&c. denied by Desmoulins, in his observations on the nervous system;(z) CHAP. X. hence also the melancholy consequences of excessive or irregular indul- THE MALE gences;(a) circumstances which ought not only to influence every in- ORGANS, dividual against any intemperance as regards these organs, but will also account for certain sudden deaths under otherwise suspicious or unaccountable circumstances. (b) It is supposed that sexual desire is greater in men than women, and this on account of the cerebellum being larger in man than in woman. n.(c) on which As one of the objects of this work is to examine the principles of the The law of existing law relative to injuries to the person, and its improvement, a few rape, &c. words on the subject of rape and other crimes connected with the sexual and the organs may here be admitted. The ecclesiastical law, the common law, principle and the statute law of England, have uniformly prohibited all sexual in- it proceeds, tercourse excepting after certain, ages, and then only between persons and doubts legally married; and they subject unmarried women to censure and pu- as to its exnishment; and universally, in England, an unmarried woman, who has pediency. had sexual intercourse, even by such violence that she was unable to resist with effect, is, in a degree disgraced, or rather no longer retains her virgin purity in the estimation of society, and there is a natural, delicate, though perhaps indescribable feeling that deters most men who know that a female has been completely violated, though manifestly after every effort of resistance, from taking her in marriage, but which does not exist, at least in so powerful a degree, if he be certain that the sexual intercourse was incomplete according to the ancient law of rape, which, intending to distinguish between the degrees in the enormity of offences of this description, made a marked distinction between ineffectual attempts completely to violate, and cases where the violation was so complete that the female could no longer be considered in fact a virgin, and therefore required the most explicit evidence of such a completion of the offence, that might, under ordinary circumstances, occasion conception; and consequently not only the actual introduction of the male organ, but also of the essential fluid was formerly required to complete the crime of rape, and without which proof it was supposed that no man could object to the female as actually contaminated or affected in her virgin purity. In that state of the law, and when such completion of the operation was essential to complete the offence of rape and other crimes connected with the organs of generation, if the prosecutrix failed in proving either the introduction of the male organ or of the fluid, or if it appeared that the prisoner was a eunuch, and that consequently the fluid was deficient in perfect seminal qualities, acquittals frequently took place, and other indelicate and difficult questions and discussions arose, and on 3 Bost. 141, where sexual desire is attributed more directly to the presence and accumulation of the seminal secretion in the vesiculæ seminales, or some of the contiguous parts; and in 3 Bost. 142, it is doubted whether there is any other specific agent; but the former supposition of the nerves and of the cerebellum, and even sensorium, in general, having the principal influence; seems to be well founded; for, however superabundant may be the accumulation of the secretion, yet unless the mind concurs, no sexual intercourse may be accomplished, as established by the instance of the Earl of Es sex; see Montaigne's Essays on Impo- (z) 3 Bost. 308; ante, 271. (a) Cyclop. Prac. Med. tit. Impotence; (b) 3 Paris & Fonb. 44. 382 &c. CHAP. X. that account the statute 9 Geo. 4, c. 31, thus enacted: "And whereas, THE MALE upon trials for the crimes of buggery and rape, and of carnally abusing ORGANS, girls under the respective ages therein before mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes; for remedy thereof be it enacted, that it shall not be necessary in any of those cases to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only." At first this enactment was, as might be supposed from its terms, construed by a very learned judge merely to relieve a prosecutrix from the necessity of her proving the completion of the offence according to the old law; and he considered that if the essential fact of emission were explicitly negatived in evidence, then the prisoner must be acquitted of the capital charge; (d) but in subsequent cases the judges decided that this statute not merely affected the evidence but altered the character of the offence; and that therefore as well in prosecutions for rape as for carnal knowledge of infants, and unnatural crimes, the capital offence is complete if perforation be proved, although emission be negatived, (e) and this although the hymen be unbroken, and the vagina continue so small that even a finger could not be introduced; (f) and perhaps as a eunuch and an infant under the age of fourteen may be capable of penetration, though not of perfect emission, he might, since the last enactment, be convicted of a rape or unnatural offence.(g) Doubts the altera tion in the law of rape ent. This act has certainly been convenient in practice, by putting an end to all difficulties of that nice and delicate nature as regards the enumerated criminal prosecutions. (h) But as respects questions of impotency in suits for divorce, and as regards legitimacy, it may still be essential in medical as well as judicial inquiries to ascertain the precise components of the secretion. Perhaps the want of distinction between the actual and perfect comwhether pletion of the offence and cases where the attempt has been defeated, may unfortunately have had the effect of inducing some offenders to complete the outrage in cases where, under the old law, the fear of the higher is expedi- punishment might, especially if opposed with sturdy resistance, have been prevented. Under the existing law capital punishment is the re sult, although there have been an incomplete assault and the slightest introduction of the male organ infra labia, without farther perforation or the slightest laceration or actual injury to the vagina, and although seminal discharge be clearly negatived. An offender, under such circumstances, knowing that he may be equally punished whether he complete his purpose or not, naturally resolves to complete the really greater offence; and thus cases may have occurred where, contrary to the sound policy of legislators in framing an ascending scale of punishment in proportion to the injury or evil to be repressed, the offender is not induced to exercise any locus penitentiæ, but completes what is confessedly a greater injury. Many experienced individuals have, therefore, more than doubted whether some modification of this modern law is not called for.(i) (d) Per Taunton, J. in Rex v. Russell, 2 Mood. & M. C. N. P. 122. (e) Cox's case, 1 Mood. Crim. Ca. 337; Rex v. Reekspear, id. 142. (f) 4 Car. & P. 249; Cox's case, 1 Mood. Crim. Ca. 337. (g) Semble, 1 Par. & Fonb. 433, 434; and post, 383, note (o.) (h) 9 Geo. 4, c. 31, s. 13 to 19. Quære, mit crimes In legal consideration males under the age of fourteen are incapable CHAP. X. of committing the crime of rape, or indeed any other sexual crime,(k) THE MALE ORGANS, nor before that age can they marry,() it being supposed that until that &c. age had been attained that the two capacities, which according to the ancient law must have combined, could not exist; and it being expedient The age of for legal purposes to fix some precise age, so as to avoid difficulty in puberty, evidence and uncertainty in legal investigation.(m) And although that and capacidoctrine originated at a time when a concluding part of the proceeding ty to comwas essential, as affording the most decisive evidence of the characteristic in males. of manhood, and to the completion of the offence, (n) and although now that part of the process is no longer essential, perhaps a different rule might without impropriety be adopted, so as to include offenders of an earlier age than fourteen, (who are between that age and seven, legally, capable of committing other crimes,) yet as the law has once fixed that age as the earliest time when the ability to commit a sexual crime is to be considered as established, it is most probable that the rule would be still adhered to, although one of the reasons for its adoption has ceased. (0) It will be observed that our law merely protects infant females from too early sexual intercourse, and under the age of ten and twelve supposes her incapacity to consent; (p) whilst improvidently it permits, or rather does not punish, females, especially elders, who not unfrequently too early excite the indulgence of imperfect desires of male infants, so ruinous to their ultimate powers and health. Nor is there in this country any punishment against males under fourteen who excite in others or themselves indulgence in prejudicial propensities, though the law of feelings of man, and his repugnance to form a matrimonial connexion with a female who has been completely violated, according to the requisites of the ancient law, will hesitate in admitting that an incomplete attempt is not so great an injury as that, which according to the ancient law, must have been completed; and in legislating, it is submitted that some distinction in punishment should if possible be introduced. (k) If an unnatural offence be committed on a boy under the age of fourteen, it is felony only on the part of the individual above that age, 1 Hale, P. C. 670; 3 Inst. 39; note (n.) (7) 1 Bla. 436; G. Smith's For. Med. 107; 1 Russ. & R. Cr. C. 48. (m) 1 Hale, P. C. 631; 4 Bla. Com. 212; and see 1 Par. & Fonb. 191. There are, however, many instances of much earlier development of sexual powers, see id. and Cyclop. Prac. Med. tit. Impotence. (n) 12 Coke's Rep. 37; Hawk, B. 1, c. 41, s. 3; Hill's case, 1 East, P. C. 437, 438; by a large majority of the judges, dissentient Buller, Loughborough, and Heath, C. J. It was on account of the supposed mental as well as bodily imbecility of a boy under fourteen, to have perfect knowledge of the immorality of the act, that it was decided, that if an unnatural offence be committed on a boy under fourteen it is felony in the adult party only, 1 Hale, P. C. 470; 3 Coke's Inst. 50; and (0) See also 1 Par. & Fonb. 191. (p) By 9 Geo. 4, c. 31, s. 17, it is enacted, that if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon; and if any person shall unlawfully and carnally know and abuse any girl, being above the age of ten years and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common jail or house of correction, for such time as the court shall award. Sect. 18. And whereas upon trials for the crimes of buggery and of rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes; for remedy thereof, be it enacted, that it shall not be necessary, in any of those cases to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penc tration only. &c. CHAP. X. France extends to all acts of this nature. It has been suggested that THE MALE when this has been occasioned, as not unfrequently, by the profligate ORGANS, seduction of elder matrons, it would be well if the legislature subjected them to punishment. The French code certainly subjects all such seducers to imprisonment for two years, and if she be a parent, tutor, or governess, to even five years' imprisonment. neral. Of the phy- The period when the ability to procreate commences in both sexes is siological technically called puberty, and which, in fact, is not in general apparent and legal in females or males till the age of fourteen and upwards, though the law view of pu- fixes the age of twelve in females, and fourteen in males. In males, at berty, and the female that age the beard gradually appears; the voice is changed, and vulgarly capability said to break, though in reality merely becomes fuller, deeper, and more to procre- sonorous; (g) the secretion of semen commences, and hereditary diseases ate in ge- and predispositions become more identified, and the mental faculties manifestly become more rapidly developed;(r) and whilst, it has been supposed, before that period memory has been superior, and, consequently, antecedently was the time to pour in and impress new ideas upon every subject of mental attainment, yet at fourteen has arrived the time when imagination and the still more important faculties of reasoning and judgment, become predominant, and consequently comparison of previous attainments and mental taste are to be more particularly cultivated.(s) At this tumultuous period parents and preceptors are more attentively to inculcate moral and religious principles, so as to counteract the increasing corporeal powers and the passions, and more deeply impress the value of discretion and virtue. At this time the law, assuming to adapt itself to the physiological view of the subject, (though, as we submit, erroneously,) treats the female and the male to be capable of procreating, and though it forbids sexual intercourse with a female, even with consent, before she has attained the age of twelve,(t) yet permits a perfect and complete marriage of a male who has attained fourteen, and a female twelve.(u) By the ancient ecclesiastical law, (no longer in force,) (x) a male under fourteen, or a female under twelve, and above seven, might marry, although such marriage was only inchoate and imperfect, and either of them might on attaining their age of puberty disagree and declare the marriage to be void, without any divorce or sentence in the spiritual court, unless they had previously perfected the requisite sexual congress, and shown themselves habiles ad matrimonium;(y) and our common law so far concurred, that if at the age of consent the parties agreed to continue together, they need not be married again.(z) But a marriage under the age of seven, except in the case of marriage of princes made by the state, was absolutely void.(a). In a medical as well as a judicial view, therefore, it may still become a question whether the male or female were or are, in fact, habiles ad matrimonium.(b) The capacity of a male to procreate may be readily supposed to continue whilst the two principal faculties continue in an adequate degree, (9) Ante, 97. (r) 5 Good, 2; 2 Dungl. Phy. 397; G. Smith, 407, 496; 1 Par. & Fonb. 187; and as regards the voice at this time, the larynx and glottis are rapidly enlarged; 5 Good, 8; 1 Par. & Fonb. 185; and see Johnson's Dict. tit. Puberty, as to the cause of change of voice at that age; Brous. Phy. 553. (8) El. Blum. ss. 653, 654, p. 524; 1 Par. & Fonb. 185. (t) 9 Geo. 4, c. 31, s. 17, ante, 383. (u) 1 Jac. 1, c. 11, s. 3; Russ. & Ry. Cr. C. 48; 1 Bla. C. 436, n. 12. (x) Bills or suits to compel performances of a contract to marry cannot now in any case be sustained, 4 Geo. 4, c. 76. (y) 1 Par. & Fonb. 170; 1 Hale, P. C. 17; G. Smith, 407, 496, in notes; 1 Bla. Com. 436. (z) Co. Lit. 79. (a) Swin. Mat. Contr.; and see Ward. L. Nat. (b) 1 Bla. Com. 436. ORGANS, &c. but the period of cessation is not so marked as we shall perceive it is in CHAP. X. women by the cessation of catamenia. The ages from sixty-five to seventy THE MALE have been supposed the general limit. (c) But by too early or excessive, or irregular indulgence, or by illness, and consequent debility, the age of cessation may be greatly anticipated. Whilst, on the other hand, a few extraordinary instances have appeared of protracted powers, as that of old Parr, who married at the age of 122, and lived till he was 152, and did penance for an illicit amour, at the age of 102. But these are singular exceptions, and in general the rule, as observed by M. Virey, is, that sexual ability exists only between the ages of fourteen and sixty-five. culiarities We are now to examine those circumstances which distinguish females Ninthly, from males, or, rather, those which are peculiarly important in procrea- Of the petion, and this is marked very early, even at the instant of birth; for even in females, at birth the average weight of a male child is said to be 7lb. 5oz. 7drms. and especi whilst that of a female is only 6lb. 11oz. 6drms.(d) Male skeletons also ally in their differ from the female, not only in the whole combination, but also in the organs of form and properties of certain individual parts. The bones of the female generation. are smaller and more delicate, and the muscular impressions and asperities are less distinctly marked. The articulations or joints are smaller, and in other enumerated particulars they materially differ.(e) But as men themselves differ so much in their relative proportions, any differences might be attributed to a diminutive size, and it seems that the only, or at least the most decisive mark by which a female skeleton can be at once distinguished is to be found in the structure of the pelvis, and arises from the obvious design of nature to frame the female in that part more capaciously to fit her to become a mother. The capacity of the pelvis of a female, at the level of the linea innominata, or, rather, linea ilio pectinea, formed by the lower part of the inside of the ileum and ridge of the pubis, is much more capacious from side to side than in the male, (in an average, with reference to the height of the individual, of about one inch wider than in the male pelvis. The entrance or brim of the cavity is also more oval, the greatest diameter being from side to side, whilst in the male it is more triangular, and in males the greatest diameter is from the fore to the back part.(f) In other words, the arch of the pubis, or front border of the inferior aperture, is much larger in women than in men, which circumstance is favourable to the passage of 'the head of the child at the time of birth, and constitutes the most distinguishing mark between the male and female pelvis.(g) Several other differences are also observable in this part of the human skeleton. The inferior transverse diameter of the pelvis should, it is said, be about four inches or more, and if it be much less there is hazard in labour, and especially if there be only an inch and a half in the pubis to the sacrum;(h) but these, together with the dimensions of the head of the child, will be presently more particularly examined. (i) The lungs of the female are usually less than those of the male;(k) (c) Amer. Cyclop. Prac. Med. tit. Ages; G. Smith, 496; 1 Par. & Fonb. 170, 172, b. 185; Cyclop. Prac. Med. tit. Impotence. In France, a male before eighteen, and a woman before fifteen, cannot marry with out dispensation from the king, Code Civil, livre i. titre v. pl. 144, 145. (d) Dr. Clark, in 2 Phil. Trans. vol. Ixxiv.; 5 Good, 103; 1 Beck, Med. Jur. 167. (e) 5 Par. & Fonb. 77. |