Chapter 52

609. See case ofMarie-anne Jauffret, A. D. 1779, (Foderé, vol. iii, p. 200) where also see other cases in illustration of this curious subject.Foderèalludes to some cases where in consequence of combustion, possibly spontaneous, persons have been accused and condemned for murder.Tom.3,p.204. See alsoMaclaurin’s Crim. Ca. p.177n.and 754.

610. The law of England justifies a woman killing one who attempts to ravish her.Bac. Elem. p.34. 1Hawk. P.C. c.38.s.21. and so too the husband or father (query also a brother or guardian,in loco parentis) may justify killing a man who attempts a rape upon his wife or daughter; but not if he takes them in adultery by consent, for the one is forcible and felonious, but not the other. 1Hales P.C.485. (yet this homicide may be excusable though not justifiable. See 1Hawk. P. C. c.28.s.3.) And there seems no doubt but the forcibly attempting a crime of a still more detestable nature, may be equally resisted by the death of the unnatural aggressor. For the one uniform principle that runs through our own, and all other laws, seems to be this; that where a crime, in itself capital, is endeavoured to be committed by force, it is lawful to repel that force by the death of the party attempting.Bl. Comm. c.14.

611. This statute was passed in consequence of a Wager of Battle offered byAbraham Thornton, appealed for the murder ofMary Ashford. The decision of causes by combat was always absurd, and it was certainly full time that it should be abolished; but it is not equally evident that the appeal ought to have been taken away altogether, especially in cases of murder. The preamble of the Act states the proceeding to “have been found to be oppressive;” certainly it was also rare; in above one hundred years there had been only one execution on appeal, and when the case of theKennedies(seeBigby v. Kennedy, 5Bur.2648) is considered, it may fairly be doubted whether some constitutional check ought not to have been retained against the misdirection of the Royal prerogative. See also the case ofM‘Quirkfor the murder of Mr.Clarke.

612. The injuries thus occasioned, consist in rupture of the hymen, swelling, contusion, inflammation, or laceration of the parts, discharge of blood; and in persons of extreme youth, the laceration of the perineum is said to have sometimes occurred; and as Rape cannot be completed without considerable violence, we should also expect to find marks of force in other parts of the body, such as bruises about the arms and thighs; but in appreciating the value of such indications, let the practitioner remember, that the greater part of them may occur where the connexion has taken place with the consent of the female, or they may even be the effect of disease. Dr.Percivalrelates a case where the inflammation of the pudenda, and symptoms of defloration occurred in a child four years old, which occasioned her death; there were strong reasons for suspecting that she had been injured by a boy of fourteen years of age, and he was accordingly taken into custody; but the case received elucidation from several others of a similar nature having been shortly afterwards received into the same hospital, and of whose nature no doubt could be entertained. When Rape has been committed, gonorrhœa, or lues venera are sometimes communicated, especially in cases of young children, in consequence of a very general opinion among the lower libertines of the male sex, that the best possible cure for this disease, is intercourse with a virgin; if then the accused should be found free from disease, where the female is contaminated, and vice versa, it affords a strong presumption of his innocence; in conducting, however, such an investigation, there are several sources of fallacy, with which it is the duty of the medical enquirer to be fully acquainted; he should know, that purulent discharges, from other causes, do take place in children; and on the other hand that a person, in whom no appearance of existing venereal infection can be discovered, may communicate disease to others; this fact was ascertained by Mr.John Hunter, and its truth has been satisfactorily confirmed by the repeated observations of succeding surgeons. Women labouring under leucorrhœa may impart a discharge to the male; and Dr.Maleobserves, that the latter, affected by a gleety discharge in consequence of strictures, and other irritations in the urethra, may also affect the females.

613.Enfin il faut adjouter la comparison de l’organe offensant avec l’organe offensé; car, ainsi que dans les autres blessures, il n’est pas indifférent ici de présenter l’instrument à la plaie dont on le suppose coupable, 4Fod. p.359.

614. In this case it was stated that the law of France did not make any distinction between debauching a child under twelve, or a woman at maturity. However this may have been, the cases afterwards quoted shew that the breach of trust was severely visited on two priests.Arrêt du Parliament de Grenoble, qui condamna un prêtre d’être pendu, puis brulé, pour avoir abusé du sacrament de confession, porté ses mains sur le sein et autres parties de plus de cent femmes, pendant qu’il confessoit.

615. In France this crime is visited with additional severity when committed by a person in trust, or by a Clergyman;Penal Code, art.333. This principle of apportioning punishment is recognised in our laws of Petit-treason, and robbery by servants: it might be well extended to Rape.

616. See also the case ofJohn Church, convicted of an abominable attack. On the expiration of two years imprisonment to which he was sentenced, he resumed his methodistic (we cannot call them clerical) functions, and is now attended by large congregations, especially of old women!!!

617. See also 1East. P.C.441. and cases there.

618. Vide ante.p.185.

619.Elle a infiniment plus de moyens pour se defendre que l’homme n’en a pour attaquer, ne fût ce que le movement continuel: Une Reine éluda autrefois l’accusation d’une plaignante: elle prit un fourreau d’épée, et le remuant toujours, elle fit voir à la dame qu’il n’etait pas possible de mettre l’épée dans le fourreau.4Foderè, 358.

620. Virginity in females has been very differently estimated by different nations; in the first ages of the Christian church so highly was it honoured and esteemed, that women were admitted to make solemn vows of it in public; and yet among the Jews it was held infamous for a woman to die a maid. In Peru and several other provinces in South America, we are assured byPedro de Cieca, in the history of the Incas, &c. that men never marry, but on condition that the next relation or friend of the maid shall undertake to take away her virginity; and our countryman,Lawson, relates the like of some of the Indian nations of Carolina—So little is theFlos Virginisvalued in some places!De virginitatis signis.This has been a very favourite subject with the speculative writers of both ancient and modern times, but none appear to have come to any very satisfactory result upon the question; nor is it even yet agreed in what the quality consists; some will have it a moral, others a purely corporeal qualification. “Porro virginitas, dicit Zacchias, si magis materialiter sumatur, nihil aliud est quam naturalis constitutio et cohœrentia vasorum mulibrium, quæ sic accepta potest facillime amitti; destructa enim vel manibus, vel alio quocumque instrumento naturali constitutione et cohœrentia earum partium, illico destructa dicitur et ipsa virginitas.” 2M. L. 1.4.tit.2. If the wordsculpa muliebri, aut coitu virili, had been added, we might have acceded to the latter part of this definition; the matter however is rather one of etymological curiosity, than of medical jurisprudence, and therefore we shall proceed to quote from the best authorities we have been able to discover on the subject, the various signs by which this state may be ascertained; with this reservation always of our own opinion, that though the presence of all the enumerated circumstances may be taken as sufficient proof of virginity, the absence of some or many of them, especially if explained by physical causes, is no evidence to the contrary. “Le fanciulle sane ed intatte hanno le parte esterne della generazione dure, sode, lucide, e di un colore incarnato; l’imene intero; le labra della vulva bene unite; le nimfe picciole e coperte; la clitoride col preperzio corto; le rughe della vagina eminenti, apparente e fra loro contigue; i seni mucosi profondi; l’orifizio dell’ uretra angustissimo. Lasciando a parte i ridicoli segni tolti dai peli del petigone più o meno crespi, dalla sibilosa escrizione delle orine; dalla voce; dalla grosseza del collo; dal odorato, come vien detto di un bravo Religioso di Praga che al solo odore sapea distinguere una vergine donna da una deflorata; dal resultato degli sperimenti fatti colla polveri di agata, di succino, di ambra, che legonsi appresso molte Scrittori, che se divertono con bagatelle: noi divideremo i sobraesposti segni di virginità in primarj ed in secondarj. Tra i primi, creduti i meno fallaci si contano le rugosità della vagina lumide e spesse; l’oscula della medesima angusto; l’imene presente; ed il frenulo alto e molto teso.” Such are the signs laid down byTortosa, vol. 2. p. 4.; followingNessi,Zacchias, andRœderer; the writer then proceeds to examine each of these circumstances with considerable minuteness.

De virginitatis signis.This has been a very favourite subject with the speculative writers of both ancient and modern times, but none appear to have come to any very satisfactory result upon the question; nor is it even yet agreed in what the quality consists; some will have it a moral, others a purely corporeal qualification. “Porro virginitas, dicit Zacchias, si magis materialiter sumatur, nihil aliud est quam naturalis constitutio et cohœrentia vasorum mulibrium, quæ sic accepta potest facillime amitti; destructa enim vel manibus, vel alio quocumque instrumento naturali constitutione et cohœrentia earum partium, illico destructa dicitur et ipsa virginitas.” 2M. L. 1.4.tit.2. If the wordsculpa muliebri, aut coitu virili, had been added, we might have acceded to the latter part of this definition; the matter however is rather one of etymological curiosity, than of medical jurisprudence, and therefore we shall proceed to quote from the best authorities we have been able to discover on the subject, the various signs by which this state may be ascertained; with this reservation always of our own opinion, that though the presence of all the enumerated circumstances may be taken as sufficient proof of virginity, the absence of some or many of them, especially if explained by physical causes, is no evidence to the contrary. “Le fanciulle sane ed intatte hanno le parte esterne della generazione dure, sode, lucide, e di un colore incarnato; l’imene intero; le labra della vulva bene unite; le nimfe picciole e coperte; la clitoride col preperzio corto; le rughe della vagina eminenti, apparente e fra loro contigue; i seni mucosi profondi; l’orifizio dell’ uretra angustissimo. Lasciando a parte i ridicoli segni tolti dai peli del petigone più o meno crespi, dalla sibilosa escrizione delle orine; dalla voce; dalla grosseza del collo; dal odorato, come vien detto di un bravo Religioso di Praga che al solo odore sapea distinguere una vergine donna da una deflorata; dal resultato degli sperimenti fatti colla polveri di agata, di succino, di ambra, che legonsi appresso molte Scrittori, che se divertono con bagatelle: noi divideremo i sobraesposti segni di virginità in primarj ed in secondarj. Tra i primi, creduti i meno fallaci si contano le rugosità della vagina lumide e spesse; l’oscula della medesima angusto; l’imene presente; ed il frenulo alto e molto teso.” Such are the signs laid down byTortosa, vol. 2. p. 4.; followingNessi,Zacchias, andRœderer; the writer then proceeds to examine each of these circumstances with considerable minuteness.

621. Many of the judges denied that carnal knowledge was necessary to be laid in the indictment; but only that the defendant ravished the party.Hill’scase.Tr. Term, 1781.

622.M. Capuron, in hisMedicine Legale relative a l’art des Accouchemens, published atParis, 1821, enters with some minuteness into the discussion of these signs; and comes to the conclusion, that we shall endeavour to impress upon the reader, that no one of the signs is in itself sufficient to establish the fact; nor is the absence of all, conclusive against its existence; all that the most experienced medical observer can do, is to shew a strong probability, which united to moral evidence of the character and conduct of the party, will amount to proof. Χρη παντα θεασασθαι τα σημεῖα, και μη πιστευειν ενι.Respect for the Jewish ritual,Deut.c. 22. has led a great part of mankind into an error on this subject, and as it is one which has too often destroyed matrimonial confidence, by exciting unjust suspicions, we think it worthy of notice here, though not immediately necessary to our subject. “L’hymen a été considéré comme le sceau de la virginité physique. Mais pour admettre un pareil signe, il faudroit qu’il existât naturellement chez toutes les vierges sans exception, et qu’il ne se recontrât jamais chez celles qui auraient été deflorées; en un mot, qu’il ne pût être détruit ou effacé que par la copulation. D’abord la membrane dont nous parlons n’est pas universelle. A la vérité, on ne peut contester qu’elle exist chez la plûpart, même chez le plus grande nombre des vierges; celà est confirmé par le temoignage deMorgagni,de Haller,de Diermerbroeck,de Riolan,de Bartholin,de Heisteret de Ruisch.—Dulaurans,Bohn,Dionis,de la Mothe,Buffon,Palfin,Fallope,Vesale,Colomb,Mahon,etc. en ont formellement nié l’existance. [Nous pouvons certifier nous-même ne l’avoir point trouvée chez plusieurs petites filles, immediatement après leur naissance, tandis que nous l’avons recontrée, sous la forme d’un anneau qui bordait l’orifice du vagin, chez une femme célibataire de soixante-cinq ans. * * on le peut rencontrer, non seulement chez les filles deflorées, mais encore chez des femmes enceintes, et pres d’être meres!! Gavard rapporte l’example d’une fille de treize ans qui avait gagné la maladie vénérienne dans un lieu public, et qui neanmoins conservait encore cette marque de virginité. Severin Pineau assure aussi que deux jeunes personnes reçurent, dans le temps des règles, les embrassemens d’un homme sans éprouver la moindre dechirure de l’hymen. On conçoit en effet avecTeichmeieretBrendelque celà est très possible dans le temps de la menstruation; car alors l’orifice du vagin devenant plus souple et plus large qu’à l’ordinaire, peut admettre plus facilement le membre de l’homme qui peut être aussi fort petit: ajoutons à cela que l’hymen, surtout quand il est de forme semi-lunaire, humecté et remolli par l’ecoulement du sang menstruel, peut offrir moins de resistance, ceder et s’appliquer à la surface interne du vagin, et permettre la copulation sans se rompre.Mauriceaua cité plusieurs femmes enceintes dont l’hymen etait dans son intégrité.Ruischparle d’une femme dont la delivrance était empêchée, non-seulement par l’hymen, mais encore par une autre membrane non naturelle. On trouve des faits analogues dansMeckeletWalter.Beaudelocquerapporte l’observation d’une femme primipare, dont l’hymen fut déchiré brusquement par la tête de l’infant. Nous avons vu nous-même, la resistance de l’hymen, ou nous n’aperçumes qu’une tres petite ouverture qui avait sans doute permis la fecondation. Nous incisâmes cette membrane avec le bistouri, et la patiente mit au monde très peu de temps après, deux jumeaux vivans et de grandeur ordinaire.”Capuron. P.2.quest.1.

Respect for the Jewish ritual,Deut.c. 22. has led a great part of mankind into an error on this subject, and as it is one which has too often destroyed matrimonial confidence, by exciting unjust suspicions, we think it worthy of notice here, though not immediately necessary to our subject. “L’hymen a été considéré comme le sceau de la virginité physique. Mais pour admettre un pareil signe, il faudroit qu’il existât naturellement chez toutes les vierges sans exception, et qu’il ne se recontrât jamais chez celles qui auraient été deflorées; en un mot, qu’il ne pût être détruit ou effacé que par la copulation. D’abord la membrane dont nous parlons n’est pas universelle. A la vérité, on ne peut contester qu’elle exist chez la plûpart, même chez le plus grande nombre des vierges; celà est confirmé par le temoignage deMorgagni,de Haller,de Diermerbroeck,de Riolan,de Bartholin,de Heisteret de Ruisch.—Dulaurans,Bohn,Dionis,de la Mothe,Buffon,Palfin,Fallope,Vesale,Colomb,Mahon,etc. en ont formellement nié l’existance. [Nous pouvons certifier nous-même ne l’avoir point trouvée chez plusieurs petites filles, immediatement après leur naissance, tandis que nous l’avons recontrée, sous la forme d’un anneau qui bordait l’orifice du vagin, chez une femme célibataire de soixante-cinq ans. * * on le peut rencontrer, non seulement chez les filles deflorées, mais encore chez des femmes enceintes, et pres d’être meres!! Gavard rapporte l’example d’une fille de treize ans qui avait gagné la maladie vénérienne dans un lieu public, et qui neanmoins conservait encore cette marque de virginité. Severin Pineau assure aussi que deux jeunes personnes reçurent, dans le temps des règles, les embrassemens d’un homme sans éprouver la moindre dechirure de l’hymen. On conçoit en effet avecTeichmeieretBrendelque celà est très possible dans le temps de la menstruation; car alors l’orifice du vagin devenant plus souple et plus large qu’à l’ordinaire, peut admettre plus facilement le membre de l’homme qui peut être aussi fort petit: ajoutons à cela que l’hymen, surtout quand il est de forme semi-lunaire, humecté et remolli par l’ecoulement du sang menstruel, peut offrir moins de resistance, ceder et s’appliquer à la surface interne du vagin, et permettre la copulation sans se rompre.Mauriceaua cité plusieurs femmes enceintes dont l’hymen etait dans son intégrité.Ruischparle d’une femme dont la delivrance était empêchée, non-seulement par l’hymen, mais encore par une autre membrane non naturelle. On trouve des faits analogues dansMeckeletWalter.Beaudelocquerapporte l’observation d’une femme primipare, dont l’hymen fut déchiré brusquement par la tête de l’infant. Nous avons vu nous-même, la resistance de l’hymen, ou nous n’aperçumes qu’une tres petite ouverture qui avait sans doute permis la fecondation. Nous incisâmes cette membrane avec le bistouri, et la patiente mit au monde très peu de temps après, deux jumeaux vivans et de grandeur ordinaire.”Capuron. P.2.quest.1.

623. In entering upon a disquisition on the tests of virginity, it is hardly necessary to enumerate the many absurd marks related by the more credulous, as indicative of recent defloration, such as, swelling of the neck, rings around the eyes, the colour of the skin and urine, &c. nor is it necessary to enter into a refutation of the story, credited byMahon, of a monk at Prague who could tell a maid by the smell. We shall therefore proceed at once to consider the value of that test which most commonly passes among us as the least equivocal mark of virginity, viz. the presence of a peculiar membrane termed theHymen.The Hymen(so named from the Greek word ὑμην, a membrane) is formed by four angular duplicatures of the membrane of the vagina, the union of which may be discovered by corresponding lines on the hymen. At the upper part there is a semilunar vacancy, intended for the transmission of the menses, so that it assumes the form of a crescent: a circumstance which affords the true explanation of the origin and meaning of the symbol so characteristically assigned toDiana. (SeeJ. G. F. Tolbeng, de varietate hymenum. Hal.1791, 4to.) In some rare cases, the hymen is an imperforate circular membrane, attached to the edge of the orifice of the vagina in every part, so as to close the canal completely, (we have already noticed this fact under the subject of Impotence, p.207). The girls, in whom this fault of conformation existed, were called by the Greeks ἁτρηταὶ; physicians who have written in Latin amongst us, have given them the name ofImperforatæ,clausæ, orvelatæ; and the Italians that ofCoperchiate. The Romans had no appropriate word to denote this malformation, and they were therefore obliged to express it by some circumlocution; it is thus thatCicero(De Divinat: Lib.II.) speaks of a dream, where a woman was seen, “quæ obsignatam habebat nuturam;” and thatPliny(Hist. Nat. Lib.VII.c.16) relates,Cornelius, the mother of theGracchi, “concreta genitali nata fuerat.” In many cases the membrane appears never to have been formed; while in others, its extreme tenacity has occasioned its rupture and destruction in early life; it may, moreover, have been destroyed by disease, by noxious habits, or by acrimonious discharges. This extreme uncertainty has led many authors, of no inconsiderable eminence, to deny its existence, while others have acknowledged its occasional presence, but have attributed its formation to disease.Graaf,Penius,Buffon,Dionis, declare that, by dissection of girls of all ages, they have never been able to discover it; on the other hand, the reality of this membrane has been maintained byBerenger de Corpi(In Isagoge Anatomica),Vesalius(De Corp. hum. fabric.v.c.15.)Fallopius(In Observat. Anatom.)Volcherus Coiterus(In Tabul. Anatom.)Varolius(Anatom. Lib.iv.c.4).Riolanus(Anthropog. Lib.1,c.16).Bartholin(Anat. Lib.1.c.31).Weirus(Observat. Lib.1.et de Lamiis Lib.iii.c20).Spigelius(De Hum. Corp. fabrica Lib.viii.c.18).Diemerbroeck(Anatom. Lib.1.c.16).Swammerdam(De Uteri Mulieb. fabrici).Techmeyer(Institut. Medicin. Legal et Forens. c.iv.) and all the more learned and able anatomists of the sixteenth and seventeenth centuries.Heister(Compend. Anatom.andEphem. Nat. Curios. Cent.viii.Observ.69).Frederic Ruysch(Thes. Anatom.iii.No.15; vi.No.vii.No.60.)Morgagni(Adversaria Anatom.i. 29-iv. 23.) andWinslow(Exposit. Anatom. No.653), all describe this membrane, and assert that they have found it in every young girl they have had occasion to examine.Astruc(On the diseases of Women, vol.1.p.123), in referring to the above learned authorities, observes that, “the inference must necessarily be, that those who deny ever to have seen it, must either have examined only such girls as had lost their virginity; or, prepossessed with the false notion that thehymenmust always close the entrance to thevaginaentirely, they have mistaken it at the time it was before their eyes, and have even sometimes given the description of it, without mentioning the name.” After this literary history of the question, we may very safely conclude, that theHymenis a perfectly natural structure, occurring in the virgin, and that by sexual intercourse it is ruptured; after which it is shrivelled into several small excrescences at the orifice of the urethra, called theCarunculæ Myrtiformes. But since it is liable to such variations in appearance, and to accidental rupture from the slightest causes, its absence can never be received as evidence of defloration; nor can its presence be considered as an unequivocal proof of virginity; for it has been asserted by indisputable authority, that it is not always rupturedin Coitú.Ruyschhas said, that if the coitus take place immediately after the menstrual excretion, this membrane is often not ruptured, (Observ. Anat. Chirurg.xxii). And we have already alluded to cases, wherein the Hymen was actually entire at the time of delivery. (See p.203, andnote.)Some authors have talked of the renewal of the hymen after its rupture; this we apprehend can never happen, although a spurious reparation of certain local consequences, incident to the loss of virginity, may certainly occur from the effects of adhesive inflammation.Having thus disposed of the subject of Hymen, we next come to consider the state of the Vagina, as an indication of Virginity, upon which some authors have attached considerable weight, especially the Italian medico-juristTortosa. In a healthy virgin it ought certainly to be rigid and narrow, since the only function which it has to perform is that of giving transit to the menstrual flux: the parts may however become dilated, and their natural rugæ be obliterated from various innocent causes. Certain mal-practices will likewise occasion the same relaxation as sexual intercourse. Some authors have considered a rigidity of thefrenum labiorum, at the inferior, orposterior commissureof thepudenda, as a proof, if not of virginity, of a rare indulgence in sexual intercourse. The Mosaic test of Virginity, the effusion of blood, however conclusive it might have been among the Jews, certainly cannot be received as unexceptionable in these Northern climates. The Jews, it would seem, placed so much reliance upon appearances, that the nuptial sheets were constantly viewed by the relations on both sides; and the maid’s parents preserved them as a token of her virginity, to be produced in case her husband should ever reproach her upon that subject. In case the token of virginity was not found on them, she was to be stoned to death at her father’s door. This evidence is still required by some of the tribes inhabiting the banks of the Indus.—Pottinger’s Travels, p.70. In some cases the effusion of blood during the first act of coition, is very considerable, and is liable to be confounded with theCatamenia; we have however already observed (p.187,note) that the menstrual excretion does not, in its natural state coagulate; and yet this assertion requires some qualification; for it is well known, that when the discharge is superabundant and attended with great pain, it often comes away in coagula, in which case there is probably an admixture of common blood.From what has been here related, we are bound to conclude, that there does not exist any anatomical sign, by which the virginity of a female can be unequivocally determined. By midwives and matrons however, the subject has been treated with less diffidence; in the statutes of the sworn matrons, or midwives of Paris, containing likewise divers formulæ of reports, and depositions made in court, upon their being called to visit girls that made their complaint of being deflowered, they laid down fourteen marks on which to form a judgment.Laur. Joubart, a celebrated physician of Montpellier, has transcribed three of these reports—one made to the Provost of Paris, another in Languedoc, and a third in Berne.

The Hymen(so named from the Greek word ὑμην, a membrane) is formed by four angular duplicatures of the membrane of the vagina, the union of which may be discovered by corresponding lines on the hymen. At the upper part there is a semilunar vacancy, intended for the transmission of the menses, so that it assumes the form of a crescent: a circumstance which affords the true explanation of the origin and meaning of the symbol so characteristically assigned toDiana. (SeeJ. G. F. Tolbeng, de varietate hymenum. Hal.1791, 4to.) In some rare cases, the hymen is an imperforate circular membrane, attached to the edge of the orifice of the vagina in every part, so as to close the canal completely, (we have already noticed this fact under the subject of Impotence, p.207). The girls, in whom this fault of conformation existed, were called by the Greeks ἁτρηταὶ; physicians who have written in Latin amongst us, have given them the name ofImperforatæ,clausæ, orvelatæ; and the Italians that ofCoperchiate. The Romans had no appropriate word to denote this malformation, and they were therefore obliged to express it by some circumlocution; it is thus thatCicero(De Divinat: Lib.II.) speaks of a dream, where a woman was seen, “quæ obsignatam habebat nuturam;” and thatPliny(Hist. Nat. Lib.VII.c.16) relates,Cornelius, the mother of theGracchi, “concreta genitali nata fuerat.” In many cases the membrane appears never to have been formed; while in others, its extreme tenacity has occasioned its rupture and destruction in early life; it may, moreover, have been destroyed by disease, by noxious habits, or by acrimonious discharges. This extreme uncertainty has led many authors, of no inconsiderable eminence, to deny its existence, while others have acknowledged its occasional presence, but have attributed its formation to disease.Graaf,Penius,Buffon,Dionis, declare that, by dissection of girls of all ages, they have never been able to discover it; on the other hand, the reality of this membrane has been maintained byBerenger de Corpi(In Isagoge Anatomica),Vesalius(De Corp. hum. fabric.v.c.15.)Fallopius(In Observat. Anatom.)Volcherus Coiterus(In Tabul. Anatom.)Varolius(Anatom. Lib.iv.c.4).Riolanus(Anthropog. Lib.1,c.16).Bartholin(Anat. Lib.1.c.31).Weirus(Observat. Lib.1.et de Lamiis Lib.iii.c20).Spigelius(De Hum. Corp. fabrica Lib.viii.c.18).Diemerbroeck(Anatom. Lib.1.c.16).Swammerdam(De Uteri Mulieb. fabrici).Techmeyer(Institut. Medicin. Legal et Forens. c.iv.) and all the more learned and able anatomists of the sixteenth and seventeenth centuries.Heister(Compend. Anatom.andEphem. Nat. Curios. Cent.viii.Observ.69).Frederic Ruysch(Thes. Anatom.iii.No.15; vi.No.vii.No.60.)Morgagni(Adversaria Anatom.i. 29-iv. 23.) andWinslow(Exposit. Anatom. No.653), all describe this membrane, and assert that they have found it in every young girl they have had occasion to examine.Astruc(On the diseases of Women, vol.1.p.123), in referring to the above learned authorities, observes that, “the inference must necessarily be, that those who deny ever to have seen it, must either have examined only such girls as had lost their virginity; or, prepossessed with the false notion that thehymenmust always close the entrance to thevaginaentirely, they have mistaken it at the time it was before their eyes, and have even sometimes given the description of it, without mentioning the name.” After this literary history of the question, we may very safely conclude, that theHymenis a perfectly natural structure, occurring in the virgin, and that by sexual intercourse it is ruptured; after which it is shrivelled into several small excrescences at the orifice of the urethra, called theCarunculæ Myrtiformes. But since it is liable to such variations in appearance, and to accidental rupture from the slightest causes, its absence can never be received as evidence of defloration; nor can its presence be considered as an unequivocal proof of virginity; for it has been asserted by indisputable authority, that it is not always rupturedin Coitú.Ruyschhas said, that if the coitus take place immediately after the menstrual excretion, this membrane is often not ruptured, (Observ. Anat. Chirurg.xxii). And we have already alluded to cases, wherein the Hymen was actually entire at the time of delivery. (See p.203, andnote.)

Some authors have talked of the renewal of the hymen after its rupture; this we apprehend can never happen, although a spurious reparation of certain local consequences, incident to the loss of virginity, may certainly occur from the effects of adhesive inflammation.

Having thus disposed of the subject of Hymen, we next come to consider the state of the Vagina, as an indication of Virginity, upon which some authors have attached considerable weight, especially the Italian medico-juristTortosa. In a healthy virgin it ought certainly to be rigid and narrow, since the only function which it has to perform is that of giving transit to the menstrual flux: the parts may however become dilated, and their natural rugæ be obliterated from various innocent causes. Certain mal-practices will likewise occasion the same relaxation as sexual intercourse. Some authors have considered a rigidity of thefrenum labiorum, at the inferior, orposterior commissureof thepudenda, as a proof, if not of virginity, of a rare indulgence in sexual intercourse. The Mosaic test of Virginity, the effusion of blood, however conclusive it might have been among the Jews, certainly cannot be received as unexceptionable in these Northern climates. The Jews, it would seem, placed so much reliance upon appearances, that the nuptial sheets were constantly viewed by the relations on both sides; and the maid’s parents preserved them as a token of her virginity, to be produced in case her husband should ever reproach her upon that subject. In case the token of virginity was not found on them, she was to be stoned to death at her father’s door. This evidence is still required by some of the tribes inhabiting the banks of the Indus.—Pottinger’s Travels, p.70. In some cases the effusion of blood during the first act of coition, is very considerable, and is liable to be confounded with theCatamenia; we have however already observed (p.187,note) that the menstrual excretion does not, in its natural state coagulate; and yet this assertion requires some qualification; for it is well known, that when the discharge is superabundant and attended with great pain, it often comes away in coagula, in which case there is probably an admixture of common blood.

From what has been here related, we are bound to conclude, that there does not exist any anatomical sign, by which the virginity of a female can be unequivocally determined. By midwives and matrons however, the subject has been treated with less diffidence; in the statutes of the sworn matrons, or midwives of Paris, containing likewise divers formulæ of reports, and depositions made in court, upon their being called to visit girls that made their complaint of being deflowered, they laid down fourteen marks on which to form a judgment.Laur. Joubart, a celebrated physician of Montpellier, has transcribed three of these reports—one made to the Provost of Paris, another in Languedoc, and a third in Berne.

624.Mahonmentions an instance in which he found a membrane at a finger’s breadth within the vagina,Med. Leg.tom. 1. p. 118.

625. “Qualis imperfectus tamen coitus, quo mentula vaginæ uterique orificio quodammodo tantum applicatur, hoc sub illius affrictione titillatur ipsique semen virile adspergitur, juxta diversorum Autorum observationes Medicas, ad impregnationem Mulieris alicujus interdum sufficit. Valentini Novella Medico legales,” vol. 1. p. 33.

626. ButcontraseeHale P. C.628 & 8Inst.58.

627. The period and manner of mutilation have considerable influence on the effects of the process. The complete removal of all the external organs is a much more decisive method of annihilating the propensities connected with them, than any partial amputation, or compression, or ligature of the spermatic cords—“Si soli testiculi abscissi fuerint, non auferuntur desideria; imo sunt valde magna, in quibus peccare possunt ... sed possunt deflorare quamcunque mulierem, nullam tamen impregnare.1.Valent. Pand. p.136, vide etiam a p. 62, usque ad 222.De Conjugio Eunuchi.”The operation is also more effectual when performed in early infancy, than after the period of puberty; venereal desires have been known to subsist in considerable force, and with the usual external signs, even after the removal of the testes in the adult; thusJuvenal, in satirising the vices of the Roman women, says—“Sunt quas Eunuchi imbelles, ac mollia semper“Oscula delectant,”——

The operation is also more effectual when performed in early infancy, than after the period of puberty; venereal desires have been known to subsist in considerable force, and with the usual external signs, even after the removal of the testes in the adult; thusJuvenal, in satirising the vices of the Roman women, says—

“Sunt quas Eunuchi imbelles, ac mollia semper“Oscula delectant,”——

“Sunt quas Eunuchi imbelles, ac mollia semper

“Oscula delectant,”——

628. An important question here arises as to what shall be legally calledSemen, for the secretion emitted is composed of parts, the smaller portion of which only possesses the generative faculty.It appears from the experiments and observations of our most accurate physiologists, that the fluid expelled in copulation is furnished in a small proportion only by the Testes; that to this a peculiar secretion of the Vesiculæ Seminales is added, and that the chief bulk is made up of the Prostatic liquor, or secretion from the prostate gland; so that the fact of emission in Eunuchs is not extraordinary, although the discharged fluid cannot be said to beSeminal.

628. An important question here arises as to what shall be legally calledSemen, for the secretion emitted is composed of parts, the smaller portion of which only possesses the generative faculty.

It appears from the experiments and observations of our most accurate physiologists, that the fluid expelled in copulation is furnished in a small proportion only by the Testes; that to this a peculiar secretion of the Vesiculæ Seminales is added, and that the chief bulk is made up of the Prostatic liquor, or secretion from the prostate gland; so that the fact of emission in Eunuchs is not extraordinary, although the discharged fluid cannot be said to beSeminal.

629.Aut. more alieno retrahat.

630. We should indeed be inclined to question the veracity of a witness, who under circumstances of extreme pain, rage and terror, should pretend to any very great sensibility to minuter accidents.

631. The Faculty of Leipsic decided “Dormientem in sella Virginem insciam deflorari posse1.Valent. Pand. Med. Leg.p. 31. vide etiamib.p. 33.De stupris in Somno à Fœminis admissis.” In stating the above authorities we are not to be considered as implicitly confiding in their truth.

632. Yet if she live long enough to make a deposition upon oath, it is admissible. Vide postFleming & Windham’scase.

633. This belongs to a class of cases of which we shall take no other notice, than by referring the reader to the authorities. We do not believe that medical evidence can ever materially elucidate the fact, unless the crime be violent and accompanied by material bodily injury.

634. In the celebrated case ofMary Ashford, the prisonerAbraham Thornton, admitted the carnal knowledge, adding that it was with her own consent, but the whole of the evidence repelled the latter assertion; the death of his unhappy victim (however caused) rendered it impossible to convict him of Rape.

635. It is possible that a woman who has consented to her dishonor by one person, may on fear of discovery, or for some malignant motive, charge the crime on another; or as in the cases mentioned byCapuron, she may have produced external appearances of injury for the same nefarious purpose.

636.FarrandFaseliusincline to the same opinion. The Parliament of Thoulouse passed a decree upon this subject, deciding that a woman violated might nevertheless conceive; the physicians having on that occasion reported, “posse quidem voluntatem cogi, sed non naturam, quæ semel irritata pensi voluptate fervescit, rationis et voluntatis sensum amittens.”

637. Or if she be a married woman, how is it possible to fix the filiation?

638. SirW. Blackstonedoes not appear to have adverted to this statute. 4Comm.314. SeeJac. L.D.byTomlins, tit.Rape.

639. All persons, whether men or women, aiding in the perpetration of a Rape, are guilty of felony. LordBaltimore’scase, 2Burr.2179.

640. It is somewhat singular that several eminent writers should have fallen into the error of citing LordCastlehaven’sand LordAudley’sas distinct cases;Mervin Touchetwas Earl ofCastlehavenin Ireland, and BaronAudleyin England.

641. For the opinion of the Judges on the question of penetration, arising out of this case, seeHutt. R.115.

642. The doubt in this case arose on the construction of the Statute 2 & 3Ph. & M. c.10. See alsoLambe’scase, 2Leach’s C.L.626.

Transcriber’s Note

This print copy of the book had front matter labelled with small Roman numerals followed by an Introduction also labelled with small Roman numerals and beginning again with ‘i’. In this e-book version, the page numbers of the front matter have been suffixed with _a (i.e. i_a) and the page numbers of the Introduction have been suffixed with _b (i.e. i_b), in order to differentiate them.

This book uses inconsistent spelling and hyphenation, which were retained in the ebook version. 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 correcting theerratanoted, normalizing punctuation and correcting page numbers in the table of contents where errors were found. Further corrections are noted below:

p.v_b: weight of a religious ordonannce -> weight of a religious ordinanceFootnote 41: Cours de Médicine -> Cours de Médecinep.xxxvi_b: Sir Henry’s Presidentcy -> Sir Henry’s Presidencyp.xlvii_b: a sign of independant vitality -> a sign of independent vitalityFootnote 75: suggested that Cardinel Wolsey -> suggested that Cardinal Wolseyp.2: were repeated by the Act 14 and 15 -> were repealed by the Act 14 and 15p.20: the warden or goaler -> the warden or gaolerp.31: the defendants,[95]plea was naught -> the defendant’s[95]plea was naughtp.42: beacons to avoid passed errors -> beacons to avoid past errorsp.48: fit to pratise inanother-> fit to practise inanotherp.59: and the evstravagant praise which -> and the extravagent praise whichFootnote 134: minutes of the Royal Soeiety -> minutes of the Royal SocietyFootnote 148: jurisdiction of the Bishop or Winchester -> jurisdiction of the Bishop of Winchesterp.92: its most absurd superstititions -> its most absurd superstitionsp.95: health of the neigbourhood -> health of the neighbourhoodFootnote 153: ground on which this cemetry -> ground on which this cemeteryFootnote 158: Mémoires de la Societe Royale -> Mémoires de la Société RoyaleFootnote 177: Treasise on the Plague -> Treatise on the PlagueFootnote 177: but carefuly avoived contact -> but carefully avoided contactFootnote 183: being communicated from person person -> being communicated from person to personp.116: from the pen of Dr.Brancoft-> from the pen of Dr.BancroftFootnote 195:Medical Logic Eit. 2. p. 219.->Medical Logic Edit. 2. p. 219.p.123: substance so analagous to -> substance so analogous top.131: from Symrna to the whole African coast -> from Smyrna to the whole African coastAnchor position Footnote213assumedp.141: leaves a poisonons substance -> leaves a poisonous substancep.152witnssses, or even spectators -> witnesses or even spectatorsp.152: the attention of Medical practioners -> the attention of Medical practitionersFootnote 254: hujusmodi morbornm quavis -> hujusmodi morborum quavisFootnote 263: theSixt Age-> theSixth AgeAnchor position forFootnote 393assumedFootnote 347: SeePart3. ofPersonal Idendity. -> SeePart3. ofPersonal Identity.p.223: we may doubt whether the Achbishop of Canterbury -> we may doubt whether the Archbishop of CanterburyFootnote 350: considering such a phecomenon as impossible -> considering such a phenomenon as impossibleFootnote 351: shew that that there was living issue born -> shew that there was living issue bornAnchor position forFootnote 401assumedFootnote 408: Journal des Pratisch Heilkunst. -> Journal des Praktischen Heilkunst.p.263: in a paper entiled -> in a paper entitledp.281: he said to have beenborn-> be said to have beenbornFootnote 470:Medico-Chirurg. Trans.voi. 10 ->Medico-Chirurg. Trans.vol. 10p.287: The following remaks -> The following remarksFootnote 478: London Medical Repositoty -> London Medical Repositoryp.288: see also Montaigne’s Esssay -> see also Montaigne's ssayp.288: are very uncommon in occurence -> are very uncommon in occurrencep.292: This succeeds to adolesence -> This succeeds to adolescencep.296: whether by the Commisioners -> whether by the CommissionersFootnote 508: when is erred from -> when it erred fromp.301: any instrumeut to bind his property -> any instrument to bind his propertyp.301: and responsable for his actions -> and responsible for his actionsp.304: formerly practised in Lunatic Assylums -> formerly practised in Lunatic AsylumsFootnote 513anchor position assumedp.311: derangement into two classss -> derangement into two classesp.319: betow his wealth upon a stranger -> bestow his wealth upon a strangerp.331: the inhabitants of the metroplis -> the inhabitants of the metropolisFootnote 552: putrefacfion of a considerable heap of cabbages -> putrefaction of a considerable heap of cabbagesFootnote 561anchor position assumedFootnote 569: appear to be have been very similar -> appear to have been very similarp.368: The last case which he rela tes -> The last case which he relatesp.372: brought close to his eyes, conclave glasses -> brought close to his eyes, concave glassesp.377: if any butcher do sell contageous flesh -> if any butcher do sell contagious fleshp.386: his life was depaired of by both of them -> his life was despaired of by both of themp.389: if the daugther was the survivor -> if the daughter was the survivorp.395: those who where found where -> those who were found wherep.405: and filled witho atmeal-> and filled withoatmealp.408: the philosopers of different countries -> the philosophers of different countriesp.416: for there were formery several -> for there were formerly severalFootnote 622:Vesale,Colomb,Mahon, ect. ->Vesale,Colomb,Mahon, etc.p.434: Mr. JustiseFoster-> Mr. JusticeFoster

p.v_b: weight of a religious ordonannce -> weight of a religious ordinance

Footnote 41: Cours de Médicine -> Cours de Médecine

p.xxxvi_b: Sir Henry’s Presidentcy -> Sir Henry’s Presidency

p.xlvii_b: a sign of independant vitality -> a sign of independent vitality

Footnote 75: suggested that Cardinel Wolsey -> suggested that Cardinal Wolsey

p.2: were repeated by the Act 14 and 15 -> were repealed by the Act 14 and 15

p.20: the warden or goaler -> the warden or gaoler

p.31: the defendants,[95]plea was naught -> the defendant’s[95]plea was naught

p.42: beacons to avoid passed errors -> beacons to avoid past errors

p.48: fit to pratise inanother-> fit to practise inanother

p.59: and the evstravagant praise which -> and the extravagent praise which

Footnote 134: minutes of the Royal Soeiety -> minutes of the Royal Society

Footnote 148: jurisdiction of the Bishop or Winchester -> jurisdiction of the Bishop of Winchester

p.92: its most absurd superstititions -> its most absurd superstitions

p.95: health of the neigbourhood -> health of the neighbourhood

Footnote 153: ground on which this cemetry -> ground on which this cemetery

Footnote 158: Mémoires de la Societe Royale -> Mémoires de la Société Royale

Footnote 177: Treasise on the Plague -> Treatise on the Plague

Footnote 177: but carefuly avoived contact -> but carefully avoided contact

Footnote 183: being communicated from person person -> being communicated from person to person

p.116: from the pen of Dr.Brancoft-> from the pen of Dr.Bancroft

Footnote 195:Medical Logic Eit. 2. p. 219.->Medical Logic Edit. 2. p. 219.

p.123: substance so analagous to -> substance so analogous to

p.131: from Symrna to the whole African coast -> from Smyrna to the whole African coast

Anchor position Footnote213assumed

p.141: leaves a poisonons substance -> leaves a poisonous substance

p.152witnssses, or even spectators -> witnesses or even spectators

p.152: the attention of Medical practioners -> the attention of Medical practitioners

Footnote 254: hujusmodi morbornm quavis -> hujusmodi morborum quavis

Footnote 263: theSixt Age-> theSixth Age

Anchor position forFootnote 393assumed

Footnote 347: SeePart3. ofPersonal Idendity. -> SeePart3. ofPersonal Identity.

p.223: we may doubt whether the Achbishop of Canterbury -> we may doubt whether the Archbishop of Canterbury

Footnote 350: considering such a phecomenon as impossible -> considering such a phenomenon as impossible

Footnote 351: shew that that there was living issue born -> shew that there was living issue born

Anchor position forFootnote 401assumed

Footnote 408: Journal des Pratisch Heilkunst. -> Journal des Praktischen Heilkunst.

p.263: in a paper entiled -> in a paper entitled

p.281: he said to have beenborn-> be said to have beenborn

Footnote 470:Medico-Chirurg. Trans.voi. 10 ->Medico-Chirurg. Trans.vol. 10

p.287: The following remaks -> The following remarks

Footnote 478: London Medical Repositoty -> London Medical Repository

p.288: see also Montaigne’s Esssay -> see also Montaigne's ssay

p.288: are very uncommon in occurence -> are very uncommon in occurrence

p.292: This succeeds to adolesence -> This succeeds to adolescence

p.296: whether by the Commisioners -> whether by the Commissioners

Footnote 508: when is erred from -> when it erred from

p.301: any instrumeut to bind his property -> any instrument to bind his property

p.301: and responsable for his actions -> and responsible for his actions

p.304: formerly practised in Lunatic Assylums -> formerly practised in Lunatic Asylums

Footnote 513anchor position assumed

p.311: derangement into two classss -> derangement into two classes

p.319: betow his wealth upon a stranger -> bestow his wealth upon a stranger

p.331: the inhabitants of the metroplis -> the inhabitants of the metropolis

Footnote 552: putrefacfion of a considerable heap of cabbages -> putrefaction of a considerable heap of cabbages

Footnote 561anchor position assumed

Footnote 569: appear to be have been very similar -> appear to have been very similar

p.368: The last case which he rela tes -> The last case which he relates

p.372: brought close to his eyes, conclave glasses -> brought close to his eyes, concave glasses

p.377: if any butcher do sell contageous flesh -> if any butcher do sell contagious flesh

p.386: his life was depaired of by both of them -> his life was despaired of by both of them

p.389: if the daugther was the survivor -> if the daughter was the survivor

p.395: those who where found where -> those who were found where

p.405: and filled witho atmeal-> and filled withoatmeal

p.408: the philosopers of different countries -> the philosophers of different countries

p.416: for there were formery several -> for there were formerly several

Footnote 622:Vesale,Colomb,Mahon, ect. ->Vesale,Colomb,Mahon, etc.

p.434: Mr. JustiseFoster-> Mr. JusticeFoster

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