Edwards remarked that he wished nobody to go into the room when we were
out of the way; he said this to Mr. Donnall, “You’ll observe that nobody
is to go into the room while we are away.”
(By Mr. Justice Abbott.) Did you leave the prisoner in the room!—No, my
Lord; we all went down together.
(By Mr. Gazelee.) Dr. Edwards and you went over to the town-hall
together?—Yes, Sir.
How long did you remain there, till you returned?—About three or four
minutes.
Did the Jury come back with you?—Yes, Sir.
Did you again go to the Town-hall?—Yes.
How long might you be absent the second time?—About ten minutes.
At the expiration of those ten minutes, did you return to the room for
any, and what purpose?—I returned to the room to do what was necessary
to Mrs. Downing, and to put her into the shell.
Did you do any thing then?—I did; after putting Mrs. Downing into the
coffin, I told the servant to get me some bottles, which she procured,
and I then poured the contents of the chamber utensil into a jug, and
then into two bottles; they filled both bottles; they were two quart
bottles.
Did you find any person in the room when you came back?—No person.
What became of the bottles?—I told the servant to deliver them to Dr.
Edwards.
What is her name?—Susan Weeks.
Mr. Gazelee—Her name is now O’Brien, having been since married.
Did you see her go with them?—I saw her within a hundred yards of Dr.
Edwards’s house with the bottles.
Were you present when any of the tests spoken of by Dr. Edwards were
tried by that gentleman?—Yes, I saw him try some of them.
(By Mr. Justice Abbott.) Which of them did you see?—I am not chemist
enough to say; but I saw him try some, and he told me before what would
be the effect.
(Cross-examined by Mr. Gifford.)
When you poured the contents of the chamber vessel into a jug, did you
find the chamber vessel in the same state as when you left?—I think it
was.
(_Witness withdrew._)
_Dr. Edwards_ re-called, (re-examined by Mr. Justice Abbott.)
I wish to ask you this question, whether arsenic may be administered in
a fluid state?—Yes, my Lord, it may.
The usual way is in grains or in powder, but it may be administered in a
fluid state?—Yes, my Lord; it may be dissolved in water and
administered.
May such a solution be made very strong?—If it be dissolved in hot water
it will contain a large portion; but if in cold water it will not hold
more than in the proportion of one-eightieth part of the water.
When you obtain a solution of arsenic, what quantity will be contained
in the hot water, or what quantity of that water would be sufficient to
occasion death?—I cannot say exactly.
Two or three tea-spoonsful?—Very little more than that, I should
suppose.
Two dessert-spoonsful?—I dare say it would.
A table-spoonful?—Yes, my Lord. If an alkali be dissolved in the water
first, it will hold a larger proportion in solution; but if dissolved in
the common way, I should think a table-spoonful would be sufficient to
produce death.
(_Witness withdrew._)
_Dr. Edwards_ again recalled, (re-examined by Mr. Justice Abbott.)
Did the body of the deceased swell at all before it was opened?—No, my
Lord, it did not.
Was there any discharge from the nostrils, or any symptoms of
putrefaction?—None at that time: and as to the discharge from the
nostrils, I did not observe any.
In your judgment, could there be any thing in the appearance of the body
which could lead a medical man to say that it was necessary to procure a
shell immediately?—I should think not.
In case of death by Cholera Morbus, does putrefaction take place
early?—I never observed it.
Mr. Justice Abbott.—Then you don’t know it, either one way or other, to
say how that is.
(_Witness withdrew._)
-------
EVIDENCE FOR THE DEFENCE.
_Dr. Adam Neale_ (examined by Mr. Sergt. Pell).
I believe you are a physician at Exeter?—Yes, Sir.
Have you, in the course of your medical experience, been called upon to
attend cases of Cholera Morbus?—Yes, frequently.
From what cause, in general, does Cholera Morbus arise?—It generally
arises from putrid bile collected in the intestines, which is thrown off
by vomiting, and diarrhœa, or purging.
Is it a disorder which is in its nature fatal?—It is the most acute
disease known in Great Britain.
What do you mean by the term ‘acute’?—I mean by the term acute, a
disease which runs its course in the most rapid manner.
What should be the usual course of attack of Cholera Morbus as to
duration, supposing the patient ultimately died of it?—It very
frequently kills the patient within twenty-four hours, and if neglected
or improperly treated, it kills the patient in a much shorter period.
What should you esteem a reasonable symptom of a person of the age of 64
or 65 having this complaint? what should you expect to find in a person
with this complaint?—Constant vomiting and purging, attended with pain
in the stomach and cramp in the legs.
In that state of the disorder, what should you prescribe?—I should
prescribe that the patient drink plentifully of any warm fluid, such as
mutton-broth or tea, and then I should give a large dose of opium.
Supposing you were called in to attend a woman with the symptoms you
have mentioned, whose pulse was frequent and fluttering, what would you
prescribe?—I should then give her a large dose of opium, and I should
repeat it at intervals, until the retching, vomiting, and diarrhœa
ceased, or till she felt better.
I shall not trouble you, nor my Lord, by going through the particular
circumstances which Dr. Edwards has spoken to, but merely ask you, had
you the pleasure of hearing his evidence?—I had.
Did you hear distinctly the description he gave of the appearance of the
stomach, after it was opened?—I did.
To what cause should you, independently of other circumstances, have
attributed those appearances?—To no cause but the disease.
(By Mr. Justice Abbott.) What disease?—To the disease of Cholera Morbus.
Do you mean to say that they are indications of nothing else?—No, my
Lord.
They are indications of that disease as well as others?—Yes, my Lord.
(By Mr. Sergt. Pell.) Would Cholera Morbus have that appearance?—I think
so.
(By Mr. Justice Abbott.) Did you ever see the body of a person opened,
who had died of Cholera Morbus?—I have not, my Lord.
(By Mr. Sergt. Pell.) Have you had, in the course of your practice,
occasion to make experiments in chemistry?—Yes, Sir.
Did you hear the first experiment, or test, which Dr. Edwards stated he
had made, namely, that by the sulphate of copper?—Yes, Sir.
In your judgment, is that test an infallible test of arsenic being
present in solution?—By no means.
Have you heard of the other test which he tried, namely, that by means
of the nitrate of silver, or the lunar caustic?—I have.
What is your judgment of that species of test as to arsenic?—That it is
equally fallible.
Now as to the test with bile?—No [meaning, that test is not infallible]:
from the presence of phosphoric acid, the same yellow-coloured
precipitate will be thrown down, if some lunar caustic be put into a
solution of phosphate of soda.
What do you esteem to be a complete test of arsenic being held in
solution in any complicated body?—I don’t conceive that there is any
complete test, but the evaporating of the solution, and reproducing the
arsenic in its metallic state.
Have you made any experiment upon any mixture, through the medium of
nitrate of silver, or the lunar caustic, in which onions have been
infused?—Yes, with a decoction of onions.
Be so good as to state particularly what that experiment was which you
made?—I made it within the last five days; I made a decoction of onions,
and added the carbonate of potash together with the lunar caustic, and a
pale yellow cloud was produced; the liquor became opaque, and a cloud,
of a colour between white and yellow, or opal, or precious stone colour,
was produced.
(By Mr. Justice Abbott.) Through the whole body?—Yes, my Lord; I then
varied the experiment and added to it the phosphate of soda.
(By Mr. Sergt. Pell.) After this opaline cloud had been produced, what
other effect had it?—It precipitated gradually; there was a
precipitation.
(By Mr. Justice Abbott.) This dark shade, or yellowish white cloud,
precipitated to the bottom?—Yes, my Lord.
Was that of the nature of what you call precipitation?—Yes, my Lord.
(By Mr. Sergt. Pell.) Well, Sir?—I added some solution of phosphate of
soda, and a solution of lunar caustic, and I then obtained a yellow
precipitate.
(Cross-examined by Mr. Sergt. Lens.)
I understood you to say that you never did, in point of fact, examine
the body of a person that died of Cholera Morbus?—I never did; I only
conclude, as a matter of science, that such would be the appearance; but
I never did, in point of fact, open the body: I only conclude that that
would be the sort of inflammation.
Now, as to this decoction of onions, would one taking rabbits smothered
in onions be said to be taking a decoction?—The juice of the onions
would be conveyed into the stomach: perhaps it would be as well to
explain to the Court what is my motive.
(By Mr. Justice Abbott.) We don’t want that: we only want to know
whether a decoction be the same as that which would be conveyed by
eating boiled onions?—The same fluid would be conveyed into the stomach.
(By Mr. Sergt. Lens.) That is, a decoction of onions?—Yes, Sir.
But the greatest part is drawn off by the preparation?—Some must
infallibly remain. The experiment I made was, by cutting an onion into
various pieces, and putting it into two wine-glassesful of water, and
upon that decoction my experiment proceeded—or by pouring boiling water
over it, or boiling it for two minutes, and then I tried the experiment
both with the liquid and with the boiled onion, and the effects were the
same.
So that the small quantity that remained in the one case, had the same
effect as the extract in the other?—Yes, Sir.
That which is used at table must be considerably weaker than that sort
of preparation?—A considerable part, but not the whole, otherwise the
flavour would be all gone.
(By Mr. Justice Abbott.) In proportion as the strength and flavour is
diminished, so is the strength of the juice diminished?—Yes, my Lord.
(By Mr. Sergt. Lens.) Do you mean to say that that mode [the test by
evaporation] is absolutely an infallible mode of detecting arsenic?—I
speak by the practice of all physicians, both at home and abroad, that
it will be positively detected by that mode to be present; but I don’t
mean to say that Dr. Edwards’s experiment won’t do it also; but the
phosphate of soda will produce the same thing.
Of course, if necessary to inquire as to the fact of its presence,
whether it be pursued by one or the other of these modes, you would
inquire into collateral circumstances?—Certainly; but if you speak
chemically, I should conceive none decisive, without the reproduction of
the metal.
In your judgment, this is the best test that can be resorted to?—I don’t
speak from my own judgment merely, but from acknowledged experiments.
Is there any considerable portion of the phosphate of soda in the
bile?—Phosphoric acid exists in all the fluids of the human body, in the
blood and other fluids; I cannot say to what degree it may exist, but it
certainly does exist in these, and in the bodies of all animals.
Does it exist to such a degree in the human bile, as to produce this
effect?—I have not made the experiment.
You have not made any experiment, either in one way or another?—It is
necessary that I should mention that a French chemist, named Denard, has
published on this subject.
Mr. Justice Abbott.—We cannot take the fact from any publication; we
cannot take the fact as related by any stranger.
(By Mr. Sergt. Pell, through Mr. Justice Abbott.) I wish to know whether
Dr. Neale, in the course of his practice, has opened many bodies, the
stomachs of which were in a state of inflammation?—I have, a great many.
Were those appearances the same as described by Dr. Edwards?—They were;
I have seen many instances where they were the same as described by Dr.
Edwards.
And that in cases in which there was no reason to suppose that there was
poison administered?—No reason whatever, my Lord.
Were you ever present at the opening of the body of a person who was
supposed to have died by poison?—I was many years ago, when I was in
Scotland, and when I was a young man; but the appearances were not such
as to satisfy the medical men that there was arsenic.
Is there any other substance, except this phosphate of soda, that will
throw down this yellow precipitate?—Not that I am aware of.
Sulphate of copper was not an infallible test, you say; explain that?—If
sulphate of copper be contaminated with iron, or be not pure; if it be
mixed with the carbonate of potash in solution, a yellow precipitate
would be produced, and the two colours will produce green. I should also
state that in mixing the solution, if the sulphate of copper should be
added to a decoction or an infusion of onions, with a small quantity of
the carbonate of potash, a green precipitate is also produced; I have
tried it repeatedly.
Supposing a person to have been eating boiled onions for dinner, and in
the course of the night to have been vomiting or purging to a violent
degree, would any particular portion of the juice of the onion be left
in the stomach?—Not in the stomach in a great proportion; but I think
that enough may remain to affect the chemical test.
Notwithstanding the mixture of the onions with other food, there is
sufficient to effect that in some degree?—Yes, my Lord.
(By Mr. Sergt. Lens, through Mr. Justice Abbott.) You have stated that
you have seen many bodies opened, in which the stomach was in a state of
inflammation, and in the state described by Dr. Edwards, and yet no
actual poison present in those cases; what has been the state of the
villous coat of the stomach in such cases; have you attended to
that?—No, I have not.
Then you have only observed as to the inflammation and so on, but not to
the villous coat of the stomach?—Exactly so, my Lord, and not to the
villous coat of the stomach.
_Witness withdrew._
_Dr. Daniel_ (examined by Mr. Gifford)
You have been for many years a physician at Exeter?—Yes, Sir.
And of considerable practice there?—Yes, Sir.
Have you in your course of practice attended many persons attacked with
Cholera Morbus?—I have.
What are the symptoms attendant upon that disorder?—Usually considerable
vomiting, affections of the bowels, purging, pains of the stomach, great
thirst, and cramps or spasms of the legs.
Where you find a patient violently attacked by those symptoms, what
would be the medicines you would administer—I should undoubtedly direct
full doses of opium, to remove the irritation, and to check the
discharge.
If you found a patient with a frequent and fluttering pulse, should you
so administer?—Most undoubtedly.
Have you heard the symptoms which Mrs. Downing is described to have had
the evening before her death?—Yes, Sir.
May I ask you whether those be the symptoms of Cholera Morbus?—They
certainly are the symptoms of Cholera Morbus.
(Cross-examined by Mr. Gazelee).
Are these the symptoms of Cholera Morbus exclusively—No, Sir; they are
symptoms of arsenic, or any poison.
(By Mr. Justice Abbott.) Within what period of time does Cholera Morbus
usually produce death?—Within my experience, I have seen it nearly fatal
within fourteen hours.
Within what time have you known it fatal?—I have never known it fatal: I
have known a patient in imminent danger within fourteen hours, but he
recovered.
In what way does that disease usually shew itself? does it begin all at
once, when the person is in good health, or gradually?—I have known it
rather sudden, after an illness of an hour or two.
Have you ever known an instance of a person in good health, eating a
hearty dinner, and then sitting down to tea, taken instantly with
vomiting and purging in that way described?—I have seen a case very
similar to that.
When you say very similar, will you be good enough to explain that a
little more?—It occurred in my practice eight years ago, to see a
gentleman who was seized with sickness and nausea about five or six
o’clock in the afternoon; the sickness and nausea continued increasing
till one or two in the morning, and I was desired to see him; and from
two to four o’clock I considered him in such danger that I had no hopes.
That does not apply to my difficulty; I want to know what the state of
health of that patient would be—that is, whether he would be troubled
with a languor or illness, which a person does not very well understand;
or whether that person would be, just before his being so seized with
it, in perfect good health?—That gentleman whom I mentioned had been
delicate in his health, but had had no positive complaints.
Cholera Morbus proceeds from bile?—From bile and corrupt humours.
Will they collect all at once?—They will shew themselves collectively
within a very short period of time.
(By Mr. Gifford.) I believe you knew the prisoner at the bar, when
attending the Hospital at Exeter?—Yes, Sir.
Had you an opportunity of seeing him frequently?—Occasionally.
Did you know his character for humanity and tenderness?—He always
appeared to me to have rather an unusual share of humanity and
tenderness; and such was the character which he held in the Institution.
(_Witness withdrew._)
_Mr. John Tucker_ (examined by Mr. Sergt. Pell.)
You are a surgeon living at Exeter.—I am.
And a member of the Royal College of Surgeons?—Yes, I am.
You have heard the symptoms and circumstances first described by Dr.
Edwards and Mr. Street?—Yes.
From the different facts which both those gentlemen have spoken to, as
to the state of the stomach of the deceased when opened, what disorder
should you have supposed that person to have died of?—From some
inflammation in the stomach.
What disorder of the human frame, in your judgment, would be likely to
produce such appearances?—Hernia, Cholera Morbus, and idiopathic
inflammations, or inflammations from unknown causes; that is, when we
find those appearances of the stomach where we can assign no causes.
Now supposing a person to have had violent retchings and purgings,
accompanied with a pain in the stomach, and accompanied with such
appearances as these in the stomach, if the body had been opened to what
causes would you attribute it?—To Cholera Morbus, if I had not detected
Hernia.
(By Mr. Justice Abbott.) You mean to say that if you had found the
stomach in the state described by Dr. Edwards, you would ascribe that to
Cholera Morbus?—Yes, my Lord.
(By Mr. Sergt. Pell.) You have heard it stated in evidence what the plan
was that Mr. Donnall pursued, when he administered medicine to Mrs.
Downing that night?—I have, Sir.
Was that the right or the wrong one?—It was partly right, and partly
wrong.
In what respect was it right?—In the exhibition of opium.
In what respect was it wrong?—In giving any thing that would increase
the irritation that already existed.
Have you seen the prescription which Dr. Edwards wrote that night?—No, I
have not; but I would wish to see it—(_here the prescription alluded to
was shewn to the witness_).
Now supposing a person to have retchings and purgings for several hours,
and that you found these attended with frequent and fluttering pulse, in
that state of the illness what should you have prescribed?—I should have
prescribed diametrically opposite to the prescription of Dr. Edwards; I
should consider that prescribed by Dr. Edwards as adding weight to a
porter’s back.
Mr. Justice Abbott (_to the witness_)—Don’t speak metaphorically; you
are speaking just now of a gentleman of experience and respectability: I
don’t wish you to conceal your opinion, but only to speak it in
different language.
(By Mr. Sergt. Pell.) You should have pursued a method diametrically
opposite you say; now what is the course pursued by that
prescription?—There was irritation already existing in the bowels, and
that prescription, I conceive, would tend to increase that irritation.
Besides tending to increase the irritation, in your judgment what other
effect would be produced by it, in that state of the person?—There was
considerable debility or exhaustion, and I should think _that_ would
increase that debility and exhaustion.
What should you have given?—I should have supported the patient, and
given opium in large doses.
Have you had an opportunity of examining many bodies after death?—A
great many.
I will ask you, did it ever in the course of your practice happen to you
to examine a body that had died of Cholera Morbus?—I attended a patient,
but I can state the reasons why I did not do so.
Don’t state the reasons why you did not. Then you never did open any
body that had died of Cholera Morbus?—Never.
You have opened bodies after death?—Yes, Sir, a great many.
In cases of mere accident, where death has been produced by violent
injury arising from accident, have you ever had occasion to ascertain
the state of such a body as that?—I have.
How long ago?—Eight or nine years ago.
What was the accident that occasioned the death?—A fractured skull.
How long after the death was the body opened?—It was either upon the
second or the third day.
What was the state of the stomach of that person?—Highly vascular, which
would lead any one unaccustomed to the complaint, to mistake it as
arising from inflammation.
Now explain what you mean by the terms ‘highly vascular’?—The congestion
of numerous blood-vessels.
Is there any thing as to the state of the hardness or softness of the
coats of the stomach, upon which any judgment can rest?—I should suspect
that as it is inflamed, the coats of the stomach would be thickened and
soft; for as the inflammation takes place, the parts increase in size.
Have you examined the bodies of soldiers, or of any description of
persons, who have died of that complaint?—Yes, I have.
What would be the state, with respect to inflammatory appearances in the
stomach, of those subjects?—We generally find the coats of the stomach
red and thick; we very often, but not always, find it where there is no
reason whatever to suspect inflammation.
Have you applied yourself to the study of chemistry very much?—Not very
much; but I have attended chemical lectures.
Do you happen to know whether the chemical test through the medium of
nitrate of silver, or lunar caustic, is an infallible one or not, as to
shewing the presence of arsenic in solution?—I conceive it not to be so.
Do you recollect who it was that first proved this test?—I don’t know
who it was that proved it first; but the first time I ever saw it
described was in a medical publication by Dr. Marcet, lecturer in Guy’s
Hospital.
Do you happen to know whether there be any thing else, besides arsenic,
which, if submitted to the lunar caustic, would produce the same result
as it would with arsenic?—I do.
What else?—If there be any alkaline phosphate, it would put on the same
appearance, and throw down the same yellow precipitate.
Do you know whether phosphoric acid and salts be contained, or abound in
the human frame?—I have been led to believe so.
Did you hear Dr. Edwards give his evidence as to the test also of the
sulphate of copper?—I did.
Have you made any experiments as to the sulphate of copper?—I have.
We have been told that the sulphate of copper, when added to any liquid
or fluid containing arsenic, will throw down a green precipitate?—Yes,
it will have that effect; and I have made that experiment.
Have you made any experiment in order to ascertain whether any green
precipitate would be thrown down by sulphate of copper, when applied to
any other solution than that of arsenic?—I have tried it with an
infusion of onions and animal matter.
(By Mr. Justice Abbott.) What was the result?—A green precipitate
resembling that which would have been thrown down, if arsenic had been
present.
(Cross-examined by Mr. Sergt. Lens.)
Did you happen to attend when Dr. Edwards was the chemical lecturer at
St. Bartholomew’s Hospital, in London?—I was a student in the Borough,
at St. Thomas’s and Guy’s.
Then you did not attend yourself, when Dr. Edwards was the chemical
lecturer at St. Bartholomew’s?—No, I did not.
Do we understand that you made those experiments previous, or since this
circumstance happened?—Both previous to, and since this melancholy
circumstance; and particularly that with the nitrate of silver; and I
thought it one of the most delicate at the time I made it.
(By Mr. Justice Abbott.) That is the lunar caustic?—Yes, my Lord. When I
first made the experiment, about three years ago, I found it the most
delicate test of arsenic.
What do you mean by the most delicate test of arsenic?—That is, the
smallest portion would be detected by it.
(By Mr. Sergt. Lens.) You found that at first?—Yes, but I have since
discovered its fallacy; and it was pointed out by the same means which
discovered its delicacy as a test, because it is now ascertained that
something else will produce the same appearances.
You have mentioned what?—Yes, any alkaline phosphates.
(_Witness withdrew._)
_Mr. Joseph Collier Cookworthy_ (examined by Mr. Gifford.)
I believe you are a physician at Plymouth?—I am.
You have been present during the course of this trial, and have heard
the examination of Dr. Edwards?—I have.
You have accordingly heard the tests that he applied to the contents of
the stomach of Mrs. Downing?—I have, Sir.
Now I would ask you whether, in your judgment and experience, those
tests be or be not conclusive?—I am satisfied that they are not.
When I ask you whether or not they be conclusive, I mean as to the
existence of arsenic?—I am certain they are not, and that they do not
unequivocally shew the existence of arsenic.
Do the same results follow from experiments from other compounds?—They
do.
What, in your judgment, is the proper test by which the presence of
arsenic would be discovered?—I am borne out by all philosophical
chemists in this country, in stating that the only test that can bear a
man out in swearing to its presence is, the reproduction of the metal; I
mean the arsenic in its metallic state.
In the other tests is the colour of the precipitate the only thing by
which to judge that arsenic is present?—In what tests?
The sulphate of copper for instance?—Unless it were mixed with some
carbonaceous matter, and submitted to the action of heat: where that has
not been done, it is the colour only that has been relied on.
Have you heard the appearances of the stomach as described by Dr.
Edwards?—I have.
Do those appearances, in your judgment, indicate the presence of arsenic
in the stomach?—Although I should not have drawn the conclusion that
that body had therein received poison, I certainly should have allowed
such a reflection to enter into my mind, and have acted upon it; yet I
by no means think (and I speak from the experience of others), that the
appearances stated to have existed were such as _only_ to denote the
presence of arsenic.
Have you known the prisoner at the bar long?—Yes, Sir.
How long?—I only knew him at school; we were educated together at the
Exeter Free Grammar-school.
At that time, what was his character for humanity?—It would be difficult
to say what attaches one school-boy to another; but I can say
conscientiously——
That is not the question. What was his character as a school-boy?—That
is a question which is difficult to answer—not that I mean to imply that
there was any thing to the contrary of a good character, for I mean to
say that he stood high—he was respected by his school-fellows. We slept
together in the same dormitary; and I remember now with pleasure,
notwithstanding the time that has transpired, the intimacy that then
existed.
(Cross-examined by Mr. Gazelee.)
You said that nothing but the reproduction of the arsenic would satisfy
your mind as to the presence of it?—It would not; and I am borne out in
that belief by the best authorities in the country; nothing short of
that would satisfy my mind in swearing to its presence.
(By Mr. Justice Abbott.) You said that the same results would follow
from other compounds?—Yes, my Lord.
What other compounds would give the same result with the lunar
caustic?—Phosphoric acid.
And what with the sulphate of copper?—Understanding that the deceased
had died after eating a hearty dinner of rabbits and onions, I cut a
large onion into slices, and took a slice of raw meat, and put them into
the same vessel, and poured rather more than a pint of warm water upon
the mixture, with the view of making an infusion; I allowed it to infuse
for some hours; I then took a quantity of the liquid or infusion so
prepared, and I applied to it the same tests:—first, the sub-carbonate
of potash in solution, I then added the sulphate of copper in solution,
the two tests which I understood Dr. Edwards had used.
And what was the effect produced?—A green precipitate was instantly
formed.
Was that experiment then complete?—It was, my Lord.
Any thing else?—Yes, my Lord; with another portion of the liquor I tried
this other experiment;—I put in some sub-carbonate of potash in
solution, I then added the sub-nitrate of silver, or lunar caustic, and
a yellow precipitate was produced.
Is there any thing farther you would wish to say as to those
experiments?—Yes, my Lord; I used the same tests as I understood Dr.
Edwards had used.
(_Witness withdrew._)
_Mr. Samuel Luscombe_ (examined by Mr. Sergt. Pell.)
You are the Surgeon of the Exeter Hospital?—Yes, Sir.
How long have you been in that situation?—For fifteen or sixteen years.
During the course of that time, you have had an opportunity of examining
many bodies?—I have.
Have you heard Dr. Edwards give his evidence to-day?—I have.
From the account which he has given, what would be your judgment as to
the cause of that death, it being added that the person who died had
violent retchings and purgings?—I should consider that those violent
retchings and purgings had exhausted her, and had caused the death.
Putting out of your view those violent affections of the stomach, could
you account for the cause of the inflammation?—I could not, unless from
discovering some poison in the coats of the stomach at the time.
Have you known, in the course of your practice, many instances of
Cholera Morbus?—I have known a great many.
What do you consider to be the immediate cause of Cholera Morbus?—A
redundancy of bile and humours upon the stomach.
If inflammation be found upon the stomach after it is opened, what
appearance would it put on?—The internal coats of the stomach would be
very red in various parts, and the colour very florid; but in the course
of two or three days it would become more dark.
That is, it would have a stellated appearance?—I never opened the body
of a person who had died of Cholera Morbus.
The Defence of _Eugene Aram_, for the murder of _Daniel Clarke_.
As this trial has excited very extraordinary interest, and presents
illustrations of several points connected with Medico-legal
investigations, we shall offer to our readers a brief outline of the
case, and introduce the ingenious defence which the prisoner composed
and read at his trial. In the year 1745, Clarke, a shoemaker, at
Knaresborough, in Yorkshire, was induced by Eugene Aram and Richard
Houseman, to purchase a variety of valuable articles of plate and
jewellery, in consequence of having married a woman who had many rich
relations, and who, by an ostentatious display of this kind, might
conclude that Clarke was rich, and in consequence of such belief make
him their heir. No sooner had Clarke yielded to the persuasion of these
men, and became in consequence possessed of many valuable goods, than
Eugene Aram and Houseman murdered him, in February 1745, and buried his
body in a field near the town, and having shared Clarke’s treasure, they
decamped.—Clarke being at the time very much in debt, was supposed to
have gone abroad, and every inquiry ceased until the year 1758, when a
person, as he was digging for lime-stone near St. Robert’s cave, found
the bones of a human body, upon which a conjecture arose that they were
the remains of Daniel Clarke, who it was presumed might have been
murdered; and as Houseman was seen in the company of Clarke a short time
before his disappearance, he was immediately apprehended on suspicion,
when having lost his self-possession he imprudently exclaimed that
_those_ were not the bones of Clarke, for they were buried in a
different place! and subsequently he stated the exact place where they
were deposited, and which were found accordingly. Soon after Houseman
was committed to the castle of York, it was discovered that Aram resided
in the character of a respectable school-master at Lynn, in Norfolk, on
which he was taken into custody, and conveyed to York castle, where at
the following summer assizes they were tried; after Houseman had given
his evidence, and all such collateral testimony had been received as
could be adduced on such an occasion, Aram delivered the following
ingenious defence.
“_My Lord_,
“I know not whether it is of right, or through some indulgence of your
Lordship, that I am allowed the liberty at this bar, and at this time to
attempt a defence, incapable and uninstructed as I am to speak. Since,
while I see so many eyes upon me, so numerous and awful a concourse,
fixed with attention, and filled with, I know not what expectations, I
labour not with guilt, my Lord, but with perplexity. For having never
seen a court but this, being wholly unacquainted with law, the customs
of the bar, and all judicial proceedings, I fear I shall be so little
capable of speaking with propriety in this place, that it exceeds my
hope if I shall be able to speak at all.
“I have heard, my Lord, the indictment read; wherein I find myself
charged with the highest crime, with an enormity I am altogether
incapable of, a fact, on the commission of which there goes far more
insensibility of heart, more profligacy of morals, than ever fell to my
lot. And nothing possibly could have admitted a presumption of this
nature, but a depravity not inferior to that imputed to me. However, as
I stand indicted at your Lordship’s bar, and have heard what is called
evidence adduced in support of such a charge, I very humbly solicit your
Lordship’s patience, and beg the hearing of this respectable audience,
while I, single and unskilful, destitute of friends, and unassisted by
counsel, say something perhaps like argument in my defence. I shall
consume but little of your Lordship’s time, what I have to say will be
short, and this brevity probably will be the best part of it; however,
it is offered with all possible regard, and the greatest submission to
your Lordship’s consideration, and that of this honourable court. First,
my Lord, the whole tenor of my conduct in life contradicts every
particular of this indictment. Yet had I never said this, did not my
present circumstances extort it from me, and seem to make it necessary.
Permit me here, my Lord, to call upon malignity itself, so long and so
cruelly busied in this prosecution, to charge upon me any immorality, of
which prejudice was not the author. No, my Lord, I concerted no schemes
of fraud; projected no violence; injured no man’s person or property; my
days were honestly laborious; my nights intensely studious. And I humbly
conceive my notice of this, especially at this time, will not be thought
impertinent or unseasonable, but at least deserving some attention,
because, my Lord, that any person, after a temperate use of life, a
sense of thinking and acting regularly, and without one single deviation
from sobriety, should plunge into the very depth of profligacy,
precipitately and at once, is altogether improbable and unprecedented,
and absolutely inconsistent with the course of things. Mankind is never
corrupted at once, villany is always progressive, and declines from
right, step after step, till every regard of probity is lost, and every
sense of moral obligation totally perishes.
“Again, my Lord, a suspicion of this kind, which nothing but malevolence
could entertain, and ignorance propagate, is violently opposed by my
very situation at that time with respect to health: for but a little
space before I had been confined to my bed, and suffered under a very
long and severe disorder, and was not able for half a year together so
much as to walk. The distemper left me indeed, yet slowly and in part,
but so macerated, so enfeebled that I was reduced to crutches; and so
far from being well about the time I am charged with this fact, that I
never to this day perfectly recovered. Could then a person in this
condition take any thing into his head so unlikely, so extravagant? I,
past the vigour of my age, feeble and valetudinary, with no inducement
to engage, no ability to accomplish, no weapon wherewith to perpetrate
such a fact, without interest, without power, without motive, without
means.
“Besides, it must needs occur to every one, that an action of this
atrocious nature is never heard of, but, when its springs are laid open,
it appears that it was to support some indolence, or supply some luxury;
to satisfy some avarice, or oblige some malice; to prevent some real, or
some imaginary want; yet I lay not under the influence of any one of
these. Surely, my Lord, I may consistent with both truth and modesty
affirm thus much; and none who have any veracity and knew me, will ever
question this. In the second place, the disappearance of Clarke is
suggested as an argument of his being dead; but the uncertainty of such
an inference from that, and the fallibility of all conclusions of such a
sort, from such a circumstance, are too obvious and too notorious to
require instances; yet superseding many, permit me to procure a very
recent one, and that afforded by this castle. In June 1757, William
Thompson, for all the vigilance of this place in open daylight and
double ironed, made his escape; and notwithstanding an immediate enquiry
set on foot, the strictest search and all advertisement, was never heard
of since. If then Thompson got off unseen through all these
difficulties, how very easy was it for Clarke, when none of them opposed
him? But what would be thought of a prosecution commenced against any
one seen last with Thompson. Permit me next, my Lord, to observe a
little upon the bones which have been discovered. It is said, which
perhaps is saying very far, that these are the skeleton of a man. It is
possible indeed it may: but is there any certain known criterion, which
incontestably distinguishes the sex in human bones? Let it be
considered, my Lord, whether the ascertaining of this point, ought not
to precede any attempt to identify them. The place of their depositum
too claims much more attention than is commonly bestowed upon it; for,
of all places in the world, none could have mentioned any one, wherein
there was greater certainty of finding human bones than a hermitage,
except he should point out a church-yard; hermitages, in times past,
being not only places of religious retirement, but of burial too. And it
has scarce or never been heard of, but that every cell now known
contains or contained the relicts of humanity, some mutilated and some
entire. I do not inform, but give me leave to remind your Lordship, that
here sat solitary sanctity, and here the hermit or the anchoress, hoped
that repose for their bones, when dead, they here enjoyed when living.
All the while, my Lord, I am sensible this is known to your Lordship,
and many in this court, better than to me. But it seems necessary to my
case that others, who have not at all perhaps adverted to things of this
nature, and may have concern in my trial, should be made acquainted with
it. Suffer me then, my Lord, to produce a few of many evidences, that
these cells were used as repositories of the dead, and to enumerate a
few in which human bones have been found as it happened in this
question; lest to some, that accident might seem extraordinary, and
consequently occasion prejudice.
1st. The bones, as was supposed, of the Saxon St. Dubritius were
discovered buried in his cell at Guy’s Cliff near Warwick, as appears
from the authority of Sir. W. Dugdale.
2d. The bones, thought to be those of the anchoress Rosia, were but
lately discovered in a cell at Royston, entire, fair, and undecayed,
though they must have lain interred for several centuries, as is proved
by Dr. Stukely.
3d. But my own country, nay almost this neighbourhood, supplies another
instance, for in Jan. 1747 were found by Mr. Stovin, accompanied by a
rev. gentleman, the bones, in part, of some recluse, in the cell at
Lindholm near Hatfield. They were believed to be those of William of
Lindholm, a hermit, who had long made this cave his habitation.
4th. In Feb. 1744 part of Hoburn Abbey being pulled down, a large
portion of a corpse appeared, even with the flesh on, which bore cutting
with a knife; though it is certain this had lain above 200 years, and
how much longer is doubtful, for this Abbey was founded in 1145, and
dissolved in 1538 or 9.
“What would have been said, what believed, if this had been an accident
to the bones in question? Farther, my Lord, it is not yet out of living
memory, that a little distance from Knaresborough in a field, part of
the manor of the worthy and patriot baronet, who does that borough the
honor to represent it in Parliament, were found in digging for gravel,
not one human skeleton only, but five or six, deposited side by side,
with each an urn placed at its head, as your Lordship knows was usual in
ancient interments. About the same time, in another field, almost close
to this borough, was discovered also, in searching for gravel, another
human skeleton; but the piety of the same worthy gentleman ordered both
pits to be filled up again, commendably, unwilling to disturb the dead.
Is the invention of these bones forgotten, then, or industriously
concealed, that the discovery of those in question may appear the more
singular and extraordinary? whereas, in fact, there is nothing
extraordinary in it. My Lord, almost every place conceals such remains.
In fields, in hills, in highway sides, in commons, lie frequent and
unsuspected bones. And our present allotments for rest for the departed
is but of some centuries.
“Another particular seems not to claim a little of your Lordship’s
notice, and that of the gentlemen of the jury, which is that perhaps no
example occurs of more than one skeleton being found in one cell; and in
the cell in question was found but one, agreeable in this to the
peculiarity of every other known cell in Britain. Not the invention of
one skeleton, but of two, would have appeared suspicious and uncommon.
But it seems another skeleton has been discovered by some labourer,
which was full as confidently asserted to be Clarke’s as this. My Lord,
must some of the living, if it promotes some interest, be made
answerable for all the bones which earth has concealed and chance
exposed? and might not a place where bones lay, be mentioned by a person
by chance, as well as found by a labourer by chance? or is it more
criminal accidentally to name where bones lie, than accidentally to find
where they lie? Here too is a human skull produced, which is fractured;
but was this the cause, or was it the consequence of death? was it owing
to violence, or was it the effect of natural decay? if it was violence,
was that violence before or after death? My Lord, in May 1732 the
remains of William Lord Archbishop of this province, were taken up by
permission, in this cathedral, and the bones of the skull were broken,
yet certainly he died by no violence offered to him alive, that could
occasion that fracture there. Let it be considered, my Lord, that upon
the dissolution of religious houses, and the commencement of the
reformation, the ravages of those times affected both the living and the
dead. In search after imaginary treasures, coffins were broken up,
graves and vaults dug open, monuments ransacked, and shrines demolished;
and it ceased about the beginning of the reign of Queen Elizabeth. I
entreat your Lordship, suffer not the violence, the depredations, and
the iniquities of those times to be imputed to this. Moreover, what
gentleman here is ignorant that Knaresborough had a castle, which though
now a ruin, was once considerable both for its strength and garrison?
All know it was vigorously besieged by the arms of Parliament, at which
siege in sallies, conflicts, flights, pursuits, many fell in the places
round it, and where they fell were buried, for every place, my Lord, is
burial earth in war; and many questionless of these, rest yet unknown,
whose bones futurity shall discover. I hope, with all imaginable
submission, that what has been said will not be thought impertinent to
this indictment; and that it will be farther from the wisdom, the
learning, and the integrity of this place, to impute to the living, what
fury in its zeal may have done; what nature may have taken off and piety
interred; or what war alone may have destroyed, alone deposited. As to
the circumstances that have been raked together I have nothing to
observe, but that all circumstances whatever are precarious, and have
been but too frequently found lamentably fallible; even the strongest
have failed. They may rise to the utmost degree of probability, yet they
are but probability still. Why need I name to your Lordship the two
Harrisons recorded by Dr. Howel, who both suffered upon circumstances,
because of the sudden disappearance of their lodger, who was in credit,
had contracted debts, borrowed money, and went off unseen, and returned
a great many years after their execution? Why name the intricate affair
of Jaques du Moulin under King Charles 2d, related by a gentleman who
was counsel for the crown? and why the unhappy Coleman who suffered
innocent, though convicted upon positive evidence, and whose children
perished for want, because the world uncharitably believed the father
guilty? Why mention the perjury of Smith, incautiously admitted king’s
evidence, who to screen himself equally accused Faircloth and Loveday of
the murder of Dun, the first of whom in 1749 was executed at Winchester,
and Loveday was about to suffer at Reading, had not Smith been proved
perjured to the satisfaction of the court, by the Surgeon of Gosport
hospital. Now, my Lord, having endeavoured to shew that the whole of
this process is altogether repugnant to every part of my life, that it
is inconsistent with my condition of health about that time, that no
rational inference can be drawn, that a person is dead who suddenly
disappears, that hermitages were the constant repositories of the bones
of the recluse, that the revolutions in religion or the fortune of war,
has mangled or buried the dead; the conclusion remains perhaps no less
reasonably than impatiently wished for. I at last, after a year’s
confinement equal to either fortune, put myself upon the candour, the
justice, and the humanity of your Lordship, and upon yours, my
countrymen, gentlemen of the jury.”
FINIS.
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Footnotes
Footnote 1:
In cases of attempted suicide we shall neither be surprised nor
deceived by any extravagant statements.
Footnote 2:
Dict. des Sciences Med. Art. Folie.
Footnote 3:
See vol. 2. page 155 of the present work, where this subject is very
fully considered.
Footnote 4:
See note at page 269 of vol. 2.
Footnote 5:
_Aretæus_ asserts that immoderate perturbation of mind, consternation,
fear, despondency, sudden and violent joy, immoderate laughter, &c.
have produced apoplexy, (_De Signis et Caus: Diut: Morb: Lib. 1, c.
7_.) _Forestus_ (p. 509) relates the case of a gentleman of plethoric
habit, and hereditarily disposed to the disease, who, on receiving
information of the sudden death of an intimate friend, was instantly
seized with a tremor of the left foot, and soon afterwards with
apoplexy. We beg to refer the reader to _Dr. Cooke’s_ valuable and
learned work on Nervous Disorders, vol. 1, p. 217, where the author
has collected with much industry a variety of cases in illustration of
this subject.
Footnote 6:
A Manual for the Student of Anatomy, containing rules for displaying
the structure of the body, so as to exhibit the elementary views of
anatomy, and their application to pathology and surgery, by _J. Shaw_;
being an outline of the demonstrations delivered by him to the school
of Great Windmill-street. 8vo. p. 342. London, 1821. We have been much
pleased with this useful little work.
Footnote 7:
_Cooke_ on Nervous Disease, vol. 1, p. 176. In some few instances,
however, death takes place immediately in this disease. _Dr. Kirkland_
speaking of apoplexy, in which there is an instantaneous extinction of
the vital principle, relates the case of a mantua-maker, who being at
work, was talking cheerfully with some of her friends about her, when
her hands dropped down upon her lap, and she was perfectly dead.
_Forestus_ relates several similar cases, but hesitates in pronouncing
them apoplexy. We have no doubt but that the greater proportion of
sudden deaths depend upon diseases of the heart.
Footnote 8:
See the trial of _Lawrence Braddon_ and _Hugh Spake_, for a
misdemeanour, in suborning witnesses to prove the Earl of Essex was
murdered by his keepers. Feb. 7, 1683. _Sta. Tri._ vol. iii.
Footnote 9:
See our observations upon this phenomenon at page 13 of the present
volume.
Footnote 10:
_Dr. Badenoch_, in a work on the diseases of India, ascertained by
repeated and accurate experiments, that the heat of those who die
apoplectic from a “_coup de soleil_,” or “_insolation_,” as it is
termed, continues for a considerable time several degrees higher than
the natural standard; in one case, the heart felt to his hand as if it
had been five or six degrees higher than in life and health,
notwithstanding the body had been dead twenty-four hours.
Footnote 11:
Elements of Juridical or Forensic Medicine. Edit. 2, p. 101.
Footnote 12:
See experiments by _Dr. Gibbs_, on Adipocire, in the Philosophical
Transactions for 1794, part ii, and for 1795.
Footnote 13:
See “Genuine Memoirs of the life of _Sir John Dinely Goodere, Bt._”
_&c._ by _Samuel Foote_. Also State Trials.
Footnote 14:
“Genuine trial of _Margery Beddingfield_ and _Richard Ringe_, for
petty treason and murder. London 1762.”
Footnote 15:
See State Trials, vol. ii, p. 756; see also _Burnett’s_ Hist. of his
own times, vol. 1, p. 445.
Footnote 16:
The whole proceedings before the Coroner’s inquest at Oldham, &c. on
the body of _John Lees_, who died of sabre wounds at Manchester; taken
in short hand by _A. Dowling_. London, _Hone_, 1820.
Footnote 17:
Vol. x, _Appendix_, p. 29.
Footnote 18:
In the case of _Patch_, who was left-handed, it was clearly shown by
the relative position of the deceased, and the door from which he was
shot, that the murderer must have exposed his person to the view of
the deceased, unless he fired with the left hand. The guilt of _Patch_
was for some time doubted, but the discovery of the pistol in the
neighbouring dock a few years ago, has supplied the only link which
was wanting to make the evidence against him complete.
Footnote 19:
See “An account of the symptoms and death of the sailors who were
affected in consequence of a fire having been kindled in the hold of
their vessel, and their neglecting to leave the hatches open, by _Dr.
King_.” Edinb. Med. and Surg. Journ. no. 26, April, 1811.
Footnote 20:
If in addition to the presence of water in the stomach any weeds be
found, the presumption is strengthened that the person had been
drowned. This occurred in the case of _Mary Ashford_, the vegetable
matter discovered in the stomach corresponded with that with which the
pool was covered.
Footnote 21:
Teichmeyer Inst. Med. Leg. p. 176.
Footnote 22:
De Morb. Vulg. lib. v, sect. vii, 27.
Footnote 23:
Recherches Anatomico-Pathologiques sur l’Encephale et Ses Dependances,
par _F. Lallemand_. Paris 1820-21.
Footnote 24:
In three cases in which these deposits were found in contact with the
olfactory nerve, the patients had suffered much for a considerable
time, previous to death, from the sensation of unpleasant odours.
Footnote 25:
See cases illustrative of the Pathology of the Brain, by _R. Powell_,
M.D. Med. Trans. vol. 5. _Dr. Martinet_ describes a well marked case
of _Arachnitis_, complicated with fracture of the cranium. Bulletin de
l’Athenée de Med. de Paris.
Footnote 26:
_Baillie’s_ Morbid Anatomy.
Footnote 27:
The reader will also be very much amused by the account of the
dissection of _Charles_ II, and of the appearances which supported the
idea of his having died from poison. _Burnett’s Hist. of his own
times_, vol. ii, p. 230.
Footnote 28:
The case of _John Lees_, which formed the subject of the Oldham
inquest, appears in this respect to have borne some analogy; see also
the case related by _Baron Larey_, p. 15.
Footnote 29:
_Surgical Observat._
Footnote 30:
_Cobbett’s_ State Trials, vol. ii, p. 503.
Footnote 31:
We have already alluded to such a cause of suffocation, (see p. 58 and
438.) The following instructive case has been transmitted to us by
_Mr. Alcock_, whose zeal and acumen in anatomical researches are as
honourable to himself, as they are useful to the profession of which
he is so active a member.
“_Wm. Thompson_, æt. 36, formerly a soldier of the 27th regt. late a
watchman of St. James’s parish, had had three fits, stated to be
epileptic, within the last two years.
“Dec. 9th 1821, he was attacked by another fit, having the usual
character of epilepsy, which terminated fatally. In the morning he
appeared in his usual health, and had remarked to his wife that “he
was as well as ever he had been in his life.” He ate largely of pork,
with sage and onions, for dinner, about one o’clock. About five he was
rather unwell, and a little before six “went off in a fit.” He had
frequent convulsions “as rapidly as he could have them,” (his wife’s
statement) from the time he was taken ill till he died. There was no
sickness—no vomiting. He had lain upon his back for some time; he was
turned upon his side and suddenly expired. He never spoke from the
time of the attack till his death, A week previously he had complained
of head-ache, but not on the day of his illness. He was extremely
subject to flatulence. He did not cough at any time during the attack
which immediately preceded his death. For some years past he had been
unable to lie upon his right side.
“He was largely bled from the arm; cold applications were freely
applied to the head, with some temporary mitigation of the
convulsions. Some medicines were directed, but as the state of
insensibility in which he was, precluded swallowing, it may be doubted
whether they ever reached his stomach. His pulse was full and
frequent, but he was too unsteady to allow it to be counted. The
pupils were contracted to points; but on the recurrence of the
convulsions became widely dilated. After the cold affusion over the
head, and as the convulsions abated, they gradually contracted.
“The examination of the morbid appearances was made, four days after
death, by _Mr. Alcock_, in the presence of _Mr. C. T. Haden_, surgeon,
and others.
“_External appearances_, those of a very athletic, muscular subject.
No external appearance of injury. Slight shew of putrefaction on the
abdominal parietes.
“_The head_ was carefully and minutely examined. The vessels of the
brain were distended with blood, but in no degree sufficient to
explain the cause of death. The brain was firm and natural in every
part. The choroid plexus of the right side was studded with a few
small hydatid-like vesicles. The spinal marrow, as far as could be
seen through the foramen magnum, was free from disease. The ventricles
contained about two fluid drachms of liquid, and about the same
quantity was found in the base of the skull when the brain was
removed.
“_The chest._ The right lung adhered universally, but its structure
was natural; the left lung was somewhat gorged with blood; no
preternatural adhesions. About from four to eight ounces of bloody
fluid in the left cavity of the chest. The heart was loaded with fat,
and had on the outer surface of the right ventricle a patch of lymph
like a thin layer of coagulated albumen. Several smaller spots of the
same kind on the right auricle; but none of them penetrated into the
substance.
“_Abdomen._ The liver adhered in numerous parts, and very extensively
to the peritoneum. The stomach was enormously large and distended with
food and air; the small intestines were also somewhat more distended
than usual, but exhibited no appearance of disease sufficient to
account for the death of the patient. The spleen was small and
unhealthy, having several white patches on its surface.
“Thus far no satisfactory explanation of the cause of death appeared.
And here, according to the usual mode of conducting examinations, the
investigation would have terminated, but I consider it essential in
every case to examine the air-passages. On examining the bronchiæ of
the left side, the principal ramifications and some of the smaller
were filled with a pultaceous substance of a dirty greenish hue and
heterogenous texture, resembling food which had undergone some degree
of digestion: it completely filled the left bronchia. The right
bronchia and its ramifications were quite filled with similar matter,
and the trachea was also completely filled at the lower part, so that
breathing in such a state must have been impossible. That the matter
filling up the air passages consisted of chyme from the stomach became
evident, from its perfect similarity to that which remained in the
stomach.”
Since the receipt of the above interesting communication from _Mr.
Alcock_, we have found upon an inquiry amongst the carcase butchers,
that the presence of food in the pulmonary passages is by no means a
rare occurrence in those animals that have been struck on the head.
Footnote 32:
Morbid Anatomy, p. 37.—Med. Observ. vol. iv, p. 380—Memoirs of Med.
Soc. vol. i, p. 228.
Footnote 33:
Medico-Chirurg. Trans, vol. i; and the present work vol. ii, p. 30.
Footnote 34:
Feb. 1822, vol. xvii.
Footnote 35:
Vol. iii, p. 577.
Footnote 36:
See also “Cases of Ruptured Spleen and Liver from external injury,” by
_Dr. Chisholm_. Edinb. Med. and Surg. Journ. for July, 1811.
Footnote 37:
See the case of _Bartholomew Quain_, vol. ii, p. 123.
In the year 1801 _Richard Starke_ was executed at Newgate for the
wilful murder of _Mary_, his wife, in Clement’s Lane, by dragging her
on the floor by the hair of her head, and inhumanly kicking her. _Mr.
Crowther_ and _Mr. Andre_, surgeons, were of opinion that she died in
consequence of the rupture of the spleen, which appeared to them to
have been occasioned by bruises.
Footnote 38:
_Lieutaud._ T. I, p. 319 and 333.
Footnote 39:
Principles of Midwifery, edit. 4, page 451.
Footnote 40:
See a paper in the Philosophical Transactions, no. 309, p. 2387,
entitled “Balls of hair taken from the uterus and ovaria of several
women, by _Mr. James Yonge_.”
Footnote 41:
See our Physiological History of Conception and Utero-gestation, vol.
i, p. 230.—_Dr. Blundell’s_ Memoir, entitled “Experiments on a few
controverted points respecting the Physiology of Generation.”
_Medico-Chirurg. Trans._ _vol._ x, _p._ 245.
Footnote 42:
In the year 1788, _Blumenbach_ shewed that _corpora lutea_ may exist
in the ovaries of virgins (Comment. Soc. Reg. Scient. Gotting. vol.
ix.) _Cuvier_ has also noticed the appearance of cicatrices in the
ovaria of women who had never known any intercourse with the male.
Footnote 43:
Wilson on the Bones and Joints, p. 110.
Footnote 44:
It was the custom of the ancients to exhibit in the same sculpture in
Bas relief, men of very different dimensions, of making kings and
conquerors gigantic in stature, while their subjects and vassals were
represented as only a fourth or fifth part of their size. This must
have given origin to the fable of Giants and Pigmies; while a belief
in such tales has been supported by the discovery of gigantic bones,
which have through ignorance been received as human remains, but
which, as SIR HANS SLOANE in an interesting paper in the PHILOSOPHICAL
TRANSACTIONS (No. 404, p. 497,) very truly observes, are nothing more
than the bones and teeth of Elephants or Whales: thus, says he, the
fore fin of a whale, stripped of its web and skin, was not long since
publicly shewn for the bones of a giant’s hand. The same explanation
applies to those pretended skeletons of Giants of 12, 20, and 30
cubits high, as mentioned by _Philostratus_. The skeleton of 46 cubits
which, according to Pliny (_Hist. Nat._ _Lib._ vii. _c._ 16,) was
found in the cavity of a mountain in Crete, upon its overthrow by an
earthquake. The skeleton 60 cubits high which _Strabo_ (Lib. 17) says
was found near Tangis (Tangier) in Mauritania, and supposed to be that
of Antæus. To which list maybe added the skeleton of Asterius, son of
Anactes—10 cubits. That of Orestes, dug up by special command of the
Oracle, 7 cubits, &c. &c.
Footnote 45:
In a lecture on “Mathematical Beauty,” delivered by _Professor Camper_
in the Academy of Drawing at Amsterdam, this celebrated physiologist
has shewn that in tracing the figures of the body of the male and
female in two imaginary ellipses of equal dimensions, a portion of the
pelvis of the latter would be out of the ellipse, and her shoulders
within it; whereas in the former, the shoulders would project beyond
the limits of the figure, and his pelvis, on the contrary, would be
entirely enclosed within it.
Footnote 46:
_Sir M. Hale_ (_1 P. C._ 433) says, it cannot be legally known whether
it were killed or not; and adds, “so it is if after such child were
born alive and _baptized_, and after dies of the stroke given to the
mother, this is not homicide.” It is difficult to conceive why the
term _baptized_ was introduced in this dictum: for whether it were the
child of Jew, Turk, or Anabaptist, it is equally entitled to the
protection of the law.
Footnote 47:
The Roman Emperor, at a congress held at Constantinople in 692,
ordained, that it should be punished with the same rigour as homicide;
and severe statutes were enacted against it by _Antonine_, as early as
the 161st year of the christian era.
Footnote 48:
_Exodus_, _c._ xxi. A case illustrative of this law occurred at
Stafford in the year 1811; when a man was executed for the murder of
his wife, whose death he occasioned by inducing abortion, through
extreme violence, as by elbowing her in bed, rolling over her, &c.
Footnote 49:
By the _Stat._ 21 _Jac._ _c._ 27. If a woman delivered of issue, which
being born alive would be a bastard, endeavour by burying, drowning,
&c. by herself or others, so as to conceal its death, that it may not
appear, whether born alive or not, it is _murder_, unless she prove by
one witness at least, that it was born dead. _Ba. Abr. tit. Bastard._
Footnote 50:
We are strongly inclined to believe the assertion, that where the
severity of a statute is excessive, judges, juries, and prosecutors,
enter into a league to defeat its rigor.
Footnote 51:
The law of Scotland was yet more severe; the mere fact of concealing
the pregnancy, whether the death of the child were proved or not, was
a capital felony. See 1 _Hume’s Com._ 287, and 1 _Burnet’s Crim. Law_,
tit. _Child-murder_, and many cases there cited. The child of
_Margaret Dickson_, to whose case we have alluded, _vol._ ii, _p._ 91,
was legitimate.
Footnote 52:
III. “And whereas doubts have been entertained respecting the true
sense and meaning of a certain Act of Parliament made in England, in
the twenty-first year of the reign of his late Majesty King _James_
the first, intituled, _an act to prevent the destroying and murthering
of bastard children_, and also of a certain Act of Parliament, made in
Ireland in the sixth year of the reign of her late Majesty Queen
_Anne_, intituled, _an act to prevent the destroying and murthering of
bastard children_; and the same have been found in sundry cases,
difficult and inconvenient to be put in practice;” for remedy whereof,
be it enacted by the authority aforesaid, that, from and after the
first day of July in the year of our Lord one thousand eight hundred
and three, the said two several acts, and every thing therein
contained, shall be, and the same are hereby repealed; and that, from
and after the said first day of July, in the said year of our Lord one
thousand eight hundred and three, the trials in England and Ireland
respectively of women charged with the murder of any issue of their
bodies, male or female, which being born alive would by law be
bastard, shall proceed and be governed by such and the like rules of
evidence and of presumption as are by law used and allowed to take
place in respect to other trials for murder, and as if the said two
several acts had never been made.
IV. Provided always, and be it enacted, that it shall and may be
lawful for the jury by whose verdict any prisoner charged with such
murder as aforesaid shall be acquitted, to find, in case it shall so
appear in evidence, that the prisoner was delivered of issue of her
body, male or female, which, if born alive, would have been bastard,
and that she did, by secret burying, or otherwise, endeavour to
conceal the birth thereof, and thereupon it shall be lawful for the
court before which such prisoner shall have been tried, to adjudge
that the prisoner shall be committed to the common gaol, or house of
correction, for any time not exceeding two years.
Footnote 53:
The act provides that if any person or persons shall wilfully and
maliciously administer to, or cause to be administered to or taken by
any woman any medicines, drug or other substance or thing whatsoever,
or _shall use or employ or cause or procure to be used or employed,
any instrument or other means whatsoever_ with intent thereby to cause
or procure the miscarriage of any woman not being or not being proved
to be quick with child at the time of administering such things, or
using such means, that then and in every such case, the person or
persons so offending, their counsellors, aiders, and abettors, knowing
of and privy to such offence, shall be and are hereby declared to be
guilty of felony, and shall be liable to be fined, imprisoned, set in
and upon the pillory, publicly or privately whipped, or to suffer one
or more of the said punishments, or to be transported beyond the seas
for any term not exceeding fourteen years, at the discretion of the
court before which such offender shall be tried and convicted.
Footnote 54:
At the Chelmsford Assizes. Aug 1820, _Robin Collins_ was indicted for
administering steel filings and penny-royal water to a woman, with the
intent to procure abortion. _Mr. Baron Wood_ told the jury, in point
of law, that if they were satisfied that the prisoner had administered
the drugs with intent to procure miscarriage, though they were
incapable of producing such effect, and though the young woman had
willingly _consented_ to take them, the case was within the statute,
and they were bound to find the prisoner guilty. The jury immediately
found the prisoner guilty. The learned judge expressed himself
perfectly satisfied with the verdict, and animadverted in strong terms
on the enormity and cruelty of the prisoner’s crime; public example
required the severest visitation of punishment that the law
authorised, in order to warn others against committing a similar
crime, which unhappily was too prevalent. The sentence of the Court
was that the prisoner should be transported for the term of fourteen
years.
Footnote 55:
Whereby it is enacted that “if any person shall wilfully, maliciously
and unlawfully administer to, or cause to be administered to or taken
by any of His Majesty’s subjects, any deadly poison or other noxious
and destructive substance or thing, with intent thereby to cause and
procure the miscarriage of any woman _then being quick with child_,
the offender shall suffer death as in cases of felony without benefit
of clergy.”
Footnote 56:
By the law of most countries this crime is punished with more severity
if committed after the _quickening_ of the child, than before. The
Roman Penal Code made the same distinction. By the decretals of the
canon law (_p._ ii, _causs._ 32, _p._ ii, _c._ 8), “_Non est homicida,
quæ abortum procurat, antequam anima corporis sit infusa_.”
Footnote 57:
On this subject see “Physiological Illustrations of Utero-gestation”,
vol. i, p. 239.
Footnote 58:
_Wm. Pizzy_ and _Mary Codd_ were tried at _Bury St. Edmonds_, Aug. 11,
1808, for feloniously administering a certain noxious and destructive
substance to _Ann Cheney_, with intent to produce a miscarriage. The
trial, taken in short hand by _Wm. Notcutt_, was published at
_Ipswich_ in 1808; but we have not been able to procure a copy; we
must therefore content ourselves with observing, on the authority of
the _Med. Journ._ that the Counsel for the prisoners objected to
receiving that part of the evidence which related to _Pizzy’s_ manual
operations upon _Ann Cheney_, as not relevant to the administration of
the medicines which alone constituted the capital crime; the objection
was over-ruled by the court, and the evidence was admitted for the
purpose of proving the _intention_ with which the medicines were
administered. The examination of _Ann Cheney_ before the magistrates
was as follows:
“Saith that she is about the age of 27 years; that she has lived as
servant with _Mr. Simon Codd_, of Haughley, about 12 years last past;
that she is an unmarried woman, and was so in the month of February
1806. That in the said month of February 1806, she was delivered of a
female bastard child; that she was alone when she was delivered, but
that she called out for assistance, but no one came for some minutes;
the child was born dead; she never saw it move, or heard it make a
noise. That soon after she found herself with child, she acknowledged
it to her mistress, _Codd_, and told her who was the father of the
child. Her mistress said, if she would take that which she would get
for her, she thought she could order it better than letting any body
know it. Soon after that, she saw _Mr. Pizzy_ of Middlesham, the
farrier; she told him what was the matter with her; he then gave her
some more medicines, and told her they were to make her miscarry. They
had not that effect; that she continued to take medicines from him
during her whole remaining time of pregnancy; she sometimes received
them from her mistress, and sometimes from _Pizzy_; that her mistress
knew what they were for, because she (her mistress) had told her what
they were for; that the medicines did not answer the intended purpose;
that about a week or ten days before she was delivered, _Mr. Pizzy_
came, and upon her informing him that his medicines had not answered
the purpose, he said she must go up stairs with him, which she did;
they were alone; he laid her on the floor, on a great coat, upon her
back; she put the coat over her head, so that she could not see; she
then felt him put some instrument up into her body, which was very
cold, like iron; but she did not see it; that, in consequence, she
lost some blood, not very much nor very little—suppose about half a
pint; did not feel much pain. _Pizzy_ told her it was for the purpose
of making her miscarry. Her mistress was at home, and knew for what
purpose they went up stairs, but was not present. _Pizzy_ came again
the day before she was brought to bed. Examinant told him she had not
miscarried; he then said he must try something further; her mistress
was present, and heard this. _Pizzy_ and examinant went up stairs
again, but her mistress was not present. _Pizzy_ laid her down, as he
did before, on her back, and passed his hand three times up into her
body half way of his arm, which was naked, which gave her a great deal
of pain; and this examinant felt herself very wet, and never felt the
child move afterwards. Examinant thinks she had not gone her time by
six or seven weeks. She felt the child move after she was so first
treated by _Pizzy_, and till within a day or two before the second
time. She thinks she did not go her full time, from the treatment she
received from _Pizzy_.”
Footnote 59:
It is said that a surgeon and midwife have been since tried for this
crime before the Supreme Court of Justiciary, and sentenced to
fourteen years transportation. _Ibid._
Footnote 60:
Abortio—Abortus, formed of _ab_ from, and _orior_ to be born. Among
the ancient physicians the term _Abactus_ or _Abigeatus_, was used for
a miscarriage procured by art, or force of medicines, in
contradistinction to _Abortus_, which is natural. But the moderns
acknowledge no such distinction.
Footnote 61:
See our history of the Juniperus Sabina, vol. ii, p. 578.
Footnote 62:
It is a curious circumstance, that, although _Hippocrates_ prohibited
physicians from assisting in procuring abortion, he relates the case
of a young woman whom he had recommended to dance, and use other
violent exercise, for that purpose, in whom it produced the effect,
and without materially injuring the woman.
Footnote 63:
Amor. l. 2, eleg. 14.
Footnote 64:
Tertull. de Anima, apud oper. p. 323, ed _Rigalt_.
Footnote 65:
On the uncertainty of the signs of murder in the case of Bastard
Children. Read before the London Medical Society, and published in the
sixth volume of “Medical Observations and Inquiries.”
Footnote 66:
A dissertation on Infanticide, in its relations to Physiology and
Jurisprudence, by _W. Hutchinson_, M.D. Edit. 2, London 1821.
Footnote 67:
See our chapter on the methods of treating Asphyxia, vol. ii, p. 75.
Footnote 68:
We have no word in the English language so expressive as _viable_.
That adopted by Dr. _Gordon Smith_, _rearable_, is a very clumsy
substitute. The subject has been very fully discussed by _Professor
Capuron_, to whose most excellent work, entitled “La Medecine Legale,
relative a l’Art des Accouchemens,” we must refer the reader.
Footnote 69:
Dr. _Hutchinson_ states that the weight of the fœtus at the full term
of utero-gestation has generally been rated too high; apparently from
this having been stated from conjecture, rather than from the evidence
of the balance.
It appears from the observations of _Dr. Hunter_, made at the British
Lying-in hospital, on the bodies of several thousand new-born and
perfect children, that the weight of the smallest was about _four
pounds_; and of the largest _eleven pounds two ounces_; that of by far
the greater proportion was from _five to eight pounds_. _Dr. Clarke’s_
inquiries furnished nearly similar results; he found that the average
weight of male children was _seven pounds five ounces and seven
drachms_; and that of female, _six pounds eleven ounces and six
drachms_, (Phil. Trans. vol. lxxiv.) _Dr. Clark_, of Dublin, found it
vary from _four_ to _eleven pounds_. _Dr. Merriman_ states, in his
lectures, that he delivered one which weighed _fourteen pounds_, (it
was born dead,) and _Dr. Croft_ delivered one alive weighing _fifteen
pounds_. It is somewhat less in France than in England; of fifteen
hundred and forty-one examined by _Camus_, under circumstances similar
to the foregoing, the greatest weight was _nine pounds_, and of this
there were sixteen instances; the ordinary, from _five_ to _seven_;
and the average _six pounds and about a quarter_; there were
thirty-one instances in which it was as low as _three pounds_,
although _Baudelocque_ states that he saw several instances in which
the weight was about _ten pounds_, a few where it was _twelve_, and
one of _thirteen_. Subsequent observations on twenty thousand children
at the Hospice de la Maternité, at Paris, have shewn a few instances
where it has been _one hundred and sixty-eight ounces_, that is _ten
pounds and a half_, which has been the highest term. In Germany it
appears to be nearly the same as in France; for _Roederer_ states the
average weight to be from _five pounds_ to _six pounds and a
half_.—_Hutchinson, L. C._
Footnote 70:
We have already given a scale of the dimensions of the skeleton of the
fœtus, according to the accurate observations of _M. Beclard_, vol.
iii, p. 75.
Footnote 71:
See _Dr. Merriman_ on difficult parturition, p. 51.
Footnote 72:
_Baglivi._ Op. Omnia, p. 299.
Footnote 73:
_Margaret Dickson_, whose remarkable resuscitation after execution we
have already noticed (vol. ii, p. 91) was convicted on the evidence of
a medical person, who deposed that the lungs of the child _swam in
water_.
Footnote 74:
De. Offic. Med. de Vulner. renunciat.
Footnote 75:
Op. Patholog. Pract. t.i.
Footnote 76:
De Fallaci Pulmon, Infant. Experiment.
Footnote 77:
On the uncertainty of the signs of murder in the case of bastard
children.
Footnote 78:
Memoires de l’Academie Royale des Sciences, Année, 1769.
Footnote 79:
Anatom. Reform. p. 71.
Footnote 80:
It should be understood, adds _Dr. Hutchinson_, that these children
had never been fed before they were placed in the _turning box_ at the
hospital; which, perhaps, with the want of due warmth, &c. may have
prevented their lungs being as much dilated as those of children of
the same age, under ordinary circumstances.
Footnote 81:
Stockholm, Acad. Hand. t. xx, p. 40.
Footnote 82:
Dissert. de Docimas. Pulm. Ploucq.
Footnote 83:
This author relates the results of four hundred examinations of bodies
of children made at the Hospice de la Maternité at Paris, for the
purpose of furnishing some evidence on this subject, and the results
of them are almost as various as it was possible for them to have
been, within a certain range.
Footnote 84:
Principles of forensic medicine, p. 336.
Footnote 85:
The umbilical cord generally separates from the navel on about the
_fifth_ day, and is almost always partially detached on the _fourth_;
the ulcerated surface is commonly healed by the _eighth_ or _ninth_
day.
Footnote 86:
Principles of forensic medicine, p. 311.
Footnote 87:
See _vol._ i, _p._ 219, _tit. Supposititious Children_.
Footnote 88:
At this moment London is infested by numerous bands of infant
depredators, who in desperate hardihood, skill, perseverance, and
combination, emulate the oldest criminals; female infants are
permitted to walk the most public streets at mid-day, whose _apparent_
age might bring their criminal associates within the statute _18
Eliz._ The new vagrant act may give an useful stimulus to the police
on this point, however vexatious and impolitic it may be on others.
Footnote 89:
_Alice de Walborough_, æt. 13, was burnt for murdering her mistress.
Footnote 90:
At _Abingdon_ assizes, Feb. 23, 1629, before _Whitlock_ justice, one
_John Dean_, an infant between eight and nine years, was indicted,
arraigned, and found guilty of burning two barns in the town of
_Windsor_; and it appearing upon examination that he had malice,
revenge, craft, and cunning, he had judgment to be hanged, and was
hanged accordingly. _Note_, _1 H. P. C._ _p._ 25. At _Dorchester_
assizes, March 1794, _Elizabeth Marsh_, aged 15 years, was convicted
of the murder of _John Nevil_, her grandfather, at _Morden_, and was
executed.
Footnote 91:
_Giles East_, a boy under 17 years of age, was convicted at the
Kingston Assizes of carnally knowing a girl of 9 years of age, (stat.
_18 Eliz._) and was executed Jan. 20, 1823.
Footnote 92:
At Bury assizes 1748, _William York_, a boy of ten years of age, was
convicted before Lord Chief Justice _Willes_ for the murder of a girl
of about five years of age, and received sentence of death: but the
Chief-Justice, out of regard to the tender years of the prisoner,
respited execution, till he should have an opportunity of taking the
opinion of the rest of the judges, whether it was proper to execute
him or not, upon the special circumstances of the case, which he
reported to the judges at Serjeant’s-inn in Michaelmas term following.
The boy and girl were parish children, put under the care of a
parishioner, at whose house they were lodged and maintained; on the
day the murder happened, the man of the house and his wife went out to
their work early in the morning, and left the children in bed
together; when they returned from work, the girl was missing; and the
boy being asked what was become of her, answered that he had helped
her up and put on her cloaths, and that she was gone he knew not
whither. Upon this, strict search was made in the ditches and pools of
water near the house, from an apprehension that the child might have
fallen into the water. During this search, the man, under whose care
the children were, observed, that a heap of dung near the house had
been newly turned up; and upon removing the upper part of the heap, he
found the body of the child about a foot’s depth under the surface,
cut and mangled in a most barbarous and horrid manner.
Upon this discovery, the boy, who was the only person capable of
committing the fact that was left at home with the child, was charged
with the fact, which he stiffly denied.
When the coroner’s jury met, the boy was again charged, but persisted
still to deny the fact. At length, being closely interrogated, he fell
to crying, and said he would tell the whole truth. He then said, that
the child had been used to foul herself in bed; that she did so that
morning (which was not true, for the bed was searched and found to be
clean); that thereupon he took her out of the bed, and carried her to
the dung heap; and with a large knife, which he found about the house,
cut her in the manner the body appeared to be mangled, and buried her
in the dung heap; placing the dung and straw that was bloody under the
body, and covering it up with what was clean; and having so done, he
got water and washed himself as clean as he could.
The boy was the next morning carried before a neighbouring justice of
the peace, before whom he repeated his confession, with all the
circumstances he had related to the coroner and his jury. The justice
of the peace very prudently deferred proceeding to a commitment, until
the boy should have an opportunity of recollecting himself.
Accordingly he warned him of the danger he was in if he should be
thought guilty of the fact he stood charged with, and admonished him
not to wrong himself: and then ordered him into a room, where none of
the crowd that attended should have access to him.
When the boy had been some hours in this room, where victuals and
drink were provided for him, he was brought a second time before the
justice, and then he repeated his former confession: upon which he was
committed to gaol.
On the trial evidence was given of the declarations before-mentioned
to have been made before the coroner and his jury, and before the
justice of the peace; and of many declarations to the same purpose
which the boy made to other people after he came to gaol, and even
down to the day of his trial; for he constantly told the same story in
substance, commonly adding that the devil put him upon committing the
fact. Upon this evidence, with some other circumstances tending to
corroborate the confessions, he was convicted.
Upon this report of the Chief-Justice, the judges, having taken time
to consider it, unanimously agreed,
1st, That the declarations stated in the report were evidence proper
to be left to the jury.
2dly, That supposing the boy to have been guilty of this fact, there
are so many circumstances stated in the report, which are undoubtedly
tokens of what my Lord Chief-Justice _Hale_ somewhere calleth a
_mischievous discretion_, that he is certainly a proper subject for
capital punishment, and ought to suffer; for it would be of very
dangerous consequence to have it thought, that children may commit
such atrocious crimes with impunity.
There are many crimes of the most heinous nature, such as in the
present case the murder of young children, poisoning parents or
masters, burning houses, _&c._ which children are very capable of
committing; and which they may in some circumstances be under strong
temptations to commit; and therefore, though the taking away the life
of a boy of ten years old may savour of cruelty, yet as the example of
this boy’s punishment may be a means of deterring other children from
the like offences; and as the sparing this boy, _merely on account of
his age_, will probably have a quite contrary tendency, in justice to
the public, the law ought to take its course; unless there remaineth
any doubt touching his guilt.
In this general principle all the judges concurred: but two or three
of them, out of great tenderness and caution, advised the
Chief-Justice to send another reprieve for the prisoner; suggesting
that it might possibly appear on farther inquiry, that the boy had
taken this matter upon himself at the instigation of some person or
other, who hoped by this artifice to screen the real offender from
justice.
Accordingly the Chief-Justice did grant one or two more reprieves; and
desired the justice of the peace who took the boy’s examination, and
also some other persons in whose prudence he could confide, to make
the strictest inquiry they could into the affair, and report to him.
At length he, receiving no farther light, determined to send no more
reprieves, and to leave the prisoner to the justice of the law at the
expiration of the last: but, before the expiration of that reprieve,
execution was respited till farther order, by warrant from one of the
Secretaries of State: and at the Summer assizes 1757, he had the
benefit of his Majesty’s pardon, upon condition of his entering
immediately into the sea-service.
Footnote 93:
There is a precedent in the register, _fol._ 309, _b_, of a pardon
granted to an infant within the age of seven years, who was indicted
for homicide: in this case the jury found, that he did the fact before
he was seven years old. _1 H. P. C._ _note_, _p._ 27.
Footnote 94:
See preceding _Note_.
Footnote 95:
Vide ante, vol. i, tit. Ideots and Lunatics.
Footnote 96:
If the _fact_ be found, he must be committed under the statutes 48 &
_49 Geo._ 3, for safe custody. See vol. i, p. 306.
Footnote 97:
“By the common law, if it be doubtful whether a criminal, who at his
trial is in appearance a lunatic, be such in truth or not, it shall be
tried by an inquest of office to be returned by the sheriff of the
county wherein the court sits, and if it be found by them that the
party only feigns himself mad, and he still refuse to answer, he shall
be dealt with as one that stands mute.” _1 Hawk. P. C._ _p._ 2, and
authorities there cited; as to standing mute see vol. 2, _p._ 56, and
_12 Geo._ 3, _c._ 20.
Footnote 98:
For the case of _Bellingham_ executed for the murder of _Mr.
Percival_, see Appendix to _Collinson_ on Lunacy.
Footnote 99:
_Lord Ferrers_ committed the murder of his steward _Johnson_ after
drinking porter to excess. See State Trials. _John Dey_ of Dereham, in
Norfolk, after a paroxysm of drunkenness rose in the middle of the
night, and cut the throats of his father and mother, ravished the
servant maid in her sleep, and afterwards murdered her! A somewhat
analogous case was presented to us in the history of _Nicholson_, who
murdered _Mr._ and _Mrs. Bonar_ at Chiselhurst. These men were,
however, condemned and executed.
Footnote 100:
Here again the law of the land is at variance with what we conceive to
be the law of Nature; and it is at variance with itself, for it is a
strange anomaly that by the law of real property, an infant _in ventre
sa mere_ may take an estate from the moment of its conception, and yet
be hanged four months afterwards for the crime of its mother.
Footnote 101:
This is another instance in which the question of superfœtation may
arise, for a woman, according to that doctrine, may be delivered of
one child, and at the same time be pregnant of another.
Footnote 102:
_Sir Mathew Hale_ says this case did occur at Aylesbury.
Footnote 103:
For the Scotch law on this subject see _Burnett_’s Crim. Law, 595.
Footnote 104:
Cases of mistaken identity have occurred more frequently than persons
unacquainted with the subject could suppose. We shall relate a few
instances. At the Old Bailey sessions, for September 1822, before the
Common Serjeant and Middlesex Jury, _Joseph Redman_ was indicted for
assaulting _William Brown_, on the King’s highway, and taking from his
person a gold watch, &c. his property. Prosecutor stated, on
cross-examination, that he knew a man of the name of _Greenwood_, so
much like the prisoner, with his hat on, that he should hardly know
one from the other. _Greenwood_ was in custody, and appeared at the
bar, when the similarity between them struck every body with
astonishment. The prisoner, _Redman_, proved an _alibi_, and the jury
returned a verdict of _not guilty_. We have frequently in the
preceding parts of our work alluded to the case of _Richard Coleman_,
a brewer’s clerk, who was indicted at the assizes held at Kingston, in
Surry, in March 1749, for the rape and murder of _Sarah Green_ on the
23d of July preceding, when he was capitally convicted, and executed
on Kennington Common, on the 12th of April 1749. In this case,
_Coleman_ was positively sworn to by _Sarah Green_, just before her
death, as being one of the assailants. Two years after the execution
of this unfortunate man, it was discovered that _James Welch_, _Thomas
Jones_, and _John Nicholls_, were the persons who had treated _Sarah
Green_ in the inhuman manner which had occasioned her death. _John
Nicholls_ was admitted King’s evidence, and _Welch_ and _Jones_ were
accordingly convicted and executed. Another case in which the identity
of a person was erroneously sworn to, was that of _Mr. James_, a
tailor, who was robbed on the Dulwich road, by the notorious gang of
highwaymen that infested the environs of London, and was headed by a
person named _Cooper_, who, after a life of crime, suffered death for
the murder of _Saxby_, near Dulwich. In this case _Mr. James_ swore
positively to two soldiers in the Guards, who were accordingly tried
for the offence, but, fortunately, acquitted. A short time after this
event the same gang robbed one _Jackson_, a farmer, in a lane near
Croydon, for which robbery two farriers, named _Skelton_ and _Killet_,
were apprehended, and being tried at the ensuing assizes for Surry,
the latter was acquitted, but the former was convicted on the positive
oath of the person robbed, and, although innocent, suffered death.
_Martin Clinch_, bookseller, and _James Mackley_, printer, were tried
at the Old Bailey, in 1797, before _Mr. Justice Grose_, for the wilful
murder of _Syder Fryer, Esq._ at the back of Islington workhouse, and
were convicted and executed. On this occasion the identity of the
prisoners was positively sworn to by _Miss Ann Fryer_, who was in
company with her cousin, the deceased, at the time of the robbery and
murder. Some years afterwards _Burton Wood_, who was executed on
Kennington common, and _Timms_, who suffered a similar fate at
Reading, severally confessed at the gallows the commission of the
deed, for which _Clinch_ and _Mackley_ had innocently suffered. To the
above interesting cases we may add that of _Robert_ and _Daniel
Perreau_ (twin brothers,) who were tried in 1775, and executed for a
forgery upon _Mr. Adair_. These persons so nearly resembled each other
that _Mr. Watson_, a money scrivener, who had drawn eight bonds, by
order of one or other of the brothers, hesitated to fix on either, in
consequence of their great personal resemblance; upon being pressed,
however, to make a positive declaration, he at length fixed upon
_Daniel_. The name of these unfortunate men is familiar to the public,
from the well known exclamation of our late king, upon being asked to
pardon _Dr. Dodd_, “if I _save Dodd_, I shall have _murdered_ the
_Perreaus_.”
Upon the subject of personal identity, a curious question has
presented itself for discussion, which requires some notice on this
occasion—_the degree of light which may be necessary to enable an
observer to distinguish the features, so that the person maybe
hereafter identified_? In a case which occurred in France in 1809, of
a person shot in the night, it was stated that the flash of the pistol
enabled the witness to identify the features of the assassin. The
possibility of the statement was referred to the physical class of the
Institute, who reported against it. Still, however, _M. Foderé_, who
relates the circumstances, is inclined to believe that, if the persons
be at a small distance, and the night be dark, such an event is by no
means impossible. (_Med. Leg._ t. i, p. 28.) The following English
case may be here introduced in illustration of the question. “_John
Haines_ was indicted, _January 12, 1799_, for maliciously and
feloniously shooting at _H. Edwards_, _T. Jones_, and _T. Dowson_,
Bow-street officers, on the highway. _Edwards_ deposed that, in
consequence of several robberies having been committed near Hounslow,
he, together with _Jones_ and _Dowson_, were employed to scour that
neighbourhood; and that they accordingly set off in a post-chaise on
the evening of Saturday, November 10th, when they were attacked near
Bedfont by two persons on horseback, one of whom stationed himself at
the head of the horses, while the other went to the side of the
chaise. The night was dark, but _from the flash of the pistols_ he
could distinctly see that it was a dark-brown horse, between 13 and 14
hands high, of a very remarkable shape, having a square head, and very
thick shoulders; and, altogether such that he could pick him out of
fifty horses; he had seen the horse since at _Mr. Kendall’s_ stables,
in Long Acre. He also perceived, _by the same flash of light_, that
the person at the side-glass had on a rough-shag, brown great coat.”
Writers on forensic medicine have enumerated the various
circumstances, by which the countenance of an individual may be so
changed, as to defeat every attempt to identify him. _Foderé_ mentions
the following, _age; loss, or acquisition of fat; change in the colour
of the eyes or hair; the effects of climate, diet, diseases, and
passions of the mind_. These may also be metamorphosed by art. The
influence of mental anxiety in changing the countenance is universally
acknowledged—
Danger, long travel, want, or woe,
Soon change the form that best we know;
For deadly fear can time outgo,
And blaunch at once the hair;
Hard toil can roughen form and face,
And want can quench the eye’s bright grace,
Nor does old age a wrinkle trace
More deeply than despair.
_Marmion, Canto I._
Footnote 105:
Or _Guillot’s_ daughter, so named from a physician of the name of
Guillot, its inventor; it is singular, that a somewhat similar engine,
which is or was preserved in the Tower of London, was called the
Maiden in Scotland, and in England the Earl of Exeter’s daughter. By
the same figure, the Gunner’s daughter is the carriage to which a
sailor is lashed for punishment.
Footnote 106:
In this opinion we are further confirmed by the debate in the House of
Commons, March 1823, on the case of Colonel _Allen_.
Footnote 107:
We have heard of Martinets of the old school who have reprimanded
their surgeons for such interference; we hope the instances are rare.
Footnote 108:
No person ought to be entrusted with the execution of any sentence,
who has been personally offended by the crime committed; for this
reason the commanding officer of a regiment, who has a direct personal
interest in the preservation of its discipline, and therefore may
entertain angry feelings towards offenders, is not the most proper
person to superintend executions.
Footnote 109:
This species of defence was set up in the case of _M‘Quirk_, who was
pardoned for the murder of _George Clarke_ at a contested election,
for Middlesex, (_see Foote’s_ Remarks.) We have again to report that
precedents ought not to be drawn from times of turbulence or political
dissention.
Footnote 110:
See _Apoth. Comp._ v. _Warburton_, _3 Barn. & Ald._ 46; _Apoth. Comp._
v. _Roby_, K. B. Feb. 28, 1822; _Apoth. Comp._ v. _Barstow_, York
assizes Aug. 1822.
Footnote 111:
Skinner 568. 4 Inst. 251. 2 Brownl. 255, 256, &c. 1 Ld. Raym. 454.
Footnote 112:
2 Brownl. 256, 260.
Footnote 113:
14 & 15 H. 8. cap. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physicians 3. 2
Bulst. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486.
Footnote 114:
1 Mar. c. 9. Rastal’s Physicians 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cr. Jac. 121. 4
Inst. 251. 2 Brownl. 257, 262, 265, 266.
Footnote 115:
2 Brownl. 261, 262.
Footnote 116:
14 & 15 H. 8. cap. 5.
Footnote 117:
11 Co. 59. a. Co. Lit. 36. a. 2 Inst. 81. Hard. 305.
Footnote 118:
Rastal. Physician 1.
Footnote 119:
14 & 15 H. 8. c. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physician 3. 2
Bulstr. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486. Cart. 115.
6 Mod. 125.
Footnote 120:
1 Mar. c. 9. Rastal Physician 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cro. Jac. 121. 4
Inst. 251. 2 Brownl. 357, 262, 265, 266. Cart. 115.
Footnote 121:
2 Brownl. 264.
Footnote 122:
2 Brownl. 264.
Footnote 123:
2 Brownl. 264.
Footnote 124:
2 Brownl. 264.
Footnote 125:
2 Brownl. 258.
Footnote 126:
2 Brownl. 264.
Footnote 127:
2 Brownl. 263.
Footnote 128:
2 Brownl. 258.
Footnote 129:
Gobd. 418. 2 Roll. Rep. 356. Wing. Max. 239.
Footnote 130:
2 Co. 55. a. 3 Co. 59. b. Gobd. 324. Co. Lit. 381. 5 Co. 99. a.
Footnote 131:
Wing. Max. 239.
Footnote 132:
Wing. Max. 239.
Footnote 133:
2 Brownl. 264. Cart. 115.
Footnote 134:
2 Brownl. 264.
Footnote 135:
Co. Lit. 141. a. Hob. 87. Bridg. 11. 2 Brownl. 266. Dyer 220. pl. 14.
Footnote 136:
Co. Lit. 141. a.
Footnote 137:
7 Co. 14. a. Calvin’s case. Hob. 87. 2 Brownl. 198, 265. Hard. 140.
Footnote 138:
8 E. 3. 30. b.
Footnote 139:
2 Inst. 401, 402.
Footnote 140:
2 Brownl. 265. 2 Inst. 402. F. N. B. 209. f.
Footnote 141:
2 Brownl. 265. Vet. N. B. 138. b. 2 Inst. 442.
Footnote 142:
2 Inst. 580, 581, 582, &c. Skinner 464.
Footnote 143:
2 Inst. 588. 2 Brownl. 198, 265.
Footnote 144:
2 Brownl. 265. 2 Inst. 587.
Footnote 145:
Dy. 313. pl. 91. 1 Co. 47. a. Dav. 2. a. Co. Lit. 1. b. Cro. Car. 82,
83. 2 Roll. Rep. 246, 247. 1 Jones 234. Lit. Rep. 43.
Footnote 146:
1 And. 45. 3 Leon. 58. 4 Leon, 40, 41.
Footnote 147:
4 Co. 43 a.
Footnote 148:
2 Ventr. 170. 4 Co. 43. a. 5 Co. 61. a. 11 Co. 59. b. 1 Roll. Rep. 95.
Cawly 78. Noy 82. Bridgm. 122. Cro. Jac. 481. Wing. Max. 695.
Footnote 149:
Postea 154. b. Raymond 330. Hawkes’s Max. 21. Styles 391.
Footnote 150:
Cro. El. 208. 2 Leon. 47. Owen 84, 85. 1 And. 245. 6 Co. 64. b. 3
Bulstr. 66, 185. 2 Roll. Rep. 276. Winch. 92. Lane 69. Lit. Rep. 64,
67, 289. Styles 391.
Footnote 151:
Wing. Max. 67. Lit. Rep. 66.
Footnote 152:
Lit. Rep. 66. Wing. Max. 67. Styles 78.
Footnote 153:
Cart. 120, 121.
Footnote 154:
Postea 121. a.
Footnote 155:
2 Inst. 379, 380. W. 2. c. 11. Plowd. 17. b. Rast. Account 2.
Footnote 156:
Postea 120. b. 2 Brownl. 266. 2 Inst. 380. 2 Bulstr. 139. Fitz. Barr.
44. Br. Account 6. Br. Det. 16. Br. Execution 135. Br. Faux
Imprisonment 32.
Footnote 157:
2 Brownl. 266. 15 R. 2. c. 2. 8 H. 6. c. 9. 6 Mod. 125.
Footnote 158:
Antes 60. b. 41. a. 8 Co. 41. 11 Co. 43. b. F. N. B. 73. d.
Footnote 159:
Antes fo. 38. b. 41. a. 60. b. F. N. B. 73. d. 10 Co. 103. a. Rep. Q.
A. 146.
Footnote 160:
2 Brownl. 257, 262, 265, 266. Rast Phys. 7. Lit. Rep. 169, 172, 173,
212, 213, 248, 249, 350, 331. Cr. Jac. 121. Cr. Car. 257. 1 Jones 263.
Car. 115. 4 Inst. 251.
Footnote 161:
14 & 15 H. 8. cap. 5. Roll. 598, 4 Inst. 251. Rast. Phys. 3. 2 Bulstr.
185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones
261. Cro. Jac. 121, 159, 160. Cro. Car. 256. Palm. 486. Cart. 115. 8
Co. 133. b. 1 Lev. 195.
Footnote 162:
Cro. Jac. 133. Doct. pl. 70, 325. Lit. Rep. 172. Moor 464. 1 Sid. 336.
Dyer 39. pl. 62. Fitzgib. 250.
Footnote 163:
Cr. Jac. 133. Cr. Car. 5. Mo. 464. Postea 133. b. 9 Co. 110. b. Doct.
pl. 70, 325. Palm. 287. Lit. Rep. 172, 252. 2 Bulstr. 94. Antes 93. a.
1 Sid. 336.
Footnote 164:
7 Co. 25. a. Dyer 15. pl. 78. Cr. Car. 209. Co. Lit. 303. b. 6 Mod.
119.
Footnote 165:
Hob. 199. Hard. 38.
Footnote 166:
Styles 354.
Footnote 167:
3 Co. 52. b.
Footnote 168:
3 Co. 52. b. Cro. El. 62. 1 Leon. 242.
Footnote 169:
Antea 119. b. 2 Brownl. 266. 2 Inst. 380. Bar. 44. Br. Account 6. Br.
Det. 16. Br. Exec. 135. Br. Faux Imprisonment 32. 2 Bulstr. 139. 6
Mod. 125.
Footnote 170:
2 Brownl. 266. Hardr. 482.
Footnote 171:
Antea 119. b.
Footnote 172:
13 El. cap. 7. 1 Jac. cap. 15.
Footnote 173:
4 Inst. 277 & 278.
Footnote 174:
15 R. 2. c. 2. 8 H. 6. c. 9.
Footnote 175:
Dr. _Stanger_ had before made an unsuccessful application to this
Court. He had obtained a rule calling on the president and fellows of
the college to shew cause why a mandamus should not issue “commanding
them to admit him to examination for admission into the class or order
of candidates for election into the society or fellowship of the said
college.” But as Dr. _Stanger_ had presented himself to the _comitia
minora_ to be examined, which court is constituted by one of the
bye-laws with power only to examine candidates of a certain
description within which Dr. _Stanger_ did not come, this Court in
_Easter_ term 1796 discharged the rule for the mandamus; saying that
it did not appear that Dr. _Stanger_ had a right to be examined by the
_comitia minora_; but that if he had any title as being one of the
_homines facultatis_ under the charter, he should apply to the body at
large. The Court also intimated at that time a strong opinion that the
bye-laws were reasonable and valid.
Footnote 176:
_V._ 1 _Salk._ 193 S. C.
Footnote 177:
_N. B._ Mr. _Nourse_ was in fact a very good Scholar.
Footnote 178:
2 _Wils._ 359.
Footnote 179:
In the close of the first book of _Paulus Zacchias’s famous Quæstiones
Medicolegales_, there is a full discussion of the point of filiation,
as between two husbands, where a woman soon after the death of her
first husband marries a second. The question is raised in these words.
“_Filius mulieris, quæ illico ab obitu conjugis alteri nupsit, et
novem decemve mensium spatio peperit; cujusdam præsumi debeat._” See
Paul. Zacch. lib. 1. tit. 5 _quæstio ultima_. The same point is
investigated in the learned treatise by Alphonsus a Caranza, De Partu
Naturali et Legitimo. See cap. 26. s. 71. The first book of Paulus
Zacchias, who was a physician at Rome, first came out in 1621. The
tract by Alphonsus a Caranza was first published about five years
afterwards.
Footnote 180:
The book here cited is a collection of adjudications in the supreme
court of Friesland. The author was _Johannes a Sande_, who was himself
a senator of that court. An improved edition of the book came out in
1656. The particular case above cited was adjudged 27th October, 1617.
What increases the latitude of the decision for the legitimacy is,
that the husband was for some time a valetudinarian, and for 14 days
before his death confined to his bed. The book being probably rare
amongst English lawyers, and the arguments in the case comprising very
ancient and curious research in a moderate compass on the _ultimum
tempus pariendi_ for women, the whole of Sande’s report of the case
will be given in a note at the end of the present article.
Footnote 181:
_27. Octobris. Anno 1634._
Footnote 182:
See the case of _Carrascola_, the Neapolitan Admiral.
Footnote 183:
For a curious argument on this case see one of the subsequent
pamphlets in Howell.
Transcriber’s Note
This book uses inconsistent spelling and hyphenation, which were
retained in the ebook version. Many typographical errors in Latin and
French sections were left as printed. Ditto marks and dashes used to
represent repeated text have been replaced with the text that they
represent. Some corrections have been made to the text, including
adapting the spelling in the table of contents and Index to match the
main text, and normalizing punctuation.
Page numbering is restarted in the appendix so to page numbers in the
appendix have been prefixed with a_.
Further corrections are noted below:
p. 17: from having being intoxicated -> from having been intoxicated
Footnote 8: Feb. 7, 16S3 -> Feb. 7, 1683
p. 30: to solve this problemn without -> to solve this problem without
p. 35: our chaprer on rape -> our chapter on rape
p. 50: be too frequently, or too forcible urged -> be too frequently, or
too forcibly urged
p. 84: Alhough a child -> Although a child
Footnote 48: this law occured at Stafford -> this law occurred at
Stafford
Footnote 54: physicians from assissting in procuring -> physicians from
assisting in procuring
p. 96: will be very liable so endanger the life -> will be very liable
to endanger the life
p. 98: evidence of the orensic physician -> evidence of the forensic
physician
p. 156: Cave’e case -> Cave’s case
p. 172: earliest and lastest periods of -> earliest and latest periods
of
p. 172: indentity of, 222 -> identity of, 222
p. a_25: the aid Act expressed -> the said Act expressed
p. a_38: belonging to the said Corporaration -> belonging to the said
Corporation
p. a_59: Mystery or Profession of an Apothcary -> Mystery or Profession
of an Apothecary
p. a_62: ascertaining the skill and abililities -> ascertaining the
skill and abilities
p. a_64: Certificate of such fitness aad qualification -> Certificate of
such fitness and qualification
p. a_69: be deemed a Trespassser -> be deemed a Trespasser
p. a_70: pass against the Plantiff -> pass against the Plaintiff
p. a_74: sive aliquibus Pharmacpœiis -> sive aliquibus Pharmacopœiis
p. a_86: nominand’ & sssignand’ & successores -> nominand’ & assignand’
& successores
p. a_95: onely are to be undetstood -> onely are to be understood
p. a_98: unskilfull or temerarious practice -> unskilful or temerarious
practice
Anchor position of Footnote 111 assumed
Footnote 115 2 Brownl. 201, 202. -> 2 Brownl. 261, 262.
Anchor position of Footnote 148 assumed
p. a_137: one of the two univerties -> one of the two universities
p. a_142: means of constituing a -> means of constituting a
p. a_144: but it sufficient to say -> but it is sufficient to say
p. a_146: _Mary_ instituled _An Act touching the Corporation of
Physicians in_ -> _Mary_ intituled _An Act touching the Corporation
of Physicians in_
p. a_147: was repungant to the Statute Laws -> was repugnant to the
Statute Laws
p. a_148: of their learniug and skill -> of their learning and skill
p. a_177: said secretary shall immediarely acquaint -> said secretary
shall immediately acquaint
p. a_179: To tho Secretary to the Commissioners -> To the Secretary to
the Commissioners
p. a_193: proper to remove plaintiff home -> proper to remove the
plaintiff home
p. a_204: evidence in a canse in London -> evidence in a case in London
p. a_206: Of this the prothonotory had -> Of this the prothonotary had
p. a_207: no additional experiments were necessasy -> no additional
experiments were necessary
p. a_213: on a trial of legitimancy -> on a trial of legitimacy
p. a_213: unless very extroardinary indeed -> unless very extraordinary
indeed
p. a_213: other precedents and authorites -> other precedents and
authorities
p. a_219: decimo Augusti, Anuo 1631 -> decimo Augusti, Anno 1631
p. a_222: moribus ac pndicitiâ minimè -> moribus ac pudicitiâ minimè
p. a_230: Pesident of the said College -> President of the said College
p. a_231: there was no water in the diaphragam -> there was no water in
the diaphragm
p. a_236: Where those fits owing to any -> Were those fits owing to any
p. a_238: slighty dicoloured by a little -> slightly discoloured by a
little
p. a_238: the Apotheeary produced a powder -> the Apothecary produced a
powder
p. a_242: Spirits of Vitrol and Salt -> Spirits of Vitriol and Salt
p. a_248: A. Who did you receive a message from -> Q. Who did you
receive a message from
p. a_248: Were did you meet -> Where did you meet
p. a_248: the tongue potruding beyond the fore teeth -> the tongue
protruding beyond the fore teeth
p. a_256: I connot say I did -> I cannot say I did
p. a_264: if previous to an epilepy -> if previous to an epilepsy
p. a_275: decline giving any opiniou -> decline giving any opinion