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.