Chapter 48

257. There is some philosophy as well as considerable humour in the arguments ofLouvetin his celebrated novel, for it is well known that persons of a sedentary and studious habit are seldom excited and easily diverted.

258.Maleficium, Magorum Ars. Maleficus, Incantator. Maleficare, Incantare.4Ducange Gloss.363.

259. On the same principle the College of Physicians of Paris would have suppressed the works ofAmbrose Parè, the celebrated surgeon to three kings; whom, though a Protestant,Charlesthe ninth saved in his own chamber, from the massacre of St. Bartholomew. His workde Generatione, was considered too minute in its details, and too explicit in its language, for general inspection.

260. The defect must exist at the time of the marriage; if it ensue subsequently, it is no ground of divorce.

261. SeeDerham’sPhysico-Theology, vol. 1. p. 260.

262. SeeTraité de Medicine Légale, parF. E. Fodere. tom. I. p. 9.

263. InJohnsonandStevens’sedition byIsaac Reid, we have a long note upon this passage, in which a quotation is introduced from “The Treasury of Ancient and Modern Times,” in order to give an account of the Septenary divisions ofProclus. According to this Greek philosopher, the life of man is divided into seven ages, over each of which one of the seven planets was supposed to preside. “The First Ageis called Infancy, containing the space of foure yeares.The Second Agecontinueth ten yeares, untile he attaine to the yeares of fourteene: this age is called Childhood.—The Third Ageconsisteth of eight yeares, being named by our auncients Adolescie, or Youth-hood; and it lasteth from fourteene, till two-and-twenty yeares be fully compleate.The Fourth Agepaceth on, till a man have accomplished two and fortie yeares, and is tearmed Young Manhood.—The Fifth Age, named Mature Manhood, hath fifteene yeares of continuance, and therefore makes his progress so far as six and fifty yeares. Afterwards in adding twelve to fifty-six, you shall make up sixty-eight yeares, which reach to the end of theSixth Age, and is called Old Age.—The Seaventh, and last of these seaven ages, is limited from Sixty-eight yeares, so far as four score and eight, being called weak, declining, and decrepite age. If any man chance to goe beyond this age (which is more admired than noted in many) you shall evidently perceive that he will returne to his first condition of Infancy againe.”

264.As You Like It, Act 2. Sc. 7.

265. In everySeptenary, says Solon, man receives some sensible mutation; thus in theFirstisDedentition, or falling of teeth;—in theSecond,Pubescence;—in theThird,The Beard groweth;—in theFourth,Strength prevails;—in theFifth,Maturity of Issue;—in theSixth,Moderation of Appetite;—in theSeventh,Prudence.

266. By the Civil LawTwenty-five.

267.Taylor’sCivil Law, 254.

268. SirWilliam Brown’sVulgar Errors. Folio, 1686. p. 173.

269. It appears therefore that theMilkTeeth are divided intoEightIncisores—(The fore or cutting teeth)FourCuspidati(Canine or Eye Teeth) andEightMolares(or Grinders).

270.Richerandhas clearly shewn that this change of voice depends upon the larynx undergoing an increase in capacity; he observes that in the male, at the time of puberty, the aperture of the glottis augments in the proportion of 5 to 10, in the course of twelve months; that its extent is in fact doubled both in length and breadth: that these changes are less strongly marked in woman, whose glottis only enlarges in the proportion of 5 to 7.—Elements of Physiology, translated from the French of A. Richerand, by Robert Kerrison, London, p. 438.

271.Quæst: Med: Leg.—Q.6.

272.AdamsonHereditary Diseases.HaslamonMadness.

273. A question has arisen whether this discharge be a secretion from the internal surface of the uterus, or pure blood; it is now generally admitted that the former is the true theory of its origin, and it is important for the medical jurist to know thatit does not coagulate; in the celebrated case of the murder ofMary Ashford, this fact furnished a useful feature in the evidence; and in other cases that might be cited, the medical witness has been thus enabled to discredit the explanation given by a woman, for the appearance of blood. The average quantity in this country is about four ounces, which is generally about four days in flowing, but this of course is liable to great variation. An opinion has prevailed from the most remote antiquity, that there is something peculiarly malignant and unclean in the nature of this discharge. Haller thinks that this belief was brought from Asia into Europe, by the Arabian physicians; that such an idea should have originated in hot countries is not extraordinary, when we consider how rapidly blood runs into putrefaction under such circumstances. In Africa the women are obliged at these periods to separate themselves from society, and to abstain from the performance of their domestic duties, and even to carry about them some mark, by which others may learn to avoid them. The Jews observed the same practice, and the laws of Moses condemned to death the persons who were discovered to have had sexual intercourse during this period. (Levit. Ch.20.v.18.)

274. The use of the bath hastens puberty, as we find in the example of the Turkish women.—The custom of dancing is said to be attended with a similar effect.

275.LinnæiFlora Lapponica.

276. It has been a question much agitated by the ancients, why females arrive at puberty before males.Hippocratesgives the following as a reason,propter corporis imbecillitatem id evenit puellis, ut citius quam mares pubescant. (Lib. de Sept. part. in fin. et in lib. de nat. puer.)Aristotlealso entertained a similar opinion. (De Generat.animal: cap. 6) andGalenalso adopted it (De Usu part Corp. human).

277.Plinythe Elder, has recorded several histories of children who prematurely arrived at puberty. “It is well known that there be some that naturally are never but a foot and a half high; others again somewhat longer, and to this height they came in three years, which is the full course of their age, and then they die”—Philemon Holland,bookvii.chap.16.—An account is also given byCraterus, the brother of king Antigonus, the subject of which history was anInfant, aYoung Man, and anOld Man, was married and begat children, and all in the space ofSevenyears! In January, 1747, Dr.Meadpresented to the Royal Society the history of a child born at Willingham near Cambridge, which is recorded in the 43dVolume of Transactions, for the year 1745. This child was not only remarkable on account of his bulk and height, but also for theexternal marks of Puberty, which were first observed at the age of twelve months; no evidence however is offered in this case of the perfect developement of the genital organs, their external appearance is alone described, without any regard to the state of their functions. In an account published after his death, it appears that he was attacked by a disease resemblingPhthisis Pulmonalis, and was attended by the late Dr. Heberden, then at Cambridge, of which he died, and after death, says his historian, he had the appearance of a venerable old man.

278.Transactions of the Medico-Chirurg. Society, vol. 1.The following are the particulars of the case ofPhilip Howorth, as related by Mr.White—He was born in Quebec Mews, Portman Square, on Feb. 21, 1806; his parents are middle aged, and poor, but industrious people; the father being a coachman in a gentleman’s service, and the mother employed in nursing and rearing a family of ten children, of which Philip is the ninth: the father is a healthy and muscular man, the mother a middle sized woman, and rather delicate; the rest of the children are of the ordinary stature and appearance. During the mother’s pregnancy with Philip, (which continued the usual length of time) nothing occurred worthy of remark. At the birth, the head of the child was covered with a profusion of hair of considerable length; the sutures of the cranium were closed, not leaving the slightest vestige of a Fontanelle, and he was at this period considered, in point of size and appearance, as a large and healthy child; during the first year he was remarkably healthy, and could at about the 12th month run alone; shortly after this period, a very visible alteration took place, his countenance, which, until now, had been marked with health and infant beauty, lost its round and infantile form, and became long, pale, and extremely ugly, as if affected by the ravages of some bodily malady. These appearances seem to have been the preludes of those remarkable changes which quickly succeeded; at this period Nature made a sudden bound to puberty; the penis and testes were observed to increase in size, and a small number of black, curling hairs, were discovered on the pubes: an evident alteration also took place in the tone of the voice, his cries becoming much hoarser, and more interrupted; the peculiar organic changes which have been described as commencing on the completion of his first year continued to be rapidly increased, and the full developement of the sexual organs was attended with signs of returning health; the features assumed a more manly expression, and the rapid and successive growth of the body became the wonder of all who knew him. Mr. White then proceeds to state that part of his history which fell under his own notice; the first appearance of the boy, says he, is very striking, on account of the manly character so strongly impressed upon his countenance; the chin iswithout beard, but the black headed points of steatomatous matter so remarkable in young men previous to the growth of beard, is very apparent. The Axilla is without hair, but the secretion has the peculiar characteristic odour of the Adult; the pubes and scrotum are covered with black curling hair; the penis and testes are as large as has been seen in some adults, thecorpus spongiosum urethræhaving outgrown thecorpora cavernosa, the penis is curved during erection; the testes are firm and perfect in their appearance, and the chord may be felt very distinctly; the prepuce is easily drawn back over the glans, and the secretion of theglandulæ odoriferæis apparent; the usual brown appearance of the integuments of these parts is also to be observed. “Minime prætereundum est, quod hic puer virilis manstupratione gaudet, et semen ita eliminatum perfectum et bene eleboratum se habet.”This extraordinary subject is now (1822) fifteen years of age, but no farther change has occurred in his habit; he is therefore like other young men of his age, and attends very industriously to the trade of a shoemaker, to which he is apprenticed.

278.Transactions of the Medico-Chirurg. Society, vol. 1.

The following are the particulars of the case ofPhilip Howorth, as related by Mr.White—He was born in Quebec Mews, Portman Square, on Feb. 21, 1806; his parents are middle aged, and poor, but industrious people; the father being a coachman in a gentleman’s service, and the mother employed in nursing and rearing a family of ten children, of which Philip is the ninth: the father is a healthy and muscular man, the mother a middle sized woman, and rather delicate; the rest of the children are of the ordinary stature and appearance. During the mother’s pregnancy with Philip, (which continued the usual length of time) nothing occurred worthy of remark. At the birth, the head of the child was covered with a profusion of hair of considerable length; the sutures of the cranium were closed, not leaving the slightest vestige of a Fontanelle, and he was at this period considered, in point of size and appearance, as a large and healthy child; during the first year he was remarkably healthy, and could at about the 12th month run alone; shortly after this period, a very visible alteration took place, his countenance, which, until now, had been marked with health and infant beauty, lost its round and infantile form, and became long, pale, and extremely ugly, as if affected by the ravages of some bodily malady. These appearances seem to have been the preludes of those remarkable changes which quickly succeeded; at this period Nature made a sudden bound to puberty; the penis and testes were observed to increase in size, and a small number of black, curling hairs, were discovered on the pubes: an evident alteration also took place in the tone of the voice, his cries becoming much hoarser, and more interrupted; the peculiar organic changes which have been described as commencing on the completion of his first year continued to be rapidly increased, and the full developement of the sexual organs was attended with signs of returning health; the features assumed a more manly expression, and the rapid and successive growth of the body became the wonder of all who knew him. Mr. White then proceeds to state that part of his history which fell under his own notice; the first appearance of the boy, says he, is very striking, on account of the manly character so strongly impressed upon his countenance; the chin iswithout beard, but the black headed points of steatomatous matter so remarkable in young men previous to the growth of beard, is very apparent. The Axilla is without hair, but the secretion has the peculiar characteristic odour of the Adult; the pubes and scrotum are covered with black curling hair; the penis and testes are as large as has been seen in some adults, thecorpus spongiosum urethræhaving outgrown thecorpora cavernosa, the penis is curved during erection; the testes are firm and perfect in their appearance, and the chord may be felt very distinctly; the prepuce is easily drawn back over the glans, and the secretion of theglandulæ odoriferæis apparent; the usual brown appearance of the integuments of these parts is also to be observed. “Minime prætereundum est, quod hic puer virilis manstupratione gaudet, et semen ita eliminatum perfectum et bene eleboratum se habet.”

This extraordinary subject is now (1822) fifteen years of age, but no farther change has occurred in his habit; he is therefore like other young men of his age, and attends very industriously to the trade of a shoemaker, to which he is apprenticed.

279.Ibid: vol. 2.

280.Pubertatem autem veteres quidem non solum ex annis sed etiam ex habitu corporis in masculis æstimari volebant. Nostra autem Majestas dignum esse castitate nostrorum temporum existimans, bene putavit: quod in feminis etiam antiquis impudicum esse visum est, id est, inspectionem habitudinis corporis hoc etiam in masculos extendere. Et ideo nostra sancta Constitutione promulgata, pubertatem in masculis post decimum quartum annum completum illico initium accipere disposuimus antiquitatis normam in feminis bene positam, in suo ordine relinquentes ut post duodecim annos completos viri potentes esse credantur.Inst. lib.1.Tit.22. It is singular that the modern Greeks should have retained the delicacy which this law implies; they are perhaps the only nation of Europe in which male chastity is practically ranked among the essential virtues; the surgeons of the Greek Light Infantry might testify to the reluctance with which even the common soldiers submitted to the established inspections.

281.Mahon,Medicine Legale, tom. iii. p. 54.

282.Philosophical Transactionsfor 1805, vol. 95, p. 225. SeeMahon,Med. Leg. tom.ii.p.54. Boerhaave relates the story of a Sow gelder in Spain, who in a fit of passion removed the ovaries of his daughter, and that she in consequence lost all her sexual characters and propensities.

283. See Sir HenryHalford’sPaper on the Climacteric Disease. Med. Trans, vol. iv, p. 316.

284.“A proprement parler, nous vieillissons des l’instant que nous commençons à cesser d’être jeunes; ou plutôt les memes causes qui amènent notre dévelopement préparent notre destruction, dès l’instant même de la naìssance.”FoderéTrait de Medicine Legale, tom. 1, p. 26.

285. This is erroneously supposed to be paralytic, they evidently originate, says Dr. Darwin, from the too quick exhaustion of the lessened quantity of the spirit of animation, for they only exist when the affected muscles are excited into action, as in lifting a glass to the mouth, or in writing, or in keeping the body upright, and cease again, when no voluntary exertion is attempted.

286.Darwin’sZoonomia. Class iii. 2. 1. 2.

287. SeeObservations on a Course of Anatomy ofMarchettiat Paduaby Mr.Ray. Phil. Trans. No. 307, p. 2283.

288.Traite de Anatomie, Tom. iii. p. 29.

289.Spermatol. p. 393.

290.Histor. Anatom. Med. Tom. ii. p. 334.

291.Cours d’Anat. Med. T. v. p. 429.

292.De Situ Testic. alien.

293.Haxbyon retention of the testicles until the fourth year. Dunc. Ann. 1799.

294.Lectures on the Structure and Physiology of the Genital Organs. London, 1821.

295.Boerhaave, in Prop. Institut. Med. T. v. p. 239.

296.Treatise on the Venereal Disease.

297.Morbid Anatomy, Edit. v, p. 371.

298. Lectures on the Genital organs.

299.Page47,platev.

300.Shaw’sTravels, chap.ii.

301.Male’sJuridical Medicine, p. 257.

302.Univers. Journ. of Med. Scien. for October 1811.

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

304.See The case of a pregnant woman, in whom the hymen was found entire at the time of her being seized with labour pains, byN. Tucker, M. D. related in Dr.Merriman’sSynopsis of the various kinds of difficult Parturition, p. 218. See alsoZacceiæQuest. Med. Leg. vol.3,Tit.1,Q.1.—Instituzioni di Medicina Forens, diG. Tortosa, vol. 1, p. 61. In theBulletin de la Societé Medicale d’Emulation for 1819, there is a very curious case related by Dr.Champion, of a woman who became pregnant of two children, notwithstanding the presence of the hymen, and in whomcoitusduring gestation had taken placeper urethram. The obstructing membrane perforated with two minute orifices, which had allowed the escape of the menstrual blood, was opened by a crucial incision; about an ounce of bloody mucus was discharged, and the vagina being naturally dilatable, the children were safely delivered. The firstcoitus per urethramis supposed to have taken place subsequently to conception; the canal was so much dilated as to admit the fore-finger with facility. The author relates many other instances of fecundation,sine penis intromissione.

305.Phil. Trans.vol. xxxii, p. 408.

306.BertrandOpera Chirurg. Tom.I,p.253.

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

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

309.De Partib. Generat. inserv. p.85.

310.Delect. Opuse. Medic. tom.iv,p.313.

311.Edinb. Essays, vol.I,art.35, in which an interesting case of this kind will be found, by Dr. Cockburn.

312.Denman’sMidwifery;Isbrandus de DiemerbroeckAnatom. Lib. I, c. 26;Johannes Nicolaus PecklinusObservat. Med. Phys. Lib. I, c. 25.

313.Marcellus Donatus, De Medica Historia Mirab. Lib. vi, cap. 2;Johannes Riolenus, Art be medendi, sect. iv, tract 2, c. I;Caspar Bauhin, Theatr. Anatom. lib. I, c. 39, et De Hermaphroditis, lib. I, c. 38;Felix Platerus, Observat. lib. I, p. 259-259;HildanusObservat. cent vi, obs. 67;Riolanus(Filius) Enchirid. Anatom. lib. ii, c. 37;Bartholin. Hist. Anatom.cent ii, hist. 31;Astrucon the Diseases of Women, vol. i, p. 126.

314.Nicolaus Tulpius.Observat. lib. iii, cap. 33;Christoph Vœlterus. Schol. Obstetric, part ii, c. 19;Acta Berolinen, dec. ii, vol. v, p. 85;Acta Erudit.Lipsien. ann. 1726, Octob. p. 480;Antonius Benivenius.De Abditis Morb. et sanet. causis, c. 79;Johannes Wierus. Observat. lib. I.

315.Walter.Extirpatio Polyporum semper tentanda, atque curatio eventusque felix sunt expectandi.

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

317.Zitman.Med. Forens. p. 906.

318.Zacchiæ.Quæst. Med. Leg. lib. 9, T. 3, Q. 5:Edinburgh Essays, vol. 3, p. 317;Baillie’sMorbid Anatomy, p. 428.

319.Edinburgh Med. Comm.vol. ii, part 2, case 4.

320. Instit. di Med. For. diTortosa, vol. I, p. 46;Huxhamde Febr. et alia Opusc;Durieu. Diction d’Anatom.;Plenck. Obstetric, p. 137;Schener.De Morbis Intestini Recti, c. iii, sect. 4, (nota5);Richter. Element de Chir, vol. vi, p. 416.

321.PallianiEpist. ad Hall, p. 268;Monteggia. Inst. Chirurg. p. iii, p. 512.

322.Edinburgh Medical Essays, vol. ii, art. 27.

323.Medical Repository.

324.Sauvage.Epist. ad Haller, vol. iii, p. 138;Stalpart. ii, 48, from Opium.

325.Brown’sVulgar Errors, folio, 1686, p. 173.

326.Murray’sApparatus Medicaminum, vol. I, p. 395.

327. Treatise on the Venereal Disease, page 201 to 208.

328.Baumer, Medicin. Forens. p, 135.

329.Montaigne’sEssay on Impotence, chap. xx.

330.MorgagniDe Causis et Sedibus Morborum, Epist. xlvi.

331.Journal des Practische Heilkunst.Memoires de Academie des Sciences.Ann. 1705.Histori, p. 52.

331.Journal des Practische Heilkunst.

Memoires de Academie des Sciences.Ann. 1705.Histori, p. 52.

332. Dr.Gordon Smithrelates a case in which an operation of this kind was performed with success. See hisPrinciples of Forensic Medicine, p. 458.

333.Hamilton’sOutlines of Midwifery, p. 119.

334.Baillie’sMorbid Anatomy.Phil. Trans. vol.91.

335.Denman’sMidwifery.

336. For the ancient distinctions of natural, spurious, and illegitimate children, seeTaylor’s Civil Law, 270.

337. “It is now held that the husband’s being within the four seas, is not conclusive evidence of the legitimacy of the child, and it is left to a Jury to consider whether the husband had access to his wife. See 3P. W.275. 276;Pendrell and Pendrell, 2Stra.925. So evidence may be given, that the husband’s habit of body was such, as to make his having children an impossibility.Lomax v. Holmden, 2Stra. 940: see also 1Roll. Abr.358; 1Salk.123. But the rule laid down by LordCoke, was once generally received. InJenk.c. 10. pl. 18. it is said “that if the husband be in Ireland for a year, and the wife in England during that time has issue, it is a bastard; but it seems otherwise now for Scotland, both being under one king, and make but one continent of land.” (Co. Litt.244.) and see alsoCo. Litt.126.n.2. and authorities there quoted. Dr.Ridley’sview of the civil and ecclesiastical law, and the proceedings in the House of Lords 1811, on the Banbury Peerage, where this point was much discussed.”

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

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

340. See note 1Bl. Com.p. 456.

341. The children ofJohn of Gaunt, Duke of Lancaster, byCatherine Swinford, though born in adultery, he being then married, were legitimised by Act of Parliament in 1397; the Duke having married his mistress in the preceding year; see 9Froisard’s Chron.225.

342. See the case of Sergison & Sergison. 1820.

343. See the Journals of the House of Lords, and also Speeches and arguments &c. of the Lords of Session in Scotland in theDouglastrial.London, 1767.

344. For theAnnesleytrials, see 17 & 18Howel. St. Tri.andHarg. St. Tri.

345. SeeZacchii Questions Med. Leg. lib.1.tit.5.De similitudine et dissimilitudine Natorum.Dr.Gregory, the late distinguished Professor of Edinburgh, used to relate to his class, in order to convince them of the resemblance which so generally exists between parents and children, that having been once called to a distant part of Scotland, to visit a rich nobleman, he discovered in the configuration of his nose, an exact resemblance to that of the Grand Chancellor of Scotland, in the reign ofCharles the First, as represented in his portraits. On taking a walk through the village after dinner, the Doctor recognised the same form of nose in several individuals among the country people; and the nobleman’s steward, who accompanied him, informed him that all the persons he had seen were descended from the bastards of the Grand Chancellor.

345. SeeZacchii Questions Med. Leg. lib.1.tit.5.De similitudine et dissimilitudine Natorum.

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

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

347. It cannot however be denied that most astonishing likenesses sometimes exist between persons utterly unconnected by blood or habit, of this we shall have occasion to speak more fully when treating of personal Identity. The name ofDouglassuggests a remarkable instance; Mr.Frank Douglas, a well-known man of fashion, was committed for highway robbery on the positive oath of one of the parties plundered, and very narrowly escaped conviction. On the apprehension of the notorious highwaymanPage, the mystery was explained, the personal resemblance being so great, as to deceive all ordinary observation. SeePart3. ofPersonal Identity.

348.Harg. Coke Lit. p.29.Chap.4.Sec.35.

349. This law however prevails both in Scotland & Ireland.Co. Litt.30.

350. But it has been doubted whether the child may not be heard to cryin utero; Mr.Derham(Phil. Trans.vol. 26. p. 485) has given an account of a case ofVagitus Uterinus, in which the child is said to have cried for near five weeks before delivery, and what is equally extraordinary, the author professes to credit the story!Etmuller, in his Dissertation “De abstruso respirationis humanæ negotio,” c. 9. agrees withDiemerbroeckin considering such a phenomenon as impossible, and attributes the noise to flatulence. The learnedVerzaschaof Basil gives a long catalogue of cases ofVagitus Uterinus, in his thirdObserv. Medic.see also Dr.Needham’swork “De formato fœtu.”—Christian II.King of Denmark, is said to have cried before he was born. We must, however require very powerful testimony to shake our incredulity upon this subject, and we should then be rather inclined to believe the event with Livy, as a prodigy of Nature, than to consider it, with Derham, as a natural phenomenon.

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

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

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

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

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