666

PATERNITY.

LEGAL

always found in the scrotum. As a rule, the female sex, whatever may be the sexual malformation, is clearly indicated by the performance of the function of menstruation. In the case of a girl, at. 8, the pubes was found covered with black hair. There was a wellformed member like a penis, two inches long, capable of erection, but without any urethra. Below the penis there was a large urethra or meatus, and a pendulous vulva, with labia resembling testicles. The parents always had doubts about the sex, but, as the child menstruated regularly, it was a female malformed. (Brit. Med. Jour.,' 1875, ü. p. 514.)

An external examination will sometimes entirely fail to indicate the sex, and even the opportunity of an examination of the dead body may leave the case in doubt. (For a report of a case in which a body resembling the prostate gland and a womb coexisted in the same being, see Med. Times and Gaz.,' 1860, i. p. 177.) A case has been already mentioned in which neither testicles nor ovaries were found after death, and more than one instance is said to have occurred in which both have been found. This last condition is a case of intermixture of the sexes, or, physically speaking, real hermaphroditism, but, of course, without the functional power of self-impregnation.

Medico-Legal Relations.-Persons in whom the sexual organs are defective or imperfectly developed, are impotent and sterile. Questions connected with the legitimacy of offspring, divorce, and affiliation may, therefore, be raised with respect to them. Sexual monstrosity is not a ground for depriving a being of the rights of inheritance, except under peculiar legal conditions. Thus a right of succession or inheritance to landed estate may depend upon the sex of the offspring: as where, for instance, two children are born, the first an hermaphrodite, the second a well-formed male child. The parents die, and a title of nobility or lands may fall to the firstborn male. Here the sex of the firstborn must be determined before possession can be had. In a case of this kind, if medical evidence should establish that male peculiarities predominate in the first born, the second child would be cut off. Again, if an estate were limited by entailment, as where it is settled upon heirs (male or female) of a particular family, the birth of an hermaphrodite, an only child, would create a legal necessity for a positive determination of the predominance of sex. So, if an hermaphrodite lives but a few minutes after its birth, and then dies, the rights of persons may be subsequently much affected by the opinion of the medical attendant respecting its sex. Since we cannot determine under what circumstances litigation may ensue, it is always right in a doubtful case to observe the sex, and make notes on the spot when a child thus malformed survives its birth but for a short period. The question of tenancy by courtesy, or the right of the husband to landed estate of which the wife was seised, will depend entirely upon the attention of the accoucheur to this point.

When these beings have reached adult age, other questions may arise with respect to them. The English law does not allow them to select their sex, but determines it for them by medical evidence.

RIGHTS OF HERMAPHRODITES.

667

Hermaphrodites, or sexual monsters, were formerly ranked with infamous persons; and it has been a grave question in our courts, whether the calling a man an hermaphrodite was not such a libel or slander upon him as to render it a ground for a civil action. In a case reported by Chitty (Med. Jur., p. 374), the use of this term was held not to be actionable unless it was proved that it had been attended with special damage. A dancing-master brought an action against a person for calling him an hermaphrodite, and it was decided that it was not sustainable:-1. Because such a union of the sexes cannot exist in fact, and every one must be supposed to know it; consequently the assertion could not be supposed to prejudice. 2. Because, admitting the possibility of such a double function, the party would be just as good, and, perhaps, even a safer dancing-master than if only one perfect sex had been discoverable; consequently, the words would not, in legal presumption, injure him in his profession or occupation.

It would appear that, in the United States, the rights of citizenship, and the privilege of voting for members of Congress, have depended on the determination of sex. In 1843, Barry was requested to examine a person named Levy Suydam, aged 23 years. At the exciting and warmly contested election of the spring of that year, almost everything bearing the semblance of the human form and of the male sex is stated to have been brought to the ballot-box. It was at this time, and under these circumstances, that the above-mentioned person was presented by the Whigs to be made a freeman; he was challenged by the opposite party, on the ground that he was more a female than a male, and that in his physical organization he partook of both sexes. Without going into the details of his physical organization, it may be stated that, as he was found to have a penis and one testicle, the privilege of a vote as a male citizen was conceded to him. It was, however, subsequently proved that this being regularly menstruated, and that it had other female peculiarities. This was certainly an embarrassing case, one to which Lord Coke's rule for a decision, i.e. the prevalence of either sex, is hardly applicable. The presence of a penis and one testicle referred the being to the male sex; while the bodily configuration, and still more strongly a periodical menstrual discharge, referred it to the female sex. The right of voting might have been fairly objected to, because, while the female characters were decided, the organs indicative of the male sex are described as having been imperfectly developed. It is possible that the question of sex may be mooted under similar conditions in this country.

668

IMPOTENCY. IRREMEDIABLE CAUSES.

IMPOTENCY. STERILITY.

CHAPTER 58.

IMPOTENCY.-CAUSES.-PROCREATIVE POWER IN THE MALE.-PUBERTY.AGE FOR VIRILITY.-VIRILITY OF CRYPSORCHIDES AND MONORCHIDES.STERILITY.-PROCREATIVE POWER IN THE FEMALE.-EARLIEST LATEST PERIODS FOR CHILD-BEARING.-LEGAL RELATIONS,

causes.

AND

Definition.-Impotency is defined to be an incapacity for sexual intercourse. It may depend-first, upon physical, second, upon moral, With regard to the moral causes of impotency, they do not concern a medical jurist. Such causes are not recognized by law, and he has no duty to perform beyond the application of the principles of medicine to the purposes of the law.

Causes. Impotency may arise from age; from certain physical causes, e.g. disease; or from congenital malformation or defect. With regard to physical causes, a distinction must be made between those which are remediable and those which are not. The presence of a disease of the testicle, such as atrophy or tumour, may give rise to incapacity; but this incapacity may be sometimes removed by an operation or by medical treatment, and therefore the physical cause may be removed, in other words, it is remediable. To such cases as these the law does not extend; but it is always expected, in alleged incapacity, that the practitioner examined on the subject should be able to say whether there is or is not a prospect of cure. In forming a judg ment upon this point, a good knowledge of his profession can alone assist him; no rules can be laid down for his guidance, for there may not be two cases that will precisely resemble each other in their features. Hence it will be necessary in this place to point out the chief causes of impotency which are of an irremediable nature, or those in which the incapacity is absolute and permanent-a point upon which medical opinion is chiefly required.

In strictness of language, the definition of impotency, as above given, may be applied to a female as well as a male; and, undoubtedly, a physical incapacity for sexual intercourse may exist in either sex. As an instance of this incapacity in the female, may be mentioned occlusion of the vagina-a condition not necessarily indicative of sterility. The mere occlusion of the vagina may be a remediable form of the malady; but its entire obliteration would be an absolute and irremediable defect. This latter condition, however, is the only instance of complete impotency in a female. A protrusion of the womb or of the bladder into the vagina is mentioned by some writers as a cause of physical incapacity for intercourse; but these forms of disease may commonly be remedied by art, and therefore require no further notice

PROCREATIVE POWER IN THE MALE.

669

in this place. The editor was once consulted by a gentleman who alleged that anchylosis of the hip-joint of his wife-the broken limb being flexed across the entrance to the vagina-was a bar to sexual intercourse. It is unlikely that intercourse was absolutely impossible under the circumstances; and it is known that even double anchylosis of the hip-joints is not an insuperable bar to coitus.

In professional language, the term 'impotency' has been hitherto applied exclusively to a defect in the male sex; and the term 'sterility" is usually confined to all those conditions in the female which not only render intercourse impossible, but which render it unfruitful. A male may, however, be sterile without being impotent-a condition observed in some crypsorchides; or he may be impotent without being sterile, as where proper intercourse is prevented by reason of physical defect in the virile member, although the testicles may be in a normal condition. (See on this subject, Curling, 'On Sterility in Man.') This author points out that sterility in the male, apart from impotency, may depend on three causes: first, malposition of the testicles; second, obstructions in the excretory ducts; and, third, impediments to the escape of the seminal fluid. A man may not be impotent, i.e. incapable of intercourse, but, by reason of one of the conditions above mentioned, such intercourse would be unfruitful. In reference to the male, the English law does not appear to go beyond the establishment of impotency from some clear and demonstrable cause, and, unless the alleged sterility were accompanied by impotency, it would take no cognizance of that condition. Further, sterility from such causes could hardly be demonstrated during the life of a person-it would rest chiefly on presumption or probability.

Procreative Power in the Male. Puberty.-Until the period of puberty, the testicles are small, and they increase very little in size in proportion to other parts. Curling found that the size of the seminal tubes differed but little at the ages of 18 months and 8 years. The sexual function in the male depends entirely on the development of the testicles; but the age at which it appears differs in different persons. The age of puberty in a healthy male in this country varies from 14 to 17 years; its appearance is, however, affected by climate, constitution, and the moral circumstances under which the individual is placed in some cases it is not fully developed until the age of 21.

The access of puberty in the male is indirectly connected with the subject of rape. A boy under the age of fourteen years is presumed in law to be incapable of committing a rape. (1 Hale, p. 631; and Matthew's Digest,' p. 57.) The statute law merely requires proof of penetration, so that rape might be physically perpetrated by a boy at or even under 14 years of age. In several cases, boys at 14 have been convicted of rape. In a case elsewhere related (see Rape), a boy, aged 19, communicated syphilis to a girl of 6 years of age. It appears that in India puberty shows itself much earlier in the male. Chevers, quoting from the Nizamut Adawlut Reports,' states that a boy of 13 or 14 years of age was found guilty of rape. A lad of 14 was convicted of rape on a girl of the same age; and in another case

670

IMPOTENCY FROM AGE.

a boy only ten years old was convicted of rape on a girl 3 years of age, (Med. Jurispr. for India,' p. 463.)

The seminal secretion in the male is not considered to be prolific until it contains those peculiar filiform bodies which are known under the name of spermatozoa, or zoosperms. All agree that they are normal and essential constituents of the healthy and prolific seminal fluid. They are peculiar to the spermatic secretion, and, in healthy males, are always present in it after the age of puberty. They disappear in certain states of disease, and sometimes in advanced age: they have not been found in the undeveloped testicles of crypsorchides. In cases in which they are absent, from whatever cause, it is a fair inference that the person is impotent, or that he has lost the power of procreation. (See on this subject, Curling, 'On Sterility in Man.') In this pamphlet, one case is related in which a man, æt. 42, who was married, and whose wife had borne a son then eight years of age, had died after four days' illness from strangulated hernia. The testicles, from the fact of their being found in the inguinal canal, were examined separately by Gosselin and Godard, and no spermatozoa were discovered in the fluid contained in either of them; but these may have been merely absen: at the time of examination, as the child begotten was then eight years of age. During this long interval, the secretion may have undergone a change, and have become unprolific.

Impotency from Age.-It may be fairly assumed that a male is incapable of procreating until spermatozoa have appeared in the seminal secretion, and that he loses this power when they disappear. The age at which they are formed varies with all the causes that affect puberty. In one instance they were found by Casper in the seminal fluid of a crypsorchid boy only 14 years old, and Curling found them in the secretion of a boy aged 18. This observer found spermatozoa in the liquid taken from the testicles of a man upwards of 70 years of age, and on one occasion in the testicles of a person aged 87. Wagner states that they are to be found in the secretions of men between 70 and 80 years of age. Rayer found them in the secretion of a man aged 82 years. (Gaz. Méd.,' June 2, 1849.) Other cases of a similar kind are recorded by Debrou. (Gaz. Hebd.,' 1861, p. 6.) Dien examined the bodies of 106 men between the ages of 64 and 97. In 64 cases out of the 106, there were no spermatozoa, i.e. in 61 per cent. Four of Dien's observations were on nonogenarians: of these none had spermatozoa. (Med.-Chir. Rev.,' June, 1868, p. 279.) Facts tend to render it highly probable that a fecundating power may be retained by the male up to the age of 100. According to Duplay, the seminal fluid of old men contains spermatozoa even when they are beyond the age of fecundation (Med. Times and Gaz.,' 1853, i. p. 581); but he does not state the circumstances which enabled him to arrive at this conclusion. Sexual propensities are often strongly developed in children, and thus they may be prolific at an early age. Rüttel met with a case in which a female, at the age of 14, became pregnant by a boy of the same age. (Henke's 'Zeitschrift der S. A.,' 1844, p. 249.) This is the earliest age at which, so far as we can ascertain, the procreative power has appeared