Medical Jurisprudence by J. A. Paris and J. S. M. Fonblanque.

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.

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!

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.

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.

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.

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.

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.

362. See An Experimental Inquiry concerning Impregnation, by John Haighton, M.D. Phil. Trans. for 1797, vol. 87, p. 159.

363. De Generatione Animalium.

364. Hunter. Anatomia Uteri Humani Gravidi, Tabulis Illustrata.

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.

366. Burns’ Midwifery, edit. v. p. 197.

367. Denman’s Introduction to Midwifery.

368. Principles of Midwifery, edit. v.

369. Cours de Medicine Legale.

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.)

371. Van Swieten Com. in Boer. tom. vi, p. 330.

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.

373. Roeder. Elem. Art. Obst. p. 52.

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

375. We all remember the extraordinary instance of Johanna Southcote.

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.

377. Dictionaire de Chirur. tom. 1.

378. Traité des Accouchemens.

379. Trattato dei Parti, p. 26.

380. L’Art des Accouchemens.

381. Quick, a word of Saxon origin, signifying living.

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!”

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.

384. De Epidem. Lib. 3.

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

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.

388. Cap. iii, §. 12.

389. Hippocrates Lib. de Septimest. et Octomest. Part. edit. Halleri. See also Aristot. Metaphys. Lib. 1, c. 5.

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.

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.

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.

393. Elements of Juridical Medicine, edit. 2, p. 249.

394. Quæst. Med. Leg. Lib. vii, Q. 2.

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.

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.

398. Phil. Trans. A.D. 1741.

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.)

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.

401. Principles of Midwifery. Edition 5, p. 557.

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.

404. Plinii Hist. Nat. Lib. vi, c. 14.

405. Plott’s Nat. Hist. of Staffordshire, chap. viii, section 3.

406. Elements of Physiology, translated by Kerrison.

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

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

409. Medical Logic. Edit. 2. p. 35.

411. Hippocrates de Super-fœtat: also Epidem. Lib. vii.

412. Aristotle De Generat. Animal. Lib. iv. c. 5.

413. Plinii Hist. Nat. Lib. vii. c. 2.

414. Gaspar Bauhuin. App. ad Lib. de Part. Cæsar. Tit. de Superfœtat.

415. Histoir. Nat. de l’Homme—Puberte.

416. De Hist. Animal. p. 258.

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

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

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

420. De Partu Exercit. p. 547.

421. Element. Physiolog. Tom x. p. 218.

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

423. Element. Physiolog. Tom x. p. 212.

424. Medical Transactions. Vol. iv. p. 161.

425. Phil. Trans. for the year 1818.

426. Opera. Tom. iii. p. 388.

427. Memoir de L’Academie, An. 1701.

428. Append. ad Rousset de P. C.

429. Tabul. Anat. Uteri dupl.

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.

431. De Super-fœtatione.

432. Inst. Med. Leg. p. 77.

433. Dict. d’Anatom. T. ii. p. 537.

434. See Hamilton’s Outlines of Midwifery, p. 105.

435. Hippocrat. Aphorism. Sect. v. 51.

436. Opera Omnia C. 1. p. 302.

437. Anthropologia Forensis, Leip. 1753, p. 208.

438. Institut. Med. For. p. 44.

439. L’Art des Accouchemens.

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.

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

442. Gravel de Superfœtatione—Leipsic Memoirs for 1725—and Teischmeyer Inst. Med. Leg. p. 75.

443. Burns’s Principles of Midwifery, edition 5, p. 250.

445. Introduction to the Practice of Midwifery, 4to p. 395.

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.

447. Medical Facts and Observations, vol. 8.

448. Medico-Chirurgical Transactions, vol. 3, p. 144; and Synopsis of the various kinds of Difficult Parturition, p. 173.

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.

450. Op. citat. p. 152.

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.

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.

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.

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.”

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.

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.

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.

458. Bell’s Surgery, vol. 5, p. 300.

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.

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.

461. Digest. Lib. 11, Tit. 8, L. 2.

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.

463. See a most interesting case of Ovario-gestation, by Dr. Granville, published in the Phil. Trans. 1820.

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.

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

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.

467. See Burn’s Midwifery, edit. 4, p. 189.

468. Baillie Phil. Trans. vol. 79.

469. Anthropolog. Lib. 2, c. 34.

470. Medico-Chirurg. Trans. vol. 10, p. 269.

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.

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.