the truth, nor require him, in the like interest of truth, to step into an adjoining room, and lay bare his arm to the inspection of surgeons. It is said that there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal consideration; and if in other cases, in the interests of justice or from considerations of mercy, the courts may, as they often do, require such personal examination, why should they not exercise the same power in cases like this, to prevent wrong and injustice?" Mr. Justice Gray observes, in the same opinion : — "3 Bl. Comm. 331-333. The authority of courts of divorce in determining a question of im potence as affecting the validity of a marriage, to order an inspection by surgeons of the person of either party, rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to exercise its jurisdiction, and is derived from the civil and canon law, as administered in spiritual and ecclesiastical courts, not proceeding in any respect according to the course of the common law. Briggs v. Morgan, 2 Hagg. Const. 324; 3 Phillim. Ecc. 325; Devanbagh v. Devanbagh, 5 Paige, 554; Le Barron v. Le Barron, 35 Vt. 365. The writ tie ventre inspiciendo, to ascer tain whether a woman convicted of a capital crime was quick with child, was allowed by the common law, in order to guard against the taking of the life of an unborn child for the crime of the mother. The only purpose, we believe, for which the like writ was allowed by the common law, in a matter of civil right, was to protect the rightful succession to the property of a deceased person against fraudulent claims of bastards, when a widow was suspected to feign herself with child in order to produce a supposititious heir to the estate, in which case the heir or devisee might have this writ to examine whether she was with child or not, and if she was, to keep her under proper restraint till delivered. 1 Bl. Comm. 456; Bac. Abr. ' Bastard. A.' In cases of that class the writ has been issued in England in quite recent times. In re Blakcmore. 14 J. L. Ch. 336. But the learning and research of the counsel for the plaintiff in error have failed to produce an
instance of its ever having been considered, in any part of the United States, as suited to the habits and condition of the people." I may add that the writ was denied by the Supreme Court of New York, in 1874, in the Rollvvagen case, in which a testator's widow alleged herself to be pregnant by him. (10 Albany Law Journal, 3.) Judge Thompson (Trials, § 859) favors the requirement of the examination in the discretion of the court, before trial and under proper safeguard. He says : — "Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat, in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the um pire, have denied the right of the defendant to have an order for such inspection." In Page v. Page, 5 1 Mich. 88, a divorce case, the court said : — "There was also a most extraordinary com pulsory examination of defendant by physicians, who stripped him and subjected him to oral in quisition, to compel him to give evidence which they could repeat before the commissioner for use against him. What means they could be supposed to have for compelling him to answer their ques tions, in case he declined, as he ought to ' have done, we do not know; but we are certain they could not be means known to the law. We strike from the record all the evidence obtained by this inquisition also. It should be understood that there are some rights which belong to man as man and to woman as woman which in civilized com munities they can never forfeit by becoming parties to divorce or any other suits, and that there are limits to the indignities to which parties to legal proceedings may be lawfully subjected." It is difficult to accept the argument that a party may be compelled to produce par ticular evidence against his will, simply be cause he had the right to produce it if he wishes. Tt seems to me that the true reason of the case has not been sufficiently em phasized in either of the opinions, nor any
