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them of their buoyancy: for vesicles of air may also exist in the internal parenchymatous structure of the organs, and effectually resist all attempts at expulsion. What decision, then, can he come to upon this case? If he refer to the majority of writers on the subject, he will find it stated, that air, generated by putrefaction, is formed only on the surface of the organs; and that, when thus formed, it may be readily forced out by compression. But it will be necessary for him to inquire, previously to founding an opinion upon these statements, how far they correspond with ascertained facts. That air is commonly found upon the surface of the lungs, where putrefaction has taken place, is undoubted; but that it always is found in this situation under these circumstances, or that its distribution throughout the structure of these organs is to be taken as a certain criterion of its origin, is more than doubtful. I presume that the same inference will be allowed to hold with the liver as with the fætal lungs, where decomposition has taken place to any extent; and I have repeatedly had occasion to remark, in such cases, that central portions of this organ would float as readily as those which were taken from the margin.* Hence the idea of resting our decision upon the particular situation of the air must be abandoned; at least in such an extreme case as that which I am now supposing.
The question whether air generated in the lungs by putrefaction can be always forced out by compression, has been already in part considered. On this point Orrila, who is, generally speaking, a most accurate observer, says, primera les poumons entre les doigts, et l'on verra en les plaçant sur l'eau qu'ils se précipitent dans les cas de putrefaction; tandis qu'ils continuent a surnager s'il y a eu respiration; en effet les gaz, développés pendant la fermentation putride, sont logés dans le tissu lamineux, qui separe les cellules bronchiques et le plus souvent entre la pléure et les poumons: ou la plus légère pression suffit pour les degager; tandis que l'air atmospherique, qui distend les poumons, pendant la respiration, occupe les cellules bronchiques et ne peut en être expulsé qu'avec la plus grande difficulté.”+ Other
* Air is certainly necessary to the process of putrefactive fermentation; but this, as is well known, is not the only condition. The gaseous elements of which our organs are composed may react upon each other, and produce other gaseous compounds in the central part of an organ, as well as in the exterior. In the latter case, they will distend the investing membranes, and form conspicuous vesicles on the surface; while, in the former, the pressure of surrounding parts may for a time suspend their development, although it cannot prevent their formation.
+ Orfila, Médécine Legale, tome i. p. 358.
authors have expressed themselves in the same manner; but the cases from which these conclusions are derived have been generally those in which putrefaction had not very far advanced. No individual has hitherto asserted it to be impossible that putrefied air should ever assume a disposition in the lungs similar to that in which respired air is commonly met with; indeed, it must be admitted that there is nothing in the nature of things to forbid us believing that such may occasionally be the case. If so, what becomes of this pretended criterion to be derived from the expulsion of the air by compression? It must, in so far as these cases are concerned, fall to the ground; and, probably, the dogmatical assertions to the contrary have tended in no slight degree to increase that scepticism in the profession relative to the utility of the "test," the foundation of which had already been laid by Dr. Hunter. The impossibility of expelling the air from the lungs, as I stated in my former paper, does not prove that it had really been introduced by respiration, where putrefaction has proceeded to its most extreme degree; for a sufficient number of cases has not yet been collected to warrant any such presumption. Those medical jurists, therefore, who dwell upon the certainty of forming a decision by the simple compression of the pulmonary organs, must be understood as referring to cases in which putrefaction has only commenced.
Here then, having reduced the question to its most simple state, we will now see upon what basis the medical jurist is to rest his judgment. The history of the case may be unknown or purposely concealed, and some female may be awaiting the decision of a coroner's court, as the suspected murderer. The surgeon is called upon to decide whether the child had been born alive; which, as I have stated, in the legal sense, signifies to have respired; * and he, taking into
* It is remarkable that our law is so frequently contradictory to itself on many points relating to physiological science. Thus, in cases of infanticide, a child is not considered to have lived, unless it can be proved that it has performed the act of respiration; while, in cases relative to the succession, or to the inheritance of property, the most trifling indication of the presence of the vital principle, such as a motion of the lips or a quivering of a muscle, is considered sufficient to prove that the child was born living. In disputed cases of tenancy by the courtesy, these nice determinations are very frequently met with. A curious case of this kind was decided in the Court of Exchequer, at Westminster, in the year 1806, in which a Mr. Fishe was plaintiff: it was here determined by the court, that, although the child was stillborn, a tremulous motion of its lips, witnessed by the nurse immediately after its birth, was sufficient to prove that it had lived, and therefore, according to law, the estate reverted to the plaintiff. Now, if a question of infanticide had arisen respecting such a child, the decision of our legal authorities would have been, that it was born dead, and therefore that it could not have been murdered!
consideration all the circumstances above described, cannot but answer, " that no certain opinion could be given; for the putrefactive process had completely destroyed those appearances which might have otherwise afforded a satisfactory solution.” Even supposing that his prudence were to forsake him, and he were positively to affirm that the child had lived and breathed after birth, because he had not been able to force out the air from the lungs, what would be the result? His affirmation would only go to warrant the presumption that the child had not been born dead; but this alone would not establish the fact of murder against the mother; for she is not called upon to prove that she did not murder the child. Now, supposing that prejudice has operated on the mind of the practitioner, as it but too often does on the minds of the vulgar, he may have been hastily led to depose to the probability of this child having been murdered; but it will be difficult to understand whence he is to draw his proofs, when the female is placed on her trial; for, in order to establish the commission of the offence, he must first shew that it was impossible the child could have died from any other cause than from violence or neglect on the part of the suspected individual.
It is doubtless from a want of proper attention to this point that many of the acquittals, which take place on trials for infanticide, are to be attributed. The mere proof that the child has lived, is considered to be sufficient to establish the fact of its having been murdered; and a coroner, in nine cases out of ten, will, upon such evidence, commit a female for trial; although it is manifestly as absurd to draw such a conclusion, without strong corroborating circumstances with regard to the body of a child, as with regard to the body of an adult that may be found dead on the highway. It is virtually denying that a child may perish from natural causes, which, as every obstetric practitioner knows, are sufficiently numerous, and are continually operating to destroy a great proportion of those children against whose mothers not a suspicion is ever breathed.
At the Old Bailey sessions, in July last, a woman was indicted for the murder of her child, which was found dead in a watercloset, to which it was proved she was in the habit of retiring. Before the coroner, it had been stated by the medical practitioner who conducted the investigation, that the child had lived to respire. According to the statement of the female on the trial, she was suddenly and unexpectedly delivered on the spot, when the child fell and was suffocated. There was no evidence to impeach her integrity, nor was
there any reasonable ground for suspecting that she had committed the offence laid to her charge. The medical witness, upon being questioned by the court respecting the possibility of delivery taking place in such a situation, and rendering the mother incapable of affording the requisite assistance to the child, was, of course, compelled to answer in the affirmative; and the prisoner was instantly acquitted.
If this case had occurred in a distant part of the country, the female might have suffered eight months' imprisonment upon a groundless charge; and, as it was, she was placed like a felon on her trial, to the great injury of her reputation. It is not for me to decide whether, in this case, the fault attached more to the coroner than to the medical witness; but it is evident, if the coroner had done his duty in putting certain questions to the latter, which a proper knowledge of the subject would have suggested, the female would not have been unnecessarily brought to disgrace and ignominy.*
To return from this slight digression. The reader will perceive that two ways are open to the practitioner, to decide upon so doubtful a case as that which I have imagined. If he assert that medical science is incapable of affording a solution of the question at issue, as he undoubtedly would if he had bestowed a proper attention on the subject, he is not exposing the female to any risk of a prosecution on the charge of murder; nor is he throwing discredit upon the employment of the hydrostatic test. Indeed, to maintain the latter would be a downright solecism; for it would be equivalent to maintaining that, because we cannot always make use of certain means of investigation, we are never to trust to them; a proposition to which few rational practitioners would be disposed to accede. When we speak of the value of employing certain tests for mineral poisons, we do not call to mind the number of cases in which they have failed to give satisfactory results, because we know that there are numerous conditions which, in spite of all human ingenuity, will cause them to fail: but we dwell upon the cases in which they have been known to succeed, and where it is possible, endeavour to avoid those circumstances to which their failure is to be attributed. This is precisely the course to be pursued in in
It has been recently decided in the House of Commons, that a knowledge of medical jurisprudence is altogether unnecessary to the coroner, on the ground that the study of the science would occupy too much of his time, and distract him from his immediate duties. It would be a curious question to determine, whether the time lost by the coroner in this study would not so much time saved from unnecessary imprisonment to those who have to suffer from his ignorance of the subject?
vestigations relative to infanticide; and to contend that, because, in either case, these investigations do not invariably lead to certain conclusions, we ought to abandon those means which rational experience points out, would be the height of absurdity in reasoning. We should, indeed, be acting the part of the man described by the celebrated Locke, " who would not use his legs to walk, because he had not wings to fly with."
But I have presumed, on the other hand, that a practitioner may be found who will swear that the child has lived to respire, and inform the court that he has come to this conclusion from the employment of the hydrostatic test. The test is at once denounced, and the conclusion derived from it rejected; but it is not for a moment supposed that any error may have arisen from the want of judgment or from incapability on the part of the individual who has employed it. On the contrary, the hostility of all is immediately turned against the means which have been used; and the practitioner finds himself unable to encounter the cross-examination of counsel. The result is, that the charge is dismissed; but is it possible that such a result can be attributed to the failure of the hydrostatic test? Is it not proper that we should first satisfy ourselves whether unjustifiable inferences have not been drawn from its employment, before we proceed to condemn it as useless? Although the answers to these questions are obvious and satisfactory, there are very few instances in which they have been asked, and, therefore, the answers have escaped observation. Now such cases form a very large majority of those which come before our courts of justice, and hence the repeated failure of what has been regarded as infallible evidence has led practitioners to fly into the opposite extreme; a circumstance which has brought the Docimasia Pulmonaris into greater disrepute than all the arguments of its most violent opponents. From what has been stated of the case which I have
supposed the practitioner to meet with, it will be at once seen that he is justified, neither by experiment nor by observation, in drawing the above inference. If, therefore, in such a case, he assert that the hydrostatic test proves that respiration has taken place after birth, he is asserting more than he is warranted in doing, and, of course, must take the whole responsibility of the result upon himself. But in spite of this obvious conclusion, the principle upon which we have been acting for many years is precisely the reverse. We have universally condemned the means by which the conclusion has been arrived at, and we have not fairly examined the grounds upon