungant to the Statute Laws -> was repugnant to the Statute Laws p. a_148: of their learniug and skill -> of their learning and skill p. a_177: said secretary shall immediarely acquaint -> said secretary shall immediately acquaint p. a_179: To tho Secretary to the Commissioners -> To the Secretary to the Commissioners p. a_193: proper to remove plaintiff home -> proper to remove the plaintiff home p. a_204: evidence in a canse in London -> evidence in a case in London p. a_206: Of this the prothonotory had -> Of this the prothonotary had p. a_207: no additional experiments were necessasy -> no additional experiments were necessary p. a_213: on a trial of legitimancy -> on a trial of legitimacy p. a_213: unless very extroardinary indeed -> unless very extraordinary indeed p. a_213: other precedents and authorites -> other precedents and authorities p. a_219: decimo Augusti, Anuo 1631 -> decimo Augusti, Anno 1631 p. a_222: moribus ac pndicitiâ minimè -> moribus ac pudicitiâ minimè p. a_230: Pesident of the said College -> President of the said College p. a_231: there was no water in the diaphragam -> there was no water in the diaphragm p. a_236: Where those fits owing to any -> Were those fits owing to any p. a_238: slighty dicoloured by a little -> slightly discoloured by a little p. a_238: the Apotheeary produced a powder -> the Apothecary produced a powder p. a_242: Spirits of Vitrol and Salt -> Spirits of Vitriol and Salt p. a_248: A. Who did you receive a message from -> Q. Who did you receive a message from p. a_248: Were did you meet -> Where did you meet p. a_248: the tongue potruding beyond the fore teeth -> the tongue protruding beyond the fore teeth p. a_256: I connot say I did -> I cannot say I did p. a_264: if previous to an epilepy -> if previous to an epilepsy p. a_275: decline giving any opiniou -> decline giving any opinion