636 MAJORITY. CRIMINAL RESPONSIBILITY. incapacity, of committing a rape as a principal in the first degree, or even of committing an assault with intent to perpetrate this crime; but if the boy have a mischievous discretion, he may be convicted as a principal in the second degree. A person may be convicted of an unnatural crime, although the agent be under 14. A female under the age of 13 years is presumed to be incapable of consenting to sexual intercourse. Boys at or under 14 have been tried and convicted of rape on several occasions. Under the new Criminal Code, it is proposed that there shall henceforth be no presumption of law as to the age at which a boy becomes capable of committing a rape. A person attains his legal majority, or is completely of age, the first instant of the day before the twenty-first anniversary of his birthday; and this mode of calculating age and time is applicable to all other ages before and after twenty-one. This is on the principle that a part of a day is, in a legal point of view, equal to the whole of a day. A few minutes or hours may thus determine the attainment of majority, and, with this, the responsibility of minors for civil contracts or the validity of their wills. By 1 Vict. c. 26, no will made by any person under the age of twenty-one years shall be valid; and as the day of a person's birth is included in the computation of his age, and there being in law no fraction of a day, a valid will may be made at any time on the day before that which is usually considered the twentyfirst anniversary of birth. There is another aspect in which this question of age may be viewed -namely, in reference to the responsibility of accused persons for debts, or alleged criminal acts. In Reg. v. Thornhill (Stafford Lent Ass., 1865), the prisoner was indicted for a misdemeanour in carnally knowing and abusing one Mary Sambrook, being a girl above the age of 10 and under the age of 12 years. It appeared in evidence that the girl's birthday was on Dec. 5, 1852, and the offence was alleged to have been committed on Dec. 4, 1864. The question then arose whether this girl was at the time under the age of 12 years, so as to bring the offence within the then statute. It was objected by the prisoner's counsel that, as on Dec. 5 as the girl would enter on her 13th year, she had therefore completed her 12th year on Dec. 4, and that the law did not recognize a fraction of a day in such a case, so that she was 12 years old as much on the first hour of that day as on the last; and Pigott, B., so held. The indictment contained counts alleging rape and assault, but, after the cross-examination of the girl, his lordship stopped the case, and the prisoner was acquitted. It is obvious that this principle would now equally apply to charges of felony for the carnal knowledge of children under 13 years of age, as well as to the misdemeanour of taking girls under the age of 16 years from the custody of their parents or of stealing children under the age of 14 years from their parents or guardians. The proof-of the exact date of birth sometimes rests with a medical man. The subject of plural births has been regarded as appertaining to PLURAL BIRTHS. MONSTROUS BIRTHS. 637 medical jurisprudence; but we are not aware that there is any case on record in which the evidence of a medical man has been required respecting it. This is a simple question of primogeniture, which has been generally settled by the aid of depositions or declarations of relations or servants present at the births. Of course, in the absence of eye-witnesses, the question of priority of birth must be a matter of conjecture. It cannot be determined by the size or weight of the child, but it might be determined by the observation of certain marks or deformities in one or more of the children. Monstrous Births. The law of England has given no precise definition of what is intended by a monster. According to Lord Coke, it is a being which hath not the shape of mankind; such a being cannot be heir to, or inherit land, although brought forth within marriage.' A mere deformity in any part of the body, such as supernumerary fingers or toes, twisted or deformed limbs, will not constitute a monster in law, so far as the succession to property is considered, provided the being still have 'human shape.' From Lord Coke's description, it is obvious that the law will be guided in its decision by the description of the monstrous birth given by a medical witness. It would not rest with a witness to say whether the being was or was not a monster— the court would draw its inference from the description given by him. Various classifications of monsters have been made, but these are of no assistance to a medical jurist, because each case must be decided by the peculiarities attending it; and his duty will not be to state the class and order of the monster, but simply in what respect it differs in shape and external appearance from a normal child. But the question here presents itself What is a normal child, or indeed child,' in a legal sense? On this point conflicting decisions have been given by different judges (p. 536, ante). All will agree that a blighted fœtus or a mole is not a child, but a difference has arisen on the question whether the partus should, in addition to having human shape, have reached a uterine age at which it could continue to live, i.e. that it should have viability. (See Concealment of Birth, p. 533.) A correct definition of a normal child, therefore, is still a desideratum in law. Although a monster may not survive its birth more than a few seconds, yet if it be legally pronounced from the medical evidence to have human shape, it may transmit an estate to its heirs-at-law, as in the case of normally formed children. Malpositions, transpositions, or defects of the internal organs of any of the cavities do not form monstrous births within the meaning of the English law. The legal question relates only to external shape, not to internal conformation. It is well known that many internally malformed persons live to a great age; and it is not until after death that malpositions and defects of this kind are discovered. In French jurisprudence the case appears to be different; if the malposition or defect was such as to become a cause of death soon after birth, the child would be pronounced not viable,' and therefore incapable of acquiring civil rights. Some medical jurists have discussed the question of 'viability' in new-born children, i.e. their healthy organization with a 638 LEGITIMACY OF OFFSPRING. capacity to continue to live, as if it were part of the jurisprudence of this country; but there are no facts which bear out this view. The English law does not regard internal monstrosity as forming a bar to civil rights; and the cases decided hitherto show clearly that the simple question in English jurisprudence is, not whether a child (partus) is or is not viable,' but whether it has manifested any distinct sign of life after it was entirely born. The French law is much more complex, and throws a much greater degree of responsibility on French medical jurists. No person is legally justified in destroying a monster at birth (p. 599, ante). LEGITIMACY. CHAPTER 56. GESTATION.—VIABILITY.—EARLIEST PRESUMPTION OF LEGITIMACY.-NATURAL PERIOD OF GESTATION.-DURATION Legal Presumption of Legitimacy.-Every child born either in lawful matrimony, or within a period after the death of the husband in accordance with the natural duration of gestation, is considered by the English law to be the child of the husband, unless the contrary be made clearly to appear by medical or moral evidence, or by both combined. It is only in reference to medical evidence that the subject of legitimacy can here be considered; but it is extremely rare to find a case of this kind determined by medical evidence alone. There are generally circumstances which show that a child whose legitimacy is disputed is the offspring of adultery, while the medical facts may be perfectly reconcilable with the supposition that the claimant is the child of the husband. These cases, therefore, have been repeatedly decided from moral evidence alone-the medical evidence respecting the period of gestation or physical capacity in the parties leaving the matter in doubt. The present state of the English law on this subject appears to be this. A child born during marriage is deemed illegitimate when, by good medical or other evidence, it is proved that it was impossible for the husband to have been the father-whether from his being under the age of puberty, from his labouring under physical incapacity as a result of age or natural infirmity, or from the length of time which may have elapsed since he could have had intercourse, NATURAL PERIOD OF GESTATION. 639 whether by reason of absence or death. When the question turns upon any of these conditions, medical science is required for its solution, and on these occasions skilled experts are usually selected by the litigants. With proof of non-access of the husband or immorality on the part of the mother, so important on these occasions, a medical witness is not in the least concerned. In cases of contested legitimacy, the English law does not regard the date of conception, which cannot be fixed, but the date of birth, which can be fixed. Medical evidence may relate, first, to the actual length of the period of gestation,—this may be in a given case so short or so long as to render it medically impossible that the husband could be the father; second, there may be physical incapacity in the husband to procreate, he may be too old or too young, or he may labour under some physical defect rendering it impossible that he should be the father; third, there may be sterility or incapacity in the wife, rendering it impossible that the child should be the offspring of a particular woman,-in other words, the claimant may be a supposititious child. Natural Period of Gestation. Duration from One Intercourse.-The first point to be considered is-What is the natural period of gestation, and whether this is a fixed or variable term. According to the testimony of experienced accouchers, the average duration of gestation in the human female is comprised between the thirty-eighth and fortieth weeks after conception. Numerous facts show that the greater number of children are naturally born between these two periods. Out of 186 cases reported by Murphy, the greater number of deliveries took place on the 285th day ('Obst. Rep.,' 1844); but his opinion is that 301 days may be taken as the average limit of gestation. (‘Lancet,' 1844, ii. p. 284.) Blundell considered that the average period was 274 days. Simpson (Bromwich v. Waters, Chester Lent Ass., 1863), 277 days, i.e. nine calendar months and a week; and other accoucheurs of repute have fixed upon 280 days. Among 500 cases observed by Reid, there were 283 in which the period of gestation was within 280 days, and 217 cases in which it went beyond this period. Duncan found, in a group of forty-six cases, that 275 days is the average interval between that which he terms insemination' (intercourse) and parturition. The largest number of cases on any particular day was seven on the 274th day. (Edin. Month. Jour.,' 1854, vol. ix. p. 230.) The most common cause of this variation in time is that the usual mode of calculation, by reference to the suppression of the menstrual discharge, even in a healthy woman, may lead to a possible error of two, three, or even four weeks, since there is no sign whereby, in the majority of women, the actual time of conception can be determined. Some have been able to determine by peculiar sensations, the time at which they have conceived; but, as a general rule, this must be a matter of pure conjecture when they are living in connubial intercourse. On the other hand, accidental and isolated cases have clearly proved that a great difference naturally exists among women with respect to the period of gestation; and it is probable that in no two is it necessarily the same. When there has been only one intercourse, the 640 LEGITIMACY. DURATION FROM ONE INTERCOURSE. duration of pregnancy may be certainly calculated without reference to any changes in the female constitution; for the date of conception, within certain limits to be presently mentioned, would be fixed. Observations of this kind have shown that women have differed from each other; and in several instances the time has exceeded or fallen short of the period of forty weeks, which has been usually set down as the legal limit of natural gestation. In three cases of single intercourse known to the late Rigby, labour came on in 260, 264, and 276 days, making a difference of sixteen days. ('Med. Times,' 1846, i. p. 471.) In three other instances which were communicated by Merriman, labour commenced at 281, 283, and 286 days respectively after one intercourse; and in a case which occurred to Reid, the labour did not commence until after the lapse of 293 days from a single intercourse. ('Lancet,' 1850, ii. p. 79.) In another case accurately observed the gestation lasted 281 days. Menstruation had ceased on the 16th Sept., intercourse took place on the 20th, quickening occurred on the 23rd Jan., and a full-grown male child was born on the 28th June following. In two cases, the women were delivered respectively in 249 and 260 days after a single intercourse. In a third, in which pregnancy was the result of a rape, there was an interval of 261 days between intercourse and delivery. Hence it will be perceived that in well-observed cases, where there could be no motive for misstatement, and in which the characters of the women, some of whom were married and had already borne children, were beyond the reach of suspicion, a difference of not less than thirty-three days has been observed to occur, i.e. between the earliest case reported by Rigby, and the latest reported by Reid. This is worthy of remark, because in one case (Luscombe v. Prettyjohn) it was legally held that 299 days, only six days longer than in Reid's observation, was an impossible period for human gestation. In addition to the above facts, showing the variability of the period after a single intercourse, the following may be cited. Macilvain has reported a case of gestation which he thinks must have extended to 296 or possibly to 299 days. (Amer. Jour. Med. Sci.,' 1848, p. 247.) We are indebted to Oldham for nine cases, which have fallen under his observation, in which the duration of pregnancy from a single intercourse was accurately observed :— Nos. 4, 5, and 6 represent the periods of gestation in the same woman at different times. Idelson, a recent female medical authority, made observations on the durations of pregnancy in 4370 cases. The usual duration was 279 days. (Petersburg. Med. Wochenschr.,' April 28, 1881.) Lockwood published the following as the result of his experience. |