[349]. This law however prevails both in Scotland & Ireland. Co. Litt. 30.
[350]. But it has been doubted whether the child may not be heard to cry in utero; Mr. Derham (Phil. Trans. vol. 26. p. 485) has given an account of a case of Vagitus Uterinus, in which the child is said to have cried for near five weeks before delivery, and what is equally extraordinary, the author professes to credit the story! Etmuller, in his Dissertation “De abstruso respirationis humanæ negotio,” c. 9. agrees with Diemerbroeck in considering such a phenomenon as impossible, and attributes the noise to flatulence. The learned Verzascha of Basil gives a long catalogue of cases of Vagitus Uterinus, in his third Observ. Medic. see also Dr. Needham’s work “De formato fœtu.”—Christian II. King of Denmark, is said to have cried before he was born. We must, however require very powerful testimony to shake our incredulity upon this subject, and we should then be rather inclined to believe the event with Livy, as a prodigy of Nature, than to consider it, with Derham, as a natural phenomenon.
[351]. The words oyes ou vife, do not warrant this doubt, (see Notes ibid), for “the crying is but a proofe that the child was born alive, and so is motion, stirring, and the like,” or indeed any other evidence to shew that there was living issue born; such at least appears to be the present law upon the subject, but it may be doubted whether the ancient law did not contemplate not only a living child, but a child born in due course, and therefore likely to live. A Fœtus of a few months when extracted may move, yet such fœtus could not live, and cannot be considered as possessing the principles of independent vitality; so that it should survive its separation from the mother. But when a child can cry, the lungs, which are to supply the circulation, for which till then, the infant had been dependant, are matured for their office, which once commenced the child becomes a separate and independent being. Louis IX. decreed, that in order to give a child the title of inheritance it should have cried—i.e. completely respired.
[352]. And query also, why was a living child required? Foreign writers made a distinction between vivum and vitale, “Hoc est qui vitam protrahere hæreditatis particeps fieri, eamque ad alios transferre possit.” Ludwig. Ins. Med. For. p. 42.
[353]. A cause in illustration of this subject was tried in 1806. Fish v. Palmer—and was as follows: Fish had a still-born child by his wife, and at her death, as no issue had been born alive, he resigned the estate to his wife’s brother-in-law. He was, however, afterwards induced to contest the fact of the child having been born dead. The accoucheur, Dr. Lyon, had died before the trial, but it appeared in evidence, that he had declared the child to be living an hour before the delivery, and having directed a warm bath to be prepared, gave the child to the nurse to be immersed in it. It neither cried, nor moved, nor did it shew any signs of life; but two women swore, that while in the hot water, there twice appeared a twitching and tremulous motion of the lips: upon informing Dr. Lyon of this, he desired them to blow into its throat, but it never exhibited any other signs of vitality. It was declared by Drs. Babington and Haighton, that the muscular motion of the lips could not have happened if the vital principle had been quite extinct, and that, therefore, the child was born alive. Dr. Denman, however, gave a contrary opinion, and declared that the child was not born alive; and he attempted to establish an important distinction between uterine and extra-uterine life, and considered that the tremulous motion of the lips might arise from some remains of the former. Foderé in quoting the case expresses a similar opinion, and pronounces that the slight convulsive motions alluded to, ought not to have been received as evidence of the child’s vitality. The Jury, however, found that the child was born alive.
[354]. If a woman seized of lands in fee taketh husband, and by him is bigge with childe, and in her travel dieth, and the childe is ripped out of her body alive, yet shall he not be tenant by the curtesie; because the childe was not born during the marriage, nor in the lifetime of the wife, but in the meane time the land descended, and in pleading he must alledge that he had issue during the marriage. Co. Litt. 30.
[355]. If the wife be delivered of a monster, which hath not the shape of mankinde, this is no issue in the law; but although the issue hath some deformity in any part of his body, yet if he hath humane shape this satisfieth. “Hi qui contra formam humani generis converso more procreantur, (ut si mulier monstrosum vel prodigiosum fuerit enixa inter) liberos non computentur. Partus tamen cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter, ut si sex digitos vel nisi quatuor habuerit, bene debet inter liberos commemorari. Si inutilia natura reddidit membra, ut si curvus fuerit aut gibbosus vel membra tortuosa habuerit, non tamen est partus monstruosus. Item puerorum alii sunt masculi, alii hermaphroditæ. Hermaphrodita tam masculo quam fœminæ comparatur secundum prevalescentia sexus incalescentis.” Co. Litt p. 30.
[356]. It is scarcely necessary to guard the reader against a belief in the extraordinary instances of monstrosity which are to be found in the periodical collections published during the seventeenth and beginning of the eighteenth century, as in the Ephemerides, Journal des Sçavans, &c. In one, there is mention made of a child born with a pig’s head; in another a woman is delivered of an animal exactly like a pike fish!
[357]. If two Embryos, contained in the same ovum, be placed back to back, and the surfaces of contact should become inflamed, their mode of union may be easily perceived. If we put the fecundated Ova of a tench, or any other fish into a small vessel, the numerous young not having sufficient space to grow, become jointed to each other, and hence will arise monstrosities in fish.—Richerand’s Physiology.
[358]. The most remarkable case of this kind upon record is that related by Buffon (Hist. Naturells, Supplement, tom. ii, p. 410), of a double infant, joined at the loins and having a common anus, but being in all other respects, morally as well as physically, separate beings. They were born at Tzoni, in Hungary, on the 16th of October 1701, and died in a convent at St. Petersburg, on the 23d of February 1723. Their names were Hélène and Judith; the one having been attacked with fever, became lethargic and died, upon which the other was seized with convulsions and survived her unhappy partner not more than three minutes.