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law presumed a child to be primâ facie incapable of crime, this presumption might be rebutted by evidence which showed that he had what was alled a mischievous discretion (doli capax). In the case referred to, there was no evidence of that sort, and therefore he directed an acquittal. In another case, tried before the same judge in May, 1863 (Whitby v. Hodgson), an action for trespass and false imprisonment was brought against a man for giving into custody, on a charge of stealing, a boy under sir years of age. It appeared that the child had stolen some wood; but t was held that at this age, and under seven years, a child was in point of law doli incapax; hence the defendant was not justified in giving the y into custody. The jury returned a verdict with damages against him. At the Bedford Sum. Ass., 1873 (Reg. v. Hollis), a boy of nine was charged with the manslaughter of a boy of about the same age by striking him a blow in the thigh with the iron end of a hoe. This led to death in about three weeks. Cleasby, B., directed the jury that they must be sat-fed that there was such a wicked mind in the prisoner at the time of striking the blow as would rebut the presumption that a child under fourteen years of age is incapable of committing a felony. The jury returned a verdict of not guilty. According to the law, a male at fourteen is conidered to be at years of discretion, and he then becomes responsible for his actions; at twenty-one he attains majority and is at his own disposal, and may alienate his lands, goods, and chattels by deed or will. [At common law, males of fourteen and females of twelve could dispose of personalty by will: Coke Litt., 89, b; Davis v. Baugh, 1 Sneed (Tenn.), 477. Wyoming and New Mexico have re-enacted the common law by atute.] It is only when this age has been attained that an individual can be made to serve on a jury.

A child under fourteen indicted for murder must be proved to have been conscious of the nature of the act. In the case of Reg. v. Vamplew (Lincoln Sum. Ass., 1863), a girl under fourteen years of age was convicted of destroying the life of a child by strychnine. It was shown that she was competent to understand the nature of the act. Under fourteen, the male infant is presumed to be incapable of committing a felony, but the intent may be proved by the facts given in evidence. A person may be convicted of an unnatural crime, although the agent be under fourteen. A female under the age of thirteen years is presumed to be incapable of consenting to sexual intercourse. Boys at or under fourteen have been tried and convicted of rape on several occasions.

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 twentyone 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 twenty-first 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 misdemeanor in carnally knowing and abusing one Mary Sambrook, being a girl above the age of ten and under

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the age of twelve 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 twelve years, so as to bring the offence within the then statute. It was objected by the prisoner's counsel that, as on Dec. 5 the girl would enter on her thirteenth year, she had therefore completed her twelfth year on Dec. 4, and that the law did not recognize a fraction of a day in such a case, so that she was twelve 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 thirteen years of age, as well as to the misdemeanor of taking girls under the age of sixteen years from the custody of their parents, or of stealing children under the age of fourteen 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 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 deci sions have been given by different judges (p. 511, ante). All will agree that a blighted fœtus or a mole is not a child, but 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. 510.) 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

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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 newborn children, i. e. their healthy organization with a 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 thows a much greater degree of responsibility on French medical jurists.

No person is legally justified in destroying a monster at birth (p. 566, ante).

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LEGITIMACY OF OFFSPRING.

LEGITIMACY.

CHAPTER LVI.

PRESUMPTION OF LEGITIMACY.-NATURAL PERIOD OF GESTATION.-DURATION OF PREGNANCY FROM ONE INTERCOURSE.-PREMATURE BIRTHS.-SHORT PERIODS OF GESTATION.-VIABILITY.—EARLIEST PERIOD AT WHICH A CHILD MAY BE BORN LIVING—EVIDENCE FROM THE STATE OF THE CHILD.-PROTRACTED BIRTHS.—the period of gestatiON NOT FIXED BY LAW.

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 period 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 adul tery, 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 laboring 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, 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 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 labor 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.

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[The law upon the subject of Legitimacy may be stated thus:— Legitimacy is the state of being born in wedlock-that is, in a lawful manner, or in accordance with law: Bouvier's Law Dictionary, tit. 2, p. 67; Anderson's Law Dictionary, 611; Campbell's Case, 2 Bland Ch. (Md.) 36.

An illegitimate child is one born out of wedlock, or not within competent time after termination of coverture; or if born out of wedlock, whose parents do not afterwards intermarry and the father acknowledge it, or who is born in wedlock where procreation by the husband is impossible: Smith v. Perry, 80 Va. 563.

By the common law the subsequent marriage of parents does not legitimize children born out of wedlock before marriage, but in many of the American States the subsequent marriage of parents works by statute the legitimacy of the child, notably Arkansas, Georgia, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Pennsylvania, New Hampshire, Texas, and Virginia. A child born after marriage, no matter how soon, is born in wedlock, and presumed to be legitimate, and all children born in wedlock are presumed in law to be legitimate: Bouvier's Institutes, 322; State v. Romaine, 88 Iowa, 48; Rhine v. Hoffman, 6 Jones Eq., 335; 1 Rolle Abr. 358; 2 Bac. Abr. 84; Rex v. Reading, Lee Temp. Hardw. 83; King v. Luffe, 8 East. 193, Lord Ellenborough, Justice, sustained by authorities in many American States: State v. Herman, 13 Ired. (N. Car.) 502; State v. Romaine, 58 Iowa, 46.

Where the mother has lived and cohabited with the father, and has been recognized by him as his wife and the child as his offspring, in the absence of any proof to the contrary, even though there be no evidence of a legal marriage, the law presumes the issue to be legitimate: Taylor on Evidence, Text-Book Series, § 649; Hargrave v. Hargrave, 2 C. & Kir. 701; Shotle v. Magervan, 2 Bush. (Ky.) 627.

These presumptions may, however, be rebutted, on showing:

1. That the husband was impotent or incompetent, by Lord Ellenborough, Justice, in King v. Luffe, 8 East. 207; Head v. Head, 1 Sim. & Stu. 150; Cross v. Cross, 3 Paige Chan. (N. Y.) 139; 23 Am. Dec. 778. 2. Positive absence of the husband during the period in which the child must, in the course of nature, have been begotten, or his death, or nonaccess: King v. Luffe, supra; R. v. Allerton, 1 Ld. Raymond, 395; Banbury Peerage, answer to 7th question, 1 Sim. & Stu. 157; State . Britt, 78 N. Car. 439; Cope v. Cope, Alderson B, 1 En. & Rob. 275; Benny v. Philpot, 2 Myl. & K. 349; Com. v. Strieker, 1 Browne (Pa.) Appx. 47; Wilson v. Babb. 18 S. Car. 59; Hargrave v. Hargrave, 9 Beav. 255.

By common law, if the husband was within the four seas at any time during the pregnancy of the wife, the presumption was conclusive that the issue was legitimate: R. v. Murray, 1 Salk. 122; R. v. Allerton, 1 Ld. Raymond, 122.

While the ancient policy of the English common law remains unchanged, the courts have in modern times taken evidence, which, if absolutely conclusive of non-access and free from all doubt, modified the old rule: Head v. Head, 1 Sim & Stu. 160; Am. and Eng. Encyclopædia of Law, note under Legitimacy, p. 225.]

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 accoucheurs, the average duration of gestation in the human female is comprised between the thirty-eighth and fortieth weeks