EVIDENCE FROM THE EXAMINATION OF THE WOMAN. 611

2. That strangulation can take place only in children which have breathed.

3. That a child may be strangled during birth by the accidental twisting of the navel-string round its neck.

4. That the navel-string may produce a livid or ecchymosed depression on the neck, like any other ligature.

5. That marks on the neck produced by accidental causes may resemble those which arise from strangulation.

6. That the effect of constriction on the neck, either by the navel-string or any other ligature, is the same if the child be living, whether it has or has not breathed.

7. That the effect is the same whether the child has been partially or entirely born.

8. That the effect of a ligature on the neck of a living child is the same whether the navel-string has or has not been severed. 9. That a newborn child may die from strangulation being necessarily indicated by ecchymosis on the neck. the nature of the ligature and the amount of force used.

without this fact This depends on

Examination of Women. Medical Responsibility.—In general, it is the mother of the child who is charged with the murder, and in this case it may be necessary, in order to connect her with the child, to determine whether she has or has not been recently delivered, Medical evidence may show that the date of delivery does or does not correspond with the date of the birth and death of the child. The usual appearances in cases of recent delivery, both in the living and dead body, have been elsewhere fully described. (See Delivery, ante, pp. 522-525.) These appearances necessarily vary according to the time at which the examination is made. Toulmouche has reported in detail several cases showing the post-mortem appearances met with at different dates. (Ann. d'Hyg., 1864, t. 2,

349.)

If the reputed mother of the child is dead a coroner or magistrate may issue an order for a post-mortem examination of the body, and the case will present no difficulty; if living, a serious question may arise as to medical responsibility. In general, a woman consents to be examined, but it may happen that she will refuse to submit to a physical examination. An innocent woman is just as likely to refuse permission as one who is guilty; but, if circumstances point to one out of several women in a household, the refusal to permit an examination would, of course, be interpreted against her. It has happened on more than one occasion that medical men have assumed to themselves the right of enforcing an examination of suspected women, and, by threats or otherwise, they have compelled them to undergo this. Such a course of conduct is in the highest degree indecent and improper; but when a woman willingly consents to be examined a medical man is justified in making an examination, and giving evidence thereon. It would, however, be only fair in such a case to give her the warning which every magistrate and coroner is bound to give to any woman charged with murder, before requiring an answer to a question which may be used in evidence against her at the subsequent trial. The case is widely different, however, when a medical man takes this authority upon himself, and compels a suspected woman, unwillingly, or under duress, to submit to a physical examination. By taking this illegal course, he is forcibly compelling a woman accused of murder to produce positive proof of her guilt; such a course is entirely opposed to the spirit and practice of English jurisprudence. The mischievous results of such officiousness on the part of a medical man are well illustrated by the

612

MEDICAL RESPONSIBILITY.

following cases. A surgeon and an inspector of police insisted upon examining two women, a mother and daughter, in order to determine whether either of them had been lately delivered of a child. This was against their consent, and in the absence of the husband and father. He brought an action against them, and recovered damages. (Lancet, 1871, ii. p. 333.) The other case was that of Weir and Wife v. Hodgson (Liv. erpool Wint. Ass., 1861). The dead body of a child had been found near the house of the plaintiff. The defendant, a surgeon, went with an inspector of police to see Mrs. Weir, and, having informed her that she was suspected of having had a child, told her that he had come to examine her by the authority of the law, and that she must submit. She refused at first, and proposed to send for a medical man whom she knew. In the end the defendant examined her, and found that there was no ground for the charge. The jury returned a verdict of 2001. damages for the assault. The police can give no legal power to a medical man to make such an examination in a suspected case, and the ultimate consent of the woman, if extorted by threats or intimidation, will be no answer to a charge of indecent assault. A later case (Warne v. Serjeant) was tried at the Manchester Wint. Ass., 1878. It was here doubtful whether the woman had given her consent to an examination, and the jury found a verdict for the defendant. The judge observed that, even if the surgeon had been honestly misled by the woman's conduct, it would still be an assault. In all cases, whether the charge against a woman be one of concealment of birth, abortion, or child-murder, a medical man must act upon his own discretion. An examination of her person, with a view to obtain evidence against herself, is unlawful, except with her free consent.

A coroner issuing an order for the compulsory examination of a woman under these circumstances would be acting ultra vires, and any medical man obeying it would incur a serious responsibility. In 1871 a case occurred that placed this question in cases of alleged infanticide in a painful light. A young lady committed suicide rather than submit to a physical examination by two medical men under the order of a coroner. The coroner held an inquest on the body of a child in a case of alleged childmurder. A suspicion arose that this young lady had been recently delivered. Two medical gentlemen, provided with a written order from the coroner, went to the house where the lady resided, and requested an interview with her for the purpose of ascertaining whether she had recently had a child. She refused to see them, and subsequently destroyed herself. All the particulars of this tragedy were not made known, but the attempt to examine this young woman for the purpose of obtaining evidence against her on a charge of child-murder appears to have had such an effect on her mind as to lead to suicide. The fragmentary partieulars of this sad case will be found in the Lancet for 1871, vol. ii. pp. 333, 414, and 477. The 6 and 7 Will. IV., c. 89-now repealed, except for Ireland under which an order was issued by the coroner on this occasion, empowers a medical man to examine a dead body, and give evidence touching the cause of death; but it says nothing about the examination of living women. Such an order would be obviously illegal, and a medical man acting under it would render himself liable to an action for an indecent assault. The Coroners' Act, 1887, empowers a coroner to order examinations of a dead, not of a living body.

It can be only by the free consent of the person inculpated that a personal examination for evidence can be made. The Tichborne trial furnished a good illustration of the care taken by our judges that an accused person shall not unknowingly furnish evidence against himself. It was

MEDICAL RESPONSIBILITY.

613 alleged on this oecasion that if the "claimant" had been bled in the temporal artery a scar would remain; and a proposition was made that he should be then examined by two medical witnesses who had been called for the prosecution. Cockburn, L. C. J., ruled that such an examination could not be made except by the consent of the accused. This was given, and the examination accordingly took place in court. A similar rule has been long acted on in the Scotch courts. Thus in a divorce case, tried in 1860 (Edin. Sess. cases, 1860), the court refused to receive certain evidence which was tendered regarding the condition of a woman, on the ground that they could not compel her to submit to another examination, and the evidence tendered would therefore have been entirely ex parte. In a suit of nullity in the Divorce Court, Hannen, J., was obliged to decide the case upon the evidence of the husband only. The wife refused to submit to an examination, and there was no legal power to compel her to undergo this against her will. (Hewitt v. Pery, falsely called Hewitt, July, 1873.) These cases suffice to show the course which a medical witness should pursue on all occasions in which a person does not voluntarily consent to a personal examination.

614

PARTIAL AND ENTIRE BIRTH.

BIRTH. INHERITANCE.

CHAPTER LV.

LIVE BIRTH IN CIVIL CASES.-DATE OF BIRTH.-SIGNS OF LIVE BIRTH INDEPENDENTLY OF RESPIRATION OR CRYING.-VAGITUS UTERINUS.-TENANCY BY CURTESY.-LEGAL BIRTH. -POST-MORTEM BIRTHS.-MINORITY AND MAJORITY.-PLURAL AND MONSTROUS BIRTHS.

Date of Birth.-Medical evidence has occasionally been demanded in courts of law respecting the actual date of birth in those cases in which a period of a few days, hours, or even minutes was required to prove the attainment of majority-and therefore a legal responsibility for the performance of civil contracts into which the parties had entered, either knowingly or ignorantly, when minors. Some such cases have been decided by the evidence of the accoucheur himself; others, when the accoucheur was dead, by the production of his case-books; and it is worthy of notice that the strictness and punctuality of some medical practitioners, in making written memoranda of cases attended by them, have in more than one instance led to a satisfactory settlement of such suits and the avoidance of costly litigation. The proof of the exact date of birth is also of considerable importance in certain cases of contested legitimacy.

Medico-legal questions connected with this subject arise in contested suits relative to succession or the inheritance of property. A child that is born alive, or has come entirely into the world in a living state, may by the English law inherit and transmit property to its heirs, even though its death has immediately, and perhaps from morbid causes necessarily, followed its birth. Should the child be born dead, whether it died in the womb or during the act of birth, it does not acquire any civil rights; for it is not regarded as a life in being unless it manifests some sign of life after it is entirely born and separated from the mother. Some have considered that partial birth, provided a child is living, should suffice to confer the same rights on the offspring as the proof of entire birth; but great difficulty might arise in civil cases if the bare extrusion of a part of the body sufficed for all the legal purposes of entire birth. It might become a casuistical question, as to how much of a body should be in the world in order to constitute legal birth; for there is no reason why, in a medical sense, the extrusion of the head and shoulders should constitute birth any more than the extrusion of a hand or a foot. If it be said that the act of breathing should be combined with a partial extrusion of the body, this would be unjust; because a child is alive-its heart is evidently pulsating, and its blood circulating, as freely before the act of breathing as afterwards. Besides, it is admitted that children may be born alive and live for some time without respiring; and this want of respiration is no ob jection to these children being considered living in law. In a case referred to hereafter, a child was pronounced to have been legally born alive,

PROOF OF LIVE BIRTH IN CIVIL CASES.

615

although it had certainly not breathed; and that a child may manifest life. for a certain time without leaving in its body any evidence of respiration is clear from numerous reported cases (pp. 568, 569, ante). If, then, proof of respiration be not demanded in cases of entire, it could scarcely be required in cases of partial birth. In the event of partial being treated as synonymous with entire birth, there would be no end to litigation; and medical opinions would vary in every case. It is doubtful whether, under such circumstances, the law could be administered with any degree of certainty or impartiality. Admitting, then, that a child must be entirely born in order that it should acquire civil rights, it will next be necessary to examine the proofs required to show that it has been born alive in a legal sense. The question here is different from that of live birth in reference to child-murder We may presume that a practitioner is present at a delivery in which a child is born in a doubtful state, or where its death speedily follows its birth The civil rights of the child and its heirs will depend upon the careful observation made by a practitioner of the circumstances attending the delivery. He should note the time when the birth is completed, by the body of the child being entirely out of the body of the mother. Children born at or about midnight are liable to have the date of birth wrongly registered; and the legal difference of twenty-four hours, which a few seconds or minutes make, may hereafter affect their own rights, if they survive, or those of others if they die.

[By English and American law, being "born" means that the whole body is brought into the world, and it is not sufficient that the child respires in the progress of birth: Rex v. Poulton, 5 C. & S. 329. There must be independent circulation: Rex v. Enoch, 5 C. & P. 529. The whole body must have come forth from the body of the mother: Rex v. Crutchley, 7 C. & P. 814. The umbilical cord need not have been separated or cut: Regina v. Reeves, 9 C. & P. 25.]

Signs of Live Birth independently of Respiration or Crying.—The visible breathing of a child after its birth or as it may be manifested by its crying is an undoubted sign of its having been born alive; but, as it has just been stated, a child may acquire its civil rights, although it may be neither seen to breathe nor heard to cry. The pulsation of a child's heart or even the spasmodic twitching of any of the muscles of the body has been regarded as a satisfactory proof of live birth (p. 616). The latter sign has been judicially so pronounced; à fortiori, therefore, the motion of a limb will be considered sufficient legal evidence of life after birth in an English court of law. It is to be observed that the length of time during which these signs of life continue after a child is born is wholly immaterial; all that is required to be established is that they were positively manifested. A child which survives entire birth for a single instant acquires the same civil right as if it had continued to live for a month or longer.

In Brock v. Kelly (April, 1861), involving a claim by the widow to the estate of her husband on the ground that a child born twenty years before had been born living, although it was at first supposed to have been stillborn, Stuart, V. C., decided that proof of breathing was not necessary, and held that there was sufficient legal evidence of life after birth in the pulsations of the cord observed by the accoucheur. This decision is in accordance with law and common sense. Pulsations indicate an independent action of the foetal heart as much as a motion of the chest indicates an action of the intercostal muscles. Why it should be maintained that there is life with contractility of the intercostal muscles but not with a contractile power of the heart is not apparent; that this view is not in