A painter or a sculptor would be more competent to decide a question of this nature than a physician or surgeon, but in their absence there is none on whose testimony we can more safely rely than on the medical witness, whose habits of observing the formation, changes, and peculiarities of the human body, naturally prepare him for such examination.
It has been supposed that an experienced surgeon or midwife might be able to determine whether a newly born infant was the child of a particular woman, both being submitted to their examination; but this mode of proof, fallacious as it must always be, can be of no possible value, unless the investigation take place within a very few days of the supposed delivery; and even then it goes no further than to determine that the birth and delivery have been nearly cotemporaneous, a result not inconsistent with the supposition that the infant is the child of some other woman, and substituted for one dead, unhealthy, or of the sex incapable of succession.
In ordinary cases this early inspection is not likely to take place, as in the lifetime of both parents the heir presumptive seldom has a summons to view proceedings; but in the case of a pregnant widow, and especially where there has been a question de ventre inspiciendo, it is otherwise, and it then becomes a point of duty in all parties, to obtain the most satisfactory evidence.
A yet more important occasion occurs at the birth of princes; whose entrances and exits are equally subject to question, whenever a disputed succession or an impatient heir give rise to speculation. In England and elsewhere precautions are taken which are as offensive to female delicacy as they are ineffective to the demonstration of truth. The chamber of a pregnant princess, at the moment when quiet is most necessary, is crowded with officers of state and lords of the household; yet we need not remind the reader of all the questions which have, however foolishly, been raised on the supposititious births of princes; for the evidence on the birth of Prince Charles Edward, see 12 Howel. St. Tri. 123. We need only observe that imposition is best practised by skilful jugglers in a crowd, and without disrespect to those learned and reverend personages, we may doubt whether the Archbishop of Canterbury, or the Lord High Chancellor, can be as effective at an Accouchement, as the President of the College of Physicians, or the Master of the College of Surgeons.
TENANT TO THE COURTESEY.
Whether a child, born under certain circumstances, was or was not born alive, is a frequent and important question on the right of the father to the tenant of the courtesey; and as it is naturally connected with the doctrine of gestation, will be partly considered here, though the external signs of incipient and independent vitality will be more fully treated of under the head of Infanticide.
[[348]]“Tenant by the courtesie of England is where a man taketh a wife seized in fee simple or in fee taile general, or seized as heir in taile especial, and hath issue by the same wife, male or female, born alive (oyes ou vife), albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life by the law of England, and he is called tenant by the courtesie of England, because is this used in no other realme but in England onely.[[349]] And some have said that he shall not be tenant to the courtesie unless the childe which he hath by his wife be heard crie[[350]]; for by the crie it proved[[351]] that the child was borne alive. Therefore Quære.”[[352]] Co. Litt. 29. 30.—Here therefore is another occasion[[353]] where Medical Evidence may be useful or necessary, and it cannot be too often forced on the attention of practitioners, who at the expiration of many years may be called upon to give testimony, very frequently affecting property of considerable magnitude, that they should on all occasions make sufficient notes of the births which they attend, the circumstances which they have observed, and the number and descriptions of the persons present, who may at a future period be called to corroborate their testimony. We have known an instance where the books of a surgeon attending a then obscure individual, became necessary evidence before the highest tribunal of the land towards determining the right of peerage.
Foreign jurists have doubted whether a child extricated by the Cæsarian operation[[354]] is capable of succession. “Illud autem valde controversum est inter jurisconsultos, an is qui editus est execto matris ventre reputetur partus naturalis et legitimus et successionis capax.” (Caranza de partu naturali et legitimo. p. 427). And though the question is now decided in the affirmative, some nice points may yet arise,[[355]] if not for the instruction of the jurist at least for the amusement of the casuist.
Of Monsters and Hermaphrodites, legally considered.
It will be seen by the note from Co Litt, quoted under the preceding head, that by the law of England a monster cannot inherit; but the question as to what constitutes a monster is left vague and undetermined. It can seldom have been necessary to agitate this point, since few well attested instances are recorded of any monster, which has materially deviated from the human form,[[356]] having long survived its birth. Some curious instances, however, have occurred of twins who, having become united in the womb by an obvious operation of nature,[[357]] have lived for several years.[[358]] Whether each body should possess separate legal rights would probably be determined by the question whether each possessed the vital organs necessary for a separate existence, if, bating the danger of the operation, they could be corporeally severed. Is it necessary to inform the midwife that he is not authorised to destroy any production however monstrous![[359]]