A knowledge of these facts ought to lead to a more rational system of

interment. We can scarcely expect to see the fulfilment of the wish

expressed by Evelyn in his _Sylva_, the establishment of a _Necropolis_

without the walls; but much may be effected by judicious regulations;

and the law will uphold any parochial officer in the conscientious

discharge of the requisite duties; in certain cases it invests him with

a considerable latitude of discretion; thus when a body is brought to be

buried “it seemeth to be discretionary in the minister whether the

corpse shall be carried into the church or not, and there may be good

reason for this, especially in cases of infection.”[164] A curious

controversy has lately taken place upon the introduction of iron

coffins, and chemists have differed widely upon the subject of their

relative durability, when compared with those of wood. Sir _William

Scott_ (now Lord _Stowell_) decided, and we think very justly, that

under ordinary circumstances the former appear less perishable, and

therefore when admitted into burying-grounds, that the parties are to be

held liable to extraordinary fees.

Burial must not be delayed or denied, (_Lindwood_ 278) nor hindered for

debt,[165] (_Burn Ec. L._ 238) nor disturbed for purposes of dissection

(_King v. Lynn, vide Post._) Formerly by 30 C. 2, st. 1, c. 3, all

bodies were directed to be buried in woollen, under the penalty of £10;

this enactment, which was made with the idea of encouraging the woollen

trade, is now repealed.

In relation to their effects upon the public health, the arrangement and

cleansing of privies deserve some notice in this place. It has been long

admitted that the effluvia which issue from these receptacles of human

ordure are highly deleterious, and have been known to occasion a species

of ophthalmia, diarrhæa, and dysentery, while in a more concentrated

form these emanations have proved suddenly fatal,[166] by producing an

affection named by the French Nosologists[167] the _Plomb_, or the

Asphyxia of privies. _M. Dupuytren_ has given us many particulars

respecting this affection; sometimes the patients are strongly

asphyxied, and death takes place in a very short period; at others, the

symptoms are less intense, and if the patients be carried into the open

air, after a short interval, they make deep inspirations, and the

breathing is gradually restored, although it continues laborious; the

motion of the heart becomes perceptible, nevertheless the pulse is weak

and small; the digestive and loco-motive apparatus have lost their

contractile force; the functions of the brain are suspended; and if the

patient finally recovers, he is a long time in re-establishing his

strength. An emetic appears to be the remedy upon which the _nightmen_

rely for relief.

The above observations are sufficient to shew the propriety of placing

these establishments under police regulations, especially where the

deleterious influence of their emanations are more decidedly remarkable,

as in hospitals, prisons, and barracks. The governments of different

countries have sought to prevent the evil, by various laws, edicts, and

ordinances.[168]

In this country, we apprehend their supervision belongs to the very

ancient and extensive jurisdiction of the Commissioners of Sewers,[169]

who although not engaged like the Œdiles of ancient Rome, in

superintending magnificent aqueducts, are occupied in directing the far

more stupendous and wonderful works which extend beneath the foundations

of our mighty city, and dispense to its inhabitants the essential

requisites for comfort, cleanliness, and health.

OF QUARANTINE, LAZARETTOS, AND OTHER ESTABLISHMENTS OF PLAGUE POLICE.

The histories of different ages and countries furnish numerous records

of the occasional prevalence of certain diseases, generally of the

febrile class, which at one period have occasioned the most destructive

mortality, while at others, they have assumed so mild a form as to have

affected only few, and to have destroyed scarcely any of the population.

Such diseases, when they attack a great number of individuals about the

same time, or in rapid succession, are very properly designated by the

term EPIDEMIC (from επὶ _upon_ and δημος _the people_) and whenever

their course is attended with considerable mortality, they are moreover

said to be _Pestilential_. No fact in the history of medicine has been

the subject of more general and anxious enquiry, or of more keen

controversy, than that of the origin of Epidemic diseases, and of the

immediate cause of their propagation and decline; and although the field

has been industriously explored by the most able and experienced

philosophers and physicians, the subject still remains involved in

considerable obscurity; indeed, such different and even opposite views

have been entertained upon the question, that writers have not even

agreed upon the exact import of the terms employed in their

descriptions, but each author appears to have acknowledged a latitude of

acceptation according to the particular theory which he has been anxious

to support. The term EPIDEMIC ought in strictness to signify a disease

which, as we have before stated, attacks numbers at or nearly the same

time, without any reference to the cause from which it may have

originated, or be diffused; but this construction has been considerably

limited by many writers, who have applied it, exclusively, to denote

those maladies which derive their origin solely from a noxious state of

the atmosphere, and which are incapable of being communicated from one

person to another; distinguishing diseases of the latter kind by the

epithet _Contagious_.[170]

A similar ambiguity involves the terms CONTAGION and INFECTION, which

are regarded by many authors as synonymous and convertible expressions,

signifying the matter or medium by which certain diseases are

communicated from one individual to another; while others, on the

contrary, confine the term _Contagion_, as its etymology would suggest

(_con_ and _tango_) to the communication of those diseases, which can

only be transferred by actual contact of the sick, or of the palpable

matter from their bodies; and apply the term INFECTION to the

communication of those other diseases which spread by means of invisible

effluvia. Now we would observe in the first place, that according to the

most correct rules of philology, the import of words is not necessarily

to be deduced from their derivation, but frequently to be either assumed

conventionally according to a definition, or to be adhered to in the

sense affixed to it by established usage; in the next place, the

distinction which the etymologist would thus establish between the terms

_Contagion_ and _Infection_ is not accurate, for in every case of

infection, there is an actual contact of morbific matter, whether

visible or not, and some diseases, as the _Small-pox_, are communicated

both by palpable matter and by imperceptible effluvia.[171] Our best

writers[172] have therefore agreed to consider the word _Contagion_ as

expressing the morbid poison, or the means of transferring a disease,

and _Infection_ as denoting the operation of the poison, or the act of

communication of the disease. Dr. _Hancock_[173] very justly observes

that in almost all the best Latin writers on medicine, _Contagium_, and

_Contagio_ are the only words used to denote the effluvia, or emanations

arising in disease, which are capable of infecting the sound, whether

_mediately_ by the air, or by infected goods called _Fomites_, or

_immediately_ by the touch: to limit contagion therefore to the

propagation of disease by contact only, would be to disallow the more

comprehensive use of the term in our best authors.

Those diseases which occur among the inhabitants of a particular region

or place, are said to be ENDEMIC, or ENDEMIAL; thus _Intermittent_, and

_Remittent_ fevers, which are occasioned by the miasmata of marshy

grounds are _Endemic_ in low countries: the _Goitre_, or bronchocele,

connected with that peculiar intellectual imbecility which characterises

the CRETIN, is ENDEMIC among the Alps; in these instances, some _local_

cause obviously exists which produces the disease in the respective

districts: the disease therefore belongs to the districts, and affects

those that reside there, but extends no farther; and hence the

distinction between _Endemic_ and _Epidemic_ diseases is obvious and

important.

Having thus determined the value and signification of the terms, as used

by different authors, and which must necessarily be introduced on the

present occasion, we come to the consideration of that momentous

question, which has excited so keen an interest in the political,

mercantile, and medical circles of the present age, and which has been

farther heightened by the late reference of the subject to the

Legislature—WHETHER EPIDEMICAL DISEASES BE EVER PROPAGATED BY

CONTAGION?——It is impossible to imagine a question of deeper importance;

it not only involves the general safety of mankind, but is intimately

connected with the commercial welfare of nations; for, as it has been

truly observed, if these diseases be not contagious, Quarantine laws are

absurd, and commerce needlessly burthened: the establishment of lines of

circumvallation, guarded by cordons of troops, and the appointment of

armed police to confine the diseased to their habitations, among their

yet uninjured friends and relatives, are perverse and barbarous

regulations, and the fears thus unnecessarily induced are as dangerous

to the community as they are pernicious in their effects to the common

feelings of humanity. But, on the other hand, if the doctrine be true to

the extent our most accurate observers have deliberately reported,

municipal restraints cannot be too rigidly enforced, nor can the conduct

of those speculative theorists be too severely reprehended, who, by

lulling the ignorant and unwary into false notions of security, not only

deprive them of the obvious means of safety, but render them even the

intermediate agents of disease and death, to their families and

neighbours.

The term PLAGUE has been applied to various epidemical diseases attended

with great mortality; and we find in the Hebrew, Arabic, Greek, Latin,

and in all the other ancient languages with which we are acquainted,

words having a corresponding import, and signifying, generally, an

extensive and destroying malady. It appears, however, that these raging

epidemics have consisted of different maladies in different instances,

having been sometimes the _Remittent Fever_ originating from marsh

effluvia, and sometimes the true _Plague_, modified by circumstances and

situations: even in our own times some doubt has existed respecting the

true nature of the different pestilences which have raged in

Europe.[174] The term PLAGUE is now more correctly limited in its

acceptation, and it is exclusively understood to denote “_a contagious

and malignant fever, which is accompanied by buboes and

carbuncles_.”[175] As the nature of maladies of high degree virtually

includes that of all minor affections, the Plague, in its relations to

the doctrine of Contagion, may on this occasion be considered as the

representative of every species of Typhus; while for the same reason the

Pestilential Epidemic which is generally known by the name of the YELLOW

FEVER may be regarded as including in its history all the subordinate

varieties of _Bilious Remittents_.

It is scarcely necessary to observe that it would be as foreign to the

object of this work, as incompatible with the plan of its execution, to

enter into any historical details upon the subject of Pestilence, or

upon the controversies which have been carried on respecting the manner

in which Epidemics are propagated; nor is such a review now required to

complete the medical literature of the subject; for Dr. _Hancock_[176]

has lately supplied the chasm by a very able critical examination of the

principal writers which have appeared at different times on the subject

of Epidemic and Pestilential diseases, and to this work we beg to direct

the reader’s attention, although as medical Jurists we are not disposed

to concur in those half measures of _Quarantine_ which the result of his

researches might incline some to adopt. We may state in general terms,

that the concurrent testimony of different ages and countries sanctions

the opinion that Plague arises from specific contagion—is communicated

_immediately_ by contact,[177] or _mediately_ by the agency of infected

goods[178] (_Fomites_); and that its progress may be arrested by a

vigilant system of Police, cutting off every communication between the

infected and the healthy. The contagious nature of Plague has however

been denied, and many thousand lives have paid the forfeit of the

delusion; it was thus during the Plague of Marseilles in 1720, that in

consequence of the physicians in Paris having decided against its

contagious nature, a plan, in conformity with that opinion was adopted

in the treatment of the sick, and _Sixty Thousand_ people fell victims

to the disease in the space of seven months. A similar prepossession

induced the faculty of Sicily to declare the Plague which ravaged

Messina in 1743, _not_ to be contagious, but the loss of _Forty-three

Thousand_ lives gave a practical refutation to the hypothesis.

In our own times, a work characterised by singular arrogance and

sophistry, has appeared from the pen of Dr. _Charles Maclean_,[179] the

object of which is to shew that “a belief in the contagious nature of

the Plague constitutes one of the most destructive errors in the whole

circle of human opinions;” in the very commencement of this work he

betrays an ignorance which is not uncommonly associated with that

species of unbecoming confidence, which so strikingly characterises the

writings of this author. “It is unequivocally ascertained,” says he,

“that the doctrine of contagion, as the cause of epidemic diseases, was

unknown to the ancient physicians; by whom these maladies were expressly

attributed to the air:” and he then proceeds to state that the prevalent

notion of contagion being an inherent quality of pestilential fever, is

derived from a Popish plot of the sixteenth century; an assertion which

has not even the merit of originality[180]. _Hippocrates_ and _Celsus_

do not certainly take any notice of the subject of contagion; but

_Aristotle_, _Thucydides_, _Livy_, _Virgil_, _Lucretius_, _Ovid_,

_Galen_, and _Arctæus_ all contain passages which prove most

unequivocally their belief in the contagious nature of Epidemics; the

limits of this work will not allow us to be prodigal in illustrations,

we must therefore refer the reader to a very interesting memoir upon the

subject by Dr. _Yeats_. (_Journal of Science and the Arts._) With

respect to the work of Dr. _Maclean_ we would further observe, that he

has artfully brought together all those facts which are calculated to

afford any support to his doctrine, while he has so ingeniously tortured

those that make against it, as to disguise their force and true

bearings. Mr. _Tully_[181] has lately furnished the public with some

striking instances of the total want of candour with which Dr. _Maclean_

pursued his researches, but the fact is that he determined on the Plague

being _non_-contagious long before he ever visited those countries where

it prevails; and hence all the advantages which he possessed, and the

opportunities of investigation which his residence in the Levant

afforded, have not contributed one fact to the elucidation of the

subject, but have, on the contrary, thrown additional obstacles in the

path of the honest inquirer.—What can be the organization of that man’s

mind, who goes into the Greek Pest Hospital at Constantinople, and,

according to his own statement, is attacked on the fifth day after he

entered it, with the Plague, and yet continues to assert that the malady

is _non-contagious_?

To Dr. _Maclean_, however, the medical world are certainly greatly

indebted, for had not his _Researches_ been published, it is more than

probable that the question of Contagion would not have received the many

able elucidations which the experience and science of this country has

since afforded it:[182] nor would an opportunity have occurred by which

the most eminent physicians, and those practically acquainted with the

malady, could have delivered a _viva voce_ opinion before a Committee of

the House of Commons.[183] It may be thought extraordinary that a work,

so unphilosophical as that to which we allude, should have created so

strong a public sensation; but when we consider the eagerness with which

mankind seize any circumstance, however weak, that points towards the

removal of burdens under which they are suffering, we shall cease to

feel surprised that a work of such bold, and promising assertions,

should have soon found its way, through commercial channels, to the

table of the Privy Council; nor is it strange that government, naturally

anxious to relieve commerce of unnecessary burdens, should have

instituted an inquiry to ascertain whether Quarantine regulations were

actually necessary, and how far they might be relaxed with safety to the

country. A report was accordingly requested from the College of

Physicians; who, in order to meet the wishes of the government,

appointed a committee from their own body to undertake the requisite

examination; it is almost unnecessary to state the conclusion at which

they arrived; their report is virtually included in that of the

Committee of the House of Commons (for which _see Appendix, p. 185_.)

With respect to the contagious nature of those fevers which have lately

committed their ravages in these dominions, especially in Ireland, the

proofs appear to be so satisfactory and evident, that we question the

stability of that man’s mind who can doubt, and still more who can deny

it. But although the question of contagion as relating to certain

epidemics appears to be firmly established, we are by no means

insensible to the difficulties and anomalies with which the subject is

embarrassed; several of which are so important in relation to Police

legislation, that we feel it necessary to offer a few observations upon

each of the following questions, and which appear to include all the

leading points of controversy.

I. _Are all Epidemic Fevers contagious?_

II. _Does the matter of Contagion require the aid of a certain state

of the air (Pestilential constitution) to give effect to its powers,

and propagation; and to what causes is the decline and cessation of a

contagious pestilence to be attributed?_

III. _Can filth and animal putrefaction generate contagion?_

IV. _Can a Fever produced by fatigue, unwholesome food, &c. be

rendered contagious in its career by animal filth, impure air, &c._

I. _Are all Epidemic Fevers contagious?_

It has been maintained by Cleghorn[184], Hamilton[185], Clark[186], and

Fordyce[187], that _all_ fevers are naturally contagious; a position

which, if less mischievous in its tendency, is equally erroneous in

principle, as that which rejects the doctrine of contagion altogether.

It is most probable that none of those fevers which are produced by

marsh _miasmata_ are ever propagated from one individual to another by

contagion; ample evidence of this truth is afforded by the writings of

Dr. James _Lind_[188], where it appears that the most malignant and

fatal species of fever have been contracted on shore, but which had

never been communicated to the ship’s company. Dr. Trotter[189] also

says, “in a voyage down the coast of Guinea, in the Assistance, in the

year 1762, we had scarcely a man indisposed. We wooded and watered at

the island of St. Thomas, and with a view to expedition, a tent was

erected on shore, in which the people employed on these services were

lodged during the night. On the middle passage every man who slept on

shore died, and the rest of the ship’s company remained remarkably

healthy.” For similar facts see _Medical Observations and Inquiries,

vol._ iv, _p. 156_; _Clarke’s Observations on the Diseases which prevail

in long Voyages to Hot Countries, p. 124_; and _Dr. Robertson’s

Meterological and Physical Observations, &c. 4to, p. 32, 33, and 98_.

And in connection with this subject, it becomes our duty to offer a few

remarks upon the nature of that peculiar Epidemic, called THE YELLOW

FEVER.[190] Its doubtful affinity with bilious intermittent and

remittent fevers, has furnished a subject for keen controversy; and

while its contagious quality has been pertinaciously maintained by one

set of Physicians,[191] it has been as warmly denied by others. The

malady has raged repeatedly as an Epidemic in the United States, and was

considered for some time as _Endemic_ to that country. “The interests of

humanity,” says Dr. Rush,[192] “are deeply concerned in the admission of

the rare and feeble contagion of the yellow fever, and Philadelphia must

admit the unwelcome truth sooner or later that the yellow fever is

engendered in her own bowels; or she must renounce her character for

knowledge and policy, and perhaps with it, her existence, as a

commercial city.” In the year 1811, one of the most acute and learned

works[193] that has graced the literary annals of our country, appeared

from the pen of Dr. _Bancroft_, in order to prove that the yellow fever

is no other than an aggravated form of that multifarious disease, which

is well known to result from the action of those exhalations commonly

denominated _marsh miasmata_, and that, like all fevers from that cause,

it possesses _no contagious_ quality; but he adds, “it is indeed

probable that the _miasmata_ of particular towns, mostly either

sea-ports, or accessible to shipping, in which the aggravated forms of

yellow fever have almost exclusively prevailed in the West Indies, the

United States of America, and the Southern parts of Europe, differ from

the common exhalations of marshes, in _quality_, as well as degrees of

concentration: but whether this difference be occasioned merely by the

greater heat which, at such times, commonly exists in these towns than

in the surrounding country, and which may exalt the powers of such

_miasmata_, by perfecting the decompositions which produce them, or

whether it be partly the result of a difference in the organized matters

decomposed by that excessive temperature, I am unable to determine.” We

must refer the reader to Dr. _Bancroft’s_[194] work for farther

information upon the subject; and we have little doubt but that, after

an attentive consideration of the rich store of facts and observations

which this author has presented to us, he will be led to a conclusion in

favour of the general non-contagious nature of this malady, although we

by no means intend to deny that it never assumes the character of a

contagious Epidemic. Sir Gilbert _Blane_, whose testimony upon this

subject must necessarily have great weight, has made the following

observations. “In that district of the globe in which are situated the

islands called the Great and Little Antilles, also in the continental

regions round the gulph of Mexico, and along the coast of South America,

the fevers which prevail there have certain symptoms peculiar to

themselves, and not occurring in any other part of the globe, except

when carried from thence, which they sometimes have been, particularly

to the sea-port towns of North America, and the South of Europe.

The peculiarities alluded to, consist in a universal yellowness of the

skin, and the vomiting of a dark coloured fluid, resembling the grounds

of coffee.

Sir Gilbert _Blane_ considers, that the yellow fever may proceed from

three remote causes, very distinct in their nature. The _First_, is that

which consists in the exhalations of the soil, such as produce the

endemic fevers in other countries and climates, and prevailing chiefly

in autumn. The _Second_, is that which consists in foul air engendered

on board of ships on long voyages, in circumstances of personal filth,

and want of ventilation, frequently combined with hardships and

privations, and is the same with those stagnated and corrupted effluvia

of the living human body, which produce typhus fever. The _Third_ cause

is that in which there is no suspicion of foul air, either from the

soil, or from the living human body, but merely from circumstances of

intemperance, fatigue, and insolation, affecting chiefly, and almost

exclusively, new comers from temperate and cold climates.[195] The first

of these, he says, may be distinguished by the appellation of the

_Endemic_; the second, by that of the _Pestilential_, _Malignant_, or

_Typhus Icterodes_; the third, by that of _Sporadic_.[196] And Sir

Gilbert adds, that it has been for want of making this distinction, and

from classing all these three under one head, that the endless and

acrimonious controversies regarding contagion have arisen. There is not

the least suspicion in any rational mind, that the endemic and sporadic

species are contagious, this is only alleged with regard to the

pestilential or typhus species; but it may be asked what proof there is

that this last is specifically different from the other two? To this Sir

Gilbert answers, that it is a matter of history; that besides the

endemic and sporadic fevers prevailing at all times in the

above-mentioned regions, there has occurred at various intervals of

time, a raging epidemic,[197] which could be traced to the arrival of a

ship or ships in the circumstances above recited, and at a season in

which the ordinary malignant fevers do not prevail. To those engaged in

researches upon this obscure subject we would farther recommend the

perusal of a work lately published by that veteran in the cause, DR.

JACKSON, on the subject of the Andalusian Fevers[198]; in which he

examines the evidence in support of the supposed introduction of the

yellow fever into Spain, and of its real or supposed propagation by

contagion. The importation of the disease from a foreign country is

credited by the authorities and mass of people in Spain, though the

author thinks it has never been proved by evidence, or even brought to

reasonable probability; the events of the year 1820 stripping the

assumption of every claim to credence, as no attempt has been made to

trace the disease, in that instance, to foreign origin. The belief

universally obtains through Spain, that the disease is personally

contagious; that is, capable of propagation from individual to

individual, by contact or proximity; Dr. Jackson, however, considers

that this opinion, confidently as it is maintained, is invalidated by

authentic facts and records; but we must proceed to the consideration of

our second problem, viz:

II. _Does the matter of Contagion require the aid of a certain state of

the air, (“Pestilential Constitution of the atmosphere.”) to give effect

to its powers, and propagation; and to what causes are the decline and

cessation of a contagious Pestilence to be attributed?_

It was laid down as a fundamental principle by Dr. _Mead_, that a

“_corrupt_” state of the air is indispensable to the diffusion of a

plague; and although we are at this day unable to ascertain in what this

vitiated state of the air consists, yet there are too many stubborn

facts on record to allow us to deny, or even to doubt the necessity of

its existence for the propagation of a contagious fever. How are we

otherwise to explain the fact of a malady like the plague, which,

although it shall never be entirely absent from a city, rages only

epidemically and fatally at particular times? Thus it is collected from

the bills of mortality of London, that, although there were but four

great plagues in this metropolis during the seventeenth century, _viz._

the years 1603, 1625, 1636, and 1665, (in the two first of which about

35,000, and in the last 68,000 died) yet that there were but three

years, from the commencement of the bills of mortality in 1603 until

1670, which were entirely free from the plague.[199] _Diemerbroeck_ also

remarks, that whenever the plague has been excited out of its proper

season it has not spread; a fact corroborated by _Russel_ and

_Hodges_.[200] It seems probable that a particular state of the

atmosphere, in its relation to temperature and humidity, is one of the

conditions, subordinate perhaps, of this “pestilential constitution.”

Dr. _Russel_ has observed that, in _winter_, when infected persons have

come to places about Aleppo, some of whom have died of the disease in

the families where they lodged, the distemper was not by such means

propagated. Dr. _Pugnet_ says that the susceptibility of a person for

the contagion of plague is greatly increased by a moderately warm and

moist atmosphere; and Dr. _Bancroft_[201] has adduced some observations

made by himself in proof of the influence of atmospheric heat and cold,

in both their extremes, in rendering the contagion dormant. The singular

career which a pestilential epidemic runs, having a beginning, height,

and decline, can only be explained on the idea of the pestilential

constitution of the air undergoing corresponding changes; and it is

probable that the return of a plague is a revival of infection that has

been latent, or dormant, until a particular state of atmosphere rouses

it to action.

III. _Can Filth and Animal Putrefaction generate Contagion?_

We have already made an allusion to some of those facts that must assist

us in the solution of this problem, under the head of Public Health

(_see page 98_.) “The putrefaction of animal matter,” says Dr.

_Bancroft_,[202] “is but a natural separation of organized bodies,

previously held together by animal or vegetable life, by which there can

be no chance, nor even possibility of thus generating any thing so

wonderful, and so immutable as contagion; which resembling animals and

vegetables in the faculty of propagating itself, must, like them, have

been the original work of our common creator, and must have been

continued in existence by the energies of a living principle, exerted

successively in the different bodies, through which it has been

transmitted from one generation to another; as well might we revive the

forever exploded doctrine of equivocal generation, and believe, as

formerly, that insects and reptiles are the offsprings of mere

corruption, as to believe that a substance so analogous to them, in that

most mysterious and essential function of self-propagation, could

originate from that cause, or from any operation of chemical agencies

alone.” We are not disposed to believe that the specific contagion of

typhus can thus be directly generated, but may not typhus be excited by

causes independent of contagion, and having been once generated become

contagious? If, says Dr. _O’Brien_, the opinion that contagion is the

_only_ source of typhus be true, we are at once reduced to the necessity

of supposing that all contagious diseases were derived from Adam

himself. It is an indubitable fact that the plague has always first

appeared, and established its head quarters, in the filthiest parts of

crowded, ill constructed, and large cities. _Blackmore_ remarks that the

impurity and filth, connected with the galleys and slaves at Marseilles,

filled the air with offensive smells easily perceivable by those who

passed along the adjoining shore; and in 1720 the plague broke out

there; in London, Dr. _Heberden_ also observes, that the plagues of 1626

and 1636 broke out at Whitechapel, a part of the town which abounded

with poor, and with slaughter-houses. The importance of cleanliness is

also shewn by the exemption of Oxford[203] and other places from

pestilential diseases, as recorded by different authorities, in

consequence of regulations for ensuring it; while the late dreadful

increase of contagious fever in Cork sufficiently demonstrates the evils

which arise from deficient ventilation and accumulated filth, and to

which causes Dr. _Barry_, in his report, ascribes the awful afflictions

to which we allude. _Erasmus_, in a letter to _Franciscus_, Cardinal

_Wolsey’s_ physician, ascribes the sweating sickness, which was a

species of plague, in a great measure to the incommodious form, and bad

exposition of their houses, to the filthiness of the streets, and to the

sluttishness within doors.[204] That particular species of typhus, which

is called from its origin the _Jail Fever_, is evidently the offspring

of filth and deficient ventilation. The Lord Chancellor _Bacon_ has made

the following observation upon this subject: “The most pernicious

infection next to the plague is the smell of the jail, where prisoners

have been long, close, and nastily kept; whereof we have had, in our

time, experience twice or thrice, when both the judges that sat upon the

jail, and numbers of those who attended the business, or were present,

sickened upon it, and died.”[205] Dr. Bancroft, who has dwelt very fully

upon the subject of jail fever,[206] considers it as a species of

typhus, the contagious essence of which is not generated, but merely

lighted up by the filth of prisons.

IV. _Can a Fever produced by fatigue, unwholsome food, &c. be rendered

contagious in its career by animal filth, impure air, &c.?_

We have no hesitation in answering this question in the affirmative, and

our opinion will receive ample support from the history of the different

epidemic fevers which have raged in our own times. Dr. _Prichard_[207]

is persuaded that a contagious fever may have a spontaneous origin, that

is, that the ordinary sources of derangement may occasion such a kind of

disordered action, that the excretions or effluvia from the subject of

it shall, under certain circumstances, produce a specific effect upon

another. The truth of this position is amply confirmed by comparing the

different phenomena which, according to Dr. _Prichard_,[207] are

displayed by the epidemic in St. Peter’s Hospital, and the Bristol

Infirmary; in the former house the medical wards are very small, having

been originally destined, not for the accommodation of the sick, but for

the abode of paupers; in consequence of which it became necessary to

place the beds very near to each other, and to crowd the rooms with

patients; under these circumstances the disease was manifestly

contagious, while in the well-ventilated Bristol Infirmary,

notwithstanding the indiscriminate manner in which the patients with

fever were scattered through the wards, not a single instance occurred

of its propagation. The Dublin Reports of Drs. _Grattan_[208] and

_Crampton_[209] are equally satisfactory upon this question; atmospheric

vicissitudes, intemperance, fatigue, suppressed perspiration, the

depressing passions, &c. when excessive, will induce fever; and under

these circumstances, the accumulation of animal effluvia, in filthy,

crowded, and ill-ventilated dwellings, will generate contagion, which of

course accelerates the march of the epidemic.

Having thus, as briefly as the nature of the subject would allow,

enumerated the several questions to which the doctrine of contagion has

given rise, we now proceed to the consideration of those legislative

enactments, by which different nations are enabled to ward off the

calamities of Plague. It is generally admitted, that the plague has not

originated in this country; and therefore, from its insular situation,

the infection can only be introduced through the medium of ships. Egypt,

the Levant, and other parts of the Mediterranean are seldom free from

it, and hence it is chiefly through the medium of the commerce with

these countries that the importation of the contagion is to be

apprehended. To guard against this danger, the different governments

require all ships sailing from any of these parts, to bring certificates

from the magistracy of the port they last came from, declaring their

country free from any contagious distemper: these are called “BILLS OF

HEALTH,” and are distinguished as _clean_ or _foul_, as the place they

come from may be healthy or infected. On the production of these bills

it is determined by the Guardians of Health (in England, Custom-house

officers) whether the vessel shall be permitted to trade or communicate,

or, as it is technically expressed, be permitted to _pratique_ till she

has performed a QUARANTINE[210] of as many days as the superintendants

may in their judgment or caprice be pleased to direct. A period of

_forty_ days (hence the term _Quarantine_) has been generally fixed upon

as the maximum of this seclusion, on the expiration of which it is

customary abroad for physicians, accompanied by some members of the

board of health, who are frequently merchants of the place, to examine

the ship’s crew; and strict search is made on board, by persons

appointed to see whether the number of sailors and passengers

corresponds with those mentioned in the bills of health, and if any

difference appears it will be difficult in any country to obtain

admission to _pratique_, or at least it will be necessary to perform a

full quarantine from the time of such detection.

Such commodities however as are _deemed_ incapable of retaining or

communicating the infectious taint, as corn, &c. are permitted to be

landed immediately by the mariners themselves, at proper places provided

for that purpose, which are generally called LAZARETTOS, some of which

in the principal ports of the Mediterranean are of very considerable

extent, and as to division and appropriation appear so well calculated

for their intended purposes as to be worthy of imitation. The best

praise of their regulation is indeed to be found in their success; for

though twelve months never elapse but that the plague rages in some part

of the Levant and of the coasts of Barbary, the infection has seldom

reached the coasts of Italy, France, or Spain. Terrible exceptions may

be adduced to this remark, yet they may generally be traced to some

clandestine violation of the Quarantine laws, rather than to their

imperfect execution, as in the recent instance of the plague[211] at

Malta in 1813, when the cupidity of a poor cobler in smuggling some

materials from a Greek or Turkish vessel in the harbour of Valetta,

introduced the pest into the island, to which he and his family fell the

first victims.

The objections to the Quarantine laws, as executed in the Mediterranean,

arise more from the indiscriminate and vexatious application of them to

cases for which they were not provided, than from any general relaxation

or want of vigilance in the officers appointed to enforce them:

occasionally indeed the courtesy of these gentlemen will deem a governor

or wealthy noble to be incapable of communicating infection, though from

the most suspected port, while a whole fleet of merchantmen, arriving

with clean bills from the Atlantic, will be detained for some weeks, _ex

abundanti cautela_, without admission to _pratique_; from such instances

travellers who have been annoyed, and merchants who have been injured,

have imbibed a very general prejudice against these laws; nor have they

wanted learned authorities to contend with them for their abolition, on

the grounds of their abstract inutility in preventing infection

(admitting the contagious nature of the disease which some have denied),

and the injurious tendency to the general interests of commerce.

We have drawn the readers attention to the regulations of the

Mediterranean, because we are convinced that if there be any value in

the system it must be made complete in all its parts, and ought to be as

much the subject of international as of local legislation; unless all

countries, and more particularly those in more immediate contact or

communication with the infected regions, concur in the restrictions, it

will be vain to enforce them in Great Britain. In the instance of the

plague, the want of precaution among the Mahomedans allows the disorder

to spread from Constantinople to every part of Greece, from Smyrna to

the whole African coast of the Mediterranean, while the European shores

are free from its calamitous progress.

By the statute 26 _Geo._ 2, all vessels, persons, and goods, coming from

places from whence the plague may be brought, were subject to perform

Quarantine in such places as shall be appointed by his Majesty in

Council,[212] and notified by proclamation in the London Gazette; this

and all other acts relating to Quarantine were repealed by the 45th

_Geo._ 3, _c._ 10, by which these laws were more extensively regulated,

certain duties are levied for the maintenance of the system, and until

they are paid according to the tonnage (see 26 _Geo._ 3, _c._ 60) of the

vessel, she cannot be permitted to clear inwards; it is enacted that all

ships and vessels, as well his Majesty’s ships of war as all others,

coming from or having touched at any place, from whence his Majesty in

Council shall have adjudged and declared it probable that the plague or

any other infectious disease highly dangerous to the health of his

Majesty’s subjects, may be brought; and all ships, vessels, or boats,

which may have received any person, goods, letters, &c. from such

vessels, &c. shall be considered liable to Quarantine within the meaning

of the Act, and to any order of the King in Council, published by

Proclamation in the London Gazette. “And whereas certain goods and

merchandize are more especially liable to retain infection, and may be

brought from places infected into other countries, and from thence

imported into Great Britain or the islands aforesaid,” his Majesty is

enabled to make special orders as to any particular goods or vessels

liable to any alarming or suspicious circumstances. In cases of

emergency, the privy council, or any three of them, may make such orders

as they shall think necessary; and this not only as to ships and

merchandize, but generally in case of infectious disease appearing in

Great Britain. This clause deserves very particular attention, for

though we have been happily free from any very severe visitation of

contagious disease, yet there are instances where local regulations

would have been highly expedient, at least to the extent of directing

the destruction of the clothes and beddings of persons dying of highly

infectious disorders, and securing the purification, fumigation, and

ventilation of their rooms or houses; some doubt may indeed arise

whether the words of the clause are sufficiently strong to warrant such

measures, “and in case of any infectious disease or distemper appearing

or breaking out in Great Britain or the islands aforesaid, to make such

orders, and give such directions, in order to cut off all communication

between any persons infected with any such disease or distemper and the

rest of his Majesty’s subjects, as shall appear to the said Lords of his

Majesty’s privy council, or any three or more of them, to be necessary

or expedient;” nothing is here said of goods.

The Quarantine Laws may also from time to time be mitigated if necessary

by the Privy Council. Sec. 12.

Ships liable to quarantine must make signals on meeting other ships

within four leagues of the United Kingdoms, or the Islands of Guernsey,

&c. under penalty of £200. Sec. 14.[213]

Masters of vessels coming from abroad must give an account to the pilot

of the places at which they have laden or touched. Sec. 16. And must

answer inquiries made by an appointed officer of the customs, on oath or

not as he may be required. Sec. 18.

Pilots are bound to take vessels liable to quarantine into appointed

places. Sec. 17. And if the vessel arrive at any other place, she may be

forced to repair to that appointed. Sec. 19.

Any Master having touched at infected places, &c. and omitting to

disclose the same, or to hoist prescribed signals,[214] shall be guilty

of felony without clergy. Sec. 19.

Commanders must deliver up bills of health, manifest log book and

journal, under penalty of £100. Sec. 20.

Masters quitting vessels or permitting others to quit them, or for not

conveying vessels to the appointed places, subject to a penalty of £500.

Persons leaving vessels before they are discharged are subject to a

penalty of £200, and six months imprisonment; and any person may use

necessary force to compel them to return on board, on their attempting

to quit such vessel. Sec. 21.

A penalty of £200 on improperly landing goods from a vessel which has

performed quarantine in any foreign Lazaret. Sec. 22.

Disobedience or refractory behaviour in persons under or liable to

quarantine, or persons having intercourse with them, may be punished by

force, and persons escaping from, or refusing to repair to, a lazaret

vessel or place appointed, are guilty of felony, without benefit of

clergy. Sec. 23. Persons so escaping may be seized by any one for the

purpose of being carried before a Justice of the Peace, who by warrant

may direct their conveyance to the vessel or lazaret from which they

have escaped, or confine them in such place of custody, (not being any

public jail,) and under such restrictions as to having any communication

with any other persons, as may in the discretion of such Justice of the

Peace or Magistrate, (_calling to his aid, if he shall see fit, any

Medical person_,) appear to be proper. Sec. 25.

Goods liable to quarantine shall be opened and aired, as directed by

order in council. Sec. 29, 31.

Forging certificates is felony without benefit of clergy. Sec. 30.

In case it shall happen that any part of _Great Britain_, _Ireland_, or

the Isles of _Guernsey_, _Jersey_, _Alderney_, _Sark_ or _Man_,

_France_, _Spain_, or _Portugal_, or the _Low Countries_, shall at any

time be infected with the plague or any other such infectious disease or

distemper as aforesaid, it shall be lawful for his Majesty to prohibit

and restrain all small boats and vessels under twenty tons, from sailing

out of any port until security be first given by the Master in a bond of

three hundred pounds, conditioned not to touch at such places; penalty

for sailing without giving such security, forfeiture and twenty pounds

per man. Sec. 32.

Publication in the London Gazette to be sufficient notice. Sec. 33.

Offences, not being felonies or subject to specific punishments, may be

determined before two Justices, who may fine not exceeding fifty pounds,

or imprison not exceeding three months. Sec. 38. Offences may be tried

in any county. Sec. 42. The general issue may be pleaded to actions

brought against persons for any thing done in execution of this act,

which action must be commenced within two months, and treble cost shall

be recovered on judgment for the defendant. Sec. 43.

For other points see the act itself, which is further extended by the

44th Geo. 3. c. 98; by this act the signal for the plague being actually

on board, is appointed to be a flag of eight breadths, divided quarterly

of black and yellow by day and two large lanthorns one over the other at

the main-topmast-head by night. Sec. 1.

The Privy Council may order ships coming from America or the West Indies

when the Yellow Fever, &c. prevails there, to go to certain places

without being liable to quarantine, unless it shall be afterwards

specially ordered. Sec. 6. For other regulations, see the Stat.

In Ireland the system of quarantine is regulated by the 40th Geo. 3. c.

79, the general outline of which is the same as in the English acts, but

with some additional severity towards health officers neglecting their

duty, the infliction of which may occasionally be necessary.[215]

It now only remains for us to offer a few remarks upon the practical

question to which all our preceeding researches have naturally tended:

Whether the regulations of Quarantine might not be relaxed and modified

without increasing the hazard of infection? Before this subject can be

seriously entertained, or any concessions safely granted in favour of

the mercantile interests, it must be upon the perfect understanding, and

unreserved admission, that the maladies against which they are directed,

are in the most extensive signification of the term, CONTAGIOUS. No

claim to indulgence or exemption can be admitted, on the ground of

professional scepticism, as it relates to the subject of infection, for

notwithstanding the remarks of Dr. _Adams_,[216] and the _male sedula

nutrix_ of Ovid, of which he so sarcastically reminds us, we are still

unphilosophical enough to maintain that “_one cannot be too cautious_.”

To those who consider our long immunity from plague a sufficient

guarantee for our future security, it may be observed, that although the

Island of Malta is, from many causes, much more exposed to this

infection than Great Britain, yet it was free from plague for _one

hundred and thirty-eight_ years, a period which we must remember has

been exceeded in our own case by only sixteen years; at the same time we

are ready to admit with a periodical writer, that Quarantine regulations

might be amended, and rendered less inconvenient to commerce; they might

for instance be modified as to the required period of segregation. Dr.

_Harrison_, in his examination before the select committee of the house,

stated a fact in connection with this subject, that deserves particular

notice: that while passengers, who have made a long voyage, are liable

to perform quarantine, couriers, who come in the least possible time,

are not under such restrictions.

MEDICAL POLICE.

With the exception of the Quarantine laws, which on account of their

superior importance have been treated in a separate chapter, and some

incidental, rather than direct, aids which the subject receives from the

law of nuisances, &c. there is but little of that regulation in England

which can be strictly denominated MEDICAL POLICE.[217] We have already

expressed our opinion upon the apparent inattention of our Government to

this branch of legislation, and have considered it as the necessary

consequence of the cleanliness and good order by which this nation is so

pre-eminently distinguished; there are, however, some very material

points, the value of which is acknowledged by local adoption, while no

good reason has been adduced against their general extension; these are

the examination of drugs and medicines by the Censors of the College of

Physicians; the Irish Health Act; and the weekly Bills of Mortality.

It has been remarked from the Bench, that there might be particular

reasons for taking especial care of the health of the Capital; granting

this to be true, it still appears extraordinary that no measures of

precaution should have been adopted to prevent or restrain the sale of

factitious, impure, spoilt, or deleterious drugs or medicines, in any

part of England, excepting only the city of London; while it is evident

that from various causes, such as greater and more rapid sale, general

competition, superiority of purchasers, and facility of detection,

frauds or negligences are less likely to happen in the metropolis than

in the provinces; where the slowness and uncertainty of demand may in

some degree excuse the purchase of originally inferior articles from the

wholesale dealers, and will generally account for the subsequent

deterioration of the best drugs. It would occupy too much of our

reader’s time and attention, and very possibly be considered as

irrelevant to the object of the present work, if we were to enter into

any details upon this occasion, and to enumerate the different medicinal

substances which, although originally genuine, become in a short space

of time worse than useless, or whose properties by the operation of

local causes are changed or destroyed.[218] This is a loss upon which

the country practitioner must calculate; but that the inconvenience and

danger may not fall upon his patients, it is surely expedient that some

authority should be established to examine and destroy, as in London,

all spoilt or deteriorated medicines; for this purpose, provincial

censors might be nominated by the College of Physicians, either from

among their own members, or from the most eminent Licenciates, whose

duty it would be to make frequent visits for the purpose of examination,

in market towns; and in all other places, whenever they were called upon

by any sufficient occasion, or requisition.

Another equally important restriction is requisite as well in London as

in the provinces, against the sale of poisonous, or highly dangerous

drugs, to unknown persons. A week scarcely elapses without the relation

in the public journals, of some awful case of murder, suicide, or fatal

accident; surely this is sufficient to shew the necessity of some new

enactment on the subject. We are willing to admit that it would be

difficult to frame an act which should comprehend and class all the

several articles that negligence, folly, or malice might pervert to the

destruction of human life: the desired effect would, however be best

attained by giving to some competent authority the power of publishing

and enforcing, from time to time, such regulations and restrictions as

might be found practically necessary. _Arsenic_, for example, is of all

others, the poison most easy to procure, under various pretences; while

from its exceeding virulence, insipidity, and other qualities, it is

most fatally adapted to the horrible purposes of murder. The general

pretext for its purchase is that of the intended destruction of vermin;

now if mixed with one hundred times its weight of tallow it would be

equally, if not better adapted to the avowed object, while at the same

time it would be thus rendered an inapplicable instrument for the

perpetration of crime. On other occasions it might be combined with some

highly nauseous and colouring material; but it ought never to be sold in

a pure form, except to persons who are well known, and whose ordinary

trades and occupations justify their application for a supply.

_Laudanum_, or _Opium_, from its nauseous taste and smell, is seldom

applied to the purpose of murder, except by suicides; against the sale

of these drugs it would be most difficult to guard, although many fatal

results might have been averted by vigilance and judicious precaution;

the Chemist or Apothecary cannot with propriety refuse it, but he is not

bound to supply more than a single dose to a stranger, and that should

be mixed with some appropriate vehicle, in order to prevent the

designing applicant collecting from shop to shop a quantity sufficient

for any criminal purpose. And we are of opinion that the master, or

principal assistant, should be alone allowed to dispense dangerous

medicines. The careless substitution of one drug for another must be

also considered as a prolific source of mischief; this frequently

happens in the shop of the chemist or druggist, where it is least

excusable; at other times it occurs from the negligence of some

individual, who leaves a poisonous substance in company with articles

that are intended for ordinary use. _Oxalic acid_, to which so many

deaths have been lately attributed, may serve as an instance; in its

external characters it bears such a resemblance to those of common

_Epsom salts_, as readily to deceive the ordinary observer; and as both

substances very frequently become articles of retail custom, they are

usually kept ready for sale, in parcels of an ounce each, a practice

which renders a careless substitution an error of common occurrence; the

employment of a particularly coloured paper, that of _yellow_ for

instance, if used universally as a wrapper for poisonous articles, upon

which also the word _poison_, or _dangerous_, might be legibly printed,

would to a certain degree guarantee the safety of the purchaser; but as

danger might notwithstanding be apprehended in the night, a paper of a

distinct texture might afford additional security; the peculiar

roughness of the Dutch filtering paper which is manufactured from

woollen would answer such a purpose. The labels of phials should in this

particular correspond with the wrappers of dry substances; if the

distinction were once generally adopted by the various dealers, it would

soon become notorious to indifferent individuals, and many fatal

accidents might be prevented, without the aid of legislative

enactment.[219]

The College of Physicians, or a mixed Committee of the Medical Bodies,

might be best entrusted with the powers of regulation to which we have

alluded; while to obviate the jealousy to which such an extension of

their authority would be likely to give rise, a clause might be

introduced, that no regulation should be binding, until sanctioned by a

certain number of the judges, as is done in some other cases of inferior

jurisdictions.

It would be also expedient to establish some summary jurisdiction by

which fumigation, whitewashing, and other cleansing operations, and the

burning of infected clothes, might be effected without delay, whenever

the prevalence of a contagious disease required it. The Irish Health Act

(59 _Geo._ 3. _c._ 41, _see_ APPENDIX, _p._ 164) might also be extended

to such places in England as by authority should be, from time to time,

declared infected.

BILLS OF MORTALITY.

Bills of Mortality were instituted in the city of London in the year

1592, in order to collect and exhibit the number of deaths, and to

record the progress, diffusion, and decline of the epidemic malady, with

which the city was at that time infested; but upon the cessation of the

plague, the bills were discontinued. It appears, however, in consequence

of the recurrence of the sickness, that they were reestablished by

public order in 1603, and on the 29th of October in the same year, being

the first of the reign of King James, the establishment of a regular

series of weekly bills of death commenced. In 1606 the number of

christenings, as well as that of burials, appeared in the returns, and

although diseases and casualties were recorded as early as 1604, no

public notice was made of either before the year 1629, when another

important improvement took place—that of distinguishing between the

sexes. In 1728 the ages[220] of all who died from under two years of age

and upwards were regularly specified, and this may be considered as the

last[221] improvement which the bills of mortality have received; for

notwithstanding the rapid march of those arts and sciences with which

every branch of statistics is so intimately connected, the contents,

arrangement, and language of these bills have remained unchanged. The

collating, printing, and publishing these documents, as far as they

relate to the metropolis, are placed under the superintendance and

jurisdiction of the ancient corporation of parish clerks:[222] a power

which it is hardly necessary to observe is wholly inadequate to the

accomplishment of the medical, political, and moral objects which these

bills are calculated to promote. As to the nature of the diseases of

which persons die, much error must necessarily arise from the absurd

manner in which the investigation is conducted, as the following

statement will clearly demonstrate.—The churchwardens of each parish

within the bills of mortality, appoint two old women to the office of

_Searchers_, who, on hearing the knell for the dead, repair to the

sexton of the parish, to learn the name and residence of the deceased.

They demand admittance into the house to examine the body, in order that

they may see that there is nothing suspicious about it, and _judge_ of

what disease the person died, which they report to the parish clerk. The

regular charge for the performance of this office is _fourpence_ to each

_searcher_; but if an extra gratuity be tendered, they seldom trouble

the domestics with any examination. We entirely agree with Dr.

_Burrows_[223] in thinking that the office, as at present filled, should

be entirely suppressed; and the attestation of a properly qualified

medical practitioner, upon actual knowledge of the disease of which the

person died, or upon inquiry and examination of the body, should be

substituted. Were competent persons only appointed to report, the

nomenclature[224] and classification of diseases, in which there has

been little variation since the origin of the bills, would consequently

be reformed; and we should then derive from them the elucidation of many

important and dubious medical points, as 1. _The causes of many

diseases, and their affinity to one another._ 2. _The rise, situation,

increase, decrease, and cessation of epidemic and contagious diseases._

3. _The means of guarding against their extension and effects._ 4. _The

comparative healthiness of different countries and places, climates, and

seasons._ 5. _The influence of particular trades and manufactures on the

human constitution._ Such are the medical advantages which would arise

from correct and enlarged bills of mortality. Dr. William

_Heberden_[225] has made the following observations upon this subject:

“People have fallen into two opposite errors concerning the Bills of

Mortality; some have considered their authority as too vague to be made

the foundation of any certain conclusions; and others have built upon

this foundation, without sufficiently considering its real defects. Both

parties are equally wrong. The agreement of the bills with each other

does alone carry with it a strong proof that the numbers under the

several articles are by no means set down at random, but must be taken

from the uniform operation of some permanent cause. While the gradual

changes they exhibit in particular diseases, correspond to the

alterations which in time are known to take place in the channels

through which the great stream of mortality is constantly flowing. That

there are, however, many and very great imperfections in these bills

cannot be doubted; for, _First_, the births include only those who are

baptized according to the rites of the church of England, by which means

all Jews, Quakers, and the very numerous body of dissenters are omitted.

_Secondly_, of those who are of the church of England, a very large

proportion are either buried in the country, or in burial grounds

adjacent to London, but without the bills; the burials also in St.

Paul’s Cathedral, in Westminster Abbey, the Temple, the Rolls, Lincoln’s

Inn, St. Peters in the Tower, the Charter-house, the several hospitals

of the metropolis, and other places which are not parochial cemeteries,

are for that reason omitted; besides which, the great parishes of

Mary-le-bone, and Pancras, have never yet had a place in the bills of

mortality. _Thirdly_, many abortives and still-born are noticed in the

deaths, but not in the births.” Dr. _Heberden_ proceeds to examine the

fluctuation observable in certain diseases, and which he considers under

two distinct points of view; the first comprehending their variations in

different years; the second those which take place in different parts of

the same year; we must refer the reader for much curious matter, and

useful information, to his work above cited. Many of the provincial

bills of mortality are more perfect than those of London, a superiority

for which we are indebted to the eminent physicians who have resided in

those districts, in example of which we have only to refer to those of

Chester by Dr. _Haygarth_,[226] of York by Dr. _White_,[227] while from

the returns of Northampton Dr. _Price_ computed his celebrated tables of

the probabilities of life, and in a curious memoir read before the Royal

Society he advances strong reasons for believing that there is a

prodigious preponderancy in favour of the country above the most healthy

cities.[228] We shall conclude this subject with observing, that the

metropolitan bills establish beyond all doubt the gratifying fact of the

superior healthiness of London, notwithstanding its increase of

population, in the present day to what it was during the seventeenth

century, when the deaths exceeded the births, by more than one half of

the whole number; while in the present age, the sum total of births

exceeds that of deaths; the same improvements have taken place also in

the provinces, and we are borne out by the concurrent testimony of our

best political arithmeticians, in the assertion that the value of human

life is increasing in Great Britain, while the diminution in the number

of certain diseases, and the total extinction of others, offer the

surest proofs of the general amelioration that has taken place in our

national habits and manners.

Medical Jurisprudence.

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PART II.

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Medical Jurisprudence.

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PART II.

_Introduction—1. Of Medical Evidence generally—2. Of Marriage and

Divorce—Various Questions connected with the foregoing subjects

elucidated by Physiological Researches—3. Of Legitimacy—Suppositious

Children—Tenant by the Courtesy—Monsters—Hermaphrodites—Physiological

Illustrations—4. Of Idiots and Lunatics—Medical and Physiological

Illustrations—5. Of Nuisances, legally, medically, and chemically

considered—6. Of Impositions—7. Of Life Insurance and Survivorship._

INTRODUCTION.

HAVING thus considered, as far as the limits of our work will allow, the

Charters, Statutes, Laws and Privileges which regulate the several

Public and Corporate Bodies instituted for securing the more regular

practice of Medicine[229] in all its branches: and having commented also

on the Rights, Immunities, and Liabilities, to which Medical

Practitioners are entitled, or subjected, in their several individual

capacities, and enumerated the prominent subjects relating to public

health, it now remains for us to enter into the discussion of the most

important branch of our subject; the most important because, though

questions affecting corporate or individual privileges may be and

occasionally are of great interest to the public, yet the general

administration of justice, as affecting all classes of men in the

enjoyment of their natural and acquired rights, stands on higher ground,

and demands the best attention of all those who either as principals or

assistants; who as judges, advocates, witnesses, or even spectators, are

concerned in its due execution. For this reason, we are about to draw

the attention of Medical practitioners to the nature and importance of

the evidence, which they may be required to give in Courts of Law, on

various subjects in which their science is not merely ancillary, but in

the highest degree essential to the ends of justice. Nor are these

subjects limited, as might at a first and superficial view appear, to

the testimony required of physicians and surgeons in criminal cases, but

extends in a greater or less degree through every branch of

jurisprudence; nor can we yet assert that we have anticipated every

point on which medical, chemical, and surgical questions may arise; as

recent examples have evinced, that the rapid progress of science which

has marked the last half century above all others, is daily eliciting

new points both for scientific and judicial enquiry. We must therefore

for the present content ourselves with following that arrangement of our

subject which is afforded by a natural and immutable scale,—the life and

propagation of the human species, from its commencement to its

close:—prefacing the subject with some short remarks on the nature of

evidence; not indeed as a legal guide to the medical witness, but to

point out to him the sources of higher and more general information.

OF MEDICAL EVIDENCE GENERALLY.

As Physicians, Surgeons, and others conversant in medicine and

chemistry, are constantly called upon to give testimony in Courts of

Justice, it is necessary for us to enter upon this subject of the law of

evidence, so far as it immediately affects the medical witness; it is

proper that he should understand when he is bound to appear, and on what

terms, and it may be useful for him to be prepared, by some previous

knowledge of the usual course of examination, for the difficulties and

objections which may arise in the progress of it. A scientific witness,

fully acquainted with the subject in dispute, and by his particular

knowledge well qualified to inform the Court on the most important

points, is too frequently rendered miserable in himself, and absolutely

ineffective to the ends of justice, by the diffidence which a man of

real acquirement generally feels, when impressed at once with the

novelty of his situation, a sense of the importance of the duty which he

is about to perform, and a consciousness that the truths which he is

about to utter, may be obscured, suppressed, or perverted, by

technicalities for which he is unprepared with any defence; we do not

mean to arraign the present forms of examination in general, when we

assert that some abuse in practice too frequently places the witness in

as painful a situation, as if he were himself a criminal.

Some knowledge of the law of evidence is the best security against this

inconvenience; we propose therefore to lay down a few general rules on

the points most likely to occur, and to refer our readers for more

particular information to those works which expressly or incidentally

treat on this subject.[230]

It is necessary in the first place to consider how the attendance of

witnesses is to be compelled by process, under what terms they must

appear, their liabilities if they fail to appear, and their duties when

in Court.

The writ of Subpœna _ad testificandum_, is the ordinary process of the

Courts for compelling the attendance of witnesses; by this the intended

witness is required to appear at the trial at a fixed time and place, to

testify what he knows in the cause, under the penalty of £100 to be

forfeited to the king.

Four witnesses may be included in one subpœna, but a ticket containing

the substance of the writ (which is to be shewn at the same time) is as

effectual service as the writ itself, (5 _Mod._ 355). The service must

be upon the witness in person, (_Cro. Eliz._ 130) and within reasonable

time, before the trial, respect being always had to the residence and

circumstances of the party.

In Civil suits, the reasonable expense of the witness in going to,

staying at, and returning from the place of trial, must be tendered at

the time of serving the subpœna: (5 _Eliz._ c. 10, f. 12): if this is

not done, the Court will not grant an attachment against the witness

(_Fuller v. Prentice_, 1 _H Bl. Rep_. 49) not even if he be present in

Court, and refuse to be sworn; (_Bowles v. Johnson_, 1 _Bl. Rep._ 36).

But where a witness lives within the weekly Bills of Mortality, it is

usual to leave only one shilling with the subpœna: this limitation is

not created by the statute of _Elizabeth_, nor have we been able to

trace its origin.

The Judge will not compel a witness to be sworn till his reasonable

expenses are paid him. (_ubi supra._)

If a witness fail to attend on subpœna, without sufficient excuse, he is

liable to be proceeded against in one of three ways. 1. By attachment

for a contempt of the process of the Court, from which even a Peer is

not exempt. 2. By a special action on the case for damages at common

law. 3. By an action on the Statute of _Elizabeth_ for the penalty of

ten pounds (5 _Mod._ 355), and for the further recompense recoverable

under the Statute; but this must be by the party _aggrieved_, and where

the further damage has been assessed by the Court, out of which the

process issued. Formerly no remuneration was given to witnesses

attending the trial of criminal causes, yet they were bound to appear

unconditionally, for “Criminal prosecutions are of public concern, and a

witness summoned to appear on a criminal trial has a public duty to

perform; and he ought not to be at liberty to make a bargain for his

appearance, as he may in the case of a civil suit, where only private

interests are involved.” (_Phill. on Evid._). But as such attendance

must frequently have been productive of considerable hardship,

especially to poor persons, the Statute 22 _Geo._ 2. _c._ 3. _s._ 3.

enacts, that when any poor person shall appear on recognizance to give

evidence in cases of larceny or felony, the Court may order the

Treasurer of the County to pay such person, such sum as to the Court may

seem reasonable: as this Statute extended only to poor persons who

appeared on recognizance, and not to such as appeared on subpœna, it was

afterwards deemed reasonable by the Legislature, that every person so

appearing on recognizance, or subpœna, should be allowed his reasonable

expenses, and also in case of poverty, a satisfaction for his trouble

and loss of time. (_Phill. on Evid._). The Statute 18 _Geo._ 3. _c._ 19.

_s._ 8. therefore enacts, that “Where any person shall appear on

recognizance or subpœna to give evidence as to any grand or petit

larceny or other felony, whether any bill or indictment be preferred or

not to the Grand Jury, it shall be in the power of the Court (provided

the person shall, in the opinion of the Court, have _bonâ fide_ attended

in obedience to such recognizance or subpœna,) to order the Treasurer of

the County or Division, in which the offence shall have been committed,

to pay him such sum as to the Court shall seem reasonable, not exceeding

the expenses, which it shall appear to the Court the said person was

_bonâ fide_ put unto by reason of the said recognizance and subpœna,

making a reasonable allowance, in case he shall appear to be in poor

circumstances, for trouble and loss of time.” These Statutes apply only

to cases of felony; on prosecutions therefore for misdemeanors, and in

other cases not specially provided for by Act of Parliament, the Court

is not authorized to order a compensation to witnesses for their

attendance; (7 _T. R._ 377: see also _Burn’s Justice_, _tit. County

Rate_). As these Acts, and the 45th _Geo._ 3. _c._ 92. which compels the

attendance of witnesses in any part of the United Kingdoms, their

expenses being first tendered, do not meet many possible and probable

cases of extreme hardship, it is to be wished that some further

enactments may be made on this subject: it has indeed been doubted

whether the obligation on witnesses in criminal causes is as peremptory

as we have stated, (1 _Chitty on Criminal Law_, p. 612), but the weight

of authority appears to be on the other side. Mr. Serjeant _Hawkins_, 2

P. C. p. 620, observes that “to persons of opulence and public spirit

this obligation cannot be either hard or injurious; but indigent

witnesses grow weary of attendance, and frequently bore their own

charges to their great hindrance and loss;” and Sir _Mathew Hale_ (2 P.

C. 282) complains of the want of power in Judges to allow witnesses

their charges, as a great defect in this part of judicial

administration.

Our present object is to show that whatever hardship may exist in this

point in general, it presses with peculiar severity on medical

practitioners,[231] to whom time is most valuable, and the nature of

whose profession requires that they should be continually within

reasonable distance of their ordinary place of residence; to them

therefore the tender of mere traveling expenses becomes a very

insufficient compensation: the same policy which exempts them from

attendance on other public duties may suggest the propriety of allowing

them some adequate indemnity when their assistance becomes

indispensable, and this not only for their private and immediate

advantage, but ultimately for the public benefit; for if properly

remunerated for their attendance, practitioners of a superior class

would not be unwilling to devote some portion of their time to the

assistance of public justice; whereas under the existing system it is

notorious, that all who can, will avoid the burthen; and the duty

therefore devolves on those who are least competent to its execution:

this evil is particularly apparent on Coroner’s Inquests, where the

opinion of a shop-boy has often been allowed to determine a question _in

limine_, which properly investigated, might have required the first

science to obtain a satisfactory result.

As attendance is more burthensome on a professional man than on others,

so also it is more frequently called for; men in general can only be

summoned as witnesses when they have, or are reasonably supposed to

have, cognisance of the particular facts in question; and he may

therefore deem himself peculiarly unfortunate or imprudent, who is often

present at such scenes as give rise to criminal investigation; but the

medical practitioner, in addition to his liability of being called in

for his assistance, and so becoming acquainted with facts, may also be

summoned on matters of opinion; those therefore who stand highest in

public estimation as men of science and research, will be most

frequently burthened with the execution of painful and unprofitable

duties; we do not believe that they will shrink from the performance of

them when necessary, but we may express a hope that they may be rendered

as little burthensome as their nature will allow.

Great difficulties must always arise in the examination of a medical or

chemical witness, where the examining party is uninformed or at least

very partially acquainted with the science in question; for it is next

to impossible for Counsel so to frame their examination of a scientific

witness, as to elicit the whole truth unless they are, by previously

acquired knowledge, acquainted with the bearings of each answer upon the

case which they are maintaining; and though there are a few instances of

persons of such superior talent, that they can collect from the mere

information of their briefs, so much knowledge as will enable them to

perform this duty, with credit to themselves and satisfaction to their

clients and the public; yet such instances are rare, and even those most

gifted will admit that there is a most material difference between

examining a witness on matters of fact of which all persons who have

applied themselves to the laws and nature of evidence may be competent

judges, and the examination of abstract opinions, and speculations of

philosophy or physics, where the examiner can as little follow the

reasoning of a witness as if he spoke some foreign and unknown language.

For it is impossible within the compass of any ordinary _viva voce_

examination to elicit all the points on which explanation may be

necessary, or to remove all the doubts which may give occasion to future

controversy; hence questions of this kind are seldom determined at the

first hearing, but are repeatedly brought before the Courts in the form

of new trials; the cases of _Severn, King & Co._ against several Fire

Insurances Offices, which in part suggested the undertaking of the

present work, may serve as an elucidation of this point. The causes were

conducted by professional men of the first eminence, the Judge who

presided well known for his love of science, and from having attained

more knowledge in several branches of natural philosophy, than can

usually be acquired by those whose time is engrossed by severer studies;

the witnesses were among the best Chemists of the day, yet the question

(simple as it might at first appear) whether oil or sugar at certain

temperatures, and under certain circumstances, should be considered the

more inflammable substance, occupied three days on the first and six

days on the second trial. Notwithstanding which, a third trial took

place involving the same question, and controversial pamphlets were

published on both sides on the nature and supposed contradictions of the

evidence.

It has been supposed that medical practitioners may avail themselves of

the privilege enjoyed by legal advisers,[232] and that they are not

bound to divulge the secrets of their patients, reposed in them in the

course of professional confidence;[233] undoubtedly this confidence

ought not to be violated on any ordinary occasion, but when the ends of

justice absolutely require the disclosure, there is no doubt that the

medical witness is not only bound, but compellable to give evidence;

ever bearing in mind that the examination should not be carried further

than may be relevant to the point in question; of this the Court will

judge, and protect the witness accordingly. In the celebrated trial of

the Duchess of _Kingston_, before the House of Peers, (11 _Harg._ St.

Tri. 243) this point of medical liability was raised by Mr. _Cæsar

Hawkins_, and determined by Lord _Mansfield_ in the following words: “I

suppose Mr. _Hawkins_ means to demur to the question upon the ground,

that it came to his knowledge some way from his being employed as a

surgeon for one or both parties; and I take for granted, if Mr.

_Hawkins_ understands that it is your Lordships opinion that he has no

privilege on that account to excuse himself from giving the answer, that

then, under the authority of your Lordships judgment, he will submit to

answer it: therefore to save your Lordships the trouble of an

adjournment, if no Lord differs in opinion, but thinks that a Surgeon

has no privilege to avoid giving evidence in a Court of Justice, but

bound by the law of the land to do it; if any of your Lordships think he

has such a privilege it will be a matter to be debated elsewhere, but if

all your Lordships acquiesce, Mr. _Hawkins_ will understand that it is

your judgment and opinion, that a Surgeon has no privilege, where it is

a material question, in a civil or criminal cause, to know whether

parties were married, or whether a child was born, to say that his

introduction to the parties was in the course of his profession, and in

that way he came to the knowledge of it. I take it for granted, that if

Mr. _Hawkins_ understands that, it is a satisfaction to him, and a clear

justification to all the world. If a Surgeon was voluntarily to reveal

these secrets, to be sure he would be guilty of a breach of honour, and

of great indiscretion; but, to give that information in a Court of

Justice, which by the law of the land he is bound to do, will never be

imputed to him as any indiscretion whatever.” The examination

consequently proceeded.

The observations of Mr. _Haslam_, in his work on _Medical Jurisprudence_

as it relates to Insanity, (London 1817) are so pertinent to our present

subject that we shall give them in his own words: “The important duty

which the medical practitioner has to perform, when he delivers his

testimony before a Court of Justice, should be closely defined,

conscientiously felt, and thoroughly understood,—his opinion ought to be

conveyed in a perspicuous manner; he should be solemnly impressed that

he speaks upon oath, the most sacred pledge before God between man and

man—and that the life of a human being depends upon the clearness and

truth of his deposition: he is not to palm on the Court the trash of

medical hypothesis as the apology for crime; neither should the lunatic

receive his cure at the gallows by the infirmity of his evidence; but

above all, his opinion should be so thoroughly understood by himself, so

founded by experience and fortified by reason, that it may resist the

blandishments of eloquence and the subtil underminings of cross

examination. The Physician should not come into Court merely to give his

opinion—he should be able to explain it, and able to afford the reasons

which influenced his decision—without such elucidation opinion becomes a

bare dictum.”

“It is to be regretted that on many occasions, where several medical

practitioners have deposed, there has been a direct opposition of

opinion:—this difference has sometimes prevailed respecting insanity,

but more frequently in cases of poison. It is not intended to account

for this contrariety of evidence; much will depend on the sagacity of

the Counsel to institute the proper enquiries, and still more will be

incumbent on the medical evidence, in order to explain and establish his

testimony.

“The lawyer’s object is the interest of his employer, and for the

fulfilment of his duty he is frequently compelled to resort to a

severity of investigation which perplexes the theories, but more

frequently kindles the irritable feelings of the medical practitioner.

This distrust on the part of the lawyer, however unpalatable, is fully

justified, most witnesses going into Court with the preconcerted

intention of _proving_ to a certain extent:—and those most conversant in

the history of human testimony, have been extremely scrupulous of

admitting it as uniform truth until it has been carefully sifted.

Guarded with these precautions, and armed with professional experience,

the medical practitioner may approach the tribunal of justice with

confidence and advantage to the cause of Truth. However dexterous he may

shew himself in fencing with the advocate, he should be aware that his

evidence ought to impress the judge and be convincing to the jury.”

Their belief must be “the test by which his scientific opinion is to be

established. That which may be deemed by the medical evidence clear and

unequivocal, may not hit the sense of the gentlemen of the long robe,

nor carry conviction to the jury.”

There is a natural propensity in human nature, from which the most

honorable minds are not free, to view all questions through the medium

of some preconceived opinion; in law and politics it is every day

evident, in physic and in science it is too often apparent. Hence our

law has wisely contrived its modes of _vivâ voce_ examination, in which

the judge, the jury, and the counsel, on both sides, are equally

empowered to sift the truth, and thus counteract the leaning which any

witness may be supposed to have towards the party producing him: a

foreign writer of celebrity objects to this method, and prefers the mode

adopted generally on the continent of requiring written reports or

depositions; we leave our readers to conclude how liable such documents

are, especially with a people of lively imagination, to become

controversial pamphlets, straining on either side for victory, and not

for truth.

As to the mode in which a medical witness should deliver his evidence,

very different advice appears to have been given by different

authorities; while some impatient of delay, and dreading the arts of

examination, recommend their pupils or readers to open at once all the

stores of their reasoning and information; others, fearing the effect

which cross-examination may have on nervous or embarrassed witnesses,

advise that no more shall be disclosed than categorically meets the

question of the counsel; and to this we incline, with this difference,

that, as we should deem too costive a retention of the truth as blamable

as the flow of garrulity with which we have sometimes seen a court

overwhelmed, we recommend the witness to steer a middle course, first

answering patiently, distinctly, and tersely, the questions put by the

Counsel on both sides, the Court and the jury; and if none of these

elicit the whole truth, and any material point remains to be disclosed,

the presiding judge will always admit and gratefully receive the

additions or explanations which may be necessary to the ends of justice.

The witness is next to consider, what is and what is not evidence: we

cannot follow this subject in all its bearings, nor indeed is it here

necessary, a few points must however be remembered; and first of notes;

these if taken upon the spot or immediately after a transaction, may be

used by the witness to refresh his memory; and as to dates, numbers, or

quantities, it is generally expedient to have them; the notes should be

original, not copies; if there be any point in them which the witness

does not recollect except that he finds it there, such point is not

evidence, for the notes are only to assist recollection not to convey

information.

The witness must relate only that which he himself has seen or observed;

that which he has heard from others is not evidence as coming from him;

except indeed where some expressions or declarations of the parties

concerned have become a part of the _res gesta_. but the declarations of

a dying man are evidence when related by a third person on oath, though

the party making them was not sworn, for the law presumes that the

solemnity of the occasion may dispense with the form, and that a man,

trembling on the brink of eternity, will never risk salvation by

falsehood. To give this weight to a declaration, it is necessary that

the party should believe himself to be dying; Mr. Justice _Bailey_, is

reported to have said, that the party must be satisfied that recovery

was impossible: we think the reporter must have been mistaken; for such

a rule would exclude all such declarations; hope is the latest faculty

of the human mind. “I am better,” has not unfrequently been the last

articulation of expiring nature.

How far and in what cases opinion is evidence, is next to be considered;

in ordinary matters where, from a statement of facts, the jury, in the

exercise of sound and ordinary understanding, are capable of arriving at

a just conclusion, the opinion of a witness is neither requisite or

admissible; but in matters of science it is otherwise, provided that he

backs his opinion by such reason as may be satisfactory to the

understanding of his hearers; and this is the principal qualification of

a medical witness, that he make himself _intelligible to ordinary

comprehensions_.

No man is bound to give any evidence by which he may render himself

liable to any criminal prosecution. At the Old Bailey Sessions, in June,

1821, Mr. _George Patmore_ was tried for the murder of _John Scott_, in

a duel. Mr. _Pettigrew_, (a surgeon,) was the first witness called.

Mr. Justice _Bailey_.—Mr. _Pettigrew_, I think it necessary to give you

this caution, if you think the evidence, which you are about to give

likely to expose you to a criminal prosecution, you are not bound to

give it.

Mr. _Pettigrew_. My Lord, I am not competent to form any opinion of my

legal guilt; I have not taken the part of principal or second. The part

which I have taken was merely to exercise my professional duty; in that

I do not think there is any moral guilt.

Mr. Justice _Bailey_. If you went (knowing a duel was to take place) for

the purpose of giving surgical assistance, I apprehend that you are

liable to a criminal prosecution.

Mr. _Pettigrew_. Then, my Lord, I must decline answering any questions.

Mr. Justice _Bailey_. I recollect having seen a surgeon of eminence

tried in this court, on a similar occasion.

Neither Mr. _Pettigrew_, nor his assistant, were examined.

Dr. _Darling_, who had attended the deceased after he had received his

wound, deposed that he heard Mr. _Scott_ on his death bed say——

Mr. Justice _Bailey_. Did Mr. _Scott_ at that time think himself in

danger: did he give up all hopes of recovery?

Dr. _Darling_. No. To the last he entertained hopes of recovery.

Mr. Justice _Bailey_. The declaration made by a dying man cannot be

received as evidence, unless the party at the time of making it were

satisfied that recovery was impossible.

We have before noticed the limitation with which we believe this

supposed rule must be taken.

With the exception of dying declarations, all evidence in criminal

matters, must be upon oath, therefore the affirmation of a quaker cannot

be received on a coroners inquest.[234] In the too celebrated case of

the Oldham Inquest on the body of John Lees, Mr. _Earnshaw_, a quaker

surgeon,[235] who had attended the deceased, though much urged refused

to be sworn, and his testimony was consequently rejected; a paper was

subsequently delivered to the jury, containing the matter of his

observation; this was very properly resented by the Coroner, as an

illegal attempt to influence the jury, who by their oaths were bound to

admit no information which wanted that legal sanction. While we were

writing this article we were surprised to find that a Coroner for the

County of Surry had permitted the letter of a Physician to be read to

the jury, as evidence that a person deceased was of unsound mind; and on

this evidence, (for we can scarcely suppose that the servants deposition

to rheumatic headaches, was allowed to weigh,) a verdict of insanity was

returned: we shall have subsequent occasion to comment on this _mala

miserecordia_.

OF MARRIAGE.

As both our civil and religious institutions consider the matrimonial

union as a necessary preliminary[236] to the legal propagation of our

species, this as far as it is connected with medical science, will form

the first subject of enquiry, in which we are to investigate who are and

who are not capable of contracting this relation.[237] And this being a

point originally of ecclesiastical jurisdiction, we shall in its

examination, follow the order of the civilians, so far as it is

necessary to our purpose; we shall accordingly consider the capacity of

persons to contract marriage in respect of age, mental capacity, and

corporeal fitness. Another question arises from consanguinity; and this

though neither founded in nor determinable by medical evidence, may

deserve a moment’s attention, since it is evident that the prohibition

of marriage to certain degrees of kindred, though it may not have been

suggested by physiological reasoning, is well warranted by it.

Experience demonstrates both in the human and brute creation,[238] that

a race continually bred through the same blood without admixture of a

foreign stock, becomes small, weak, and degenerate; this is a fact too

well known to the agriculturist in breeding cattle to require further

observation. And it is fatally displayed in the royal and noble families

of some foreign countries, whose policy has been supposed to require

frequent intermarriages, and whose princes and nobles are thence

distinguished from their countrymen by their animal, and frequently by

their mental inferiority. Those who have travelled in the south of

Europe will not be at a loss for examples in elucidation of this

principle.

Many questions may arise on the first point; for, though the Act of the

26th of _George_ 2. _cap._ 33. commonly called the Marriage Act, has

fixed the age of twenty-one years[239] as the period in both sexes

before which this contract cannot legally take effect by the mere act of

the parties. Other points may still arise as to the age at which

marriage may take place, the statuable precautions of banns or licence

having been complied with.

According to the canon law and the doctrines of precontracts (now

exploded)[240] or rather from the abuse of both, infants of the most

tender age were formerly betrothed to each other; and this precontract

they were considered as bound to complete and perform when they should

arrive at a sufficient age; the civil law indeed says,[241] “though

spousals are not limited to any age, yet infancy is not esteemed in the

calculation: _id est si non sint minores quam septem annis_”[242]. Our

law however appears, and with good reason, to have fixed upon the

supposed age of puberty, fourteen for boys, and twelve for girls, as the

earliest period at which marriage should be contracted. Yet even these

relative ages, though somewhat too tender either for public policy or

domestic happiness, are not invariably the times of puberty; in some

instances it is anticipated, in many delayed. If therefore the law of

England, in this as in most other matters of Ecclesiastical

jurisdiction, follows the Canon law, which “pays a greater regard to the

constitution than the age of the parties; for if they are _habiles ad

matrimonium_ it is a good marriage, whatever their age may be,” it

becomes an important medical question to consider who are and who are

not _habiles ad matrimonium_ in respect of nonage.

It is equally, or perhaps more important, that the parties be _habiles

ad consensus_, in respect of mental capacity; for though in an old case

_Style_ and _West_, 3 _James_ 1. _Roll. Ab._ 357, it was held that an

idiot _a nativitate_, might consent to marriage[243], by later

resolutions it has been determined otherwise, because consent is

necessary to marriage, and idiots are not capable of consenting to any

thing, so also of a lunatic, unless the marriage was in a lucid

interval. But as it may be difficult to prove the exact state of the

party’s mind at the actual celebration of the nuptials, therefore the

statute 15 _Geo._ 2. _c._ 30. has provided that the marriage of lunatics

and persons under phrenzies, (if found[244] lunatics under a commission,

or committed to trustees by any Act of Parliament) before they are

declared of sound mind by the Lord Chancellor or the majority of such

trustees, shall be totally void. 2 _Burn. Eccl. Law_ 416. 1 _Bl. Com._

439. _Collinson on Lunatics_, 554.

Persons deaf and dumb may contract marriage, for they can give their

consent by signs: 2 _Burn. Eccl. Law_, 415. _Swinb. s._ 15. 3 _Potier_,

165.[245] but it is essential, that they should be competent in all

other respects, for there must always be a _prima facie_ suspicion that

a person born deaf and dumb, by absence of the ordinary means of

instruction, must be of imperfect capacity.[246]

The third consideration is whether the parties are _habiles ad

procreandos liberos_ in respect of corporeal ability, for that being the

ultimate use and intention of marriage, the contract cannot be good

unless the parties are in the condition of performing it;[247] except

indeed where the incapacity arises from old age; _volenti non fit

injuria_, and though neither the law of the land, nor the law of nature

has, as far as it is known to us, prescribed any well-defined limit to

the generative capacity,[248] yet after a certain period it may at least

be so far doubtful as to create an implied waiver between the

contracting parties.[249]

Some foreign jurists and schoolmen have maintained, that the institution

being solely _ad procreandos liberos_, it is a profanation of the rite

to celebrate it between parties incapable;[250] but this doctrine is

repelled by our liturgy, which even prescribes the omission of the

prayer for procreation where the woman is past the age of

childbearing;[251] how the priest is to ascertain this point we leave

the civilians to determine.

But a much more material question of medico-legal policy arises, as to

the marriages of those who are afflicted with some serious hereditary

disorder, or predisposition to disorder,[252] as _Scrofula_, _Mania_,

&c.[253] in such cases public policy might induce an absolute

prohibition,[254] but humanity would pause before it added this bann of

excommunication to the misfortunes of its object; a middle course might

be adopted: Mahon[255] says that the Protestant church admits epilepsy

as a good cause of divorce, and that _Alberti_ has handed down a

decision of the faculty of Halle on this subject; we do not know any

English case on the point, and very much doubt whether our

ecclesiastical courts would admit the principle; unless indeed it were

made out, that the disorder constituted a moral impotence, or that one

of the parties could not perform the contract but at the risk of life.

FERNELIUS is of opinion that old people beget weak and diseased

children, “_Senes et Valetudinarii imbecilles filios vitiosa

constitutione gignunt_.” PORTAL supports the same opinion, and thinks

that the older people are when they have children, the more likely they

are to have acquired imbecillity or disease, and to transmit the same to

their children, from whom they may become hereditary, (_Portal_, “_Sur

la nature et traitement de quelques maladies hereditaires ou de

famille_”). This is altogether a popular error; what innumerable

instances, says Dr. Adams, might be cited, in which the younger branch

of a family has revived its splendour, which had been decaying for a

succession of ages: the late Mr. Pitt was the youngest son, born when

his illustrious father was in the fifty-first year of his age.

OF DIVORCE OR NULLITY.

If either of the parties professing to contract marriage be at the time

defective in the points enumerated in the preceding section, it is a

good ground of divorce; but to establish such defect, and especially the

defect of corporeal ability, the strongest evidence must be

adduced,[256] not merely on the general maxim that the best possible

evidence which the case will allow must always be produced, but also as

the particular fact to be proved is or may be contrary to the general

order of nature, and therefore requires more than ordinary proof for its

establishment: to such points therefore the medical practitioner is

required to give his most sedulous attention, first to the question in

the abstract, contrasting his own experience with the opinions and

traditions which he may find upon the subject, and divesting his mind of

all speculative and theoretical doctrines which he does not find

supported by well authenticated facts; thus prepared his second object

will be an attentive, accurate, and scientific examination of the

immediate case in question. The defect may be mental[257] or corporeal;

thus it may proceed from antipathy to a particular woman, when it has

been called _impotentiam_ or _maleficium erga hanc_; this was the

alleged case of the Earl of Essex, in the time of _James_ the 1st; for

which see 1 _Harg. St. Tri._ 315: 2 _How. St. Tri._ 786.; and for the

very curious argument and narative of _Abbot_, Archbishop of Canterbury,

see 10 _Harg. St. Tri. Appendix_, p. 4. How far this case may be

depended on, except as a beacon to show us what we ought to avoid, may

be exceedingly doubtful. The character of the Lady Essex, afterward

infamous as Countess of Somerset for the murder of Sir _Thomas

Overbury_, may lead us to suspect every species of imposition and

falsehood. The Judges, according to the testimony of their coadjutor the

Archbishop, had predetermined to decide in favor of the divorce; no

sufficient evidence appears to have been required or received, and the

king, making himself at once the advocate and partisan of his unworthy

favourite, urged the business with an indecent and arbitrary heat. From

the worst of the _Stuarts_, and the pedantic believer in witchcraft (for

_maleficium_[258] was then used in this sense) such conduct was not

extraordinary; in the present day we may boast with confidence that

similar interference would be impossible. With these defects, the case

of the Earl of Essex can be of little or no use to the medical jurist;

and unfortunately we have no other which is reported with sufficient

accuracy or authenticity; we say unfortunately, because though there may

be much of good policy and correct feeling in the determination of our

Civilians to conceal the detail of such cases from the public eye,[259]

yet by drawing their line too strictly, they run no inconsiderable risk

of totally excluding those lights of science, of which in so dark and

intricate a subject they must necessarily stand in need. It is true that

the ecclesiastical courts may have the benefit of medical evidence in

every case which is brought before them, but this evidence will be

necessarily imperfect, unless founded on previous study, and some

knowledge of the points, to which the practice of the Court will require

the witness to direct his attention. In France, where causes of this

kind may perhaps have been more frequent, and where less reserve is used

than suits our national character, several cases have been published,

for which see the _Collection des Causes celebres_, and _Bayle’s

Dictionary, tit. Quellenec & Parthenai_, with the references there

given.

We have stated that the defect of corporeal ability[260] may proceed

from mental or bodily causes; of the former the instances must be

exceedingly rare, and the latter are certainly not numerous: but the

reader will find the information which he may require upon this subject

in the following physiological illustrations.

VARIOUS QUESTIONS CONNECTED WITH THE FOREGOING SUBJECTS, ELUCIDATED BY

PHYSIOLOGICAL RESEARCHES.

1. OF AGES, ESPECIALLY THAT OF PUBERTY.

As the period of puberty is intimately connected with the subject of

Marriage, and as the age of an individual has many other important

relations with civil and criminal transactions, we shall take this

occasion to consider the several physiological points which the subject

necessarily comprehends.

The age of man is estimated, as it was in the days of David, at _three

score years and ten_—not more, however, than one in eighty reaches the

tottering confines of mortality, and it has been correctly stated, that

one half who come into life, leave it again before the expiration of

their _eighth_ year; of a _thousand_ children born in London, _six

hundred and fifty_ die before the age of _ten_. It has been computed by

Herodotus, and acknowledged as correct by our ablest authors on

political arithmetic, that three generations of men pass away in a

century, and consequently the whole human species cannot be said to

divide one with another more than _thirty-four_ years of existence. The

astonishing longevity of the Antediluvians[261] has given rise to much

discussion, but neither the researches of the learned, nor the

reasonings of the ingenious, have hitherto thrown any light upon the

subject; nor is the question of any importance in relation to the

objects of the present work; the medical jurist is alone interested in

the existing laws of mortality, and in those exceptions which may occur

in their general dispensation.

The several ages, or stages of man’s existence, have been differently

determined, according to the particular views which have suggested the

division, especially as they relate to legal or physiological objects;

on the present occasion it is to the latter of these that we have more

particularly to direct our attention. _Aristotle_ marked three grand and

obvious divisions in our existence, that of GROWTH—that during which we

remain apparently STATIONARY—and that of DECLINE; each of which has been

subdivided by subsequent authors,[262] so as to constitute seven ages:

thus the stage of Growth includes _Infancy_, _Second Infancy_, or

_Boyhood_ (_Pueritia_) and _Adolescence_; the stage, during which we

appear to remain stationary, consists of _Youth_ (_Juventus_) and

_Manhood_ (_Ætas Virilis_). The last division—DECLINE, embraces _Old

Age_, and _Decrepitude_. The philosophers and physicians of Greece were

led to adopt several divisions corresponding with their superstitious

reliance on the powers of certain numbers; _Varro_ divided life into

five portions; _Solon_ into ten; but Hippocrates, Proclus, and the

greater number of the ancient writers acknowledged SEVEN AGES, a

division which has been very generally adopted by the poets and

philosophers of later times; in proof of the opinion of the former, we

may adduce the testimony of Hippocrates,[263] who says, εν ανθρωπου

φυσει επτα εισιν ωραι, and in confirmation of the truth of our remark

upon those of the latter, we may remind the reader of the celebrated

passage in Shakspeare,[264] in which the progress of human life is so

beautifully illustrated. The duration of each of these stages has

moreover been considered as under the influence of the same mystical

numbers, and will generally be found to be a multiple of _seven_, for

the ancient physicians were persuaded that every period of seven years

effected some material alteration in the human system; thus _Solon_,

although he divided life into ten stages, considered each stage as a

_Septenary_;[265] so with the Canonists there are _six_ ages, but the

duration of each is _seven years_, or some multiple of that number;

thus, INFANTIA from _one_ to _seven_; PUERITIA from _seven_ to

_fourteen_;—ADOLESCENTIA from fourteen to _twenty-eight_;[266]—JUVENTUS

from _twenty-eight_ to _fifty_; (Quere, _Forty-nine_?)—ÆTAS SENILIS from

_fifty_ to _seventy_;—SENECTUS from Seventy.[267]—Before we quit the

conceits of the Numerists, we may state that in their notions the number

_Nine_ was supposed to possess some mystic power in relation to our

ages; and for this reason, superstition has attached considerable

apprehension to the age of _sixty-three_, in as much as being the

multiple of both the numbers so important to our existence, viz. 9 ×

7[268]. This period of life has accordingly been anticipated with fear,

and passed with exultation; a conceit, which has been perpetuated in our

own times, under the imposing title of the _Grand Climacteric of Life_,

while its antiquity is shewn by the memorable letter of AUGUSTUS to his

nephew CAIUS, in which he encourages him to celebrate his nativity as he

had escaped _sixty-three_.

We shall now proceed to consider the SEVEN AGES of man in detail.

INFANCY—_Infantia_—(from _Infari_, not able to speak) commences at

birth, and terminates at the _seventh_ year. The signs by which the age

of an infant may be computed, are derived from its moral as well as

physical characters; and as circumstances connected with medico-judicial

inquiries may render the problem of importance, we shall proceed to

offer some data that may assist its solution. The feebleness and size of

the infant; its epidermis yet reddish, and wrinkled; its face covered

with down; its head soft, and the _fontanelles_ greatly extended; the

eye but little sensible to light, and lastly the appearance of the

navel, are circumstances which will at once lead the medical

practitioner to the conclusion of its not being many days old; while its

smiles and tears, its upright posture in the nurses arms, the thickness

and whiteness of the skin, the plumpness of its thighs and buttocks, the

eagerness with which its eyes seek and follow brilliant objects, its

agitation on the occurrence of noisy sounds, and its eager desire for

the breast, are occurrences which will, according to the force and

degree of each, announce the child’s progress towards the _third_,

_fourth_, or _fifth_ month. The pleasure which it testifies at the sight

of its nurse, its jealousies, and other passions, the habit of carrying

its fingers and different objects to its mouth, the facility and

pleasure with which it chews bread, and the copious discharge of saliva,

announce the approach of dentition, and assure us that the infant must

be in its seventh month. The progress of dentition will at this period

afford some farther data; towards the end of the _seventh_ month the

middle INCISOR teeth of the inferior jaw perforate the texture of the

gums; and soon afterwards the corresponding INCISORS of the upper

maxilla make their appearance; then the lateral INCISORS of the

inferior, and subsequently those of the superior jaw; about the

_twelfth_ or _fourteenth_ month, sometimes sooner, the first of the

MOLARES of the under, then the corresponding teeth of the upper jaw

appear; the four CUSPIDATI are usually protruded through the gum the

last; thus the CUSPIDATI and the second MOLARES will sometimes appear at

the same time, and this is usually between the _twentieth_ and

_twenty-fifth_ month; so that at, or soon after _two years_ of age, the

twenty temporary or _milk_ teeth[269] are to be found in situ. It must

however be remembered that the formation and appearance of the _milk_

teeth are subject to considerable variety, and there are some examples

on record, though very uncommon, of children born with two Incisors in

the upper maxilla, but such teeth have been found to be imperfect in

their structure, and without fangs, and they have consequently soon been

detached; in other cases, children, although enjoying perfect health,

have not cut a single tooth until the end of their second year. Nor are

the other signs to which we have alluded, as affording indications of

the age, to be considered as immutable; the infant may have been more or

less retarded, or accelerated in its march of developement by its state

of health and vigour, and it deserves remark, that scrophulous and

_rickety_ children very commonly present an aspect of intellectual

precocity, by no means commensurate with their age; and hence the

popular notion has arisen, that very intelligent children rarely

continue to live. The fact of this premature expansion of the mind is

too apparent to be doubted; but philosophers have endeavoured to explain

it upon very different principles; the physiologist has sought the cause

from some peculiarity in the organization of the body, while the

moralist has attempted to account for it by supposing that in

consequence of the inability of these subjects to partake of the sports

and exercises suitable to their years, they necessarily enjoy more of

the instructive society of their parents and preceptors.

PUERITIA—_Second Infancy_—_Boy-hood_. At about the age of _Seven_ years,

_Detentition_, or the shedding of the temporary or milk teeth commonly

commences, in order to make room for the adult set; and this event is

considered as marking the arrival of the second epoch, and which, in its

turn, is terminated at _fourteen_ or _fifteen_ in boys, and at _twelve_

or _thirteen_ in girls, by that peculiar change which the constitution

undergoes, and which we have hereafter to consider under the head of

Puberty. Persons of this second age are called _Pueri_, or _Impuberes_,

not being considered as yet in possession of the complete powers of

reason, although they may be allowed to possess some faint ideas with

regard to the customs and habits of society; their memory is also most

clear and comprehensive, but it soon becomes governed by the

imagination.

ADOLESCENCE or _Puberty_.—This important and tumultuous epoch of our

existence commences at about fourteen in males, and at twelve in

females, and ends at twenty-one, or later according to constitution,

habit, and climate. The body having nearly completed its stature, its

powers of growth are directed into other channels; and in the male, the

beard begins to sprout; the voice becomes fuller, deeper, and more

sonorous;[270] the parts of generation acquire the magnitude which they

afterwards preserve, and become shaded with hair; the whole volume of

the body augments, and at the same time assumes a character so decidedly

masculine, as at once to proclaim the sex of the individual in whom it

appears; in addition to these general changes, the secretion of the

seminal liquor by the testicles commences, and the individual thus

irritated by new desires, soon distinguishes the means of gratifying

them, and the _life of the species_ may be said to commence its

existence. Nor are the moral changes which take place less remarkable,

or less characteristic of the period of puberty than those which

appertain to his physical condition; his mind acquires increased tone,

and his manners and habits assume a more manly character; these changes

however do not immediately succeed, and we are much inclined to admit

with _Zacchias_[271] the existence of three gradations in Adolescence,

_Incipient_ Puberty (at about _fourteen_), Puberty (from _seventeen_ to

_twenty_), and _Perfect Puberty_ (from _twenty_ to _twenty-five_). These

distinctions are undoubtedly founded in nature, and are admissible both

in relation to sexual and intellectual maturity. Important changes

likewise occur at this critical age, with respect to the extinction or

kindling of disease; in cases of hereditary predisposition, the

particular malady will frequently remain dormant until the age of

puberty; this is particularly evinced in maniacal affections,[272] in

consumption, and other scrophulous diseases. The phenomena which attend

the accession of puberty in females are not less remarkable than those

which we have described as occurring in males; and although there is

neither the change of voice, nor the production of hair on the face, so

remarkable in the other sex, yet the body enlarges in volume, the

breasts swell with exuberance, and the excess of vitality no longer

required for general growth, invests her limbs with those rounded and

graceful forms, which have so universally constituted the theme of the

poet, and the admiration and study of the artist: but the most

remarkable change which the female system undergoes at this period is

indicated by the commencement of a periodical sanguineous discharge[273]

from the vessels of the uterus, and which from the monthly interval that

it observes has received the name of _Menses_. The period of life at

which this change takes place is under the control of various moral and

physical circumstances, as climate, temperament of the individual,

habits of living,[274] &c. In tropical climates puberty takes place at

an earlier period than in northern latitudes; in Greece, the Corea,

Indostan, and Java, girls begin to menstruate at eight, nine, or ten; in

Spain, Sicily, and the Southern part of Europe, at twelve; but advancing

to the northern climes, there is a gradual protraction of the time until

we come to Lapland, where women do not menstruate till they arrive at a

maturer age, and then in small quantities, at long intervals, and

sometimes only in summer.[275] This difference in the time of life at

which puberty takes place, has been ingeniously assigned by _David Hume_

as the reason why women in hot climates are almost universally treated

as slaves; and why, on the contrary, their influence is so powerful and

extensive in colder regions; for in the former, woman may be said to be

in the zenith of her beauty while she is yet a child in understanding,

and long before her intellect is matured she ceases to be an object of

love; but in temperate countries her personal charms and intellectual

endowments are simultaneous in their progress to perfection; the united

force of her beauty and mental qualities is irresistible, and man

voluntarily pays to her the homage which her powers are so well

calculated to command[276].

There are, moreover, many cases on record[277], in which both males and

females have prematurely arrived at the stage of puberty; a most

remarkable instance of this precocity is recorded[278] by Mr. Anthony

White, in the history of Philip Howorth, and the author of the present

work can bear testimony to the correctness of the statement, for he had

frequent opportunities of seeing him, and of tracing from time to time

the constitutional changes which so rapidly succeeded each other in the

first two years of his existence. Dr. Wall has presented us with a

similar instance of precocity in a female infant, in whom the menstrual

flux appeared at the age of nine months[279].

Various methods have, at different times, been adopted for determining

the age of puberty. One sect of ancient Roman lawyers, called

_Cassiani_, fixed it by the state of the body, which _Justinian_ and

others after him suppose to have been done by a personal examination, at

least in the male sex; for as to the female it is pretended that the

twelfth year was the only guide; though others allege that the eruption

of the menses served instead of it. The _Proculiari_, on the contrary

determined the puberty of males by the expiration of the fourteenth

year. _Javolenus_ pursued a middle course, and made use of both

methods.[280].

The phenomena of puberty depend, in both sexes, upon the developement of

the generative organs; for whenever this is prevented, or only

imperfectly produced, a corresponding character is impressed upon the

individual, as we see so well exemplified in the appearance of

eunuchs[281]. In females, however, the uterus does not appear to be the

essential organ which impresses the sex with its distinctive

peculiarities: _Van Helmont_ has said “_Propter solum uterum mulier est,

id quod est_”——but Dr. _Caillot_ has shewn in the second volume of the

_Medical Society of Paris_ that a woman may grow up with all the

external appearances and attributes of her sex, and yet have no uterus;

numerous cases of a similar kind are upon record, to some of which we

shall have occasion hereafter to allude: the same facts do not hold good

in relation to the _Ovaria_; their developement, like that of the

testicles in the male, seems to be absolutely essential to the

perfection of the sex. A very interesting case,[282] in illustration of

this truth, is afforded by Mr. _C. Pears_; in which account all the

characters belonging to the female after puberty were absent; her

breasts never enlarged, she never menstruated, no hair appeared on the

pubes, and she died at the age of twenty-nine; when upon dissection the

_Ovaries_ were found wanting; the _os tincæ_ and uterus had their usual

form, but never increased beyond their size in the infant state.

JUVENTUS—_Youth_.—This succeeds to adolescence, and in its turn is

replaced by manhood. If the law does not acknowledge this stage of life,

it at least tacitly allows it, as being the one best adapted for the

vigorous discharge of public duties; it is the age at which the greatest

enterprizes have been achieved, and the most brilliant efforts of human

genius fulfilled; the developement of the body having been accomplished,

its powers are expanded in the production and support of intellectual

energies. The action of the arterial system may be said to predominate

over every other, and hence the diseases to which man is exposed in this

stage of his existence are of an acute and inflammatory character. To

the common observer his march of life would seem to be arrested, little

material change, either of a moral or physical nature, is discernible

from the age of twenty-five to thirty-five; and this period may

therefore be said to occupy a part of the second great division of

Aristotle to which we have alluded (the period of _Perennity_.)

ÆTAS VIRILIS—_Manhood_. Youth passes into manhood by such insensible

shades of gradation, that it has been considered as only a continuation

of the same stage of perennity; and yet we shall find that the change

from one to the other is sufficiently striking to entitle them to

distinct places in the scale. Hippocrates and Galen have compared youth

to the summer, and manhood to the autumn, thus insinuating that if one

be less fervent, it is yet more mature than the other; and this is

certainly morally and physiologically true; for although the imagination

loses much of its glowing fervour, its dominion is succeeded by that of

a maturer judgment; the arterial system no longer predominates over

every other, its energies have been reduced, and a juster equipoise

established; the diseases, therefore, to which he is liable assume a

different aspect,[283] and maladies of a chronic character prevail, and

thus while in the apparent plenitude of his existence is he fast

journeying to his destined goal;[284] man never stands still, he is

either progressing to the zenith of his strength and vigour, or he is

declining from it; in vain shall we attempt to cast our anchor in the

stream of life, it will alike carry away those who struggle against it,

and those who yield quietly to the force of the current; the panaceas

and boasted elixirs, and the many other means which have been proposed

to renovate the body, are as chimerical, says Buffon, as the fountain of

youth is fabulous.

SENECTUS—_Old Age_. The system has now undergone a considerable change;

its bony framework has acquired increased solidity and density; the

vascular system is greatly abridged in the extent and subtlety of its

ramifications; the muscles become less irritable, their fatty matter is

absorbed, the cellular structure collapses, and the whole volume of the

body diminishing.

“—The sixth age shifts

Into the lean and slippered pantaloon;”

The skin also wrinkles, particularly in the forehead and face; the hair

turns grey, and afterwards white; all the senses lose their acuteness,

the heart and arterial system are diminished in force; while the venous

system is in a state of plethora; and hence this stage of life is

exposed to diseases of a peculiar cast: the blood-vessels are also

liable to ossific depositions, from which apoplexy, and various

affections of the heart and other organs, arise; the faculty of

reproducing the species ceases long before the natural termination of

his existence, although the period at which his organs fail is more

precarious and less definite than that at which they commenced their

functions.

Woman, in relation to her powers of propagation, may be said to

anticipate the male sex in her advancement to old age; at the period of

forty-five or fifty, the menstrual discharge ceases, and a change is

produced in the system, called the _turn of life_, which renders women

at this age subject to many diseases to which a great number fall

victims; but when this dangerous time has passed, their life is even

more secure, and a probability exists of its being protracted beyond

that of a man of equal age; and although the breasts become flaccid, the

fleshy contour of the body diminishes, and the skin forms wrinkles, yet

her mental powers retain their full vigour for a considerable period,

and her decline into the vale of years is distinguished by a steady

cheerfulness which contributes, in no small degree, to divest the path

of its thorns, if not to prolong its duration.

DECREPITUDO—_Advanced Age_. At length the limbs fail under the burthen

which for so many years they had sustained with ease; the exterior

muscles gradually return to that state of debility in which they were

during infancy, and being unable to sustain a continued state of

contraction, relieve themselves by alternate intervals of relaxation,

from which arise the tremors[285] so characteristic of old persons; upon

the same principle is to be explained the _Vacillatio Senilis_,

(see-saw) for by these motions the muscles which preserve the

perpendicularity of the body, are alternately quiescent, and exerted;

and are thus less liable to fatigue or exhaustion.[286] The teeth having

successively dropped out of their sockets, the alveolar processes are

absorbed, and the projection of the lower beyond the upper jaw, imparts

a very peculiar physiognomy to the countenance.

“Last scene of all,

That ends this strange eventful history,

Is second childishness, and mere oblivion,

Sans teeth, sans eyes, sans taste, sans everything.”

2. OF IMPOTENCE AND STERILITY.

1. _IMPOTENCE._

IMPOTENCE, or the incapacity of sexual intercourse, and STERILITY, or

the inability of procreation, are subjects which frequently become

questions in the Ecclesiastical Courts, as relating to the performance

and dissolution of the marriage contract; and as medical evidence is

generally required upon such occasions, the subjects necessarily present

themselves for discussion in the present work.

IMPOTENCE may exist either in the male or female. STERILITY is confined

to the female, for if the male be proved capable of accomplishing the

act of coition, no farther question can arise as to his virility.

Impotence may be _Absolute_ or _Relative_, that is to say, the parties

may be incapable of cohabiting with each other, and yet they may each

accomplish the venereal congress, and enjoy a fruitful intercourse with

others; it may also be _functional_ or _organic_, and depend either upon

_physical_ or _moral_ causes; and hence in some cases it may be

_temporary_, in others _permanent_, and upon this point the evidence of

the medical practitioner will be always very essential. It is therefore

important that we should proceed to investigate the subject in its

various relations to those different causes.

1. _Organic Causes of Impotence._

IN MALES.

There was a period in the history of physiology, when the testicles were

not considered essential to virility. Aristotle was led to such a

conclusion from having observed that a bull was capable of impregnating

the female after castration; a fact which depended upon the quantity of

semen, retained in the _vesiculæ seminales_, conferring fertility upon a

_coitus_ which took place immediately after the operation. The true

theory of the functions of the testicles having been thus abandoned, it

was necessary to substitute some other explanation of their use, and the

Naturalist of Stagira has accordingly asserted, that they merely serve

as weights to hinder the spermatic vessels from being folded up; an

hypothesis which, absurd as it is, has found advocates in the later

schools; and in its support we shall find many experiments and cases

related by _Marchetti_ of Padua.[287] _Sabbatier_[288] observes, that

subjects have been found who have only possessed one testicle, and what

is more extraordinary, that there are others who although entirely

destitute of these organs, have exhibited the other parts of generation

in their natural state; in proof of which _Cabrolio_ mentions the case

of a soldier addicted to sexual pleasures, in whose body no testicles

were found, although the _vesiculæ seminales_ were distended with semen.

_Scurigio_[289] and _Lieutaud_[290] refer to the same case; upon which

_Portal_[291] very justly observes, that the soldier was doubtless

furnished with testicles, but which, from their unnatural situation,

probably escaped the notice of _Cabrolio_. The extraordinary situations

in which the testicles may be found are fully detailed by

_Rinlaender_;[292] their absence from the scrotum does not necessarily

imply impotence; they are formed in the cavity of the abdomen, and until

the sixth month, lie immediately below the kidneys on the fore part of

the Psoæ muscles, after which period they gradually descend towards the

abdominal ring, through which they generally pass into the scrotum

before birth; but it occasionally happens that this descent, in regard

to one or both testicles, does not take place until a late period, and

in some instances they remain within the cavity of the abdomen during

life;[293] in such a case, a question has arisen as to the virility or

impotence of the individual so situated, and upon which medical opinion

would seem to be still unsettled. _Foderé_ states that such persons have

even been remarkable for their vigour; for these organs, says he, appear

to derive greater power of secretion from the warm bath in which they

lie, than when they have descended into their natural situation. Mr.

_John Hunter_ has given a very different opinion, and one which appears

to be more compatible with the sound doctrines of physiology; he

believes that when both testicles remain through life in the belly, they

are exceedingly imperfect, and incapable of performing the natural

functions of these organs; and that it is such imperfection in structure

which prevents the disposition for their descent taking place; an

opinion in which _Zacchias_ and _Riolan_ entirely concur. Mr.

_Wilson_[294] observes that he is acquainted with one case that

confirms, and another that would to a certain degree refute this

opinion; and this is probably the true state of the question; each case

must rest upon its individual merits, and the practitioner, whose

opinion is desired upon such an occasion, must carefully inquire into

every moral and physical circumstance that can, collaterally, assist his

judgment; such as the general appearance, _soprano_ voice, and

effeminate physiognomy, of the individual, “_frustra enim ætas advenit,

si testes defuerint; manebit enim etiam virili ætate fæminæ

similis_.”[295] But the absence of the testicles in the scrotum may

depend upon other and less equivocal circumstances, they may have been

removed by excision (_Eunuchs_), in which case there will be no

difficulty in ascertaining the fact by the appearance of the cicatrix:

or they may have been actually absorbed by an operation of Nature, after

considerable inflammatory action. Mr. John _Hunter_[296] has given an

account of three cases in which such a result occurred.

It does not appear that _two_ testicles are essential to virility,

although the Parliament of Paris in 1665 decreed that the matrimonial

contract should not be deemed valid unless _two_ testicles were evident;

it is now generally admitted that persons with only one (_Monorchides_)

are fully capable of procreation.

It has occurred to Dr. _Baillie_,[297] and other anatomists, to observe

the testicles exceedingly small, “I have known,” says this distinguished

pathologist, “one case in a person of middle age, where each of them was

not larger than the extremity of the finger of an adult; this, as

appeared from its history, arose from a fault in the original formation,

and was attended with a total want of the natural propensities.” Mr.

_Wilson_,[298] on the other hand, relates a case that would induce us to

pause before we pronounced judgment on such an occasion: “I was,” says

he, “some years ago consulted by a gentleman, on the point of marriage,

respecting the propriety of his entering that state, as his penis and

testicles very little exceeded in size those of a youth of eight years

of age. He was then six and twenty, but never had felt the desire for

sexual intercourse until he became acquainted with his intended wife;

since that period, he had experienced repeated erections, attended with

nocturnal emissions; he married, became the father of a family, and

these parts which at six and twenty years of age were so much smaller

than usual, at twenty-eight had increased nearly to the usual size of

those of an adult man.”

The structure of the testicle may be defective; Mr. _John Hunter_ has

given a representation,[299] in his work on the Animal Œconomy, of a

case in which the _Epididymis_, instead of passing to a _Vas deferens_,

terminated in a cul-de-sac; with such a structure it is evident that the

semen cannot be evacuated by the urethra, and that the individual must

therefore be incurably impotent.

The structure of these organs may be so destroyed by a bruise, as to

occasion impotence. This was formerly the mode adopted in the oriental

courts for destroying masculine efficiency in the attendants of the

Haram; and it is said that the Algerines, who are unwilling to castrate

their horses, have recourse to this process, in order to render them

incapable of procreation;[300] while it is well known that Park-keepers,

who have the management of deer, annul the power of generating in bucks,

by squeezing the testicles forcibly, and thus destroying their

organization and secerning faculty.[301] Atrophy and wasting of the

testicles may also result from local injury; Dr. _Pihorel_[302] relates

an interesting case of this kind that occurred to an old soldier.

The body of the testicle is liable to many diseases, by which its

structure becomes so changed, and its delicate organization so

obliterated, that its secreting powers are entirely lost, such as

schirrus, cancer, scrofula, &c. but we are to remember that such

affections, if confined to one testicle, are not to be considered as

affecting the virility of the party. M. _Larry_, Inspector General of

the French Army, informs us that a disease which he calls _Atrophy of

the Testicles_ seized many of the troops in their return from Egypt; by

which these organs became soft to the touch, and gradually diminished in

size, without any pain; and it is well known that persons who are

afflicted with _Elephantiasis_ lose all sexual appetite, and that their

genitals waste.

An organic fault similar to that which we have described, as relating to

the _Epididymis_ of the testicle, sometimes occurs in the _Vesiculæ

Seminales_, where instead of entering the urethra, they terminate, after

being joined by the _Vasa Deferentia_, in imperforated pouches, or

cul-de-sacs, producing incurable impotence. In some cases the spermatic

chord becomes varicose, and is followed by loss of power.