The following regulation is in force in the Recruiting Service of the Navy: "The surgeon or other medical officer who may be appointed to examine persons offering to enter, or upon their first joining a receiving or other vessel after enlistment, shall not certify to the fitness of any person, unless he shall be of sound mind, possess the power of seeing and hearing distinctly, and have no serious impediment of speech; have the free use of his muscles and joints; the proper use of his hands and feet; be free from external and internal tumors, and from all cutaneous diseases and chronic ulcers; nor if his

appearance indicates the presence of or danger from consumption, scrofula, or dangerous diseases from the effects of intemperance or other causes; nor if known to be subject to epilepsy or similar diseases."

The vagueness and imperfections of this last are severely commented upon by Dr. Ruschenberger,* and particularly the exclusion in consequence of cutaneous disease of any kind, and of internal tumors. Nor is the direction as to the liability to disease from various causes less exceptionable. The regulations in question were drawn up by a Board of Captains in the Navy.

The only other American publication with which I am acquainted, is a report made by the late Dr. Samuel L. Mitchill, then surgeon-general of the militia of this State, to his Excellency Governor Clinton, and communicated to the legislature at their session in 1819.† The bodily disabilities for military service are arranged by Dr. Mitchill into classes, with reference to various parts of the body. The diseases enumerated by him are, however, all included in the tables that have been quoted, and it is therefore not necessary to repeat them.

I have met with some adjudications under the militia law of Massachusetts, which it may be proper to mention. They were made in consequence of appeals from justices of the peace to the supreme court. In one, the individual was fined because he had not a surgeon's certificate, countersigned by the commanding officer,-although he offered to prove then by the surgeon of the regiment, that he was infirm and not capable of doing military duty. The court held that he should have been allowed to prove his disability, although he had no certificate. The law has reference to an exemption for a term of time, and not for one day.‡

* Marshall, on the Enlisting, Discharging, and Pensioning of Soldiers, second edition, (reprinted in Dunglison's American Library,) with the Regulations for the Recruiting Service in the Army and Navy of the United States; and a Preface. By W. S. W. Ruschenberger, M.D., Surgeon United States Navy, etc. 8vo., Philadelphia, 1840.

† Assembly Journal for 1819, p. 25.

Howe v. Gregory, 1 Massachusetts Reports, 81.

In another, the surgeon gave a certificate in 1807, that the soldier, by a wound in the left hand, had his thumb and fingers rendered useless, and is unable to perform military service. The captain on this discharged him for life. He was now, (1808,) nearly two years subsequent, fined for not appearing. The court determined that this was not necessarily an excuse for life, but that the justice before whom he is sued may inquire whether the disability continues.*

I cannot conclude this section without recommending that tables founded on those which I have given should be prepared for the use of surgeons, and that they should be enjoined to grant certificates according to their specifications, and be obliged to report to a superior authority all cases not coming within them.

As to certificates, I have already stated that in this State, "no fee or reward is to be taken for them."

By the French Law, "all officers of health and others convicted of having given a false certificate of infirmities or disabilities, or of having received presents or gratifications, shall be punished by not less than one, or more than two years imprisonment; or, by a fine of not less than 300, nor more than 1000 francs."+

In cases of discharges for various disabilities, and where the possession of these entitles the holder to pensions or gratuities, it is evident, that much care must be taken to prevent imposition. Here, however, the directions given in the remarks on feigned diseases, are more particularly applicable.t

* Commonwealth v. Bliss, 9 Massachusetts Reports, 322. See also the same vol., pp. 11, 456, 540.

† Edin. Med. and Surg. Journal, vol. vi. p. 139.

The reader will find in every page of Marshall, the great caution that it is requisite to pursue in the English service, previous to granting these. In the Austrian service, several medical boards sit in succession, in judgment on each other, before the soldier is discharged, and they are held responsible for errors, and may be called upon to refund the amount of any expenses that have thereby been incurred. Marshall, quoted in MedicoChirurgical Review, vol. xxi. p. 260.

CHAPTER III.

IMPOTENCE AND STERILITY.

Laws of various countries concerning impotence as a cause of divorceRoman law-Canon law-Ancient French law-Napoleon code-English law. Causes of impotence in the male-absolute-curable-accidental or temporary. English, French, and Scotch law on accidental causes as affecting paternity. Banbury peerage case. Diseases that may produce temporary impotence. Causes of impotence in the female-incurable and curable. Causes of sterility-incurable and curable. Notice of English law cases, where impotence was presented as a case of divorce. Law of the State of New York on this subject-cases-in other States.

A KNOWLEDGE of this subject may become necessary in various ways before judicial tribunals. An individual accused of committing rape, has been known to plead that he was physically incapacitated; while the legitimacy of children has been contested on a similar plea. These examples are sufficient to show the necessity of a brief notice of the physical signs of impotence, even were they not connected with the subject of divorce.

The laws of Moses, and afterwards the Roman law, permitted divorce at the pleasure of either party. The Christian law, however, declares marriage to be indissoluble; and Justinian legislating on this principle, was the first monarch who prescribed the mode of obtaining divorce by law, and at the same time promulgated statutes as to impotence. He ordained that if the imbecility continued for two years after marriage, (which period was afterwards enlarged to three years,) the female should be entitled to a divorce.*

* Code Justinian, lib. v. tit. 17.

We are informed that it was not until the twelfth century that this jurisprudence came into general use. The canon law, under which these cases were judged, always desired (at least in practice) that the defect should be shown to have existed before marriage; and that after its celebration, a certain period of time should have elapsed before a complaint was entertained, in order to ascertain whether the impotence was absolute, or only accidental. These dispositions of the canon law were adopted into the civil law of ancient France; and many arrêts of parliament have admitted the plea of impotence, and dissolved marriages of eight, twelve, and even fourteen years' standing. Accidental impotence, however, in the sense I shall hereafter define it, was never deemed a just cause of divorce by any of these tribunals. In 1759, the parliament of France refused the application of a female, whose husband had been declared impotent during his first marriage, on the principle that at his second nuptials, several years after, the physicians declared that he appeared to be cured of his disease.*

The Napoleon code does not expressly declare that absolute and incurable impotence is a dissolving cause of marriage; but the course of legal proceedings under it leads to this conclusion. The court of appeals at Treves, in 1808, in the case of a female, directed that she should be visited by medical men, who were to report to that tribunal whether the supposed injury occurred before or after marriage, and whether it was remediable.†

* Foderé, vol. i. p. 361. It will astonish those who have not attended to this subject, to learn that there was a period in French jurisprudence when actual congress was a judicial proof in cases of impotence. At first it was conducted in a private manner, but afterwards became shamelessly public. This prevailed from the thirteenth century until the year 1677, when it was solemnly abolished, in consequence, as it would seem, of the case of the Marquis De Langley. His wife declared him impotent; the congress was ordered, but without success; and his marriage was annulled in 1659. He married again, and had seven children. (Dictionnaire des Sciences Medicales, art. Congres, by Marc; Mahon, vol. i. p. 70.)

† Foderé, vol. i. pp. 362, 363. Devergie, and with him are several lawyers and physicians, is of opinion that impotence is not a legal cause of divorce by the French code, and that the court have not the power to make the