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11/
THIRD EI)ITION-Beviscd& Enlarged.
TESTIiMONIALS
TO
ELWELL'S MEDICO-LEGAL TREATISE
ON
MALPEACTICE
AND
MEDICAL EVIDENCE.
NEW YORK:
BAKER, VOORHIS c6 CO., 66 Nassau Street.
From the great English Physiologist,
WILLIAM B. CARPENTER, M. D., F. R. S., F. G. S.,
Professor of jMedical Jurisprudence in the University of London.
"i know op no instance in which the combination of legal and
Medical knowledge has been so remarkably shown as it has in
Mr. Elwell's treatment op the subjects he has undertaken."
From Prof. Frank Hastings Hamilton, author of a new and valuable work on Fractures and
Diblocaiious.
To Prof. Elwell belongs the credit of having opened the way in this
direction — alvvjivs the most difficult labor, 'i'he book must prove of great
value both to medical men and to lawyers. Indeed, I do not see how a lawyer
can dispense with it.
I congratulate the author also upon the favorable notices which it has
received from the journals everywhere.
From Prof. David Brainard, Editor Chicago Medical JoumaL
This book appears to be a full and perfect treatise on the subjects of which
it professes to treat. It has received the endorsement of some of the most
eminent Ifgal men as well as of physicians in this country, and from a cursory
examination it g])pears to be full, accurate, and prepared with care. Such a
book should be in the hands of physicians generally, who are too often not
aware of the responsibility which they assume in accepting the charge of
surgical cases.
(A)
TESTIMONIALS.
From Hon. John McLean, of the Supreme Court of the United States.
No one -who did not unite botli professions could liave written so valuablw
a book. I bave no knowledo-e that any one, under similar circumstances, has
attempted to do what Mr. El well has so well performed.
From the Boston Medical and Surgical Journal, (Dr. Walter Changing.)
FONBLANQUE, a distinguished English barrister, and Pakis, an equally
distinguished physician, united their forces and professions in a work on Medi-
cal Jurisprudence, and the i)roduct of the connection was an excellent treatise
on that important subject.
We have j ust read an American work on Medical Jurisprudence, the lite-
rary history of which reminds us of the copartnership of Paris and FoN-
BLAXQUE. Dr. Elwell, the author of the volume before us, having studied
and practiced medicine fur several years, turned over a new leaf, and studied
and practiced law for as long a time, and no>v presents us with the product of
the two professioDS, united by a Siamese form of attachment, which makes it
as easy to work for and with one as for and with the other. The design in
this work, it will be seen, is novel, and it is excellently well accomplished.
If it do not sustain the old adage, that two of a trade can never agree, it cer-
tainly does prove that two of the most diverse callings may act in perfect har-
mony, and for the equnl benefit of both.
We heartily commend Dr. Elwell's work to our readers. It is from one
who knows well what his profession wants in such a work; and in our judg-
ment he has met and satisfied that demand.
From John Delamater, M. D., LL. D.
It is a book which should be in the library of every physician and surgeon.
Any member of the profession who will purchase it, and spend two months in
its study, will be well repaid for the cost and labor.
From Hon. John F. J. Fithian, New York District Attorney.
I have had occasion to refer to and cite in Court Elwell's work upon
"Malpractice and Medical Evidence." In my OY)imon, it is a most co7ivenient
and reliable book of reference in all eases of Medical Jurisjjr-iidence. The medi-
cal and chemical writers have given us voluminous treatises upon their particu-
lar branches of science, as have also the legal writers, thus leaving us busi-
ness men to groi)e through the whole mass in order to extract therefrom a few
practical aud elementary rules and principles for every -day iise. In Ids treatise
he has saved us this labor, hi/ giving us compactly and suceinctli/, in a convenient
form for reference, with all the recent authorities, so much^ and no more, of tlie
two systems of law and medicins as we are most frequently called upon to deal
with in the practice of our profession.
From Prof. Valentine Mott, M. D., LL. D., New York.
I am sure it is a work that will be greeted at the Bar, and because the most
useful tliat the medical profession has ever had as a refuge in difficulties and
dangers, that profession will also welcome it.
From tlie Boston Law Journal.
The earlier part of the book is occupied with malpractice in cases of ampu-
tations, &c., and constitutes a new and valuable contribution to medico-legal
literature. The book possesses particular merit.
From Robley Dunglison, M. D., Professor of the Institutes of Medicine, &c., in Jefferson
College, Philadelphia.
I cannot doubt that it will prove a useful guide to the solution of many of
those intricate questions which present themselves so frequently to the medical
and legal practitioner.
(B)
TESTIMONIALS.
From a Review ot tliis work in the New York Journal of Medicine.
" Some books," says Lord Bacon, *' aro to bo tastoil, somo to be swallowed ;
Bome few to bo chewed and difjested." Prof. ELWJiUi's belongs most emphat-
ically to the latter class, and its frequent mastication and dij.i:e8tion by both
professions of both law and nujdiclne will be found to ailbrd them that very
pabulum for whlcli they have long and anxiously waited. Indeed, considering
the very great number of legal and medical text-books which have been put
forth in elucidation of almost every specialty which professional necessities
have created; and looking even at those on medical jurisprudence which best
evince the syncretism of two great sciences, it is singular to perceive that the
subject of malpractice is nowhere discussed. Even the omnivorous and ency-
clopa)dic BiiCK, who, with probe and tentacle, has explored every rill and rife,
every jieak and cavern of forensic medicine, and has heterogeneously incorpo-
rated everythinir that was ever said or p ioted upon this subject into his text,
overlooks entirely the very important and magistral to[ii(' of malpractice. * *
We cannot help saying tiiat if there be, among all the cliapters in this truly
valuable book, one which we consider as a keystone of all the rest — and whose
honest, frank and conservative tone will do more to beget a true medico-legal
union before the Courts, where now we so often have a complete antagonism
of the two professions — it is the chapter on '' The Position of the Courts upon
Insanity." Indeed, throughout all his discussions upon this vexed question.
Prof Elwell sliows the fruit of a large observation of facts, as well as of
critical examination into the legal and physical causes of divergence between
the professions of law and medicine. And we shall be much mistaken if the
dissemination of his logic does not produce a radical change in the minds of
many of those whose chief delight it has been, in season and out of season, to
heap reproach upon the Courts for not surrendering at once some of the car-
dinal principles of human government as applied to rational and responsible
beings. * * * We cannot close this brief and imperfect review of Prof.
Elwell's book, throuirhout which we have seen so much more to praise and
admire than we have dared give utterance to, without calling attention to the
fact that the field trodden by him is both a new and a rich one.
From E. Delafield Smilh, author of Smith's New York Reports.
While the work will be regarded as a valuable contribution to Medical
Jurisprudence in general, the portions devoted to the subject of inalpractice
must prove of peculiar value. They will etTectively aid in a j ust determination
of a class of cases too often unrighteously prosecuted, and which involve either
the safety of the community or the sanctity of individual professional character.
From Prof. Geo. B. Wood, M. D.. Jefferson Medical School, Philadelphia, and author of
Wood's " Practice of Medicine" and the "United htates Dispencaiory."
I have been much pleased with the scope of the work, and, in the parts
which I have examined, have found nothing of which I could not approve.
From the Cincinnati Lancet and Observer.
The author has appreciated the difficulties which both physicians and law-
yers labor iinder in suits of malpractice. His book is an exceedingLy valuable
one to both yjrofessions. While he seems to be a fine jurist, he at the same
time gives evidence of having mastered the profession of medicine. The
chapters on "Medical Evidence" are especially worthy of notice. The author
is a clear writer, and we recommend the book to all our readers.
From the London Medical and Chirurgical Review.
Dr. EliWELL deserves the thanks of tlie medical and legal professions for
the very able work he has presented to them. It is a most learned work, and
worthily upholds the high character whicli already distinguishes trans-Atlantic
juris])rudential literature. Dr. Ei.WEiJi oflers a masterly sketch of the princi-
ples wh:ch should guide the medical witness in the discharge of his duties.
(c)
TESTIMONIALS.
From William Curtis Noyes, New York.
I have found it accurate, valuable and learned. It possesses one advantage
over most other works of a similar kind, and that is, it is written by a lawyer
as well as a physician — a thing, in my judgment, indispensable in a treatise on
this subject. I regard this book as quite essential to the library of every prac-
ticing physician, and trust it will command the attention its merits deserve.
From Judge Bellamy Storer, LL. D., of Cincinnati.
I am sincerely thankful for this very excellent work on that branch of
medical jurisprudence which is really practical. I have looked over the
volume pretty carefully, and I am convinced and satisfied that the author has
done a service for which the public should be grateful.
From the New York Medical Press.
We regard the work as bridging a chasm hitherto existing (for none of the
works on Medical Jurisprudence have been at all sufficiently practical) in the
medical and legal professions, ^ffr^?CM?ar^^ in the former. We recommend it
for its merits, which we consider paramount, to our medical brethren.
From Prof. Ordronaux, of the Law Department of Columbia College, New York.
Where everything is so well discussed, substantiated and fortified by a
judicious selection of leading authorities, it is unnecessary for me to point out,
or indicate by name, any particular chapter as pre-eminently meritorious. I
am convinced, however, that the one on "The Position of the Courts in
Insanity " is destined to exercise a most beneficial influence on the profession
of both Law and Medicine, by exhibiting to each the true position which the
interests of justice as well of humanity require at their hands.
From the American Medical Gazeite. edited by D. Meredith Eeese A. M., M. D., LL. D.,
Professor of the Institutes of Surgery and Medical Jurisprudence.
This is a new, timely and independent work, written by a gentleman
combining in himself the professions of both law and medicine, having had
practical experience in both. The learning and al^ility of the author have
enabled him to produce a work which we should sitppose would henceforth
be indispensable to every law library, and should be found in every medical
library, and is hence appropriately dedicated to the young men of the United
States engaired in the study or practice of medicine or law. It bears the motto
of the disiinguished Philadelphia counselor, David Paul Brown, Esq., viz.:
" A doctor who knows nothing of law, and a lawyer who knows nothing of medicine, are
deficient in essential requisites of thuir respective prol'esbions."
We have looked over this book with much interest, and cordially commend
it to our profession, as worth all the bonks extant on Medical Jurisprudence;
and on the suljjcct of Malpractice, for which prosecutions have been instituted
against distinguished surgeons in various parts of the country, we have seen
nothing worthy to be compared with it ; for, in the most of analogous works,
this important topic has been ignored. Dr. ElAVELL has very projxrly availed
himself of tlie masterly papers of Prof. Hamilton, of Bull'alo, in the " Trans-
actions of the American Medical Association," and has discussed the whole
8ubj( ct from a legal stand-point.
All the important questions appertaining to Medical Jurisprudence are here
treated at sufficient length, and without the speculations or irrelevant topics
wliich disfigure the works on this stibject. And now that tlie great work of
the Drs. Bkck has been spoiled in remodeling, by tlie m()nograi)hs of half a
score of officious intcirmeddlers — wlio have perverted what tlio autliors wrote,
and substituted tli(!ir own commentaries on special departments, of which
several of them betray an ignorance and presumption disreputable to the
profession, and positively deteriorating to the work — we look upon the treatise
of Dr. Ei.WEi-fi as the best in our language on the subject, and doubt not it
will becoine the standard authority, not only in the Courts of law, but in our
medical schools and colleges.
MEDICO-LEGAL TREATISE
ON
MALPEACTICE
MEDICAL EVIDENCE
COMPRISING THE
ELEMENTS OF MEDICAL JURISPRUDENCE;
JOHN J. ELWELL, M. D.,
MEMBER OF THE CLEVELAND BAB, ONE OF THE EDITORS OP NEW EDITION OF BOUVIER'S LAW
DICTIONARY, PROri;SSOR IN OHIO STATE AND UNION LAW COLLEGE AND
WESTERN RESERVE MEDICAL COLLEGE, ETC., ETC.
A doctor who knows nothing of law, and a lawyer who knows nothing of modicino, are dcfloient ia eisent's!
requisites of their respective professions.— David Paul Bbown.
THIBD EDITION— Bevised and Enlarged.
NEW YORK:
BAKER, VOORIIIS & CO., Publishers,
LAW BOOKSELLERS AXD IMPORTERS,
6G NASSAU STREET.
1871.
Entered according to Act of Congress, in the year 1859, by
JOHN J. ELWELL,
In the Clerk's Office of the District Court of the Northern District of Ohio.
T
Stereotyped by Hills, O'Di'iscoll & Co.. Printed by Fairlxinks, Kenedict & Co.,
HI Main St., Cincinnati. ("li-vihi.nl.
PREFACE TO THIRD EDITION.
Two large editions liaving been exhausted since this work was
first published, and another demanded, the author has thoroughly
revised, corrected and enlarged the present edition. After liaving
corresponded and conferred with many eminent legal and medical
men, and carefully read and considered the reviews and criticisms
of the work in the law and medical journals of this country and
of England, he is glad to find so little to change or correct in
the original elementary matter of the text. Under the light of
journalistic strictures, as well as from proper reflection and the
study of all later works in law and medicine bearing upon the
topics discussed here, the author has endeavored to make this
edition as nearly perfect as possible. All defects, pointed out
by others or discovered by the author, it is believed have been
removed.
The Xotes to the respective Chapters (inserted in the Appendix)
will be found full and correct — embodying all the latest decisions
of American and English Courts.
The anxiety and sense of responsibility felt when this work was
first sent forth has been relieved by the very favorable reception it
has universally met in the legal and medical professions — for it
may not be improper to say that the book has achieved a respect-
able success; and it is with gratification and satisfaction that this
edition is given to the professional public.
J. J. ELWELL.
Clevelaxd, January 1, ISll.
Oii)
^9'Q.S-1! S^
TO THE
YOUNG MEN OF THE UNITED STATES,
ENGAGED IN THE STUDY AND PRACTICE OF
MEDICINE OR LAW,
TWO NOBLE PROFESSIONS DESIGNED TO REGULATE THE
HEALTH AND CONDUCT OF MANKIND,
AND WHICH SHOULD EVER KINDLY EMULATE EACH OTHER IN THE DEVELOPMENT
AND PRACTICAL APPLICATL-N OF THE PRINCIPLES OF
TRUTH,
UPON WHICH BOTH ARE FOUNDED;
THIS TREATISE, THE RESULT OF THE STUDY AND PRACTICE OF
MEDICINE AND LAW,
18 EESPECTFULLT DEDICATED
BY THE AUTHOR.
Cleveland, December, 1859
PREFACE.
The active practice of Medicine and Surgery for several years
having taught me something as to the magnitude of the duties aud
difficulties, the wants and liabilities of the Medical profession ;
and a corresponding length of time devoted to the study and prac-
tice of Law, having deeply impressed me with the importance of
the two professions, relatively as well as independently considered,
developing also the obvious fact, that legal men, and legal works,
devote too little attention to Medico-legal subjects ; — I have thought
that in no way could I better serve the interests of the two great
professions to which I have devoted my life, aud promote the great
ends of Science aud Justice, than b}^ endeavoring to embody in a con-
cise, complete, and comprehensive work, all the settled principles,
and known authorities, as well as the result of my own thought and
experience, upon the subject of Malpractice and Medical Evidence.
While a member of the Medical profession, and in the practice
of Surgery , and also during my subsequent practice at the Bar,
my attention has been repeatedly and imperatively called to the
subject of Malpractice, as well as that of Medical Evidence. In
looking around for light upon these important questioJ^s, I was
astonished and disappointed to find nothing upon the subject of
Malpractice in our works upon Medical Jurisprudence, where I
thought it properly belonged ; nor did the works on the practice of
Surgery aft'ord the necessary infoi'mation. Except the able reports
of Prof. Hamilton upon Deformities after Fractures, made to the
American Medical Association, and where now aud then a case luis
found its way into the medical periodicals, this subject is scarcely
alluded to in the whole range of medical literature.
I have been equally surprised to find the same deficiency exist-
ing in the elementary works of the Legal profession ; although it ia
(v)
VI PREFACE.
well known that the attorney experiences the greatest difiBculty,
doubt, and perplexity, in preparing cases involving the question of
Malpractice, and in the examination of medical witnesses. The
difficulties which embarrass the lawyer in this particular field of
legal investigation, arise from the fact that the medical aspect ot
these questions, — of Malpractice in particular, — is to him buried in
the technically intricate labyrinths of another science, while his own
authorities lie scattered in undigested confusion throughout the vast
range of law Reports.
On viewing the field, therefore, fi'om these two points, — the
Medical and the Legal, — and being fully aware of the complicated
difficulties and perplexities surrounding the whole subject, and deeply
impressed with the magnitude of the undertaking, I felt that valu-
able service might be rendered by me to the two professions, by
attempting the systematic arrangement of a medico-legal treatise ;
thus supplying, if possible, a general want. A somewhat extensive
correspondence with leading physicians, surgeons and lawyers, in
this and other States, has encouraged and confirmed the idea, —
they uniformly agreeing with me as to the necessity of such a work.
It is now submitted, such as it is, with some confidence, to the
hands and judgment of the members of the two professions for
whom it is designed.
Whatever the value of the work may be, it has been the result
of much thought, and long labor ; and I claim for it complete origin-
ality in the general plan and treatment of the subject, whether
good or bad.
It is my earnest desire that its mission may be beneficial, by re-
lieving, to some extent, the labors of the attorney, while it sets
forth and maintains the rights of the medical and surgical prac-
titioner, — not shielding the culpable and guilty, — and at the same
time bringing the two professions into closer union, producing
greater harmony, sympathy and usefulness.
J. J. ELWELL.
Cleveland, December 1, 1859.
MALPRACTICE AND MEDICAL EVIDENCE.
INTRODUCTION.
THE GENERAL PLAN AND SCOPE OF THE WORK.
Frequent, important, and troublesome as are the cases of
alleged Malpractice by medical men, there is }'et no work treat-
ing upon the subject, and medical and legal inquirers after inform-
ation upon the question, are obliged to seek it in the vast range
of elementary works upon Medicine and Law, and in the unlimited
field of Reports, constituting the larger part of every lawyer's
library.
The author trusts that in the first part of this work -he has
supplied this desideratum, — at least, to a considerable extent
Happily, Criminal Malpractice is but rarely met with in courts
of justice; while Civil suits for damages are of a frequency,
alarming, both to the profession of medicine and to the pubHc.
Suits of this class, in some parts of the country, seem to be on
the increase. So common an occurrence is it for the surgical
treatment of the oldest and best physicians and surgeons, in
general practice, to be called in question and overhauled in
courts of justice, that there is at this time a general feeling of
uneasiness, and a conviction that the business is at best very
dangerous, so far as property and reputation are concerned. The
result is, that some of the most thoroughly qualified medical men,
utterly refuse to attend surgical cases, — continiug (heir practice to
C7>
8 INTRODUCTION.
that of medicine alone. They say the compensation usually
attending tlio practice of surgery does not warrant a man of prop-
erty in expobing himself to the probability of having, sooner or
later, to dele i id his treatment in an action for Malpractice. Vic-
tory in these cases is in one sense, defeat, because the disgrace,
vexation, and cost, are generally ruinous.
So great has the evil of this indiscriminate attack upon the
members of the medical profession become, that some of the
State Medical Associations have felt called upon to take the
matter into consideration, and act upon it as one of grave
importance.
In 1856, the committee on surgery, through their able chair-
m,an. Dr. J. W. Hamilton, reported to the Ohio State Medical
Association, that, in their opinion, the subject of Malpractice was
at that time of more importance to the profession than any other
connected with surgery. They say : " there is a standing and
apparently cumulative evil, — an evil bearing with the weight of
an incubus upon the profession. It is the frequency of difficul-
ties on account of alleged Malpractice in the treatment of frac-
tures. The cases reported, with several others not included in
the report, were forced upon the attention of a single member of
the committee during the past year, by parties to the difficulty
who sought testimony or sympathy. During one week, in as
many different counties, four cases were tried."
These statements are illustrated by eight or ten Malpractice
cases, in all of which the surgeon had the alternative presented to
him of compromising, not only his own reputation, but the honor
of his profession, by paying damages, or contesting the question
in a court of justice, where a verdict in his favor would be attend-
ed with a loss of business, and a heavy bill of expense. Some
took one course, and some the other ; all suffering more or less
in business and property. The parties sued were all behoved to
be good and well-educated professional uvu. In conclusion the
report says: "What course shall the profession take in regard
to the matter? Severe implications are being meted out to our
GENERAL PLAN AND SCOPE OF THE WORK. 9
professional brethren on account of iniperluctions, resident not in
themselves, but in their art."'
If it is true that a certain class of citizens, — a particular pro-
fession, — is thus situated and expo.sed without fault on their part,
what is the remedy for the evil ? Can not the negligent, careless
and ignorant be punished without involving the careful, skillful
and innocent? These questions are important
It is suggested in the report already referred to, that the
profession of medicine protect itself thus : " Let it be distinctly
understood that those individuals immediately implicated are
entitled to the sympathy and assistance oi" as many of their
professional brethren as may be necessary to sustain them.
And where it is possil)le to avoid it, let not a member of the
profession be found in the ranks of the prosecution. It is
believed that in this way very much may be done to diminish
the frequency ol" the occurrences, and thus aiford protection to
individuals in the profession, as well as promote its dignity and
usefulness."
This plan may be found impracticable ; indeed it always has
proved so. Professional sympathy will not remedy the evil.
The only effectual and permanent mode, it is believed, by
which the evil can be reached, remedied, and guarded against,
is, by elevating the standard of Medico-legal knoivledge in the
professions of Law and Medicine. It is not to be denied that
members of the legal profession, with few exceptions, are im-
perfectly informed upon medical questions connected with law,
though they may be well educated in law generally, and well
informed on every other subject.
The science of law and its legitimate details are so boundless,
lawyers seem to have no heart or time to look closely and criti-
cally into another, sister science, equally extensive and difficult
with their own. The reluctance and failure on the part of the
^ Tran^actious of the Eleventh Annual Meeting of the Ohio State Medical
Society, 1856, p. 53.
10 INTRODUCTION.
members of the Bar to study Medico-legal subjects, arises, in
part, if not principally, from the bad arrangement, and general
character of the works upon Medical Jurisprudence, which pre-
tend to treat upon those matters. The subject uf Malpractice
being altogether ignored, the attorney is at once startled, if no'-
disgusted, at their theoretical and formidably medical and chem
ical character ; except which, he thinks he sees but little.
The work written by Mr. Chitty, who was originally educated
for the medical profession, is really an elaborate work on Anatomy.
Physiology, Pathology, the Practice of Medicine, and Surgery,
There is but little Medical Jurisprudence in it, excepting the
name, and the study of it is equivalent to the study of medicine
in all its departments.
Dr. Beck's great work, consisting of two ponderous volumes
is a vast store-house of undigested facts, collected during a life-
time by its learned author ; many practical and useful, and many
valueless. It is a great compilation from every quarter; em-
bodying the history of Medical Jurisprudence; treating upon
Chemistry, the Practice of Medicine, etc. As a work of refer-
ence it is of much value ; yet so elaborate and so endless are its
details, that the practical is often covered up with the useless and
obsolete. Almost every case that has ever been published, in
any country, in book or newspaper, important or unimportant,
here finds a resting-place. Often the circumstances, authority
and date of the case are not given, leaving the whole in confusion
and doubt.
These old and isolated cases are constantly making trouble in
courts. The attention of the medical witness is called to them
as contradicting what he avers to be the present state of the
question ; and resting, as they do, upon the authority of Beck,
much more consequence is given to them than they deserve. This
kind of matter should not be embodied in works on Medical Juris-
prudence, — it only tends to embarrass both witness and counsel.
Many of the later works upon the subject of Medical Juris-
prudence are obnoxious to the same objection, possibly, to a less
GENERAL PLAN AND SCOPE OF THE V/ORK. 11
degree than the leading ones named. Thus, the attorney is
compelled, by the manner in which the subject is treated in these
works, to pursue an uniiecessaiiiy extensive course of" medical
reading and study, in order to become at all fiimiliar with the
points involved in Medico-legal questions.
Could the subject ha presented in a clear and brief manner, so
that the medical element entering into the case, and that alone,
should appear, — enabling the lawyer to i'ully comprehend the
points and connection, without throwing upon him the laborious
and general study oi' the medical science, — it would go a great
way toward encouraging the study of those questions by the
members of the Bar ; as they have not the time for a general
investigation of all the subjects connected with medicine, unless
they neglect something of equal importance.
On the other hand, the medical man has no possible mode of
determining the extent of his responsibilities and liabilities, as
such, in a case of alleged Malpractice, without a thorough study
of the principles of law, as well as a laborious examination of
libraries of Keports. He derives no help whatever from the
works on Medical Jurisprudence. He may read them ail, and
he is still in the dark as to the rules of law that bear upon him,
and by which he is to be judged ; and from his knowledge of
the usual results attending such cases, he is at once discouraged,
ready to compromise in any wa}', and then, perhaps, leave the
profession: when, if he could turn with confidence to the correct
and highly humane laws applicable to such cases, if properly
administered, — ascertaining at once where he stands and what
are his chances, — he would take courage and feel compara-
tively safe.
The author has attempted in this volume to present the
Medico-legal questions hkely to engage most frequently the
attention of attorneys and medical men, in a circumscribed and
compact form ; and to reduce, if possible, the voluminous litemture
of the subject, — scattered throughout law and medicine, — to a
practical system : — with what success, others are the judges.
12 INTRODUCTION.
Proceeding upon the idea that much more matter of a strictly
theoretical and medical character, is connected with the discus-
sion of Medico-legal subjects, in most works upon Medical Juris-
prudence, than is necessary ; tending as it does, to repel, rather
than enlighten the legal inquirer, and rendering his search use-
lessly laborious ; the author has endeavored to strip the subject
of all such profitless details and discussions, leaving the consider-
ation of speculative themes to other works and writers.
It is also the aim of the present work to furnish to the medi-
cal man that necessary information respecting his legal responsi-
bility as a practitioner and witness, which he has been hitherto
unable to altain except by the general study of law. In short,
the author believes it possible for both of these classes to arrive
at the desired point, and command the necessary inlbrniation, by
a much shorter road than that usually taken, and at a much less
expenditure of time.
In the opening chapter of the w'ork, the author has attempted
to lay down the general principles of law applicable to medical
responsibilities, as held by the courts of Eng and and this country,
with full references to the cases where medical men have been
tried for alleged Malpractice, as well as to other cases involving
the same principles; then, in a series of chapters, the difficulties
peculiar to the medical profession, — its possil)ilities and its im-
possibilities, — what the medical practitioner can do and what he
can not, — are set forth as concisely as may be, with references.
The subjects of Amputations, Fractures and Dislocations, — out
of the treatment of which grow the great majority of suits for
Malpractice, — are taken up, and an exhibit of the present state
of the science in regard to the Surgery of these cases presented ;
that just what should be rightfully expected and required of the
surgeon, may appear as far as possible, and what should excuse
an imperfect i-esult in his treatment. These several subjects are
followed by the leading adjudicated cases upon the questions, in
English and American courts.
A digest of Prof Frank II. Hamilton's able and valuable Report
GENERAL PLAN AND SCOPE OF THE WORK. 13
on Deformities after Fractures, and a chapter on the responsibihties
of Druggii^ts, with the leading ca^es where they have been sued,
closes the part of the work devoted to Civil Malpractice.
Crlmdsal Malpractice, including the subject of Abortion, is
next presented, together with the leading adjudicated cases.
Part Second, is devoted to the consideration of the leading
points and subjects involved in Mkdical Evidence.
The medical man should understand clearly his rights and
duties while discharging the obligations of a witness, if he would
acquit himself creditably ; this knowledge he can only gain by
giving some attention to the general rides of evidence by which
he is governed and guided while in court; hence, in several
chapters the subjects of Evidence in General, Circumstantial Evi-
dence, the Testimony of Experts, Privileged Witnesses and
Communications, and Medical Books as Evidence , are briefly
considered. If the medical witness would devote as much time
and thought to these several departments of evidence, as the
attorney gives to the consideration of the medical questions aris-
ing where he is interested, there would at once be a more
perfect understanding between the witness and lawyer, and a
material cause of irritation and misunderstanding would be re-
moved. Is not this exceedingly desirable ?
It is possible the importance of the medical witness's position,
to himself and to his profession, and as the vindicator of justice,
has been over-estimated in this treatise. It is thought, however,
that at this point, the members of the medical profes.sion should
make a firm stand, and by their knowledge, candor, and firmness,
vindicate their profession before the world. A distinguished
lawyer has said: "The condition of a scientific witness must be
most awful, who gives any other opinion than that which is in-
fallible. Opinions in cases of poisons we have always considered
highly questionable, and requiring the utmost possible care, and
especially in the application of new systems, that even have not
undergone the test of time and ex[;erience. The jurymen shelter
them^felves under the opinion of the doctor, ignorant of their own
14 INTRODUCTION.
privileges and duties, and not observant of the defendant's rights;
and the doctor, thus being superior in matters of science, forgets
his limits, and often spreads ruin around."^
In this treatise are discussed only those Medico-legal subjects,
which are constantly engaging the attention of courts, and the
medical witness ; these, it is believed, are treated thoroughly.
The great and difficult question of Insanity, which is almost
entirely in the hands of the medical witness, is examined at con-
siderable length, and the leading adjudicated cases appended.
Also, the subject of Poisoning, — by arsenic and strychnia in par-
ticular, — is treated, with the leading cases given. Cases of
criminal poisoning by arsenic and strychnia are more frequently
before the courts than all others ; these, therefore, have been fully
considered in their Medico-legal bearings.
Infanticide, Wounds, Rape, and Coroner's Inquests, close up
the subjects treated in this work.
Throughout, the author has intended to leave abstract ques-
tions of Science, Anatomy, Physiology, Therapeutics, Chemistry,
and the like, to those able writers who have made them special-
ties, and whose works are in the libraries of every medical man.
To these, the attorney can have access should he wish to pursue
any particular point, or branch of study, into its minute details.
It would be folly, in a work of this character, to attempt to an-
ticipate him here, — indeed, this is the objection to man}' works
on Medical Jurisprudence. To the physician or surgeon, it would
be useless, as he has the discussions in full in his elementarj'-
works.
David Paul Brown, 2 Forum, 236.
NoTK. — Since the publication of this work, Prof. Ordronaux, of Xew York,
has written an able and valuable book on "The Jurisprudence of IMedicine,"
embracing the subject of 3rali)ractlce. To this work the author is indebted
for valuable references and cases.
CONTENTS OF CHAPTERS
CHAPTER I . PAOE
General Principles of Law applicable to Medical Men, 19
CHAPTER II.
The Inherent Elementary Difficulties of Medicine and Surgery, 36
CHAPTER 1 II.
What definite knowledge is possible and essential for the Surgeon, 48
CHAPTER IV.
Malpractice from Amputation 55
CHAPTER V.
Malpractice in Fractures and Dislocations, 75
CHAPTER VI.
A Digest of Professor F. H. Hamilton's Reports of Cases of Deformities after
Fractures, 86
CHAPTER VII.
Malpractice in Dislocation, 105
CHAPTER VIII.
English and American Adjudicated Cases, 110
CHAPTER IX.
American Adjudicated Cases, continued 118
CHAPTER X.
Alleged Malpractice in Ophthalmic Medicine and Surgery 145
CHAPTER XI.
Malpractice in Dressing Incised Wounds — Depositions of Professors Hamil-
ton and Flint, of Buffalo 163
CHAPTER XII.
Druggists — Their Responsibilities — Leading Adjudicated Cases, 169
CHAPTER XIII.
Criminal Malpractice — English Adjudicated Cases, 198
CHAPTER XIV.
Criminal Malpractice — English Adjudicated Cases, continued, . . . .~. 208
CHAPTER XV.
Criminal Malpractice — American Adjudicated Cases, etc 232
CHAPTER XVI.
Abortion — Foeticide, 243
CHAPTER XVII.
Evidence in General — Circumstantial Evidence, 263
CHAPTER XVIII.
Experts — Professional Opinions, 273
CHAPTER XIX.
History of Medical ""^ividence, 285
CHAPl'EK XX.
Tlie Importance of Medical Evidence, 293
(15)
PAQE
16 " CONTENTS OF CHAPTERS.
CHAPTER XXI.
Duties and Responsibilities of Medical Witnesses 304
CHAPTER XXII.
Privileged Communications 319
CHAPTER XXIII.
Medical Books as Evidence, 331
CHAPTER XXIV.
Insanity — Knowledge on the subject limited, 338
CHAPTER XXV.
The position of the Courts upon Insanity, 356
CHAPTER XXVI.
Insanity — The Medical Witness — The Courts, 367
CHAPTER XXVII.
Insanity in its legal relations, 378
CHAPTER XXVIII.
Partial Insanity — Delusion 389
CHAPTER XXIX.
Moral Insanity — The Huntington Case 400
CHAPTER XXX.
Opinions of Laymen, as Evidence upon Alleged Insanity, 422
CHAPTER XXXI.
What Mental Incapacity Invalidates a Will, 435
CHAPTER XXXII.
Poisons — General Principles and Observations, 439
CHAPTER XXXIII.
Arsenic — Fatal Dose — Post Mortem Examinations, 453
CHAPTER XXXIV.
Taylor's Analysis of Arsenic, 459
CHAPTER XXXV.
Leading Adjudicated Cases in Arsenical Poisoning 494
CHAPTER XXXVI.
Poisoning by Strychnia — Adjudicated Cases, 526
CHAPTER XXXVII.
Testimony of Curling, Todd, Brodie, Christison, etc., in the Palmer Case, . . 534
CHAPTER XXXVIII.
Loading Adjudicated Cases in Poisoning by Strychnia, 544
CHAPTER XXXIX.
Infanticide — Adjudicated Cases, 555
CHAPTER XL.
Wounds — Effects of Wounds in Producing Death, 561
CHAPTER XLI.
Rape — Adjudicated Cases, 570
CHAPTER XLII.
Coroner's Office and Inquests, 477
PART I.
MALPRACTICE.
MALPRACTICE.
CHAPTER I,
GENERAL PRINCIPLES OF LAW APPLICABLE TO MEDICAL MEN.
The general principles of law, defining the civil responsibili-
ties and duties of physicians, lawyers, engineers, machinists, ship-
builders, brokers, and other classes of men whose employment
requires them to transact business demanding special skill and
knowledge, are the same.
It is of much importance, therefore, to these classes, that the
rules of law applicable to them, be well and clearly settled, and
thoroughly understood by those upon whom they are to act, as
well as by the authorities upon whom devolve the responsibility
of their administration.
Some of these classes, however, are erroneously supposed to be
held to a more strict accountability than others. This sterner
rule has been, at times, applied to the medical profession. It
was said by the Court, in the case of Leighton v. Sargent,' that,
"at the present time, it is to be feared, there is a tendency to
impose some perilous obligations, beyond the requirements of the
law, upon medical men." It is to be regretted that not only in
New Hampshu-e, but in almost all parts of the country, this has
1 7 Foster, 468.
(19)
20 MALPRACTICE.
been the case, as if more is to be expected of that class, under
the same set of circumstances, than any other.
At the outset, then, of our inquiry into the subject of Medical
Malpractice, it becomes necessary to carefully define, as lar and
clearly as may be, the nature of the contract entered into between
the medical man, on the one hand, and the public, or patient, on
the other, in regard to his duties, qualifications and general con-
duct, while this obligation rests upon him.
The nature of the contract between the physician and patient,
and attorney and chent, is alike : neither class, without an ex-
press contract to that effect, is a warrantor or insurer.^ Certainly
nothing unreasonable or oppressive should characterize the rule
of law in its application to the conduct of the professional man,
thus making a different rule from that applicable to other men.
The professional man does not agi'ee, or stipulate, to carry the
case through to a successful issue, at all events, and notwith-
standing all contingencies ; and he is not to be tried by the result.
If a man contracts to do a thing that is absolutely impossible
at the time of making such contract, he is not bound thereby,
because no man can be compelled to perform an impossibility.^
But a distinction is taken between a contract to do a thing
which is accidentally impossible, and wherein the party en-
gages to do something absolutely impossible; for, in the former
case, the contract is binding, notwithstanding it was beyond the
power of the pai-ty to perform it — it being his own fault and folly
that he did not expressly provide against those contingencies he
should know might |)Ossibly transpire, and exempt himself from
responsibility in certain events. In such a case, therefore, the
performance is not excused by the occuricnce of an ine\itable
accident, although it was not foreseen by, or within the control of
the party .^
' Hancke v. Hooper, 7 C. & P. 81.
'^ Chitty on Coiit. 029 ; Pothier's Troaite (Tes Obligations, c. 1, sec. 4.
3 Chitty on Cont. G30 ; White v. Mann, 561.
GENERAL PRINCIPLES OF LAW. 21
The physician or surgeon may, undoubtedly, undertake, by
express contract, to perform a cure absolutely.^ In a contract
of this kind, the utmost diligence and skill will not excuse him,
should the result be unfortunate ; because it was his own fault,
or inexcusable ignorance, that so uncertain a result should haA'e
been guaranteed successful. The extent of the physician's or sur-
geon's liability, under an express contract to cure, will depend
upon the circumstances of the case. If he undertakes an absolute
impossibility, the law will not hold him responsible for the full
extent of the damage resulting to the patient by reason of the
failure to cure. His responsibility extends to a forfeiture of all
compensation for medicine and service. The impossibihty of the
undertaking excuses him in part.
Neither will a want of sufficient skill or knowledge to fulfill an
express contract excuse its pertbrmance. A builder may agree
to erect a house or a ship of a certain description, and he can
not afterward excuse himself on the ground of his want of suffi-
cient skill. In that case, the maxim of the Civil law applies —
spondet peritiam artis — the person undertaking to do the work
is bound to use a degree of skill and attention adequate to the
performance of his undertaking; that is, to do it according to
the rules of the art.^ So, a surgeon may contract for the removal
of a limb, the physician for the cure of a disease, or the lawyer
for the foreclosure of a mortgage ; and by that contract he be-
comes a guarantor of the result. It is his fault to undertake to
do a thing beyond his strength, or for which he has not sufficient
skill, or to employ bad workmen : imjieritia cidpce adnumeratur —
ignorance is like negligence, for which one is responsible.^
Every person who offers his services to the public generally,
impliedly contracts with the employers that he is in possession of
^ Loighton v. Sargent, 7 Foster, 468.
2 Jones, Bailm. 22, 23, 62, 97, 120 : Story on Bailm. sec. 431 ; Coggs v. Ber-
nard. Ld. Raym. 909 ; 1 Bell's Com. 459, 5th Ed.
3 Story on Bailm. 279 ; Chitty on Cont. 165 ; 3 Blackstone Com. 122 ; 2
Greenl. Ev. 145 ; 1 Bouv. 403 ; Dig. 50, 17, 132.
22 MALPRACTICE.
the necessary skill and experience which is possessed ordinarily
by tho<e who practice, or profess to understand the same art or
science, and which is generally regarded by those most conversant
with that profession, or employment, as necessary to qualify him
to engage in such business successfully.
Mr. Justice Story says : " In all these cases, where skill is
required, it is to be understood that it means ordinary skill in
the business or employment which the bailee undertakes ; for he is
not presumed to engage for extraordinary skill, which belongs to a
few men only in his business or employment, or for extraordinary
endowments or acquirements. Reasonable skill constitutes the
measure of the engagement, in regard to the thing undertaken."^
Lord Chief-Justice Tindall says : " Every person who enters
into a learned profession, undertakes to bring to the exercise of
it a reasonable, fair and competent degree of skill."'^
This is the doctrine of the common law, in its application
to the ordinary rank and file of the professions of Medicine
and Law.
It may. at times, be difficult to determine just what the "or-
dinary degree of skill," as used by law^ writers, amounts to. It
may vary in the same State or country. There are many neigh-
borhoods, in the West especially, where medical aid is of difficult
attainment; yet cases of disease and surgery are constantly
occurring, and they must, of necessity, fall into the hands of
those who have given to the subject but little, if any thought.
Thus the inexperienced and the unlearned attend to the surgery
in their way, or it is not attended to at all. In such a case, and
under such circumstances, and for these reasons, the ordinary
degree of skill required by law would be good common sense,
or such knowledge as the operator had, joined with a good pur-
pose to help the afflicted, even if such interference rendered the
patient a cripple for life. This is the law in both England and
» Bailm. 433.
2 Lanphire v. Phipos, 8 C. & P. 475.
GENERAL PRINCIPLES OF LAW. 23
this country. Even in England, it was said by Hullock, in the
case of Van Butchell, that '' many persons would be left to die if
iiTcgular surgeons were not allowed to practice."^ In these
cases, no more, of course, should be expected of the operator
than the exercise of his best skill and judgment, however limited
that might be."
In large cities and towns, are always found surgeons and
physicians of the greatest degree of skill and knowledge. Their
pretensions are properly large. They are to be held to a corres-
ponding high degree of responsibility. They contract to do
more than the ordinaiy physician, and they are paid a higher
price for what they do ; consequently the contract is more diffi-
cult to fulfill.
In the smaller towns and country, those who practice medicine
and surgery, though often possessing a thorough theoretical
knowledge of the highest elements of the profession, do not
enjoy so great opportunities of daily observation, and practical
operations; where the elementary studies are brought into every
day use; as those have who reside in the metropolitan towns;
and though just as well informed in the elements and literature
of their profession, they should not be expected to exercise that
high degree of skill and practical knowledge possessed by those
having gi'eater facilities for performing and witnessing operations,
and who are, or may be, constantly observing the various acci-
dents and forms of disease.
It will not, therefore, as a general thing, require so high a
degree of knowledge to bring this class of physicians up to the
rule of ordinar}^ knowledge and skill, as in places where greater
facilities are afforded, by which higher professional knowledge is
attainable.
Judge BouYiER, it is true, has laid down a different rule, which,
upon principle, can not be correct. He says: "If, for example, a
1 3 C. & P. 629.
2 McCandless v. McWha, 22 Penn. 268.
24 MALPRACTICE.
farrier undertakes to cure a horse, he is required to use reason-
able skill — if a carpenter undei-takes to build a ship, he engages
to use the same kind of abihty — and the degree of skill rises in
proportion to the value and dehcacy of the operation. But he
is, in no case, required to have more than ordinary/ skill, for he
does not engage for more. Under this rule, all professional men,
who can recover for their services in an action, are included ; and
their contract is locatio operarum, and not mandate."^
For the reasons already given, a man should be held responsi-
ble according to what he is actually able to accomplish, or for
what he pretends he is able to do. He asks a large price for his
services, and gets it, because he is really superior to others in his
knowledge and skill, or fraudulently makes those who employ
him think that this is the case. He contracts, on his part, to do
more, and to do it better than the generality of the profession.
Why not hold him to this implied contract ? The high-minded
medical man wishes to be so held, and the charlatan and pre-
tender certainly should not be allowed to escape behind the
ordinary skill and knowledge of honest practitioners, who actu-
ally are prepared to accomphsh more than he, but promise and
pretend less.
The principles of law applicable to attorneys and medical men
being the same as to responsibility for ignorance, carelessness,
want of proper attention, etc., the cases relating to attorneys, in
these respects, may be with profit consulted. Reference is here
made to some cases where these principles have been settled.^
Most of the cases referring directly to physicians and surgeons,
1 1 Bouv. Inst. 403.
2 Pitt. V. Yaldin, 4 Burr, 2060 ; Laidler v. Elliott, 3 B. & C. 738 ; S. C. 5, D.
& R. 635 ; Russell v. Palmer, 2 Wils. 325 ; Flunter v. Caldwell, 16 L. Jour. 2
B. 274 ; S. C. 11 Jur. 770, and 10, 2 B. 69 ; Purves v. Landall, 12 C. & Fin. 91 ;
Varnum v. Mastin, 15 Pick. 440 ; Stirapson v. Sprague, 6 Greenl. 470 ; Crooker
V. Hutchinson, 1 Vermont R. 73 ; Holmes v. Peck, 1 R. I. Rep. 242 ; Wilson v.
Russ, 7 Shep. 424; 1 Leigh's N. P. 196; 2 Greenl. Ev. 120, Chitty on Cont.
165 ; 1 Saund. P. & E. 163.
GENERAL PRINCIPLES OF LAW. 25
where the courts have passed upon their responsibility, are care-
fully collected below.^
When the act to be done depends upon the skill of the
operator alone, the law will imply an engagement to use that
degree of skill iK-cessary to produce the desired result ; the per-
son so employed having held himself out to the world as being
possessed of a degree of knowledge equal to the undertaking.
If he has not the knowledge he claims, he is practicing a fraud
upon the employer.
In the case of surgeons, physicians, attorneys, etc., another
and important element beside skill enters into the result, and
for this reason the degree of responsibility is, to a certain extent,
and in a manner, relieved and moderated. This important ele-
ment is the operation of causes and influences over which the
practitioner has but little or no influence. They are occult, and
no human foresight is able to anticipate them before they have
completely deranged and materially interfered by bringing about
altogether a different result than that confidently depended upon.
Where a surgeon undertakes to treat a fractured limb, he has
not only to apply the known facts and theoretical knowledge of
his science, but he must contend with very many powerful and
hidden influences; such as want of vital force, habit of life,
hereditar}^ diathesis, climate, the mental state, local circumstances,
and a thousand other agencies, many of which will be more fully
detafled hereafter. These latent conditions often render the
management of a surgical case difficult, doubtful and dangerous ;
1 Seare v. Prentiss, 8 East. 347 ; Slater v. Baker, 2 Wils. 359 ; Moore v. Morgue,
Cowp. 497 ; Hancke v. Hooper. 7 C. & P. 81 ; Lanphier v. Phipos, 8 C. & P.
475 ; Grannis v. Brandon, 5 Day, 260 ; Landon v. Humphry, 9 Conn. Reps. 209 ;
Howard v. Grove, 15 Shep. 97 : Gallasrlier r. Thompson, Wrii^ht's Reps. (Ohio,)
466 ; Mertz v. Deweilur. 8 W. & S. 376 ; 1 Saund. P. & E. 91 ; 1 Wms. Saund.
312, note 2 ; 1 Bouv. Ins. 403 ; Bell's Com. 459 ; to other employments, in
Pawtuary, v. Wolton, 1 Rolls, Ab 92 ; Bull. N. P. 73 ; Story on Bailm. 280, sec.
429 ; Paley on Agency, 78 ; Phillips v. Wood, 1 N. & M. 434 ; Leighton v.
Sargent, 7 Foster, 468.
26 MALPRACTICE.
they are all potent causes, frequently having greater influence in
the result than all the surgeon may be able to accomplish.
For the same reason the retainer of the attorney does not
oblige him to conduct a suit to a successful termination. He is
responsible tor the same degree of skill as required of the sur-
geon ; but he is not to answer for the proverbially uncertain ver-
dict of a jury, or for the personal judgment of a court. These
are contingencies which no human power can feel sure of antici-
pating or controlling.^
Ordinary skill, applied to the treatment of disease, is but one
of the claims the public holds on the medical man. He also
undertakes and contracts that he will use reasonable and ordinary
care and diligence, in the exertion and application of his skill and
knowledge, to accomphsh the purposes for which he is employed.
Extraordinary care or extraordinary diligence is no more to be
requh'ed of him, unless he contracts to furnish them, than extr.i-
ordinary skill. But what shall be deemed ordinary diligence or
care, must have reference to the state of the patient. What
would be ordinary care in certain chcumstances, would be negli-
gence in others.
The general rule appHes here, as in other contracts, that the
physician and surgeon shall be held accountable for the exercise
of such care and diligence in their employment, as common-sense
men, of common care and prudence, usually exert where they are
equally interested in business of a similar kind and importance.
He agrees to be responsible for the want of such care and dili-
gence, and he stipulates, in no event, without an express contract
for that purpose, for any greater liability .-
It has been strenuously denied by some, that the liability of
the professional man goes to this extent, while others would carry
it much further. There are some old decisions that support the
> Wright's Rep. 466.
2 Kilsley v. Williams, 5 B. & A. 820; Patterson v. Gandasaqui, 15 East. 62;
Boward v. Grovcr, 15 Shep. 97 ; Foster, 7 Shep. 471.
GENERAL PRINCIPLES OF LAW. 27
position that the surgeon or the attorney should not be held respon-
sible, except for lata culpa crassa negligentia — manifest fault or
gross negligence.^ These cases nia}- not have intended to lessen
the rule of ordinary skill and diligence, but they seem to go further.
The sphere of respomihilltfi is the same when the wrong con-
sists of negligent acts, though the measure of indemnity and pun-
ishment ma}^ be dilierent.-
That the physician is not liable, unless there was crassa neg-
ligentia, was firmly maintained before the court in the case of
Landon v. Humpbr}', tried in Connecticut some years ago. It
was declared that this was the only reasonable rule on this sub-
ject, because, it was said, what man, even of skill and talents,
would undertake to practice medicine, if some Httle want of
ordinary skill, or failure of ordinary skill, or failure of ordinary
diligence, or even some trifling want of carefulness, might sweep
from him the earnings of a long life of drudgery ; that if this
rule was applied, no physician, however able or skillful, could
escape for a year. The court, however, decided, in this case, that
the doctrine and decisions in this country, and also in England,
did not require gross neglect, to make the party liable, but that
there must be ordinary skill, care and diligence ; that if there
was either carelessness or want of ordinary skill and diligence,
the plaintiff should recover.^
It has been said that gross carelessness means nothing in law,
and with truth.
In the case of Philip C Wells v. The New York Cental Rail-
road Co., at the March Term, 1858, the Supreme Court held,
1 Sumner v. Utley, 7 Conn. Rep. 263 ; Godfrey v. Button, 6 Bing. 461 ; S. C.
4 M. & P. 149 ; Purvis v. Lundoll, 12 C. & F. 91 : Wilson v. Russ, 7 Shep. 424 ;
1 Leigh's N. P. 196. *
2 Archb. Cr. PI. 411, 2d ed. 1846 ; 2 Sel. Ray. 1583 ; 23 Eng. Com. Law R.
54-5 ; 3 Maule & Sel. 14, 15 ; 1 Lewin's Cr. Cases, 169 ; 2 Stark. Ev. 526 ; 5
Maule & Sel. 198 ; Broom's Leg. Max. 168-9, 1st ed:; 4 Denio, 464 ; 41 Eng.
Com. Law Rep. 422, 425 ; 24 Id^ 272 ; 19 Wend. 345-6.
3 Landon y. Humphry, 9 Conn. 209,
28 MAIJ>RACTICE.
Smith, J., as follows : " I see no ground to measure the degree
of negligence. The distinction between the several degrees of
negligence is nice, and too artificial for anv clear, definite and
practical application. Judge Curtis, in 16 Howard, 477, says, it
may well be doubted if these terms can be usefully applied in
practice. Judge Story also remarks,^ that the law furnishes no
definition of the terms 'gross negligence' or 'ordinary negli-
gence,' which can be applicable in practice, and these distinc-
tions are utterly repudiated by the late civil law reporters." It
can not, with any propriety, be applied legally to the conduct of
a physician or surgeon.
It has been sometimes contended that extraordinary care
should be bestowed by the medical attendant upon his patient,
because he deals with the vastly important matters of life and
health. The physician and surgeon is, undoubtedly, bound,
morally, to exert extraordinary care and diligence in a case
where life and health are at stake;' but he can not, under the
light of the authorities, be considered bound, in law, by any other
rule, in this respect, than that which governs all classes of men
that require ordinary skill in their employment, work or science.
"Different things may require very different care. The care
required in building a common doorway is quite difierent from
that required in raising a marble pillar, but both come under
the description of ordinary care."^ It undoubtedly requires
a higher degree of skill for the successful and safe treatment of
iritis than that required in rheumatism, because, in the former
case, the most important and delicate structure of the system is
involved, the parts of which, when aflected with an inflammation,
may be soon destroyed, so rapid and dangerous is the disease;
and unless treated intelligently, and with great promptness, blind-
ness quickly, supervenes ; whih^, in rheumatism, but little, per-
haps nothing, can be done hastily, it being a disease of the joints
^ Story on Bailm. sec. 99.
* Story on Bailm. sec. 429.
GENERAL PRINCIPLES OF LAW. 29
and muscular system, usually requiring a long course of treat-
ment, giving to the attending physician full time to study his
case, and apply his means of cure.
Beside the application of skill, diligence and care, the profes-
sional man contracts to use his be^^^t judgment in the treatment
of disease and injuries. Great room for diflerence of opinion is
left, in the exercise of the art of surgery, as there are usually
several ways of doing the same thing — different operations for
the treatment of injuries — each operator having a partiality for
that mode of dressing that has been successful in his own, or his
preceptor's practice. This being the case, the responsibility of
choosing the kind of dressings, and the mode of their apphca-
tion, is thrown upon each individual practitioner. So great are
the difficulties of weighing the nice yet important questions that
arise in every important case — first, to determine what is to be
done, and next, as to how it may be best accomplished, require
the soundest judgment and discretion of the best individual minds
of the profession.
The physician and attorney are not responsible for the errors
of an enlightened judgment, where good judgments may differ.
Good skill necessarily implies good judgment, and when that
judgment is properly brought to bear, any risk or any injury
that may result from mistakes of this kind, is upon the employer
alone. It has been well said, that "he, too, has judgment to ex-
ercise in the selection of the physician or the lawyer whom he
will employ; and if he makes a bad selection — if he fails to
choose a man of the best judgment: — the result is fairly to be
attributed to his own mistake, and is not to be visited upon the
head of the man who has done his best endeavor in his service."^
This, however, is to be taken with some degree of allowance.
People in general are not the proper judges of the qualifications
of scientific men, especially of physicians and surgeons. If they
were, imposition and charlatanry would not flourish as they do.
* Leigbton v. Sargeant, 7 Foster, 473.
30 MALPRACTICE.
Where, then, there are reasonable grounds for doubt and dif-
ference of opinion, the professional man, after the exercise of his
best judgment, supposing that he possesses the necessary know-
ledge, is not responsible for errors of judgments or mistakes.
He will be charged with error, or should be, only where such
errors could not have arisen except from want of reasonable skill
and diligence.^
Lord Mansfield remarks "that attorneys who conduc: them-
selves with honor and integrity, ought to be protected, when they
act to the best of their skill and knowkdge. Every man i ^ liable
to errors, and I should be very sorry to think that it should be
taken for granted that an attorney is answerable for every error
or mistake, and to be punished for it by being charged with the
debt he was employed to recover. A counsel may mistake as
well as an attorney ; yet no one would say that counsel who had
been mistaken shall be charged with the debt."^
Porter, J., remarks : " It has been said that it will not be suf-
ficient for a professional man to say he acted to the bes'. of his
abilities, because he should have formed a more just estimate of
his own capacity before he engages himself This doctrine, if
sound, would make an attorney responsible for every error of
judgment, no matter what care or attention he exercised in form-
ing his opinion. It would make him liable in all doubtful cases,
where the wisdom or legality of one or more alternatives was
presented for his consideration, no matter how difficult the sub-
ject. But when a person, who is appointed an attorney, has the
qualification necessary for the discharge of the ordinary duties of
1 Hart V. Frome, 3 Jar. 547 ; S. C. 1 Rob. 595 ; 1 and C. & F. 193 ; Leighton
V. Surgent, 7 Foster, 472 ; Kemp v. Burt, 1 N. & M. 262 ; S. C. 4 B. & A. 424 ;
ShiUcock V. Passman, 7 C. & P. 289 ; Laidler v. Elliott. 3 B. & C. 738 ; S. C. 5
D. & R. 635 ; Montrion v. Jefferys, 2 C. & P. 113 ; S. C. R. & M. 317 ;
Godefroy v. Dalton, 6 Bingh. 461 ; S. C. 4 M. & P. 149 ; Baikee v. Chadless, 3
Camp. 17 ; Pitt v. Yaldin, 4 Burr. 2060 ; Reece v. Rigbv, 4 B. & A. 202 ; 1
Saund. P. & E. 63 ; Chitt. Con. 165.
2 Pitt V. Yaldon, 4 Barr, 2060.
GEiNERAL PRINCIPLES OF LAW. 31
the trust imposed, we are of the opinion that the occuri'ence of
difficulties in the exercise of it which offer only a choice of meas-
ures, the adoption of a course from which loss ensues can not
make the agent responsible, if the error was one into which a
prudent man might have fallen. The contrary doctrine seems to
suppose the possession, and require the exercise of perfect wis-
dom. No man would undertake to render a service to another
on such severe conditions.''^
Yet, in the case of Howard v. Grover, the court seemed to
hold that, because the defendant erred in judgment, in not cutting
off the limb nearer the body, he was liable, and damages were ren-
dered against him for ^2,000, not because he failed to remove the
whole limb, but because he failed, as it was thought, to remove it
a few inches higher up. It was admitted that the defendant was
a good surgeon — that he did the job under controversy skillfully,
except that there was an error of judgment in the particular
mentioned. The court should have held that the surgeon was
not responsible for mere errors of judgment — then there would
have been no such verdict.
What is well and clearly settled, either by the courts or by
statute, must be known to the attorney, and applied by him in
behalf of his client ; for it is only where there is reasonable
ground of difference of opinion, that he is excusable from en'ors
of judgment.
So the physician, or surgeon, must apply, without mistake,
what is settled in his profession. His difficulties and doubtful
questions are much greater than those of the attorney, for, like
him, he has no court of last resort, whose decision is conclusive,
to pass upon his unsettled questions.
If the patient does not follow the prescription, and co-operate
with the surg. on, he can not afterward call the surgeon to an
account fur any unfurtunate result that may attend the case.
Percy v. Millandoii, 20 Mart. R. 75.
32 MALPRACTICE.
In the case of McCandless v. McWhUf the Supreme Court of
Pennsylvania said : " Nothing can be more clear than that it is
the duty of the patient to co-operate with his professional adviser,
and to conform to the necessary prescriptions ; but if he will not,
or under the pressure of circumstances he can not, his neglect is
his own wrong or misfortune, for which he has no right to hold
his surgeon responsible. No man may take advantage of his
own wrong, or charge his misfortune to the account of another."^
While the careless and ignorant of the profession are obnox-
ious to censure and hability, the most skillful may become so
by ordinary neglect. If he leaves his patients in the hands of
incompetent persons, when they are under his control, so that his
surgical cases are improperly dressed, he runs the risk of being
held responsible for their conduct. He must either dress the
limb himself, or see that it is correctly done. He must also visit
the patient as often as the circumstances of the case seem to
require — of which he is, in general, to be the judge.
Should the physician, or surgeon, by reason of indolence, or
matters not connected with his profession, neglect the patient he
had assumed to treat as surgeon, he is liable. The law requires
every man who engages in a profession or special calling, requiring
peculiar knowledge and skill — who holds himself out to the world
as possessing that knowledge and skill — to devote enough time
to such profession as will enable him to discharge its duties with
watchfulness and care. If the lawyer undertakes to foreclose a
mortgage, and abandons or neglects the matter, by which the client
sutfers loss, he will be held to account to his client for the dam-
ages. So a physician or surgeon, who voluntarily abandons or
neglects his patient, from any cause under his control, by the
same rule, can not be held irresponsible.
It is no safer, therefore, for a physician or surgeon to have too
many kinds of business on hand, than for an attorney. The
special engagement must be fulfilled.
1 22 Ponn. State Reports, 268.
GENERAL PRINCIPLES OF LAW. 33
That physician who can not devote the greater part, at least,
if not the whole of his time, to tho profession and the kindred
sciences, should abandon it altogether — it will be better for his
patient, his profession, and safest for himself
This life is too short for a man to perfect himself in, and cany
along very many diflerent kinds of business, without more indus-
try than falls to the lot of most men ; two important kinds of
business, one, either the law or medicine, can not be properly
attended to at the same time. The boundless science of medi-
cine, in all its departments, requires, and may well demand, all
the time and talents of its votaries. Its advancement and per-
fection of knowledge result from the accumulated labors of the
ablest successive minds of the profession from one age to another.
As a science, it has to contend with more sources of error than
any other; and it should be the pride of every American physi-
cian to add to the present mass of facts ; thus aiding in removing
gradually from the profession the difficulties and reproach that
weigh so heavily upon it.
It must be admitted that, in America more than in the Old
World, it is the habit of the physician to mingle other pursuits
with his profession. This and other reasons led Sydney Smith, a
quarter century ago, to ask, contemptuously, "What does the
world yet owe to American physicians or surgeons?" The im-
plied delinquency of the American profession, in this question,
was untrue when propounded ; but, at this day, the answer may
be, unhesitatingly, that the world owes to the American profession
the first successful introduction and apphcation of the anaesthetic
agenc3% which has done more foT surgery than all other inven-
tions put together. To it the world owes the first deep, bold, yet
successful operation on the vessels of the throat and neck. Amer-
ican surgery, for the last twenty-five years, leaves a record worthy
to s\and beside that of England.
This the English profession has the honor to acknowledge. A
late English writer says : " We must here take the liberty of say-
ing, that few things have pleased us more than, in course of our
3
34 MALPRACTICE.
reading lateh^, to find such suipri.^ing improvement in the period-
ic.d literature of our transatlantic cousins. The American jour-
nals which we have read recently abound in the most valuable
and original articles, and show the rapid strides which our friends
are making to compete with the mother country. We need only
add that they have our best wishes. We watch their progress
with the greatest pleasure."
It is not to be denied that most of the great and important
discoveries in medicine and surgery have been wrought out by
long and laborious efforts of the great men who have represented
medicine in Europe ; still, the profession in America presents a
bright galaxy of names, who have not been behind in creditable
and honorable deeds. They have earnestly and successfully
labored to clear away the obscurities that hung around the science
at the commencement of this century, and to lift it from the
labyrinth of conjecture and uncertainty that seems, necessarily,
to cling to it.
The American profession of medicine may well be proud of
the bright array of names that adorns its past and present his-
tory. During the last century the profession in England was
luminous with great hghts, through whose efforts a vast amount of
facts, illustrating medicine and surgery, that lay hidden deep
beneath ignorance and error, were brought out and practically
apphed. But, during the last fifty years, the American physi-
cians and surgeons have fully equaled those of England. There
is, at this time, a mental activity in the American profession that
will, without doubt, in a few years, place it in advance of the
world, in regard to new discoveries, and the practical application
of old ones. Upon the foundation of Practical Medicine, Chem-
istry and Surgery, so ably and deeply laid by the labors of the
English and French medical men, is to be reared a noble super-
structure by the American profession. While the law only holds
the profession accountable for the fliithful use and apphcation of
the facts, means and principles already discovered and under-
stood, yet its honor as well as a great moral law, require of its
GENFRAL PRINCIPLES OF LAW. 35
members, the discovery of new principles, new relations, and the
new application of old principles. As this is b -in-- done, medi-
cine and surgery will stand higher and higher in the opinion of
intelhgent men, than it has ever stood; and, what is of still more
importance, its field of usefulness will be greatly extended — thus
illustrating the celebrated sentiment of Cicero, "Nothing so
nearly approaches the character of the gods, as givin"- hea'th
to our fellow-men."
iW^ See Appendix, page 583, for full Notes on this Chapter.
CHAPTER II.
THE INHERENT ELEMENTARY DIFFICULTIES CONNECTED WITH THE
PRACTICE OF MEDICINE AND SURGERY.
What is well and clearly settled, either by the courts or by
statute, must be known and applied by the attorney, for it is only
where there may be a reasonable grouhd of difference of opinion,
that he is excusable for errors of judgment; so with the physi-
ciaa — he must know what is well settled in his profession — for he
will be held responsible, if he fails to apply, in a particular case,
what is settled in the profession, as being applicable to the case.
Both law and medicine are, proverbially, uncertain. There are
some principles that may be considered settled in both profes-
sions. Statutory law, depending upon the action of the Legisla-
ture for its existence, is also dependent upon it for its continued
life. While in existence it may be considered settled ; but its
continuance is as uncertain as the character of the Legislature
that has jurisdiction over it. IMauy decisions of the courts are
as well settled as statutory law, and not so liable to be disturbed.
Many statutes and decisions have stood untouched for years. So
far as this is true, law is fixed and settled, and the practicing
attorney is expected to know it. Some old questions, and most
new ones, are fluctuating, and so unsettled are they, that no law-
yer can tell what will be the final result, or to what point they
will finally gravitate. Those questions that have not been passed
upon by the highest court in the State where they arise, can not
be considered settled, even for the time being; but after the court
of last resori h is passed upon theui, these points arc settled lor a
(36)
ELEMENTARY DIFFICULTIES OF MEDICINE. 37
season. It might be shown, without difliculty, upon what the
uncertainty of law depends: why difierent countries and different
States in the same country, have different rules of civil and com-
mercial action; but this is not our purpose — it being with the
uncertainty of medicine that we have to deal at present. While
the uncertainty of medicine is readily admitted, the reasons of
this uncertainty, and the unsettled state of the science, are far
from being understood ; and, not being understood, more blame
is often thrown upon the physician or surgeon than if there ex-
isted an intelligent knowledge of the real inherent difficulties of
his prof.ssion. It is not improbable that the members of the
Bar, intelligent as they generally are, may not fully realize the
necessary and formidable difficulties that the medical and surgical
practitioner have to encounter at every step, and the uncertainty
of the results, even in the hands of the most skillful and expe-
rienced. It is believed that if this was the case — if lawyers
fully comprehended all, or even a part of the great and difficult
problems of hfe, both in health and disease, which the physician
and surgeon are trying anxiously and patiently to overcome and
solve; fewer cases of alleged Malpractice would find their way into
courts of justice, and able advocates would less readily lend them-
selves to their support. Much of the uncertainty in medicine
arises from the fact that the peculiar province of that science is
the investigation and management of animal life, which can not
be fully understood. Its action is still hid in the deep secrets
of nature. Sir Gilbert Blaine, one of the ablest writers of the
medical profession, says : '"Animal life is not only the most com-
plicated department of nature, but the most vague ; for, beside
being niore or less subject to chemical and mechanical agencies, it
possesses such a number of attributes peculiar to itself, and those
of such various and fluctuating nature, as to put their influence
and combination beyond the reach of all calculation, and so as to
present the most formidable and discouraging obstacles to those
who may propose, a priori, to predict or control its operation,
whether in health or disease."
38 MALPRACTICE.
Again : " From what has ah'eady been said, however, it is man-
ifest, this certainty holds less strictly in the Uving human body
than in any other subject in nature with which we are acquainted,
to which art can be apphed. The simplicity of the laws of inan-
imate nature admits of the most certain inferences, whereas the in-
definite action and reaction of the numerous faculties peculiar to
life, add greatly to the difficulty and uncertainty of experiment
and observation, as already set forth. But this is not all : for
constitution being endowed with various degrees of these facul-
ties, an endless variety is found to take place among individuals,
giving rise to that uncertainty in the result, that has brought upon
it the character of a conjectural art."^ There is almost an infinite
variety of predisposing causes of disease, to which all constitu-
tions are more or less exposed, which influence the delicate struc-
ture and functions of the human body. They are not actual dis-
ease ; but where an accident overtakes the individual laboring
under them — and who does not? — it is the match applied to the
[)re-existing magazine. Many of the symptoms that arise are
erroneously and blindly attributed to the wound or injury — the
immediate exciting cause — or to the treatment, when, in truth,
they are to be sought for behind these circumstances, having
been existing, possibly for years, under an appearance of health.
Then there is the vast range of debilitating influences — such
as improper nourishment, impure air, excessive exertion of mind
and body, want of exercise, and sedentary habits, general long-
continued heat or excessive cold, habitual intemperate use of
intoxicating liquors; the depressing passions of mind, such as
fear, grief and despondency ; excessive and repeated evacuations,
either of blood or of some secretion ; previous debilitating dis-
eases, and the like. There may be, also, a [)ermanent state of
excitement or activity in the system, bringing the circulation up
to a high degree of activity, though not an actual disease ; there
is what has been called a redundancy of health, and, while there
' Elements of Medical Logic, London, 1825, pages 31, 237.
ELEMENTARY DIFFICULTIES OF MEDICINE. ' 39
is, undoubtedly, move than usual capacity of resisting those forms
of disease which operate by depressing the powers of life, such
as cold, malaria, infection, etc., there is, at the same time, a pre-
disposition to suffer at once from causes of additional excite-
ment. A brain already over active from hard study or other
exciting causes, may be too easily brought up to the stage of a
dangerous inflammation, by the additional aid of a strong moral
or mental emotion.
Prcclivity to disease is often caused by previous disease, hid-
den, it may be, independently of its weakening influences. This
is particularly the case with some forms of inflammation and
nervous diseases. Thus, a child that has once had croup is very
liable to a recurrence of the difficulty. An attack of enteritis,
or tonsilitis, is apt to lay the foundation for succeeding attacks.
Such convulsive diseases as chorea, hysteria and epilepsy, are
extremely Uable to recur, and they are ever ready to appear in
fufl violence, on the application of any exciting cause, such as the
various injuries the surgeon is called to heal. There are also
constitutional predisposition to disease, which is not to be
ascribed to a previous attack, but to the persistence in the sys-
tem of a condition favoring that attack. Rheumatism, gout,
gravel, many cutaneous diseases, dropsy and jaundice, are exam-
ples of this tendency. A person who has once suffered from
any of these diseases, is liable to a recurrence of the same on
the application of an exciting cause. Although free from the
attack, he may not be free from some functional or structural
imperfection, which caused the previous attack, or results from
it, and which is easily brought into operation by the addition of
an exciting cause, or an outside stimulating influence. There is
to be found, also, a predisposition to many structural diseases,
such as tuberculous and malignant formations. Where such have
once appeared, there is generally a tendency to their reproduc-
tion. Sometimes this influence is very strong, though latent
until brought out by an exciting cause.
There may be actual disease already existing in the body,
40 MALPRACTICE.
even when altogether beyond the closest observation of the most
skillful, that predisposes to other disorders, independently of its
weakening effect. Structural lesions of the heart and liver,
tumors, ulcers, aneurism, frequently induce obstructions and irri-
tations of blood-vessels, which, though not themselves causing
open disease, render these organs, thus affected, rife for its de-
velopment, on the supervention of an external excitement.
Disease of the heart, by causing an accumulation of blood in the
veins, often leads to congestion of the lungs and livor, and
sometimes other important organs ; and though unknown before,
it only requires the additional influence of an outside or ex-
exciting cause, like a concussion, contusion or fiacture, to bring
about an attack of asthma, jaundice, or even death may super-
vene from these occult causes, first brought to light by the
accident or injury, but for which the patient would have experi-
enced but little difficulty and no danger, and the medical attend-
ant would have had no trouble with the case.
To these accidental, or acquired predisposing causes, are to be
added those which are born in the individual, and those which
arise from the circumstances of age, growth, etc. These, depend-
ing upon something defective or ill-balanced in the organization,
are developed only when wrought upon by an external exciting
cause.
Hereditary tendency to disease is one of the most certainly
established facts in pathology ; yet its operation and manifesta-
tions are most singular and uncertain. The surgeon and the
physician are constantly on the look-out for the manifestation of
this influence, and yet they are often deceived, fliiling to trace
it when it is alive and active, and also liable to meet it where
they have reason least to expect it. This tendency may exist in
a family attended by the same medical man for years, and he
may not be able to detect it, until brought out by some sud-
den, severe accident. Nothmg is better understood, by both
the professional and the unprofessional, than that scrofula,
gout, rheumatism, epilepspy, mania, asthma, bhndness, syphifis,
ELEMENTARY DIFFICULTIES OF MEDICINE. 41
deafness and consumption, run in families — that they are
transmitted from parent to offspring, from generation to genera-
tion ; yet its appearance is very uncertain, both as to time and
the number of the family affected with the disease of the parent.
Part of the children may be affected, and the others manifesting
no appearance of the peculiar diathesis; in fact, it may pass
over whole generations, or remain in an occult state, and then
again be developed in precisely its original character and
violence.
How, then, can the surgeon count on, or be prepared to coun-
teract this hidden, yet terriblj' potent and dangerous influence ?
In constitutional syphilis, a first-born child of parents, one of
whom has been infected, may be tjiinted with the venereal poison,
while the second is apparently sound, the third or fourth again
may be aflected, and the next appear well. In this way a dis-
ease may go on from generation to generation, or it may stop
short at one. Again, the hereditaiy influence is greatly modi-
fied by sex ; the females being attacked with one form of dis-
ease and the males another — another of a different character
altogether. This phenomenon results, undoubtedly, from a double
influence — one section of the family deriving it from the mother
and the other from the father. This hereditary influence is sel-
dom developed in infancy, but more frec[uently in after life, being
developed by growth and the accidents of life. Tlie parent has
the disease in middle life ; the son, by living freely, may get it
sooner, or, by good luck, good care and temperance, it may not
appear until advanced life, or not at all. There is a disease
transmitted from the father to the son, but remaining dormant
forty or fifty years. So irregular is the development of heredi-
tary disease, that the child may be affected before the disease
has shown itself in the parent. The children, one after another,
are afiected, and afterward the parent shows that an anticipatory
action is exercised in the offspring. A case is recorded where
the parents were, apparently, healthy, but the children, one after
the other, died at the age of nineteen of consumption ; after-
42 MALPRACTICE.
ward, and at the age of fifty-three, the mother died of well-
marked tubercular pulmonary disease.
Temperament consists of a predominance or defect of some
function or set of functions — the active or the sanguine, the slow
or phlegmatic, the melancholic or desponding, the nervous or
irritable temperaments — all tend, in ditterent directions, to com-
plicate particularly the treatment of injuries, as well as acute
disease generally ; then all these temperaments are mingled and
intermingled, so that a pure type of the diflerent temperaments
is comparatively rare. Age, also, is an important cause tending
to vary the result of medical and surgical treatment : the pro-
clivity to disease being very diflerent in early infiincy from what
it is at puberty. Adult age again affords a condition of physical
habit diflering, not only very essentially from infancy, childhood
and puberty, but from old age. In infancy, the low caloric
powers of the body dispose it to suffer from the bad effects of
atmospheric influences ; hence the tendency to visceral inflamma-
tion. The skin is liable to exception, in consequence of the
drying medium in which it is placed, and its general tenderness
and irritability. The virgin state of the alimentary canal ren-
ders it peculiarly liable to disease. The brain, excited by the
novelties of a new world, is rapidly developed, and in its rapid
change and increased activity, it is peculiarly exposed to a mor-
bid action. Teething adds another, and a very serious one, to
the many causes of irritability and danger in infancy. When
an accident overtakes a child, each and all of these existing
causes tend greatly to complicate, retard and embarrass the case.
In children the functions that administer to growth being in great
activity, the organs of digestion and assimulation are, therefore,
most obnoxious to diseased action when excited by outside causes.
Puberty brings with it strong susceptibilities, and alterations in
the constitution, chiefly in the female sex ; menstruation is to be
established, and many and serious are the evils resulting from
external causes, which check the development of this function —
it having a nervous, as well as a vascular relation. It, therefore,
ELEMENTARY DIFFICULTIES OF MEDICINE. 43
plays an important part in surgical cases. At this time, in both
sexes, the s^'stem undergoes great and important changes. The
glandular system is extremely liable to congestion and intlamma-
tion; tubercles are rapidly developed in the lungs, and these
organs are much disposed, at this period, to take on inflammation
of their substance and mucous membrane, when aroused by an
injury. At the termination of growth there is another critical
period : the cessation of that appropriation of nourishment lor
the increase of the body that had hitherto been going on, may
cause fullness of the vessels, and a disposition to liyiiertrophy,
hemorrhage and inflammation, in the most healthy ; and in the
chachectit', to morbid disposition, especially of the tuberculous
kind. The buoyanc}^ of animal spirits, and the impulsive energy
of youth, do not always indicate immunity from disease. An
acute disease or an accident, at this particular time, is attended
with more danger, and less under the surgeon's control, than if
this stage is passed.
Very peculiar difficulties attend the treatment of surgical cases
in old age. The joints stifien, the textures of the body change,
owing to the altered vascular action in the different parts of the
vascular system, the capillary blood-vessels, that gi-eat system
which supports and sustains life and strength in the body. The
blood abounds in the large vessels, causing congestion and inflam-
mation. Chemical transformations show themselves in deposits,
and the hke, in different parts of the system, from the heart, the
great center of life, to the most distant extremity. The active
functions of the system being thus paral}'zed, the healing process
goes on, if at aU, at a slow, unsteady and imperfect pace.^
These are some of the causes — not all — that trouble, perplex and
complicate the practice of the surgeon and physician; and it seems,
therefore, important that not only should the surgeon be able to
' For this analysis I am principally indebted to the "Principles of Medicine,
Comprising General Pathology and Thorapeuticii, Etiology," etc., by C. J. B.
Williams, M. D.. F. R. S.
44 MALPRACTICE.
thus vindicate his practice and account fully for the uncertainty
of his science, even under apparently favorable circumstances,
but the lawyer, also, ought fully to comprehend all the embarrass-
ments and impossibihties that environ a noble sister profession.
If the lawyer is clearly satisfied of these difficulties, as he cer-
tainly will be, by looking into their causes, very much vexatious
and ruinous litigation will be prevented, and intelligent, worthy
men left unmolested, to pursue untroubled their important profes-
sional duties.
The doubts and uncertainties that constantly embarrass the
medical and surgical practitioner are easily understood and appre-
ciated by the intelligent; and the errors and mistakes to which
they are thus unavoidably exposed may well furnish, in many
important cases, a satisfactory explanation and excuse for any
unfavorable results, which, upon their face, may appear to involve
want of skill or knowledge.
But there are still other equally formidable difficulties connected
with the practice of surgery — dllGculties which, if properly un-
derstood and appreciated, will tend to place in a truer light the
strong and generally unknown barriers that are constantly con-
fronting those who pursue the art.
The great difficulties and want of certainty in the practice of
medicine and surgery, resolve themselves into an apparent want
of that uniformity so beautiful and remarkable in other branches
of physical science. This is felt particularly in the effect of
the predisposing causes already mentioned, to wit : morbid action,
the course of actual disease, and in the effect of external cause —
our confidence in science depending upon the facility with which
we discover the true relations of things, and our confidence in
their uniformity. In those sciences in which we have to deal
with inanimate matter, the confidence is easily attained ; but in
medicine, particularly, and often in surgery, there is great diffi-
culty in tmcing effects to their true causes, and causes down to
their true effects.
There being so many latent influences — some of which have
ELEMENTARY DIFFICULIIES OF MEDICINE. 45
been pointed out — operating to vary and complicate disease, just
and exact results are arrived at very slowly, if at all, and a long
course of observation and experiments must precede even a tol-
erable degree of certainty. There is great danger, too — and it
is often felt — that imperfect and hasty conclusions will be an-
nounced as facts.
When a statement of facts has once been boldly set forth from
a high quarter, it may take a lung time, and a laborious course
of experiments and observation to correct the errors. Herein is
the great diflerence between the science of medicine and those
purely physical ; as, in the latter, a single experiment may be
suffici(3nt to overturn the most plausible hypothesis, or establish
one that was before only matter of conjecture. After we have
ascertained, by a course of long, close and logical reasoning, and
careful experiment, the true tendencies and relations of things,
all are constantly liable to disappointment, when we attempt to
produce certain results by bringing these tendencies into opera-
tion. This arises from the silent operation of those numerous
causes referred to, that vary and qualify the result, and not easily
detected. Abercrombie, from whom the substance of the above
is taken, says, a source of uncertainty in the practical art of
medicine, is the difficulty we find in applying to new causes the
knowledge we have acquired from observation. This application
is made upon the principle of either experience or analogy.
" We are said to proceed upon experience when the circum-
stances in the new case are the same as in those cases from which
our knowledge was derived. When the circumstances are not the
same, but similar, we proceed upon analogy, and our confidence
in the result is weaker than when we proceed on experience.
The more numerous the points of resemblance are, the greater is
our confidence; because it approaches the more nearly to that
v>hich we derive from experience ; and the fewer the points of
resemblance, the confidence we feel is more and more diminished.
When, in the practice of medicine, w^e apply to new cases the
knowledge acquired from others, which we believe to have been
46 MALPRACTICE.
of the same nature, the difficulties are so great that it is doubtful
whether, in any case, we can properly be said to act upon experi-
ence, as we do in other departments of science ; for we hive not
the means of determining with certainty that the condition of the
disease, the habit of the patient, and all the circumstances that enter
into the character of the affection, are precisely the same in the
two cases ; and if they differ in any one particular, we can not
be said to act from experience, but from analog}-. The difficulties
and sources of uncertainties that meet us at every stage of such
investigations are, in fict, so great and numerous, that those who
have had the most extensive opportunities of observation will be
the first to acknowledge that our pretended experience must, in
general, sink into analogy, and even our analogy too often into
conjecture."^
In a science encumbered with so many sources of error and
difficulties, it is obvious what cause we have for proceeding with
the utmost caution, and for advancing from step to step with the
greatest circumspection. It is in consideration of these pecuHar
difficulties, that beset and encompass the business of the surgeon
and physician, that all enlightened courts have held that but
ordinary skill and care shall be required of them, and that mere
errors of judgment shall be overlooked, if the general character
of treatment has been honest and intelligent; and that the result
of the case shall not determine the amount of responsibility to
which he is to be held ; and that when unskillfulness or negligent
treatment of his patients is charged to a physician or surgeon, it
is not enough to show that he has treated his pa+ie'nt in that
mode, or used measures which, in the opinion of others, though
medical men, the case required, because such evidence tends to
prove errors of judgment, for which the defendant is not respon-
sible, as much as it goes to prove a want of reasonable skill and
care, for which he may be responsibl(\ Alone, it is not evidence
of the latter; and, therefore, the party must go further, and
* Abercrombie on the Intellectual Power, page 299.
ELEiMENTARY DIFFICULTIES OF MEDICDsE. 47
prove, by other evidence, that the defendant assumed a character,
and undertook to act as a physician, without tlie education, know-
ledge and skill which entitled him to act in that capacity.^
It is not our purpose to enter into a defense of the medical
profession, but simply to present a lair exhibit of the dilficulties
that surround a great piolession, and with which it has constantly
to contend — a profession that has ibr its object and end the
accomplishment of great good, assuaging of pain, physical and
mental, the lengthening out of a precarious life — a profession
that has produced, in all ages, able, self-sacrificing men, and now
has within it, as noble examples of moral and intellectual man-
hood — possessing substantial knowledge and practical skill — as
ever blessed our earth.
We are anxious that the attorney should give the subject his
attention; that he may weigh well the matter, and understand it;
that he may not, unwittingly, charge the medical man, and hold
him responsible for not doing perfectly what is absolutely impos-
sible, and that he may assist the court in protecting the innocent,
as well as intelligently to punish the guilty.
Let the heaviest judgment of the law be visited on those who
ignorantly, drunkenly and grossly trifle with health and human
life. If the practitioner has assumed the responsible duties of
the medical profession without reasonable and ordinary skill ; or,
having those qualifications, neglects to apply them as he should,
with care and diligence, under an enlightened judgment, properly
exercised ; in other words, if he has neglected the proper treat-
ment, from ignorance, inattention and carelessness, let him sufier :
there will be found nothing in these pages to screen him.
^ Leighton v. Sargent, 7 Foster Reps. 475.
i^^ See Appendix, jmrje 586, for full Notes on this Chapter.
CHAPTER III.
WHAT DEFINITE KNOWLEDGE IS POSSIBLE AND ESSENTIAL FOR THE
PHYSICIAN AND SURGEON.
Having considered some of the impossibilities of medical and
surgical practice — others will be noticed hereafter — it may be
well to examine to what extent the surgeon's knowledge must
reach — that which can and should be known to the practical
medical man. The courts hold that the surgeon and physician
must be master of that degree of knowledge which is reasonably
within their reach. To this end a minute and correct understand-
ing of the real character and importance of Inflammation is essen-
tial. It lies at the threshold of practical surgery ; and, without
this knowledge, the surgeon must grope his way in a labyiinth
of doubt and darkness, and stumble when he should walk
confidently.
What the terrible power of steam is to the engineer, inflamma-
tion is to the surgeon. From it he has to apprehend much of
the danger to which he Is exposed, and without it he can do
nothing. It is the great, mysterious and ever present power of
nature, that immediately springs into living activity, when any
part of the physical economy is invaded by an injury from with-
out, or an enemy within.
After the mechanics connected with surgery are attended to —
which, indeed, is generally the less difficult part — if the surgeon
does not act coincidently and understand! ngly with this influence,
he had much better fall back and let this groat (domcntary power
of palhdlogy do the work. The result wiU be better than if
there is a blind, hap-hazard intermeddling on the part of an
ignorant surgeon.
(48)
NECESSARY KNOWLEDGE. 49
Too many surgeons seem to think the important thhig upon
which a surgical repufaition depends, is the manual dexterity with
which an operation is performed. While this ."should be well
done, it is not all-important. A thorough understanding of the
nature and tendency of inflammation, so as to both use and ccn-
trol it in the treatment of surgical cases, is more important.
The unfortunate results that so often arise in surgical cases, fre-
quently depend upon a neglect or misunderstanding of the gen-
eral inflammation, and that of the part affected, both before and
after the operation. It should not be put aside for the showy
and imposing parts of the practice, which are too apt to lead the
student, in particular, in that direction, to the neglect olj nut only
inflammation, but other things, in which, with the correct treatment
of inflammation, consist the true glory and usefulness of" the pro-
fession. A distinguished surgeon has said, ''Not to cut, but
cure, should be the motto of the surgeon.'"
The great operations are but seldom performed by the sur-
geon — the great mass of operators never performing one of the
first class — while the common accidents are of daily occurrence,
in the treatment of which the minor handicraft of the profession
is constantly brought into requisition. In the exercise of these
duties properl}^, the necessity of. great operations is avoided.
How nmch better to substitute simple remedies at the right time,
applying the principles of hygiene to the general system — that
the disease may be, in its origin, controlled, pain and danger
avoided, health and comfort restored — than by the neglect of
these, encourage severe and bloody operations. While the sur-
geon should be read}-, at a moment's warning, to amputate, in a
skillful manner a crushed limb, which obviously can not be saved,
by reason of the extent of the injury, and for want of vitality ;
which, if left, must inevitably take with it the body, and thus
succeeds in saving life, he has just gi-ound for self-congratulation,
and may well be proud of his art, and say that an important
thing his been done. But when, in the case of an injury less
severe, there is a doubt whether or not the limb may be enabled
50 MALPRACTICE.
to resist the threatened gangrene — when he hesitates not to give
the patient the benefit of that doubt — when, by great patience,
care and skill, he arranges the mangled fragments of bone, con-
tused nerves, muscles and torn blood vessels, in their proper
places, retains them by proper apparatus, affording due support,
and without too much pressure, regulating the play of the gen-
eral circulation, controlling the intlammation, assisting the eflbrts
of the vis vita', thus averting both local and general disaster, and
bringing the healthful action of the system to complete, though
it may be slowly, the process of cure; and when, ultimately, a
thorough and permanent success crow-ns such patient and anxious
labors, surely there is nuieh greater cause for being proud of his
noble profession, while his own reputation, in the estimation of all
the intelligent, has been raised a hundred fold. A discerning
public will not Ikil, in the end, to award a higher and truer meed
of praise in this case than the Ibrmer.
The progress of surgery has been, and ever will be, character-
ized by a corresponding decrease of its operations, both in
amount and severity. The highest qualification of a surgeon con-
sists in such a knowledge of all the resources of this important
department of medicine, as will enable him to weigh and deter-
mine, with a high degree of certainty when called to step between
life and death,— between deformity and beauty — in his own scale,
all the circumstances of the case, and to rightly determine, at
once, whether there shall be the stern appeal to the knife, or
whether the application of milder means will not bring about a
happier result, — the restoration of the patient to health, with a
perfect body. The knowledge which determines the necessity of
a severe operation, is far more valuable and fiir more difficult of
attainment, than that mechanical knowledge which will qualify
the surgeon to [)erform it, after the important question as to its
absolute necessity is settled. To determine the first — as to the
necessity of an operation — the best qualities of the mind and
heart are called into operation, in thoroughly analyzing all the
element? that enter into the case — the vital forces involved in
NECESSARY KNOWLEDGE. 51
the economy — the condition, mental and physical, of the patient,
etc., and in arriving at a true and safe result.' lie must have
self-possession, judgment, honor and independence — attributes
that should carry him above those influences that would render
him an instrument in the hands of others less competent than
himself to foretell the consequences of a rash a^ipeal to an un-
warranted and dangerous operation, for the glory of it. "The
surgeon is the agent through whose instrumentality are carried
into action the highest principles of scientific medicine — princi-
ples demanding a knowledge of the soundest anatomy, physi-
ology and pathology. He wields a power more grand, more
critical, and, at the same time, more terrible to humanity, than
the practitioner of any other branch of the profession of medi-
cine. The ordinary physician's authority and prestige is, indeed,
Umited, when contrasted with that of the surgeon ; his daily
routine seems dull and tedious, while that of the surgeon, when
legitimately exercised, is bold, startling and alarming : the errors
of the physician are not, in general, dangerous, while those of the
surgeon are fatal. Life and death hang suspended on his eflibrt.
Health, recovery, death and deformity are the issue of his hand."-
To be a complete master of anatom}^, physiology and pathol-
og}^, is indispensable to the surgeon, when we consider him in
his tri-fold office of using the knife and other instruments,
reducing dislocations, or adjusting and managing fractures.
There never was a more general or more baseless and ridicu-
lous delusion than that some persons are born natural surgeons —
" natural bone-setters." It has bven but a very few years since
it was thought necessary to go fifty miles, in case of a disloca-
tion or fracture, after one of these celebrities. Even at this day,
in some parts of the country, this error still prevails. It is a
remnant of the almost universal belief, anciently, that " la medi-
cine est venue immcdiatenient de Dieu^ What is said in Eccle-
' Miller's Practice of Surgery, pages 20, 21.
2 Skey's Operative Surgery, p. 6.
52 MALPRACTICE.
siasticus was taken literally, viz.: ''God created the physician and
the physic, and that he giveth science to man, and that 'tis he
that healeth man," etc.^ Importance was given to this class of
surgeons when, in fact, there was no surgery. Not over two
hundred years ago was it that surgery assumed a true and definite
shape; even within that time, the treatment of the most simple
incised wound was cruel in the extreme. Instead of bringing
the edges of the wound together, for the purpose of union by the
first intention — as is the practice at the present day — the wound
was opened and filled with di'essings, acid balsams, tents, ashes,
sugars, leaden tubes, etc., to force the wound into a painful suppu-
ration, which was considered necessary to a cure. When a part
was nearly or partially severed, instead of being united, it v/as
cut away, even to every flap of skin ; every open wound was
plugged up, lest it should heal. Tents, seatons, leaden canulas
and strong injections, were among the chief implements of sur-
gery. The lips of a wound must not be put together. If the open-
ing was not large and free, it was the rule to dilate it, but never
wilh a knife : it was torn open with a sort of forceps ; thus the
most simple wounds were forced into sloughing ulcers. Long
tents were thrust into the wounds of the neck and face until they
were extended enormously. Compound fractures were treated by
thrusting the dressings between the ends of the bones.
At one time, all wounds were treated by the process of sucking.
In the army the drummers were the suckers. When a duel was
fought — which was very common two hundred years ago — each
party would take with him his sucker. His skill consisted in
immediately applying his mouth to the wound, and continuing to
suck and spit out the blood until it .stopped, when he would chew
up a wad of paper and introduce it into the wound. Surgery
has, therefore, but just emerged from barbarism and superstition ;
yet it has made gigantic strides within the last few years. With
equal progress for the balance of this century, and other shades
^ Ecclesiasticus, xxxvi : 12.
NECESSARY KNOV^XEDGE. 53
of chicanery and deception, that still embarrass the art, will be
swept away.
This desired result will be attained by the maintenance of a
high standard ol" anatomical, physiological and pathological
knowledge in the [)rofession; and when this is not found in a suf-
ficient degree in the practitioner to insure safe and thorough
treatment to the patient, the party should be brought to answer
for any evil resuus of such ignorance, in a court of justice, where
no amount of credit will be given to natural bone-setters, or any
other class of pretenders for intuitive knowledge, aside from com-
mon sense.
No man can become thoroughly acquainted with the science
of anatomy without practical dissections on the subject. He
may be a good theorist without it, but he can not be a ready,
practical practitioner ; and ho will be very liable, at some stage
of his life, to be awakened to his defective education, by having
to respond, in damages, for Malpractice. It being essential to
the surgeon to understand anatomy — and it being impossible for
him to o})tain that necessary knowledge without access to the
subject for dissection — it is evidently wrong for a Legislature or
a court to punish the ignorant surgeon, if it has thrown around
the dead body, in ail cases, such barriers and penalties as will,
in effect, prevent dissection, by placing the materiel beyond his
reach.
The court should either permit the student of medicine and
surgery to obtain all the subjects they may require, under proper
restrictions, which need not at all cut ofl* a supply from the light
and proper quarter, or it should cease to punish those who are
guilty of Mal[>ractice, by reason of the great dilliculty in obtain-
ing subjects for dissection. There is not a la v>'yer, judge or juror,
who would not rather have a surgeon attend him, in case of a
fractured leg, who he knew had thoroughly examined and stud-
ied ail the parts, injured and uninjured, on the dead subject, even
if he knew such surgeon had to steal the subject upon which he
obtained his knowledge.
54 MALPRACTICE.
Why, then, will this influential class throw the least obstraction
in the way of the student's obtaining, in a proper manner, all the
subjects necessary ? It is a matter of congratulation that a great
change has transpired on this subject within a few years, among
the more intelligent; and the prejudice so general not long ago,
is in many places giving way, and all the facilities necessary
are afforded for obtaining matenel for dissections to the student of
anatomy ; still, in many places, it is almost an impossibility to
obtain such matenel without running a risk of property, liberty,
and even life.
A correct and thorough knowledge of physiology and pathol-
ogy, is also based upon dissections. Plates and books do not,
and it is impossible that they should, make that clear impression
upon the mind, that the examination of the natural parts will
leave : being seen by the eye, and examined under the micro-
scope, the effect is lasting.
The foregoing remarks are designed more particularly for the
legal profession. Their truth is well understood by all intelligent
medical men.
See Appendix, page 587, for full Notes on this Chapter*
CHAPTER IV.
MALPRACTICE FROM AMPUTATION.
Nine-tenths of all the cases of Malpractice that come before
the courts for adjudication, arise either from the treatment of
amputations, fractures or dislocations. It becomes necessary,
therefore, to examine these subjects, to ascertain if possible, why
it is, that in these particular departments, the surgeon is so liable
to encounter litigation, and also to determine what he can be
justly expected to do, and what may be impossible for him to
accomphsh.
The latest and ablest surgical knowledge, as held, illustrated
and practiced by those who are best acquainted with the present
state of the science, must be appealed to. They are the acknowl-
edged judges of the practicable and the impracticable, in the
practice of surgery. The members of the legal profession, ab-
sorbed, as they are, in the study of their own infinite field of
investigation, belonging to their own great science, have not
turned aside to explore another — the m.edical — equally inter-
esting and important ; but this they must do, if they would pre-
pare themselves to mete out justice, both to the ignorant patient
and the enlightened and honorable physician, or surgeon, and
follow the dishonest charlatan, or the recklessly ignorant quack,
with the merited penalties of the law. The standard of ordinary
skill, which is required of eveiy physician and surgeon, it will be
borne in mind, is that degree and amount of knowledge and
science, which the leading authorities have pronounced as the result
of their researches and experience, up to the time, or within a rea-
sonable time before the issue or question to be determined is
made. It is not enough for a surgeon to plead that his treafc-
(55)
56 MALPRACTICE.
ment was that tanght him by the ablest members of the profes-
sion, and the best schools twenty-five years ago; because, in a
science that is advancing with the rapidity of medicine and sur-
gery — that is, by observation and experience, yearly, and almost
daily, correcting errors in practice, and abandoning hoary-headed
theories, the lallacy of which has become apparent, upon which
the practice has heretofore been based — that is receiving auxiliary
agencies from all the rapidly advancing sister sciences, — there will
be new facihties allbrded in practice year by year, and errors
constantly exploded. The authority, therefore, that was at a pre-
vious daj'' considered good, and upon which the courts acted, may
not, at this time, be admitted as the present standard of knowl-
edge required of the physician and surgeon.
In no department of surgery, perhaps, has there been a greater
change and advancement in treatment, than in that of amputa-
tions. An amputation that would have been justified by the
rules of surgery, and the operator protected in court, twenty-five
years ago, or even within less time than that, would now be repu-
diated by the best authority, and the operator justly chargeable
with ignorance and unskillful ness.
Old physicians and surgeons can not, therefore, rely with safety
upon their elementary education, and what they may have learned
in practice. It is absolutely important, for the protection of
the patient as well as of the surgeon, if he assumes the respon-
sibility of performing an operation fraught with so great interest,
that he should make use of every reasonable means of knowing
what is considered the best treatment at the time of the opera-
tion — not what would have been the proper course twenty years
ago.^ A medical man can not, with any safety or propriety,
practice, year after year, without keeping himself informed as
to the improvements of his science, especially if he practice
surgery, involving amputations, from which so many law suits
result, and which are so fatal to the patient.
1 McCandless v. McWha, 22 Penu. 269.
MALPRACTICE FROM AMPUTATION. 57
The surgical statistics of Malgaigue, Lawrie. Simpson, Phillips
and others, show that nearly one-half of the patients in the
severer forms of amputation die; thus completely showing the
great severity and danger of the operation, connected, as it is,
with original disease, or shock to the general system.
So valuable is a leg or arm to its .possessor, that nil the cir-
cumstances attending its loss are always critically, and often
savagely, reviewed, as soon as relief from pain and danger will
permit ; and in proportion to the consequences involved, is the
subsequent danger of trouble to the surgeon. Amputations are
now much less frequent than formerly, and the true surgeon is
beginning to understand that there is more honor and skill dis-
played in saving a limb than in cutting it ofli He is impressed
with the fact that the dismemberment of a limb is his last re-
source, and an evidence of his weakness — his inability, by the
resources of his art, to save it.
The change that has taken place on this subject, and the true
doctrine at present, is so clearly and truly set forth by a very
eminent surgeon of England, (Mr. Skey,) we quote what he has
to say upon the subject. He says : " Strange is it, that this
power of mutilating the human form — of incapacitating the indi-
vidual for a large number of the duties of life, and of estranging
him from former occupations, which, in some form or other, alien-
ates him from the society, from the amusementSj at least from the
pursuits of his fellow-men — should be classed among the most
triumphant deeds of the operating surgeon, while it practically
illustrates, at the expense of his patient, the puverty and the
incompetency of his art. There is no operation in the whole
range of surgery, compared to that of amputation, that should
claim the previous exercise of an equal amount of skill, of
patience, or the decision on which demands so large an amount of
conscientiousness. The most experienced are yet students. As
years roll on, cases of improvement occur in our history, which
teach us that the advanced knowledge of this year would have
rendered unnecessary the operation of the last. Within my own
58 MALPRACTICE.
recollection, the operating theater of St. Bartholomew's Hospital
was the scene of weekly mutilations of the frame by the knife, while,
at the present day, a little more than a quarter of a century, such
operations are reduced to less than half of their former number.
Whence this improved and improving condition of the pauper
occupants of this single hospital ? In the advance of scientific
knowledge — in the increased power of contending against dis-
ease — in a fuller reliance on nature's power and dis[)osition to
cure it ; in other words, in a higher-classed surgery ; and, I may
add, in an advanced sympathy with the sufferings of humanity ;
and not the least in this category, is the newly-acquired rank of
curative surgery, which has all but exploded ihe false eclat inci-
dental to the functions of the operating surgeon, recklessly re-
sorted to on all occasions, having a show of reason. The most
discreditable operation in surgery is an amputation. It might
almost be expected that dexterity in its performance implies a
frequent, and, if so, an unnecessary resort to it. The important
fact should be ever kept in mind, that there is no uniform standard
of curative power : a limb that is amputated in one institution is
preserved in another. Experience in the treatment of disease,
greater care, a patient watchfulness, a high-minded humanity,
which identifies the sufferings of others with our own — these are
the resources of the first-rate surgeon, and the safeguard of the
patient. How often do we lose sight of the necessity of an am-
putation in the dexterity of its performance, and forget the suf-
fering and deprivation of the patient, in our admiration of the
manipulative skill of the operator ! A decision on the question
of amputation of a hmb, in a large number of examples, de-
mands the exercise of the very highest resources of surgical
skill ; and there is, to us, no better evidence of the high stand-
ard of surgical superiority, in any institution, than the unfre-
quency of the resort to amputation.
The operation of amputation is resorted to both in the case of
injury and of disease; and in both, the removal of the limb is, at
the present day, comparatively rare. The resources of an im-
MALPRACTICE FROM AMPUTATION. 69
proved art are successfully applied to the treatment of disease;
while we are taught by experience and by reason to place a fuller
reliance on nature for the cure of injury. Let us hope that we
have not reached the final goal of our improvement, but that we
rather extend our confidence yet further in the resources of
nature, trusting that the advancing knowledge of the present
enlightened age may yet tell profitably for the unfortunate vic-
tims of disease, hitherto deemed incurable, and hmit our resort
to an operation, the frequency of which has ever stamped the
records of barbaric surger}-, and which } et exists as the oppro-
brium of the art. Let us not forget that the aim of surgery is
to preserve, and not to destroy ; and that more real superiority is
exhibited in the successful application of skill that retains a limb,
than in the dexterity, however great, with which it is severed
from the rest of the body.
In order to justify an amputation, whether of a part or of the
whole of a hmb, the question of recovery by other means must
be placed beyond all reasonable doubt. Every resource compat-
ible with the means of the patient, should be exhausted ; and a
consultation with one or more eminent surgeons of the neighbor-
hood be held; and in the case of the proposed removal of a
limb, the necessity of this final crisis should be clearly estab-
lished. Then, and not till then, should amputation be resorted
to. Presuming that every expedient that skill can suggest
has been adopted, and without success, the amputation may be
performed.
It is not intended, however, in any remarks that have been
made, to underrate the importance of this operation, to which
thousands are indebted for a prolonged life of activity and use-
fulness to their fellow-creatures, or to undervalue the dexterity of
its performance; and so long as these pretensions to a superior
merit follow in their legitimate position, the higher attributes
which should ever attach to the curative power, they may be,
unhesitatingly, acknowledged to be not only valuable, but to be
indispensable to the reputation of a first-rate surgeon.
60 MALPRACTICE.
Amputations are requisite to preserve life from the conse-
quences both of disease and injury. Any disease that is incur-
able, and the presence of which in the system is a source of
such evil or discomfort as to render the loss of the hmb desir-
able or beneficial to the patient, fully justifies the operation. It is
important, however, to distinguish between the warrant of a neces-
sity emanating from physical, and that from inoi'ol causes.
The latter, known under the term amputation of expediency —
in the French school, amputations de complaisance — are justly
regarded with an eye of doubt and suspicion, and should be un-
dertaken with much hesitation.
Under examples of disease, resort is had to amputation of a
limb incases of incurable disorganizations of joints, in gangrene
of the extremities, in malignant growths or tumors, in copious
hemorrhage, the source of which can not be discovered, in exten-
sive necrosis of bone, in a constitution reduced to a state of
great weakness; and occasionally in incurable diseases of the
skin. In fact, it is resorted to in any form of disease of the
extremities, which, being either very difficult or impossible to cure,
draws so largely on the circulation, and hence on the nervous sys-
tem, as to endanger the present or future health of the person thus
affected. In examples of injury from violence, it is proper to
resort to amputation in severe compound fractures, in greatly
comminuted fractures, in which the limb has been crushed under
the application of a heavy weight, and in extreme cases of irre-
ducible dislocations, and, lastly, in distortions, comprising opera-
tions of expediency.
It may be well to analyze these various forms of apparent
warrant for amputations.
First, with regard to the disease of a joint, the most important
question that arises, is that of incurability. This fact must be
clearly established by incontrovertible evidence; every means
and appliance that science and art can command, should have
been exhausted, without permanent benefit to the afflicted joint,
unless there was immediate danger. The judicious resort to
MALPRACTICE FROM AMPUTATION. Gl
absolute rest, local depletion, proportioned in quantity to the
strength of the person, counter-irritation, in its various forms,
local vapor baths, must have failed to mitigate the evil. Dis-
ease has so far triumphed the joint is destroyed, suppuration has
been established within its cavity, the ligaments have separated
from the bone, the cartilage is partially or wholly absorbed, and
the ends of the bone palpably grate against each other. Is this
condition of the joint a warrant for amputation, without further
reliance on the resources of nature ? Certainly not. Joints are
especially sensitive to the consequences of injury or violence, so
long as they possess, and can exercise the prerogative of health.
The joint, destroyed by the absorption of its cartilage and the
separation of its ligaments, no longer possesses such powers;
and though lost forever as a movable articulation, may still retain
a useful existence as an immovable one. Its peculiar suscepti-
bility being exhausted, which in health renders the exposure of
its cavity at all times dangerous, the cavity, distended with puri-
form, or whey-like fluid, should be opened by a free incision into
it, and the contents evacuated. Tracfcibility of the diseased
actions will often follow^ this comparatively simple expedient,
and the limb be saved. This operation has, on sundry occasions,
been performed with great advantage, where it has been deemed
advantageous and proper to try and save a limb that would
otherwise have been removed. In the year 1838, the leg of a
young woman was about to undergo amputation, on account of
a disease of the knee joint, of many months' duration. She had
suffered a good deal of pain while the diseased actions were going
on in the joint, and no doubt was entertained that the cartilage
was destroyed ; obscure fluctuation was felt on each side of the
patella. I requested permission to take charge of the case, and
passed a lancet into the joint, on the inner side of the patella,
through w hich about an ounce of whey-like fluid escaped, greatly
to her relief from suffering. Within a week I made a second
opening, with the same result, and this I repeated six or seveo
times ; all pain then subsided, anchylosis followed, and the girl
62 MALPRACTICE.
left the hospital, at the expiration of six months, with a stiff
knee, but with a useful limb. The same result followed this
treatment, in the case of a man I attended with Mr. Lobb, of
Aldersgate street, whose knee had been previously condemned
to amputation.
Mr. Gay has also adopted this practice, with considerable suc-
cess, in several joints, in the knee, the ankle and the elbow. All
these cases consisted in a diseased condition of the synovial
membrane, with abscess, such as, indeed, would formerly have
appeared to justify the question of amputation. In each case
large incisions were made into the joint with perfect success, and
anchylosis was the result.
Matter, penned up within the joint, is a source of great irri-
tation at all times, and although its presence would, perhaps,
hardly justify the indiscriminate resort to puncture — for I am
by no means convinced that the process of recent suppuration is
incompatible with perfect recovery of the articulation — yet in
the last stage of the disease, in which the joint is thoroughl}^ dis-
organized, there can be no valid objection to the adoption of this
treatment, for it is obvious that no harm can accrue to the struc-
ture of a joint, an incision into which would be in no greater
degree injurious than in any other region of the body. I be-
lieve that a free incision may be often made with advantage, even
when matter is not penned up. The size of the incision into the
cavity of the joint should depend on the more or less advanced
condition of the disease. In early suppuration, especially if the
result of accident, or consequent on the removal of loose car-
tilages, of which I have seen several recent examples, a mod-
erate-sized opening will suffice.
Grating of the opposite surfaces of a joint is often urged as an
excuse for removing by amputation. But the destruction of the
cartilages, although one stage in the diseased actions, advancing
toward disorganization, is equally to be regarded as a condition
essential to recovery by anchylosis, and, if taken by itself, forms
no justification at all for removal, to say nothing of th^ possi-
MALPRACTICE FROM AMPUTATION. 63
bility of the subsequent investment over the surfaces of the bone
of ivory deposit, as it is called.
In recommending the frequent adoption of this practice, prior
to amputation, for diseased joints, I am aware that I may be met
by objections, founded on the prevalent opinion, that the strumous
afiection of the joints, to which the term white-swelling is ab-
surdly applied, (in deference to an antiquated pathology,) is in-
susceptible of the adhesive action we term anchylosis.
But I am acquainted with no evidence that warrants this con-
clusion, supposing pains be taken to remove all sources of local
irritation, and to invigorate the system ; though 1 do not pre-
tend to say that such cases give promise of success with the
former. I have unbounded faith in nature's own resources, and
in her good will to remedy the ill consequences of disease ; and
I have no doubt that, under circumstances not unfavorable, a
sufficiently strong union by anchylosis, or by a fibrous substi-
tute, would reward the surgeon for his experiment.
With these considerations before us, I may venture to con-
clude that the amputation of a limb for a disease of a joint ought
to be deemed a rare operation, and, more especially, when disor-
ganization has resulted from synovial disease.
Secondly. In the case of gangrene of a limb, amputation is
occasionally resorted to. In the dry gangrene of old age, the
early resort to removal by the knife is contra-indicated by the ex-
perience of all good surgeons : the very nature of the disease pre-
cludes the hope of recovery from the operation, if performed
during the period of progressive advancement. Under these cir-
cumstances, we have no alternative but that of waiting the grad-
ual separation of the dead parts, and then sawing through the
bone, and making the best stump compatible with the difficulties
of the case. Should, however, the diseased actions subside, and
give place to a regenerated power in the circulating system of
the extremity — indicated by a positive separation of the dead
from the living parts, and by the presence of healthy granula-
tion — there can be no objection to the operations. These objec-
64 MALPRACTICE.
tions to the operation do not, of course, apply to that form of
gangrene resulting from traumatic causes, in which all the struc-
tures of the hmb are involved, and in which the circulation is
vigorous, and competent to the adhesive process.
Thirdly. The same remark may be made in cases of malignant
diseases; in many forms and localities of which, with such
tenacity do they cHng to the system, once invaded, that a ques-
tion might be raised as to their expediency, especially if evi-
dence be found on inquiry, of the existence of disease about the
trunk ; unless the disease be entirely insulated by amputation, at
a distance above it, and often if apparently insulated, the opera-
tion will prove futile. The discovery of chloroform is, perhaps,
the best justification.
Fourthly. Copious hemorrhage, the sources of which can not
be discovered. This description of injury was Ibrmerly the fruit-
ful source of amputation of a limb, which has happily been
rendered a rare occurrence, consequent on a more intimate ac-
quaintance with the relative anatomy of the arterial system.
Modern surgery presents so many resources, even beyond that
of tying the wounded vessel, that the highest discredit would
attach to any surgeon, at all familiar with the use of the knife,
who should resort to the removal of a limb, before he had ex-
plored ?nd examined every possible source of hemorrhage. Still,
we can not contend against the evil consequences of the irregular
distribution of vessels ; and should hem.orrhago continue in such
a case, after the main artery of the limb was tied as closely as
possible to the place of injury, and in spite of pressure and posi-
tion, then, undoubtedly, we may be justified in resorting to am-
putation.
Fifthly. Extensive necrosis of bone in a greatly weakened
constitution. It is not easy to imagine a case of necrosis, at the
present day, th.it would justify the amputation of a limb ; be-
cause, if a patient be so greatly reduced to a condition of weak-
ness, as to preclude the direct removal of the dead bone, a fortiori,
he can not be in a condition to justify amputation. The resort
MALPRACTICE FROM AMPUTATION. 65
to amputation, in cases of diseased bones, has become still more
rare since the intioduction of chloroform, which has exercised a
most beneficial influence over the treatment of this and all sim-
ilar diseases. Patients formerly lay in our public hospitals for
six or nine months, or longer, for the purpose of undergoing the
process of removal of the dead bone by internal agenc}', who
now, under the influence of that invaluable agent, are biought at
once to the operating theater. In the course of last summer, I
removed a considerable piece of the tibia from a patient in St.
Bartholomew's Hospital, who, I believe, prior to the introduction
of chloroform, would have occupied a bed for many months, be-
fore he could hope to have been in a condition to have resumed
his occupation.
Sixthly. Ulceration of the skin, under circumstances of pecu-
liar obstinacy, have occasionally appeared to warrant the recourse
to the amputating knife. In such cases it would, I conceive, be
more consistent with scientific surgery to cauterize the surface,
than to amputate the affected limb : better to expose the mus-
cles to the chance of their consequent destruction, w^ere that
necessary, than to remove the disease by amputation.
Seventhly. Perhaps the most frequent warrant for the ampu-
tation of a limb is that of severe compound fracture, or other
form of local injury, by which its structure is so extensively torn
or destroyed, or likely to be destroj^d, in the necessary conse-
quences of the injury, as to point to the great probability that
the constitutional powers of the individual will fail in the contest
and death result. Under such circumstances we take off the limb.
Unhappily, however, we possess no certain gauge for vital power,
and we can arrive at no certain knowledge of the full extent of
the injury done ; yet, it must be allowed, that limbs are preserved
at the present day under frightful injuries, that would have been
formerly amputated without a moment's hesitation. It would be
needless to attempt a general rale, unless we could obtain a per-
fect knowledge of the extent of the injury ; and this is often
impossible. Scarcely any amount or form of fractuied bone,
66 MALPRACTICE.
alone, would justify the immediate resort to the knife, if taken
singly, even supposing the bone fractured extensively into a
large joint, for, in such a case, although anchylosis of the joint
would probably occur, it would prove a lesser evil than that of
amputation. Superadded to a compound or comminuted fracture
of bone, the injury may be rendered yet more serious by the
extensive laceration of the muscles. In considering this latter
condition, much will depend on the kind of laceration — whether
the muscles are merely cut asunder, or whether contused and
torn; and whether this injury involves a few only, or a majority
of the muscles of the limb. Again, we must examine with great
care the condition of the vessels. Is the main trunk whole, we
might ask, in the supposed case of fracture of the thigh ; or, in
that of the leg, is the posterior tibial artery torn? This artery
may generally be felt by careful examination behind the mal-
leolus internus. Is the anterior tibial involved? The dorsal
artery of the foot is generally perceptible. Is the limb colder
than its fellow ? Is the temperature considerably lower than the
rest of the body? If so, probably one or more arteries are
divided. What is the condition of the nerves ? Does sensibility
extend to the toes? If not, probably the nerve is divided also.
Under such circumstances, we may obtain a better ground for
forming a judgment on the issue, by making a slight extension
of the limb, and by replacing its lacerated structures in some ap-
proach to their natural relations. If the evidence of the integ-
rity of both artery and nerve yet fail, and the sinking tempera-
ture of the limb and the loss of sensibility continue or increase,
we have no alternative but amputation.
Human nature is never without its weakness. The judge
u[)on the bench has his prejudices and his leanings, for human
judgment can never become perfect ; and so it must happen in
the balance to be weighed by the surgeon, between retention and
amputation of a limb, that some gi'ain of self may be involved.
This weakness is not discreditable to the individual, but to the
species.
MALPRACTICE FROM AMPUTATION. 67
The eclat of an operation, the natui-al and commendable desire
to do great deeds, the desire to avail ourselves of the opportunity
of instruction to others, or the still more commendable motive of
insuring recovery, by a hasty sacrifice of the integrity of the
frame; these, and various other agents, are unconsciously inter-
woven in the decisions of the surgeon, as to his conduct and
management of a case. If against such influences as these, a
higher stiiudard of professional superiority were established as
our guide, based on the soundest physiology, and a yet sterner
view of the moral responsibility of our decision — if it should
ever become the boast of our profession, not that vre have ampu-
tated so many limbs, but that we have rescued so many from the
knife, then I can not but express my conviction that the resort
to this operation would be }'et more rare than it is even in the
present era of enlightened surgery.
If a doubt exists in the mind of the surgeon, on the necessity
of an immediate amputation, there is less objection to giving the
patient the chance of recovery, by postponing the operation,
especially in cases of injury that admit of subsequent amputation
below the knee, than in subjecting him to the consequences of
unnecessary mutilation.
Death is, comparatively, unfrequent in consequence of ampu-
tation below the knee ; while, to any ordinary mechanic, the loss
of a leg is as fatal to his future employment as that of a portion
of the thigh in addition. Mr. Abernethy entertained a strong
objection to amputation for compound fracture in the neighbor-
hood of the ankle joint. Possessing a greater than the average
confidence of the profession, in nature's power and good will to
cure it, Mr. Abernethy showed his own superiority, not in his
own greater curative power, but in his more profound insight into,
and reliance upon that of nature.
Much has been said about the necessity of immeiliate ampu-
tation after compound fracture, etc. The argument for this ne-
cessity is founded on the evil of a second shock to the system ;
but this principle, although good in the abstract, is often mis-
68 MALPRACTICE.
applied, and as often violated, even by what is called immediate
amputation. The principle originated from the surgical practice
of the battle-field, in which a wounded soldier is brought from
the ranks and placed under the hands of the surgeon, either im-
mediately or within a short time of the occurrence of the wound ;
but the case is diiferent, both in private and in hospital practice,
in which some hours from the period of the accident may elapse
before the arrival of the surgeon ; and I am inclined to believe
that, for the most part, the condition of a person with severe com-
pound fracture is as favorable for amputation after the expiration
of thirty -six, or even forty-eight hours, as at the expiration of three
or four. The principle itself is sound, if strictly obeyed ; but its
rigid observance is incompatible with the ordinary duties and
occupations of the surgeon, whether in private or in hospital
practice; and 1 consider that the postponement of all doubtful
cases of severe injury to one or two days' experiment, is more
consistent w'^b the principles of a higher-classed surgery, than
the loose jedience to a law, which, however abstractly good, is
incomp.iiible with the necessary requisitions of professional life.
This argument obtains additional force from the fact that the
error, if any, is committed on the side of humanity.
Eighthly. V7e may be compelled to resort to amputation in
extreme cases of irreducible dislocations ; but to justify the ap-
peal to the knife, every means should have been exhausted, both
ordinaiy and extraordinary. The failure of the usual means of
extension, should only dictate the resort to unusual means. We
must sacrifice the joint for the sake of the limb, as we sacrifice
the limb for the preservation of life. The joint should be care-
fully surveyed, for the purpose of ascertaining the nature of the
dilHculty and its precise locaUty. Anatomical knowledge of the
joint is here invaluable. The cause of these difficulties in the
reduction usually depend on the displacement of some partly-torn
ligament, or tendon, distorted from its course during the acci-
dent, but far more generally on the former. Whatever be the
obstructing agent — be it ligament, be it tendon, or be it muscle —
MALPRACTICE FROM AMPUTATION. 69
it should be divided by the means of a fiiie-bladed knife, passed
down to it. If necessary to this important object, the skin
should be dissected off, to an extent sufficient to expose the
cause of obstruction ; but this, of course, is better avoided, if
possible. If this principle be fully carried out — if the surgeon
resolve to sacrifice the joint, or rather to risk the destruction of
the joint, as a movable articulation — amputation will be rarely
resorted to in cases of irreducible dislocation.
Wilh regard to operations for distortion, etc., or operations
of expediency, as they are somewhat inappropriately called,
I have only to remind the readers that they are oiten followed by
serious, and even dangerous results, as, indeed, are ail large opera-
tions, performed during a condition of the nervous system un-
prepared for the shock, that they should rarely, if ever, be
recommended, and not always resorted to on importunity."^
So important is tlie subject of amputation considered, as con-
nected with Malpractice, that the views of one of the ablest and
most successful of British surgeons have been here given at con-
siderable length. The statements are so clearly and compactly
expressed, and at the same time so true, that they can not fail to
place the subject in its true Hght. The line is drawn in so dis-
tinct a manner, all physicians, surgeons and lawyers, can at once,
from the rules laid down, see some of the reasons for, or the im-
proprieties (liy an operation of this magnitude, when the facts are
once fairly before them.
Unskillfulness can not be charged upon the surgeon who fol-
lows these highly humane, enlightened and [)rogressive views.
It is an easy and tempting matter ti) perform heavy operations
like amputations. The surgeon has, therefore, much reason to
be cool, cautious and deliberate, on such occasions, remembering
that it requires more ability and medical skill to save a limb than
to cut it off; as it requires a higher degree of legal knowledge in
a lawyer to gain a diificult case than to lose it.
^ Skey's Operative Surgery, page 291.
70 MALPRACTICE.
Although this is so plain, upon reflection, it is still almost the
universal sentiment, that he who has amputated a limb is a better
surgeon than he who has, by assiduity, patience and skill saved
one ; and the former is not so likely to be followed by a law suit —
though he does not always escape — whether right or wrong, and
will realize, generally, an extended practice, by reason of the bold-
ness of his operation ; while the latter is in danger of litigation,
without the benefit of a reputation, should he escape an action
for damages.
ADJUDICATED CASES.
The reported cases on the subject of Malpractice are few, as
they but seldom reach the Supreme courts.
A leading case, on some points connected with amputations,
may be found in Howard v. Grover.^ This was one of the cases
against the defendant for alleged Malpractice as a surgeon, and
was tried upon a plea of the general issue, Whitman, C. J., pre-
siding, at the November Term of this Court, 1847. The jury
returned a verdict in favor of the plaintiff, and assessed the dam-
ages at $2025.
The defendant moved for a new trial, because the damages
were excessive, and because the verdict was against the evidence.
The defendant afterward filed another motion to have the verdict
set aside, because he had, since the verdict was rendered, discov-
ered new and important evidence, the existence of which was
unknown to him at the time of the trial, to wit : That the perios-
teiim would reproduce itself
The testimou}'^ given at the trial was all reported, and certified
to be a true report by the presiding judge.
The motions were argued by Coclman, for the defendant ; and
by Howard '^ Shipley, for plaintiff.
The counsel for the defendant cited Rev; Stat. c. 12.3, sec. 1 ;
17 Pick. 471 ; 12 Johns. R. 234 ; 3 Pick. 385; 4 T. R. G87;
5 Taunt. 280.
» Howard v. Grover, 28 Maine R. 97.
ADJUDICATED CASES. 71
For the plaintiff were cited the following : 17 Maine R. 247 ;
Cowp. 230; 2 Wils. 244; 4 T. R. 687, ciied for defendant; 3
Pick. 113 and 379; 7 Pick. 85; 9 Johns. 45; 9 Wend. 470;
16 Maine R. 187 : 22 Maine R. 252.
The o[)inion of the court (Shipley, J., concurring only in the
result.) was drawn up by
Wells, J. — This case was tried at the November Terra, 1847,
and a verdict was rendered for the plaintiff for ^2025. The de-
fendant was charged with Malpractice as a surgeon ; and he moves
for a new trial because of the discovery of new evidence, and of
excessive damages.
The gentlemen, by whose testimony the alleged newly-dis-
covered facts can be shown, all resided in Portland, where the
trial was had. No measures were taken to procure their attend-
ance. By the use of ordinary diligence, the defendant could
have ascertained the facts to which they are able to testify. If
his knowledge of surgery was less extensive than theirs, by in-
quiring of them, the information which they possessed could have
been obtained. If any witness had stated that the pertosieum had
not the power of reproduction — although no .such evidence ap-
pears in the abstract furnished to the court — information on this
subject could have been presented by consulting works on sur-
gery, or the gentlemen by whom it now appears, such an error
could be corrected.
Parties are expected to exerf'ise due diligence in preparing
their causes and in producing testimon}^, and the omission to do
so does not lay the foundation for a new trial.
There is nothing in this part of the case, which would au-
thorize us in disturbing the verdict.
Are the damages excessive, to such a degree as to require
the interference of this court ?
It is always a delicate undertaking to set aside a verdict on
account of excess of damages, especially in case^ where the rules
by which they are to be measured are vague and uncertain. The
power to do it is recognized in many cases, to some of which we
72 MALPRACTICE.
refer : Chambers v. Caulfield, 6 East. 245 ; Coffin v. Coffin, 4
Mass. R. 1; Bodwell v. Osgood, 3 Pick. 379; Worster v. The
Canal Bridge, IG Pick. 541 ; Blunt v. Little, 3 Mason, 102,
which was an action for a malicious prosecution — the verdict be-
ing for $2000 damages, was directed to be set aside, unless the
plaintiff should remit ^500 of his damages; Wiggin lk Coffin, 3
Story's R. 1, which was also an action for malicious prosecution.
In the case of Jacobs v. Bangor, 16 Maine R. 187, it is said that
when there is no certain measure of damages, the verdict of a
jury is n^t to be set aside for excessive damages, unless there is
reason to believe that they "were actuated by passion, or by some
undue influence," perverting their judgment. It is unnecessary
to refer to that class of cases where verdicts, in relation to prop-
erty and injuries to it, have been set aside and new trials granted.
Honest and well-meaning men are liable to be led astray by
strong feelings of sympathy, arising from a narration of pain-
ful and protracted sufferings, and wdiile thus excited, often in-
flict upon the author of them a severer punishment than he
deserves.
It is not alleged against the defendant that he was ignorant
of the duties of his profession, or that he willfully and intention-
ally departed from them. It is true, that his conduct was not
guided with sufficient deliberation, and he rehed with a confidence
too strong upon his own judgment.
The plaintiff had been lame for several years ; his thigh bone
was diseased. It is not denied that, in 1843, an amputation was
necessary, to arrest the progress of the disease. In that year
the defendant performed two operations upon the plaintiff's thigh,
by amputation. The first was unobjectionable as to the place of
amputation, l)ut the bone was left protruded too far from the mus-
cular parts.
The gi'ound of complaint is, principally, for the second, that there
was an error in not cutting off the limb nearer to the body, and
want of care and skill in the mode of execution. But it is not
shown that the plaintiff sustained any material injury ; the mere
ADJUDICATED CASES. 73
mode of execution, although it did not accord with the most cor-
rect and careful [)ractice.
But as soon as the second amputation took place, it was ap-
parent that the bone was infected above the place of amputation.
The plaintiff could not then bear another operation. The caries
continued to increase in virulence, until the whole of the thigh
bone was removed from its socket, by another surgeon.
The alleged fault of the defendant consisted in an error of
judgment, in not removing more of the diseased limb. It is by
no means certain, that the removal of a larger portion would
have been efiectual. When the first operation took place, the
remaining bone appeared to be perfectly sound ; but in a short
time the disease manifested itself in such a fearliil manner as to
require a second amputation. It seems, therefore, highly proba-
ble that the whole bone was diseased, and that nothing short of
its entire removal would have saved the life of the plaintiff If
such was the fact, it was of little importance at v/hat precise part
of the limb, below the hip joint, the operation was performed ; yet
damages against him have been rendered, not because he failed to
remove the whole limb, but that he should have removed a few
more inches of it.
It was the inevitable fate of the plaintiff to be a cripple for
hfe, without any agency of the defendant. The want of judg-
ment of the latter may have protracted his sufferings, and caused
an increase of expenses and loss of time.
The defendant is not liable for a want of the highest degree
of skill, but for ordinary skill ;* and, of course, only for the want
of ordinary care and ordinary judgment.
The practice of surgery is indispensable to the community,
and while damages should be paid for negligence and carelessness,
surgeons should not be deterred from the pursuit of their profes-
sion by intemperate and extravagant verdicts. The compensa-
tion to surgeons in the country is small, in comparison with what
1 Sear v. Preutice, 8 East. 347 ; Chitty on Cont. 165.
74 MALPRACTICE.
is paid in cities for similar services ; and an error of judgment is
visited with a severe penalty, which takes from one a large share
of the surplus earnings of a long life.
We are constrained to believe that the jury must have been
actuated "by some undue influence," and that justice requires a
reduction of the verdict. But we have so much reluctance to
interfere with it, that we will allow it to remain if the plaintiff
will remit $500 of it. If this is not done, the verdict will be
set aside, and a new trial granted."
This case shows how far the courts have gone in holding sur-
geons responsible for errors of judgment merely.
The court admits that " the alleged fault of the deiendant con-
sisted in an error of judgment in not removing more of the limb ;"
and that " it is by no means certain that the removal of a larger
portion would have been effectual," and yet allows a judgment of
$1500 to stand against the defendant.
This case goes, in this respect, further than the authorities
warrant. After the defendant exercised a reasonable degree of
skill, under the guidance of an ordinary judgment — and it seems
he had more than an ordinary judgment, from his previous opera-
tion — he was not liable for the result, however unfortunate.
See Appendix, j^^g^ ^^^^ for fill Notes on this Chapter.
CHAPTER V.
MALPRACTICE IN FRACTURES AND DISLOCATIONS.
From the treatment of fractures and dislocations, have also
arisen a frightful brood of law suits. As in the case of amputa-
tions and dislocations, much error exists in the popular or unpro-
fessional miud, as to v.hat the surgeon can reall}' do in the treat-
ment of fractures. It has been generally supposed, 'A' the patient
is healthy at the time of the accident, then a perfect cure should
be the result, if the treatment instituted is proper. This is
another of the errors that has had a serious effect upon the pro-
fession^ being often the source of ruinous litigation.
The true prognosis of fractures has not been very thoroughly
understood, or at least, promulgated, by the medical profession
itself, until recently. Professor John Dawson, in a Report on
Surgeiy, to the Ohio Medical Association, says: -'Deformities,
shortening, etc., of course escaped the attention of no one Avho
had any experience in surgery; yet, strange as it may seem, only
an occasional hint, or some accidental remark with reference to
the subject, is the most that has been recorded. No attempt upon
any thing like an extensive collection of cases has been made, to
state what have been the usual results of fractures ; what propor-
tion of all the cases treated has been dismissed perfect ; what
proportion has left the hands of surgeons imperfect, with the
bone shortened, bent or otherwise deformed. When deformity
has followed the treatment of a case of fracture, attention — if the
trouble has occurred in the hands of an able surgeon, or in the
wards of a hospital — has been directed to an imagined or real
( "5 )
76 MALPRACTICE.
imperfection in the fixtures used for retaining the fragments in
place, and fulfilling that indication ; and when it has happened in
the hands of a practitioner of medicine, with an experience neces-
sarily limited, the fault has generally been laid at the door of the
practitioner, and he held responsible for the consequences. The
real questions — the amount of injury sustained, the prognosis in
view of this, and the imperfect means in the hands of the profes-
sion to restore order, impart primary symmetry — in short, to
m:»ke a perfect cure — have, by no means, received the considera-
tion to which they are entitled. It would not, perhaps, be right
to say that these important questions have been ignored; but it
is right to say that they have been neglected." He then very
properly acknowledges that the profession is greatly indebted to
Professor Hamilton for his labors in this field.
Fractures but rarely call for the use of the knife in their treat-
ment; yet the management of these injuries involves as many
important principles, difficuk in application, as where the knife
is used. The manipulative agency of operative surgery is brought
into active operation in the treatment of fractures; and if not
properly applied, the result may be deformity for fife — a deform-
ity, perhaps, accompanied with life-long suffering.
It requires less professional skill, as a general thing, in the
treatment of simple fractures, than of time, watchfulness and
patient labor. The principles governing these cases being usually
simple, the surgeon has but little to do in assisting nature, and
that by mechanically removing obstacles, and keeping the limb in
a position consistent with its anatomy and physiology. Nature
effects the cure here, as elsewhere, while art and science co-operate,
at an humble distance.
The necessary knowledge, for the correct and successful treat-
ment of fractures, as in other branches of surgery, is to be ob-
tained b}' not only elementary, but by the practical study of
anatomy ; and without it the operator gropes amid doubt, dark-
ness, and danger, to himself and patient.
While simple fractures, if not oblique, are not difficult in their
MALPRACTICE IN FRACTURES AND DISLOCATIONS. 77
treatment, the opposite is true in complicated cases, though called
sim[tle. When the joint is involved, or the osseous system dis-
eased, or when the fracture is oblique — especialh' in persons oi'
nervous and irritable habits — there is great difficult}' attending
the treatment, and the result will always be doubtful, and often
unfortunate, after the apphcation of tho greatest care and skiil.
Serious as are these complicated cases of simple fractures, they are,
after all, less formidable than what are called compound fractures.
To these ma}' be added all the complications that render simple
fractures so troublesome.
No surgeon who understands the difficulties of his prolession,
will fail to feel uneasy, if not alarmed and aroused, by the mag-
nitude of these injuries, w'hen called to assume the responsibility
of conducting them to an issue, both on his own account and that
of his patient.
From the low organization of the osseous tissue, the sensibility
and equilibrium of the constitution is but little disturbed, ordina-
rily, in simple fractures. The health not being materially affected,
there is but little inflammation, and no sup{)uration to interfere
with the simple union of the fractured parts. The only evil to be
encountered arises from the necessary restraint to which the
patient is subjected, incidental to the exact adhesion of the ends
of the fractured bones. Perfect as are the powers of nature,
they are insufficient in these cases, unless directed and relieved by
intelligent and persevering art. The surgeon, therefore, who,
with this duty devolving upon him, and surrounded with all the
advantages that favor his treatment of fractures, is without excuse
if he permits deformity to supervene and remain, tor waiit of due
care and attention, when nice questions, on controverted points,
do not enter ir.to the case, or peculiar difficulties attend it.
Much reproach has been cast upon British surger}'. whether
justly or nor we can not tell, because of the frequent occurrence
of deformity in the simple list of fractures — not only in priMite,
but in hospital ijractice. If this complaint is well grov.nded, it is
not to be accounted for in the want of surgical knowledge, in the
78 MALPEACnCE.
main — for England has produced, and still furnishes, some of the
ablest surgeons in the world — but in the fact that they neglect to
attend to the smaller and apparently more uniinportiint matters
of surgery. It is not in the management of gre it cases that
superior surgery is displayed, but in the common occurrences
which daily arise, as in simple fractures, do true knowledge and
skill become illustrated. Although but little may be called for,
still that little may be as important, in its bearing on the result,
as if the demand was greater. " Genius for our art may shine
out on great occasions," says one of England's ablest surgeons,
"' and brilliant devices contend against remarkable deviations from
health, but conduct is required of us all. The word conduct has
a wide interpretation ; it appeals to the application of the human-
ities of life, as well as the exercise of skill and industry in the
application of our best resources to the treatment of disease."
In holding the surgeon to a proper accountability in his treat-
ment of uncomplicated tiactures, it must not be Ibrgotten that,
not unfrequently, there arise cases of great difficulty and doubt,
where the surgeon is embarrassed with both palpable and obscure
agencies, that render his most persevering and best-directed eflbrts
of but little or no effect, and the termination, without fault on his
part, often unfortunate. In these cases, more particularly, he is
often unjustly and ruinously assailed and censured, for want of
success, both in and out of court. xVttorneys should be aware of
the existence of these cases, and carefully discriminate between
them and those others where there may be delinquency, or actual
fuili, on the part of the surgeon. In sim[)le, transverse and un-
embarrassed fractures, the surgeon will be expected to conduct
the case to a successful issue. In oblique, complicated, irregular or
compound injuries, he can not, in all cases, or, perhaps, in most,
overcome these serious difficulties, and effect a complete cure.
These are impossibilities he can not surmount; and yet they are
thd injuries for which intelligent and careful medical practitioners
have been made to suiTer damages.
The various kinds of fractures just alluded to, of course re-
MALPRACIICE IN FRACTURES AND DISLOCATIONS. 79
quire, in their management, different kinils of treatment and
degrees of attention. The more difficult forms of fractures, and
those from which the surgeon has most to fear, and which the
courts are most frequently called upon to review, are those called
in the books compound and oblique simple fractures. The term
compound fracture, is strictly technical, and to the unprofessional
conveys an incorrect idea. It is a fracture of the bone, accom2Ja7ued
with a tvound of the skin, communicating with the fractured bone.
There must, therefore, it is supposed, be a greater extent of injury,
as a general thing, to the soft parts of the limb; consequently
much greater difficulty attends the healing process of the case.
This term — compound fracture — ^as used in surgery, must, neces-
sarily, afford many exceptions to this rule, because a cutaneous
bone like the tibia or ulna inav, when fractured, be forced through
the skin with but little injury to the soft tissues of the limb, and
still, while the technical definition brings it under the head of
"'■ compound fractures," it may be, in fact, really one of the most
simple ; wiiile, on the other hand, the most severe, troublesome
and dangerous injuries may be, technically, simple, because the
skin is not broken. Thus, the fracture may be a comminuted
one, involving great injury of the muscles, nerves and blood-
vessels ; and yet, the cuticle being unbroken, it must be techni-
cally called a simple fracture. This gives rise to much confusion
in the minds of those who have not given the subject particular
attention. An attorney, for instance, after ascertaining or in-
quiring into the nature of a case, learns that at the commence-
ment it was a simple fracture, and, judging from the magnitude
of the evil resulting to the patient, concludes that there must
have been Malpractice in the treatment, and commences at once a
a suit for damages.
Those unacquainted with surgery and anatomy have a right to
understand from the term simple, a slight, plain and unimportant
injury, which, under ordinary circumstances, will run on to a
favorable termination. For the same reason, a compound fracture
is looked upon as necessarily more complex and difficult in treat-
80 MALPRACnCE.
ment, when, in fact, it may not be particularly dangerous or
troublesome in its management.
The severer forms of simple and compound fractures, in gen-
eral, demand of the surgeon the highest degree of effort and
intelligence, and the surest resources of his art — whether consid-
ered in regard to local, mechanical or constitutional management.
The dangers from simple fractures are usually immediate and
simple. In compound fractures, on the other hand, the danger is
generally prospective. The immediate local intlammation may
be severe, but the great danger to be anticipated is from suppura-
tion and gangrene; and these symptoms are not unfrequently
accompanied by different forms of traumatic fever, assuming the
character of hectic and typhus. The constitutional forces being
reduced by the original shock to a low standard, the powers of
hie run low, leaving the integrity and vitality of the recuperative
agencies powerless ; and, just at this point, and under this state
of things, one of the most difficult and close questions of surgery
arises — a question upon the solution of which depends the life of
the patient, perhaps, and, possibly, the reputation of the surgeon —
to decide which question correctly, calls into requisition correct
logic, close observation and extensive surgical knowledge: and
that is the question of amputation. In these difficult cases, the
result, let it be for or against amputation, will generally be criti-
cally questioned. The loss of a hmb, on the one hand, will raise
the question of the propriety of the amputation, long after the
real condition that was supposed to demand it is forgotten by all,
perhaps, except the surgeon himself So, if amputation is over-
ruled, and the patient dies, the surgeon is to blame for the sad
result. These cases are most fruitful sources of litigation. If
the limb was amputated, it is said there was gross carelessness, or
recklessness, and a want of care and skill — that the limb might
have been saved had the proper effort been made at the I'ight
time. If the surgeon gives to the patient the benefit of a doubt,
as to the propriety of amputation in a close case, and, after long
and vigilant watching, surmounts great difficulties, sives the hmb
MALPRACTICE IN FRACTURES AND DISLOCATIONS. 81
in a condition to be of great use to the patient, yet, it not being
a perfect cure, then the surgeon is said still to be at fault, not-
withstanding the injury was so severe that the (|U< stion of am-
putation hung evenly in the balance for a time, and he is sued.
Such cases, with similar results, have fallen under the observa-
tion of every surgeon, and most attorneys. Two cases will illus-
trate this fact : Drs. li. & S. were called upon to see a Mr. P.,
whose leg had been crushed by a falling log, while assisting to
elevate it in building a log house, in a new settlement. The
injury was so severe, in the opinion of these surgeons, that ampu-
tation was deemed necessary. They were both old experienced
physicians and surgeons, having practiced thirty or forty years in
the locality where the accident happened. The Ofteration was
peribrmed after due deliberation and consultation — the patient
recovering from the operation in about the usual time. Some
years after the events of accident and amputation, the manner and
propriet}' of this amputation were discussed among the Iriends of
the patient ; the bones were dug up, cleansed, and made the basis
of a suit against the surgeons. Damages were laid at $10,000.
Eminent counsel were found to undertake and carry on the cause
for a portion of the spoils. Several long trials were had — the
jury not agreeing. Depositions were taken in Philadt-'phia, New
York and Washington, involving gieat expense. No judgment
was obtained against the defendants, but the litigation was, never-
theless, ruinous to them. The accumulation of the labors of years
was swept away. Had these surgeons made the hazardous at-
tempt of saving the limb, and had succeeded to a tolerable degree,
then the}' would have been sued for not having performed a per-
fect cure.
In the other case, the patient was a rash, reckless young man,
and while enjoying one of his break-neck exploits, fell beneath a
wild colt, which he was attempting to ride. In the fall the foot
and leg lay at an angle of twenty or thirty degrees, resting be-
tween the hard earth and a thick oak plank ; the weight of the
horse crushing it into the ground while in this position. The
s 6
82 MALPRACTICE.
result was a compound conrniniited fracture of the tibia and
fibula, ruptuiing the tibial artery, crushing the nerves, bruising
the muscles badly, aflecting the vitality and integrity of the limb
to so great an extent, the foot became immediately cold. Not-
^Yithstanding these untoward symptoms, the surgeons in attend-
ance adopted the hazardous conclusion of trying to save the Umb.
The weather was warm and the constitution depraved. General
suppuration took place from the knee to the foot. So low were
the powers of life, that sloughing supervened at every point about
the loot or ancle, where the lightest pressure — even that of a light
bandage — bore upon it. Extension was out of the question. The
lower part of the heel sloughed, from the weight of the foot, though
resting on the softest cushion. Animalculse would form in twenty-four
hours, in various parts of the limb, after the most perfect cleansing.
xVfter months of watching, and the greatest care, adhesions
took place, and the patient recovered from one of the severest
and most loathsome fractures of the leg, with a healing ulcer
over the instep, and the limb, perhaps, half an inch shorter than
its mate. The surgeon received from the township authorities —
for the patient v;as a pauper — twenty dollars for his services. So
soon as the patient could travel, he found his way to a lawyer,
and commenced a suit against the surgeon, not because he had
not cut the limb off — which he should have done according to the
best rules of surgery — but because there was an ulcer still remain-
ing, and for the other reason that the limb was at least half an
inch too short ! Damages |5,000. The case, after hanging in
court for several terms, to the great annoyance and damage of
the surgeon, was dropped.
So alarmed and disgusted was the surgeon at the facilities for
bringing a suit for Malpractice, and the danger of having to
defend cases of this kind, he left the profession forever.
The author knows many able surgeons, who, being men of
property, will not risk it by the practice of surgery. They
practice medicine, but not surgery, and for the reason of the
dangers attending its practice.
MALPRACTICE IN FRACTURES AND DISLOCATIONS. 83
There can hardly be found a place in the country, where the oldest
physicians in it have not, at some period of their lives, been actually
sued, or anno}'ingly threatened. The fact that actual damages
are not often recovered, helps the matter but little. The dam-
age to business, and the costs attending the suit, arc usually grea^.
Very great difficulty attends the treatment of oblique simi)le
fractures, and there is no doubt but too often — at the suggestion
of the patient himself, perhaps — the surgeon leaves the case too
soon. In the able report to the Ohio State Medical Society, on
Malpractice, already referred to, it is said :
"Your committee consider it unsafe to leave any of the larger
oblique fractures at the end of thirty-four days; and here we
would respectfully suggest that our text-bool-^s and teachers would
do well to observe a distinction as to the length of time treatment
should be continued in those cases of transverse fracture, where
there is overlapping, and the larger oblique, as compared with
transverse fracture, where there is no overlapping.
It is believed that all our works concur in this opinion, that the
new bond of union is such, that pressure is capable of curing deform-
ity, of correcting angles, etc.; in brief, that for a length of time, pres-
sure is capable of producing absorption, and, consequently, more
or less alteration in the relation of the united bones to each other.
Now, apply what is thus admitted to the circumstances attend-
ing a well-reduced and well-retained transverse, as compared with
an overlapping or very oblique fracture.
In transverse fractures, if reduction and retention have been
quite successful at the end of, say, forty days, we stop our exten-
sion and counter-extension ; and very soon, if it is a lower ex-
tremity, more or less weight is borne by it. Now, r* duction and
retention having been quite perfect, the fractured surfjices are
kept in contact with each other. We will have poured out, in
these circumstanses, a minimum quantity of what is usually
regarded as provisional plastic material. It will be deposited
between the fractured surfaces and around the ends of the bones.
Now, dropping our means for extension and counter-extension, at
84 MALPRACTICE.
the end of forty clays, we give up the parts to a constantly
exerted and unrestrained muscular action, which now conies to
exert pressure upon the parts, with a degree of constancy and
efficiency far surpassing any thing the surgeon can do by arti-
ficial means. The use (jf the part does the same thing, but with
less constancy. But in these circumstances no shortening can
result. Pressure upon the articular extremities of the broken
bone, is not here an indirect pressure upon the recently-deposited
plastic material. It is merely a pressing together of the surfaces
of the fracture : this does not produce absorption of these, and
therefore can not produce shortening.
But suppose there is overlapping, and the patient is subjected
to treatment for the same length of time — admit, too, that an
equal strength is attained at the end of forty days — the bond of
union, in this case, is effused in the maximum quantity, hes be-
tween the bones, around them, and on their ends. Now, what
will be the result of pressure from the use of the limb, or from
the much more constant and efficient pressure consequent upon
muscular contraction ?
Pressure upon the extremities of the bone, in these circum-
stances, is indirect pressure upon the bond of union, and can not
fail, if it produce absorption, to change the relation of the over-
lapping bones to each other, occasioning shortening; hence the
necessity of resisting muscular action, and suspending the use of
the limb — of continuing treatment, in other words, for a greater
length of time than in the first class of cases ; hence the neces-
sity of a guarded prognosis, in this class of cases, as to obstinate
results; hencO; too, the explanation of a shortening [)rocess, run-
ning through many months, which, your committee are well as-
sured, characterize many cases of fracture; the existence of which
shortening process, in a limited number of cases, the}^ have proved
by carefully-instituted measurements, made at various stages.
A little reflection is sufficient to show that these considera-
tions apply with scarcely less force to very oblique fractures, with
the best possible adjustment."
MALPRACnCE IN FRACTURES AND DISLOCATIONS. 85
To Prof. Hamilton belongs the honor of having, by a long
and well considered series of observations, and the collection and
compaiison of a very large number of cases, established the
important fact, of which surgeons themselves did not before seem
to be aware, that in almost all oblique fractures there is, neces-
sarily, a shortening of the limb, under the best of treatment.
Before his investigations were made known, it was supposed by
the unprofessional, and not contradicted by the professional, that
good surgery would, in most cases, bring about an exact cure, so
far as length was concerned ; and when this result did not follow
the treatment, the surgeon was blamed. Surgical authors have
taught the doctrine, that if the injured limb was not of the same
length as its mate, there was bad surgery. Mr. South, the
editor of Chelius' Surgery, says: "In simple fractures of the
thigh bone, except with great obliquity, I have rarely found diffi-
culty in retaining the broken ends in place, and in effecting the
reunion without deformity, and with very little, and, sometimes,
no shortening. For contrary results, the medical attendant is
mostly to be blamed, as they are usually consequent on his care-
lessness or ignorance." So far from this being true. Prof
Hamilton has shown, in his "Fracture Tables," that in fractures of
the tibia and fibula, both compound and simple, perfect results are
in the proportion only of one to about three of the cases treated ;
and in fractures of the femur and clavicle, complete cure results
in about one case in five ; in fractures of the patella a perfect
cure happens only in one case in six.
When attorneys come to understand that the rule is, that
under the best circumstances and treatment, the steady contrac-
tion of the muscles will bring about a shortening of the limb,
there will bo much less litigation in this important department of
surgery. Dr. Hamilton could not have done a greater service
to the profession than by thus clearly establishing and illus-
trating the above proposition.
CHAPTER VI.
A DIGEST OF PROFESSOR F. H. HAMILTON'S REPORTS OF CASES OF
DEFORMITIES AFTER FRACTURES.
This chapter contains a digest of the Reports of Prof. F. H.
Hamilton on Deformities after Fractures, published in Vols. 8, 9,
and 10, of "The Transactions of the American Med. Association,"
embodying those points that arise in cases of Malpractice, and of
most interest to attorneys and surgeons in a Medico-legal point
of view. The labors of Prof H. are herculean, and the results,
of great practical importance to the surgeon. His Reports run
through three volumes, occupying four or five hundred pages of
the Transactions.
He says : " I suppose that most practical surgeons have a tol-
erably correct appreciation of prognosis in fractures. I say
tolerably, because I wish to imply a qualification. I do not
think that a majority of even 'practical' surgeons have a full
appreciation of the subject. I am frank to confess that, until I
commenced these investigations, I had not any just notions of
the frequency of deformities after fractures. * * * Students
will continue to go out from our hospitals with a belief that
perfect union of the broken bones is the rule, and that the excep-
tions imply, generally, unskillful management; and if, when
hereafter they have themselves occasion to treat a fractured
femur, the result falls short of their standard of perfect success,
they, taught also by the same instinct of self-preservation which
actuated their teacher, will conceal the truth from others, and
even from themselves, if possible. Nay, I fear that sometimes,
under the same urgent promptings, and where the moral sense is
not superior to all other considerations, they may hesitate to
DEFORMITIES AFTER FRACTURES. 87
regard the sanctity of an oath ! How else shall we explain the
testimony of that man who, with uplifted hand, altirms that he
has ' seen and treated ten fractures of the femur, in adult per-
sons, and not one of them is, in any way, shortened or deformed ?'
Or what less charitable construction will you place upon the pub-
lished averment of a hospital surgeon, in a neighboring province,
when, in his remarks upon my ' Iracture tables,' he declares that
he has treated, at the hospital under his care, one case of frac-
tured inferior maxilla, three cases of broken clavicles, two of
which were at the outer third, seven of fractured femurs, one of
which was compound and one comminuted, eight cases of frac-
ture of the tibia and fibula, two of which were comminuted and
one compound — in all, nineteen cases, and that, with the excep-
tion of one who died, every case resulted in a perfect cure V "
Notwithstanding the very many imperfect cures, in these cases,
under the treatment of the best class of surgeons in America, he
says : " I am prepared to affirm, after visiting the larger hospitals
of England and the Continent, and having observed carefull}^
their methods of treatment, and in some measure noticed their
success, that, in so far as I have yet seen, the practice of Amer-
ican surgeons, in the management of fractures, compares flivor-
ably with that of any other people. The English are themselves
proclaiming their deficiencies in this department of surgery. It
is now more than one hundred years since Pott, then surgeon to
St. Bartholomew's Hospital, inquired of his brethren if it wastiot
* notorious' that in England broken thighs and legs were 'often,
very often, left deformed, crooked and shortened ?' To-day, the
very distinguished successor of Mr. Pott, in tlie same great
hospital, finds occasion to say : ' One is, therefore, at a loss to
find any apology for those surgeons whose v/ant of care, and even
humanity, may be attributed the numerous examples of distorted
and contracted members which have cast a reproach on the sur-
gery of Great Britain.' "
" What good, do you ask, can be accomplished by exposing
our failures, unless we have found the remedy, in which, alone,
88 MALPRACTICE.
the world can claim a final interest ? I reply, that the first step
toward improvement, in any art or science, must be the faithful
exposure of its wants and deficiencies ;" and he might have added,
with equal truth and propriety, " To show to the courts what can
not be accomplished by the best-informed and most practical sur-
geons in the profession, thus saving them from unjust censure
and heavy pecuniary damages." The first five chapters, making
up the entire Report, in Vol. 8, for 1855, are devoted to frac-
tures of the OS nasi, septum narium, ossa maxilla superiora,
maxilla inferiora, and the clavicle, out of the treatment of which
cases of Malpractice very rarely if ever arise, will be entirely
passed over. To the practical surgeon the chapter is of interest,
but not so specially to the Medico-legal student.
In the second part of Prof Hamilton's Report, he discusses,
in a series of chapters, deformities in fractures of the scapula,
humerus, radius, ulna, radius and ulna, carpus and phalanges.
The surgeon is not unfrequently sued for damages in cases of
fracture of the acromion process.^ Prof H. says; "Of the treat-
ment of the coracoid, or of the acromion process, I have only
one general observation to make. It is very obvious that, in
neither of these fractures can any thing be accomplished by
splints, and probably quite as little by position. All that the
surgeon can do is to enjoin rest, and, if necessary, to enforce it
by suitable bandages, and to control inflammation. If the neck
of yie scapula is broken, whether the fracture be simple or com-
minuted, the rational indication seems to be to place a moderate
compress on the axilla, and, having disposed the arm in the
sling, to secure the elbow snugly against the side of the body."
Deformities after fractures of the humerus are common. The
diagnosis is often attended with great trouble — the ablest sur-
geons being deceived. Prof H. relates the following case, where
he was himself deceived in a fracture of the surgical neck of the
humerus; and herein consists the great value of Prof H.'s
1 Boston Med. Jour. Vol. 31, p. 501 ; Iliinois Med. Jour. 1845.
DEFORMITIES AFTER FRACTURES 89
reported cases; he never spares himself; where he has failed or
been mistaken, he says so without fear or apology.
"White, of Bufi'alo, aged twelve, fell fourteen feet, striking
on the front and outside of the left shoulder. Dr. P., of Erie
county, saw the lad within three hours. He was brought to me
on the fourth day after the accident. The upper part of the
arm was ver}^ much swollen. I found the arm dressed as for a
fracture of the middle or lower third of the humerus. It was
shortened over an inch. The elbow was inclined backward, and
there was a remarkable projection in front of the joint, feeling
like the head of the bone. The hand and arm were powerless.
I suspected a dislocation of the head of the humerus forward ;
and, having administered chloroform, I attempted its reduction
With my heel on the axilla. While making the extension, I felt
a sudden sensation, like the shpping of the bone into its socket ;
but, on examination, I found the projection continued as before.
I then repeated the effort with precisely the same result. I now
applied an arm-sling, and directed leeches and cold evaporation
and lotions. On the 25th, five days after the accident, it was
examined by Drs. Mixer, McGregor, Joseph Smith and myself
We still believed it was a dislocation, and, having administered
chloroform, we again attempted its reduction. The same sUjjping
sensation was produced as before, and the deformity was repeat-
edly made to disappear ; but on suspending the extension, it as
often reappeared. The character of the accident was now made
apparent, and we proceeded at once to apply the splint and
bandages suitable for a fracture of the .surgical neck of the
humerus, namely, a gutta percha splint, extending on the out-
side, from the top of the shoulder to below the elbow, with an
arm and body roller, secured with flour paste. On the 31st,
twelve days after the accident, Dr. Wilcox, niaiine surgeon, saw
the arm with me. The fragments were displaced, the same as
when I first saw it, and the same as when no apparatus had
been applied. We examined it again carefully, and attempted
to make the fragments remain in place, but we were unable to
90 MALPRACTICE.
do SO, except while holding them and making extension.
August 9th, (21st day,) Dr. Bowen, Prof, of Anatomy, in
Geneva Medical College, being present, I removed all the dress-
ings. Motion between the fragments had ceased, but the projec-
tion and shortening remained as before ; now, also, the irregular
projections of the fractured bones were more distinctly felt, ihe
dressings were never reapplied. Three months later no change
had occurred. He could carry the elbow forward freely, as well as
backward — the motions of the shoulder joint being unimpaired."
There is great difficulty in distinguishing dislocations from
fractures of the condyle, where there is much swelling. The fol-
lowing case illustrates this : " Francis Clifford, of 8t. Catherines,
C. W., aged fifteen, fell, in wrestling, with his right arm under
him, December 22, 1855. The arm was seen by Dr. Henry
Goodman, of St. Catherines, and treated by him. Three months
after the accident, the lad was brought to me by his father, and
they made the following statement : ' Dr. Goodman said the bones
were dislocated inward, and by pulhng and manipulation, he
reduced them. The elbow was then greatly swollen. He applied
no splints, but only treated the arm in such a way as to subdue
the inflammation. Subsequently it was seen by another surgeon
in Canada, who behoved that the ulna was, at the time of the
accident, displaced inward, and that it still remained unreduced.'
Dr. J. Mack, a distinguished surgeon of St. Catherines, had also
seen the arm, and did not think the ulna was now out of place,
but that the inner condyle was broken off. I find a fragment —
the apophysis of the internal condyle — broken ofi* and removed
downward toward the wrist one inch and a quarter, where it is
immovably fixed. The elbow is partially anchylosed, so that it
can not be straightened completely, nor flexed to a right angle.
Pronation and supination are perfect. Dr. Mack had endeavored
to overcome the anchylosis by moderate force, applied gradually,
by means of a splint, but he had not, thus far, been successful.
The father had already commenced an action against Dr.
Goodman for damages.
DEFORMITIES AFTER FRACTURES. 91
It is quite certain that the articular surfaces are not now
displaced. Whether they were displaced originally, it is, of
course, impossible to say. Whether they were or were not, I do
not understand how the surgeon is to blame for not recognizing
this fracture when the limb was so much swollen ; nor do I be-
lieve that he could have prevented the displacement of the frag-
ment if he had discovered the fracture. It is very probable, also,
that the lad will ultimately have a fair use of his elbow joint ;
and all this I felt it my duty to state to the parties, to which the
father replied only that he could not afford to have his son lose
the use of his arm."
Another case is given where deformity resulted from a siirple
oblique fracture. "A lad of eight years fell from a hight of four
feet, striking upon the floor, and breaking his left humerus just
above the condyles. The direction of the fracture was obliquely
downward and forward. Dr. A. H., ol* Pomfret, was called, but
refused to visit the patient, declaring that he did not practice
surgery.
Two other physicians were then successively called, but they
also declined positively ; and Dr. IL, being again earnestly pressed
to go, consented, though very reluctantly. He determined easily
the nature of the fracture, but as the arm was already much
swollen, he concluded not to apply immediately any splints. On
the third day he reduced the fragments as well as he could, and
applied two right-angled splints — one on the palmar and one on
the dorsal surface of the arm and forearm — with suitable com-
presses, rollers, etc.; also, two small lateral splints. These dress-
ings he continued to the arm during the period of four or five
weeks, when they were finally removed. About nine months
after the accident the lad was brought to me for examination. I
found the fragments overlapped one inch; the upj)er fragment
projecting in front, and the skin covering its sharp point being
very thin and tender; the motion at the elbow joint perfect. The
hand was flexed forcibly upon the wrist ; the first phalanx of all
the fingers extended, and the second and third forcibly flexed ;
92 MALPRACTICE.
supination and pronation completely lost; the arm weak and
painful ; the ulnar nerve could be felt lying across the projecting
end of the bone. In the hope that some favorable change might
result to the hand by relieving the pressure upon the ulnar
nerve — yet with not much expectation of success — I exposed the
bone, and removed the projecting fragments with a chisel and
saw. The ulnar nerve had to be lifted and laid aside. The
wound healed kindly, but the hand, one year from this date,
remained in the same condition as before the operation."
The surgeon was subsequently sued, but the case never came
to trial.
Out of sixty-seven cases of fracture of the humerus, only
about thirty-four resulted in perfect cures, though, as a general
thing, treated by ordinarily good surgeons — so doubtful is the
result in fractures of this bone.
The conclusion to which Prof. H. arrives, where the fracture is
on the upper end of the humerus, is, "Where there is much dis-
placement of the tubercle, in consequence of the rupture of the
fibrous and tendinous structures which invest it, ligamentous union
is more Kkely to be the result than osseous. In the inter-cap-
sular fracture, without impaction, the head of the humerus may
perish from want of nutrition. In such cases, disorganization of
the joint may ensue, as the result of the processes by which the
elimination of the dead bone is accomplished. In the inter-cap-
sular impacted fracture, the deformity is greater than in the
extra capsular. Each variety unites with deformity. The chief
diagnostic signs of the separation of the superior epiphysis of
the humerus, are an abrupt projection beneath the coracoid
process, caused by the upper end of the lower fragment, and the
immediate recurrence of the deformity when the means employed
for its reduction cease to be in operation. There is no fracture
incidental to the upper end of the humerus, in which it is more
difficult to maintain the fragments in their proper relative posi-
tion. The supposition that, in this injury, the tubercles form a
portion of the lower fragment, involves an anatomical error — the
Deformities after FRACTuREg. 93
line of junction of the epiphysis, with the shaft being below these
processes." These are also the conclusions of Robert W. Smithj
of Dublin.' Prof H. adds: ''Perhaps no place will be tnol-fe
appropriate than this, to speak of the difliculty of diagnosis in
fractures about the joints, and especially in fractures occurring in
the vicinity of the fchoulder joint — a difficulty so seiious as to
materiall}' embarrass the surgeon in his prognosis, and which, it
must certainly not be denied, diminishes the value of my own
conclusions, as based upon my recorded cases. It is only, after
all, by an examination of a great number of cases, both belbre
and after death, that we shall ever arrive at a com[ilete solution
of these difficult questions. To this point already the labors of
Sir A. Cooper, B. Smith, Ke}', and others have been especially
directed ; yet the constant mistakes committed to-day b-y the most
experienced surgeons — not to speak of those acknowledged by Sir
Astley himself — testify to the imperfection of our knowledge.*'
i\Jr. Johnson says : " It is perfectly undeniable that fractures of
the upper extremity of the humerus, and dislocations of the head
of that bone — especially dislocations into the axilla — are, at
times, confounded with and mistaken for e;ich other, even by
those whose experience is great. We allude to our hospital sur-
geons. If such mistakes, then, occur with those whose opportu-
nities of practice are considerable, a fortiori, how much more
frequent must they be among those who have few or no such
opportunities, and in country [iractice, in particular. The ques-
tion, indeed, need not be begged, for the lact, as so put, is, un-
happily, notorious. "-
Prof H. says : " It has occasionally happened to me to see the
surgeon severely blamed for eiTors of diagnosis in relation to
injuries about the shoulder joint; and I would like to impress
upon surgeons the necessity of studying the diagnostic signs of
these various accidents with great care."
^ Treatise on Fractures in the Vicinity of Joints, etc., pp. 207-8.
* Med. Chir. Rev., Vol. H, p. 133.
94
MALPRACTICE.
Of the shaft of the humerus he says : " It has been observed
by surgeons that non-union results more frequently after frac-
tures of the shaft of the humerus, than after fractures of the
shaft of any other bone. This observation is confirmed by my
own researches." This unfortunate result, it is suggested and
argued at considerable length, arises from the universal habit of
surgeons to dress fractures of the humerus by placing the fore-
arm at right angles with the arm, instead of placing it in a straight
position. If this is the cause of the frequent deformities in these
cases, it is essential that those who practice surgery should know
it. Out of thirty-eight cases of fracture of the radius, reported
by Prof li., twenty-five are imperfect in the result — some
slightly. This shows the difficulties attending the treatment of
fractures of this bone.
Anchylosis of the wrist and ankle are very common when
there has been a fracture of the radius or tibia at its lower endj
and this stiflhess is often the ground of complaint against sur-
geons and troublesome litigation.
Prof H. accounts for this stiffness, not by supposing the bone
was not properly set, but he says : " There can be no doubt that
this phenomenon is due to an effusion — first serous, and then
fibrinous — along the sheaths of the tendons; and it is equally
present after sprains and other severe injuries about this part, as
in fractures. In many cases, however, its prolonged continuance
and its firmness have led to a suspicion that the bones were dis-
placed — a suspicion which only a moderate degree of c.ire in the
exMmination ought easily to dispel. Here, then, we shall find a
sufficient exi)lanation of the anchylosis in the wrist and finger
joints, which, often for a time almost complete, continues occa-
sionally for many months, or even years, if, indeed, it is not per-
petual: an anchylosis, produced, not as has generally been
affirmed, by an extension of the iutlammation to these joints,
but simply by the infiammatory eff'isions and consequent adhe-
sions along the theca and serous sheaths, through which the ten-
dons all pass in their course to the hands and fingers. The
DEFORMITIi:S AFfER FRACTURES. 95
fingers are quite as often thus anchylosed as the wrist joint
itself — a circumstance which is quite inexplicable on the doctrine
that the anchylosis is due to an inflammation in the joints. In-
deed, I have seen the fingers rigid after many months, when,
haAing observed the case throughout, myself, I was certain that
no inflammatory action had reached them. Nor is it any more
difficult to show that the anchylosis of the wrist joint is not due
to a malposition of its articular surfaces, as has often been asserted
in written treatises, and reaffirmed by excellent surgeons, when
recording their testimony under oath ; for, if the anchylosis of
the fingers, in all these cases, is known not to be the result of
malposition of their joint surfaces, but only of inflammation of
their tendinous sheaths, why shall we refuse to accept the same
explanation for anchylosis at the wrist ?"
Dr. j\Iott, of New York, says : ^'Fractures of the radius, within
two inches of the wrist, when treated by the most eminent sur-
geons, are of very difficult management, so as to avoid all de-
formity; indeed, more or less deformity may occur under the
treatment of the most eminent surgeons, and more or less imper-
fection in the motion of the wrist or radius is very apt to follow
for a longer or shorter time. Even when the fracture is well
cured, an anterior prominence at the wrist, or near it, will some-
times result from swelling of the soft parts, etc."
The reporter of the opinion of Prof. Mott, himself a surgeon
of New York City, says : "As the above opinion of Prof Mott
coincides with my own observations, both in Europe and in this
city, as well as with many of the most distinguished surgical
authorities, I venture to hope that it may assist in removing some
of the gToundless and ill-merited aspersions which are occasionally
thrown on the members of our profession by the ignorant or
designing." Professor H. adopts the above as his own expe-
rience.
The following case illustrates the above principles: -'Mrs. Ray-
mond, of Albion, N. Y., aged twent\-nine years, was turned over
in a stage coach, and broke the radius just above the wrist joint.
96 MALPRACTICE.
Dr. Huff, a surgeon of well-known skill, residing in Albion, was
called, and treated the fracture. About three months after, Mrs.
Raymond called upon me to ascertain whether the arm could be
improved, and whether I believed the treatment had been cor-
rect. The hand falls slightly to the radial side, and the lower
end of the ulna is prominent. The motions of the wrist joint are
not free. She subsequently commenced an action against the
doctor for damages."
Of twenty-two cases of fracture of the ulna, Prof H. reports
ten imperfect.
Of forty fractures of both the radius and ulna, thirty-three
were simple, and there were fourteen imperfect cures.
Prof H. remarks : " The prognosis, in these accidents, seems
to take the widest range ; for while a larger proportion than in
the case of almost any other long bones, united without apprecia-
ble deformity, a considerable proportion delay to unite, or do not
unite at all; and some, even when the fracture is most simple,
result in the complete loss of the limb by gangrene. Of the
occurrence of gangrene, and the consequent loss of the entire
arm, after a simple fracture, I have reported one example. A
second example has occurred in the practice of Dr. Snell, a very
respectable young physician, of Brooklyn, N. Y., in which a
fracture of the humerus, involving the elbow joint, occurring in a
boy of slender stamina, resulted in the loss of that part of the
hand by mortification — the little finger perishing from dry gan-
grene, and the adjacent parts afterward sloughing by ordinary
humid mortification. A prosecution ensued, in which Drs. Wil-
lard Parker, and Prince declared their conviction that these unto-
ward consequences were due to the bandages having been applied
too tightly ; while Drs. Mott, Rogers, Wood, Ayers, Dixon and
others, believed that the mortification of the fingers resulted from
causes over which he had no control. The jury returned a ver-
dict against the Doctor for $3,000. It is understood, however,
that a new trial will be granted, as the verdict was clearly against
the weight of testimony."
DEFORMITIES AFTER FRACTURES. 97
These general principles, connected with the superior extremi-
ties, are also applicable to the lower ; still, it will be well to follow
Prof. IL, in his investigations, connected with fractures and de-
formities of the inferior extremities, that the present state of the
science relating to fractures may be well understood by those who
have to deal with them legall}-.
Of one hundred and five cases of fracture of the femui-, only
about ten are reported as resulting in perfect cures. The treat-
ment is attended with all the difilculty — and possibly more —
that attends fractures of the humerus. The small quantity of
complete cures, or results, indicate that fractures of the femur are
more to be dreaded than those of the humerus — the hip joint
more than the shoulder joint.
Shortening is almost universal in these cases of fracture of the
femur. While this has been understood, perhaps, by the best
class of surgeons, "there seems to have existed only certain
vague and indefinite notions as to the proportion and amount of
shortening, and which have hid for the'r basis nothing better than
a few imperfectly analyzed observations."
The following are the conclusions to which Prof. IT. arrives on
this point :
"• 1. That in the case of an oblique fracture of the shaft of the
fenmr occurring in an adult, whose muscles are not paralyzed, but
offer the ordinary resistance to extension and counter-extension,
and where the ends of the broken bone have once ))een com-
pletely displaced ; no means have yet been devised by which an
overlapping and consequent shortening of the bone can be pre-
vented.
2. That in a similar fracture occurring in children, or in persons
under fifteen years of age, the bone may sometinK^s be made
to unite with so little shortening that it can not be det( cted
by measurement ; but whether, in such cases, there is, in fact, no
shortening, since with children, especially, it is exceedingly diffi-
cult to measure very accurately, I can not say.
3. That in transverse fractures, or obHque and dentriculated,
7
98 MALPRACnCE.
occurring in adults, and in which the broken fragments have be-
come completely displaced, it will generally be found equally
impossible ta prevent shortening ; because it will be found to be
generally impossible to bring the broken ends again into such a
position as that they will rest upon and support each other.
4. That in all fractures, whether occurring in adults or in child-
ren, where the fragments have never been completely or at all
displaced, constituting only a very small proportion of the whole
number of these fractures, a union without shortening may always
be expected.
5. That where, in consequence of displacement, an overlapping
occurs, the shortening in simple fractures, when the best appli-
ances and the utmost skill have been employed, is between one-
half and tnree-quarters of an inch."
Prof H. insists that the straight position is the proper one for
dressing fractures of the femur, and supports his opinion by the
testimony of nearly all the leading surgeons in this country and
Europe, with whom he has had an extensive private correspond-
ence He also urges a suggestion of the distinguished surgeon
of Philadelphia, Dr. Geo. W. Norris, as to the importance of
frequent dressings in these difficulties, and frequent dressings in
the latter part of the treatment of fractures about the joints, as
well as of careful passive motion to the joints, at the same time
carefully observing a state of perfect rest.
The following cases, where actions for damages were brought
for alleged Malpractice in the treatment of these fractures, are
also from Prof Hamilton's report :
John C. Basset v. John B. Collins and Anthony Barney.
Supreme Court, N. Y.
''In the fall of 1843, John C. Basset, of Independence, aged
forty-eight, then in good health, but corpulent, was injured by the
upsetting of his wagon, and the falling of a box, as was believed,
upon his thigh. He was can-led into a public house in Wood-
hall, and there attended by Drs. Reed and Carey. After a care-
ful and complete examination, by measuring, etc., they concluded
DEFORMITiES AFTER FRACTURES. 99
that Mr. Basset had only received a severe bruise. He remained
two weeks under their care, and was taken home in a bed. Four
weeks after the accident, Drs. Collins and Bainey were called in,
as the left leg was now said to bo shortened and turned out.
These gentlemen made an examination, and ibund the leg in the
following condition: Shortened an inch and a-half; the toes
turned out, and could not be turned in ; the left heel corrcspoud-
ing to the hollow of the right foot ; a bunch in the groin, like the
head of the femur. They decided that it was a dislocation of
the head of the femur upon the pubis, and with pulleys properly
adjusted and carefully operated upon, proceeded to attempt its
reduction. .After two or three minutes' extension and counter-
extension, a sound was heard, and a sensation felt by nearly all
who were assisting, which was then described as the sound and
.'^ensation usually produced when a dislocation is reduced. The
patient was now released from the pulleys, and made to get up.
The limb was of its original length, and in its natural position,
and the tumor in the groin had disappeared. The patient was
again laid upon the bed, and dismissed as cured. It, however,
appeared in the testimony, that a few days after it was again
shortened and turned out ; but it does not appear that these facts
came to the knowledge of the defendants. It also appeared that
the plaintiff did not get the use of his limb so as to be able to
dispense with crutches or a cane in one or two years. The limb
is now shortened an inch and a-half, and moderately turned over ;
but the motions of the joint are free, and the plaintiff walks with
a very slight halt, and without inconvenience.
Drs. Collins and Barney were sued, and the case was tried
January, 1848, before Judge Morain; but the jury having dis-
agreed, it was tried again before Judge Mallett, in the Circuit
of the Supreme Court, held in August, 1848.
In the first trial the plaintiff (^barged that the limb was sound
when the defendants took hold of it with the pulle}s, and that
they then fractured it through the neck and without the capsule.
In the last trial this was not claimed; but it was alleged that
100 MAL.PRACTICE.
the original accident was probably a fracture without the capsule,
and without displacement ; that when examined by Drs. Collins
and B-irney, a displacement had occurred, and that the del'eud-
ants were chargeable with criminal negligence or ignorance in not
discoveri.ng that it was a fracture ; and consequently for subject-
ing the plaintifi' to the useless [>ain of extension with the pul-
leys, and in not applying subsequently a retentive apparatus,
since, through this omission, the plaintiff had a shortened and
crooked leg.
On the defense, it was admitted that the original accident was
a fracture, without displacement ; but that it was within the cap-
sule, and near the head of the bone ; that its being within the
capsule, and near the head, could alone satisfactorily account for
the 'bunch' in the groin, which disappeared with the reduction,
and for the slowness of the subsequent restoration of the limb.
It was claimed, also, that the signs described })y the witnesses
were the ordinary signs of dislocation upon the pubis, and would
be likely to deceive the most sldllful surgeon ; that several emi-
nent surgeons had mistaken fractures of the thigh for disloca-
tions; that the extension with the pulleys did him no permanent
harm ; that the subsequent treatment pursued by the patient in
this case, viz.: keeping his bed for a few days, and getting about
on crutches, would have been the proper treatment had the exact
nature of the accident been fully known ; and, finally, that the
patient had as good a limb as can ordinarily be expected in this
fracture, under the most skillful management.
The examination of the numerous witnesses having closed, and
the counsel having addressed the jury, the Judge followed with a
most pungent and impressive charge, in which the jury were
instructed to disregard all mere appeals to their prejudices, and
especially to reject that counsel which would advise them to look
upon the medical profession as an oppressive and aristocratic
monopoly, and to decide the case upon the facts, as drawn from
the witnesses upon the stand. The jury retired, and in a few
minutes returned a verdict for the defendants.
DEFORMITIES AFTER FRACTURES. 101
The defendants in this case were men who had long practiced
medicine and surgery in the county of Alleghany, and they both
occupy a high position in the estimation of the public, as men of
skill and worth ; and it is gratifying to know that, in the mind
the Hon. Judge, as well as of the intelligent jur\', they received a
full and unqualified acquittal from the charge of any degree of
negligence or unskillfulness."
Another action resulted Irom the following case :
"In Dec, 1843, W. S., forty years old, a house-joiner, was
employed shingling the roof of a rail-road depot, when he fell
and fractured the right femur, about its middle, transversely. Dr.
W. of Buliiilo, was called, and applied Sir Astley Cooper's
double inclined plane,, having previously covered the leg with a
roller^ and secured lateral splints to the thigh. At the end of
six weeks the dressings were finally removed, the fragments
being united firmh'.
Subsequently S. claimed damages for Malpractice in the treat-
ment of the leg, and Dr. W. was sued, and the case was tried in
the Erie Co. Supreme Court, first in 1844, and again in June,
1845. In neither of these trials was the jury able to agree.
Finally, in June, 1848, it was tried in the same court — Justice
James G. Iloyt presiding. The limb was shortened one inch.
Drs. Mowbridge, Barnes and Burnell, witnesses on the part of the
prosecution, thought it a 'medium cure.' Dr. Sprague did not
think so. Dr. Fimt, on the part of the defense, thought it an
average cure. I thought it nearly, but not quite an average
cure. The plaintiff claimed that the bend and shortening was
the result of the use of the double inclined plane, and from neg-
ligence in its use ; and that it occurred while the limb was in the
splint. The defendant replying that it came out of the splint
straight, and that the deformity now present took place after his
responsibility had ceased.
Dr. Trowbridge said that 'more or less deformity usualh^ fol-
lows a fracture of the thigh bone, even in the best cases.' Dr.
Burnell said 'it was a difficult bone to heal and make straight.'
102 MALPRACTICE.
Dr. Austin Flint said, * fracture of the thigh bone is one of the
most difficult to treat — perhaps, the most so.' Dr. Willard Parker
said, ' In children you may generally get union without shorten-
ing; in a well, active man you may not — it depends upon the
power of the muscles.'
The Judge charged the jury as to the points of law, stating,
that if they were satisfied that the defendant had exercised or-
dinary skill and ordinary care, they were to find for him. He
then went into a general review of the testimony, stating, also,
that in cases like these the medical testimony should have more
weight in matters of opinion than the testimony of other wit-
nesses, as they were, it is supposed, better informed upon matters
of the nature here presented.
The verdict was for the defendant."
Here is another interesting case of alleged Malpractice.
" Geo. S. Aikin, of Lockport, N. Y., aged seven years, broke his
right thigh obliquely, just above the knee joint, jumping down
a bank of about three feet.
Dr. G., an accomplished surgeon, residing in Lockport, was
called. The limb was not then much swollen. He appHed side
splints, rollers, etc., carefully, and then laid the limb over a Day's
double inclined plane. The knee was elevated about six or eight
inches. Before applying the splints, suitable extension had been
made, and after completing the dressings the two hmbs seemed
to be of the same length. These dressings were examined and
readjusted daily. On about the seventh day the lad was com-
plaining a good deal of pain, etc. He had all along been restless,
and had complained, at times, of pain in his leg and foot. Dr.
E. now noticed, for the first time, that his toes looked unnaturally
white, and that they were cold. Counsel was now called, at the
request of Dr. G., when it was determined to abandon all dress-
ings, and direct their efforts solely to saving the limb. The
result was that slowly a considerable portion of his foot died and
sloughed away, leaving only the tarsal bones. The fracture
united, but with considerable overlapping and deformity.
DEFORMITIES AFTER FRACTURES. 103
Dr. G. sued the father of the child for the amount of his ser-
vices, when Mr. Akin put in a plea of Malpractice, and that, con-
sequently, the services were without value.
The case was tried at the March Term of the Niagara Circuit
for 1856, Judge Greek presiding.
On the part of the defense, it was claimed that the death of
the foot was in consequence of the bandages being too tight.
While, on the part of Dr. G., the plaintiff, it was shown that the
death of the toes was preceded by the loss of color, and that it
was not accompanied with either venous or arterial congestion.
The medical gentlemen examined as witnesses, declared that this
circumstance furnished the most positive evidence which could be
desired, that the death of the toes was not due to the tightness
of the bandages ; but that its cause must be looked for in an
arrest of the arterial or nervous currents supplying the limb, or
in both. They believed, also, that the projection of the superior
fi'agments into the popliteal space was sufficient to cause this
arrest. They also believed that this overlapping and consequent
projection could not have been prevented in this case, and that,
therefore, the treatment was not responsible for this unfortunate
result; indeed, they regarded the treatment as correct, and the
result as a triumph of skill, in that, that any portion of the lim.b
was saved, the leg and foot now remaining, being far more useful
than any artificial les; and loot could be.
The Judge, in a charge remarkable for its clearness and lib-
erality, sought to impress upon the jury the value of the medical
testimony. The jury returned a verdict for Dr. G., allowing the
amount of his claim for services, with the costs of suit."
In twenty fractures of the tibia — fifteen of which vrere simple —
all the results were perfect, except the live that were complicated,
and these were all imperfect.
In nineteen cases of fracture of the fibula ten were imperfect
In one hundred and eight cases of fracture of both the tibia
and fibula, thu'ty-seven are marked perfect, and seventy-one im-
perfect ; forty-nine are not shortened, and sixty-one shortened.
104 MALPRACTICE.
Prof! H. remarks : " The large size and irregular form of the
bones of the leg, the small amount of the muscular tissue cover-
ing them, especially near the articulations, the severity of the
injuries to which they are liable, with their remoteness from the
center of circulation — these circumstances render them exceed-
ingly exposed to injury from the too great or unequal pressure of
splint or of bandages ; and it has often occurred to myself, as it
has to Dr. Norris, to find the skin vesicated, or even ulcerated
and sloughing, w'hen the patients are first admitted to the hos-
pital ; a condition which, in nine cases out of ten, is due to the
mal-adjustment of the splints, or to the tightness of the ban-
dages. Too much care can never be exercised in the application
of the first dressings, nor ought they ever to be permitted to
remain longer than twenty-four hours, without being removed, or
freely opened, so as to permit an examination of the limb
thoroughly on all sides."
The author has thus made a very careful and full digest of the
voluminous Reports of Prof HaiMilton — running through three
volumes of Transactions of the American Med. Association —
arranging and condensing that portion that bears directly upon
the subject under investigation. The matter here given from
those Reports is of the greatest practical value to the medical
man and to the attorney ; both can at once see what is, and what
should be expected of the surgeon .in the treatment of fractures,
without being burdened with the details of practice. Every sur-
geon and physician should overhaul and study carefully these
Reports. No one can comprehend the amount of labor bestowed
upon them — the vast range of authorities consulted and quoted —
without thorough examination and study ; and this he can not
bestow without profit to himself and patients.
CHAPTER YII.
MALPRACTICE IN DISLOCATIONS.
Some dislocations are very simple, requiring but little care,
while others are attended with the gravest symptoms. In the
latter cases the treatment is difficult and dangerous. The kind
and size of the joint makes the difference, together with the compli-
cations. From the wrist and anlde upward the difficulty is greater
and the danger more to be apprehended ; especially the elbow and
knee joints, are always attended with great difficulty.
There is no class of injuries to which the human frame is
exposed, that will not suflter less from delay than in the case of
dislocation. To act promptly and correctly at the time of the
injury, is of the greatest importance. Every hour lost enhances,
as a general thing, the difficulties of reduction, and greatly en-
dangers the reputation of the surgeon, and it may make him
liable, should the delay be owing to his advice or conduct.
Some seem to think that no great degree of anatomical knowl-
edge is requisite or essential to the speedy and correct adjustment
of dislocations, from the success that is claimed for the '' natural
bone-setter," and from the usual quickness of the operation. This
confidence in this class of quacks rests upon popular error. It
is a remnant of ancient superstition in regard to medicine.
Without a high degree of anatomical knowledge, these kind of
injuries can not be treated with any degi'ee of success;. In
determining the question as to whether a dislocation exists at all —
a very important point to be settled — if there exists a dislocation,
as to what its nature and complications are ; in applying the neces-
sary sldll in its reduction, the most thorough knowledge is called
(105)
106 MALPRACTICE.
for. It not unfrequently happens that a little hurry or careless-
ness leaves an important joint dislocated for life, and the sur-
geon — there being reasonable grounds for believing that ordinary
care and skill might have detected the true state of the case, and
rectified the difficulty — becomes responsible for the damage.
Sir Astley Cooper mentions a case of dislocation of the os
femoris, which was not reduced at the time of the accident, and
ever after continued so ; a consultation was held upon the nature
of the injury, and, after long consideration and deliberation, a
report was made by one of the surgeons to this effect, " Well, sir,
thank God, we are all agreed there is no dislocation !"
Sometimes the swelling is so great, immediately after the
receipt of the injury, or before the surgeon is able to see the case,
that it is impossible to decide whether the case is one of disloca-
tion or not.
No correct anatomical knowledge can be obtained of the parts
subject to these injuries, without thorough and repeated dissec-
tions of the structures of the joints. An acquaintance with the
muscles of the hmb, and their dissection, however neatly done, does
not develop the condition of the joints and their structure, or how
a dislocation may take place ; its condition when dislocated, upon
which depends the direction and degree of extension to be applied
in its reduction. Students are too apt to throw away the joint,
after having dissected the other parts, thus losing that practical
knowledge upon which good treatment of dislocations depends,
and giving rise to so many errors and failures in practice, thus lay-
ing the gi'ounds for litigation and heavy damages.
The dislocations of the hip, shoulder and elbow, can not be
detected certainly, as to their precise nature and extent, except by
those who possess correct anatomical knowledge.
Sir Astley Cooper says he has known hospital surgeons who
have not paid sufficient attention to the study of anatomy, mistake
the more difficult kinds of dislocations, and mentions a case that
occurred in a hospital, where the difficulty was a fracture of the neck
of the thigh bone ; but, being mistaken for a dislocation, the patient
MALPRACTICE IN DISLOCATIONS. 107
was exposed, through the surgeon's ignorance, to a violent and
protracted extension. This has occurred more frequently than
good surgeons would admit, in this country as well as in England.
Without a well-defined idea of the form of the extremities of
the bones, their mode of articul ition, the ligaments by which they
are connected and supported, the direction in which their most
poweiful muscles act; the man who attempts to adjust a disloca-
tion, or a supposed one, works in the dark. When all these
normal conditions are well fixed in the mind, any departure from
it is at once detected, and the proper remedy apphed. A person
not having this anatomical knowledge, should never undertjike to
reduce dislocations upon the grounds of his medical character or
special knowledge in other departments of the profession.
It has already been stated that sudden tumefaction sometimes
supervenes, and renders a diagnosis either difficult or impossible;
so that a good surgeon may well hesitate until the swelUng has
abated. In these cases, the cautious surgeon is careful what
opinion he gives ; and those who are called in consultation, after
time has elapsed, and the swelling abated, when the locality of the
head of the bone can be easily determined, and the nature and
extent of the injur}^ fully understood ; can, unwittingly, leave the
first-called surgeon, having charge of the case, to unjust and
dangerous censures, if they do not explain the reasons why it
might have been impossible, at an earlier day, to arrive at a satr
isfactory conclusion or diagnosis.
An occasional occurrence of difficulty, in reducing what seems
to be but a simple dislocation, arises from the obstruction of mus-
cles or tendons, which, becoming rigid or twisted from their posi-
tion, prevent the return of the head of the di-slocated bone into
its socket. At other times there are obscure and mysterious
causes of difficulty, in reducing dislocation.s, that evade the closest
scrutiny of the most experienced and intelligent, and which will
forever remain unknown, unless revealed by post mortem
examination.
A principle cause of difficulty, in the reduction of a dislocation
108 MALPRACTICE.
of long standing, arises from the increasing inorganic contrac-
tion of the muscles engaged; also, the new fibrous adhesions
which the new bone acquires; but this difficulty of reduction
does not increase by lapse of time as rapidiy as does that of
diagnosis. The tension of the muscles is not supposed to in-
crease after a few days, while the passive contractions oi the
muscles will demand an increasing force of extension by the
mechanical agents employed; the progress of this additional
resistance is slow, and will not. for many days, present any seri-
ous obstacles to the elongation of the limb by pulleys or similar
agents.^
The ablest surgeons differ as to the length of time, after which
a surgeon is no longer to be justified in trying to reduce a dislo-
cation by the application of extension. Sir A. Cooper objects
to any efforts being made to reduce a dislocation of long stand-
ing ; and this time he places at two months for the humerus, and
three for the femur; while Mr. Skey is not willing to Hmit the
time definite, within nine months or a year, when all effort is to
be abandoned. He claims to have reduced a humerus after three
months.^
In dislocations of long standing the cavity in which the head
of the bone played becomes filled with new growth, the cartilages
thicken, and the head of the bone becomes fastened in its new
position, by fibrous growths, where it rests, in time, almost as
firmly as in its original position.
Where there is a mistake in the diagnosis, and extension is
applied to a fractured limb, instead of a dislocated one, for
obvious reasons the result may be serious to the patient and dis-
honorable to the profession, as well as rendering the operator
making the mistake liable.
An ignorant surgeon will sometimes apply the bandages around
the elbow joiat, to which he applies his extension in such a way
^ Skey's Operative Surgery, 73.
2 Medical Times, Loudon, for June, 1848.
MALPRACTICE IN DISLOCATIONS. 109
that it slips, and defeats the whole proceeding, or he will bind the
elbow to a right angle, in order to get an immovable joint, giving
unnecessary pain, and throwing the whole extending force on the
forearm. This is an inexcusable error ; so, of the lower extrem-
ities, the same principles apply. Again, the extending force
being applied to the elbow, instead of the wrist, the bone is, in
fact, being drawn up by the pectoralis major and latissimus
dorsi, while, through the medium of the triceps extensor muscle,
is being drawn down, from which, the whole object is to separate
and dislodge the head of the humerus. Both the scapula and
the pelvis should remain as far as possible dormant, when exten-
sion is applied for the reduction of a dislocated femur or humerus.
It is by reason of the neglect of simple points like these, that
the profession, as well as the patient, often suffer; and because
this is so, and the blameworthy are sometimes overtaken and
punished, the idea becomes prevalent that whenever there is
a failure to reduce the dislocation, the surgeon is to blame, let the
circumstances attending the case be what they may, and that he
should respond in damages.
All the medical profession asks, in respect to these cases, is,
that the courts shall carefully draw the line between those cases
where there is really ignorance, and those where the impossibilities
are so great they can not be overcome by skill ; and this the
courts will do, if the truth can be properly brought before them.
CHAPTER VIII.
ENGLISH AND AMERICAN ADJUDICATED CASES
SEAR V. PRENTICE, 8 East's Rep. 347.
The leading English case, where there was no evidence of
unskillfulness introduced, though it was alleged in the declaration,
is that of Sear v. Prentice. This was an action brought by the
plaintiff, a shoemaker, against the defendant, whom he had em-
ployed as a surgeon, and who, it was claimed, had negligently
undertaken the reduction of a dislocated elbow and fractured
arm of the plaintiff, of which he had undertaken the cure.
A verdict having been given for the defendant, under the
charge of the court, (Justice Heath,) that direction was im-
peached, and a motion was made to set the verdict aside, and
that a new trial be granted, upon the ground that there was
evidence laid before the jury of the unskillful treatment of the
plaintiff by the defendant; but that they were told by the
learned Judge that unless negligence was proved they could not
examine into the ivant of skill ; and the evidence, he now admit-
ted, did not substantiate the charge of negligence, though it
proved the want of skill. Court reviewed the case upon the
Judge's report, and it appeared to be this :
The plaintiff's brother-in-law proved that the defendant at-
tended the plaintiff, who had fallen from a horse, and told the
defendant that his arm was broken ; the defendant thought not ;
the arm was swollen, and he applied vinegar and bound it with
tape. The plaintiff was under the defendant's care ten weeks,
without being cured. He could not bend his arm or work at his
trade. He then applied to a surgeon by the name of Kingston,
who so far remedied the difficulty that the plaintiff could put bis
(110)
ENGLISH ADJUDICATED CASES. Ill
arm to his head. The arm had been dressed and grown almost
straight; he could not turn his wrist, and had no motion in the
elbow. Kingston broke the callous and set it again, and made a
very fine cure, (as the witness himself described it,) which was
spoken of about the country. lie imputed the failure of the de-
fendant to negligence and carelessness — "an apprentice boy might
have known better;" "that the bone might have been set within
five hours after the accident," though he admitted the swelling,
if much, must first be reduced, which might take a fortnight."
" The learned Judge told the jury that the gist of the action
was negligence, of which direct evidence might be given ; or it
might be inferred by the jury, if the defendant had pro-
ceeded without any regard to the common rules of the profes-
sion; that unskillfulness alone, without negligence, would not
maintain, the action ; and that he was at a loss to say to the
jury what degree of skill ought to be expected of a village sur-
geon. But whether or not his directions were accurate in this
respect, at any rate the witness imputed only negligence and
carelessness to the defendant and Pidcock, who assisted him, '^the
defendant,) in not discovering the fracture of the bone of the
arm, when they reduced the dislocated elbow, which there was no
doubt was properly reduced ; and, considering all the circum-
stances of the case, he did not think there was such gross negli-
gence as to make the defendant liable to the plaintiff in damages.
The report says that the jury found for the defendant, much to
the Judge's satisfaction.
Here the court was well satisfied that an action lay for unskill-
fulness, as well as for negligence ; but from the evidence it does
not appear that unskillful practice was sustained against the
defendant, and the court below had charged correctly when it
stated negligence and carelessness as one ground of action, and
had left it to the jury to determine whether there had been such
negligence and carelessness. The jury, by their verdict, said
the defendant was clear of the charge, and as no evidence had
been introduced or offered, the defendant was clear."
112 MALPRACTICE.
The Judge's charge was erroneous, in that, " that unskillful-
ness alone, without negligence, would not maintain the action ;"
yet as no evidence was offered by the plaintiff to this effect, the
charge of the Judge could not effect the result ; and it is diihcult
to see how they could take advantage of an erroneous charge
that could not possibly affect the verdict of the jury.
Lord Ellbnborough, C. J., said : " The surgeon, who was exam-
ined specifically, imputed the failure of the cure to negligence
and carelessness, and whatever other expressions he may have
used in giving his evidence, upon which the learned Judge has
commented, the question of skill did not arise upon the
evidence in this case, for no want of skill was imputed to the
defendant ; and, therefore the opinion of the learned Judge upon
that point does not affect the merits of the verdict upon the
evidence in the case." ^^
SLATER V. BAKER, 2 Wilson, 259.
In. an old case, reported in the 2d of Wilson's Reports, and
still referred to in almost every modern decision, we have the
account of a Mr. Baker, a surgeon of great eminence, who was
prosecuted for negligently and carelessly treating a case of frac-
ture, and a verdict was obtained of £500 against him.
This case is one of the oldest on record of the kind, it being
tried in 1767.
It appears that Baker had been first surgeon in St. Bartholo-
mew's Hospital for twenty years ; that he read lectures on sur-
gery and anatomy, and was celebrated for his knowledge in his
profession, and that he was also noted for his humanity.
From the evidence, the case seemed to be this : that Slater,
the plaintiftj having broken both bones of his leg, was in the
hands of a surgeon nine weeks ; that in a month's time after the
leg was set. the surgeon found the leg was "healing and in a
good way;" the callous was formed; there was a Httle pro-
truberaiice, but it was thought not more than usual.
It was proved also by the apothecary who attended Slater the
ENGLISH ADJUDICATED CASES. 113
first nine weeks, that, at the end of that time, he was well
enough to go home; that he was present with the plaintiff and
defendant; and at first the defendants said the plaintiff had fallen
into good hands ; and the second time they were all together,
the defendants expressed themselves well satisfied with what had
been done ; but on the third time they came, some alteration was
suggested, and the patient, Slater, got into a passion, and was
unwilling the defendants should do any thing to his leg. The
plaintiff told them he was afraid they would disunite the callous,
and, as his leg was straight, it was not necessary. Baker and
the apothecary, Stapleton, who was also sued, on their third visit
took up the leg, not letting the plaintiff know ^\hat they were
about to do, and broke up the callous. "Baker took up the
plaintiff's foot in both his hands, and nodded to Stapleton ; and
then Stapleton took the plaintiff's leg upon his knee, and the leg
gave a crack, when the plaintiff cried out to them and said,
"You have broke what nature had formed." Baker then said
to the plaintifij " You must go through the operation of exten-
sion." A heavy instrument of steel, " that had teeth," was put
upon the leg to produce the extension.
At the end of four months after this operation, the patient
was " still very ill and bad of it."
On a motion to set aside the verdict, because, among other
reasons, of the great skill and reputation of the defendant,
Baker, as a surgeon, the Lord Chief-Justice said: "When we
consider the good character of Baker, we can not conceive why
he acted in the manner he did ; but many men, very skillful in
their profession, have frequently acted out of the common way,
for the purpose of trying experiments. Several of the witnesses
proved that the callous was formed, and that it was proper to
remove the plaintiff home; that he was free from pain and able
to walk with crutches; we can not conceive what the nature of
the instrument made use of is — why the defendant, Baker, put
it on, when he said that the plaintiff had fillen into good hands,
and when the plaintiff only sent for him to take off the bandage;
114 MALPRACTICE.
it seems as if Mr. Baker vvauted to try an experiment with his
new instrument. That the plaintiff ought to receive a satisfac-
tion for the injury, seems to be admitted ; but it is said the
defendant ought to h ive been charged as trespasser vi et annis.
The court will not look with eagle eyes to see whether the evi-
dence applies exactly or not to the case ; when they can see the
plaintifl' has obtained a verdict for such damages as he deserves,
they will establish such verdict, if it be possible. For any thing
that api)ears to the court, this was the first experiment with this
new instrument ; and if it was, it was a rash action — and he who
acts rashly, acts ignorantly — and although the defendants, in gen-
eral, may be as skillful in their respective professions as any two
gentlemen in England, yet the court can not help saying that, in
this particular case, they have acted ignorantly and unskillfidhij
contrary to the known rule and usage of surgeons."
The Chief-Justice, in this charge, says rashness is ignorance^
and because the party wished to try an experiment that he was
not warranted in doing, that he acted unsJdllfidly. This is cer-
tainly carrying judicial license and construction beyond reason,
or the correct import of language. Baker may have been guilty
of rashness and recklessness, and probably was, if the evidence
is to be relied upon ; and, if so, should respond to the plaintiff
in damages ; and the greater his skill and knowledge, the greater
the blame that attached to the act. But it can not be said, with
any propriety, that because of his gi'eat skill and high standing,
in this particular case, wishing to try an experiment, that he acted
ignorantly and unskillfully.
The line is a very close one, between a case of this kind, where
the defendant is guilty of a rashness and recklessness, that points
strondv to a criminal intent or reckless disregard of hfe and
limb, and those where he is trying to cure but by reason of
foolhardiness and culpable rashness, he is actually guilty of a
crime. To correctly determine where the criminal ofiense ends
and the civil begins, is often a point of great difficulty. This
difficulty arises from the fact that a physician may intend well,
AMERICAN ADJUDICATED CASES. 115.
and yet his conduct be so exceptional that he must be held liable
criminally when life is lost by such conduct, though he did not
intend it at the time.
AMERICAN ADJUDICATED CASES
GALLAHER AND WIFE r. THOMPSON; Wright's Ohio Supreme Court Reports, 466.
Case against the defendant as surgeon and ph}'sician.
The declaration contained three counts. 1. On the defendant's
undertaking skillfully to set Mrs. Gallaher's leg, which had been
broken ; breach, that he so unskillfully set the leg that it is of no
use. 2. On his promise to attend Mrs. Gallaher, and skilfully set
and cure the broken leg ; breach, that the work was done so care-
lessly that the leg is ruined. 3. On a contract to attend, take
care of, and cure the leg in a skillful manner ; breach, that he so
carelessly performed, that the leg is useless. Plea, not guilty.
Evidence was introduced to prove that the defendant was a
surgeon; that he was called by Gallaher to his wife in the usual
way, and attended and reduced the hmb; but in the cure the
ankle joint became anchylosed, and the foot turned in, so that in
walking the weight of the body fell on the outer side of the foot,
near the root of the little toe. Much evidence was also given of
the kind of treatment bestowed upon the hmb — some condemning
and some approving — when the plaintiff rested.
W. B. Huhhardj for the defendant, moved for a non-suit —
1st. Because there is no proof of any engagement by the hus-
band and wife, as in the first count. 2d. Because there is no
proof of any contmct to cm-e, and the law does not imply such
promise from the retainer.^
S. W. Culbertson, contra.
Wright, J. — The second and third counts of the declaration
are upon an express undertaking to cure. There is no evidence
of such an undertaking, and the law does not imply one to that
extent, from the mere employment of a surgeon to attend a
> Esp. Ev. 257 ; 2 Com. on Cont, 337.
116 MALPRACTICE.
patient. When the act to be done depends on the skill of the
operator alone, the law will imply an engagement to use that
skill, and to produce the desired result, from the employment of
one professing it, and holding himself out to the world as having
it. Where the result desii'ed, as the cure in the case before us,
depends both upon skill in the use of means, and the influence
of other causes, the law raises no such implied engagement ; it
regards the undertaking to be only for the use of proper means.
The retainer of a lawyer obliges him to the right conduct of the
suit ; but not for the judgment of the court, for that is beyond
his control. The retainer of a physician obliges him to the em-
ployment of ordinary medical skill in the treatment of the
patient ; the cure is not with him, but is dependent upon the
constitution of the patient, and the influence of causes beyond
the control of the physician. The husbandman employed to cul-
tivate a field is not supposed to engage for the production of an
average crop. He may plough and sow, plant and water, but the
increase is not from him. A smith engaging to shoe a horse,
impliedly engages skill to put the shoe in the proper place, and
to avoid the quick in his fastening; because that is a mere phys-
ical operation — the end sought for depends upon nothing but
skill. The surgeon, called to a patient with a broken or dislocated
hmb, and operating, impliedly engages the ordinary skill of the
profession, in adjusting the fractured bone, or reducing the dislo-
cation, and the subsequent treatment of the patient while he
attends ; these depend on himself. He is not supposed to engage
to cure, or to insure a recovery, because a cure depends not upon
him. This point has been several times before the court, and has
been always so decided. As to the second and third counts, there-
fore, there is, at present, a want of evidence to sustain them.
The fii-st count is an undertaking with both the plaintiffs. The
proof is of an engagement by the husband. This, it is urged, is
proof of a contract diflerent from the one declared on. Where
the injur}' is to the absolute rights of the person, as, batteries,
injuries to health, reputation, liberty, and are inflicted upon a mar-
AMERICAN ADJUDICATED CASES. 117
ried woman, and the suit seeks compensation for the injury to her,
or for her personal suffering, the husband and wife must be joined
in the suit ; for, in case of his death, the cause of action survives to
her, and she may prosecute the suit to judgment and execution.^
The difficulty suggested is not perceived ; but it is one open on
the record, and may be raised hereafter, if further examination is
desired.
It is further objected, that the retainer of the surgeon does
not, in law, suppose an undertaking to reduce or set the bone
skillfully ; but that such undertaking must be expressly proved.
The setting or putting in place the bones, is a mere physical
operation ; and we think the retainer and the visits and acts of
the surgeon do lay a foundation, in law, to suppose an undertaking
to reduce the leg, and to treat the patient skillfully.
There is evidence, on the,subject of the treatment, which is for
the jury. The question, whether the skillful setting and judicious
treatment should, at all events, effect a perfect cure, is a distinct
one, not necessary now to decide. The motion is overruled.
P^vidence was then offered on both sides as to the manner of
treating and dressing the limb, and of surgeons, as to what was
the usual and customary mode in the profession, etc., when the
evidence was closed.
Culhertson, for the plaintiff, admitted he could only recover on
the first count, for the unskillful setting of the bone, and sub-
mitted, without argument, to the jury.
Wright, J. — The question turns solely on the credit due to
the physicians who have testified as to the practice. If they are
skillful themselves, and worthy of credit, your verdict should be
for the defendant, for they all sustain the practice ; if unworthy
of credit or unskillful — and the other proof shows the practice
careless and unskillful — you should give the plaintiff such dam-
ages as will compensate for the injury the wife has received.
Verdict and judgment for the defendant.
» 1 Ch. PI. 46, 61 ; 2 Kent Com. 151.
CHAPTEK IX.
AMERICAN ADJUDICATED CASES CONTINUED
McCANDLESS r. McWHA, 22 Pennsylvania Reports, 261.
Error to the Common Pleas of Beaver County.
This was an action on the case by James McWha v. Dr.
Alexander G. McCandless, for an injury sustained by reason of
alleged Malpractice, in the setting and treatment of his broken
hmb. The action was brought to September Term, 1848.
The plaintiff, by accident, had his left leg broken, about the
24th March, 1847, and the defendant, a surgeon and physician
of good standing in his profession, and otherwise, was called to
set the leg and attend to it.
After the leg had healed, this suit was brought to recover
damages for Malpractice, on the alleged ground of a want of the
exercise of sufficient surgical skill and attention to the broken
limb, whereby, it was alleged, the leg had become shorter than the
other.
On the part of the plaintiff' in error, the defendant in the
action, the only testimony stated on the paper book, was a depo-
sition of one Dr. Duncan, who, inte7' alia, testified that he had
been in practice over two years; that in the capacity of a stu-
dent under the defendant, he went with the defendant to visit the
plaintiff about a week after the fiacture had occurred. The char-
acter of the fracture was that of an ohlique comminuted fracture
of the tihia and fibula of the leg, which was fractured nearly half
way from the ankle to the knee. The bandages were opened, so
that he discovered that there were splints on the fore and back
(118)
AMERICAN ADJUDICATED CASES. 119
parts of the leg, reaching from the ankle to the knee, to keep up
extension and counter-extension. He subsequently stated that,
at the time he referred to, the leg was considerably swollen. He
said he did not feel the limb ; but so far as he could determine
by the eye, the limb appeared to be correctly set. He further
testified that, on this occasion, he heard a conversation between
the defendant and the patient in reference to the limb, and heard
the defendant give instructions to the plaintiff as to the dressing
and position in which the leg was to be kept. The conversation
was, in substance, a complaint by the defendant against the plain-
tiff, for having disturbed the bandages and dressing, by loosing
them — the plaiiititf defending the act because his leg tvas pawful.
The defendant instructed the plaintifi" not to disturb the bandages,
to keep them moist, and keep the leg in the position he left it,
vis.: horizontally — telling him if he loosed the bandage the leg
might be shorteueil.
He further stated that the plaintiff's habits were intemperate
at times before the accident. He expressed the opinion that, from
the disposition and habits of the plaintifi^ no physician could
make him obey instructions as to the care of his leg ; nor, con-
sidering his disposition and habits, treat his case in the ordinary
manner. He said that he saw the leg about six months after-
wards ; the bones of it were displaced ; but whether that was the
result of unskillful treatment or improper conduct of the patient,
ho said he could not tell.
On the paper book furnished on the part of the defendant in
error, the plaintiff in the action, was a statement of the testimony
of several witnesses, which was, however, not brought up with the
record.
September 3d, 1850, verdict was rendered for [ilaintifif for $850.
A motion for a new trial was made ; and it was stated on the
paper book that, upon consultation, the court declared that if the
plaintiff would release all but $500, judgment would be given for
that sum. Before release the President Judge, Bredin, died;
and, after his death, a release having been filed, releasing the
120 MALPRACTICE.
damages above $500, on 5th June, 1851, judgment was entered
on the verdict.
A writ of error was taken. In the Supreme Court a motion
was made for the continuance of the case, on the ground that the
bill of exceptions to the charge, which, it was alleged had been
taken in the case, had not been sealed. The case was continued,
and in the opinion delivered in the case by Justice Lowrie, a
mode was suggested for having a bill of exceptions made up and
sealed.^ In pursuance of such suggestions, a petition was pre-
sented to the Court of Common Pleas, representing that Bredin,
J., had charged in a certain manner ; that exception was taken to
the charge, which the President Judge had been requested to seal
and to file the charge ; but though the exception to the charge
had been noted by the Judge, yet the charge was not filed nor
the exception sealed.
An affidavit was annexed as to the truth of the facts stated
in the petition.
Testimony was heard, after which a biU of exceptions was
sealed. It was as follows :
"In this case the plaintiff, by his counsel, alleged that he had
received serious damage by defendant not setting his leg properly ;
or when set, of not using proper splints and bandages to keep it in
place, and in using no means to keep up extension and counter-
extension, in consequence of which, and through neglect of
defendant not visiting plaintiff, and examining the leg to see that
it was right, the end of the bones slipped past each other, and,
when knit, the broken limb is two inches shorter than the other,
or thereabouts."
" After the close of the testimony on the trial of the above
case, the Hon. John Bredin, President Judge, charged the jury
substantially as follows : That the defendant was bound to bring
to his aid the skill necessary for a surgeon to set the leg so as to
make it straight and of equal length with the other, when healed ;
' See the opinion, in 8 Uarris, 184-5.
AMERICAN ADJUDICATED CASES. 121
and if he did not, he was accountable in damages, just as a stone-
mason or bricklayer would be in building a wall of poor mate-
rials, and the wall fell down ; or if they built a chimney, and it
would smoke, by reason of a want of skill in its construction,
they could not only not recover pay for building, but would be
accountable for damages; and if suits were more frequently
brought, we would, perhaps, have fewer practitioners of medicine
and surgery not possessing the requisite professional skill and
knowledge than we now have. But it is due to the defendant to
state that, with the exception of the matter complained of in this
suit, there is nothing in the evidence given to show that he is not
respectable in his profession."
" To which charge defendant's counsel, on the returning of the
jury, and before verdict rendered, took exceptions, and requested
the said judge to seal a bill thereof, and file his charge of record.
The said Judge noted the said exceptions, but omitted to seal the
bill of exceptions and file his charge, and afterward died, on the
21st of May, ] 851, suddenly, and without having done as
requested; and we, the Associate Judges of the said court, (the
present President Judge having been counsel for the plaintiff.)
on petition of the defendant's counsel to suf)ply the said charge
and bill of exceptions thereto, having heard the same, and the
answer of plaintiff's counsel thereto, and the evidence adduced in
support of said petition and answer, do consider and adjudge that
the foregoing bill, in substance, correctly contains the charge, as
delivered to the jury in the said action, and do accordingly testify
and seal the same this 21st day of September, 1853.
It was assigned for error — 1. The court below eried in charging
the jury "that the defendant was bound to bring to his aid the
skill necessary for a surgeon to set the leg so as to make it
straight and of equal length with the other, when healed ; and if
he did not, he was accountiible in damages, just as a stonemason
or bricklayer would be in building a wall of poor materials, and
the wall fell down ; or if they built a chimney, and it would
smoke, by reason of a want of skUl in its construction, they could
122 MALPRACTICE.
not only not recover pay for building, but would be accountable
for damages.
2. In charging the jury that "if suits were more frequently
brought, we would, perhaps, have fewer practitioners of medicine
and surgery not possessing the requisite skill and knowledge than
we now have."
Cunningham and McCandless, for plaintiffs in error. — It was
said that the rigid and unquahfied position stated in the bill of
exceptions was not a correct exposition of the law. It was, how-
ever, admitted that the law implies a contract upon the part of
men, to discharge their duty in a skillful and attentive manner.^
A physician or surgeon is liable for injuries resulting from the
want of ordinary diligence, care and skill.^ A physician con-
tracts to employ the usual skill, but not to cure? But the rule
stated in the bill, that the physician was bound to bring to his
aid, not the ordinary and usual care and skill, but such as "to set
the leg so as to make it straight and of equal length with the
other, when healed," it was said was in conflict with philosophy
and the science of surgery. If such were the rule, all that would
be necessary for a patient to do, to entitle him to damages, would
be to show that the injured leg was shorter than the other.
It was further contended, that the jury was misled by the
court assimilating the case of the surgeon to that of a stone-
mason or bricklayer. If a mason or bricklayer should build a
wall out of poor materials, which were furnished by his employer,
and the wall fell in consequence of the defect of the materials,
the architect would not be liable ; also, the mason or bricklayer
works with inanimate matter ; but the surgeon has for his sub-
ject a thing of life, active and changing by its nature. The
mode of treatment in one case may not be proper in another.
Reference was made to Ferguson's System of Practical Surgery,
1 1 Saunders, 312, n. 2 ; 1 Lord Raym. 213 ; 2 Wils. 359 ; 8 East. 348.
2 9 Conn, 209, Loudon v. Humphrey.
^ Gallaher v. Thompson, Wright's [Ohio] Reports, 466.
AMERICAN ADJUDICATED CASES. 123
316, for observations on the mode of treatment in cases of frac-
ture of the leg, and to the observation that '• sometimes a frac-
ture may be treated without the aid of any appliances ; on other
occasions, what may be deemed the most perfect apparatus, will
not enable the surgeon to be so successful in his treatment as he
could wish;" also, to Professor Colles'' Lectures on Surgery, ?>lh;
Principles of Surgery, hy Prof essor Miller, of Edinburgh, ^^1 ;
Druitfs Modern Surgery, 233, same page, " There are some
cases which it is as diificult to account for as to remedy;" also,
Gihsons Surgery, Vol. 2, p. 204 ; Abernethy''s Lectures on Sur-
gery, 200 ; id. 209, " It is no use to strap and bandage a frac-
ture, to make it unite by main force." The support to be given
to a fracture " should be gentle and equable, such as it would
derive from the healthy state of the parts."
It was said, from the surgical principles stated in the works
cited, and from the fact testified to, of the fracture being such as
stated, that the plaintiff's habits were restless and intemperate,
and that he interfered with the treatment prescribed and
attempted ; that the charge was erroneous, and led the jury to a
misapprehension of the true principles which should govern the
case.
As to the second assignment, it was said that the part of the
charge there referred to was contrary to the policy of the law, as
tending to promote litigation. For observations on the subject,
reference was made to the Sept. No., 1853, o^^^The New York
Journal of Medicine.''''
Roberts and Fetterman, for defendant in error. — Complaini
was made to introducing into the paper book the deposition of
Dr. Duncan only.
It was stated, that the fracture being not only oblique but
comminuted, or broken into small pieces, according to the testi-
mony, the bone itself could not keep up the proper extension of
the leg, and, therefore, something was necessary to keep up the
extension of the limb ; otherwise the muscles of the leg would,
by contraction, cause the obhque or pointed ends of the bone to
124 MALPRACTICE.
slip past each other; while, on the other hand, if the leg was
bandaged so tightly as to prevent them passing, painful tumefac-
tion of the limbs would necessarily ensue, and require the
removal of the bandages, which result, it was said, was proved in
this case. It was, therefore, necessary, as testified by surgeons,
to have splints of such length, in this case, as, by fastenings at
the knee and foot, would counteract the contraction of the mus-
cles and keep up the extension of the leg at the proper length,
and obviate tight bandaging. Besides the want of such treat-
ment, it was said that the patient was permitted to lie on a soft
feather bed, without a box or other means to prevent the sinking
of the heel or the weighing down of the foot by the pressure of
the bed clothes.
It was said, that in making the reference in the charge, to the
mason or bricklayer, the Judge spoke only of the duty to bring
the requisite skill of a surgeon to his aid, referring to the me-
chanical trades by way of illustrating the principle ; that the
reference was understood as illustrating the principle of duty, and
not as intended to assimilate the work of a surgeon to the inani-
mate wall of the mason or bricklayer; that, after the lapse of
three years, the recollection of the language must be imperfect,
and the court should not strain the language of the bill of excep-
tions to produce a meaning contrary to common sense and
probability.
It was said that it was not stated in the bill of exceptions that
the defendant was bound to set the leg so as to make it straight
and of equal length with the other, but that he was bound to
bring to his aid the skill necessary for a surgeon to set the leg,
etc.; and it was this sldll to which the court had reference ; that
the court have before it but an isolated part of the charge. The
surgeon is bound to bring to his aid the skill necessary to that
end, if it be surgically possible. It was said that, according to
the charge, he is only to possess the skill necessary for the pur-
pose ; but according to the argument on part of the plaintiff in
error, he is also bound to accomplish that result
AMERICAN ADJUDICATED CASES. 125
As to the portion of the charge referred to in the second
assignment, it was said that the remark was not specially applied
to this case, and that a judge trying a cause has a right to express
his opinion on matters of fact, not as binding instructions, but as
enforcing on the jury the performance of their duty.
It was said that medical authorities have been cited to show
that extension of the Hmb is unnecessaiy in setting a Iracture.
Whether this is so is not now a question for this court. This
court does not sit to correct errors of surgery, but of law. If
the judge correctly laid down the evidence before him, he com-
mitted no error.
The opinion of a majority of the court was delivered by
Woodward, J. — This was an action on the case by the defend-
ant in error against the plaintiff in error, a respectable ph}'sician
and surgeon, for Malpractice, in setting a broken leg of the
plaintiff; and the only question of any importance presented for
our consideration, is whether the court erred in charging " that
the defendant was bound to bring to his aid the skill necessary
for a surgeon to set the leg, so as to make it straight and of equal
length with the other, when healed ; and if he did not, he was
accountable in damages, just as a stonemason or bricklayer would
be in building a wall of poor materials, and the wall fell down, or
if they built a chimney, and it should smoke, by reason of a want
of skill in its construction."
It is impossible to sustain this proposition. It is not true in
the abstract, and, if it were, it was inapplicable to the circum-
stances of the case under investigation. The implied contract of
a physician or surgeon is not to cure— to restore a limb to its
natural perfectness — but to treat the case with diligence and skill.
The fracture may be so complicated that no skill vouchsafed to
man can restore original straightness and length ; or the patient
may, by wilful disregard of the surgeon's directions, impair the
effect of the best-conceived measures. He deals not with in-
sensate matter, like the stonemason or bricklayer, who can choose
their materials and adjust them according to mathematical hnes ;
126 MALPRACTICE.
but he has a suffering human being to treat, a nervous system to
tranquilize, and a will to regulate and control. The evidence
before us makes this strong distinction between surgery and
masonry, and shows how the Judge's inapt illustration was calcu-
lated to lead away the jury from the true point of the case.
Dr. Duncan describes the fracture as an oblique comminuted one
of the tibia and fibula of the leg, about half way between the
ankle and the knee ; and he says that on one occasion, when he
was present at a dressing of the limb, he heard Dr. McCandless
complain that McWha had loosened the bandages, and he told
him that if he loosed them his leg might be shortened; but
McWha justified his act because his leg was painful. Now, upon
such a state of facts, the question was not, whether the doctor
had brought to the case skill enough to make the leg as straight
and long as the other, but whether he had employed such reason-
able skill and diligence as are ordinarily exercised in his profes-
sion. For less than this he is responsible in damages ; but if
he be held to the measure laid down by the court below, the im-
plied contract amounts, on his part, to a warranty of cure, for
which there is no authority in law. In a fracture like this, a
short'jning of the limb is sometimes an inevitable consequence.
Dr. Dorse}', in his ElemenU of Surgery, speaking of broken legs
below the knee, says : " The fracture of both bones is most fre-
quent; it may be transverse or oblique, simple or compound,
comminuted or single. The fragments are occasionally displaced
in every direction. In transverse fractures there is, generally, no
shortening of the leg ; but in those that are oblique the leg is
generally shortened ;" and from Furgnmn^ System of Practical
Surgery, cited in the argument, we learn that " the fissure in the
tibia may be oblique, and the fragments, two or more, may have
a constant tendency to become displaced ; there may be great
irritability of the muscles, particularly during the early part of
the treatment — great restlessness of the patient, or unwillingness
to submit to the requisite confinement ; in short, a vast variety
of circumstances likely to cause difficulty in the treatment."
AMERICAN ADJUDICATED CASES. 127
Not to multiply authorities, these are sufficient to show that the
rule prescribed by the court is too rigid lor this class of cases;
that shortening of the leg may result from the most careful and
approved practice, or from the misconduct of the patient.
Nothing can be more clear than that it is the duty of the patient
to co-operate with his professional adviser, and to conform to the
necessary prescriptions ; but if he will not, or under the pressure
of pain can not, his neglect is his own wrong or misfortune, for
which he has no right to hold his surgeon res[tonsible. No man
may take advantage of his own wrong, or charge his misfortunes
to the account of another.
We do not mean to intimate an opinion that this case was per-
fectly treated, or that the leg could not have been restored to the
length of its fellow ; but in view of the diversified cii'cumstances
that attend cases of this sort, it was very important that the true
rule of professional responsibility should have been given to the
jury, with instructions that they should inquire, from all the facts in
proof, whether the defendant had come up to it or stopped short of it.
We have stated the rule to be reasonable skill and diligence,
by which we mean such as thoroughly-educated surgeons ordina-
rily employ. If more than this is expected, it must be expressly
stipulated for ; but this much every patient has a right to de-
mand, in virtue of the implied contract which results from in-
trusting his case to a person holding himself out to the world as
qualified to practice this important profession. If a patient
applies to a man of diflerent occupation or employment, for his
assistance^, who either does not exert his skill, or administers im-
proper remedies to the best of his ability, such person is not
liable in damages ; but if he applies to a surgeon, and he treats
him improperly, he is liable to an action, even though he under-
took gratis to attend the patient, because his situation implies
skill in surgery.^ The principle is contained in the pithy saying
> Per Heath, J., in Sliiels v. Blackburn, 1 Hen. Blac. 161 ; Seare v. Prentice,
8 Eiist. 348.
128 MALPRACTICE.
of Fitzherbert, that "it is the duty of every artificer to exercise
his art rightly and truly, as he ought." This is peculiarly the
duty of professional practitioners, to whom the highest interests
of man are often necessarily intrusted. The law has no allow-
ance for quackery. It demands quahfication in the profession
practiced — not extraordinary skill, such as belongs only to few
men of rare genius and endowments, but that degree which
ordinai-ily characterizes the profession ; and in judging of this
degree of skill, in a given case, regard is to be had to the ad-
vanced state of the profession at the time. Discoveries in the
natural sciences, for the last half century, have exerted a sensible
influence on all the learned proCessions, but especially on that of
medicine, whose circle of truths has been relatively much en-
larged ; and, besides, there has been a positive progress in that
profession, resulting from the studies, the experiments and the
diversified practice of its possessors. The patient is entitled to
the benefit of these increased lights. The physician or surgeon
who assumes to exercise the healing art, is bound to be up to the
improvements of the day. The standard of ordinary skill is on
the advance; and he who would not be found wanting, must
apply himself, with all diligence, to the most accredited sources
of knowledge.
If" in view of the principles here stated, Dr. McCandless shall
be found, on re-trial, to have performed his whole duty to his
patient, and that any defects in the limb are due to the patient's
fault, or to the peculiarities of the fracture, there ought to
be no recovery in damages. But if the blemish be fairly at-
tributable to professional negligence, the jury should assess the
damages.
The only remaining error assigned is scarcely worthy of notice.
The action depended so entirely on its own circumstances that the
observation of the court as to the policy of such suits was
irrelevant, and, we may fairly presume, harmless. But, for mis-
direction on the other point, the judgment is reversed, and a
venire de novo granted.
AMERICAN ADJUDICATED CASES. 129
Lewis. J., delivered an opinion, as follows :
Without dissenting from the able opinion of Mr. Justice
Woodward, I make the following additional remarks :
The case is peculiar, and relates to matters ol' such general
interest as to justify this course. The court below charged the
jury that "the defendant was bound to bring to his aid the skill
necessary for a surgeon to set the leg, so as to make it straight,
and of equal length with the other, when healed ; and if he did
not, he was accountable in damages, just as a stonemason or
bricklayer would be in building a wall of poor materials, and the
wall fell down; or if they built a chimney, and it would smoke,
by reason of a want of skill in its construction." This is the
error complained of, and it seems to be thought that the court, in
giving this instruction, held the surgeon bound, under all circum-
Btances, to cure the fractured leg, so as to '• make it .straight and
of equal length with the other, when healed." I do not so un-
derstand the language of the Judge. He only held the surgeon
bound to "bring to his aid" the skill necessary for the purpose.
If the fracture in question was one which might have been
restored by the exercise of ordinary skill, there was no error in
requiring its exercise from one who held himself out as possess-
ing it, and received compensation for his services in consequence
of his represented professional ability. This brings us to the
question, was the injury one which might have been cured by the
exercise of ordinary surgical skill? To decide this question we
must have a description of the fracture. The evidence given has
not been brought up by the l)ill of exceptions, and the defendant
in eiTor objects to that part of it which has been inserted in the
paper book, without being certified as correct. The only testi-
mony presented here for consideration, by the plaintiiY in error,
is the deposition of Dr. Duncan, who was his student at the time
of the injury, and visited the patient in company with his pre-
ceptor, after the first visit of the latter. This witness describes
the injury to be "an oblique comminuted fracture of the tibia
and fibula, nearly half way from the ankle to the knee, or there-
130 MALPRACTICE.
abouts ;" and informs us, in speaking of the treatment of it by
Dr. McCandless, that " there were splints on the fore and back
parts of the leg, reaching from the ankle to the knee, to keep up
extension and counter-extension." Dr. McCandless, on this
visit, complained that the patient had " disturbed the bandages
and dressing by loosing them;" and the patient ''defended the
act of loosing the bandages, because the leg was painful." The
witness further states that the leg. at this time, was " considerably
swollen."
We have no precise account of the manner in which the splints
were secured, so as to " keep up the extension and counter-exten-
sion," for which the witness tells us they were designed. I am
unable to comprehend how splints, " reaching only from the knee
to the ankle," could be applied to such a purpose without mani-
fest danger of injury, by means of the attachments which would
be necessary to produce the result. Extension, as used among
surgeons, is the force exerted on the lower fragment, in order to
bring its superior extremity lower than the inferior extremity of
the superior fractured portion ; and counter-extension is a resist-
ing force, which prevents the whole limb, or even the body, from
obeying the force of extension. The attachment, by means of a
circular bandage at the ankle, for the purpose of extension, and
that at the knee, for the purpose of counter-extension, would tend
to impede the circulation, particularly the venous return, (which
ought not to be obstructed,) and would irritate the parts so as to
produce great pain and probable injury. Professor Boyer, in his
Lectures on Diseases of the Bones, recommends that the splints
should be long enough to extend from the knee to a short dis-
tance beyond the sole of the foot, and that they should rest per-
pendicularly on their edges, and a third splint on the anterior
portion of ^he leg. Professor Miller, in his Prlndjjles of Surgcnj,
states that the splints should "invariably be of sufficient length
to command the neighboring joints ; otherwise, by rotation, re-
displacement will certainly take p'ace." Dr. Hutchinson recom-
mends splints extending from the knee six or eight inches below
AMERICAN ADJUDICATED CASES. 131
the sole of the foot, so as to dispense with irritating attachments
at the ankle. But Professor Dorsey, whose skill and experience
entitles his opinion to great respect, in his work on surgery,
informs us that even Hutchinson's convenient method is found to
produce great irritation, and to cause the leg to swell from the
pressure of the cii'cular bandages; and that when this happens in
oblique fractures of the leg, (such as the case in question,) '-the
long splint of Desault must be substituted, and the counter-exten-
sion made at the pelvis, in the same manner as in the case of a
fractured thigh, except that the leg must be dressed with the
bandage of strips." In fractures of the thigh, permanent exten-
sion is usually efiected by means of a long splint, acted on bv a
band attached to its upper extremity, and passed over the peri-
neum, by the tightening of which the splint and the limb are
pushed steadily downward. By the addition of a shorter splint,
but long enough, nevertheless, to extend Irom the pei'ineum to
six or eight inches beyond the sole of the foot, united at the
lower extremity to the long sphnt, by means of a cross-piece, the
extending force could be applied to the ankle by atlachmeuts to
the cross-piece, in such manner as to avoid u'ritatiou or other
injury. But, according to the opinion of eminent surgeons, "a
short splint, extending a little above and below the fractures only,
is not only an absurdity, but a mischievous absurdity.^ Enter-
taining these views of the case, I am bound to say that the
plaintiff in error has failed to satisfy me, either upon jihilosophicai
principles or by surgical authority, that the means made use of
for the purpose of producing " extension and counter-extension,"
were adequate, or even proper for the purpose. If this was a
case in which such extension by artificial means was not required, •
the mere want of adaptation of means to that end would be im-
miiterial. But we must remember that the fracture was oblique,
not transverse ; that it was connninuted ; that is, the bones were
broken, not only at one point, but many, and that both the tibia
^ Miller's Prin. Surgery, 506.
132 MALPRACTICE.
and fibula were thus fractured. Under these circumstances, in
preventing the shortening of the limb by the contraction of the
muscles, no reHance could be placed upon the bones thus broken
into fragments. The necessity of supplying the place of these
natural splints, by artificial means, m,ust, therefore, have been
manifest to a surgeon of ordinary skill in his profession. But in
addition to the application of means not sufficient to produce the
result which was indispensable to a proper restoration of the leg,
there is reason to believe, judging solely from the imperfect view
of the evidence presented by the plaintiff in error himself, that
the short splints were applied by attachments above and below
the fracture, so as to impede the circulation, to irritate the parts,
to cause the limb to be " considerably swollen," and to produce
so much pain that the patient, notwithstanding the strong motive
which he had to submit to any treatment likely to effect a per-
fect recovery, " loosed the bandages because the leg was painful."
If this was the case, whatever may be thought of the propriety
of the original application of these means of extension, their
continuance, and the neglect to adopt others less liable to objec-
tion, was prima facie evidence of a w^ant of surgical skill, and,
if not explained to the satisfaction of the jury, the defendant
below ought to answer in damages for the injury.
A patient is bound to submit to such treatment as his surgeon
prescribes, provided the treatment be such as a surgeon of
ordinary skill would adopt or sanction. But if it be painful,
injurious and unskillful, he is not bound to peril his health, and
perhaps his life, by submission to it. It follows, that before the
surgeon can shift the responsibility from himself to the patient,
on the ground that the latter did not submit to the course recom-
mended, it must be shown that the prescriptions were proper, and
ad;tpted to the end in view. It is incumbent on the surgeon to
satisfy the jury on this point ; and, in doing so, he has the right
to call to his aid the science and experience of his professional
brethren. It will not do to cover his own want of skill by raising
a mist out of the refractory disposition of the patient.
AMERICAN ADJUDICATED CASES. 133
The " intemperate habits " of the patient are also relied upon
here. But this furnishes no excuse for the want of skill in the
surgeon. On the contrary, it was a circumstance calculated to
admonish him that the case called for more skill and care than
cases of less difficulty demand. We are, therefore, brought back
to the main question in the cause.
1. Did the surgeon exercise ordinary skill and care in his
treatment of the patient ? If he did, he is not liable. If he
did not, he is.
2. Was the injury one which, under all the circumstances,
might have been perfectly cured by ordinary surgical skill and
care? If it was, and the surgeon failed in his duty in this
respect, the damages ought, at least, to be commensurate with
the injury. If the injured limb was not susceptible of a more
perfect restoration, the surgeon would, nevertheless, be liable for
any unnecessary pain or delay occasioned by the application of
unskillful and improper remedies.
Although the error assigned may not be fully sustained, we
have, nevertheless, a right, in our discretion, to reverse for an
error not assigned, if it is believed to involve an important prin-
ciple, or to affect the justice of the case. In the charge the
court told the jury, in substance, that the surgeon was bound to
bring to his aid the skill necessary to effect a perfect restoration
of the leg. The propriety of this instruction depends upon the
question whether the injury was one which, under all the circum-
stances, a surgeon of ordinary skill might have perfectly cured.
This was a question of fact, which should have been submitted
to the jury. Plain as the question may seem, it is not a matter
of law, the decision of which can be taken from them and as-
sumed by the court. There was, therefore, error in giving the
peremptory and unqualified direction which withdrew this part
of the case from the jury. But there are errors of omission, as
well as those of commission. When the Judge spoke of the
obligations of the surgeon to bring to his aid the necessary skill,
he ought to have enforced the correlative duties of the patient,
134 MALPRACTICE.
to submit to all the skillful and proper requirements of his pro-
fessional attendant. When the jury were told, in effect, that the
defendant was liable if he failed to exercise the skill necessary to
a perfect restoration of the leg, they ought also to have been
informed that if he exercised ordinary skill and care, he is not
responsible for the disastrous result which ensued. Where a case
turns upon a question of fact, the jury should be advised of the
conclusions of law which apply to each aspect of it. The object
of instructions is to enable the jury to form an enlightened
judgment on the whole case. The errors of commission and
omission referred to, tended to give the jury a one-sided view of
the controversy ; and, when considered in connection with the
facts that a professional man was on trial before a jury of lay-
men, and that the court, instead of guarding him, as in duty
bound, against the prejudice likely to arise in such cases, actually
indulged in a strain of remarks calculated to influence them, it
is our duty to correct all the errors within our reach. The
remarks complained of in the second assignment of error, affirm
no principle of law, and are, therefore, not the subject of review
here, further than as they suggest the propriety of exercising a
prudent discretion in regard to matters which are subject to
review.
It is important to the interests of society that the profession
intrusted with the preservation of the health and lives of the
community, should be held to a strict rule of accountability.
Men of true science will not object to this. They court investi-
gation. But the incompetent practitioner and the designing em-
piric " love darkness rather than light," and the sooner they are
driven by judicial scrutiny into other pursuits, for which they
are better qualified, and where they can do less mischief, the
better for the public welfare. But it is equally important that
professional services should be fairly treated, and that true skill
and worth should receive the firm protection of the law. All
men have a right to the instructions which make in their favor.
But the exigency of the surgeon's case rendered them indispen-
AMERICAN ADJUDICATED CASES. 135
sable on the present occasion. The difficulties which seem to
stind in his way are sufficient, without aggravating them by
withholding the proper instructions in his favor.
For these reasons I am in favor of reversing the judgment
and awarding a venire de novo.
Black, G. J. — We all concur in the law of this case. The
Judge, in his charge, fell into an en'or in stating the amount of
skiU required in the treatment of the case. We reverse for that
reason. But when we decide the legal point we are done with it
We are not authority on the questions of surgery. Our hands
are abundantly full of questions which belong to our own pro-
fession, without volunteering opinions on sciences which relate
to others. I think it necessary to say this in order to prevent
the court below, on second trial, from supposing that we intend
to give them any instructions on matters in which we have no
jurisdiction.
But this is my own opinion, for which no other member of
the court is responsible.
LEIGHTON r. SARGENT; 7 Foster's Reports, 460.
Trespass on the case. The declaration contained two counts,
as follows :
"In a plea of trespass on the case, for that whereas the de-
fendant was, is, and for many years last past has been, a physi-
cian afld a surgeon, and during all the time aforesaid had exer-
cised and carried on, and still exercises and carries on, the art,
mystery and profession of physician and surgeon, to wit: at
Straftbrd, aforesaid ; and while the said defendant so used, exer-
cised and carried on the said art, mystery and profession of
physician and surgeon, as aforesaid, to wit : on the first day of
September, A. D. 1850, the said plaintifl' employed the said
defendant, for a reasonable reward to be therefor paid, by the
said plaintiff to the said defendant, to treat, set, cure and heal
the right anlde and foot of the said Leighton, which he then
and there had dislocated, put out of joint, disruptured, broken,
136 MALPRACTICE.
fractured, wounded and bruised; and although the said defendant
did then and there pretend and attempt to treat, set, cure and
heal the said ankle and foot of the said plaintiff, dislocated,
put out of joint, disruptured, broken, fractured, wounded and
bruised as aforesaid; yet the said defendant then and there
so negligently, carelessly and unskillfuUy behaved and governed
himself, in and about the setting, treatment and care of the
plaintiff's said ankle and foot, that, for the want of skiU and
the proper application of splints, and the application of proper
medicaments and remedies thereto, and by and through the
mere neglect, default and unskillfulness of the said defend-
ant, in that behalf, as a physician and surgeon, the said
ankle and foot of the said plaintiif became greatly inflamed,
swollen and festering, and remained so inflamed, swollen and
festering for a long space of time, to wit: for the space of
eighteen months, and finally became stiff, set, immovable and
fixed in an unnatural position, carrying the toes of the said right
foot lower than the heel of the same foot, to wit : four inches
lower than the heel of the said right foot ; and the said ankle
and foot remained, and ever since have been, and are now, stifij
set, immovable and fixed in an unnatural position, as aforesaid,
whereby the said Leighton suffered, and still suffers, great pain
and distress ; and so the said ankle and foot were not set, cured
and healed, but, on the contrary, in consequence of the unskill-
fulness, negligence and carelessness of the said defendant* in the
premises, the plaintiff's said ankle and foot have become set,
stiff, immovable and fixed in an unnatural position, incurable
and almost wholly useless, whereby the said Leighton has been,
and still is, unable to move and walk about without the aid of
canes, crutches or other aids, or to labor or do any work, and
has suffered, and still suffers, great bodily distress and pain."
The second count is in the same form to the words "and rem-
edies thereto," and adds, "And the default and neglect of the
defendant, in not properly extracting and removing the splints
and fractured bones therefrom, and by and through the mere
AMERICAN ADJUDICATED CASES. 137
carelessness, negligence and unskillful ness of the said defenaant,
in that behalf, as a physician and suigeon, the said ankle and
foot of the plaintiff then and there became greatly inflamed,
virulent, corrupt and festering, and a mass of gathering, putrid
sores, and remained so inflamed, virulent, corrupt and festering,
and a mass of gathering, putrid sores, for a long space of time, to
wit: from thence to the day of the date hereof, and have finally
become stiff, weak and almost useless, and the said foot and ankle
remained, ever since has been, and is now, inflamed, virulent,
corrupt and festering, and a mass of gathering, putrid sores,
whereby the said Leighton suffered, and still suffers, great pain
and distress ; and so the said ankle and foot of the said plaintiff
were not cured and healed, but, on the contrary, in consequence
of the carelessness, neglect and unskillfulness of the said defend-
ant in the premises, the plaintiff's said ankle and foot have be-
come weak, inflamed, corrupt and festering, and a mass of gath-
ering, putrid sores, and incurable, whereby the said plaintiff has
been, and still is, lame, decrepid and unable to walk without
canes, crutches, and other aids, and has been, and still is, unable
to labor or do any work, and has suffered, and still suffers, great
bodily pain and distress."
Upon the trial, upon the general issue, it was proved that, on
the first of September, 1850, the plaintiff, in consequence of
being thrown from a carriage, sustained a severe injury, in and
about the ankle, of such a character that, under skillful treat-
ment, it might be expected to result in the stiflhess and loss of
the use of the ankle joint ; that the defendant was employed as
a surgeon to attend upon the plaintiff, and treat the case, and did
so attend from the day the injury was received until about the
12th of January following, and attempted the cure of said injury.
On the part of plaintiff, it w.is contended that the defendant
neglected to place and keep the foot in a position at or nearly at
right-angles with the leg; but, on the contrary, suffered it to be-
come fixed with the forward part of the foot depressed at an angle
of about thirty or forty degrees with the leg, whereby the Umb
138 •-•'- MALPRACTICE.
was rendered useless in walking; and that by proper treatment
and the application of proper means, on the part of the defend-
ant, it might have been fixed, if the ankle joint became stilT, in
a position at, or nearly at, right-angles with the leg, and thereby
have been much more serviceable and useful to the plaintifl'; and
this was the principal ground upon which the plaintiff claimed to
recover damages.
The defendant objected that, under the form of declaration in
this case, the action could not be maintained upon that ground,
but the court held otherwise, and overruled the objection.
The plaintiff having introduced evidence tending to show
unskillful and improper treatment of the case by the defendant,
the defendant then offered to prove that he had received a good
medical and surgical education ; that he had attended a course of
instruction in surgery at a medical school of high reputation, and
had otherwise received good, scientific tuition in surgery, and was
a regularly-educated and skillful surgeon and physician; to which
the plaintiff objected, and the court rejected the evidence.
The defendant introduced evidence tending to show that he
used means to bring the foot up, and to keep it in the proper
position ; and he introduced, among other witnesses, Mrs. Jones,
who testified that, on one occasion, when at the plaintiff's house,
while he was under the care of the defendant, she saw a book
placed behind the foot-board of the box in which the injured limb
was placed, in such a manner as to raise the foot-board and the
foot resting against it, to a position nearly at right-angles with
the leg.
The plaintiff's counsel, in the course of the cross-examination,
attempted to throw discredit upon this statement of the witness,
and also introduced evidence tending to show that said foot-board
wns not raised up in the manner stated by the witness, by means
of a book, or any other substance placed behind it. The defend-
ant, for the purpose of corroborating the statement of said wit-
ness, then proposed to prove, by the husband of the witness,
that she stated to him, on her return home from the plaintiff's
AMERICAN ADJUDICATED CASES. 139
house, on the occasion referred to, that she saw the book behind
the foot-board, raising it up, as testified by her upon the stand.
To this the plaintiff objected, and the court rejected the evidence.
The jury returned a verdict for the plaintiff for $1,500 dam-
ages, and the defendant moved that the same be set aside, and a
new trial granted, for the causes aforesaid.
For the the defendant it was said — 1. The plaintiff alleges, in
the first count, that in consequence of the "mere neglect, default
and unskillfulness of the defendant, the ankle and foot of the
plaintiff became great!}' inflamed, swollen and festering for
eighteen months, and finally became stiff, set, immovable and
fixed in an unnatural position;" and in the next count says
nothing of the remote consequences resulting from the surgical
treatment, but alleges " that through the m.ere carelessness, negli-
gence and unskillfulness of the defendant, the ankle and foot of
the plaintiff became greatly inflamed, virulent, corrupt and fester-
ing, and a mass of gathering, putrid sores, and remained so from
thence hitherto." In both counts the dn-ect and immediate in-
jury complained of is the setting, festering, inflammation and
sores, and the position of the foot is alleged to be the conse-
quence of this inflammation and these sores, after eighteen
months' duration.
The injury complained of the plaintiff failed to prove. On
the other hand, every medical witness introduced, both for the
plaintiff and defendant, testified distinctly that the swelling,
festeiing, inflammation and sores were a necessary and unavoidable
consequence of the severe injury and fracture the plaintiff had
received, and would accompany the best possible surgical treat-
ment.
The plaintiff then abandoned this ground of action, and
attempted to prove that the foot was not jtlaced and ke[tt in a
proper position, while under the defendant's care as surgeon.
This he should not have been permitted to do.^
1 1 Saund. PI. and Ev. 344, Tit. Variance ; Hulmun v. Bennett, 5 Esp. 226.
140 MALPRACTICE.
"The cause and manner of committing the injury must be
substantially proved as laid."
The case shows that the defendant attended on the plaintiff, as
surgeon, four months and twelve days; and the only allegation
in the declaration, in regard to the position of the foot and ankle,
is, that after eighteen months, in consequence of the swelling,
etc., the foot became fixed in an unnatural position.
The allegation is not sustained by the proof; there is a fatal
variance, and the plaintiff must be non-suited.^
*' Where a wrongful act and an injurious consequence are
alleged, the consequence must be shown to result immediately
from the act : it is not sufficient to connect the act with a remote
consequence, by evidence of intermediate causes."
2. The defendant is charged with unskillfulness. The plain-
tiff introduced wicnesses to show that the best medical and sur-
gical books directed and prescribed a certain course of treatment,
different from that pursued by the defendant in this case ; and
then urged that the defendant was unacquainted with the prac-
tice of surgery, as laid down in the books of his profession, and,
consequently, ignorant and unskillful.
To rebut this and the like evidence, the defendant offered to
prove " that he had received scientific tuition in surgery, and was
a regularly-educated and skillful surgeon and physician;" and we
contend that such evidence would have a material bearing on the
question of unskillfulness. If the defendant could show that he
had surgical knowledge, or had taken all the steps and employed
the best means to acquire it, he would certainly be less obnoxious
to the charge of unskillfulness, than if he knew nothing of his
profession ; and it is one step in the defense to the charge of
unskillfulness, to show that the defendant was well qualified to
treat such cases. At any rate, it was a good and legitimate
answer to the evidence introduced by the plaintiff.
3. The evidence to sustain Mrs. Jones should have been
> 2 Stark Ev. 1584, Art. Variance,
AMERICAN ADJUDICATED CASES. 141
received. The plaintiff attempted to discredit her, by showing
that her story was a recent fabrication, and the defendant should
be allowed to answer such attempts in the manner proposed.
For the plaintiff — 1. The declaration is sufficient to maintain
the suit for the defendant's neglect to place and keep the [slain-
tiff 's foot in a right position, as well as upon the other grounds
stated. It formally, distinctly and fully sets out this ground of
damage, and it would be difficult to make it more direct and dis-
tinct in the particular to which exception has been taken.
It is of no consequence when the ankle became stiff and fixed
in a wrong position, if, as it is alleged in the declaration, that
fixedness and stiflftiess in that wrong position was the result of, or
caused by the negligence, carelessness and want of skill in the
treatment of the limb, and the jury, under the instruction of the
court, must have found that fact, before they could have agreed
upon their verdict. But in the case at bar, it appears from the
record that the stiffness, etc., happened before the bringing of the
suit, and that fact, taken in connection with the distinct allega-
tion in the declaration, that it was occasioned by the defendant's
Malpractice, is sufficient.^
2. The testimony of the husband of Mrs. Jones, the witness,
was properly rejected by the court.*^ There are some slight
exceptions to and modifications of this rule, but the case at bar
does not come within either.
3. The evidence offered by the defendant, that he had received
a good medical education, etc., was inadmissible, and was properly
excluded. Mertz v. Detweiler^ is a case directly in point. In
this case the defendant called a physician, and proposed to prove
by him that he knew the defendant — thnt he had practiced with
him as a surgeon, and knew his skill and character as a surgeon.
The defendant also offered evidence in regard to his knowl-
1 Ware f. Gay, 11 Pick. 106 ; 2 N. H. Rep. 160 ; 2 Pick. 214 ; 17 Johus. 92.
2 1 Stark Ev. 148 ; Bull. N. P. 294 ; 1 Ptiill. Ev. 307, 308 ; 2 Steph. N. P. 1787.
3 8 S. & R. 376.
142 MALPRACTICE.
edge of surgery, anatomy, qualifications, etc. The evidence was
rejected by the court, when the learned judge who gave tlie opin-
ion, said the testimony of the defendant's general skill, etc., was
clearly irrelevant ; it was not that, but his treatment of the par-
ticular case, with which the jury had to do. If the latter was
notoriously bad, of what account would be his abstract science, or
treatment of other cases. It may be said that his general quali-
fication might seem to shed light on the propriety of his practice
in this particular instance ; but it is light which would be less
likely to lead to a sound conclusion than to lead astray.
The jury, assisted by the opinions of medical witnesses, would
be better able to judge of the treatment from the treatment itself,
than from the more remote consideration of the defendant's pro-
fessional reputation, which was, consequently, not the best evi-
dence of which the case was susceptible.^
Bell, J., in a long and able opinion, arrived at the following
propositions as the opinion of the court :
1. A physician or surgeon, without a special contract for that
puqDose, is never considered as warranting a cure.
2. His contract, as implied in law, is, that— 1, He possesses
that reasonable degree of learning, skill and experience which is
ordinarily possessed by others of his profession ; 2, That he will
use reasonable and ordinary care and diligence in the treatment
of the case committed to him ; 3, That he will use his best judg-
ment in all cases of doubt as to the best course of treatment.
3. He is not responsible for want of success, unless it is proved
to result from want of ordinary skill, or from want of ordinary
care and attention.
4. He is not presumed to engage for extraordinary skill, or for
extraordinary diligence and care.
5. ITe is not i-esponsible for errors of judgment, or mere mis-
takes in matters of reasonable doubt and uncertainty.
0. Where the declaration against a surgeon alleged that the
» 1 Saund. PI. and Ev. KH ; 3 Burr, 1918 ; 9 Bing. 333 ; 5 B. & A. 840.
AMERICAN ADJUDICATED CASES. 143
plaintiff sustained injury from the want of skill and mere neglect
of the surgeon, in the treatment of a fracture, it was held that
evidence that the defendant had received a good surgical and
medical education, and was a regularly-educ ited and skillful sur-
geon, could not properly be shut out Irom the jury, because it
tended to disprove a materi »1 allegation of the declaration.
On the last point the court says: "The declaration alleges
that the injurv- occurred because the defendant so negligently,
carelessly and unskillfuUy behaved himself in and about the
treatment, etc., that, for want of skill and the proper application
of spHnts, etc., by and through the mere neglect, default and un-
skilltiilness of the defendant, the plaintiff was injured.
It is, from this statement, uncertain whether it is to bo insisted
that the defendant was ignorant, and knew nothing of the proper
surgical treatment of such an accident as the plaintiff had suf-
fered, or that, being properly educated and competently learned
in his profession, he had acted from negligence <'md carelessness,
contrary to what must have been his better knowledge and judg-
ment, if he had given proper attention to the case. Nothing in
the declaration confined him to either of these views ; and nothing
had occurred in the course of the trial to restrict the plaintiff to
the point of negligence. He was, therefore, at liberty to take
his position before the jury, that the defendant was ignorant and
unskillful, or that he was negligent and careless, or, if he was so
pleased, that he was both unskillful and negligent. Any evi-
dence, then, calculated to repel the inference of ignorance and
unskillfulness, to show that he was a man of suitable education
and acquirements for the safe practice of his profession, must
surely be competent and proper. Such evidence must change
the whole position of the case before the jury, because, if the
jury were satisfied he had proper knowledge and skill, the only
question must then be whether he had adopted the course of his
treatment from misUike, mere error of judgment, or from negli-
gence and want of ordinary care. This, it is obvious, presents a
very different state of the question from that where the points of
144 MALPEACnCE.
ignorance, negligence and error are to be considered. As the
evidence in question seems to us both pertinent and mateiial, as
tending to show ordinary knowledge and skill, we are satisfied it
should have been received; and for this cause the case must be
sent back for a new trial.
We have examined the declar-^tion, and it seems to us suf-
ficient,"
CHAPTER X.
ALLEGED MALPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY.
One of the greatest minds that ever adorned the profession of
medicine, spent much time in writing a book to illustrate the
wisdom of God, as manifested in the structure of the hand ; and
though the work was left half done, it is calculated to astonish
the mind at the singular structure of that organ, and the power
and wisdom of the Maker.
Great and wonderful as is the hand — innumerable as are the
wonderful works of the Creator that fill us with amazement and
awe, the human eye stands out, when considered in all its wonder-
ful complications and adaptation to give pleasure to the soul, as
above them all, and may well be considered as " wonderful " a
piece of mechanism as ever came from the hand of God. It is
the most perfect optical instrument into which the light ever passed.
In it, all the difficulties that have prevented the construction of a
perfect telescope are overcome. By the dififerent refractive powers
of the transparent medium through which the rays of light pas^,
and by the curvature given to their respective surfaces, both the
spherical and chromatic aberrations are corrected in a degree
sufficient for all purposes. The powers by which it adapts itself
to variation in the distance of the object, so as to form a distinct
image of it, whether it be six inches, six yards or six miles off,
are extremely remarkable, and can not be regarded as hitherto
completely explained.
The eye is the most complex and complicated of all the organs
of the body. The delicacy of the structure is not surpassed by
its complicated arrangement, but is equally wonderful. The value
of this organ can not be computed. The surgeon, therefore, who
10 (145)
146 MALPRACTICE.
undertakes to treat the eye with medicine, or by operation, must
understand his business thoroughly. A higher degree of knowl-
edge is necessary, in treating this most important, complex and
delicate part, than may be required to treat the grosser portions
of the body. The least error, in treating the eye, might extin-
guish it forever. It is not safe, therefore, for the patient or the
surgeon, to undertake the surgical management of this organ
without a specially thorough knowledge of its anatomy — the
effect of inflammation in the different structures, it being differ-
ent upon each — and the effect, to a nicety, of a medicine or an
operation. Neither medical science nor law will tolerate guessing
in the treatment of this organ. Quackery can not show itself
here, without dangerous results.
It is not singular, then, that suits for Malpractice may result
from the treatment of this organ.
McMILLEN v. HEWITT, SPRAGDE AND KODilAN ; District Court, Cuyahoga Co.
This important case was tried before Judge Brinkerhoff, of
the Supreme Court of Ohio, at the October Term of the District
Court of Cuyahoga County, A. D. 1857, having passed through
several lower courts.
Ingersoll, Kelly and Grisivold, for plaintiffs.
John McISIillen, jr., charges Hewitt, Sprague and Rodman,
defendants, in his petition, that he employed them, they being
physicians and oculists, to attend and treat his eyes, the defend-
ants holding themselves out to the public as especially learned
and skillful as ocuhsts; but, instead of using due and proper
care, skill and diligence in and about the treatment of the plain-
tifij they then and there conducted themselves in an ignorant,
unskillful and npgligent manner in that behalf, in this, to-wit :
that on the 3d day of August, 1853, and during divers other
days, then next following, and before the commencement of this
suit, the said defendants bled and cupped the plaintiff in a pro-
fuse manner, taking blood to a great, immoderate and unneces-
sary extent, which the defendants would not hr.ve done had they
MALPRACTICE IN OPHTHALMIC MEDICINE .IND SURGERY. 147
used due and proper care, diligence and skill. The petition
further charges that on the od day of August, LS53, and at
divers other times, the defendants immoderatel}', unskillfully and
negligently, administered to the plaintilf immoderate and im-
proper doses of medicine, to wit : cathartics and other reducing
medicines and applications, which they would not have done had
they used due and proper care, diligence and skill. By reason
of which improper treatment the plaintiff was greatly injured,
whereby the plaintiff sustained damages to the amount of five
thousand dollars.
Slade and AndreivH, for defendants.
The defendants, in answering the petition, admit that they
treated the plaintifi' for a disease of the eyes, but not under the
circumstances stated in the petition. They deny, however, that
in the treatment of the plaintiff's eyes they conducted them-
selves in an ignorant, unskillful and neghgent manner, either in
blood-letting or in the administration of medicines ; but, on the
contrary, the general treatment of the plaintiff was proper and
correct, under the peculiar symptoms and circumstances of the
case. They deny that any unfortunate result, if any, resulted
from want of care or skill on their part, but was owing to the
peculiar severity of the disease, there being strong tendencies to
relapses and unfortunate results ; that they brought to the treat-
ment of the plaintiff's case the ordinary skill of physician and
oculist, and continued honestly and faithfully to exercise that
skill while they treated the case.
The testimony in this case wns quite contradictory. Eminent
physicians and surgeons differ as to the facts. There is also a
slight difference of opinion as to the treatment required in this
kind of disease.
The plaintiff and the principal operator in the case, Dr. Sprague,
appeared and testified. The plaintitT said his eyes were fu'st afiected
while tinning the roof of a church, between the 15th of June and
the 1st of July — had pain in the back of the head — continued to
work till the 2d of July; did not work from the 2d to the 5th;
148 MALPRACTICE.
kept at work till the last of July ; used poultices and Thomp-
son's eye water ; called on Prof. Delamater the latter part of July ;
he gave salts and pills, and called second day ; called again, and
he sent me to be cupped ; took from eight to twelve ounces of
blood ; next day he gave me pills and salts again ; had seen
Sprague's (defendant's) hand-bill ; hand-bill said that Sprague was
an ocuHst recommended by Hewitt and others ; father went for
Sprague at my request; Sprague came on Wednesday, about
three or four o'clock ; he said my eyes were in a bad condition ;
said I had iritis in second stage in right eye, and in first stage
in left eye ; he sent me salve and eye water ; I called next morn-
ing at nine o'clock ; saw Sprague and Rodman ; they said I must
be bled, and took about a pint of blood ; I called next day, and
he brushed my eyelids; I called every day, up to Tuesday,
August 9th, when he bled me again ; next time he cupped me ;
I kept on a week ; he then called on me for a week or ten days ;
then bled me again ; I went to sister's, and he treated me there
five or six weeks ; the first day gave me two large pills — one to
move my bowels, the other not ; he gave me iodine, five drops
per day, one drop to be added daily ; kept on till I took twenty-
two or twenty-three drops a day ; he then gave me wahoo and
other herbs ; gave me a box of salve to rub on outside of Hds ;
also, a salve to rub on in the morning, that pained me very much ;
I dropped it ; the noon salve did not pain me much ; the evening
salve pained me some ; at my sister's, gave me anotlier severe
eye water to use three times a day ; he gave me another to apply
after the first, to allay its effect. When Sprague came my bodily
health was good ; right eye inflamed a good deal ; could read
with both eyes ; right eye, when used, would blur and get watery ;
he gave me medicine to remove the granulations ; it was painful;
used a brush to put stuff into eyes, and then brushed it out
with water several times; once he touched ball for ulcer; then
he could not work it out; lids came down; my gums were
affected some four days after Sprague commenced ; Sprague said
it was canker, and ordered me to gargle it with borax and alum.
MALPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY. 149
The last time he came was on Sunday ; I told him I would like
counsel ; he said he would consult on the general constitution,
but not on the eye ; I mentioned Delamater, Ackley, Everett ;
Sprague said he had never given me any mercury ; my body was
helpless nine weeks after Sprague commenced ; could not see
any ; Sprague bled me four times ; two first at office, third time
at my father's, and fourth time at my sister's ; Sprague admitted
I was worse ; said I might bear to be bled some ten or fifteen
times more — might take a year to cure me ; I told him I could
not last that long ; he put blisters between my shoulders ; lump
came out, and Sprague said I had scrofula, and that would retard
the case ; said I had the devil in me ; I began to improve two or
three days after ; got out of bed in two months ; in December
went out of doors; could distinguish objects in February or
March, 1854; \iear a year before I could distinguish counten-
ances; about two years before I began to read.
Cross-examination. — Went to a quack once or twice, who gave
me a bottle of stuff; admitted I was worse after taking it ; never
said I was getting better ; eldest brother had bad eyes ; my sister
has weak eyes.
John McMillen, sen., father of the plaintiff, testified that John's
bodily health was good when Sprague began ; saw him only once
or twice at his sister's; appeared very low; stopped from work
twenty-one to twenty-two months ; can not now do more than a
half day's work ; Dr. Hewitt is a good physician.
Proctor Thayer, Professor of Anatomy in the Cleveland Med-
ical College, testified as follows : Been in practice ten or eleven
years; John called two or three times on Prof. Delamater; I
made no examination ; I don't remember the conversation ; on
Sunday he came with his father ; Dr. Dalamater sent him to be
cupped ; on the following Monday or Tuesday reported himself
much better ; I perceived that the eye had cleared up ; Dr. D.
treated him a long time before I saw him ; again, in winter,
reduced a good deal ; eyes opaque, white and clouded ; corneitis
and iritis not difficult to distinguish ; in corneitis the cornea is
150 MALPRACTICE.
opaque; in iritis altered colors — blue eyes change to yellowish
cast ; in one hundred bad cases of iritis, ninety will show marks ;
bleeding is more necessary in iritis than in corneitis, though
proper in corneitis, guided by the constitutional symptoms;
should bleed and repeat, if necessary, in either case ; in iritis
bleeding should be practiced early; iritis requires thorough
antiphlogistic treatment — blood-letting, mercury and belladonna.
I have never seen any indication of iritis in McMillen's eyes ;
do not believe he ever had ulcers of the cornea; in either case
treatment should not be delayed ; would bleed even a scrofulous
case if constitutional symptoms demanded it; once bleeding
would not materially weaken a man ; should apply crystal sul-
phate of copper to the eye, if there were granulations, by hold-
ing up the eyelid, and then working it .out ; if the eyes were
differently diseased, should use difierent remedies^ soothing salve
would do no harm in either eye ; severe salves should not be
appHed to eyes affected with acute inflammation ; think McMillen
had corneitis; would bleed in corneitis and conjunctivitis, if
there was fever ; apply soothing substances and give mercurials.
Cross-examination. — Some surgeons would take blood, some
give antimony and salts, some would give mercury, without blood-
letting or antimony ; bufly appearance of blood indicates inflam-
mation ; eyes in ditferent stages of disease more difficult to treat
than where the inflammation is alike in both cases ; good appli-
cations sometimes painful to the eyes.
Professor John Delamater testified as follows : Have practiced
medicine, in all its branches, over fifty years ; McMillen came
with his father to consult me about an eye ; had been troubled
several weeks ; eye aggi'avated — not an ordinary inflammation ;
cornea was cloudy — vision a good deal obscured ; could see iris;
eye dry ; there was a red circle around the base of the cornea,
with some vessels across — some uneasiness of the eye. The
seat of the trouble was in the cornea ; the iris easily becomes
involved in such cases ; gave him laudanum water and epsom
salts ; also, Dover's powder and calomel ; apprehended trouble
MALPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY. 151
unless arrested immediately ; two da}' s after eyes about the
same; gave him a smart purgation, and sent him to be cupped,
about eight ounces ; two or three days he came again ; eyes
apparently greatly improved ; cornea cleared out, and could see
the iris; told him to go on with Dover's powder and calomel
and wash ; heard nothing more of him for several weeks ; gen-
eral health good ; firm, strong man ; no fever then. Six or eight
weeks after this, when I next saw him, he was low and confined
to his bed ; no appetite ; had fever ; both eyes afiected ; eyelids
swollen, cornea red and cloudy ; eyes perfectly dry ; needed tonics
and mercury ; the disease was aggravated ; as soon as his mouth
became sore he improved ; next tried eye wash ; found it did not
work well, and went back to soothing treatment; Dr. Sterling
advised cutting off vessels ; worked well at first, but finally it had
to be abandoned ; I took him to get Professor Ackley's advice ;
he advised tonics, quinine and calomel ; also, a bUster over the
eyelid, which at first seemed to aggravate the difficulty ; brushed
the eye with powder ; this inflamed the eyelid. "When I first saw
him he had corneitis ; general treatment in this disease the same
as in other inflammations ; blood-letting in same class of cases,
cathartic, mild diet, soothing applications to the affected part;
sometimes it is well to use local irritating means ; use of mercury
indispensable ; tonics sometimes indicated ; could not read when
he first come to be treated by me; the iris was in a healthy con-
dition when I saw him the last time before my second treatment,
and there was no necessity for general blood-letting ; blood-letting
is less used in corneitis than in iritis ; acute iritis often destroys
iris in a few days ; it might be proper to bleed a man twice, at a
short interval, in iritis ; mercury is important, and great reliance
placed in it to cure iritis ; second bleeding sometimes used a few
diiys after first ; ]:»lood-letting is not to be relied upon to cure ;
in the low stage, it may be indicated, if something comes in to
aggravate disease ; if the pulse was firm and strong, would prac-
tice general blood-letting at a late stage of case ; such a case as
this requnes in its treatment more than ordinary skill ; where
152 malpractice;
iritis is severe and continues for considerable time, it leaves its
mark, when there is no adhesion ; tendency in inflammation to
extend to the neighboring parts ; when we examined the eye at
the cHnique the iris looked clear ; appearance of intersticial
ulcers — sometimes may go on to discharge of pus; I used to
think such ulcers contained pus, but I was in error ; sometimes
apply sulphate of copper and nitrate of silver with brush, and
sometimes in crystal ; to close eyes without washing might be
desirable in some cases ; the very class of cases that eye doctors
get might require such treatment. Burning eyes out worked well
in many cases, but badly in others ; this was the old practice ;
should be as Hkely to apply sulphate of copper in one eye as in the
other ; scrofulous habit should make us cautious in blood-letting ;
early iritis more controllable than corneitis ; it is difficult to de-
tect iritis ; when cornea is obscured it is guess work.
Cross-examination. — Delays over night have been judicious;
I have committed many errors in practice that I regret ; errors
in medicine are common ; — iritis might not leave its mark.
Gustav C. E. Weber, Professor of Surgery in the Cleveland
Medical College. — Been in practice eleven years ; educated in
Germany, Paris, Amsterdam and Vieima ; there is no difficulty
in distinguishing between corneitis and iritis, when they exist
alone; when corneitis is present, diagnosis of iritis more difficult;
after the diagnosis is determined, there should be no delay in the
treatment ; there is some variance as to the propriety of blood-
letting among surgeons ; authors in different countries of Europe
differ on this point ; the English bleed more than the French or
Germans ; I would bleed in corneitis : nitrate of silver or sul-
phate of copper might be appHed in conjunctivitis, when it would
be improper in iritis; same irritants to both eyes, under diflerent
degrees of inflammation, injudicious.
Cross-examination. — Six years in active duties ; where the
cornea is obscured, other symptoms should guide ; pain, deep and
lancmating, symptom of corneitis and iritis ; iritis attended with
most pain ; persons looking on bright substances are liable to
MALPRACTICE IN OPHTHALMIC MEDICEST ANT) SURGERY. 153
inflammations of the difl'erent structures of the eyes- the iris
might be allected ; also, cornea.
Dr. Elisha Sterling. — Iritis and corneitis, combined with con-
junctivitis, is as distinguishable as small-[)0X and gout; in a
plethoric person, bleeding and calomel might have been neces-
sary, depend on circumstances ; not my practice to bleed at all
in diseases of the eye ; in first stage of congestion it might be
difficult to detect traces of iritis ; the second stage would proba-
bly leave its mark ; can see no trace of iritis in McMillen's eyes ;
belladonna don't discover it 5 corneitis not an obstinate disease
of the eye : three years in practice.
Dr. J. S. Newberry. — It is not difficult for one who is skilled
in his profession to distinguish between iritis and conjunctivitis,
combined with corneitis. It would not be proper to go from
mild to severe treatment, if the patient was improving under the
former; ii the patient was getting weaker and weaker, it would
be injudicious to repeat blood-letting ; severe disease of the iris
generally leaves its mark, that distinguishes it from other dis-
eases of the eye ; I have examined the eyes of the plaintiff some
six months since ; there was no evidence of a disease of the iris ;
there had evidently been corneitis ; the cornea was still somewhat
opaque ; if the patient is of a scrofulous diathesis, we should
deplete with caution ; granulations upon the eyelids are not man-
ifested at the commencement of the disease ; it is the result of
inflammation.
Cross-examination. — Have practiced medicine seven years;
iritis may exist combined with corneitis and conjunctivitis ; in a
severe case of iritis, I should flrst try local depletion ; if that did
not aiTest it, resort would be had to general blood-letting.
Dr. John H. Dix, of Boston, Mass., deposition. — Am an
oculist; have been in practice since 1830 ; treat bf?t\veen eleven
and twelve hundred cases annually ; in general the diagnosis of
iritis is not diflicult ; in severe cases like the one supposed, iritis
would generally leave its mark ; there should be no dehiA' in the
treatment of a severe case of iritis ; corneitis does not generally
154 MALPRACTICE.
require general blood-letting ; local blood-letting will, in general,
be sufficient in corneitis, but sometimes general blood-letting may
be practiced ; I have never had a case of cx^rneitis that required
three or four blood-lettings in six or seven weeks ; in general I
should require considerable deviation from the healthy pulse be-
fore bleeding, but I can conceive a case where the symptoms,
other than the pulse, might require general bleeding; in a
scrofulous habit we should bleed less; in syphilitic iritis I would
at once resort to mercurials, in some form or other ; but in scrof-
ulous iritis I should not probably resort to mercurials till I had
tested the efficacy of other treatment ; when both eyes are differ-
ently diseased, the same stimulants are not usually applicable to
both ; I never use the sulphate of copper or nitrate of silver in
crystal in my practice, though they might be proper under some
circumstances, as, where there are granulations ; the formation of
granulations is a slow process, except in purulent ophthalmia.
Cross-examination. — I could not say, from the hypothetical
case, that it would be bad practice to bleed the patient and give
calomel and jalap ; a buffy coat to the blood would indicate
blood-letting; it might be necessary to bleed three times in a
bad case of iritis ; iritis does not always leave its mark ; in a
severe case the patient often has to be depleted to a considerable
extent before the use of tonics.
For the defense. Dr. Sprague, one of the defendants, testified
that when he first visited the plaintiff he was not reading — was
in great pain — in a room not favorable for examination ; made a
partial examination ; helped him out of the wagon when he came
to the office ; there was an ulcer in the upper and outer part of
cornea ; had suppurated and broken ; in the left eye there was a
radiated zone — hard and bad granulations — getting worse ; had
ceased treatment for a week ; supposed iris was affected ; pupil
contracted in left eye ; disease commenced in outer coat ; gave
him blue pill — also, calomel ; requested me to come to Jones' ;
never saw him on bed until the 6th of September.
Cross-examination. — Left eye, contraction of pupil like small
ftULPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY. 155
shot ; light will contract pupil ; when I darkened the e}'e no alter-
ation took place; in other cases than iritis, r(jtating zone differs
Irom what it is in iritis ; light pink in iritis — darker color in cor-
neitis ; Ibund change of colors in iris, and pupil stationary ;
orange color in the lower part of iris ; pupd drawn down a little
toward nose, cylindrical in shape; bleeding good in syphilitic
iritis ; biniodide of mercury good ; came to his bed more than
two weeks after last bleeding ; was brought to his bed by his
fever ; the last time I bled him was in the sitting room ; last
bleeding reduced the pain in the head and the redness in the
eye ; some five days after, symptoms returned ; applied salve to
acute case ; John wanted me to come again, and not leave him.
Re-examined. — I am forty-two years old ; practicing fourteen
years; studied atCastleton, Vt; practice mixed; spent one year
in studying diseases of the eye, with Dr. Wallace, of N. Y.; about
1st of August McMillen came and said his sou had a very severe
inflamed eye ; went and saw the son ; right eye passed into the
second stage of disease ; an ulcer on cornea ; above and around
cornea opaque ; pupil could not be seen ; sclerotic coat very red ;
conjunctiva swollen ; cornea vascular blood-vessels shooting from
sclerotic enth'ely across ; beneath net-work of blood-vessels white-
ness was seen ; pupil obscured ; left eye cornea tolerably trans-
parent, though blood-vessels over it ; pupil could be seen ; vessels
formed a zone ; conjunctiva very much swollen, massing into
same condition as right eye, discharged considerably ; granula-
tions on upper lid of both eyes ; could not see much ; face
flushed ; pulse full, strong and febrile — 80 to 90 ; fleshy ; iris in
right eye could not be seen ; u'is in the left eye most afl'ected or
threatened ; pain in the head severe ; said he had been under
treatment for a long time, and was getting worse and worse ;
wanted me to treat it ; came to my office frequenth' in open
wagon ; I was at Jones' sometimes ever}' day — sometimes every
other day ; about September 3d I was sent for, as he was worse ;
when I saw him I was surprised, and told him so ; said you have
taken cold ; he had fever and headache ; full, strong pulse, near
156 MALPRACTICE.
90 ; eyes very much reddened ; his voice indicated catarrh — so
bis nose ; he said he had taken cold, and did not know but it was
imprudent doing what he had done ; then bled him the third
time, and, perhaps, cupped after the bleeding ; symptoms miti-
gated ; did not improve much for four or five days ; at this time
Dr. Delamater took charge of the case, and I was dismissed ;
John was never in bed until last relapse.
Cross-examined. — In right eye I judged the iris was inflamed,
from other symptoms than view of iris ; cornea in right eye
suppurated.
Re-examined. — Ointment internal, sulphate of zinc and fresh
butter ; change from active to chronic inflammation gradual.
Dr. Rodman, one of the defendants, agreed with Dr. Sprague,
and sustained what he said.
Prof Ackley testified that he was forty-five years of age ; had
practiced medicine and surgery over twenty years, and had con-
siderable experience in the treatment of eyes, especially during
the last twelve or fourteen years. Upon the symptoms of the
disease, and the history of the case, as given by Dr. Sprague, he
should say it was a very severe case — a case where, in the ma-
jority of cases, vision would be lost under the best possible treat-
ment. I mean the right eye ; and it is often the case when one
eye is lost from severe disease, the other foflows the same course.
Antiphlogistic treatment would be proper ; but no one but the
physician in attendance could determine to what extent it should
be carried. I consider mercury as absolutely necessary. I would
consider the treatment correct, viz.: low diet, blood-letting, calo-
mel and jalap, Dover's powder and a wash. It would be propei
to apply sulphate of copper, in crystal or powder, to the granula-
tions after blood-letting. If the inflammatory symptoms contin-
ued, I should bleed again, and continue mercurial course ; but I
wish to be understood as stating that no one but the attending
physician can be the judge of the necessity of such treatment.
It would be good treatment to cup the temples. There are cases
where it would be proper to bleed three times. An ointment of
MALPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY. 157
sulphate of zinc and fresh butter would be proper, in a vast
number of eases. A wash of acetate of lead, or sulphate of
zinc, or sulphate of copper, would be proper. All such prepara-
tions as blue pill, hjdraryrum cum creia, or hicloride of mercury
would be proper. The radiating zone indicated acute iritis,
almost always, and particularly so when it is secondary upon dis-
eases of the exterior structures. There are some cases where it
occurs, primary and early antiphilogistic treatment cures the
difficulty, and no traces are left. It is necessary so to deplete.
I apprehend that every case would be subject to a variation of
treatment in this respect; but almost every case would require
depletion. In these cases the patient is liable to relapse, Irom
causes over which the physician has no control.
I first saw the plaintiff's eyes in February, 1854 — examined
them carefull}', and had a lull description of the case and treat-
ment from Dr. Delamater, as far as he was connected with the
case. I had no doubt then that the patient had suffered first
from severe conjunctivitis, and then sclerotitis and corneitis, and,
lastly, iritis. The affliction of the iris I then considered as sec-
ondary to the other inflammations. The patient at that time
exhibited a constitution that would render such diseases of the
eye of difficult treatment. I have treated numerous cases of
iritis complicated with conjunctivitis. It is not difficult to detect
disease in the external structures of the eye ; but it is often diffi-
cult to say to what extent, if at all, the interior tissues are involved.
As a geneml rule, when the cornea is so seriously involved as to
be opaque, the iris and other internal structures are involved, to
a gi'eater or less extent. When the other tissues of the eye have
been affected, it is sometimes difficult to detect iritis ; but where
it is a primary difficulty it is not. I never prescribe for iritis
when it is something else, but sometimes prescribe for something
else when it is uitis. Contraction of the pupil is often the result
of iritis. The reputation of Drs. Wallace and Delafield, of N. Y.,
is good. I am not personally acquainted with them ; but I know
their general reputation.
158 MALPRACTICE.
Cross-examinaiion. — There are numerous cases where a well-
read physician or oculist may determine whether the treatment
has been improper, though he has not seen it. As a matter of
course, if the attending physician is to be the proper judge of
the course of treatment, he must be a well-read man. I am not
intimately acquainted with Dr. Sprague's qualifications as a prac-
titioner, but have heard him spoken of as a well-educated physi-
cian and surgeon. I consider Lawrence as good authority on the
eye as we have ; still he has changed his views within the last
ten years. His medical treatment is not equal to McKenzie,
while there is no better operator. Such case, of a severity as
to require three or lour blood-lettings within six or eight weeks,
would, in all probability, leave the cornea imperfect. I would not
practice general blood-letting as Ireely in conjunctivitis and cor-
nel tis as in iritis ; in either case the object would be to hold the
disease in check to get time. I do not often repeat general
blood-letting in corneitis or conjunctivitis. In many cases gen-
eral blood-letting is unnecessary.
Henry W. Williams, of Boston, deposition. — I think the
treatment of the hypothecated case was proper. The application
of crystal sulphate of copper, or nitrate of silver, to granulations,
\vou!d have i3een excellent practice. I am not as much in the
habit of bleeding as many practitioners. It might be proper in
a very robust patient, to bleed three times. I am less inchned to
both blood-letting and mercury than most authorities on the eye
It would be good practice to use the sulphite. The radiating
zone is usually considered to indicate iritis ; but it may be caused
by disease of the cornea. Iritis generally leaves its mark, if not
treated at the outset, but not invariably. The use of tonics be-
fore the system has been depleted, would be injurious. There is
extreme liability to a relapse in severe diseases of the eye. My
age is thirty-three ; have been seven years in practice on dis-
eases of the eye. I have been physician to several institutions
in Boston for diseases of the eye. I have had a hundred cases of
eye disease under treatment at one time. Was educated as
MALPRACTICE IN OPHTUALMIC MEDICINE AND SURGERY. 159
oculist at Paris, London and Vienna, and took my degree at
Harvard University.
Cross-examination. — I place McKenzie and Tyrrell above
Lawrence in the treatment of the eye. The same medicine may
be applied to eyes diflerently inflamed in such a way as to be
proper. Corneitis does not admit of as much blood-letting as
iiitis, except in the acute stage. I would prefer leeches, but
moderate blood-letting would be better than cupping. Local
cupping is liable to cause secondary congestion near the eye, in
the reparative process necessary for the healing incisions ; there-
fore, no local relief might be obtained, though the general health
would be less reduced. I have never employed blood-letting in
corneitis more than once ; it is seldom accompanied with a vig-
orous constitution. The diagnosis of corneitis, as distinguished
from iritis, is not difficult. It might be good practice to watch
the case one day before instituting powerful treatment, in the case
supposed. An abscess discharging purulent matter on the cornea
would be apt to leave its mark. I was once sued for Malpractice
as an oculist, but the suit was withdrawn without any solicitation
on my part, before coming to trial.
William Clay Wallace, of the city of New York, deposi-
tion. — My age is forty-nine. I have devoted nearly thirty
years particularly to the diseases of the eye ; twenty of which
has been in the city of New York. On the hypothecated case
you put, I would have treated the case as indicated. In the
case supposed, blood-letting and mercury, to the extent supposed,
would have been proper. The bichloride of mercury is an excel-
lent alterative, and is highly recommended in similar cases.
Iritis is sometimes very obstinate, and very liable to relapse.
Vision is lost from this complaint under the most accomplished
practitioners. As a general rule, iritis is not difficult of treat-
ment. In the case represented, several structures were inflamed
at the same time; both eyes red and much swollen; eyelids
granulated. Both parties may be correct in their definition of
the case ; it might be called conjunctivitis and corneitis on the
160 MALPRACTICE.
one hand, aad iritis on the other. Judging from the symptoms,
I believe the patient had a severe attack of Egyptian ophthalmia,
and that he was saved from blindness in both eyes by the ener-
getic treatment of the first practitioner. To adopt a tonic stim-
ulating course at the commencement of an acute inflammatory
disease, is not only contrary to the doctrines of medicine, but
also contrary to common sense and to common experience.
Cross-examination. — If the cornea is clear, it is not diificult to
distinguish between iritis and corueitis. A plethoric mechanic,
although of a strumous habit, might require active depletion.
Belladonna will not cause the pupil to expand when inflamed.
Edward Delafield, of New York City, deposition. — I am
sixty years of age, and am a general practitioner of medicine.
I have been engaged for thirty-five years in the practice of dis-
eases of the eyes and other practice, in the city of New York.
My practice has been very extensive in the treatment of eyes,
having seen two thousand cases a year in the Infirmary, besides
what have occurred in my private practice. As described in the
interrogatory, I would say the case was conjunctivitis — the in-
flammation of the cornea or corneitis being an effect of the
primary disease ; and would say the treatment laid down in the
interrogatory was proper for either iritis or for conjunctivitis, but
not in all its parts necessary in every case of iritis. I would
consider it good practice as stated in the interrogatory. In the
case supposed I would not bleed a second time; though in some
cases it might be proper, in others it would be improper and in-
jurious. Cupping would be very proper under the circum-
stances. As a general thing I would not bleed a second time ;
but this is a point upon which experts might differ. Iritis is not
a diilicult disease to treat ; but the case described in the inter-
rogatory is one of much more difficult treatment than iritis.
The disease described in the interrogatory is remarkably liable to
relapse : very frequently the best medical skill fiiils to save the
sight. My own practice would be to take blood from the arm
MALPRACTICE IN OPHTHALMIC MEDICINE AND SURGERY. 161
once at the commencemeut ; a second might be required ; rarely
would a third blood-letting be necessary.
Cross-examination. — Unless a physician had devoted more
time than physicians generally do, to diseases of the eye, he
might readily confound iritis with conjunctivitis ; but one who
has devoted much time to the diseases of the eye, would have
no difficulty in distinguishing between the cases. There is
nothing wrong in any part of that treatment, as you state it, as
employed early in the disease ; but I would proba))ly have em-
ployed some other remedies. If the patient became very much
reduced, I would not bleed from the arm. but would cup. I
would expect more from a decided impression made by the use
of mercury in the first instance, than from its continued use
afterward. In a strumous habit I would be more cautious about
blood-letting. In a majority of cases the treatment indicated in
the case would be proper. In pure iritis I would depend on
mercury. I have often treated conjunctivitis with mercury; but
in such cases as the one described, 1 would rely on a decided
impression made with mercury at the outset.
The evidence in this case was voluminous, occupying several
days of the court. Only a part has been given ; but enough to
give an idea of the case and circumstances attending it, and vvhat
may be considered medical authority in the case. The case is
here fairly presented ; although the evidence is not all given,
there is nothing omitted that alters the aspect of it.
Brinkerhoff, J., charged the jury, "That the law did not
require of the defendants eminent or extraordinary skill ; that
this kind of skill is possessed by the few. The extraordinary
skill of Delamater or Kirtland are exceptions. It would not do
to take them as the standard for the profession of medicine
generally. If they were to be taken as the order of professional
knowledge required, it would at once drive a large and respect-
able class of worthy practitioners from the field. Though they do
not possess the great learning and ability of those named, it is
11
162 MALPRACTICE.
perhaps equally trae they never will ; many, perhaps most, never
can attain to such knowledge. An absolute necessity requires that
the wants of community must be supplied with the best medical
knowledge its means and location will command. To require the
highest-degree of skill would deprive all places, except large cities,
of medical men. The medical profession is as upright, as self-
sacrificing and useful as any other — none can do without their
assistance during some period of life — and they are eminently
entitled to protection at the hands of the court. The surgeon is
not a warrantor or a guarantor of a cure. It would be mon-
strous to require it at his hands ; it would be ahke monstrous to
hold a physician liable for mistakes, if he brings to bear ordinary
skill and care. In this case, if the surgeons have not given to
the patient the ordinary care and skill of the profession gener-
ally, then the plaintiff ought to recover. Should you find that
the plaintiff is entitled to damages at all, you are to limit them
strictly to the eflect of the Malpractice. It would be outrageous
to charge the loss of time, the suffering, the loss of eye-sight to
the defendants, if it was the natural result of disease, even if
they were guilty of some little delinquency, not in itself pro-
ducing the sad effect. Nothing must be charged to them but
what is to be traced directly to their want of ordinary care and
skill, and dependent upon it."
After deliberating two days, the jury could not agree, and
were discharged.
Another long, tedious trial was had of the case subsequently,
upon which essentially the same evidence was given, and the
jury found for the defendants.
The expenses attending the case were, of course, heavy.
See Appenbix, page 588, for full Notes on this Chapter.
CHAPTER XI.
MALPRACTICE IN DRESSING INCISED WOUNDS— DEPOSITIONS OF
PROFESSORS HAMILTON AND FLINT, OF BUFFALO.
NICHOLAS M. HOLT ■>: ED. BRECK; Cuyahoga, 0., Common Pleas, 1858.
In this case the defendant was charged in the usual form with
Malpractice in dressing the foot of the plaintiff^ — it having been
cut with an axe on the outside of the foot, just above the little
toe. The wound was an incised one, of an inch and a-half or
two inches long, just raising a little flap of flesh, passing through
the metatarsal bone of the little toe.
Afterward the whole foot became diseased, and amputation
deemed necessary. It was claimed that this necessity depended
upon bad treatment of the original wound by the axe. Dam-
ages laid at $5000.
In preparing the case several depositions were taken. Among
them were those of the distinguished surgeon, Frank Hastings
Hamilton, of BujQalo, and the distinguished physician, Austin
FUnt.
Adams and Lawrence, for the plaintitK
J. J. Ehvell, for the defendant.
The depositions were taken at the instance of ih% defendant.
Prof. Austin Flint, of Buflalo, deposed as follows :
Age forty-five years ; special duties as Professor are to teach
Pathology and Clinical Medicine in the Medical College and
Hospital of Buffalo ; have not practiced surgery of late ; formerly
practiced surgeiy, but of late prefer the practice of medicine ;
decline all cases of surgery, and devote my attention especially
(163)
1C4 MALPRACTICE.
to pathology ; I have been in the practice of medicine about
twenty-four years.
Hypothetical question by defendant's counsel :
We will suppose a case of incised wound from an axe on the
outside of the foot, commencing near the lower part of the
metatarsal bone, extending up and through the bone, say, three
inches, or thereabouts, cutting through the edge of the foot, not
injuring the fourth metatarsal bone, presenting a loose flap of
skin and flesh on the outside of the foot — the patient a man
aged fifty-seven years — would it, in your opinion, be good or bad
medical and surgical practice to dress the wound with superficial
stitches, above and below, the application of strips of adhesive
plaster over the part, and the whole foot surrounded with a roller
of cotton cloth sufficiently tight to keep the loose flesh in its
place, and carried up around the ankle ?
Ans. — I would regard it as good practice.
Ques. — Would it be good or bad treatment, in your opinion,
if the attending physician, in the case supposed, should, on the
first or second day after the first dressing, remove the circular
bandage, if there was swelhng and pain in the foot, soak and wash
it, and then reapply the bandage, after dressing with simple cerate ?
Ans. — I should regard it as good practice.
Ques. — State whether or not the treatment indicated in the
case supposed, would tend, in any way, to develop disease of the
bones of the foot?
Am. — I think not.
Ques. — In your opinion, as a pathologist, would it be possible
or impossible to bandage the foot, in the hypothetical case, so
tight as to develop disease of the bones of the foot, or disease
of the periosteum, within twelve days, without seriously afifectiug
the soft parts ?
Ans. — It would not be possible.
Ques. — State what the effect of too tight bandaging would be
upon the flap supposed, and upon the soft parts below the band-
age, if continued twenty-four or forty-eight hours.
MALPRACTICE IN DRESSING INCISED WOUNDS. 165
Ans. — If sufficiently tight to produce injury, the tendency
would be a loss of vitality and sloughing of the parts mentioned.
Ques. — Would it be possible, or otherwise, in your opinion as a
pathologist, to bandage any healthy part so tight as to injure the
periosteum or the bone, without the effect being first to destroy
or abrade the soft parts ?
Ans. — I should think it would not be possible.
Ques. — What would be the effect of tying a half-inch rope
around a healthy foot of a male adult fifty-seven years of age,
as tight as a strong man could tie it, to remain there forty-eight
hours, and what parts would become relatively affected ?
Ans. — The effect would be loss of vitality and sloughing, and
the soft parts would be first affected. The periosteum and the
bone would be secondarily affected, if at all ; and I am not sure
that they would be affected at all in that space of time.
Qnes. — SuppoL,e, in addition, and connected with the hypothet-
ical case submitted to you, there should appear, in ten or fifteen
days, an abscess over the cuneiform bones, what would be your
opinion, as a pathologist, as to the cause of such abscess, sup-
posing it involved the destruction of the periosteum ?
Ans. — I should regard it as involving some cause irrespective
of the wound, or dressing.
Ques. — What is the comparative liability of the periosteum to
take on disease, in connection with the other tissues of the foot?
A71S. — It is much less liable.
Ques. — Upon what cause, or causes, in your opinion, do
abscesses and diseases of the bone generally depend ?
Ans. — They generally depend upon constitutional causes.
Ques. — Is abscess likely to follow typhoid fever ?
Ans. — I have observed abscess to follow typhoid fever. I have
not observed disease of the bone to follow that fever, and I am
not prepared to say how it is upon the authority of others.
Ques. — In case of an abscess of several days' standing over
the cuneiform-tarsal bones, involving the complete destruction of
the periosteum of the bone or bones immediately below the
166 MALPRACTICE.
abscess, where, in your opinion, did the disease commence, in the
soft parts or in the bone?
Ans. — I should regard it as having commenced in the bone or
periosteum.
Qties. — If amputation of the limb in case supposed became
necessary, in fifteen or eighteen months after the injury was
received, and the patient in the meantime was in the hands and
under treatment from various physicians, state whether the ultimate
cause of the amputation could be attributed, with any certainty,
to that of the first physician in attendance in the case supposed ?
A71S. — It would be difficult to do it.
Qiies. — Of what medical works are you the author ?
A71S. — I have written a work on Continued Fevers ; one on
Diseases of the Respiratory System, on Dysentery, on Chronic
Pleurisy, and I have edited the Buffalo 3Iedical tTournal, in this
city, for eight or nine years.
Qiies. — Would you or not expect that the dressings to the
foot, in either of the cases supposed, in the foregoing interroga-
tories, if not so tight as to injure the skin or to destroy the loose
flap, could possibly lay the foundation for amputation ?
Ans. — 1 should think it not possible.
Cross-examination hy Plaintiff's Counsel,
Qnes. — Might not amputation ultimately become necessary, by
reason of too tightly bandaging the foot, and improperly dressing
it on the first occasion, in the cases suggested in the second and
third direct interrogatories ?
Ans. — It might.
The cross-examination, which was lengthy, did not, in the
least, shake the effect of the du'ect.
The following is the deposition of Prof F. Hastings Hamilton :
Age forty-four years; Professor of Surgery in the Buffalo
Medical College ; am one of the surgeons to the Hospital of the
Sisters of Charity in the city of Buffalo ; have been engaged in
the profession nearly twenty-five years.
MALPRACTICE IN DRESSING INCISED WOUNDS. 167
In answer to the hypothetical case given to Prof. Flint, Prof
H. said : I see nothing in this implying bad practice. I think
the treatment on the second day was good treatment. I think
the treatment indicated would have no influence to develop
disease of the bone, and that it would be as well calculated as
any treatment, to prevent it.
Qiies. — State whether or not, in your opinion, it would be pos-
sible to bandage the foot, in the case supposed, so tight as to de-
velop disease of the bone or of the periosteum, within twelve
days, without seriously affecting the soft parts.
Ans. — I should think not.
Ques. — What '•• your opinion as to the effect of tight bandaging
of the foot upon the flap separated by the axe, and upon the foot
below the bandage, if continued twenty-four hours ?
Ans. — It might produce sloughing of the flap, with swelling
and discoloration of the portion of the foot below the bandage.
Ques. — Would it be possible, or otherwise, to bandage any
healthy foot so tight as to injure the periosteum or the bone,
without first destroying the soft parts or abrading the skin ?
Am. — I should think it not possible to bandage the foot so
tight as to injure the periosteum and bones without first injuring
the soft parts.
In answer to the question as to tying a rope around the foot,
Dr. II. said :
There w^ould probably be sloughing and ulceration of the sofb
parts, immediately under the rope, with swelling, discoloration, and
perhaps gangrene of the portion of the foot below, subsequently
to these occurrences — possibly subsequent disease of ihe bones.
It is not probable that the bone would become diseased unless the
rope was re-tightened. The periosteum is not so often diseased
as the soft parts.
Ques. — Upon what cause or causes, in your opinion, do ab-
scesses and diseases of the bone generally depend ?
Ans. — Constitutional causes. These forms of disease some-
times follow typhoid fever.
168 MALPRACTICE.
Ques. — In case of an abscess of several days' standing, over
the cuneiform bones, involving the complete destruction of the
periosteum of these bones, immediately below the abscess, where,
in your opinion, did the disease commence?
Ans. — In the bones. I should think the treatment, as detailed
in the hypothetical questions, could not lay the ground for ampu-
tation. It is not an easy thing to excite disease in the bones of
a healthy foot.
Ques. — Would it be possible or not, in the case supposed, to
dress the foot so tight as to injure the bones, without completely
destroying the flap.
Ans. — I can not say that it is impossible; but it seems to me
scarcely possible, at least if we suppose the bones first took on
disease, and that the abscess was the result of the disease of the
bone. It is quite possible that an abscess, commencing in the
soft parts, should ultimately extend to the bone, provided the state
of the general system is not healthy.
Ques. — If the dressings in the case supposed were not so tight
as to abrade or injure the skin of the foot, or materially hinder
the heaHng process of the incised wound, could or not, such
dressing lay the foundation for amputation ?
Ans. — I think they could not.
Cross-examination.
Ques. — Might not amputation ultimately become necessary, by
reason of too tightly bandaging and dressing the foot for the first
time, in the case suggested by the defendant in the second inter-
rogatory?
Ans. — The question does not suppose sufficient conditions for
me to answer.
An extended cross-examination did not tend to weaken the
defendant's case.
The result was that these two depositions so damaged the case
of alleged Malpractice, that it went out of court without coming
to trial.
CHAPTER XII.
DRUGGISTS— THEIR RESPONSIBILITIES LEADING ADJUDICATED
CASES.
It is a well-established principle of law, that a vender of pro-
visions for domestic use is bound to know that they are sound
and wholesome, at his peril} It is an equally- elementary princi-
ple, that in conti'acts for the sale of provisions, the part}', by im-
phcation, who sells them, undertakes to guarantee that they are
sound and wholesome.^
Blackstone also says: "Injuries affecting a man's health, are
where, by any unwholesome practices of another, a man sustains
any apparent damage, in his vigor or constitution, as, by selling
him bad provisions or wine ; by the exercise of noisome trade, or
h"^ the neglect or unskillful management of a physician, surgeon
or apothecary — these are wrongs or injuries unaccompanied by
force, for which there is a remedy in damages, by a special aciion
on the case.^
These principles apply equally to druggists, physicians and
chemists, who compound medicines, as to those who sell bread,
meat, wines, etc. More care should be exercised by those who
mix poisons for internal use, than is needed by those who sell
fruit, food and the like. Bad wines, provisions, iruit and meat, can
usually be at once detected by the senses ; while the character of
' Van Bracklin v. Fonda, 12 Johnson's Rep. 468.
2 3 Black. Com. 165.
3 3 Chitt. Black. 91.
069^
170 MALPRACTICE.
medical substances and compounds are only discovered by the
careful analysis of an experienced chemist.
A druggist, or one who prepares medicines, is held to a strict
accountability in law, for any mistake he may make in compound-
ing medicines.^ He must be exact in preparing those powerful
medicines, of which a very small dose may produce f ital conse-
quences. If an apprentice of an apothecary is guilty of negli-
gence, he is guilty of manslaughter, if fatal results follow." In
the Tessymond case, a mother sent to a chemist for a penny-
worth of paregoric; the chemist's apprentice delivered a phial
with a paregoric label on it, but with laudanum in it ; six or
seven di'ops were given to the child, supposing it to be paregoric,
and killed it. The apprentice made the mistake from the cir-
cumstance that the laudanum bottle and the one containing
paregoric stood side by side. Baley, J., told the jury, "If you
think there was negligence on the part, of the prisoner, you will
find him guilty ; if not, you must acquit him." If any damages
had resulted to the child, and not death, then the chemist would
have been liable for the act of his agent, the apprentice.
So, where a chemist makes a mistake, when he is labeling med-
icines for the general market, if the medicine, in the course of
trade, passes through many hands, and is finally bought and used
by one who is injured thereby, the original maker is liable to the
person so injured, and not the druggist, who, relying upon the
correctness of the label, innocently sells the article for what
it is not.
An important question with druggists has been how they shall
best regulate the sale of poisonous drugs, without becoming liable,
and prevent any mistakes or accidents that may prove fatal.
Some excellent suggestions on this subject were made by the
American Pharmaceutical Association, at their annual meeting,
held in Philadelphia, in September, 1857, in an appeal brought
1 Fleet & Semple v. Hollenkemp, 13 B. Monroe's Reps. p. 219.
' Tessymond's case, 1 Lewin's Crown Cases, 169.
RESPONSIBILITIES OF DRUGGISTS. 171
forward by the Committee on Poisons, and adopted by the Asso-
ciation.
They say : " From the diversity of opinion among pharma-
ceutists in relation to the vahie and force of direct legislative
action, in restricting the sale of poisonous substances, the Asso-
ciation does not deem it desirable to attempt at present the pas-
sage of laws in the different States bearing upon the subject;
but, in place, offers to the pharmaceutist such suggestions as are
deemed expedient under existing circumstances.
The Association suggests that the pharmaceutist should
adopt rules in dispensing of poisons, by which he may remove
from himself the responsibility of selling poisons for disreputable
purposes, and protect the public both from mistakes occurring in
his own premises and from the use of poisons for unlawful and
criminal purposes.
That in selling any substance which would prove fatal in a
dose of sixty grains by weight, or a fluid drachm by measure,
you consider it poisonous, and mark the word ' poison,' in a dis-
tinct and unmistakeable manner, upon the label or package ; that
you consider the poisonous alkaloids and the like powerful sub-
stances deadly poisons, and so mark each package or label ; that
you make it an invariable rule to have every package of medicine
dispensed at your counter plainly marked, whether it be an inno-
cent or a poisonous one ; that you, for the purpose of distinguish-
ing, by the aid of color as well as of words, have the labels of
the furniture of your estabhshment, which contains prisonous sub-
stances, of a peculiar color, and distinct from that of the rest
of your labels ; that you keep such furniture by itself, in order
that it may not cause remai'k by customers; or that, in place of
this suggestion, you adopt the practice of placing upon each
bottle, or drawer, or package of such poisonous substances, some
symbol, such as a bright red piece of pa})er, a triangle or Greek
cross, or of other suitable form, thus giving the eye an additional
means of cautioning you when handling such substances. That
you print your dispensing labels for poisons upon a paper of an
172 MALPRACTICE.
entirely distinct color from that upon which your ordinary ones
are printed ; that in dispensing presciiptions containing poisonous
substances, while you can not mark such ^poisonous,' unless
so directed by the writer of the recipe, yet by marking a sym.bol
in red ink upon the label of the medicine, you may avoid any
mistake in its re-preparation, in putting up a poisonous substance
for an innocent one; that, as an additional precaution, you adopt
the practice of placing bands of rubber around the necks and
over the stopples of bottles containing poisonous medicines in
frequent use, or in some other manner delay slighth^ the opening
of the bottle, so as to form an additional secunty and caution
against mistake ; that in preparing prescriptions yon adopt this
course: first carefully and understandingly read the recipe —
then prepare it — then copy the receipt into a book provided for
the purpose, with the date, name of prescriber and name of pa-
tient and directions ; finally, place the number corresponding to
the one on record upon the original recipe and the label, before
delivering the medicine. In this way, any possible error in first
reading the recipe may be discovered in recording it ; and, sec-
ondly, you have a guide in the patient's name, by which you may
avert evil consequences, should an error be discovered after the
medicine has left the store; that you provide yourself with a
book, in which to record every sale of poison, stating in each
entry the date of sale, to whom sold, for what purpose desired,
the quantity sold, and price received. This can be used as evi-
dence in case of any blame being attached to you — in case of
accident resulting from articles purchased of you ; that you con-
sider yourself responsible to the community in which you Hve,
where there may be no legislative control to the sale of poisons,
and that you be particular, when furnishing poisons to applicants
for such, to assure yourself, by the appearance of the customer,
and by proper inquiry of them, that no disreputable, illegal or
criminal purpose is intended ; that you require a written order
from a physician, or other responsible party, to accompany any
application for a poisonous substance presented by a person under
DRUGGISTS ADJUDICATED CASES. 173
fifteen years of age ; that in all cases in dealing out poisonous
drugs, in your business, to applicants in person, you be particular
to caution them in regard to the properties and proper methods
of using them ; that you entirely refuse to dispense oils of savin
and tanzy, of ergot, and of substances of similar effect upon the
economy, unless upon the wiitten prescrifttion of a ph^'sician.
The Association trusts that this appeal to pharmaceutists,
many of whom have not yet felt the force and weight of the
responsibility resting upon them, will awaken them to a sense of
their accountability, morally and otherwise, and be conducive to
individual safety and public welfare.-"
If druggists will act upon these wholesome suggestions, they
will be less often arraigned in court ; and when it does happen,
they will have in their own hands the evidence of their inno-
cence, and be able to show upon whom the responsibility ought
to rest.
THOMAS AXD WIFE v. WINCHESTER; 2 Selden's Reps., N. Y. Court of Appeals, 397.
This was an action for damages, in the Supreme Court, com-
menced in August, 1849, against Winchester and Gilbert, for
injuries sustained by Mrs. Thomas, from the effects of a quantity
of extract of belladonna, administered to her by misfeike, as the
extract of dandelion.
In the complaint it was alleged that the defendants, from the
year 1843 to the 1st of January, 1849, were engaged in putting
up and vending certain vegetable extracts, at a store in the city
of New York, designated as "108 John street," and that the
defendant, Gilbert, had, for a long time previous thereto, been
engaged at the same place ; that among the extracts so prepared,
ard sold by them, were those respectively known as the '-extmct
of dandehon" and the " extract of belladonna " — the former a
mild and harmless medicine, and the latter a vegetable poison,
which, if taken in such quantity as might be safely administered
of the former, Avould destroy life, or seriout^ly impair the health
of the person to whom the same might be administered; that at
174 MALPRACTICE.
some time between the periods above mentioned, the defendants
put up and sold to James S. Aspinwall, a druggist in the city of
New York, a jar of the extract of belladonna, which had been
labeled by them as the extract of dandehon, and was purchased
of them as such by said Aspinwall ; that said Aspinwall after-
ward, and on the 10th of May, 1845, relying upon the label so
affixed by the defendants, sold the said jar of belladonna to Alvin
Foord, a druggist, of Cazenovia, in Madison county, as the
extract of dandehon; that afterward, and on the 27th of March,
1849, the plaintiffj Mrs. Thomas, being sick, a portion of the
extract of dandelion was prescribed for her by her physician, and
the said Alvin Foord, relying upon the label affixed by the defend-
ant to said jar of belladonna, and behoving the same to be the
extract of dandelion, did, on the application of the plaintiii^
Samuel Thomas, sell and deliver to him, from the said jar of bella-
donna, a portion of its contents, which was administered to the
plaintiff, Mrs. Thomas, under the belief that it was the extract of
dandelion, by which she was greatly injured, so that her life was
despaired of, etc. The plaintiff also alleged that all the injury
was occasioned by the negligence and unskillfulness of the
defendant, in putting up and falsely labeling the jars of bella-
donna as the extract of dandelion, whereby the plaintiffs, as well
as the druggists, and all other persons through whose hands it
passed before being administered as aforesaid, v.ere induced to
believe, and did believe, that it contained the extract of dandelion.
Wherefore, etc.
The defendants, in their answers, severally denied the allega-
tions of the complaint, and insisted that they were not liable for
the medicines sold by Aspinwall and Foord.
The cause was tried at the Madison Circuit, in December, 1849,
before Mason, J. The defendant, Gilbert, was acquitted by the
jury, under the direction of the court, and a verdict was rendered
against Winchester for eight hundred dollars. A motion was
made for a new trial upon the bill of exceptions taken at the
trial, and having been denied at a General Term in the Sixth
DRUGGISTS ADJUDICATED CASES. 175
District, the defendant, Winchester, brought his ap[)eal. The
facts which appeared on trial are sufficiently stated in the opinion
of RUGGLES, Ch. J.
It was claimed, on the part of the appellant, that there was no
connected transaction or privity between Mrs. Thomas, the real
plaintiff in this suit, and the defendant; no state of things to
render legally possible the allegation of negligence quo ad lioc,
and therefore no suit can be sustained by her against the defend-
ant. The defendant sold the article to Aspinwall ; Aspiiiwall
sold to Foord ; Foord sold to Thomas, the husband, who adminis-
tered, or caused it to be administered to the plaintilf The de-
fendant was a remote vender of the article, and can not be liable
to this plaintiff. The gravamen of the complaint is negligence,
in selling the article with a wrong label ; no fraud, or ciiminal, or
evil motive or intent, and not even gross negligence is imputed •
and nothing in the nature of contract is pretended. It was said
this differs in no respect from any other case of neg'.igeitce alleged
against a party standing at the same remove from the party
alleging it. If this action can be sustained, it could fcf|ually be
sustained in any of the following cases: A builds a vessel and
sells it to B ; B sells it to C, and D takes passage in it : the
mast, by reason of great negligence in its construction, falls on D
and breaks his limb. D can sustain an action against A for the
injury. Again, it was said, a blacksmith shoes a horse for A ;
A sells the horse thus shod to B ; B sells to C, and the hol'se,
while being used by C., stumbles and falls, in consequence of
gross negligence in the shoeing. C can sue the smith and recover
damages.
A negligently sells unwholesome provisions to B ; B sells to
C, who sells to D, and D uses the provisions and is injured. D
can sustain an action against A. The very statement of these
illustrations, it was said, ought to demonstrate the lailac}' of the
claim of the plaintiff In the case of The ^Nlayor of Albany v.
Cunliff, 2 Comst. 180, it is said: "The reason why an action can
not be sustained, in such cases, is, that there is no connection
176 MALPRACTICE.
between the wrong done and the person whom it is sought to
charge for the consequences."
It was also claimed, oa the part of the defensCj that if this
action was sustained, the defendant might be hable to innumera-
ble suits, and at any period of time, however distant. No statute
of limitations could protect him, for the action would not be
barred until six years after the injury, although the defendant
may have sold the article many years before. He would be liable,
too, for the carelessness of all intermediate venders, and this
without notice of the dangers or the means of averting it. Be-
sides, if this defendant is liable, such liability may be traced back
indefinitely, to a vender at the fiftieth or hundredth remove from
the plaintifi' A doctrine involving such consequences can not be
sustained. The defendant was charged substantially with the
neghgence of Foord and Aspinwall, and this can not be the
foundation of an action against him.^
The rule sought to be applied to the case by the defendant
was, that each vender is liable to his immediate vendee, for any
damage legitimately sustained by the latter. It was said this
rule is just and safe, and a sufficiently comprehensive one. It
furnishes adequate protection to all parties, and gives the pur-
chaser his remedy against the person in whom, by the very act
of purchase, he shows that he placed reliance.' If the label
affixed to the aiticle in question could be dt^emed a false affirma-
tion to each party relying upon it when bujing, it could be available
to a party only who should purchase on the credit given to the
label. Here there is no pretense that the real plaintiii' bought
at all ; or even that her husband, or his agent, ever saw the label,
or acted on the faith of it. No such fact is alleged in the complaint.
These were the grounds assumed, and undoubtedly the
strongest that could be taken by the defense.
1 Mayor of Albany v. Cunliff, 2 Conist. 165—180 ; Blunt v. Aiken, 15 Wend.
522 ; Shiells v. Blackburn, 1 U. Bl. 158.
2 Broom on Parties to Actions, Sec. 299, p. 248.
• DRUGGISTS ADJUDICATED CASES. 177
On the part of the respondent, by N. Hill, Jr., it was argued :
1. That by affixing a false label to the poison, and sending it
into market in that condition, so as thereby to mislead others,
and endanger human life, was an unlaivful act, lor which the
defendant Is responsible, whether he did it ivilfuUy or negligently}
2. To entitle the aggrieved party to sue in buch case, no
priority is necessary, except such as is created by the unlawlul
act, and the consequential injury ; priority of contract being out
of the question."
3. The injury is not rendered too remote to sustain a recovery
because separated from the unlawful act by intervening events,
however numerous, or of whatever kind, provided they are the
natural and probable consequences of the act; i. c., isuch as would
be likely to follow, and might be easily foreseen.^ Where the
unlawful act is, in its nature, likely to produce the very events
which have Ibllowed, the author of it may be treated as having
caused such succeeding events, though they consisted of the acts
of third persons. Causa causes est causa causati^
The false label was not only likely to lead druggists and others
into the mistakes which have followed, but such was its direct and
inevitable tendency.^ The rule contended for, it was said, did not
extend the sphere of accountability to impracticable or unjust
limits, but confines it to consequences so proximate as to be
expected or readily foreseen, and for which every wrong-doer is,
and ought to be answerable. If the defendant's act had been
1 5 Maule & Sel. 198 ; 4 Denio, 464, 466-7 ; 10 Eng. Com. Law. R. 190 ; 6
Hill, 292 : 23 Eng. Com. Law R. 52 ; 2 W. Bl. 892-3 ; 19 John. 381 ; 3 Maule
& Sel. 11, 14, 15 ; 11 Mass. 159 ; 17 Wend. 499, 500 ; 5 Denio, 266.
2 1 Chitty's Gen. Pr. 12 ; 10 Eng. Com. Law R. 190; 12 Mod. 639 ; 4 Denio,
464; 11 Price, 400: 35 Eng. Com. Law R. 292 ; 6 Hill, 294.
^ 1 Smith's Lead. Cases, 132, note ; 23 Eng. Com. Law R. 54-5 ; 5 Denio, 266
* 19 John. 381 ; 4 Denio, 464 ; 2 W. Bl. 892-3-4, 899, 900 ; Broom's Leg.
Max. 168-9 ; 5 Maul. & Sel. 198 ; 41 Eng. Com. Law R. 425 ; 24 I.l. 272 ; 23
Id. 523 ; 28 Id. 222 ; 12 Mod. 639 ; 19 Wend. 345-6 ; 4 Demo, 317 : 'J. Wend.
385 ; 3 Mete. 469 ; 2 Mees & Welsh. .^19. 525.
5 Eng. Com. Law R. 41-2 ; 3 Met. 469.
12
178 MALPRACTICE.
done willfully, he would have been chargeable with the conse-
quences, iiicludiiig the mistake of Dr. Fooid, etc., on the legal
presumption that he intended them.^ The sphere is the &ime, so
far as responsibility is concerned, when the wrong consists of
negligent a(its, though the measure of indemnity and punishment
may be ditferent.- There is no pretense for saying that the
injury was caused by the illegal act of a third person, and not by
that of the defendant; the jury having directly found that the
intermediate actors were not negligent. This rule never applies
when the intervening wrong does not furnish a distinct right of
action for the whole injury sustained. Mrs. Thomas could not get
redress by an action ex-contradu against Dr. Foord, or any one
else ; and to apply the rule here, therefore, would contravene the
maxim, uhi jus ibi remedium. Again, the rule does n^* apply when
the intervening wrong, though actionable, is the natural and
probable consequence of the defendant's tort.^
But the injury in this case was the immediate consequence of
the defendant's act. The lalse label was a continuing representa-
tion or direction by him, and operated as the instantaneous cause
of the mistake of Dr. Foord.'*
The injury being sufficiently connected with the defendant's
wrongful act, it is no defense that he had parted with the poison
under a formal sale, and placed it in the custody of others —
this being the very mode by which he caused the injury. The
inability of the defendant to prevent the injury at the time, is
not an excuse, but part of the wrong. Besides, the label was a
continuing authority, or dkection, by the defendant, for the use
J 3 Bouv. Inst. 348 ; 16 Wend. 649 ; 3 Mete. 469—472.
2 Archb. Cr. PL 421. 2d ed. 1848 ; 2 Ld. Ray. 1583 ; 23 Eng. Com. Law R.
54-5 ; 3 Maule & Sel. 14, 15 ; 1 Lewin's Cr. Cases, 109 ; 2 Stark Ev. 526, Am.
ed. 1837 ; 5 Maule & SeL 198 ; Broom's Leg. Max. 168-9 ; 4 Denio, 464 ; 41
Eng. Com. Law R. 422 ; 24 Id. 272 ; 19 Wend. 345-6.
3 1 Smith's Lead. Cases, 132, note : Brown's Leg. Max. 168-9 , 5 Barn. &
Cres. 356 ; 23 Eng. Com. Law R. 52, 54 ; Id. 422, 425 ; 24 Id. 272 ; 5 Maule &
SeL 198 ; 19 Wend. 345-6 ; 2 Mees & Welsb. 519, 525 ; 5 Denio, 266.
* 23 Eng. Com. Law R. 41-2 ; 6 Mete. 469 ; 1 Id. 193.
DRUGGISTS ADJUDICATED CASES. 179
of the poison, and he was bound to indemnify against the acts
which it was hkely to cause when sold in that condition.^
The rule contended for by the defendant, that each vender is
liable only to his immediate vendee, has no applic ition to the
present case. This rule is founded on the principle that a right
or duty wholly created by contract, can only be enibrced between
the contracting parties.
In any view of the case, the defendant, it must be admitted, is
ultimately responsible for the injury to Mrs. Thomas, unless those
who have been the unconscious agents of the wrong are tu bear
the burden, and the author of it to escape; and the law does not
require circuity of action, but abhors it."
The opinion of the court, by Chief-Justice Ruggles, is of gi-eat
ability, and undoubtedly embodies the law in this class of cases.
We therelbre give it entire :
" This is an action brought to recover damages Irom the de-
fendant for negligently putting up, labeling and selling as and for
the extract of dandelion, which is a simple and harmless medi-
cine, a jar of the extract of belladonna, which is a deadly poison ;
by means of which the plaintiflj Mary Ann Thomas, to whom,
being sick, a dose of dandelion was prescribed by a physician, and
a portion of the contents of the jar was administered as and for
the extract of dandelion, was greatly injured, etc.
The facts proved were briefly these : Mrs. Thomas, being in ill
health, her physician prescribed for her a dose of dandelion. Her
husband purchased what was believed to be the medicine pre-
sciibed, at the store of Dr. Foord, a physician and djuggist in
Cazenovia, Madison county, where the plaintiU" resides.
A small quantity of the medicine thus purchased was adminis-
tered to Mrs. Thomas, on whom it produced very alarming
> 12 Mod. 630 ; 23 Eng. Com. Law R. 41-2 ; Id. 52, 54-5 ; 28 Id. 220 ; 3
Mete. 469 ; 4 Deiiio, 311, 317 ; 2 Comst. 180 ; 19 Wend. 345-6.
2 2 Saund. 150, per Kelynge, C. J.: Willis' R. 401-2; 2 II. Bl. 350-1, per
Heath, J.; 4 Wend. 492, per Marcy, J.; Co. Litt. 348, a.
180 MALPRACnCE.
effects — such as extreme coldness of the surface and extremities,
feebleness of circulation, spasms of the muscles, giddiness of the
head, dilation of the pupils of the eyes, and derangement of the
mind. She recovered, however, after some time, from its effects,
although, for a short time, her life was thought to be in great
danger. The medicine administered was belladonna, and not dan-
delion. The jar from which it was taken was labeled, " ^ ^
dandelion, prepared by A. Gilbert, No. 108 John street, N. Y.,
Jar 8 oz. It was sold for, and believed by Dr. Foord to be, the
extract of dandelion, from Jas. S. Aspinwall, a druggist at New
Tork. Aspinwall bought it of the defendant as extract of dan-
delion, believing it to be such. The defendant was engaged at
No. 108 John street. New York, in the manufacture and sale of
certain vegetable extracts, for medicinal purposes, and in the pur-
chase and sale of others. The extracts manufactured by him
were put up in jars for sale, and those which he purchased were
put up by him in like manner. The jars containing extracts
manufactured by himself, and those containing extracts purchased
by him from others, were labeled alike. Both were labeled Hke
the jars in question, as "prepared by A. Gilbert." Gilbert was
a person employed by the defendant at a salary, as an assistant
in his business. The jar was labeled in Gilbert's name because
he had been previously engaged in the same business, on his own
account, at No. 108 John street, and probably because Gilbert's
labels rendered the articles more salable. The extract contained
in the jars sold to Aspinwall, and by him to Foord, was not man-
ufactured by the defendant, but was purchased by him from an-
'other manufacturer or dealer. The extract of dandelion and the
extract of belladonna resemble each other in color, consistence,
smell and taste; but may, on careful examination, be distin-
guished, the one from the other, by those who are well ac-
quainted with these articles. Gilbert's labels were paid for
by Winchester, and used in his business with his knowledge and
consent.
DRUGGISTS ADJUDICATED CASES. 181
The defendants' counsel moved for non-suit on the following
grounds :
1. That the action could not be sustained, as the defendant
was the remote vender of the article in question, and that there
was no connection, transaction or privity between him and the
plaintiffs, or either of them.
2. That this action sought to charge the defendant with the
negligence of Aspinwall and Foord.
3. That the plaintiffs were liable to and chargeable with the
negligence of Aspinwall and Foord, and therefore could not
maintain this action.
4. That, according to the testimony, Foord was chargeable
with negligence, and that the plaintiffs therefore could not sustain
this suit against the defendant. If they could sustain a suit at
all, it would be against Foord only.
5. That this suit, being brought for the benefit of the wife,
and alleging her as the meritorious cause of action, can not be
sustained.
6. That there was not sufficient evidence of negligence, on the
part of the defendant, to go to the jury.
The Judge overruled the motion for non-suit, and the defend-
ants' counsel excepted.
The Judge, among other things, charged the jury that if they
should find from the evidence that either Aspinwall or Foord was
guilty of negligence in vending as and for dandelion the extract
taken by Mrs. Thomas, or that the plaintiff*, Thonris, or those
who administered it to Mrs. Thomas, were chargeable with negli-
gence in administering it, the pliintiff's were nob entitu d to
recover; but if they were free from negligence, and if the de-
fendant, Winchester, was guilty of negligence in puUing u[) and
vending the extracts in question, the plaintiffs were en ri tied to
recover, provided the extract administered to Mrs. Thomas was
the same which was put up by the defendant and sold In- him to
Aspinwall, and by At;pinwaU to Foord. That if they shou.d find
182 MALPRACTICE.
the defendant liable, the plaintiffs in this action were entitled to
recover damages only for personal injury and suffering of the
wife, and not for loss of service, medical treatment or expense to
the husband, and that the recovery should be confined to the
actual damage suffered by the wife.
The action was properly brought in the name of the husband
and wife for the personal injury and suffering of the wife, and
the case was left to the jury with the proper directions on that
point.
The case depends on the first point taken by the defendant,
on his motion for a non-suit; and the question is, whether the
defendant, being a remote vender of the medicine, and there
being no privity or connection between him and the plaintiffs, the
action can be maintained.
If, in labeling a poisonous drug with the name of a harmless
medicine, for public market, no duty was violated by the defend-
ant, excepting that which he owed to Aspinwall, his immediate
vendee, in virtue of his contract of sale, this action can not be
maintained. If A build a wagon and sell it to B, who sells it to
C, and C hires it to D, who, in consequence of the gross negli-
gence of A in building the wagon, is overturned and injured, D
can not recover damages against A, the builder. A's obligation
to build the wagon faithfully, arises solely out of his contract with
B. The public have nothing to do with it. Misfortune to third
persons, not parties to the contract, would not be a natural
and necessary consequence of the builder's negligence ; and such
negligence is not an act immediately dangerous to human life.
So, for the same reason, if a horse be defectively shod by a
smith, and a person hiring the horse from the owner is thrown
and injured in consequence of the smith's negligence in shoeing,
the ^«mi:h is not liable for the injury. The smith's duty, in such
case, grows exclusively out of his contract with the owner of the
horse ; it was a duty which the smith owed to him alone, and to
no one dse ; and although the injury to the rider may have hap-
pened in consequence of the neg.igence of the smith, the latter
DRUGGISTS ADJUDICATED CASES. 183
was not bound, either by bis contract or by any consideration of
pubHc policy or safety, to respond for his breach of duty to any
one except the person he contracted with.
This was the ground on which the case of Winterbottom v.
Wright was decided. A contracted with the Postmaster-General
to provide a coach to convey the mail-bags along a certain line
of road, and B and others also contracted to furnish horses for
coach along the same line. B and his co-contractors hired C, who
was the plaintifij to drive the coach. The coach, in consequence
of some latent defect, broke down ; the plaintiff was thrown from
the seat and lamed. It was held that C could not maintain an
action against A for the injury thus sustained. The reason of
the decision is best stated by Baron Rolfe. A's duty to keep the
coach in good condition was a duty to the Postmaster-General,
with whom he made his contract, and not a duty to the driver
employed by the owners of the horses.
But the case in hand stands on a different gi'ound. The defend-
ant was a dealer in poisonous drugs ; Gilbert was his agent in
preparing them for the market. The death or great bodily harm
of some person was the natural and almost inevitable result of
the sale of belladonna, by means of the false label.
Gilbert, the defendant's agent, would have been punished for
manslaughter, if Mrs. Thomas had died in consequence of taking
the falsely-labeled medicine. Every man who, by his culpable
negligence, causes the death of another, although without intent
to kill, is guilty of manslaughter.
* So highly does the law value human life, that it admits of no
justification, wherever life has been lost, and the carelessness or
negligence of one person has contributed to the death of another;'^
and this rule applies not only where the death of one is occa-
sioned by the negligent act of another, but where it is caused by
the negligent omission of duty of that other.^ Although the
1 Regina v. Swindall, 2 Car. & Kir. 232-3.
2 2 Car. & Kir. 368, 371.
184 MALPRACTICE.
defendant, Winchester, may not be answerable criminally for the
negligence of his agent, there can be no doubt of his liability in
a civil action, in which the act of the agent is to be regarded as
the act of the principal.
In respect to the wrongful and criminal character of the negli-
gence complained of, this case differs widely from those put by
the defendant's counsel. No such imminent danger existed in
those cases. In the present case, the sale of the poisonous article
was made to a dealer in drugs, and not to a consumer. The
injury, therefore, was not likely to fall on him, or on his vendee,
who was also a dealer ; but much more likely to be visited on a
remote purchaser, as actually happened. The defendant's negli-
gence put human hfe in imminent danger. Can it be said that
there was no duty, on the part of the defendant, to avoid the
creation of that danger by the exercise of greater caution, or
that the exercise of that caution was a duty only to his immediate
vendee, whose life was not endangered ? The defendant's duty
arose out of the nature of his business, and the dangers to others
incident to its mismanagement. Nothing but mischief hke that
which actually happened could have been expected from sending
the poison f ilsely-labeled into the market ; and the defendant is
justly responsible for the probable consequences of the act. The
duty of exercising caution in this respect did not arise out of
the defendant's contract of sale to Aspinwall. The wrong done
by the defendant was in putting the poison, mis-labeled, into the
hands of Aspinwall, as an article of merchandise, to be sold, and
afterward used as the extract of dandelion, by some person then
unknown. The owner of a horse and cart, who leaves them un-
attended in the street, is liable for any damage.^ The owner of
a loaded gun, who puts it into the hands of a child, by whose
indiscretion it is discharged, is liable for the damage occasioned
by the discharge.* The defendant's contract of sale to Aspinwall
1 Lynch v. Nardin, 1 Ad. & Ellis, N. S. 29 ; Illidge v. Goodwin, 5 Car. &
Payne, 190.
2 5 Maule & Sel. 198.
DRUGGISTS ADJUDICATED CASES. 185
does not excuse the wrong done to the plaintiffs. It was a part
of the means by which the wrong was efiected. The plaintiffs'
injury and their remedy would have stood on the same principle,
if the defendant had given the belladonna to Dr. Foord without
price, or if he had put it in his shop without knowledge, under
circumstances which would probably have led to its sale on the
faith of the label.
In Longmeid v. HoUiday,' the distinction is recognized between
an act of negligence immediately dangerous to the lives of others,
and one that is not so. In the former case, the party guilty of
negligence is liable to the party injured, whether there be a con-
tract bilween them r,v not; in the latter, the negligent party is
liable only to the party with whom he contracted, and on the
ground that negligence is a breach of the contract.
The defendant, on the trial, insisted that Aspinwall and Foord
were guilty of negligence in selling the article in question for
what it was represented to be in the label ; and that the suit, if
it could be susiained at all, should have been brought against
Foord. The Judge charged the jury that if they, or either of
them, were guilty of negligence in selling the belladonna for
dandelion, the verdict must be for the defendant, and left the
, question of negligence to the jury, who found on that point for
the plaintiff. If the case really depended on the point thus raised,
the question was properly left to the jur^^ But I think it did not.
The defendant, by affixing the label to the jar, represented its
contents to be dandelion, and to have been " prepared " by his
agent, Gilbert. The word ' prepared,' on the label, must be under-
stood to mean that the article was manufactured by him, or that it
had passed through som.e process under his hands, which would
give him personal knowledge of its true name and quality.
Whether Foord was justified in selling the article upon the faith
of the defendant's label, would have been an open question by the
» 6 Law and Eq. Rep. 562.
See, also, Barnes v. Ward, 9 C. B. 392.
18G MALPRACTICE.
plaintiffs against him, and I wish to be understood as giving no
opinion on that point. But it seems to me to be clear that the
defendant can not, in any case, set up as a defense, that Puord
sold the contents of the jar as and for what the defendant repre-
sented it to be. The label conveyed the idea distinctly to Foord
that the contents of the jar was the extract of dandelion, and
that the defendant knew it to be such. So far as the defendant
is concerned, Foord was under no obligation to test the truth of
the representation. The charge of the Judge, in submitting to
the jury the question in relation to the negligence of Foord and
Aspinwall can not be complained of by the defendant.
Gardiner, J., concurred in affirming the judgment, on the
ground that seUing the belladonna without a label indicating that
it was a poison, was declared a misdemeanor by statute ;^ but
expressed no opinion upon the question whether, independent
of the statute, the defendant would have been liable to these
plaintiffs.
Gridley, J., was not present when the cause was decided. All
the other members of the court concurred in the opinion deliv-
ered by Ch. J. RuGGLES.
Judgment affirmed."
This decision, and the reasons upon which it is based, settles
the question, as to the responsibility of druggists and manufac-
turers of medicines, if the medicine is not what it purports to be ;
and it should be so. Those who assume the responsible position
of making and vending powerful medicines, should be held to a
rigid responsibility, because, after the compound has left the
hands of the chemist, not one person in ten thousand can detect
an error, if there is one, however dangerous it may be.
In the above case, the Judges, after coming face to face with
the question, whether the intermediate venders were also liable in
damages, and looking at it fearfully, thought best to give no
opinion on that point. The charge of the court below had been,
» 2 R. S. 694, sec. 23.
DRUGGISTS ADJUDICATED CASES. 187
that if there had been any carelessness on the part of Aspinwall
or Foord, then judgment must be for the defendants; that if
they trusted to the label as indicating the article sold, then
they were innocent. It is probable that if the Superior Court
had given an opinion on this point, it would have been, that drug-
gists have a right to expect that a medicine is what its label
indicates, especially if prepared by a respectable and well-known
manufacturer.
If this was not the rule, every vender, whether druggist or
not, would have to keep a chemist, in whom he had confidence,
to analyze every article he sold, which would certainly defeat a
convenient and general supply. It is probable that the importer
of foreign preparations would not be protected by the label of a
foreign manufacturer.
FLEET & SEMPLE v. HOLLEXKEMP; 13 B. Monroe, 219.
Another important case, involving some new and important
points, concerning the rights and responsibilities of druggists, as
well as of the purchaser, was decided in 1852, in Kentucky.
John Holleiikemp sued Wm. T. Fleet and Samuel P. Semple,
partners in the business of vending drugs by retail, in an action
upon the case, for having, through negligence, permitted a por-
tion of the poisonous drug called cantharides to be intermingled
with some snakeroot and Peruvian bark, which he had purchased
at their drug store, and which he, being then indisposed, by the
advice of his physician, had taken as medicine for his restora-
tion, not knowing that the poison had been mixed with the bark
and snakeroot, and that, in consequence, he had been made very
sick, endured great suffering, pain and agony, and that his health
had been thereby permanently injured. The defendants appeared
and pleaded not guilty. There was a trial, verdict, and judg-
ment against the defendants for §1,1 41 75 damages, and costs
of suit.
The defendants moved the court to set aside the verdict and
judgment, and grant a new trial, upon various grounds.
188 MALPRACTICE.
One ground was, that the damages found by the jury were
excessive, and unwarranted by the facts of the case, and the
proof in the cause.
Another reason was, that the court erred in giving the in-
structions asked by the plaintiff's counsel, and in refusing those
asked by the counsel of the defendants.
The court refusing to grant a new trial, the defendants filed
their bill of exceptions to these rulings of the court, and appealed
to the Court of Appeals. The evidence was reduced to writing,
and accompanied the appeal. It was, in substance, as follows :
The plaintiff, having been sick for some time, had improved, and
was convalescent. A tonic preparation was recommended by the
attending physician, who made out a written prescription for the
plaintiff, as follows : that he should procure two ounces of snake-
root and two ounces of Peruvian bark, in the form of powder, to
be mixed and divided into four portions ; to be made into a tea,
by the application of three pints of water to each portion of
snakeroot and bark ; the patient to take half of a tea-cup full
of the decoction twice each day. This prescription was sent by
the plaintiff to the defendants' drug store, to be filled. There
the two ounces of snakeroot and Peruvian bark were, by the
clerk, in the presence of one of the defendants, put into a mill
to be ground into powder, and passed through the mill thus pul-
verized. It was then put up in separate papers, as directed by
the prescription, and delivered to the plaintiff's messenger, who
carried them to the plaintiff. A tea was made of one of the
potions. The patient drank a half tea-cup full of the prepara-
tion, and shortly afterward the effect produced b}^ the dose vas
so unexpected and so extraordinary, that the same physician was
sent for who had drawn up the prescription, who, upon his arrival,
found his patient laboring under all those violent symptoms
which, according to all the evidence on the subject, are produced
by cantharides, when tiiken in sufficient quantity into the
stomach. The physician's suspicions being aroused, he procured
and examined the three remaining potions of medicine, as com-
DRUGGISTS ADJUDICATED CASES. 189
pounded at defendants' drug store, and easily detected the pres-
ence of Spanish flies in the mixture. They were taken to the
drug store to inc^uire into the matter. There the potions were
recognized as having been compounded and put up in that store,
by the clerk, and the fact that some Spanish flics had been, in
some way, mixed with the bark and snakeroot, Wcis detected and
admitted.
The effects upon the patient, from the proof, were most vio-
lent, dangerous and excruciating, and precisely such as would be
produced by a sufficient dose of cantharides. There was a con-
trariety of opinion expressed by the physicians examined, as to
the durability and permanency of the injurious efJ'ects produced
by this drug. The attending physician gave it as his opinion
that the symptoms exhibited were produced by the cantharides,
and that the plaintiff's health had been permanently injured by
the dose which he had taken. Several other doctors examined,
gave it as their opinion that, generally, the effects of this drug,
unless taken in sufficient quantity to produce death, would be
only temporary and evanescent ; that they had never known an
instance where the health of a person surviving the immediate
effects produced by cantharides had been permanently injured,
though they did not deny but that such might be the coi-se-
quence in some cases, where the peculiar condition of the patient's
system was such as that the poisonous quality of the drug might
be more pernicious and virulent in its effects, and that in special
cases it might cause permanent ill health.
There was evidence introduced by the defendants which was
intended to screen and exempt them and their agent, the clerk,
from the charge or imputation of having been guilty of inex-
cusable neghgence in compounding and putting up the medicines,
as required by the prescription furnished by the plaintiff's med-
ical adviser.
The physicians examined as witnesses, all concur in proving
that the violent and injurious effects produced upon the plaintiff
by the dose which had been taken by him, could not have
190 MALPRACTICE.
resulted, if it had contained nothing but the snakeroot and Peru-
vian bark ; that, when taken in the quantities as administered to
the plaintiff, they are harmless and innocent drugs, and the fact,
as deduced from all the testimony in the case, is conclusively
established, that, although the plaintiff sent them a prescription
for snakeroot and Peruvian bark onl}^, the defendants, being
druggists, sent him in. return — say by mistake — a compound
made up of the drugs required, intermixed with a most pernicioas
and deleterious poison, which, in fact, bears no kind of resem-
blance to the medicines named in the prescription, and the
mingling of which with innocent medicines, sent for by plaintiff,
was caused by improperly pulverizing the root and the bark, by
grinding them in the same mill in which Spanish flies had been
previously ground.
Several grounds were taken for a new trial, which do not con-
cern us here. But upon the question of excessive damages,
which was presented as a reason for a new trial, the court said :
" There is no fixed and certain criterion of damages for per-
sonal injuries, similar to those sustained by the plaintif!" in this
action. The question as to their amount is within the sound
and reasonable discretion of the jury. The damages given may
be more or less exemplary, or otherwise, as the circumstances
of aggravation or extenuation, characterizing each particular
case, may reasonably require. There is a class of personal
injuries, such as slander, libel, malicious prosecution, and
including injuries to a person's health, business and property,
caused by indirect means, unattended with force, and for redress
of which the remedy is by an action upon the case, and not
trespass, for which a jury may give exemplary damages, as well
when the action is in case as where it is in trespass ; and whether
exemplary damages should or should not be given, does not
depend upon the form of action, so much as upon the nature and
extent of the injury done, nnd the manner in which it was in-
flicted, whether by negligence, wantonness, or with or without
maUce. In the present case, the damages given by the jury,
DRUGGISTS ADJUDICATED CASES. 191
($1,141 75,) can not be considered as so excessive as to au-
thorize this court to reverse the judgment on that ground. From
the evidence in the cause, the jury had the opportunity and the
right to decide the question of lact as to the extent of injury
done to the plaintiif's health, and if the injury was considerable,
protracted or permanent, the amount of damages found by them
was, if even sufilcient, not excessive, and the verdict and judg-
ment ought not, on that ground, to be disturbed.
But it is urged that the Circuit Judge improperly instructed
the jury upon the law of the case. Upon motion of the attorney
for the plaintiff, the court gave the following instruction : No. I.
If the jury believe, from the evidence, that the defendants.
Fleet & Semple, were the proprietors of the drug store, in the
city of Covington, at which the prescription alluded to in evi-
dence, made for the plaintiif by Dr. Whitehouse, was compounded,
and that said prescription, as put up at said drug store, contained
Spanish flies, or cantharides, and that the plaintil!!, in consequence
of taking a part of it, was made sick or injured thereby, they
ought to find for the plaintiff, even although they may believe
that defendants were ignorant of the fact that said prescription
did contain said ingredient. Although the words of the instruc-
tion are injudiciously selected and arranged, yet if its meaning is
not misapprehended, it embraces in its terms a proposition of law
pertinent to the case, and applicable to the facts presented to the
jury by the evidence. Of course, the attorney who wrote the
instruction, and the Judge who gave it, in using the expression
as to the " prescription containing Spanish flies," and as to the
plaintiff's having taken a portion of the prescription, etc., have
reference to the mixture compounded at the drug store, and not
to the written prescription of the physician, intended as a direc-
tion to the druggist as to the drugs to be compounded. If the
plaintiff sent a prescription to the defendants' drug store, in filling
such prescription, whether ignorantly or by design — whether with
or without the knowledge of the defendants, they being propri-
etors, did intermix the poisonous drug cantharides, or Spanish
192 MALPRACTICE.
flies, with the bark and snakeroot ; and if, in taking this prepara-
tion, or mixture, as medicine, the plaintifi' was injured, the
defendants, being owners of the drug store, are legall}' responsible
in damages to the plaintiff for the accident, if it was one, and for
the outrage, if it was designed.
Now, if a man who sells fruits, wines and provisions, is bound,
at his peril, that what he sells for the consumption of others shall
be good and wholesome, it may be asked, emphatically, is there
any sound reason why this conservative principle of law should
not apply with equal, if not with greater, force to venders
of drugs from a drug store, containing, as from usage may
be presumed, a great variety of vegetable and mineral substances
of poisonous properties, which, if taken as medicines, will destroy
health and life, and the appearances of which are known to but
few, except they be chemists, druggists or physicians. The pur-
chasers of wines and provisions, by sight, smell and taste, may
be able, without incurring any material injury, to detect their bad
and unwholesome qualities; but many are wholly unable, by the
taste or appearance of many drugs, to distinguish those which
are poisonous from others which are innoxious, so close is their
resemblance to each other. Purchasers have, therefore, to trust
the druggist. It is upon his sldll and prudence they must rely.
It is, therefore, incumbent upon him that he understands his bus-
iness. It is his duty to know the properties of his drugs, and to
be able to distinguish them from each other. It is his duty so to
qualify himself, or to employ those that are so qualified, to attend
to the business of compounding and vending medicines and drugs,
as that one drug may not be sold for another, and so that, when
a prescription is presented to be made up, the proper medicine,
and none other, be used in mixing and compounding it. As
applicable to the owners of drug stores, or persons engaged in
vending drugs and medicines by retail, the legal maxim should
be reversed. Instead of caceat emptor, it should be caveat ven-
dor. That is to t;a}', let him be certain that he does not sell to a
purchaser or send to a patient one thing for another, as arsenic
DRUGGISTS — ADJUDICATED CASES. 193
for calomel, cantharides for or mixed with snakeroot and Peiuviau
bark, or even one innocent drug, calculated to produce a certain
efiect, in place of another, sent for and designed to produce a
different efl'ect. If he does these things, he can not escape civil
responsibility, upon the alleged pretext that it was an accidental
or an innocent mistake ; that he had been very careful and par-
ticular, and had used extraordinary care and diligence in pre-
paring and compounding the medicines, as required, etc. Such
excuses will not avail him, and he will be liable, at the suit of the
party injured, for damages, at the discretion of the jury.
The defendants' attorney moved the court to instruct the jury
as follows: 1. If, from the evidence, the jury believe that the
defendants, in preparing the prescription, used due and reason-
able skill, care and diligence, they must find for the defendants.
2. If, from the evidence, the jury believe that the defendants, in
putting up the prescription, used extraordinary or unusual care,
they must find for the defendants.
These instructions were not given, but properly refused by the
court. The rule as to the degree of care and diligence necessary
to be used in certain cases to exempt a party from liability, and
as to the extent or degree of negligence necessary to devolve
civil responsibility upon the party guilty thereof, do not apply to
the present and similar cases. It is absurd to speak of degrees
of diligence and of negligence, as excusing or not excusing, or as
setthng the question of liability or no liability, in a case where
the vender of di-ugs, being required to compound innocent med-
icines, runs them through a mill in which he knew a poisonous
drug had shortly before been ground. If a mistake or accident
could excuse the sending of a medicine difterent from ihat applied
for, wliich we do not admit, and can not readily conceive, there
could have been neither mistake nor accident in this case, because
the fact of the previous use of the mill was known to the ven-
ders, and they are absolutely responsible for consequences which
that knowledge enabled them and made it their du y to avoid.
Even accidents or mistakes should not occur in a business of this
13
194 MArPRACTICE.
nature, and they can not, ordinarily, occur without tliere has
been sach a degree of culpable, if not wantoii and criminal, care-
lessness and i:eglect, as must devolve upon the party unavoidable
and commensurate responsibility. We were asked, by the attor-
neys, in their argument?, with some emphasis, if diugg'sts are to
be, in legal estimation, regarded as 'insurers?' The answer is,
that we see no good reason why a vender of drugs should, in his
business, be entitled to a relaxation of the rule which apjtlit s to
venders of provisions — which is, that the vender undertakes and
insures that the article is wholesome. Sound public pohcy, in
relation to the preservation of health, and even of life, would
seem to require that this rule should have a rigid and inflexible
application to cases similar to the one under consideration. As
the responsibihty of the defendants in this case does not depend
upon the degree of care, or diligence, or negligence used by them,
but upon the naked fact, that when requested to compound a med-
icine for plaintiff, to be composed alone of snakeroot and Peru-
vian bark, the preparation sent to the plaintiff contained also the
poisonous drug cantharides, which had been recently ground in
the same mill, the taking of which caused him great pain, suffering
and sickness, if it has not permanently injured his health. The
instructions asked for by the defendants were properly refused."
The judgment of the Circuit Court was affirmed.
The two cases we have given — that of Thomas and wife against
Winchester, and that of Fleyt & Semple against Hollenkemp —
settle the law as applied to chemists and druggists, when they
undertake to compound or sell those medicines, where a mistake
or a little carelessness may endanger life and health.
In New York City, the business of the apothecary is regulated
by statute, as follows: The 35th, 36th and 37th sections of the
General Regulations concerning the Practice of Physic and Sur-
gery is, "That no person shall be hereafter allowed to commence
or practice, in the city of New York, the business of an apothecary,
or that of preparing and dispensing medicine, or of preparing or
putting up physician's prescriptions, without having previously
DRUGGISTS TRADE MARKS. 195
obtained the diploma of the College of Pharmac}', of the city of
New York, or unless furnished with a diploma from bome other
regularly-constituted college of pharmacy or medicine, or shall
have passed an examination of the censor.^ of the medical society
of one of the counties of this State, and have been furnished by
such censors with a certificate of his qualifications for the busi-
ness of an apo'hecary, which diplijma or certificate he shall pro-
duce to the Secretary of the said College of Pharmacy, to be by
him registered, without charge.
Sec. 3G. Any person offending against the provisions of th"s
law shall be subject to a j^enalty of fifty-one dollars lor each and
every ollense, which may be recovered, with costs, in the name
of the people of the State of New York, in any civil court of
record ; and the said fines, when collected, after deducting such
reasonable counsel fees as the court shall allow, shall be paid by
the District Attorney to the Treasurer of the New York City
Dispensatory, for the use of said Dispensatory.
Sec. 37. This law shall not apply to persons who now carry
on said business, nor the preparation and dispensing of medicines
by licensed physicians."
It is a misdemeanor, in the State of New York, for an apoth-
ecary, druggist or other person, who shall sell and deliver any
arsenic, corrosive sublimate, prussic acid, or any other substance
or liquid usually denominated poisonous, without having the
word '' poison " writ!:en or printed upon a label attached to the
phial, box or parcel, in which the same is so sold ; or who should
sell and deliver any tartar emetic, without having the true name
thereof written or printed upon a label attached to the phial, box
or parcel containing the same, and shall be punished by a fine
not exceeding one hundred dollars.
There is no business requiring more careful and constant watch-
fulness than that of the druggist. He can not, therefore, be too
systematic and regular in carrying it on. Upon him the physician
depends lor the preparation of his prescriptions, and consequently,
without his careful co-operation, not only failure to cure the dis-
ease, but actual injury from the medicine itself, may be the result
196 MALPRACTICE.
TRADE MARKS— NAME OF A COMPOUND.
DAVIS I. KENDALL; 2 Durfee's (R. I.) Rep. 566.
This was an action against the defeiidaiit for pirating the plain-
tiflf's trade mark. It appeared that, the piaintili' was the ori^inal
inventor of a compound sold by him, by the name of "Pain-
killer ;" that he had been the first to apply this word to such a
compound, and that after said compound had become extensively
and favorably known, the defendant manufactured and sold a
imilar compound, by the name of "J. A. Peril's Vegetable Pain-
killer." The delendant's medicine was put in bottles of similar
size with those of the plaintiilj though of somewhat different
shape. The plaintiif's label was a paper pasted on the body of
the bottle, on the upper part of which was the word '■ Pain-killer,"
printed in a scroll, below which were the words '- Manulactured by
Perry Davis," and below this an engraving, intended to represent
the plaintiff, surrounded by an oval circle bounded on either side
by a simple wreath, and having in its margin the words, " The
original inventor, No. 74 High st., Providence." Below (he cir-
cle, in small type, were the words, '• Cop^'right secured," and the
price of the bottle, and at the bottom of the label the words,
"Destroy this as soon as the bottle is empty. This will prevent
fi-aud." The defendant's label was similarly affixed to the bottle ;
at the upper part were the words, "J. A. Perry's Vegetable Pain-
killer;" underneath which was represented the bust of a man,
and beneath this the words, " Manufactured in Prov.dence, R. I.
Price 80 cents. Copyright secured." The devices on the plain-
tifi"s labels were on a light ground ; those upon the defendant's
upon a dark ground. The case was tried to the court upon an
agreed statement of facts.
Greene, Ch. J. — The plaintiff* has no patent and no exclusive
right to the compound called " Pain-kilier." He invented the
compound and gave it the name of " Pain-killer," and this seems
to have been the first application of that term to a medical com-
pound. The plaintiftj though not entitled to the compound, is
DRUGGISTS ^TRADE MARKS. 197
entitled to his trade mark, and the law recognizes and will [»rotect
this right.
Trade marks may be, Qrst, the name of the maker ; second,
symbolical ; third, the name of the compound. Of this last kind
is the trade mark of the plaintiff, '' Pain-killer.''''
All are entitled to make and vend this compound, and to vend
it as a similar article to that made and sold by the plaintiff; but
no one but the plaintiff has a right to sell it as a medicine man-
ufactured by the plaintiff. The adoption of the same label as the
plaintiff's will, of course, be actionable; and so the adoption of a
label so like the plaintiff's as to mislead the pubHc, would be
actionable. If the difference be merely colorable, it will not avail
the defendant. But if the defendant state in his label, that the
article which he sells was made by himself, although he calls it by
the same name as the plaintiff, he will not be liable ; because he
has a right to make and vend the compound, if he vends it as
his own, and not as made by the plaintiff.* If the defendant,
without fraud, use the trade mark of the plaintiff, he is still liable.
If the right be violated, it matters not whether it be by fraud or
by mistake."
The whole question in this case is, whether the defendant's
label is liable to deceive the public, and to lead them to suppose
they are purchasing an article manufactured by the plaintiflj in-
stead of the defendant. The agreed statement of facts does not
find that the defendant's label has deceived any one. and I do not
think it will do so, but my associates think otherwise, and judg-
ment mu-^t, therefore, be returned for the plaintiff.
' Canham v. Jones, 2 Vessey & Beames, 218.
» Millington v. Fox, 3 Mylne & Craig, 339.
CHAPTER XIII.
CRIMINAL MALPRACTICE— ENGLISH ADJUDICATED CASES.
Willful or Criminal Malpractice depends upon the intent, or
upon rashness, or want of due circu7nspection. Under these cir-
stances, the law will imply criminal intent.
There is, perhaps, no subject connected with criminal jurispru-
dence, in which cases of so great difficulty have arisen in regard
to the question of malice, as those that have occurred under the
head of Criminal Malpractice by surgeons. It arises fi'om the
peculiar circumstances surrounding the whole practice of med-
icine, to which we have heretofore referred.
Where many questions and a multitude of elements enter into
judicial decisions, there have always been a proportional contra-
diction and fluctuation in such decisions. The law books are full
of facts that establish the truth, that a settlement of a principle,
under these circumstances, is only arrived at after long years of
conflicting ruUngs.
None of the authorities pretend to go further back than to
the fifteonth century. Beyond this time, all is confusion in the
Common law on the subject of Malpractice; and in the Civil law
there is nothing relative to it more definite.
One of the oldest, if not the oldest decision, relating to Mal-
practice, is by the distinguished Sir Matthew Hale, who lived
at the time of Ch irles I. He thus lays down the law of his
time, relating t;) Criminal Malpractice, which opinion is quoted as
authority in aU succeed'ng decisions on the subject.- '■ If a phys-
ician gives a person a potion without any intent of doing him
(11)8)
CRIMINAL MALPRACTICE. 199
any bodily harm, hut with intent to cure or prevent a disease,
but, contrary to the expectation of the physician, it kills him,
this is no homicide, and the hke of a surgeon; and I hold their
opinion to be ( rroneous that think if it be no licinsid surg on
or physician tliat occasions the mischance, then it is fe'ony, for
that he le not licensed according to the sbi'utes. They are sub-
ject to the penalties in the statutes, but God forbid that any mis-
chnice of this kind should make any person not licensed gui.ty
of murder or mans'aughter."'
Loid Ha'e referred, without doubt, to Lord Coke, who held, or
seemed to, that if the operator or practitioner was unlicensed, he
would be li ible where a licensed one would not be. Coke says : " If
one that is in the mystery of a physician, take a man to cure, and
give him such physic as within three days he die thereof, without
any felonious intent, and against his will, it is no homicide, but Brit-
ton saith, that if one that is not of the mystery of a physician or
chirurgeon take upon him the cure of a man, and he dieth of the
potion or medicine, this is, saith he, covert felony."-
Though this doctrine was thus put forth by Lord Coke, yet it
is said, by good authority, that there never had then })een, nor
has there been since, any decision of the kind attributed to
Britton.3
Blackstone, following Hale, lays down the law as it existed in
his time, to be, " If a physician or surgeon gives his patient a
potion or plaster to cure him, which, contrary to his expectation,
kills him, this is neither murder or manslaughter, but a misad-
venture, and he should not be punished criminally, however liable
he might formerly have been to a civil action for neglect or
ignorance ; but it hath been holden, that if it be not a regular
physician or surgeon who administered the medicine or performs
the operation, it is manslaughter at the least; yet Sir Matthew
> 1 Hale P. C. 429.
2 4 Inst. 251.
• 3 C. & P. 629, [Hullock, B.]
200 MALPRACTICE.
Hale very justly questions the law of this determination. In
order, also, to make the killing murder, it is requisite that the
party die within a year and a day after the stroke received, or
cause of death administered, in the computation of which the
whole day upon which the hurt was done is to be computed
the first."^
Thus, these high authorities seem to agree that the want of a
license, or medical degree, does not enhance the grade of ofiense
if there was an honest desire to cure the patient.
On the contrary, in the case of Rex v. Simpson, the prisoner
being indicted for manslaughter, it appeared that the deceased, a
sailor, had been discharged from the Liverpool Infirm iry as
cured, after undergoing salivation, and that he was recommended
by another patient to go to the prisoner for an emetic, " to get the
mercury out of his bones." The prisoner was an old woman, who
resided at Liverpool, and occasionally dealt in medicine. She
gave the deceased a dose of the solution of corrosive sublimate^
which caused his death. The woman said she had received the
mixture from a person who came from Ireland, and had gone
back again. Mr. Justice Bayley said, in that case, " I take it to
be quite clear, that if a person, not of medical education, in a
case where medical aid could be obtained, undertakes to adminis-
ter medicine, which may have a dangerous efiect, and thereby
causes death, such person is guilty of manslaughter. He may
have no evil intention, and may have a good one, but he has no
right to hazard the consequences, in a case where medical assist-
ance may be obtained. If he does, it is at his peril. It is im-
material whether the person administering the medicine prepares
it himself, or gets it of another."^
This reasoning is correct, and should be deemed conclusive.
Where good, intelligent medical or surgical assistance can be ob-
tained, an empiric or ignorant person who attempts to use the
' 4 B\i\ck. Com. 197.
2 4 C. & P. 398, note.
CRUVIINAL MALPRACTICE. 201
potent agents of the Materia Medica thus recklessly on human
life, should be held to a stiict accountability to our criminal laws.
But the weight of authority is, perhaps, with Sir M. Hale and Sir
William Blackstone, on the principle, that all regular and irregular
practitioners are to be placed on about the same footing as to
criminal liability, where no statute intervenes. This is the doc-
trine upon which the case of Van Butchell was decided, before
Baron Hullock, Mr. Justice Littledale and Mr. Sargeant Arabin,
tried in 1829, at the Old Bailey Sessions.
REX x\ VAN BUTCHELL; 7 B. & C. 493.
This is a leading case, and worthy of study.
The indictment charged the death to be by " the thrusting of
a round piece of ivory into and up the fundament, and against the
rectum of the deceased, William Archer, thereby making one
perforation, laceration and wound of the length," etc., "in and
through the said rectum of the said Archer."
Adolphus, for the prosecution, stated that the deceased had
labored under a disease of the rectum, respecting which he went
to Mr. Van Butchell, on the 10th of May, 1829, when Mr. Van
Butchell passed an instrument into his body, giving him pain,
and that on the deceased returning home he took to his bed, from
which he never rose, having died on the 17th of May. He then
took the ground that the defendant was guilty of manslaughter,
and read as authority an extract from Blackstone's Commentaries,
and was proceeding to state what Coke had said in his Institutes,
which extract we have already quoted, that if one who is not a
regular surgeon take upon him to cure a man, and the patient
die, it is felony.
Hullock, B., said : " It is said in Lord Coke's Institutes, un-
doubtedly, but there has never been any decision of the kind."
For the defeni^e, it was said : " The gentleman now standiiig at
the bar is, as I happen to know, the son of a person of great
experience, and he has himself had much practice for a great
many years, which I think you shall take as raising the presump-
202 MALPRACTICE.
tion that he has had a regu'ar education; indeed, I have been
told that Mr. Van Butchell is a regularly-e(kicated surgeon.
Whether he is a member of the College of Surgeons I know not ;
and I believe you will be told by the court tha!: that is not essen-
tial ; and I think you will also be told by the court that we must
not scrutinize too nicely as to how the operation was performed,
if it was not performed with such gross ignorance as to show a
wanton carelessness of human life.
It was then proved by Lloyd that he opened the body of the
deceased after death, and that he found a portion of the illeum
adherent to the rectum, and that on separating this adhesion he
discovered a small hole perforated through the rectum. Mr.
Lloyd v.'as cross-examined, with a view of showing that those
appearances might have been the result of natural causes, and he
stated that operations would sometimes fail, notwithstanding they
might be most skillfully performed ; and he added, that he him-
self had operated in extracting an encysted tumor from the breast
of a woman, at a time when she was pregnant, and who soon after
died ; and that he and many other surgeons thought that correct
practice, though he admitted the propriety of the practice was
doubted by others.
IluLLOCK, B., inquired of Adolplms if he thought he could
cany the case further?
Adolplms said he did not think that he could.
IIuLLOCK, B. — I am free to confess that this does not even ap-
proach to a case of manslaughter. It would be dreadful, if every
time an operation was performed, an individual was liable to have
his practice questioned.
Broderick, for the defense — I am prepared to show that Van
Butchell has a regular medical education.
HuLLOCK, B. — / do not think that that is material to the case.
Broderick. — I can call a great number of patients whose cases
have been successfully treated by Mr. Van Butchell.
HuLLOCK, in summing up, said :'• This is an indictment for
manslaughter, and I am really afraid to let the case go, lest an
CRIMINAL MALPRACTICE. 203
idea should be entertained that a man's practice may be ques-
tioned whenever an operation fails. In this case there is no
evidence of the mode in which the operation was performed ; and
even assuming, for the moment, that it caused the dea'h of the
deceased, I am not aware of any law which says that this party
can be found guilty of manslaughter. It is my opinion that it
makes no difl'erence whether the party is a regular or an irregular
surgeon; indeed, in remote parts of the country, many persons
would be left to die, if irregular surgeons were not allowed to
practice. There is no dotibt that there may be cases where both
regular and irregular surgeons might be hable to an indictment,
as there might be cases where, from the manner of the opera-
tion, even malice might be inferred. All that the law books have
said his. been read to you; but they do not statt; any decision,
and their silence in that respect goes to show what the uniform
opinion of lawyers has been upon this subject. As to what is
said by Lord Coke, he merely details an authority — a very old
one — without expressing either approbation or disapprobation.
However, we find that Lord Hale has laid down what is the law
on the subject : that is copied by Mr. Justice Blackstone,
and no law book goes any further. It may be that a person
not qua'ificd legally to practice as a surgeon, may be liable
to penalties ; but surely he can not be liable to an indictment for
felony.
It is quite clear you may recover damages against a medical
man for want of skill; but, as Lord Hale says, "God forbid that
any mischance of this kind should make a person guilty of mur-
der or manslaughter." Such is the opini<m of one of the greatest
judges that ever adorned the bench of this country ; and his
proj o>ition amounts to this, that if a person bona fide and hon-
estly (■xerci>ing his best skill to cure a patient, performs an
opera tiin which causes the patient's death, he is not guilty of
mans aughter. In the present case no evidence has been given
respecting the operation itself It might have been performed
with the most proper instrument, in the most proper manner, and
204 MALPRACTICE.
yet might have failed. Mr. Lloyd has himself told us that he
performed an operation, the propriety of which seems to have
been a sort of vexata quccstio among the medical profession ; but
still it would be most dangerous for it to get abroad, that if an
operation, performed either by licensed or unhcensed surgeons,
should fail, that the surgeon would be Hable to a prosicution for
manslaughter. I think, in a point of law, this prosecution can
not be sustained ; and I feel bound to say, that no imputation,
whatever, ought to be cast upon the gentleman who is now at the
bar, in consequence of any thing that has occurred.
Lord Ellenborough lays down the same doctrine in the William-
sou case.
REX V. WILLIAMSON; 7 B. & C. 497.
In this case the prisoner was indicted for the murder of Ann
Delacroix, at the parish of St. James, Westminster. He was
also charged with manslaughter by the coroner's inquisition.
The physician thus charged was about seventy-five years of
age. He was not a regularly-educated accoucheur, but was a
person who had been in the habit of acting in that capacity among
the lower classes of people.
One of the witnesses testified, (the nurse who waited upon
Mrs. Delacroix,) that Mrs. D. had been delivered by the prisoner
of a male child on Friday, the 17 th of September, and that on
the Sunday following an unusual appearance took place, which
the medical witnesses stated to be a prolapsus uteri. This the
prisoner mistook for a remaining part of the placenta, which had
not been brought away at the time of the delivery. He attempted
to bring away the prolapsed uterus by force, and in so doing he
lacerated the uterus, and tore asunder the mesenteric arter}''.
This, T)f course, caused the death of the patient. Had he not
gone quite so far, and only strained and s:ightly ruptured the
parts connected with the uterus, the case would have been one of
living death. This condition, thus brought on, is not uncommon,
and the poor woman lingers out a miser.ible and painful exist-
ence. The medical evidence went to establish the fiict that there
CRIMINAL MALPRACTICE. 205
must have been a great want of anatomical knowledge in the
prisoner.
On the other hand, fourteen women appeared as witnesses for
the defense, all of whom hud been delivered by the prisoner at
diflerent times: but six only were examined; and they spoke
of the kindness and attention that the prisoner had displayed,
and also of his skill, so far as thefj could judge.
Lord Ellknborough, Ch. J., in summing up, said to the jury :
"There has not been a particle of evidence adduced which goes
to convict the prisoner of the crime of murder ; but still it is
for you to say whether the evidence goes so far as to make out
a case of manslaughter. To substantiate that chnige, the prisoner
must have been guilty of criminal misconduct, either arising
from the grossest ignorance or the most criminal inattention.
One or other of these is necessary to make him guilty of that
criminal negiigunce and misconduct which is essential to make
out a case of manslaughter. It does not ap[)ear in this case
that there was an}^ want of attention on his part, and from the
evidence of the witnesses on his behalf, it appeals that he had
delivered many women at different times, — and from tJds he
must hare had some degree of s/cdl. It would seem that, having
placed himself in a dangerous situation, he became shocked and
confused. I think that he could not possibly have committed
such mistake in the exercise of his unclouded faculties ; and I
own that it appears to me that if you fii,d the prisoner guilty
of manslaughter, it will tend to encompass a most important and
anxious profession with such dangers as would deter reflecting
men from entering into it."
Verdict — not guilty !
This important case, thus analyzed by the distinguised judge
who presided at the ti'ial, shows how difficult it always has been
to convict a medical man of murder or manslaughter when he
has caused death in the course of his profession. This, perhaps,
is right; that the innocent may not unjustly sutler from an
unhealthy public or judicial influence. Yet there ought to be
206 MALPRACTICE.
no hesitation in punishing an outrageous transaction like the one
detiuled in the above case, with the heaviest penalties of the law.^
The proper protection of the public requires it — the reputation
of the medical profession calls for and demands it as a vindi-
cation of its science, and of legitimate, intelligent practice.
While the caution of Lord Ellenborough is connnendable, yet
in this case he has been carried too far. Nor is his reasoning
correct. It is no more an inference of "some degree of skill"
in Williamson, because he had delivered some women successfully
before, than the lact that a woman who has delivered herself of
ten or a dozen children, which is often the case, is evidence that
she possesses some knowledge of the utei'ine system. Nine-
tenths, perhaps, of the obstetric cases require no medical aid
whatever ; when it is required, however, it is so immediate and
necessary, that it is unsafe to be without this aid at hand at any
time. When needed at all, the best skill is called for. Nor is
it a very good excuse, or one that should have but little weight,
that " he became shocked and confused," and in that state of mind
killed the woman.
The truth undoubtedly is, that this man undertook to dis-
charge the delicate and important duties of an accoucheur with-
out any anatomical or obstetric skill whatever; and although
he had passed through cases successfully, when the moment and
the case occurred that required skill and caution, he had them
not; and igoorantly and wickedly caused the death of one who
had intrusted her life to his cai-e, which obligation he had reck-
lessly assumed. With any proper degree of anatomical skill he
could not have fidled to distinguish a uterus from a placenta. If
he did not have the necessary knowledge to determine between
these two parts, then he was certainly grossly ignorant. If he
did know the difference and the danger, and yet used so much
force, violence and tension, as to tear down the uterus, rupturing
arteries and injuring the parts generally, then he was guilty of
' 2 K. & S., 662, p, 10 ; C. & K, 232-3 ; Id. 368-711.
CRIMINAL MALPRACTICE. 207
gross carelessness, presumption and inattention, and he should
in either case sul!er punishment, that others as well as himself
might be deterred from repeating the ollence, in like cases.
It would not have a tendency, as Lord EUenborough says, to
"deter reflecting men from entering into " the medical profession,
by punishing those criminally ignorant when they so richly
deserve it, but, on the contrary, it would induce high-minded
men to enter it, if they saw science and skill protected, and
ignorance and carelessness punished by the courts. Such a
course would encourage intelligent physicians to remain in the
profession who are now leaving it.
This case illustrates how ignorant a distinguished Lord Chief-
Justice of England may be as to the science of medicine. He
supposes that because an ignorant old man had the temerity to
act the part of an accoucheur among a class of low, ignorant
women, that therefore he must necessarily have some skill. A
most absurd proposition. And that if the quacks were punished,
well educated men would not enter the profession ; while the
truth undoubtedly is, as already shited, that many honorable
men hesitate to enter the profession, and others leave it, because
these pretenders who disgrace its name and practice — destroy-
ing the lives of their victims wantonly — are not held to as
strict and rigid an accountability as the circumstances of the
case will warrant. It would tend greatly to encourage the honor-
able members of the medical profession, if, when a case of Mal-
practice is so completely estabhshed as in the Williamson case,
such punishment as would be proper under other similar cir-
cumsbmces should be measured out to the offender.
The worthy part of the profession ask lor the violation of no
well-settled pi'inciple of law in their behalf That this verdict
violated law there can be no doubt.^
1 19 Jolin, 381 ; 4 Dc^nio, 4G4 ; 2 Bl., 892-3-4. 899-900 ; Broom's Leg. Max.,
168-9. 1st oil.; 5 Mould & Sol., 198: 41 Eng. Com. Law R. 425; 19 Wcud.
345-G ; 4 Denio, 317 ; 2 Weud. 385 ; 3 Mete. 469.
CHAPTER XIY.
CRIMINAL MALPRACTICE— ENGLISH ADJUDICATED CASES, CONTINUED.
REX v. JOHN ST. JOHN LONG, 6 Bingham, 440.
The case of St. John Long, illustrates what degree of ignorance,
negligence, and hardihood, can at times pass the ordeal of an
English court and not meet with condemnation and punishment.
The indictment in this case charged that St. John Long, on,
etc., at, etc., did make an assault, and with a certain inflammatory
and dangerous liquid, secretly prepared, mixed and made by him,
on the back of her, the said C. C, did rub, wash and sponge,
and caused and procured to be rubbed, washed and sponged, he,
the said J. St. J. Long, knowing the liquid so prepared, mixed,
and made, to be inflammatory and dangerous; and that he did
by the said rubbing, etc., cause upon the back of the said C. C,
one mortal inflammation and wound of the length, etc., and did
also, by means of such rubbing, etc., cause and procure the said
C. C, to become mortally sick, etc.; the indictment also stated
that the deceased languished from the 3d of August to the 17th
of the same month, 1830, and then died. There were other
counts, all in nearly the same form ; in some of which the death
was stated to be from the inflammation and wound, and in the
others from the sickness. There was no count which expressly
imputed either negligence, carelessness, ignorance or want of
skill to Long, which, perhaps, there should have been, nor was
there any count charging the inhaling to have caused the death
of the deceased.
For the prosecution it was said, that by gross misconduct,
Long had produced an inflammation which had caused the death
( 208 )
CRIMINAL MALPRACTICE. 209
of Miss Cashin. The act was done by a servant of Mr. Long,
by his directions ; but, as the servant was only an innocent
agent, Mr. Long was to be considered as the principal, exactly
the same as if he had done it himself Nothing was charged to
Long, on the ground that he was not a regularly educated
physician. The prosecutor in the case asked for judgment
against Long, on the broad principle that he was no more
responsible than the first medical practitioner in the kingdom,
but still, if any man by an unlawful act should cause death, it
was manslaughter ; — this was distinctly laid down b}' Mr. Justice
Foster,^ who said : " If an action, unlawful in itself, be done
deliberately, or with intention of mischief, or great bodily harm
to particulars, or of mischief indiscriminately, fall where it may,
and death ensues, against or beside the original intention of the
party, it will be nmrder ; but if such mischievous intention does
not appear, this is matter-of-fact, and to be collected from circum-
stances, and if the act was done heedlessly and incautiously, it will
be manslaughter, — nor accidental death, because the act upon
which the death ensued was unlawful." There was also another
proposition of law, which was, that if, in the prosecution of any
lawful act, any thing was done which was imprudent, irregular
or improper, and death ensues, it would be manslaughter.
Justice Foster," who said : " It is not sufficient that the act upon
which death ensueth be lawful or innocent, it must be done in a
proper manner, and with due caution to prevent mischief" The
most common case of this kind was that of a coachman driving
fiist in the streets. He had no bad intent, but the act being;
done with irregularity, he would be guilty of manslaughter if
death ensued.
It was said, to apply this principle to medical men, it would
stand thus : they, whatever their skill, must use due caution ;
but there was no doubt, considerable latitude must be allowed
them. In modern times poisons were exhibited as medicines in
' Cr. Laws, 261. 2 Cr. Laws, 262.
14
210 MALPRACTICE.
certain cases ; but if in the hurry of the moment, the medical
man were to give fifty grains instead of one, he would be guilty
of manslaughter if death ensued. So, a surgeon had a right to
amputate a limb, but if in the hurry to go elsewhere, he left the
arteries imperfectly secured, and death ensued, he would also be
guilty of manslaughter. It might be said, that the consent of
Miss Cashin was given to all that v/as done ; but still, no one
could permit another to do that which was criminal. Persons
could not give a consent to put their own lives in danger.
It appeared, from the evidence of a witness, that two of the
family of Mrs. Cashin had died of consumption; but that Miss
Cashin, who was twenty-four years of age, had enjoyed good
health ; and that Long told him (the witness,) that he (L.,) had
informed a young lady that unless Miss C. put herself under his
care, she would die of consumption in two months ; and that, on
this being communicated to Mrs. Cashin, she placed her daughter
under L.'s course of treatment, hoping to prevent her having
consumption. The witness also stated that L. told him that he
rubbed a mixture on different parts of the bodies of his patients,
and that it had been applied to INIiss Cashin. It was proved by
another witness for the prosecution, (Mrs. Roddis,) that she went
with Miss Cashin to L.'s on the 13th of August, respecting a
wound on her back, and that Miss Cashin then inhaled, and that,
on the next day, Long examined Miss Cashin's back, and said
it was in a hemdiful state, and that he would give one hundred
guineas if he could produce a similar wound on the person of
some of his patients. Mrs. Roddis stated that she directed
Long's attention to the part of the wound which was of a darker
appearance, and that he stated that this proceeded from inhaling,
and that unless those consequences were produced, he could not
expect a beneficial result. The wound, at tliis time, was about
five or six inches square. The witness further sttited, that Miss
Cashin was suftcriiig much from sickness, and she mentioned this
to Mr. Long, who said that it was of no consequence, but, on the
contrary, a benefit ; and that those symptoms, combined with the
CRIMINAL MALPRACTICE. 211
wound, were a proof that his system was taking due effect ; and
that, on Sunday, the 15th, Miss Cashiu having got worse, Mr.
Long said that, in two or three days, she would be in better
health than she had ever been in her life, and spoke very confi-
dently that the result of his system would be to prolong her life,
and that no person could be doing better than Miss Cashiu.
At this interview Mrs. Roddis showed Mr. Long the wound
on Miss Cashin's back, which had extended. She also stated
that Mr. Long, on Sunday, the 1 5th, was desired to do something
to stop the sickness of Miss Cashin, but that he said he had a
remedy in his pocket, which he would not apply, as he knew that
sickness had been beneficial ; and he also stated, on that day,
and on Monday, the 16th, that Miss Cashin was doing uncom-
monly well. She died on Tuesday, the 17th.
It was also proved by Mr. Brodie, the celebrated surgeon, that
he saw Miss Cashin on Monday before she died, and that her
back was extensively inflamed, as large as a plate ; and that in the
center was a spot as large as the palm of his hand, black and
dead, which was in a sloughing or mortified state. ^Ir. Brodie
stated that he did not consider Miss Cashin to be in any imme-
diate danger, and that he thought that some very powerfully-
stimulating liniment had been applied to her back. In his cross-
examination he said that it was very common to produce a
counter-u-ritation, and that the things used to produce that pro-
duced very different effects upon different constitutions ; but in
re-examination, he stated that, applying a lotion of a strength
capable of causing the appearances he saw, to a person of the age
and constitution of the deceased, if in perfect health, was likely
to damage the constitution, and produce disease and danger.
Mr. Brodie also stated that the appearances on Miss Cashin's
back were quite sufficient to account for her death. Several other
medical men, who had examined the body of the deceased, stated,
that on the most careful examination, they could not discover any
latent disease, or seeds of disease. A servant of Mr. Long's,
named Ann Dyke, stated that on the 3d of August, she, by the
212 MALPRACTICE.
direction of Mr. Long, rubbed Miss Cashin's back with a liquid,
but that she did not know what the hquid was. In her cross-
examination she stated that Mr. Long had a great many patients,
many of them persons of rank, and that she rubbed Miss Cashin's
back with the same hquid that was used for the other patients.
On the part of the defense, it was asked if a greater effect was
produced on Miss Cashin than on other persons ? The question,
though objected to on the part of the prosecution, on the ground
that it was not in issue whether the defendant had done good or
not in other cases, was permitted by Justice Parke and Mr.
Baron Garrow, holding that the question might be put, and that
• the witness might ]3e asked the names of the persons who attended
at the same time, and were treated in the same manner as Miss
Cashin. The witness stated that the Marchioness of Ormond and
Lady Harriet Butler were at Mr. Long's at the same time that
Miss Cashin was there, and that the same lotion was applied to
them, and also to Mrs. Ottley and many others.
The defense submitted that, in point of law, that this was
nothing hke a case of manslaughter ; and they cited 1 Hale's P.
C. 429 ; 4 Bl. Com. b. 4, c. 14, and the Van ButcheU case, and
argued that it was quite clear that Mr. Long intended to prevent
or cure the disease.
Mr. Justice Parke said : " I am in this difficulty. I have an
opinion, and my learned brother difiers from me. I must, there-
fore, let the case go to the jury."
Mr. Baron Garrow said : " In Rex v. Van Butchell, the learned
judge had very good ground to stop the case, as there wfis no
evidence as to what had been done. I make no distinction be-
tween the case of a person who consults the most eminent phys-
iciaM, .'U'l the ois!^ of those whose necessities or iblly may carry
thein int) any tyhr qiTirter. 1 matters not whether the indi-
V (lua. consulted be the Pri >i(lent of the College of Physicians,
the i'residen'. of the C^^llege of 8urgrons, or the humblest bono-
setter of the vi;lage; but be it the one or the other, he ought to
bring into the case ordinary care, skill and diligence. Why is it
CRIMINAL MALPRACTICE. 213
that we convict in cases of death by driving carriages? Because
the parties are bound to have care, skill and caution. I am of
opinion that if a person, who has ever so much or so little skill,
sets my leg, and does it as well as he can, and does it badly, is
excused ; but suppose the person comes drunk, and gives me a
tumbler-full of laudanum, and sends me into the other world, is
it not manslaughter ? And why is that ? Because I have a right
to have reasonable care and caution.
It was said there was a case on the Northern Circuit, where a
man, who was drunk, went and delivered a woman, who, by his
mismanagement, died. He was sentenced to six months' impris-
onment."
For the defense, twenty witnesses were called, including the
Marchioness uf Ormond and Mrs. Ottley, who stated that they
had been patients of Mr. Long, and that they were satisfied with
his skill and diligence. One of the witnesses stated that he
should never ctase to pray for Mr. Long as long as he lived.
Another, a lady, said that she could never be sufficiently thankful
to him fur what he had done for her family ; and another was a
surgeon, who had lived in Jamaica for thirty-six years, and he
expressed himself perfectly satisfied with Mr. Long's treatment
and conduct.
Mr. Justice Parke, in summing up, said : " The learned counsel
for the prosecution truly stated, in the out-set, that whether the
party be licensed or unlicensed is of no consequence, except in
this respect, that he may be subject to pecuniiiry penalties for act-
ing contrary to charters or acts of Parliament ; but it can not
affect him here. For this I have the authority of that great and
eminent person, Lord Chief-Justice Hale, who has expressly said,
that though physicians and surgeons, if they are not licensed,
may be subject to penalties, yet they are not answerable crim-
inally on that account. His phrase is, ' God forbid that any mis-
chance of this kind should make a person guilty of murder or
manslaughter ;' and, therefore, licensed or unlicensed, certainly does
not signify ; I agree with my learned brother that what is called
214 MALPRACTICE.
mcda praxis in a medical person, is a misdemeanor ; but that de-
pends upon whether the practice he has used is so bad that every-
body will see that it is mala praxis. The case at Lancaster dif-
fers from this case. 1 have communicated with Lord Chief-Justice
Tindal, who tried that case, and he informed me that the man was
a blacksmith, and was drunk, and was so completely ignorant of
the proper steps, that he totally neglected what was absolutely neces-
sary after the birth of the child. That, certainly was one of the
most outrageous cases that ever came into a court of justice. I
would rather say, with my Lord Ellenborough in the case of Rex v.
Williamson, ' That a medical man is not to be charged with man-
slaughter, unless he has been guilty of criminal misconduct,
arising either from the grossest ignorance or the most criminal
inattention.' And this is important here ; for though he be not
licensed, yet experience may teach a man sufficient ; and the
question for you will, by and by, be, whether the experience this
individual acquired does not negative the supposition of any gross
ignorance or criminal inattention. The case quoted from the
Institutes of Lord Coke, who lived upward of two hundred years
ago, occurred at a time when there were very few cases of the
kind, and was deemed to be a case of manslaughter. But I do
not derogate from his high and illustrious character, when, as far
as criminal law is concerned, I set against it the authority of my
Lord Chief-Justice Hale, on whom, when authority is quoted,
reliance is always placed. He says : ' If a physician gives a per-
son a potion, without any intention of doing him any bodily hurt,
but with intent to cure him, or prevent a disease, and contrary to
the expectation of the physician, it kills him, this is no homicide :
and the like of a chirurgeon ;' and he quotes the Year-Book, 3
Ed. 3 ; and he goes on to say, 'And I hold their opinion to be
erroneous who think if he be no licensed chirurgeon or physician
that occasioned this mischance, that then it is felon}', for physic
and salves were before licensed physicians and chirurgeons ;' and
he proceeds further and says: 'These opinions may serve to cau-
tion ignorant people not to busy in this kind with tampering with
CRBIINAL MALPRACTICE. 215
physic, but are no safe rules for judges or jury to go by.' I say
the i^ame — that the pubhc weal is deeply interested in preventing
ignorant persons Ironi tampering with these subjects. It is true,
his next reason, about the want of surgeons in the country, does
not -'ipply here ; because, in London, all persons can obtain the
assistance of the best men, however poor they are. The ques-
tion is, whether there was gross ignorance in this gentleman, or
scandalous inattention in the treatment of this lady. The opinion
of Lord Chief-Justice Hale is recorded and adopted in Sir Edward
East's Pleas of the Crown, and in Blackstone's Commentaries.
I come now to the case of Van Butchell, decided here only
twelve months ago by Mr. Baron Hullock, of whom it may be
said, that a sounder lawyer or a stronger-headed man was never
known in this profession. I quote this case rather to show you
what that learned person's strong opinion was upon the general
question, on the danger, not of punishing the man found guilty
of gross negligence, but whether his practice can be questioned
whenever an operation happens to fail. He says : ' It is my
opinion that it makes no difference whether the party be a reg-
ular or irregular surgeon ;' and also, ' There is no doubt that
there may be cases where both regular and irregular surgeons
might be liable to an indictment, as there might be cases where,
from the manner of the operation, even malice might be inferred.'
I agree with him, that there may be such cases as those he has
first mentioned, and you will have to decide whether this is one
of them or not. I wish also to state to you what Lord Ellen-
borough said in the case of Rex v. Williamson, which was the case
of a man who acted as a man-midwife. Lord Ellenborough there
says, that, from the evidence, it appeared that the prisoner had
delivered many women, at diflerent times ; and from this, he must
have had some degree of skill. He goes along with me in think-
ing that skill may be acquired by practice. That is my opinion
here, and there are twent3'-nine witnesses, all speaking to the
prisoner's skill in their cases. There is clear evidence that the
prisoner did the act that shortened Miss Cashin's life. But that
216 MALPRACTICE.
does not prove the case, unless you think there was gross
ignorance, or inattention to human life to be inferred from it. It
is evident he had some information. Whether he drew improper
conclusions from it is not for you or me to say. It seems from
Mr. Sweetman's evidence that the disorder had been in the
family — that a son was dead, and a daughter was likely to die.
The prisoner always said that his remedy would cure consump-
tion ; and if the disease had not been in the family, they would
not have sent to him at all. The prisoner's counsel could not by
law, ask the defendant's witnesses any questions as to their
respective disorders, and the mode of cure, as my brother and I
were of opinion that it was not evidence. All that was evidence,
was, that he had displayed so much skill in other cases as to show
that he was not that grossly-ignorant or inattentive person who
could be guilty of manslaughter, according to Lord EUenborough's
opinion in the case before mentioned. The refusal of the prisoner
to apply the medicine, in order to stop the sickness, although he
had it with him, would, in my opinion, if wickedly done, amount
to murder ; but he mentioned a case in which sickness had been
beneficial. Undoubtedly, the result proves a very erroneous
opinion on his part ; and it seems singular that the restlessness
and other circumstances did not awaken apprehension and call
for further measures ; but the question again recurs, whether this
was an erroneous judgment of a person who was of general com-
petency, though he unfortunately failed in this particular instance ?
It appears that he said, on examining the wound on Miss Cashin's
back, that he would give a hundred guineas if he could produce a
similar wound on some of his patients. This seems to show his
confidence in his proceedings ; and there is this observation to be
made of him throughout, that he seems to have been living in a
fashionable part of the metropolis, and attended by right honor-
able persons, and it would be against his interest to act ignorantly
and carelessly.
It appears, with respect to Miss Cashin, that he did not go to
seek her out, and this will be for you to take into your consider-
CRIMINAL MALPRACTICE. 217
ation. With respect to the application of the mixture, if he com-
manded the woman to use it, it is the same as if he used it
himself Perhaps, from the evidence, you will think that the act
cau.^ed the death; but still the question recurs as to whether it
was done either from gross ignorance or criminal inattention.
No one doubts Mr. Brodie's skill ; but that is not quite the
question. It is not whether the act done is the thing that a per-
son of Mr. Brodie's great skill would do, but whether it shows
such total and gross ignorance in the person who did it, as must
necessarily produce such a result. On the one hand, we must
be careful and most anxious to prevent people from tampering
with physic, so as to trifle with the life of man ; and, on the other
hand, we must take care not to charge criminally on a person
who is of general skill, because he has been unfortunate in a par-
ticular case. It is God that gives health : man only administers
medicine ; and the medicine that the most skillful may administer
may not be productive of the expected effect ; but it would be a
dreadful thing if a man were to be called in question criminally
whenever he happened to miscarry in his practice. These are
things for your consideration, when you are considering whether
a man is acting wickedly ; for I call it acting wickedly when a
man is grossly ignorant, and yet affects to cure people, or when
he is grossly inattentive to their safety. With respect to the
evidence on the part of the prisoner, all the witnesses that he has
called have spoken of him as being perfectly satisfied with his
skill, attention and behaviour, in every respect. It is observable
of several of them, that, after their families have been attended,
they put themselves under his care, so satisfied were they with
his conduct. One of them says that he shall pray for him as
long as he lives ; and another, (a lady,) says she can never suf-
ficiently thank him for what he has done for her family. It is
also to be remarked, that one of these witnesses is himself a sur-
geon, who lived for thirty-six years in a hot climate, and he ex-
presses himself perfectly satisfied. You will take the whole case
into your consideration, and if you Ihiid-; there was gross igno-
218 MALPRACTICE.
ranee or scandalous inattention, in the conduct of the prisoner,
then you will find him guilty ; and if you do not think so, then
your verdict will be otherwise."
This certainly was a most liberal charge, so far as it concerned
the prisoner.
The jury, after some deliberation, found the prisoner guilt}^, and
he was subsequently sentenced to pay a fine of £250 to the king.
There was evidently a difference of opinion in this case between
the two distinguished judges who tried it, as to the rule of law
to be applied. Parke says : " I am in this difficulty. I have an
opinion, and my learned brother differs from me. I must, there-
fore, let it go to the jury."
In the Butchell case. Baron Hullock arrested the trial, and told
the jury that " the prosecution could not be sustained, and that
no imputation ought to be cast upon the prisoner at the bar;"
and Lord Ellenborough, in the Williamson case, told the jury they
ought not to find the prisoner guilty, although he had mistaken
the uterus for the placenta, tearing it down, and thus destroying the
life of the patient. This case also went to the jury under a charge
every way favorable to the prisoner.
It was in evidence that the deceased was in good health until
the application was made upon her person by Long. Mr. Brodie,
one of the oldest and most accompHshed surgeons of England,
testified, that when he saw the case there was a spot on the back,
as large as his hand, black and dead, mortified and sloughing.
Long pronounced this a "beautiful state," and said that "he would
give a hundred guineas if he could produce a similar wound on the
person of some of his patients." Is not this a most startling
admission that he was grossly ignorant? Mr. Brodie said, what
every medical man knows, that the application of a lotion of a
strength capable of causing the appe;irances he saw, to a person
of the age and constitution of the deceased, if in perfect health,
was likely to damage the constitution and produce disease and
danger. Long said this effect was of " no consequence ;" that the
deathly sickness, " combined with the wound, were a proof that
CRIMINAL MALPRACTICE. 219
hh system was taking due effect." He also stated that he had a
medicine in his pocket that woukl stop the sickness ; but that he
would not apply it because the sickness was beneficial. This
assertion, that he possessed a medicine of such virtue, alone
stamps Long at once, in the mind of every intelligent medical
man, as an impostor. The Materia Medica affords no medicine,
and there can be no combination of remedies, that will instantly
or proximately cause a sickness of the stomach to abate, depend-
ing, as in this case, on a flital organic disease. Long knew he
had no such medicine, or he was criminally ignorant.
This case, like that of Williamson, illustrates and proves what
must be acknowledged, although a painful fact, that the most
illustrious judges — illustrious for their great legal knowledge —
show almost an entire want of medical and anatomical knowledge.
Lord EUeiiborough thinks a man may mistake the uterus for the
placenta — tear it out by reason of this mistake, and kill the
woman, and yet not be guilty of gi'oss ignorance ! There can
not be the least excuse for an error of this kind, and the man
guilty of it should be, not only indicted, but visited with the
heaviest penalties of the law ; — and a judge ought to have knowl-
edge enough to know it.
In this Long case, Parke, J., thinks the fact that the girl went to
the doctor and solicited his aid there, instead of being sought out
by him, " should be taken into consideration " by the jury.
What more powerful and effective means could the impostor,
Long, have used to bring the girl within his power, than to send
word to her and her mother, that unless she put herself under his
care she would die of consumption in three months ?
No message could have been more terrible, under the circum-
stance of the family being of a consumptive habit, as they sup-
posed, than such a communication, coming from one who had, in
the language of the judge, "always said that his remedy would
cure consumption." The judge further says, '" If the disease
had not been in the family, they would not have sent for him at
all." It is equally evident that if the disease had not been in
220 MALPRACTICE.
the family, this quack could not have insinuated himself, by the aid
of a female friend of the family, into its bosom, by pronouncing
death upon one already alarmed for fear of hereditary consumption.
REX v. JOHN ST. JOHN LONG, (Second case); C. & F. 423.
Within a year after the former case was tried, St. John Long
is again found in court as defendant in another case of the same
kind already cited. He made a great noise in London, at one
time, as a consumption curer. The theory of this noted quack
was, that all diseases proceeded from buttercups. Every man,
woman and child eats mutton, beef or butter, or drinks milk ;
every cow and sheep eats buttercups with their grass ; buttercups
are rank and acrid weeds ; ergo, all diseases proceed from butter-
cups. How beautifully simple! This theory was enough to
make Mr. Long at once noted ; and " the Marchioness of Ormond
and Lady Harriet Butler were among his patients !"
In this case the first count in the indictment charged that the
prisoner did, on the 6th of October, and at other times, cause
Mrs. Lloyd to inhale certain noxious and injurious vapors, and
that he, with a certain corrosive, inflammatory and dangerous
hquid, secretly prepared, mixed and made by him, feloniously did
rub, wash and sponge, and cause and procure to be rubbed, washed
and sponged, the breast and chest of the patient, and thereby
caused a sickness and ulcer that resulted in death, on the 8th of
November. It charged the prisoner with manslaughter.
The second count charged only the rubbing, omitting the
inhaling. The 3d, 4th, 5th, 6th, 7th and 8th counts only varied
the statement of the manner in which the liquid was applied.
The 9th count contained an allegation that the prisoner apphed
the liquid to the chest, he "well knowing the said liquid to be in-
flammatory and dangerous in that behalf," and described the chest
as becoming mortally inflamed, ulcerated and gangrened all over
the same." The 10th count was similar, omitting the scienter.
Plea, not guilty.
Denman, A. G., in opening the case for the prosecution, stated
CRLMINAL MALPRAdlCB. 221
that he should not offer any particular evidence as to the inhaling,
as it did not appear, as far as the}' were able to judge, to be in
any \va}' the cause of the death, which appeared to be solely occa-
sioned by the application of the mixture. If the facts were made
out, the question would arise, whether the prisoner was guilty of
manslaughter. The charge against him was not of acting with
malice aforethought, but of appl}ing himself to the treatment of
a case of which he knew nothing, and of using a most dangerous
hquid, with the effect of which, in the judgment of charity, he
must be supposed to have been unacquainted. If, with gross
ignorance of the subject, he, with the desire of gain, undertook
the case, and, in consequence, death ensued, it would be clearly a
homicide, by no means either justifiable or excusable. The law
admitted of no doubt. If a party, gi'ossly ignorant, undertook
to deal with deadly remedies, without knowing the efi'ect they
would produce, he was answerable criminally, if they occasioned
death. The question, whether the physician was regularl}' ed-
ucated or not, did not apply. A regular medical education might
furnish a defense which an uneducated person could not have ;
but the absence of such education certainly did not make a per-
son guilty. The only question was, whether, in point of fact, the
prisoner was ignorant of what he was about, and whether that
ignorance was the cause of his patient's deith. If a man, in the
most extensive practice, were to take cognizance of a particular
case, of which, by his treatment, he showed that he was clearly
ignorant, his great practice would not be any excuse.
The witnesses called on the pait of the prosecution, were Capt.
Lloyd, the husband of the deceased ; Mrs. Campbell a relation, at
whose house she was staying; and Mr. Campbell, Mr. Vance, Mr.
Brodie and Mr. Frankum, surgeons.
» From the examination-in-chief of Capt. Lloyd, the following
facts appeared : The deceased, for several y( ars, had been troubled
occasionally, when she caught cold or any thing excited her, with
a choking sensation in the throat, for which she had, about three
years before her death, consulted a medical man, and for which
222 MALPRACTICE.
she was in the habit of applying a blister to the throat, and after-
ward of healing the wound with a simple dressing of spermaceti
ointment. A son of the deceased was under the care of Mr.
Long ; and on various occasions, when the deceased attended with
her son, she mentioned, in conversation with Mr. Long, the com-
plaint in her throat ; and the conversation eventually led to her
putting herself under his care on the 6th of October, 1830, at
which time she was in very good general health. On the 3d of
October, she had appHed a small blister to the throat, but the
wound occasioned by it was nearly well ; on the 6th, 7th, 8th,
9th and 10th, she went to Mr. Long's, and on the evening of the
10th complained to her husband of a violent burning across the
chest, in consequence of which he looked at it, and found great
redness across her bosom, darker in the center than at the other
parts. She also complained of great chilliness, and shivered With
cold, and passed a very restless and uncomfortable night. On
the 11th she was very unwell all day, and comjilained of great
thirst ; the redness was more vivid, and the spot in the center
darker ; round the edges white and pufled up, and there was a
dirty white discharge from the center. Cabbage leaves had been
appKed, and when they were removed they appeared slimy from
the discharge. The night of the 11th was passed very uncom-
fortably. On the morning of the 12th, the redness on the breast
and chest was, if any thing, greater, and the spot in the center
more puffed up and darker; the redness was more spread round
the edges, and where it stopped there were blisters in the skin,
apparently from the discharge ; the inner part of the arms also
were red, where the discharge had run down on each side. On
the 12th she was quite feverish and restless, and had no appetite;
and in consequence of the symptoms, Capt. Lloyd went to Mr.
Long about the middle of the day ; Mr. Long asked why Mrs.
Lloyd had not come to inhale, and go on with the rubbing;
Capt. Lloyd replied, it was impossible, she was so very ill ; that
she had been constantly unwell since the night of the 10th, and
was suffering a great deal of pain and sickness ; Mr. Long said
CRIMINAL MALPRACTICE. 223
he dare say it would soon go oiY- — it was generally the case; he
was told of the t>hivering and chilliness, and that some hot wine
and water had been given to relieve her ; he said hot brandy
and water would have been a better thing, and to put her head
under the bed-clothes. He was told that the che.st and breast
looked very red and very bad; he said that was generally the
case in the first instance, but it would go ofi" as she got better, and
that Capt. L. need not be uneasy about it, as there was no fear of
danger ; Capt. L. requested him to call in the evening, and then
told him where Mrs. L. was, which it a[)peared he did not know
before; in the evening he came and saw her; in tlie course of
the day the cabbage leaves had been removed, and a dressing of
spermaceti ointment put on the chest instead ; he said he was very
sorry to see her so unwell — that she ought to have endeavored to
get up and come to him, and he would have rehevcd her ; she
said it was impossible, she was in such pain and sufleriug, and
with her breast open in that way it might be dangerous. He
desired to look at it, and, observing the dressing, said those greasy
plasters have no business there, and she ought to have continued
the cabbage leaves ; she said she could not bear the pain of keep-
ing them on ; he then took off his great coat, and said he would
rub it out ; and he turned up the cuff of his coat, as if for the
purpose of doing so ; she exclaimed with fright, and expressed
her wonder that he would think of rubbing while her breast was
in so bad a state ; she asked if there was no way of keeping the
leaf on without touching the breast ; and he asked her what she
wished. She replied, " To be healed." He said it would never
heal with those greasy plasters ; that was not the way in which he
healed sores. He then asked for a towel, and began rubbing it on
the breast, particularly in the center, where the discharge come
from ; he said that old linen was the best thing to heal a wound
of that kind. She said her skin and flesh were very healthy, and
always healed immediately with the simple dressing she had used.
He said old linen was better, but she might make use of the
dressing if she hked ; he saw no objection, and when it skinned
224 MALPRACTICE.
over he would rub it again ; she said no, she thought she would
never submit to rubbing again, from what she was then sufl'ering.
He then went away. On the evening of the following day (the
loth,) he called again, but Mrs. Lloyd would not see him, and
begged her husband not to let him come up ; and he never saw
her afterward. She died on the 8th of November, just a month
and a day after she put herself under Mr. Long's care.
On the cross-examination of Capt. Lloyd, he said that his son
continued to attend Mr. Long for several days after the com-
mencement of the deceased's illness, and on one occasion was
desired to tell Mr. Long that he need not come to see her, as she
was better. He also added, that a person, describing himself as
a medical man, and saying that he was sent by Mr. Long, applied
to see Mrs. Lloyd, and was not allowed to see her. He also ad-
mitted that he had told Mr. Long that he could not pay lees for
his son until after Christmas, and that Mr. Long said that would
not make any dilierence; he might send him, and he would attend
to him.
Mrs. Campbell stated that Mrs. Lloyd was in a very good state
of health, except that her throat was sometimes troublesome ; that
she complained of a stoppage in swallowing; that on the 10th of
October, when the shivering came on, the bed was warmed, and
Mrs. Lloyd put into it; bottles of hot water were applied to her
teet ; and that, when Mr. Long went away, after having seen
her, he did not give any directions as to diet, or order her any
internal medicine. It also appeared from her evidence, that pre-
vious to Mrs. Lloyd's putting herself under the care of Mr. Long,
she had attended three days at the inquest held on the body of
Miss Cashin.
From the examination-in-chief of Mr. Campbell, the surgeon, it
appeared that he was the son of Mrs. Campbell, at whose house
the deceased was on a visit, and that he first saw the deceased
about four o'clock in the afternoon of the 12th of October, at his
mother's request, at which time he found a very extensive wound,
covering the whole anterior part of the chest, which, in his opinion,
CTRIMINAL MALPRACTICE. 225
might be produced by any strong acid ; that the skin was de-
stroyed, and lay in folds on the chest, entirely separated ; that
the cellular tissue was partly destroyed, and there was a consid-
erable discharge generally ; that the wound extended from one
arm-pit to the other nearly, and from the throat down to the pit
of the stomach ; that the skin was ofl" both breasts, and the
center of the wound was darker, and in a higher state of inflam-
mation than the other parts ; that he removed the cabbage leaves
and applied the dressing of spermaceti ointment ; that he saw the
deceased on the 13th, and afterward daily, several times a day,
till her death ; that he considered the wound very dangerous to
Hfe when he first saw it, but only continued to apply the sperma-
ceti ointment till the 21st of October, when he called in the
assistance of Mr. Vance, who continued at first to apply the same
dressing, only adding to it a little calamine powder ; that, on the
second or third day of his attendance, Mr. Vance applied a bread-
and-water poultice ; that he (Campbell,) at first gave Mrs. Lloyd
some saline aperient medicine ; and when the center spot and
the under part of the chest became gangrenous, which they did
in about a week, she had bark, mineral acid and quinine. The
witness added, that, in his opinion, Mrs. Lloyd died of the wound
which he first saw ; that, according to his judgment, it was not
necessary or proper to produce such a wound to prevent any dif-
ficulty in swallowing ; and that he did not know of any disease
in which the production of such a wound would be necessary or.
proper. He further stated, that he informed ^Jr. Vance of the
course he had pursued, and nothing which he or Mr. Vance ap-
plied could possibly increase the danger to the patient. On his
cross-examination, he said that he had been in practice six or
seven years ; that, in the course of his practice, he had known a
common blister often produce very injurious ellects, which the
person who prescribed it never contemplated, and that a medical
man must regulate his treatment as well by the statements of the
patient as by external appearances ; that he did not wish for any
additional assistance till gangrene commenced, though he feared
15
226 MALPRACTICE.
it would take place from the first ; and that he stated the danger
he apprehended, very soon after he was called in, to his mother
and Captain Lloyd, and a sister of the deceased, but that twice
they had some hopes of her eventual recovery. On his re-
examination, he said, that he did not consider it a case of diffi-
cult}' in the treatment ; that he was present at the post-mortem
examination, and that the wound did not present the appearance
which he had ever seen produced by a common blister. In
answer to questions from the judge, he said, that he thought
rubbing on the 12th of October, when he first saw the wound,
would have increased the inflammation and could not have been
in any respect beneficial.
The evidence of the surgeon Vance, coincided with the other
witnesses as to the appearance of the wound. He stated also
that he approved of the treatment pursued by Mr. Campbell, and
that he had attended Mrs. Lloyd about three }'ears before
her death, for an affliction of the throat, which he at first thought
a case of narrow oesophagus, but afterward he ascei'tained to
be globus kf/stiricus ; which he described as an inverted motion
of the muscular fibres of the canal, very common in women in
early life, and of which he had seen many thousand cases, but
never knew it produced death. He described the appearance
of the body afier death, and said it was internally and externally
in perfect health, with the exception of a partial disease of
the thyroid glaiid, and an inflamm-jtory affection of the lining
membrane of the windpipe, (occasioned from their contiguity
to the ulcers,) and a httle narrowness at the entrance of the
oesophagus, which he believed to be congenital, as there was
no thickening of the part. He attributed the death of Mrs.
Lloyd to the extent of the mortification caused by high inflam-
mation, produced by some powerful application. At one time he
was encouraged that the patient might possibly recover, because
the diseased and healthy parts were sepai-ating. In answer to
questions from the judge, he said, that the state of the wound,
as described on the 12 th of October, might produce the result
CRIMINAL MALPRACTICE. 227
stated ; that he thought no man of common prudence or skill
would have applied a liquid, which, in two days, would produce
such extensive inflammation; though all irritating, external
applications sometimes exceeded the expectations of the medical
attendant; but he should say, that such conduct was a great
proof of rashness and of ignorance. He stated further, that if
he had been called in on the 12 th, he could most probably have
prevented the death; but he could not say positively, as it
seemed to be a case of great peril from the beginning.
Mr. Brodie saw the deceased on the 29th of October, and then
there was a large sloughing ulcer, which he believed might have
been produced by rubbing a corrosive lioiment into the parts on
the 10th of October; that he did not know of any disease which
would be benefited by this kind of treatment. On his cross-
examination, he said: It was a general practice to produce
counter-irritation, and the same application may be beneficial to
one patient and injurious to another, according to habit and
constitution. The effect of a liniment or blister, or any other
external irritant, as they are called, sometimes goes beyond the
effect intended, and the most scientific practitioners may often
be deceived in his expectations ; he can not always calculate to
a nicety what the result will be. He did not recollect any
instance in which death has ensued from a blister properly
applied, but it may possibly happen, he supposed ; over exercise
would produce over irritation where a blister has been applied.
The treatment of a wound is to be judged from the appeaninces
and the state of the patient. It would be desirable, under such
circumstances, to know the nature of the application ; but it
might not lead to any great difference in the treatment. In
cases of poison we do not apply the same remedy, especially
where it has been taken into the stomach. Where the applica-
tion has been external, the character and appearance of the
wound must be the guide to the surgeon. Circumstances may
occur, in which, when a particular course is intended, a stranger's
coming in and pursuing a different one would produce mischief.
228 MALPRACTICE.
On his re-examination, he said : " In the case of such a wound
as has been described, and I saw, I should not have thought it
necessary to resort to the person who produced it ; and I doubt
whether, in this case, it would have led to any useful knowledge."
In answer to questions by the judge, he said : " Though I do
not think it absolutely necessary, I should have got at the matter
if I could. I should think that the spermaceti ointment would
not certainly increase the danger of such a wound as that
described on the 12th of October. I never saw such an effect
produced by an ordinary medicnl application. There are some
constitutions in which very slight remedies will produce danger-
ous consequences. I have seen one person die of the bite of a
leech, and another by the sting of a bee. I had no means of
knowing any thing of this lady's constitution. 1 should beheve,
from evidence I have heard of the way in which the inflam-
mation made progress, that it proceeded rather from the nature
of the application, than from the constitution of the party ; but
it may have depended on both. It is usual to try and ascertain
the nature of the constitution. We can not always do it, but in
using potent remedies we use great caution. I can not form a
positive opinion whether the liniment was rashly used or not, but
the impression on my mind is, that it was used without due
caution, and therefore either ignorantly or rashly. I have seen
many instances of an inflammation from external application, but
I never saw so extensive an eliect produced as in this instance.
Mr. Frankum then proved that he saw Mrs. Lloyd about a
week before her death, and \\as present at the post-mortem
examination ; his opinion was that she was very healthy, and that
there was not, as far as he could judge, any peculiarity of consti-
tution, which would account for the violent effects produced.
It was claimed, on the part of the prisoner, that the facts al-
leged, even admitting them to be true, were not legally established.
Some of the counts charge the death to have been occasioned by
an ulcer and sore produced by an external application, and also
by inhaling a certain noxious vapor; and as no evidence had
CRIMINAL MALPRACTICE. 229
been given respecting the inhaling, that was not now the subject
of inquiry. There is no count imputing ignorance or want of
skill, or hastiness, or roughness of practice ; and therefore, there
being no allegation of that kind, no evidence can be used to
influence the jury on that subject. That the rules with respect
to indictments clearly precluded all evidence to establish any other
cause of death than that stated in the indictment. It is the
mind that constitutes the individual a criminal, and not the act
done. The indictment charged the prisoner with the offense of
manslaughter. Manslaughter may be an offense committed on
the sudden, in a moment of intemperate feeling, or it may be
caused in the prosecution of an illegal act. There may be justi-
fiable homicide, and homicide per infortunium ; and it is this
latter kind of homicide of which the act complained of consists.
Where a man in an honest mind does an act which he thinks
right and death ensues, it is homicide per infortunium. The
defence of the prisoner was claimed to be founded on Sir Matthew
Hale's rule, and that this rule was adopted by all text writers on
criminal law. It was claimed that that rule was, " when a potion
is given without any intention of doing bodily hurt, but with an
intention to cure or prevent a disease, and, contrary to the
expectation, it produces death, it is not manslaughter." It was
said the prisoner can not call any witness to prove what the
liquid was, as its composition is only known to himself, etc.
Bailey, B., after saying there were conflicting authorities on
the point of law raised by the defence ; that he would reserve the
points, that his opinion and that of other judges were against the
doctrine advanced, believing, as they thought, the intention might
have been good. If there was want of due circumspection, the
prisoner would be guilty of manslaughter. As to the indictment
not being supported by the evidence, it was sufficient that it was
alleged that the prisoner felonously applied the remedy used.
For, he said : " if a man, either with gross ignorance, or gross
rashness, administers medicine, and death ensue, it will be clearly
felony.
230 MALPRACTICE.
It was also claimed by the defense, that trespass was the
foundation of felony, and that it must be proved ; but Bailey,
B., said in this case: "we may judge of the thing by the effect
produced, and that may be evidence from which the jury may
say whether the thing which produced such an effect was not
improperly applied," and Bolland said : " when you pass the line
which the law allows, then you become a trespasser."
The same witnesses testified, and essentially the same things
were proved as on the previous trial of Miss Cashin.
The charge of Bailey, B., is an able one. He said : " The
indictment charges the prisoner, as having caused the death of
Mrs. Lloyd, by the application of a certain liquid; and the
points for your consideration will be ; — first, whether Mrs. Lloyd
came to her death by the application of the liquid ; and, secondly,
whether the prisoner, in applying it, has acted feloniously or not ;
to my mind it matters not whether a man has received a medical
education or not ; the thing to look at is, whether, in reference
to the remedy he has used, and the conduct he has displayed, he
has acted with a degree of caution ; or, on the contrary, has acted
with gross and improper rashness and want of caution. I have
no hesitation in saying for your guidance, that if a man be guilty
of gross negligence in attending to his patient, after he has applied
his remedy, or of gross rashness in the application of it, and
death ensues in consequence, he will be liable to a conviction tor
manslaughter. There is no pretence in the present case for say-
ing there was any degree of neghgence, after the application of
the liquid, because it seems that the prisoner did not know
where Mrs. Lloyd lived; and when he was sent for on the 12th,
be went, but was almost immediately dismissed, and was not
allowed to see her afterward. If you should be of opinion
that the prisoner made the application with a culpable degree of
rashness, and that it was the cause of Mrs. Lloyd's death, then,
heavy as the charge against him is, he will be answerable on this
indictment for the ofiense of manslaughter. There was a con-
siderable interval between the application of the liquid and the
CRIMINAL MAIJ>RACTICE. 231
death of the patient ; yet if you think that the infliction of the
wound on the 10th of October, was the cause of the death, then
it is no answer to say that a different course of treatment by Mr.
Campbell might have prevented it. You will consider these two
points — first, of what did Mrs. Lloyd die ? You must be satis-
fied th:it she died of the wound which was the result of the ap-
plication made on the 1 0th October ; aud then, secondly, if you
are satisfied of this, whether the application was a felonious ap-
plication ? This will depend upon whether you think it was gross
and culpable rashness in the prisoner to apply a remedy which
might produce such effects, in such a manner that it did actually
produce them. If you think so, then he will be answerable to
the full extent."
The verdict, in this case was not guilty.
These cases have been given at some considerable length, be-
cause they contain the principles upon which this class of cases
have heretofore been considered and decided in England. They
have been the cases to which American judges have relerred, and
by which they have been guided. They have generally been
followed. There is no doubt that a greater degree of skill and
general qualification is required at the present day, at the hands
of the professional man, th.in formerly. He must bring to ihe
accomplishment of what he uudert;ikes a reasonable degree of
skill, considering the advancement and improvements of science.
CHAPTER XV,
CRIMINAL MALPRACTICE— AMERICAN" ADJUDICATED CASES, ETC.
COMMONWEALTH r. SAMUEL THOMPSON; 6 Mass. Reports, 134.
This is the leading American case on Criminal Malpractice.
In this case, most of the elements of Willful Malpractice are
distinctly and ably set forth by the able Chief-Justice Theophilus
Parsons. It will be necessary to give the case in detail, that its
points may be well understood.
" At the beginning of the term the prisoner (Thompson,) was
indicted for the willful murder of Ezra Lovett, by giving him a
poison called lobelia, on the ninth day of January last, of which
he died the next day. On the 20th of December, at an adjourn-
ment of this term, the prisoner was tried for this offense, before
the Chief-Justice and the Judges Sewall and Parker.
On the trial it appeared in evidence that the prisoner, some
time in the preceding December, came into Beverley, where the
deceased then lived, announcing himself as a physician, and pro-
fessed an ability to cure all fevers, whether black, grey, green or
yellow ; declaring that the country was imposed upon by physi-
cians, who were all wrong if he was right. He possessed several
drugs, which he used as medicine, and to which he gave singular
names. One he called " coffee," another, " well-my-gristle," and
a third "■ram-cats." He had several patients in Beverley and in
Salem, previous to Monday, the 2d of January, when the deceased,
having been for several days confined to his house by cold,
requested that the prisoner might be sent for as a physician.
He accordingly came, and ordered a large fire to be kindled,
to heat the room. He then placed the feet of the deceased, with
(232;
CRIMINAL MALPRACTICE. 233
his shoes off, on a stove of hot coals, and wrapped him in a thick
blanket, covering his head. In this situation he gave him a
powder in water, which immediately vomited him. Three minutes
after he repeated the dose, which, in two minutes, operated vio-
lently ; he again repeated the dose, which soon operated with still
greater violence. These doses were all given within the space of
half an hour ; the patient in the meantime drinking copiously of
a warm decoction, called by the prisoner coffee. The deceased,
after vomiting up plilegm, but no food, was ordered to a warm
bed, and appeared to be comfortable, complaining of debility ;
and in the afternoon he was visited by the prisoner, who admin-
istered two more of his emetic powders in succession, which vomited
the deceased, who, during the operation, drank of the prisoner's
coitee, and complained of much distress. On Wednesday morn-
ing the prisoner came, and, after causing the face and hands of
the deceased to be washed in rum, ordered him to walk in the air,
which he did for about fifteen minutes. In the afternoon the
prisoner gave him two more of his emetic powders, with draughts
of his coffee. On Thursday the deceased appeared to be com-
fortable, but complained of gi^eat debility. In the afternoon the
prisoner caused him to be again sweated, by placing him, with
another patient, over an iron pan, with vinegar, covering them at
the same time with blankets. On P'riday and Saturday the pris-
oner did not visit the deceased, who appeared to be comfortable,
although complaining of increased debility. On Sunday, the
debility increasing, the prisoner was sent for, and came in the
afternoon, when he administered another of the emetic powders,
following it with his coffee, which vomited the deceased, causing
him much distress. On Monday he appeared comfortable, but
with increasing weakness, untU evening, when the prisoner visited
him, and administered to him another of his emetic powders, and
in about twenty minutes repeated the dose. This last dose did
not operate. The prisoner then administered pearlash, mixed with
water, and afterward repeated his emetic potions. The deceased
appeared to be in great distress, and said he was dying. The
234 MALPRACTICE.
prisoner then asked him how far the medicine had got down ; the
deceased, laying his hand on his breast, answered, " Here ;" to
which the prisoner observed, " The medicine would soon get down
and iimcreiv his naveV — meaning, as was supposed by his hearers,
that it would operate as a cathartic. Between nine and ten
o'clock in the evening, the deceased lost his reason, and was
seized with convulsive fits — two men being required to hold him
in bed. After he was seized with convulsions, the prisoner got
down his throat one or two doses of his emetic powder, and
remarked to the father of the deceased, that his son had got the
hyps like the devil, but that his medicines would fetch him down —
meaning, as the witness understood, would compose him. The
next morning the regular physician of the town was sent for;
but the patient was so completely exhausted that no relief could
be given. The convulsions and the loss of reason continued,
with some intervals, until Tuesday evening, when the deceased
expired.
From the evidence it appeared that the coffee administered was
a decoction of marsh rosemaiy, mixed with the bark of bayberry-
bush, which was not supposed to have injured the deceased. But
the powders, which the prisoner said he principally relied upon in
his practice, which was the emetic so often administei'ed by the
defendant, was the plant called Indian tobacco.
The Solicitor-General also stated, that before the deceased had
applied to the prisoner, the latter had administered the like med-
icines with those given, to several of the patients, who had died
under his hands ; and to prove this statement he called several
witnesses, of whom bat one appeared. He, on the contiary, tes-
tified that he had been the prisoner's patient for an oppression in
the stomach ; that he took his emetic powders several times, in
three or four days, and was relieved from bis complaint, which had
not since returned ; and there was no evidence in the case that
the prisoner, in the course of his very novel practice, had expe-
rienced any fatal accident among his patients.
The defense stated by the prisoner's counsel was, that he had,
CRIMINAL MALPRACTICE. 235
for several years, and in different places, pursued his practice
with much success, and the death of the deceased was unexpected,
and could not be imputed to him as a crime. But the court were
satisfied that the evidence produced on the part of the common-
wealth did not support the indictment The prisoner was not
put on his defense.
The Chief-Justice charged the jury ; and the substance of his
direction, and several expressions that fell from the court during
the trial, are, for greater convenience, here thrown together.
Parsons, C. J. — As the testimony of the witnesses was not con-
tradicted, nor their credit impeached, it might be considered as
containing the necessary facts, on which the issue must be found.
That the deceased lost his life by the unskillful treatment of
the prisoner, did not seem to admit of a reasonable doubt ; but
of this the jury were to be the judges. Before the Monday
evening previous to the death of Lovett, he had, by profuse
sweats, and by often-repeated doses of the emetic powders, been
reduced very low. In this state, on that evening, other doses of
this Indian tobacco were administered. When the second potion
did not operate, probably because the tone of his stomach was
destroyed, the repetition of them, that they might operate as a
cathartic, was followed by convulsions, loss of reason and death.
But whether this treatment, by which the deceased lost his life,
is or is not felonious homicide, is the great question before
the jury.
To constitute the crime of murder, with which the prisoner was
charged, the killing must have been with malice, either expressed
or implied. There was no evidence to induce the belief that the
prisoner, by this treatment, intended to kill or injure the de-
ceased, and the ground of express malice must fail. It has been
said that implied malice may be inferred from the rash and pre-
sumptuous conduct of the prisoner, in administering such violent
medicines. Before implied malice can be inferred, the jury must
be satisfied that the prisoner, by his treatment of his patient, was
willfully regardless of his social duties, being determined on mis-
236 MALPRACTICE.
chief. But there is no part of the evidence which proves that the
prisoner intended, by his practice, any harm to the deceased.
On the contrary, it appears that his intention was to cure him.
The jury would consider whether the charge of murder was, on
these principles, satisfactorily supported.
But though innocent of the crime of murder, the prisoner,
on this indictment, may be convicted of manslaughter, if the
evidence be sufficient ; and the Solicitor-General strongly urged
that the prisoner was guilty of manslaughter, because he rashly
and presumptuously administered to the deceased a deleterious
medicine, which, in his hands, by reason of his gross ignorance,
became a deadly poison.
The prisoner's ignorance in the case is very apparent. On any
other ground consistent with his innocence, it is not easy to con-
ceive that, on the Monday evening before the death, when the
second dose of his powerful emetic had failed to operate, through
the extreme weakness of the deceased, he could expect a repeti-
tion of these fatal poisons would prove a cathartic, and relieve the
patient ; or that he could mistake convulsive fits, symptomatic of
approaching death, for a hypochondriac allection. But, on consid-
ering this point, the court were all of the opinion, notwithstanding
this ignorance, that if the prisoner acted with an honest intention,
and expectation of curing the deceased by this treatment, although
death was the result unexpected to him, he was not guilty of
manslaughter.
To constitute manslaughter, the killing must have been the
consequence of some unlawful act. Now, there is no law which
prohibits any man from prescribing for a sick person with his
consent ; and it is not a felony if, through his ignorance of the
quality of the medicine prescribed, or of the nature of the dis-
ease, or of both, the patient, contrary to his expectation, should
die. The death of a man, killed by voluntarily following a med-
ical prescription, can not be adjudged felony in the party pre-
scribing, unless he, however ignorant of medical science in
general, had so much knowledge, or probable information of the
CREVIINAL MALPRACTICE. 237
Itital tendency of the prescription, that it may be reasonably pre-
sumed by the jury to be the ellect of willful rashness, at the
least, and not of an honest intention and expectjition to cure.
In the present case there is nu evidence that the prisoner,
either from his own experience or from the information of others,
had any knowledge of the fatal ett<3cts of the Indian tobacco,
when injudiciously administered; but the only testimony pro-
duced on that point proved that the patient found a cure liom
the medicine.
The law, thus stated, was conformable, not only to the general
principles which governed in charges of felonious homicide, but
also to the opinion of the learned and excellent Lord Chief-Justice
Hale. He expressly states that if a physician, whether licensed
or not, gives a person a potion without any intent of doing him
any bodily hurt, but with intent to cure or prevent disease, and,
contrary to the expectation of the physician, it kills him, he is not
guilty of murder or manslaughter.
If, in this case, it had appeared in evidence, as was stated by
the Solicitor-General, that the prisoner had, in administering this
Indian tobacco, experienced its injurious eflects, in the death or
bodily hurt of his patient, and that he afterward administered it
in the same form to the deceased, and he was killed by it, the
court would have left it to the serious consideration of the jury,
whether they would presume the prisoner administered it from
an honest intention to cure, or from obstinate rashness and fool-
hardy presumption, although he might not have intended any
bodily harm to his patient. If the jury should have been of this
latter opinion, it would have been reasonable to h;ive convicted
the prisoner of manslaughter, at least ; for it would not have been
lawful for him again to have administered the medicine, of which
he had such fatal experience.
It is to be exceedingly lamented that people are so easily per-
suaded to puu confidence in these itinerant quacks, and to trust
their lives to strangers without kn;)wledge or experience. If this
astonishing infatuation should continue, and men are found to
238 MALPRACTICE.
yield to the impudent pretensions of ignorant empiricism, there
seems to be no adequate remedy by a criminal prosecution, with-
out the interference of the Legislature, if the quack, however
weak and presumptuous, should prescribe, with honest intentions
and expectations of reheving his patients.
The prisoner was acquitted."
In this case there can be no doubt, as stated by the court, that
Thompson killed his patient ; yet the common law, in the opinion
of the court, affording no punishment, statutory law must come
in to supply a remedy, if one is aftbrded at all. This case, going
off as it did, aroused the people of Massachusetts, and the Legis-
lature immediately passed a law making it illegal for any person
to practice medicine or surgery without being duly qualified. Had
such a law existed when the above case was tried, Thompson
would probably have been convicted of manslaughter, because —
although he was trying to cure his patient — being engaged in an
illegal business, he would have been criminally responsible, under
the rule of the common law, that when death occurs by the act
of one who is in pursuit of an unlawful design, or doing an
illegal thing, without any intention to kill, it is a felony.
So, where a physician was indicted for the murder of a person
who had died of small-pox, communicated by him to his patient,
whom he had inoculated, and was convicted of manslaughter, it
was held, on a motion for a new trial, that as the physician did
not appear to have designed the death of the deceased, the in-
dictment was fatally defective.^
The learned Judge Parsons, in the Thompson case, held doc-
trine contrary to that laid down by the English courts, in the
cases of Nancy Simpson, Wilcox, 227 ; Spiller, 5 Car. & P. 335 ;
Furguson, Lewin, 131 ; Senior, 1 Mood. 405 ; Tessymond, Lewin,
C. b. 1G9; Wiliiamson, 3 Car. & P. 635; Van Bu^chell, 3
Camp. 629 ; Long, 4 C & P. 435, 398 ; Webb, 1 M. & R. 405.
' Fairlee v. The People, 11 111. 1. See, also, Rice v. State, 8 Miss. 561 ; Holmes
t;. Slate, 23 Ala. 17.
CRIMINAL MALPRACnCE. 239
In these cases, it was held, if there was gross ignorance, careless-
ness, negligence or rashness, in any one who undertakes to ad-
minister medicine, without any intent to do harm, it amounted to
manslaughter.
Judge Denio holds the same doctrine in the case of Thomas
V. Winchester, 2 Selden, 409.
It will be seen from the cases given, that there has been some
vacillation in the courts, as to the rule to be applied to medical
men in cases of alleged Criminal Malpractice. The original rule
being, that if a medical man gave to his patient medicine to help
him, and the result was that it killed him, "it was neither murder
nor manslaughter, but misadventure." Afterward it was held
that if the physician or surgeon was not regularly educated or
appointed, who caused the death, though unintentionally, it was
manslaughter at least. Then it was held " that the prisoner must
have been guilty of criminal misconduct, arising either from
the grossest ignorance, or the most criminal inattention," to
sustain the charge of manslaughter. At this time the rule may
be considered that laid down by Bo'.and, B., in the Spiller case,^
where the prisoner was indicted for manslaughter, by causing the
death of a child, by putting a plaster, made of corrosive and dan-
gerous ingredients, upon its head ; it appearing that the child, for
eighteen months, had been afflicted with scald head, and was
taken to the defendant, who applied two plasters, su(^cessively, all
over its head. Two surgeons proved there was a general slough-
ing of the scalp, which caused the death, and in their opinion,
this might have been produced by the plasters ; there was no
evidence to show of what the plasters were composed.
BoLAND, B., said : The law, as I am bound to lay it down, —
and I believe I lay it down as it has been agreed upon by the
judges ; for cases of this kind have occurred of late more fre-
quently than in former times, — is this: if any pt rson, whether a
regular or irregular medical man, professes to deal with life or
1 Rex V. Spiller, 5 Car. & P. 333.
240 MALPRACTICE.
health of His Majesty's subjects, he is bound to have competent
skill to perform the task that he holds himself out to perform ;
and he is bound to treat his patients with care, attention and
assiduity." The court here undoubtedly means, that the medical
man must be able to do all he promises to do, or all that he in-
duces his patients to beheve he can perform.
So in the Ferguson case, it was held, Coleridge, J., that no
man was justified in making use of an instrument, in itself a
dangerous one, unless he did so with proper skill and caution.
If the jury thought that in this instance the prisoner had used
the instrument with gross want of skill or gross want of caution,
and that the deceased thereby lost her life, it would be their duty
to find the prisoner guilty.
So in another case, where the prisoner was indicted for man-
slaughter, in causing the death of R. R., by administering to her a
large quantity of Morrison's pills, — the deceased, being ill of small-
pox, had sent ibr the prisoner, and under his advice had taken large
quantities of them, from time to time, till death occurred. Several
medical men testified, that medicine of the severity of the pills
could not be given in such quantities without accelerating death.
Lord Lyndhurst, C. B., held : When proper medical assistance
can be had, a person totally ignorant of the science of medicine,
takes on himself to administer a violent and dangerous remedy
to one laboring under disease, and death ensues in consequence
of that dangerous remedy having been so administered, then he
is guilty of manslaughter.'
A medical man can, of course, in no case, violate the person
of his patient, under the pretense that he was thereby treating
her medicinally, for the complaint for which he was then attending
her, even though she makes no resistance, and positively con-
sents, owing solely to the bona fide belief that it was necessary.
This outrageously criminal practice has, on several occasions, been
attempted. The following is the leading case :
» Kex V. Webb, 1 M. & Rob. 405 ; 2 Lew. 196.
CRBIINAL I^IALPRACTICE. 241
THE QUEEN v. WILLIAM CASE; 5 British Crown Cases, 587.
In this case, tried at the April Quarter Sessions, A. D.,
1850, the defendant's counsel, in his address to the jury,
contended that the girl was a consenting party, and, there-
fore, the charge of assault could not be sustained. The Recorder
told the jury that the girl was of an age to consent to a
man having carnal connection with her, and that if they thought
she consented to such connection with the defendant, then he
ought to be acquitted ; but that if they were satisfied she was
ignorant of the nature of the defendant's act, and made no resist-
ance, solely from a hona fide belief that the defendant was, as he
represented, treating her medicinally, with a view to her case, his
conduct, in point of law, amounts to an assault.
The jury found the defendant guilty, and he was sentenced to
be imprisoned eighteen calendar months in the jail.
The Recorder reserved for the highest criminal court in Eng-
land, the question, whether his direction was correct in point
of law.
The case was argued on the 1st of June, 1850. It was
claimed for the prisoner — First, That on the case, as stated, the
jury could not be taken to have found an assault, because they
were directed to find him guilty, if they thought the girl made
no resistance; that no resistance was equivalent to consent;
that if where there was consent there was no assault. (Reed's
case, 1.) That it was clear that she consented to the mechanical
act of connection; and, therefore, the prisoner did not do it
against her will. In Reed's case it was found that the girl con-
sented in fact, though, from her tender age, she did not know
what she was about. Secondly^ If she did not consent, it was a
rape ; for there can be no distinction, in principle, between a dis-
sent which makes a connection an assault, and a dissent which
makes it a rape: fraud and force stood on the same footing.
Wilde, C. J., said this case is free from doubt. The finding of
the jury is clear. They are told thit if they think she con-
sented to the carnal connection, they must acquit ; that the gii'l
16
242 MALPRACTICE.
was competent to consent, and that it is a question for them to
say whether she did so or not. This is said to be qualified by
what follows, viz.: that if they thought she made no resistance,
solely because she thought the prisoner was treating her med-
icinally, they should convict of an assault. I do not see that
this is any qualification; it is strictly correct direction. The
girl was fourteen years old. She might, at that age, be ignorant
of the" nature of the act, morally as well as physically, and of its
possible consequences. It is said she made no resistance, and,
therefore, she must be viewed as a consenting party. This is a
fallacy. Children who go to a dentist make no resistance, but
they are not consenting parties. The prisoner disarmed her by
fraud. She acquiesced under a misrepresentation that what he
was doing was with a view to cure her, and that only ; whereas it
was done solely to gratify the passion of the prisoner. How
does this differ from a case of total deception ? She consented
to one thing : he did another materially diflerent, on which she had
been prevented, by fi-aud, from exercising her judgment and will.
The cases which have been referred to, show that where consent is
caused by fraud, the act is, at least, an assault, and, perhaps, may
amount to a rape. It has been suggested that were the act of
the prisoner to be regarded in the light of medical treatment, it
would be no offense, and that it was not left to the jury whether
the prisoner did not intend it as such. That certainly was not
led to the jury, nor need have been. The notion that a medical
man might lawfully adopt such a course of treatment is not to be
tolerated in a court of justice.
Alderson, B. — The case seems quite undistinguishable from
those in which it has been held, that if a man possesses himself
of a woman's person by fraud, it is equivalent to force. The
objection that it amounted to rape was not taken.
Coleridge, J. — The jury have found that the prisoner got pos-
session of the girl's person by fraud : so the act is an assault.
It must not be assumed that the case would be diiferent, even
had they found that the prisoner intended it as medical treatment.
CHAPTER XVI.
ABORTION— FCETICIDE.
Medically and technically, abortion consists in the separation
and expulsion of the immature ovum from the uterus. At first,
the attachment between the mother and the foetus, at the points
of connection between the chorion and decidua, is very slight.
Afterward the connection becomes stronger and more intimate,
and the separation more difficult.
W. Tyler Smith, a late English writer of high authority upon
obstetrics, defines abortion, " as the premature expulsion of the
ovum at any time after it become viable, and before the twenty-
seventh or twenty-eighth week of pregnancy. Up to the latter
date, the foetus is not viable ; but after the completion of the
sixth month, it may with care be reared."^ The discharge of
the ovum between the second and the twenty-eighth week, has
been termed a miscarriage, still it is convenient and proper to
consider all expulsions of the ovum, previous to the time at
which the foetus become viable, under the head of abortion.
The natural causes of abortion, or the premature expulsion
of the foetus from the uterus, are numerous. Disease, in all its
forms, is a great and fruitful cause of abortion. Some women,
for this or other reasons, throw off the ovum or embryo with
great facility, while in others abortion can not be produced without
greatly endangering life. It is in these latter cases that courts
are most fi-equently called upon to investigate the matter.
There is no absolute and positive specific for efiecting this
result, though the general supposition among women is, that
physicians have the agents by which it can surely be brought
1 A Manual of Obstetrics ; London Edition, 1858, p. 137.
(243)
244 MALPRACTICE.
about medicinally. While the ergot has an undoubted specific
eft'ect upon the uterus, it can not be depended upon to produce
abortion. Probably, in the majority ot" cases, premature labor
may bo induced by it. Savin and the oil of tansy, also have the
reputiition of being ellectual in this respect ; still they have no
direct etlect, like ergot, upon the fibers of the uterus. They are
stinmlant poisons, and as such, will sometimes produce abortion.
So great is the reputation of these drugs as abortives, and being
of no value as medicines, it may be safely concluded that when
hiken the purpose is to produce abortion. Purgative medicines
are very generally resorted to with success for this purpose. The
primary action is on the bowels, but the secondary effect upon
the uterus is often sufficiently powerful to dislodge the foetus.
Mechanical means through the vagina is common ; either by
violence to the body of the uterus, its neck, or b}' rupturing the
membranes. Of course, this is attended with great danger.
Difficult, dangerous and delicate, as the operation is, of rupturing
the membranes, yet it is not unfrequently attempted by the
mother herself It is a dangerous experiment when attempted
by the most skillful anatomist, who has every advantage, from his
knowledge of the parts, calmness, and position; — what then must
it be when attempted by an ignorant excited mother, operating
upon herself!
That the evil of producing abortion is a more serious one
than legislators and jurists seem to suppose, there can be no
doubt. There is a defective moral sense upon the subject. It
is not looked upon as it should be except by the few.
Prof Hugh L. Hodge, of Philadelphia, in an introductory
lecture on Criminal Abortion, sets forth the importance of the
evil in its proper light, and with great force. He says : " We
blush while we record the fact, that in this country, in our own
cities and towns; in this city, where literature, science, morality
and Christianity are supposed to have so much influence ; where all
the domestic and social virtues are reported as being in full and
dehghtful exercise ; even here, individuals, male and female, exist,
ABORTION FCETICroE. 245
who are continually imbruing their hands and consciences in the
blood of unborn infants ; yea, even medical men are to be found,
who for the trifling pecuniary recompense, will poison the fountain
of life, or forcibly induce labor, to the certain destruction of the
foetus, and not unfrequently of the parent.
So low, gentlemen, is the moral sense of the community on
this subject ; so ignorant are the greater number of individuals,
that even mothers, in many instances, shrink not from the com-
mission of this crime, but will voluntarily destroy their own
progeny, in violation of every natural sentiment, and in opposi-
tion to the laws of God and man. Perhaps there are few indi-
viduals in extensive practice as obstetricians, who have not had
frequent applications made to them by the fathers or mothers of
unborn children — respectable and polite in their general appear-
ance and manners — to destroy the fruit of illicit pleasure, under
the vain hope of preserving their reputation by this unnatural
and guilty sacrifice.
Married women also, from the fear of labor, from indisposition
to have the care, the expense, or the trouble of children, or some
other motive equally trifling and degrading, have solicited that
the embryo should be destroyed by their medical attendant.
And when such individuals are informed of the nature of the
transaction, there is an expression of real or pretended surprise,
that any one should deem such an act improper — much more,
guilty ; yea, in spite even of the solemn warning of the physi-
cian, they will resort to the debased and murderous charlatan, who
for a piece of silver, will annihilate the life of the foetus, and
endanger even that of the ignorant and guilty mother.
This low estimate of the importance of foetal life is by no
means restricted to the ignorant or to the lower classes of society.
Educated, refined and flishionable women — yea, in man}^ instances,
women whose moral character is, in other respects, without re-
proach ; mothers who are devoted, with an ardent and sell-den3ing
affection, to the childien who already constitute their family, are
perfectly indifferent respecting the foetus in the uterus. They
246 MALPRACTICE.
seem not to realize that the being within them is indeed animate —
that it is, in verity, a human being — body and spirit; that it is
of importance, that its value is inestimable, having reference to
this world and the next. Hence, they in every way neglect its
interests. They eat and drink ; they walk and ride ; they will
practice no self-restraint, but will indulge every caprice, every
passion, utterly regardless of the unseen and unloved embryo.
They act with as much indifference as if the Uving, intelligent,
and immortal existence lodged within their organs, were of no
more value than the bread eaten, or the common excretions of
the system. Even in cases where mothers have suifered from
repeated abortions, where foetus after foetus has perished through
their neglect or carelessness, and when even their own health is
involved in the issue, even in such cases, every obstetrician can
bear testimony to the great difficulty of inducing our wayward
patients to forego certain gratifications, to practice certain self-
denials, and to adopt efficient means for the salvation of the
child.
This is not all. We can bear testimony, that in some in-
stances, the woman who has been well educated, who occupies
a high station in society — whose influence over others is great,
and whose character has not been impugned, will deliberately
resort to any and every means which may eflectually destroy her
unborn offspring. Ashamed or afraid to apply to the charlatan,
who sustains his existence by the price of blood, and dreading pub-
licity, she boldly and recklessly adopts measures, however severe
and dangerous, for the accomplishment of her unnatural and
guilty purpose. She will make extra muscular efforts, by long,
fatiguing walks, by dancing, running, jumping, kept up as long
as possible ; she will swallow the most nauseous, irritating and
poisonous drugs, and in some instances, will actually arm herself
with the surgeon's instrument, and operate upon her own body,
that she may be delivered of an embryo, for which she has no
desire, and whose birth and appearance she dreads.
These facts are horrible, but they are too frequent and too
ABORTION FCETICIDE. 247
true. Often, very often must all the eloquence and all the
authority of the practitioner be employed ; often he must, as it
were, grasp the conscience of his weak and erring patient, and
let her know, in language not to be misundersood, that she is
responsible to her Creator for the life of the being within her."
The question of the criminal responsibility of the medical
practitioner, in cases of abortion in common practice, is begin-
ning to receive the attention of able medical writers. There is
no doubt that abortion is often brought about by the medical
attendant, without a full appreciation of the value of embryo life.
Horatio R. Storer, M. D., of Boston, has recently published
an able article on this subject, in the April number of "The
American Journal of the Medical Sciences, for 1859," from which
we make some extracts illustrative of this subject. He says :
"Whenever, by any operation or other procedure, a physician
directly produces abortion, unintentional though it may be, if, in
the absence of any precaution that might have been taken, he
must be considered, to the extent evidenced by the history of the
patient, responsible therefor; and the class of cases to which that
now reported belongs, is accordingly open to as legitimate a
question of obstetric morality and of criminal responsibility as
that other series, of late so ably discussed by Dr. Churchill, of
Dublin."
This highly moral, humane and legally sound proposition is
illustrated by the writer by two cases. The first, was where the
patient wms sufi'ering from excessive toothache while five and a
half months gone with her first child ; in other respects of good
health, there being no other neuralgic pain. All the usual means
had been exhausted, such as anodynes, antispasmodics, purgatives,
fomentations, counter-irritants, the extraction of a carious tooth, —
all without the slightest relief The pa lent was threat* ned with
abortion, and begged that it might be brought about, declaring,
if refused, she would induce it upon herself rather than endure
further piin. This case was immediately cured by "a fi-agment
of pellitory root, pyrethrum, as a direct gingival stimulant, though
248 MALPRACTICE.
horseradish would probably have as soon answered the purpose,"
there being but a slight attack afterward, and relieved by the same
treatment. He says : " I report this case for two reasons. In the
first place, as an instance of the frequent success of simple and
apparently trivial remedies, after severe ones have failed. The
affection seems to have been entirely neuralgic in its character,
reflex, the result of the uterine irritation. All other causes men-
tioned by writers as liable to produce it were absent; there was
no local inflammation, no general catarrhal affection; the disorder
did not commence at, and apparently was in no way dependent
upon, the carious tooth, at least it was not reheved by its removal,
nor by the local bloodletting this occasioned. The second of the
reasons referred to is the following: that I may express my
strong disavowal of the practice still extensively obtaining among
physicians and dentists, of subjecting patients to the risk of
miscarriage, which must be confessed excessive, by the extraction
of teeth during pregnancy. This procedure should in no instance
be resorted to till every other measure which affords any prospect
of relief, has been laithfully employed. In the history reported,
it is seen that such is not the case.
Extraction has been recommended by authorities who are
respected; by Campbell, Gardieu, Capuron and others, on the
supposition that there is a greater likelihood of abortion from the
contiimed pain ; but against this argument I place the facts,
that after resisting many remedies, the pain often disappears
spontaneously, — as indeed allowed by one of the writers instancing
Capuron, — and that in more plausible measures, tried and untried,
readily occuring upon reflection to all who do not blindly follow
the books, there is, I think, a greater probability of success.
Ansesihesia, local and general, have both been found to avail.
The extraction of teeth in pregnant women can never be
defended, except when abortion is actually threatened, and
apparently at hand."
The other case was one of flooding. Dr. S. removed an
embryo six weeks advanced. The object of this case is not to
ABORTION FCETICIDE. 249
illustrate tne impropriety of abortion, but to show that from
natural causes, or from the effect of previous labors, there may
exist a condition of the uterus, that, without the most careful
autopsy was made and intelligently viewed, — the abortion having
taken place, — the physician might be led erroneously to think
there had been criminal interference. In this case, Dr. S., says :
'^My first impression from the physical examination was of course
that the abortion must have been owing to direct instrumental or
other violence, which, however, the patient persistingly denied."
Again he says : " Upon reviewing this case, I think it important
to dwell upon the diagnostic peculiarities it presents, unadverted
to, so far as I am aware, by any obstetric writer. We are all familiar
with the various permanently disastrous results at times follow-
ing instrumental or otherwise difficult labor, the adhesions, bands
and fistulse, that not unfrequently come under medical observa-
tion ; but to find such in the absence of all signs of concomitant
or consequent malignant disease, and accompanied by profuse
hemorrhage, — their edges cicatriced themselves, and the depres-
sions between them obscured and filled with coagula, and at the
same time, and in the midst of these anomalies, the presentation
of an aborting ovum, — would raise, I may surely say, in almost
every mind, the suspicion of foul and criminal interference.
Were death to occur under such circumstances, the result at an
inquest could hardly be doubted, unless unusual care was ob-
served at the autopsy to remove by ablution all clots obscuring
the age of the existing lesions; a precaution that in most
instances would hardly be observed, for fear of disturbing any
attachment of the ovum, — so often in these cases preserved in
the cabinet, — that might still obtain. I am strengthened in my
belief that many of the Medico-legal regulations of criminal abor-
tion are as yet uninvestigated or unfounded, and that with every
step toward their elucidation an advance is made toward the ulti-
mate suppression of the crime."^
' Sec, also, Es.«ay on Criminal Abortion, North Amer. Med. Chir. Rev. May, 1858.
250 MALPRACTICE.
At Common law the destruction of an infant in utero is a high
misdemeanor, and at an early period it was deemed murder ; but
there must have been quickening.^ When the child dies subse-
quently to birth, from wounds received in the womb, it is clearly
homicide, even though the child is still attached to the mother by
the umbilical cord.^ If the mother is not yet quick with child,
it is still an indictable oflense to administer a drug and thus
procure abortion.^ " The civil rights of an infant in ventre sa
mere, are equally respected at every period of gestation ; and it
is clear, that no matter at how early a stage he may be appointed
executor, is capable of taking as legatee, or under a marriage
settlement, may take specifically under a general devise as a
'child,' and may obtain an injunction to stay waste."* It is
true, that in Massachusetts, the Supreme Court held, that at
Common law it was no offense to produce abortion, unless there
is quickness.^ The Legislature immediately cured the supposed
deficiency by statute. The Supreme Court of Pennsylvania has
recently decided that to procure abortion on a woman pregnant,
but not quick, is indictable at Common law.^
The idea once existed quite generally, and it still exists to
some extent, that there is no offense in destroying the embryo or
foetus before there is a manifest knowledge of life by the mother,
derived fi'om the motion of the child, called quickening. How
absurd to suppose there is no life until the mother can feel the
muscular motions of the child. As well might we deny the
vitality of the blood because it can not be felt. The muscular
tissue, and even the bones to which they are attached, must have
1 1 Russ. on Cr. 671 ; 1 Vesey, 86 ; 3 Cooke's Inst. 50 ; 1 Hawk. c. 13, 8, 16 ;
1 Hale, 434 ; 1 East. P. C. 90 ; 3 Chitty C. L. 798 ; Wharton's Grim. Law, sec. 1220.
2 Wharton's Grim. Law, sec. 1220 ; R. v. Senior, 1 Mood. G. C. 36 ; R. v. Trillas,
2 Mood. G. G. 13.
3 W.& S. Med. Juris, sec. 344-5 ; Guy's Med. Juris, tit. Abortion ; Lewis G. L. 10.
* Wharton's Grim. Law, sec. 1220; 2 Vernon, 710 ; Swift v. Duffield, 6 Serg.
& Rawle, 38.
5 Com. V. Parker, 9 Mete. 263.
6 Mills V. Com. 1 Harris, 631.
ABORTION F(ETICIDE. 251
some degree of substance before there can be motion, and of
course, this development depends upon \\k. Though this foolish
notion is now fully exploded in medicine, it still lingers in the
popular mind, and doubtless leads to much crime. The life of the
foetus or embryo immediately after conception is just as positive,
physiologically, as at any subsequent period. Quickening being
an incident or circumstance in the course of development of
the foetus, it indicates not the commencement of a new stage
of existence, but only a new manifestation of pre-existing life —
it is uncertain in its periods, sometimes coming on at three months,
sometimes at six, and sometimes not at all. Massachusetts and
New Jersey, therefore, in accordance with these views, have
passed statutory enactments to make penal anti-quickening foeti-
cide, the courts of these States having held that at Common law
it was not so.^
Until within a few years it was believed that if a woman con-
demned to death had not quickened, though she claimed to be
pregnant, her life should not be spared.
It was customary, in the English courts, when the prisoner
claimed that she was pregnant, to appoint a jury of matrons to
examine her and determine the points. This is illustrated in the
case of Rex v. Wycherley.^
The prisoner was indicted for the willful murder of Ann, her
daughter, a child aged three years, by drowning her. "The case
being clearly proved, and the prisoner being found guilty, the
learned B.iron Gurney passed sentence of death upon her ; and
on Mr. Bellamy, the clerk of assizes, asking the prisoner if she
had any thing to say in stay of execution, she replied : ' I am
with child now.'
Gurney, B. Let the sheriff impannel a jury of matrons
forthwith. Let all the doors be shut, and no one be sutTered to
leave the court. The sheriff went to twelve married ladies who were
1 "Wharton's Grim. Law, sec. 1227.
« 8 C. & P. 262,
252 MALPRACTICE.
present in court, and having obtained their names, returned them
in a panel to the clerk, and these ladies were then called, and
the Ibrematron was sworn in the following form : ' You, as fore-
matron of this jury, swear that you will diligently inquire, search
and try Ann Wycherley, the prisoner at the bar, whether she be
quick with child or not, and therefor a true verdict give, according
to the best of your skill and knowledge. So help you God.'
The other matrons were sworn as follows : ' The same oath which
your forematron has taken on her part, you shall well and truly
observe and keep on your respective parts. So help you God.'
A baiiiff was then sworn in the following form : ' You shall well
and truly keep the jury of matrons without meat, drink or fire,
candle and light excepted ; you shall suffer no person but the
prisoner to speak to them ; neither shall you speak to them your-
self, unless it be to ask them if they are agreed on their verdict,
without leave of the court. So help you God.' The jury of
matrons then retu-ed to a private room, and the prisoner was
taken to them. After 8, short time they sent a message into
court, that they wished for the assistance of a yurgeon. GuriNey,
B., said: -I think that I ought not, considering the terms of the
bailiff's oath, to allow a surgeon to go to the room in which the
jury of matrons is, and that they should come into court' The
jury came into court, and having publicly expressed a wish for
the assistance of a surgeon, the court directed Mr. Greatorex,
who was a surgeon and an accoucheur, and who was a witness in
another case, to retire and examine the prisoner. This was done,
and on the return of Mr. Greatorex to the court, he was sworn :
' You shall true answer make, etc.,' and he stated that he saw
no reason to beheve that the prisoner was quick with child ; his
opinion being that she was not with child at all, but that if she
was, she could only be in the early stage of pregnancy.
GuRNEY, B. 'Quick with child' is having conceived. 'With
quick child ' is when the child has quickened. Do you understand
the distinction ?
Mr. Greatorex. * I do, my lord.*
ABORTION — FCETICroE. 253
The jury of matrons again retired, and on their return into
court they found a verdict that the prisoner was not quick with
child.
Before the time appointed for the execution of the pnsoner,
she was respited, in order that it might be ascertained with
certaii.ty whether she was with child or not."
This is the leading English case, and certainly establishes the
position that the child exists legally, from and after conception.
If the intention is to produce abortion, it makes no dilVcrence
what the article is, used, whether noxious or innoxious, under
the sta'iute of 9 G. 4, c. 31, s. 13.' Nor need the woman be
actually pregnant to constitute the offense."
The following is the statutory law upon abortion in Ohio,
passed February 27th, 1834:
That any phyoician, or other person, who shall willfully ad-
minister to any pregnant woman any medicine, drug, substance
or thing abortive, or shall use any instrument or other means
whatever, with intent thereby to procure the miscarriage of any
such woman, unless the same shall have been necessary to pre-
serve the life of such woman, or shall have been advised by two
physicians, to be necessary for th;it purpose, shall, upon con-
viction, be punished by imprisonment in the county jail, not more
than one year, or by fine, not exceeding five hundred dollars, or
by both such fine and imprisonment.^
That any phj-sician, or other person, who shall administer to
any woman, pregnant with a' quick child, any medicine, drug or
substance whatever, or shall use or employ any instrument or
other me.ins with intent thereby to destroy such child, unless the
same shall have been necessary to preserve the life of such
mother, or shall have been advised by two physicians to be
necessary for such purpose, shall, in case of the death of such
1 Rex V. Coe, 25 ; 6 C. & P. 403.
2 1 Vict. c. 85 ; K. v. Goodchild, 2 C. & K. 293 ; 1 R. & M. Cr. Cases, 114, 216.
» Cur. StaL 348 ; Wilson v. State, 220, R. 319 ; State v. Vawter, 7 Black. 592.
254 MALPRACTICE.
child or mother, in consequence thereof, be deemed guilty of high
misdemeanor, and upon conviction thereof, shall be imprisoned in
the penitentiary not more than seven years, nor less than one
year.
The other States have similar laws upon the subject of abortion.
Mass. Gen. Laws, sess. 1845, c. 27; and 1847, c. 83. New
York, sec. 1 of c. 22 of 184G ; 2 Rev., 3d Ed, 750—1845,
779. See People v. Lohman, 3 Barbour, S. C. 216; People v.
Stockham, 1 Harris, C. C. 424; Id. 1 Parker, C. C. 285.
Virginia Code, p. 724, title 54, c. 191. Mich. R. S. 168—172.
Wisconsin R. S. 231
LEADING AMERICAN CASE.
THE PEOPLE I'. MADAME RESTELL, 2 Barb., 216.
In this important case, heard on writ of error by the Supreme
Court of New York, some important points were decided.
The plaintiff in error was convicted upon an indictment which
alleged, in the first count, that on the 19th of July, 1846, at the
city of New Y^ork, she administered to one Maria Bodine, a certain
drug or medicine, with intent to procure the miscarriage of the
said Maria Bodine, the latter being pregnant with a quick child,
and the said drug or medicine not being necessary to preserve
her life, by means whereof the death of the child was produced ;
and that the accused, in the manner and by the means aforesaid,
did feloniously and willfully kill and slay such quick child, against,
etc. The subsequent counts were similar in form, alleging that
the accused used and employed a certain instrument, her hand,
her finger, a certain violent means, etc., upon the body of the
mother, with the like intent, and with the same result ; and con-
cluding in the same manner. The accused was convicted upon
the indictment of a misdemeanor. Several exceptions were taken
by J. T. Brady, her counsel, to decisions made during the trial.
The court says : " It is contended in behalf of the defendant,
that the indictment is invalid ; that it neither charges a felony
ABORTION FOBTICrDE. 255
under the act of March 4th, 1846, nor a misdemeanor under the
act of May 13th, 1845. So far as relates to the charge of
felony, there is no allegation that the defendant used the means
to procure the abortion ivith intent thereby to destroy the child.
That is a part, and we deem it an essential part of the definition
of the offense eont;iiried in the act of 1846. When a particular
intent accomjianying an act is requisite to constitute a ciime, it
should be averred in the indictment. This had been decided by
the twelve judges of England.
The objection to the charge for a misdemeanor in this case, is
not that the indictment does not state enough, but that it avers
too much. That objection, if valid, would prevent the conviction
for any inferior ofi'ense to that charged in the indictment When
such convictions may be had pursuant to the 27th section of the
statute containing general provisions concerning crimes and their
punishment, the indictment always charges more than what is
requisite to constitute the offense virtually proved. But it is well
settled that mere surplusage does not vitiate, so long as it is not
contradictory.
The indictment against the defendant, charges that she ad-
ministered to a pregnant woman some drug, — and in another
count that she employed some instrument, — with intent thereby
to procure a miscarriage of such patient. That is all which the
2d section of the act of May ISth, 1845, requires to constitute
a misdemeanor. The indictment, however, goes further, and
alleges that the patient was quick with child, and that the death
of such child was effected, and characterizes the act of the defend-
ant as felonious. These allegations do not contradict the charge
of misdemeanor, nor do they contain a valid charge of felony,
which would merge the misdemeanor ; because, as has been before
remarked, there is no allegation of an intent to destroy the child.
It was contended by the counsel fur the defendant, that a con-
viction under the indictment in question would be no bar to a
subsequent indictment for a felony on the same facts, and that
thus the defendant might be tried and punished twice for the
256 MALPRACTICE.
same act. That would have been as true if the indictment had
contained nothing but the charge for the misdemeanor. But the
answer to this is, that if it had appeared on the trial tliat the
defendant had been guilty of a felony, that would have merged
the misdemeanor, and the defendant's counsel might have called
upon the court to instruct the jury, that if they were satisfied
that she was guilty of a felony, they should acquit on the indict-
ment then pending ; and if the court had, under such circum-
stances, refused so to charge, it would have been error, for which
any conviction would have been reversed. There can be no
danger of there being two convictions for the same act, unless
the court, or the defendant's counsel commit some mistake which
can not be corrected on a writ of error. On the whole, we
think the indictment sufficient to sustain the conviction for a
misdemeanor."
As to the admissibility of evidence in these cases, the court says:
" The principal witness against the defendant was Maria Bodine,
on whom the abortion was produced. The defendant'^ coun-
sel objected to her admissibility as a witness, on the ground that
she had been the principal in, and instigator otj the oilense charged
in the indictment. The law is well settled that a principal is a
competent witness against an accessory; so also are the ar.complices
against their copartners in crime. The principle is founded on
rules of public policy. In many cases there is but little other
evidence ; and it is better that an accomplice should be punished,
than that all should escape. Beside, the practice has a tendency
to prevent dangerous combinations, under which the worst crimes
are perpetrated. In the case of David Conkling, tried for murder,
in Orange County, before Van Ness, J., in 1819, Jack Hodges,
who shot the deceased, and was therefore the principal, was admit-
ted as a witness, and Conkhng was convicted, partly upon his
testimony. In the case of the People r. Costello, it was ex-
pressly decided that the woman on whom the abortion was pro-
duced was a competent witness. There can be no doubt upon
this point
ABORTION FCETICIDE. 257
It appeared from the evidence of j\Iaria Bodine, that she went
to live with a man named Cook, as a housekeeper, in July, 1845.
That she had sexual intercourse with him in the following month,
which was continued until the latter part of April, 1846, and
that she became pregnant in the latter part of that month. After
she had stated these facts, on her examination, and, so far as
appears from the bill of exceptions, there was nothing to contra-
dict them, the defendant's counsel asked this witness whether she
had had any sexual intercourse with any other person than Cook,
prior to April, 1846 ; which question she refused to answer, and
she was sustained in such refusal by the court. It is contended
that the court should have compelled her to answer. It is appar-
ent that the question, referring in turns to the whole of the wit-
ness' previous life, was too general, and might have been rejected
for that reason, if the objection had been specifically raised. But
that objection was not raised, and the court sustained the witness
in her refusal, solely on the ground that she could not be com-
pelled to give an answer that would have a tendency to degrade
her character. The rule seems to be well settled in this State, that
a witness can not ordinarily be compelled to proclaim his own
infamy while on the stand. But if he voluntarily waives his
privilege in order to sustain a charge against another, he can not
claim it when asked other questions having a tendency to weaken
or remove such charge. That would be manifestly unjust, and
could not be tolerated. The witness in the case had voluntarily
proclaimed her own infamy, in having constant ilhcit sexual inter-
course with one individual for nearly a year, and in aiding, at
least, in procuring an abortion of her child, for the purpose of fixing
a criminal charge upon the defendant. She thereby precluded
herself from claiming any privilege of not answering questions
of a similar character, if they related to the same point. But she
could not be required further to degrade herself, b}' going into a
history of her whole life. She ought not to be compelled to give
more of her disgraceful history than is essential to promote the
ends of justice. The practice adopted in cases of bastardy illus-
17
258 MALPRACTICE.
tr.ites and confirms this principle. There, the mother, after
degiading herself by testifying to her iihcit intercourse with the
reputed lather, can be recjuired to state whether she had not
similar intercourse with others, about the time of the pregnatiou
of the child. But she can not be compelled to answer questions
relating to her chastity at other periods. The question here is,
whether the interrogatory put to Maria Bodiue was at all revelant
to the facts then at issue. There was nothing at issue previous
to the 12th of April, 1846. The pregnancy originated subse-
quent to that time; and the alleged agency of the defendant was,
of course, at a later period. Assuredly, the proposed question
could not have had any direct bearing upon either of these points.
Nor, so far as we can discern, could it have led to any thing
material to the defense. When a party intends to coerce an
answer tending to degrade a witness, he is bound to show, affirma-
tively, that the question is revelant; there is nothing to show such
relevancy in this case, and the court was right in refiising to
compel the witness to answer the question.
The counsel for the defendant next asked the witness whether
she had not the venereal disease during the fiill of 1845, or in
the winter of 1845-6. She objected, for the same reason, to this
question, and we think the court below were right in refusing to
coerce an answer. The question did not refer to so long a period
as that which produced it, but it was in other respects equally
objectionable.
The last, and by far the most difficult point raised by this bill
of exceptions, is as to the admissibility of the question pro-
pounded to Dr. Smith. The witness testified that he had
examined Maria Bodine, professionally, and as an overseer of the
poor, in the latter part of May and the beginning of June, 1847.
He was then asked by the district attorney the following question :
"In consequence of your examination, and the opinion you
formed, and in consequence of a communication confidentially
made to you as a physician, by Maria Bodine, as your patient,
cotemporaneously with your examination, what steps did you
ABORTION F(EriCIDE. 259
take ?" The counsel for the defendant thereupon called on the
counsel for the prosecution to state the object of this question.
They answered, that in order to rebut the presumption arising
from the lapse of time between the alleged abortion and the find-
ing of the indictment, and the assumption that the complaint
was the oiTspi'ing of a conspiracy, or peijury, on the part of
Maria Bodine, the}^ wished to show by the witness that he wrote
to the mayor of the city of New York, and was the cause of the
prosecution being instituted. The counsel for the defendant then
objected to the question, but the objection was overruled by the
court. The witness answered that he wrote to the mayor of
New York, on the 2d of August, 1847. And that on the Gth
of that month officer Bowyer called on him, and they went
together to see Maria Bodine, and that he accompanied her to
New York on the 12th of August. The prellice to the ques-
tion was clearly wrong, but that related to the form or manner
of asking it, and not to the substance of the question. In such
cases, the objection should be specified, for the obvious reason
that the party asking the question, may, if he acquiesces, ask it
in a correct form. As a leading rule, it is improper for a party
to put a leading question to his own witness ; but if the other
party does not raise the objection specifically at the time, it will
not avail him on writ of error. It is not, in fact, one of his
exceptions. In this case the defendant's counsel asked what
was intended to be proved, and when that was stated, raised the
objection, thereby confining it to the question itselfj and in efiect
waiving any objection of a formal character. The only question
now is, whether the evidence called for v/as competent under the
circumstances of the case. The dela}^ in preferring the charge
was calculated to excite some suspicion of its truth ; and that
would lead to an impression that the witness might have some
sinister motives in making it at all. What was said by the
counsel as to his object in asking the question, was based upon
the supposition that the testimony might give rise to those
unfavorable inferences. If there were circumstances which would
260 MALPRACTICE.
have a tendency to rebut those presumptions, they were relevant,
and it was manifestly proper that they should be proved. It often
happens that there has been something in the conduct of a wit-
ness preferring a true complaint, apparently inconsistent with the
main charge; and in such cases, it is the constant practice to
adduce explanatory evidence. Such testimony is often given on
trials for rape, when the prosecutrix made no outcry at the time of
the perpetration of the outrage, or was tardy in making the com-
plaint. That is merely giving evidence of one fact to qualify
or explain another, and both are equally relevant.
Upon the whole, we are ail of the opinion that there was no
error which could have at all prejudiced the defendant, and the
judgment of the court below must be affirmed."
PART II.
MEDICAL EVIDENCE.
MEDICAL EVIDENCE.
CHAPTER XVII.
EVIDENCE IN GENERAL— CIRCUMSTANTIAL EVIDENCE.
To determine what is right and what wrong, — to ascertain what
is known and what unknown, — to find out what is beneficial
for an individual or for society, and what injurious, — to establish
good rules of action and abolish bad ones; has been the great
legal problem of all ages and in ail civilized countries, — making
up the labor, and occupying the closest thoughts of the clearest
and ablest reflecting minds.
To the attainment of this end, systematic judicial investigations
have been originated, and slowly, but steadily consolidated into
harmony, and governed by tolerably certain and fixed rules and
regulations. The great value of these rules, and their practical
importance, can only be measured by the greal, interests of justice
and right, pertaining to lif^, libert}', reputation and propert}',
which they contribute to establish, protect and settle.
When the rules of law are administered oi* put into opera-
tion, it is assumed that the facts upon which they are predi-
cated are true, as well as those to which they are applied. It is
of the greatest importance, therefore, that the evidence upon
which these assumed facts stand, be true. The evidence mjst be
true, or the conclusion is erroneous. It is the basis upon which
( 2(i3 )
264 MEDICAL EVIDENCE.
facts stand. Law is not entitled to rank as a science, until there
is such a combination of well established truths, — established
upon the true principles of demonstration, as will constitute indu-
bitable evidence of these truths. These truths, when thus estab-
lished and arranged in a methodical order, receiving the confidence
of community, constitute the science of law. Just so far as these
claimed truths are true, law is certain; but where they are
estabhshed on uncertain or doubtful evidence, so far, law is
uncertain.
Justice, is the constant and perpetual disposition to render to
every being his due ; and jurisprudence is the application of this
justice in adjusting the differences and difficulties that arise
among the several members of human society : by it the rights
of each individual are correctly established, if the evidence of the
facts in the case is true.
The universal consent of the truth of a particular fact, estab-
lishes it beyond dispute, and gives to such fact the very highest
human authority. This universal consent having become im-
memorial, constitutes the basis and authority of the Common law.
No further evidence is required of its truth than this universal
usage or consent.
The object of jurisprudence, therefore, can not be separated
from that of pure science; the common purpose of both is the
discovery of truth, and all the whole range of philosophy, moral
and physical, — medicine, in its widest sense, — mathematics, —
every thing, — which experience and reason has estabhshed or can
discover, are rendered subservient to the purposes of justice.
While there is, therefore, no hmits to the sources and objects
of evidence, — being as wide as nature herself, and diverse as the
affairs of mankind, — it has ever been a source of great embarrass-
ment and constant diffiulty, to prescribe such rules, boundaries
and restrictions for its production and application, as will best
and most universally subserve the ends of justice. These rules
must necessarily be well guarded, or the ultimate end of all evi-
dence is defeated. They are generally of a negative character,
EVroENCE IN GENERAL. 265
and exclude certain evidence in particular cases and under par-
ticular circumstances, on grounds of general utility and conveni-
ence ; still, no rules for limiting the introduction or application
of evidence, however necessary, can be adopted without hazarding
truth and justice.
It has been found proper and useful in many cases to fix
definitely and positively the technical and arbitrary effect of a
particular kind of evidence, which effect does not actually and
naturally appertain to it. Although in some cases these restric-
tions may even protect error and wrong, yet in the great majority
of cases they are found to protect the innocent and favor truth.
Some circumstances which might tend to elucidate the truth, yet
being of so vague and fallacious a nature, that no general confi-
dence can be placed upon them, it has been found more prudent
and safe to reject their application in certain instances, where they
might possibly be beneficial, than to submit to the greater mis-
chief and inconvenience that would follow their general reception.
Persons, for various reasons are, or may be, incompetent to give
any evidence whatever, on the affirmative or negative side of the
issue, though they may know all about it. Defect of understand-
ing, arising either from natural deficiency of intellect, insanity or
immaturity of judgment, — want of religious principle, — the con-
viction for crime, — accomplices in crime, — matters of interest, —
when the disclosure would be in violation of professional confi-
dence, — the domestic relation, — are all of sufficient consequence
to prevent such persons from being intelligent, good, reliable and
truthful witnesses.
Evidence may be positive or circumstantial. Direct or positive
testimony is generally of the greatest weight; yet this is not
always or necessarily the case.
Medical Evidence is mainly presumptive or circumstantial.
Although this is true, it should be no serious objection to its
weight and importance. The testimony of a witness is not
altogether dependent upon his integrity and veracity. Very
much rests upon the intelligence and ability of the witness, to
266 MEDICAL EVIDENCE.
combine existing facts, which, when combined, lead the mind, by
a stern and inflexible chain of logical sequence, to a necessary
result, to which the mind must give it its credence.
Presumptive proof differs from direct evidence in this, the facts
proved are not the exact facts in issue, and the facts in issue are
arrived at by act of rejisoning from those other proved ficts. A
presumptive f ict, is only an inference or conclusion of the mind,
from other facts that are known ; it is a result of reason ; a
probable inference, resulting from the application of common
sense to the circumstances of the case. There are aV. degrees of
presumptions, from the lightest suspicion, to the highest moral
certainty. If the presumptive or circumstantial evidence be of
sufficient importance as to aflbrd a fair and reasonable presumption
of the fact to be tried, it is to go to the jury for what it is worth,
and they are to determine what its value is, and whether it is
sufficiently convincing to warmnt them in finding ^he facts in
issue.^
A sterner rule is applied to presumptive evidence in criminal
prosecutions, than when used in civil cases. In criminal prose-
cutions, circumstantial evidence must be such as to produce nearly
the same degree of certainty as that which arises from direct
testimony. A less degree of probability may be safely adopted
as a ground of judgment in civil cases than in criminal prose-
cutions, — property being of less importance than life and liberty.
Lord Mansfield says : " As mathematical or absolute certainty
is seldom to be attained in human afiairs, reason and public utility
require, that judges and all mankind, in forming their opinion of
the truth of facts, should be regulated by the superior number
of probabilities on the one hand or the other, whether the
amount of these probabilities be expressed in words and argu-
ments, or by figures and numbers."
Though it may be true, as a general principle, that the positive
evidence of a fact from creditable eye-witnesses is the most satis-
* Pliillipps on Evidence, page 437.
EVIDENCE IN GENERAL. 267
factory that can be produced ; yet there are cases, undoubtedly,
where circumstantial evidence has been found to establish as high
a degree of certainty of a prisoner's guilt, as could have been
produced by the most positive direct testimony.
Some presumptions of law are so positive and conclusive, as
not to admit of contrary proof It is a presumption of law, that
innocence is to be presumed, till the guilt is made to appear, by
conclusive evidence, and this is founded in general principles of
justice. That a child born during wedlock shall be presumed to
be legitimate, is a presumption of the same kind. When a per-
son is found dead, and in the absence of testimony to the con-
trary, the presumption is he died a natural death, because it is
** appointed unto all men once to die." Grants and deeds are pre-
sumed to support a long and continuous possession ; and this is
founded on principles of public pohcy and convenience.
The force and importance of circumstantial evidence is well
stated by one of the ablest and most learned judges that ever
graced an American bench.
In the case of the Commonwealth against Harman, a case of
great interest, where a mother was indicted for the murder of
her child, Chief-Justice Gibson, in his charge to the jury, on the
subject of circumstantial testimony, used these words :
" I shall confine my remarks to the distinctive character and
value of the testimony. No witness has been produced who saw
the act committed, and hence it is urged for the prisoner, that
the evidence is only circumstantial, and consequently entitled to
a very inferior degree of credit, if any credit at aU. But that
consequence does not necessarily follow : circumstantial evidence
is, in the abstract^ nearly, though perhaps not altogether, as
strong as positive evidence ; in the concrete, it may be infinitely
stronger. A fact positively sworn to by a single eye-witness, of
blemished character, is not so satisfactorily proved, as is the fact
which is the necessary consequence of a chain of other facts,
sworn to by many witnesses of undoubted credibility. Indeed,
/ scarcely know u'hethcr there is such a thing as evidence purely
268 MEDICAL EVIDENCE.
positive. You see a man discharge a gun at another ; you see
the flash, you hear the report; you see the person fall a life-
less corpse, and you infer, from all these circumstances, that
there was a ball discharged from the gun, which entered his
body and caused his death, because such is the usual and
natural cause of such an effect. But you did not see the ball
leave the gun, pass through the air, and enter the body of
the slain ; and even testimony to the fact of killing is, there-
fore, only inferential, or, in other words, circumstantial. It is
possible no ball was in the gun ; and we infer that there was,
only because we can not account for the death on an}'- other
supposition. In case of death from the concussion of the brain,
strong doubts have been raised by physicians, founded on appear-
ances verified by the post mortem examination, whether an
accommodating apoplexy had not stepped in at the rick of time,
to prevent the prisoner from killing him, after the skull had been
broken in pieces. I remember to have heard it doubted in this
court, whether the death of a man, whose brains oozed through a
hole in his skull, was caused by the wound, or a m sapplication
of the dressings. To some extent, however, the proof of the
cause which produced the death rested on circumstantial evidence.
The only difference between positive and circumstantial evi-
dence is, that the former is more immediate, and has fewer links
in the chain of connection between the premises and conclusion ;
but there may be perjury in both. A man may as well swear
falsely to an absolute knowledge of a flict, as to a number of
facts, from which, if true, the fact on which the question of guilt
or innocence depends must inevitably follow. No human testi-
mony is superior to doubt ; the machinery of criminal justice,
like every other production of man, is necessarily imperfect ; but
you are not, therefore, to stop its wheels. Because men have
been scalded to death, or torn to pieces by the bursting of
boilers, or mangled by wheels on a railroad, you are not to lay
aside the steam-engine.
Innocent men have, doubtless, been convicted and executed
CIRCUMSTANTIAL EVIDENCE. 20 9
on circumstantial evidence ; but, innocent men have sometimes
been convicted and executed on what is called positive proof.
What then? Such convictions are accidents, which must be
encountered ; and the innocent victims of them perished for the
common good, as much as soldiers who have perished in battle.
All evidence is more or less circumstantial, the difference being
only in the degree ; and it is sufficient for the purpose, when it
excludes disbelief — that is, actual and technical beliei'; lor, he
who is to pass on the question is not at liberty to disbelieve as
a juror, while he believes as a man.
It is enough that his conscience is clear. Certain cases of
circumstantial proofs to be found in the books, in which innocent
persons were convicted, have been pressed on your attention.
Those, however, are few in number, and they occurred in a period
of some hundred of years, in a country whose criminal code
made a great variety of offenses capital. The wonder is, that
there have not been more. They are constantly resorted to, in
capital trials, to frighten juries into a belief that there should be
no conviction on merely circumstantial evidenc'3. But the law
exacts a conviction, whenever there is legal evidence to show the
prisoner's guilt, beyond a doubt ; and circumstantial evidence is
legal evidence.
If the evidence in this case convinces you that the prisoner
killed her child, although there has been no eye-witness of the
fact, you are bound to find her guilty. For her sake, 1 regret
the tendency of these remarks; but it has been our duty to make
them, and it will be yours to attend to them."
The circaflistantial evidence brought out by the conclusions of
science, lik(3 that of the medical witness, is often much stronger
than what passes for positive proof: thus, in the case of Dr.
Webster ; science took the mutilated remains of a jaw bone, and
the artificial teeth that had been fitted to it, — rescued from the
smouldering ashes, — and proved beyond controversy and doubt,
that they belonged to Dr. Parkman. — Dr. Keep having made the
artificial teeth and fitted them to the jaw of Dr. Parkman in life.
270 MEDICAL EVIDENCE.
Dr. Wyman, the scientific and accomplished anatomist, brought
the burnt fragments together, thus reproducing the bone in its
original form. The cast upon which the teeth were made corres-
ponded to this bone. The circumstances were so strong that the
jury could not resist the conclusion that the jaw bone belonged
to Dr. Parkman.
One of the most general rules for the introduction of evidence
is thus given by Starkie : " To admit every light which reason
and experience can supply for the discovery of truth, and to
reject that only which serves not to guide, but to bewilder and
mislead, are the great principles which ought to pervade every
system of evidence. It may safely be laid down as an universal
proposition, that the less the process of inquiry is fettered by
rules and restraints, founded on extraneous and collateral con-
siderations of policy and convenience, the more certain and effi-
cacious will be its operation."
The common or unpro((3Ssional witness is expected and required
to testify only to facts, and such facts as are, at the time, within
his knowledge and recollection. A statement of facts read from
a paper will not be received as testimony, if the witness has no
recollection of these facts outside of such paper, because, if the
paper is proper to be submitted to the jury, they ought to have
it as evidence, in which case it would be better evidence than
what the witness might say. A paper may be used as a memo-
randum to assist the witness' memory, and he may be compelled
to so use it if the writing is present in court.^ He must, however,
speak not from the paper but from recollection.
The impressions of a witness are received as evidence, and
the jury may give to them what weight they suppose them to
be entitled.^ And in some cases the belief of a witness will be
received as evidence ; thus, a witness may give his belief as to
the identity of a person in question, or of the handwriting in
» Reed v. Boardman, 20 Pick. 442.
» Clark V Beglan, 4 Shepl. 246.
CIECUMSTA-NTIAL EVIDENCE. 271
dispute, if he has had an opportunity of knowing such person or
handwriting.^
As a general thing, however, the witness must knoiv and not
believe the liicts to which he deposes. To know, and co believe,
are conditions of mind very dillerent; behef is Ibunded upon
probable conjecture; knowledge is based upon that cerUiinty
which is acquired by our senses or by reason. He who has
neither seen nor heard the facts, can only believe them, he can
not know them.^
The witness can not disclose matter which is indecent or ofifen-
isive to public morals, or detrimental to the feelings or interests
of third persons, and should not disclose that which will criminate
or subject himself or others to di>grace.^
Counsel are very apt to be precautious that the witness knows
whereof he testifies — that he is neither mistaken or desirous to
deceive. No facts in the character of an event is known to a
demonstration except through the senses. To know a fact then,
positively, it must have been seen, and to testify to it properly,
he nuist not only have been present when the fact transpired, but
he must have given his attention to the circumstances, so as to
fix them in his memory. Hearing is much more deceptive than
sight ; for, although there are facts which are more properly compre-
hended and known by hearing, as in case of slander and the like,
still it is very easy for the most honest witness, who is guided
by the sense of hearing alone, to be mistaken in his judgment,
as to the author of such slander. Knowledge acquired alone
by hearing is entitled to but little confidence. If more than one
sense takes cognizance of the fact it is so much the more certain.
Hearsay evidence is not, in general, deserving of much credit
or confidence.
A detailed statement of the reasons and circumstances of the
' Rex V. Pedley, Leach Crown Cases, 365.
2 3 Bouvier, Inst. 145.
8 Rex V. Hardy, 24 St. Tr. 753, 811 ; Cowen & Hill's Notes, 531.
272 MEDICAL EVIDENCE.
conclusions to which the witness has arrived, which he considers
facts, if consistent, is the surest means of inducing belief, for
then the court, jury and counsel can determine whether the wit-
ness has sufficient knowledge of the facts to give force to his
testimony, and certainty to his conclusions.
The manner of the witness goes far to inspire confidence or
distrust. If the witness proceeds in an equivocal, halting man-
ner, not using affirmative terms, he will not receive that degree of
credit that he would, if he coolly, firmly and candidly, without
any real or apparent prejudice or hesitation, state distinctly what
he knows, and upon what his knowledge is founded. If the wit-
ness' manner is open, and free from that peculiar restraint and
nervousness that usually characterizes the interested or dishonest
witness, and if he can give a clear and complete reason for his
statement, then he will be believed. If, on the other hand, he is
over exact, or very loose in his statement, reluctant, or unable
to give a good reason for what he says, he will be distrusted and
discredited.
These general suggestions in regard to Evidence, are designed
especially for medical men, who have not access to the text books
of the legal profession on the subject, the voluminous character
and expensiveness of which, if within their reach, would preclude
a sufficiently thorough examination to master these general prin-
ciples. The most industrious medical man finds exhaustless
fields of labor in his own profession, and general principles are
aU he needs or has time to study outside of it.
15
CHAPTER XVIII.
EXPERTS— PROFESSIOXAL OPINIONS.
That class of witnesses who are, by the courts or parties con-
cerned, chosen on account of their special knowledge or skill in
particular matters, to testify or make a report embodying their
opinions, are generally known as experts.
Extra knowledge on questions of science, skill, trade, business
or other matters requiring special knowledge, qualifies the person
thus informed to give opinions in courts of justice. This is con-
trary to the general rule, that the witness must confine himself
to facts, and leave the conclusions of those facts to be deter-
mined by a court or jury under oath.
An opinion is the judgment which the mind forms on any
proposition, statement, theory or event, the truth or falsehood
of which is supported by a degree of evidence that renders it
probable, but does not constitute absolute knowledge, truth or
certainty.
These opinions, or conclusions of judgment, which make up
such opinions of experts, are the same in substance as the verdict
of a jury or judgment of a court, which is nothing more than
the opinion of such jury or court as to w^hat is established by
the ficts in the case. This conclusion or opinion, in the latter
case, is given under the sanction of an oath ; — so is that of the
expert. There is this difference, however, in the two cases.
The court or jury is under oath while they are making up their
opinions upon the facts in the case, and these facta, upon which
the opinion is predicated, are also submitted to the minds of
counsel and parties. The facts are also given by the common
witness under oath, upon which the jury or court makes up an
18 (273)
274 MEDICAL E\':DENCE.
opinion. The expert, on the other hand, comes to the results
constituting his opinion, which is to be received in evidence, from
his own private study, observation and reflection. He is not
under oath when he weighs his facts, and however anxious he
may be to come to correct conclusions, he is not under the signifi-
cant and impressive obligation of an oath to do so. And though
the facts upon which the witness' opinion is based, may be called
for by the counsel, yet, from the very nature of the case, it is not
to be expected that the jury or court will understand them.
This opinion then of the expert, is the private judgment of the
witness, given under oath. A juryman can have no private
opinion, so far as his verdict is concerned. All he can do is to
apply his general knowledge in weighing and applying the facts
or professional opinions as they are presented to him by the
several witnesses. He may judge of the credibility of a witness
as well as of the weight of his statement, but he must not rely
on his own knowledge. The juryman's oath is, " to try the issue
joined between the parties, and a true verdict give, according to
the evidenced In the language of the court, in a late case in
Massachusetts, 1 Gray, 535, "it has very naturally come to be
well settled, that a juror can not give a verdict founded on facts
in his private knowledge. If the juror knows ;iny particular
fact material to the proper decision of the case, he ought to be
sworn as a witness, and in open court, and be publicly examined,
so that his evidence, like that of other witnesses, may first be
scrutinized as to its competency and bearing upon the issue, and
for the further reason that the court and the parties may know
upon what evidence the verdict was rendered." If the personal
knowledge of a juror was allowed to influence his verdict, the
jury might wholly prejudge the case.
From the fact, that the same kind of guards can not be thrown
around the opinion of experts as are brought to bear upon the
juror, and the additional one, that opinions of experts can not
be subjected to that severe scrutiny that other evidence
undergoes, this kind of evidence is not of the clear and
EXPERTS PROFESSIONAL OPINIOiNS. 275
positive character, or of the value, of that of facts, as a general
rule.
It will however at once be perceived, that this kind of evidence
is still of great importance, irom its peculiarity ; yet, from the
crude shape under which it may come before the court or jury, it
is to be received with great caution. The professional witness, to
a certain extent, assumes the duties of the jury, in that he makes
up opinions for them, and were he not subject to thorough
cross-examination as to the means of information upon which his
opinions are formed, and the reasons for such opinions, his testi-
mony would be dangerous.
The opinion of a witness is in no case evidence, except when
the premises upon which he founds his conclusions can not be
understood by the court or jury without study or knowledge on
that special subject, or without the aid of the knowledge of
persons whose skill is superior to their own.^ A witness is not
permitted to give an opinion in evidence, unless such opinion is
based upon positive special knowledge. An opinion made up
after an event, from no [)recedent or usage, on a question liable to
be governed by fancy and not science or special positive knowl-
edge, is not evidence.^
It would seem, however, that this rule was severely crowded, if
not departed from altogether, in the case of Richards v. Murdock.^
This was an action on a policy effected by the plaintiff as agent
for Mr. Campbell, of Sidney. Upon the trial it appeared that
Campbell, having shipped the goods in question by the Cumber-
land, wrote by another ship, the Australia, to the plaintiff, desir-
ing him to effect an insurance thereon, and telling him at the
same time, that in order to give every chance for the Cumber-
' Syracuse Rail Road Co. v. Bodley, 10 How. Pr. 289 ; Mcorhouse v. Matthews,
2 Com. 514 ; Luning v. The State, 1 Chaud., (Wis.) 178 ; Protection Ins. Co. v.
Harmer, 2 Ohio, 452 ; 7 Foster, (N. H.) 157 ; 17 Wend. 136 : 4 Denio, 311 ; 7
Gush. 219 ; 1 Phillipps on Ev. 780.
^ Carter v. Boehra ; Smith's Leading Cases.
no B. & C. 257.
276 MEDICAL EVIDENCE.
land's amval, he bad directed the person intrusted with that
letter not to deliver it until thirty days afrer the Australia's reach-
ing London. The Cumberland not arriving at the end of the
thirty days, the letter was delivered to the p'.aintiiij who handed
y it to his broker, requesting him to effect the insurance, which he
accordingly did, with the Indemnity Insurance Company, whom
the defendant represented. The whole of the letter was not read
to the company's manager. At the trial, it was contended that
the other circumstances respecting the mode in which the letter
was conveyed to England, and the time it had remained there,
were material and ought to have been comumnicated, and that
their suppression vitiated the policy; and several underwriters
were called, who deposed that, in their opinion, the whole of the
letter ought to have been communicated, and that the parts sup-
pressed were material. The evidence was objected to, but ad-
mitted as the evidence of experts. "Lord TexXterden said:
"Several witnesses were examined, who stated that they thought
the letter was material, but it has been contended that no such
evidence ought to have been received. I know not how the
materiality of any matter is to be ascertained but by the evidence
of persons conversant with the subject-matter of the inquiry."
That a witness may give his opinion to the jury, as an expert,
who is conservant with the subject of Lisurance, whether par-
ticular facts if disclosed would make a difference as to the amount
of premium, has been affirmed in many cases.^ A difference of
opinion undoubtedly exists on this question among judges. The
opposite docti'ine, however, to that last mentioned, is main-
tained by Lord Mansfield, as we have seen in the case of Carter
V. Boehm, by Gibbs in Durrell v. Bederly, and by Lord Denman
in Campbell v. Richards, Jef In. Co. v. Cotheal, 7 Wend. 72. This
may certainly be considered the hmits of this kind of evidence.
> Richards v. Murdock, 10 B. & C. 527 ; Borthon v. Longhman, 2 Star. N. P.
258 ; Durrell V. Bederly, Holt. N. P. C. 283; 3 Keut. Com. 284; Story, 1 Peters,
188 ; Duer on Representations, 190.
EXTERTS — PROFESSIONAL OPIMOXS. 277
As a general rule, the opinions of a witness are not to be re-
ceived in e\'ideuce merely because he may have had some experi-
ence, or greater opportunities of observation than others, unless they
relate to matters of skill and science.^ An expert can not give an
opinion on the case where the facts are controverted, but counsel
must put to him a hypothetical case, or a supposed state of facts,
and ask the opinion of the witness upon these facts." In the
McNaghton case, one of the questions propounded to the learned
judges by the House of Lords, was : " Can a medical man, con-
versant with the disease of insanity, who never saw the prisoner
previous to the trial, but who was present during the whole trial
and the examination of all the witnesses, be asked his opinion as
to the state of the prisoner's mind at the time of the commission
of the alleged crime, or his opinion whether the prisoner was
conscious at the time of doing the act, that he was acting con-
trary to law ; or whether he was laboring under any and what
delusion at the time." To which question the judges, per, Tindal,
C J., answer : " We state to your lordships that we think the
medical man, under the circumstance supposed, can not in strict-
ness be asked his opinion in the terms above stated, because each
of those questions involves the determination of the ti'uth of the
facts deposed, to which it is for the jury to decide; and the
questions are not mere questions upon matter of science, in which
case such evidence is admissible. But when the facts are admit-
ted or not disputed, and the question becomes substantially one
of science only, it may be convenient to allow the question to be
put without general form, though the same can not be insisted on as
a matter of right." A witness therefore can not be asked to draw
a conclusion of fact from the evidence of other witnesses, and
then give an opinion to the jury upon these facts, if objected to
in the case of Sills v. Brown, 38 Eng. C. L. R. 245, the wit-
1 Robertson v. Stark, 15 N. IT. 109.
' 1 Curtis, Ct. R. 1 ; 1 Cliaud. Wis. R. 2G4 : 2 Mich. 1S3 ; 38 Eng. Com. Law
R. 245; McXagbton'3 case. 10 Clark & Fin. 210.
278 MEDICAL EVIDENCE.
uess, a sea captain, was asked as a seaman, "whether, having
heard the evidence in the cause, he thought the conduct of the
captain of the brig was right or not." The court held the ques-
tion could not be put.
Any witness may be asked his opinion as to whether a party at
a certain time was drunk. It is not so much an opinion as a
statement of a fact involving no medical or scientific knowledge.
An opinion of a witness, that certain articles in an account
were necessary for A. B., a minor, is incompetent ; he must state
the facts as to the condition of A. B., and leave the inference to
the jury.^
A land surveyor testified that he had run out the lines of lots
surveyed by a former surveyor, and was familiar with his mode
of marking corners, and then testified to certain marks upon
certain alleged corners, as having been made by the former
surveyor. Held, that his belief that the marks were those made
by the former surveyor, was not evidence to be received by the
jury as an expert, but was merely the testimony of a witness to
a fact within his knowledge, and was to be credited by the jury
only so far as they believe him able, from his personal knowledge,
to identify the mark in question.-
It is well settled that where terms of art or trade are used in
contracts, if there be any doubts as to the sense in which they
are used or ought to be applied, resort is to be had to the opinions
of professional men to ascertain the technical meaning attached
to them by those conversant with their use.^
In an action upon a covenant of warranty of the soundness
of a slave, the opinion of the physician who attended the deceased
slave as to the character and derivation of his disease, and also the
statement of the slave made to the physician and others, as to
the symptoms and effects of his disease, are competent evidence.''
1 Merrit v. Leamen, 2 Selden, (N. Y.) 168.
2 Barron v. Cobleigli. 11 N. H. 557.
3 Reed v. Hobbs, 2 Scaai. 297.
* Jones V. White, 11 Hamph. 268.
EXPERTS PROFESSIONAL OPINIONS. 279
When a witness in his deposition stated that he attended a
certain negro "as a physician," it was held that this evidence
was sufficient that he was a physician, to warrant the admission
of his opinions in evidence respecting the disease of the negro.^
Physicians alone are permitted to give their opinion as to the
existence, nature or extent of disease in any person. As, when
it is alleged that a slave was unsound at the time of her sale,
in consequence of her having the venereal disease, evidence of
physicans is competent to show, that the disease did not at the
time prevail in the neighborhood in which she was sold, but did
prevail in the town, about seventy-five miles distant, to which she
was taken by the purchaser soon after the sale.^
The opinion of a teamster, though experienced, respecting the
value of horses, harness and wagons which are familiar to him,
is not evidence, it not being a matter of science or skill.^ Where
parties had contracted for repairs on a vessel to be completed by
a certain time, and the job not being done until after the time
specified, it has been held, that witnesses who were not ship car-
penters, but who were ship masters and workmen, were competent
witnesses to show the difierence between the value of the vessel
thus repaired, and what it would have been worth had the vessel
been repaired in due time.'* But the opinions of witnesses as to
the amount of damages a tenant has sustained by the deprivation
of, or withdrawal of water from a tavern leased to him, are not
admissible in evidence.^ Opinion of bysbinders, that a building
would have been burned by a conflagration, if it had not been
blown up to stay its spreading, is not admissible.^ Opinions of
witnesses as to the value of a well-broke setter dog, they being
acquainted with the peculiar qualities of setters, and their value
» Washington v. Cole, 6 Ala. 212.
? Lusk V. McDanii^l, 13 Trd. 485.
3 Robertson v. Stark, 15 N. H. 109.
4 10 Ird. 280.
« 4 Barb. Sup. Ct. R. 256 ; Norman v. Wells, 17 Wend. 136.
8 Mayor of N. Y. v. Pentz, 24 Wend. 668.
280 MEDICAL EVIDENCE.
in market, but not with the particular one in question, were held
to be barely competent^ An officer in a bank, whose business it
has been for many years to examine papers with the view of
detecting alterations, errors and spurious signatures, may be asked
his opinion as to the facts, whether alteration or error has been
made in a certain paper." It has also been held that where the
signature in controversy and signature of the same party admitted
to be genuine are before the court, experts may be called to give
their opinion on comparing the former with the latter, whether the
one controverted is genuine.^ This crowds the old rule, requiring
an acquaintance with the handwriting of the individual whose sig-
nature was to be proved by one having seen him write, or he must
have corresponded with him, or, in some way became intimately
acquainted with his handwriting. This rule is said to be from the
Ecclesiastical Courts, and not adopted by the Common law. A
witness may give an opinion as to whether an attachment existed
between the parties, if he had opportunity of judging, from a
series of instances, passing under his observation, which he could
not well detail to a jury.^
^'When such evidence is allowed, courts and referees must
exercise a discretion and control as to the number of witnesses
whose opinions will be heard, or such examinations will at times
be nearly interminable. And that such a power exists in all
judicial tribunals, admits, in my opinion, of as little doubt as
that it was discreetly exercised in this instance."'
The preceding cases have been given, that the general scope and
boundaries of this kind of evidence may be clearly understood.
Thn testimony of medical men iis such, is purely that of
experts. It is perhaps the most important of this class of evi-
dence, and the physician or surgeon is very properly confined to
1 23 Wend. 354.
2 Pate 0. People, 3 Gilmnn, G44.
3 Hick V. Persons, 19 Ohio, 426.
* McKec V. Nelson, 4 Cowen, 355.
" Sizes V. Burt, 4 Denio, 428.
EXPERTS PROFESSIONAL OPINIONS, 281
the science and learning of his profession when upon the stand
as a professional witness. A party can not ask the professional
witness his opinion upon any matter except one of skill and
science. In the case of the People v. Bodine,^ it appeared in
evidence, that the dwelling house occupied by the deceased had
been discovered to be on fire ; that after the fire was extinguished,
her dead body was discovered amid the rubbish, in one corner of
the kitchen where her bed had stood, and where she had been
accustomed to sleep ; that the fire had been in that part of the
house, and that a hole had been burned through the floor in that
corner of the room, and that the fire had extended up the side
walls of the room, had consumed the bed and bedding, and partly
destroyed the bedstead ; that the heap of rubbish among which
the body had been found, consisted of bricks and mortar from
the wall, — of partially destroyed pumpkins and onions, which had
been kept under the bed, — of the bedstead and of the cinders
from the bed, bedding and other articles which had been entirely
consumed ; that several physicians had made a post mortem
examination of the body, and had given it as their opinion that
the body had been dead before it had been subjected to the action
of fire, for the reason among others, that portions of the body had
been protected and had not sufiered at all from the action of the
fire, which could not have happened unless the body had lain
perfectly still during the continuance of the fire. Upon the
cross-examination of one of these physicians, the counsel for the
prisoner asked the following question : " Would not almost any
protection and stillness of the body be accounted for, on the sup-
position that the bed-cords on the back of the bed were burned
off and the body let down, and that then the bed had fallen upon
it before life was entirely extinct ?" which question was objected
to by the counsel for the prosecution and excluded by the court,
and exception was taken by the counsel for the prisoner and
carried to the Supreme Court. That court held : '" The question
» 1 Donio, 288.
282 MEDICAL EVIDENCE.
put to one of the physicians on his cross-examination by the
prisoner's counsel, was, in my opinion, correctly overruled. This
witness and other physicians had made a post mortem examination
of the person alleged to have been murdered, and they gave it as
their opinion, that the death had preceded the action of fire on
the body. This opinion, as is stated in the bill of exceptions,
was founded on the reason, among others, that portions of the
body which had been protected by covering upon them, 'had not
suffered at all from the action of the fire.'
These physicians reasoned as other men would, that the body
of a living person could hardly remain quiet under the action
of fire, and that its convulsed and violent movements would be
apt to displace any covering which might be upon different parts
of it; and that to suppose life, in this instance, had been des-
troyed by the fire, was wholly inconsistent with the condition of
the body as found, certain parts of it protected by covering not
having been at all affected by the fire. Hence the opinion which
was expressed, that death must have preceded the fire, and was
not caused by it.
But this was, in no proper sense, a question of professional
skill or science. An unlearned man of sense would have reasoned
as the physicians did. Having ascertained that certain parts of
the body which were protected by what had casually fallen upon
them, were not affected by the fire, although most of the body
was consumed by it, he would have inferred, as they did, that
death preceded the fire. Nor was the particular question put to
the witness, and which the court excluded, one of skill or science,
or which should have been allowed to be answered on that princi-
ple. It was, beside, merely speculative and hypothetical, based
on successive suppositions, which, it is not too much to say, were
in the highest degree improbable. Counsel were of course at
liberty to argue in this manner to the jury, and they would judge
how far the explanation thus attempted to be given, was satisfac-
tory to their minds ; but it was not a subject which science or
the skill of a physician cciuld better solve than the good sense of
an unlearned jury."
EXPERTS PROFESSIONAL OPINIONS. 283
As in the case of competent knowledge, or the ordinary
knowledge required at the hand of the surgeon and physician,
60 with the expert, as to what degree of knowledge will constitute
him an expert. The means of obtaining the special knowledge in
different locations, being difierent, the standard of qualification
required by the court is also difierent. That degree of information
that may qualify a physician to give evidence as an expert in an
alleged case of poisoning by strychnine, in the State of Iowa,
would be deemed altogether insufiicient in the city of New York.
This very point has been passed upon by the Supreme Court
of Iowa, in a case just reported.
THE STATE OF IOWA v. EIINKLE, 6 Iowa R. 380.
In this case, the defendant was charged with the murder of his
wife, committed by means of strychnine. The State introduced
two witnesses, Drs. S and F , as experts, inexperienced in
chemical analysis, to testify as to the tests applied in the chemi-
cal analysis made of the stomach of the deceased, and of the
tests usually appHed for detecting the existence of poison in
such cases. The court held :
Wright, C. J. — Two physicians were called, and testified as to
the tests applied in the chemical analysis made of the stomach
of the deceased, and also of the tests usually applied for detect-
ing the existence of poison in such cases. Both of them testified
that they were practicing physicians. One of them stated that he
was not a professional chemist, but understood some of the prac-
tical details of chemistry, — that portion, at least, which pertained
to his profession, — that he had no practical experience in the
analysis of poisons, until, in connection with Dr. Francis, he ana-
lyzed the contents of the stomach of the deceased ; that since
that time he had conducted experiments upon a small scale; and
that he was previously acquainted with the means of detecting
poisons, and had since, had some experience in that way. The
other testified that he was not a practical chemist ; that he did not
foUow the science as a profession ; that he understood the chemical
284 MEDICAL EVIDENCE.
tests by which the presence of strychnine can be detected ; that
he professed to understand the principles of chemistry as laid
down in the books on that science ; that he never experimented,
with a view to detect strychnine by chemical tests ; that he had
seen experiments by professors of chemistry ; and that there was
one test much relied on, the trial of which he had witnessed.
Defendant objected to these witnesses as incompetent, and now
urge that they did not show themselves possessed of the requisite
professional skill.
We think they were competent witnesses. It is, of course,
desirable that great caution should be exercised in conducting
experiments of this character, and that the most skillful profes-
sional aid should be secured. If conducted, however, by such as
have not had experience, or by those who, though not practical
chemists, give their opinions from knowledge derived from the
books upon that science, such opinion would be entitled to less
weight than if given by a practical chemist, — he who bases his
conclusions upon experience as well as books. The means of
knowledge are proper to be considered by the jury, and they
should give or withhold credence in the opinion given, as they
may believe the expert quahfied to speak more or less intelli-
gently and understandingly. But to say that none shall be per-
mitted to give their opinions, except those of the highest pro-
fessional skill, or those who have given their lives to chemical
experiments, would, in this country at least, render it impossible,
in most cases, to find the requisite skill and ability. This seems
to have been the view taken of the question by the court below.
The jury was very fully and particularly instructed as to the
weight to be given to this character of testimony, and the con-
siderations which should enter into their deliberations in weighing
the same. We can not conceive how the jury could, under the
circumstances, have been misled, or the defendant prejudiced.
^a^^ See Appendix, pago 688, for full Notes on this Chapter,
CHAPTER XIX.
HISTORY OF MEDICAL EVIDENCE.
TiiE importance of medical testimony in elucidating and fixing
the cliamcter and extent of crime and the degree of its punish-
ment, is very properly becoming every year more apparent and
better understood. Although medicine itself is as old as history,
the learning of that science, in its application to jurisprudence, is
of but very recent date. Not until the time of the Emperor
Charles the Fifth, of Germany, was there ever a recognition,
publicly, of the value of Medical Evidence. In the '' Caroline
Code," framed at Ratisbon, in 1532, it was ordained, that the
opinion of medical men should be received in cases of death by
violent or unnatural means, where there was the least suspicion
of criminal agencies having been used.
Thus from a civilian, — one of the greatest, it is true, — first
sprang the idea, or at least the application of the idea of using
the researches of the anatomist, physiologist, the accoucheur and
the chemist, in explaining the causes of disease and death in un-
unusual cases, thus detecting the criminal, guilty of crimes that
had before been perpetrated with impunity.
The publication of this code encouraged the members of the
medical profession to more fully quahfy themselves for the new
duties thus recognized and imposed. The result was, that many
books appeared very soon upon the subject of Medical Jurispru-
dence, and the importance of Medical Evidence.^
At first the surgeon only was permitted to give testimony in
' 1 Paris, Med. Jurisprudence, page 10.
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286 MEDICAL EVIDENCE.
courts of justice. Thus, in 1606, Henry the Fourth authorized
his first physician to appoint two surgeons in every city and
town, whose duty it should be to examine all wounded or
murdered persons, and report the facts in the case ; and as late
as 1667 no such report was valid, unless at least one surgeon
sanctioned it. In 1692 it was admitted that physicians also
knew something about medical matters that might be auxiliary
to jurispridence, and by law they were permitted to give testi-
mony in the same case with surgeons.
During the eighteenth century a large number of able writers
devoted their lives to Medico-legal investigations, in Italy, France
and Germany. The Germans have especially excelled in this
department, and furnished extensive and important contributions
to its stores of learning, from Henke and Gmelin to Wagner and
Casper. The proverbial patient German research, is not perhaps
better illustrated in their theology and metaphysics, than in their
investigations in, and contributions to Medical Jurisprudence.
A list of distinguished names also adorn the history of the
science in France, headed by the celebrated Ambrose Pare, and
culminating in the distinguished Orfila.
England has not been noted for her writers on INIedical Juris-
prudence until quite recently. Dr. Farr, in about the year 1790,
discussed the subject in a little work on the " Elements of Foren-
sic Medicine." Dr. John Gordon Smith did much to advance the
science. He wrote an excellent treatise on Medical Evidence
generally, without however being very close or definite, the only
work, perhaps, ever published exclusively on that subject. It
has not been republished in this country, and is out of print.
Recently the very able works of Dr Guy, Mr. Taylor and Chris-
tison, abundantly atone for past delinquencies in this field.
In the United States the distinguished Dr. Rush, of Philadel-
phia, ever awake to the advancement of his favorite science in all
its departments, called the attention of his countrymen and pro-
fessional brethren to the importance of this subject in an intro-
ductory lecture in the University of Pennsylvania, in 1810. Id
HISTORY OF MEDICAL EVIDENCE. 287
the conclui^ion of that lecture, he says : " To animate you to
apply to the study all of the subjects enumerated in the introduc-
tion to our lecture, I beg you to recollect the extent of the ser-
vices you will thereby be enabled to render to individuals and
the public ; fraud and violence may be detected and punished ;
unmerited infamy and death may be prevented ; the widow and
the orphan may be saved from ruin ; virgin purity and innocence
may be vindicated ; conjugal harmony and happiness may be
restored; unjust and oppressive demands upon the service of
your fellow citizens may be obviated ; and the sources of public
misery in epidemic diseases may be removed by your testimony
in courts of justice."
The importance of medical knowledge in legal investigations,
from the time of Dr. Rush until the present, has gradually, but
steadily been increasing, till it is now acknowledged by the legal
profession and the pubHc. In 1823, Dr. T. Romeyn Beck, pub-
lished the first edition of his Medical Jurisprudence. It was the
first American work worthy the subject. Favorably received
by both the medical and legal professions from the outset, it has
grown from a moderate sized work to two stout volumes. It is
a compendium or encyclopedia of information of all kinds con-
nected with the subject of Medical Jurisprudence. In patient
research it can not be surpassed, and in extent of detail it is
complete, if not even burdensome.
Dr. I. Ray, about the year 1850, published his work on
Insanity. It at once became a standard work on the subject.
In originality of matter, and as the embodiment of extensive per-
sonal observation and experience ; in the compactness of argument,
and beauty of style, the work is unequalled, notwithstanding
some of his observations and theories may be open to criticism.
The subject of insanity is surrounded with almost insuperable
difficulties, but in the hands of this great master, it becomes
more intelligible, and the claims of the poor unfortunate maniac
are earnestly and eloquently advocated and cared for.
Prof Dean, of Albany, has published a very thorough and
288 MEDICAL EVroENCE.
practical work on the subject of forensic medicine. The subject,
in his hands, is as much condensed as possible, making the volume
of convenient size.
The latest work upon the subject, and in some respects the
best, is the able compilation of Wharton and Stille.
Notwithstanding the existence of all these valuable treatises on
Medical Jurisprudence, it must be admitted the subject is still in
its infancy. So far as the practical application of its principles
is concerned, it has not yet assumed the high and desirable
position of a specialty in our colleges of law and medicine,
which its importance demands. Eminent physicians, like Dr.
Reese, of New York, are advocating more prominence for these
studies in our colleges. To the medical student, it is as much a
necessity as chemistry or anatomy. To the lawyer, it is an im-
portant part of the great subject of evidence. It is desirable that
some leading university will soon establish a chair devoted to the
subject. The Fox ministry of 180C were ridiculed and reviled,
because they appointed the celebrated Dr. Duncan to the first
professorship of forensic medicine in the British University.
But now, no professorship is more honorable or more highly
valued in Great Britain than that of Medical Jurisprudence.
New truths and new application of old ones always meet with
opposition ; and that opposition not unfrequently calls to its aid
ridicule. This has been encountered and overcome.
One important cause of the change of opinion, or rather the
recent appreciation of medical testimony in Medico-legal questions
is, that it has been so often demonstrated, that without it many
of the most startling and dangerous crimes would go undiscovered
and unpunished.
Questions of identity in cases of violent death, and when there
is exhumation, can seldom be settled satisfactorily without the aid
of the medical man. His peculiar knowledge in regard to the
peculiarity of sex, the facilities his scientific knowledge affords
for accounting for a change in the color of the hair, and the
probable stature of the body, when but part of the body is found,
HISTORY OF MEDICAL EVIDENCE. 289
render this knowledge indispensable in such cases. The physi-
cian's knowledge of the peculiarities of Ibrniation in individuals,
learned in his treatment of them, gives him an advantage of
knowledge over the unprofessional. Thus in the year 1814, Dupuy-
tren identified the person of a murdered man, by observing the
malformation of the hip joint which he had been called upon
before to examine. The body of the unlurtunate Maria Martin
was identified eleven months after her death by the absence of
certain teeth from the upper and lower jaw, and by adhesions of
the pleura, and other signs of infiamniation occurring before death,
it being proved by medical attendants that she had sutlered from
inflammation of the chest shortly before her mysterious disappear-,
ance. The body of Dr. Parkman, murdered by Prof Webster,
was identified in part by the dentist who had taken a cast of his
lower jaw some years before his death, which cast corresponded
exactly with the fragments found in the stove where the head
had been consumed. The exact stature of the remains of Dr.
Parkman were also determined by medical men, to a certainty,
notwithstanding part of the lower extremities were completely
destroyed. The body of Charles the First was identified when
exhumed, many years after his death, by the smooth correspond-
ing surfaces of the fourth cervical vertebra, showing that they had
been separated by a heavy, sharp instrument. Orfila claims
that the medical man can, with his table, take any one of the
cylindrical bones of the body and determine almost exactly the
highth of the body to which the bone belongs. Give him the
length of the femur, or the humerus especially, and he will give
the stature of the body.
The physician will determine the age of a deceased person
with considerable certainty, from the process of ossification, especi-
ally during the early and latter periods of life. In extreme mal-
formation, the sex can only be determined by the medical man.
The ability of medical men to determine age and sex when
all other means fail, and thereby insure the punishment of crime,
is illustrated in a case reported in France. In 1821, a woman
It
290 MEDICAL E\1DIL\CE.
living in the city of Paris, disappeared under suspicious circum-
stances. Several persons were suspected of having killed her.
They were arrested and tried, but for want of evidence were set
at liberty. Some eleven }'ears afterward, a well-directed research
was made by Orfila, Mark, Barrael, Chevallier and Boys de
Soury, on the remains of a person buried in a garden, by which
evidence was brought out to convict the parties originally sus-
pected.
The points the investigating committee settled to the satisfac-
tion of the court and all others, were : that these bones, which had
been buried eleven years, were: 1st. The bones of a human
skeleton; 2d. That the skeleton was that of a female; 3d. That
the female had attained the age of from sixty to seventy years ;
4th. That the stature was about four feet eight or nine inches ;
5th. That the h lir of the female, which was of a bright blonde color
in youth, was mixed with gray at the time of her death ; 6th.
That the hands were small ; 7th. That during life, the bones had
never suffered any injury; 8th. That this woman died of strangu-
lation, and that the act was, to all appearances, homicidal ; 9th.
That the body must have lain several years in the earth.
Thus was stience vindicated, and justice satisfied by the punish-
ment of the guilty, by the evidence of these scientific men, after
eleven years had thrown oblivion over all the circumstances con-
nected with the immediate death. Many cases are reported where
medical testimony has exculpated and relieved from danger and
death the innocent wrongfully accused and condemned.
A Frenchman, by the name of Montbailly, and his wife, were
tried by the Superior Court of Arras, and condenmed to be broken
on the wheel, and Montbailly was actually executed in that way,
for the murd(>r of a widow Montbailly, aged sixty. The wife
claimed delay on account of her pregnancy, which was granted.
In the mean time, the celebrated i)hysician, Louis, was consulted
in regard to the matter, and the result of a long and careful in-
vestigation was, that the Montbaillys were probably innocent, as
there was no sufficient evidence, from the appearance of the body
HISTORY OF Mi:i)lCAL EVIDE>t;E. 291
after death, of homicide. The woman was saved and set at
Hberty, and the memory of Montbailly exonerated.
A case is reported in the London Lancel", where one brother
was supposed to have killed another brother, and thf crime was,
after many years, thought to be discovered by the accidental
discovery of the bones. They were examined by a surgeon, and
found to be those of an aged female.
Thumas Bowenman was about being condemned, in 1800, in
England, for the murder of a bastard child, by pushing an awl
into its head. The body was disinterred and examined by the
coroner, when the identical hole was found made by the awl, as
the witness had stated. Mr. Sheldon, a surgeon of Exeter, hav-
ing heard of the case, volunteered and attended the grand jury.
He examined the skull, and was satisfied the hole was a natural
foramen, through which a vein passed. He satisfied the jury of
the truth of this, by pointing out the enamel around the hole,
which could not have been there if made by the awl. He exhibi-
ted several skulls, all having similar perforations, and each hole
having a small channel, and the rim or edge of the hole being
smooth and polished.
The noted Eugene Aram, who serves as one of Bulwer's
heroes, was condemned to death for the murder of Clarke, after a
very able defense, on the testimony of Mr. Lacock, a celebrated
surgeon. He said in evidence, that the fracture in the skull
could not be the result of natural deca}% and that it was not a
recent fracture by the instrument with which it had been disin-
terred, but was of many }'ears standing. The skull had been
buried thirteen years. Though convicted, his guilt was doubted
by many, yet, before execution, he confessed it, thus completely
justifying the conclusions of the medical witness.
In the year of 1835, in Bordeaux, a son was apprehended for
the murder of his father, and was only saved by medical testi-
mony when all the circumstances of the case were jigainst him.
The pistol with which the old man was killed, was found still in
his hand, altk>ugh the upper part of his head had been blowD
292 • ifEDICAL EVIDENCE.
off, and in a position where the force of gravity would have taken
it to the floor. It was considered probable that the son had thus
placed the pistol in order to give the idea of suicide. There
never had been any difficulty, as was known, between the parties,
though there was some property involved that would descend to
the son. The old man was subject to fits of insanity ; still the
position of the pistol was against the son. The medical testi-
mony rebutted the idea, by stating what is well known to anato-
mists and physiologists, that the contraction of the fingers often
remains for a considerable length of time after a sudden, violent
death, whereas, in this case especially, the weapon was firmly
held. It was, therefore, pronounced a case of suicide, and the
defendant discharged.
This class of cases having impressed upon the unprofessional,
that there can not be more important evidence, — evidence
fraught with greater consequences to life, liberty, reputation and
property, — all the dearest interests of man, — than that of the
medical witness, and that his position is important.
Medical evidence has thus forced itself upon the attention of
society and the courts, until its claims are about to be realized.
CHAPTER XX.
THE IMPORTANCE OF MEDICAL EVIDENCE.
"CUILIBET IN SUA ARTE PERITO EST CREDENDUM." Co. Litt. 125.
No person, whether professional or unprofessional, educated or
oiherwise, is properly qualified to appear in a court of justice as
a witness, with credit to himself or justice to the cause he would
elucidate, without a general knowledge of the duties, rights and
privileges that surround him while occupying so important a
position.
While but Uttle, comparatively, is expected of timid ignorance
and weak and trembling inexperience; much, very much, is right-
fully required and looked for from the learned and public man.
If the former are able to command presence of mind and lan-
guage sufficiently intelligible to be understood, it is as' much or
more than is expected of them. Not so, however, with the man of
public and professional pretensions. He is measured, properly,
by a different and more exact and rigid rule. If he fails to fur-
nish good measure, he will most certainly leave the stand dis-
graced, and his friends chagrined and disappointed.
There is no situation, perhaps, where the professional medical
man can be placed, wherein he will be subjected to a more
thorough, rigid and severe criticism, as to what he says, how he
says it, and the reason why he says it, with all the influences
that may have a bearing on what he says, than as a medical
witness in a court of justice, under the eagle eye of an able judge,
the severe and interested scrutiny of counsel, and the candid,
impartial observation of a jury. This is not only forcibly true
as to the position of the medical witness, but is almost savagely
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294 MEDICAL EVIDENCE.
SO. On the one hand, the party by and for whom he is called,
seems to expect that he will say nothing that will damage him, —
that the weight of his character, professional reputation, position,
influence, — every thing, will all go to favor his interests ; while
on the other hand, this very weight of character, influence, etc.,
will arouse the resisting energies of the opposite party, to contra-
dict, break down, and destroy the efl'ect of such testimony. An
important witness thus placed between two fires, as it were, — a
conspicuous mark as he is, — will do well if he comes off without
being badly wounded.
One important cause of much of the unjust reproach and
odium attaching to the medical profession, and why empiricism
and quackery flourish, is, that the peculiar province and duties
of the practitioner of medicine lie out of sight, — hidden from
the world at large. Much that is claimed as having been accom-
plished, can not be seen and tested by a discerning public. Credit
is often given, therefore, and censure meted out, where they are
not deserved. The public have no means of determining just
what has transpired or been done within the private sanctity of
the bed-chamber.
The practice of law in this respect is the very opposite of
medicine. In that profession all the duties of the attorney are
exposed to the full gaze of the world, — all his acts are liable to be
overhauled, discussed and exposed by a court which has not only
the right to reprimand him if guilty of quackery or dishonesty,
but the power to throw him over the bar. Then the bar of public
opinion is more to be dreaded by him than that of his profession,
if possible, because from the publicity of all his acts, he is very
soon assigned by the public his proper position, both for honesty
and for ability. Had the medical profession this ordeal through
which to pass, and a tribunal to which it was thus responsible, and
by which its members could be called to an account, charlatanism
would soon be driven out of the profession and compelled to band
with pettifoggers.
The value of this public position, as a medical witness, there-
THE IMPORTANCE OF MEDICAL EVIDENCE. 295
fore, — to one who is equal to the duties thus imposed — is beyond
estimation. It is, in lact, about the only chance the medical man
has of vindicating a noble science, and a noble manhood. To
him alone the court and jury look for a solution of the dark and
difficult problems of a scientific and medicinal nature, which they
are called upon to eximine and pa>s upon, and of which they have
but httle or no knowledge. These questions are vast and unlimi-
ted in their range, and many oi' Lhem soundless in their depth.
Whether the question under investigation has reference to the
character of a disease, or whether it is not simulated; whether it
is one of the thousand questions having a scxXual bearing ; or does
it relate to the sanitary condition of society or of towns ; does it
relate to the great matter of life insurance, survivorship, legiti-
macy, age, identity, the severity of punishment, at home or at
school, the health of a nation or the value of a slave ; or is it
whether death is real or only apparent; — if real, was it from
natural causes or otherwise; — did the cause of death proceed
from the deceased, or another; — if from another, was it a homi-
cide or an accidental death, and what were the agents used and the
circumstances attending their application ; if poison is the agent,
of what kind, and to what extent did it contribute to the death ; —
what natural disease is attended with similar symptoms; or is it
one of the infinite, mysterious, and most difficult of all problems,
— those relating to the mind ; — in either and all of these cases,
and in many others, upon the medical witness almost alone rests
the responsibility of a solution.
There can not transpire a business transaction of any kind, an
act civil or criminal, of which courts have jurisdiction, but what
may involve some medical question, demanding the attendance
and testimony of the medical witness ; because the mind as an
element, must, of course, enter into all accountable acts, whether
of a criminal or civil bearing ; and whether the act is rational, is
a question in the main for the physician.
Thus, the highest interest of individuals, as well as of whole
families, and even the safety of society itself, depend constantly
296 MEDICAL EVIDENCE.
and necessarily upon medical testimony. Not only questions of
property and life, but those which are dearer and of more value
than property or life, — Character and Reputation, — are in the
hands of the medical witness.
No class of witnesses dispose by their testimony of larger
amounts of money than this class. The greatest fortunes ever
collected together by financial abUity, have been distributed by
medical men upon the witness stand, in contests over the validity
of wills. In the celebrated Parrish will case, decided in New York
city, December 10, 1857, by Judge Bradford, a large fortune was
diverted from the channel indicated by the testator, by medical
testimony. The law books are full of illustrations of this fact.
If such is the grand province of the medical witness, and such
the importance of his testimony, how and why is it that he does
not strive harder and more successfully to come up to its require-
ments, and completely occupy the extensive field belonging thus
exclusively to him ? And why are not members of the bar more
ready to admit the great significance and importance of this kind
of evidence, and treat it with that consideration and respect its
merits demand ?
Beside the importance of Medical Evidence to the correct
administration of Civil and Criminal Jurisprudence, the public
position of the medical man as a witness, — a position so much
dreaded by many, — may be to him personally of significant
importance. Society, with her hundred eyes, is looking at him,
and listening to what he says. Those who rely upon what the
medical man says as authority on medical matters, in their families,
await with no less interest, when they listen to him in the court
room ; but with almost the certain assurance that in the latter
case the true value of such confidence will be determined. The
physician's influence will be either much stronger than before, or
it will be annihilated. While ignorance and deception, like death,
may be tiiumphant in the sick, room without being called to an
account or cross-examined, in open court they can find no refuge
or protection, but will most certainly be exposed.
THE IMPORTANCE OF MEDICAL EVIDENCE. 297
The physician's liie is not always seen, though it may be felt
He has, for this reason, comparatively few opportunities to dis-
tinguish himself publicly. The lawyer, on the other hand, has
many. As a witness, the medical man has an opportunity to
show to the world just what his position as a thinker is; just
what the extent of his knowledge, and in what manner he handles
and applies it; — how he reasons upon the facts in his possession,
in making up the conclusions he gives to the jury as opinions,
etc. In short, on the witness stand, his weight is accurately
taken, and his proper place assigned. Illustrations of this are
not uncommon.
Prof J. P. K , whose general knowledge and great
acquirements as a Naturalist, render him worthy to be called the
Humboldt of the West, was first marked as a physician of close
thought and of superior powers, upon the witness stand. Mr.
W , a celebrated lawyer, of Cincinnati, being one of the
counsel in the case, saw at once, from the cool, clear, and logical
manner in which he deposed, — defending and fortifying his
points fully, by the correctness of the reasoning that accompanied
them, — that the witness was competent to fill a Professor's Chair,
and immediately on his return to Cincinnati, called him to that
position, in the Ohio Medical College, of which Mr. W was
a leading trustee. Prof K was at the time a country
physician, and generally unknown. The ability of the witness,
and the judgment of the lawyer have been amply illustrated and
confirmed by the long and distinguished professional life, in the
higher walks of the profession and its sister sciences, of the dis-
tinguished professor.
A distinguished living politician, now the popular governor of
a gTeat Western State, a few years ago, was practicing medicine
amid the fogs and fevers of the Mississippi valley, in obscurity
and poverty ; when he was brought into prominent notice, and
his talents admitted, nearly in the same way as was Prof
K . Thus, when the opportunity presented itself, as it
always will, they were found ready and able to improve it.
298 MEDICAL EVIDENCE.
True greatness will always be acknowledged sooner or later.
Sometimes it is late, because an opportunity is wanting for its
conspicuous development. During a lifetime, however, that op-
portunity will occur. To the physician, as to all others, if he is
qualified for his duties, — truly representing his noble profession, —
if he possesses the real elements of solid knowledge and worth, —
there is a time when these qualifications will be proclaimed and
acknowledged.
Let every member of the profession of medicine, who would
defend its claims to honor and usefulness, and win for himself a
distinguished position in its ranks, and in the world, prepare him-
self well and thoroughly to mount upon the witness stand with
a firm, elastic step, feeling an assurance that it is the most
favorable and distinguished position he can occupy as a representa-
tive of his profession or of his own acquirements.
To successfully fulfill the expectation of friends, — to vindicate
an honorable profession from unjust reproach, — to render the
malice or opposition of enemies and opponents harmless, — to
sustain reputation and self respect, and above all, to vindicate
truth, by contributing to the ends of justice ; the professional
medical witness when he appears upon the stand, must understand
well the general rules of evidence, — without their detail, — that
govern him, and like all other witnesses who appear as experts, he
must also understand thoroughly the specialty upon which he is
called to express an opinion.
Without this knowledge of the general rules of law that bear
upon him as a witness, he is constantly liable to interruption
and reproofj which always embarrass the witness, and neutralize
the effect of his testimony. With that fair knowledge, however,
which any intelligent man may obtain of the general principles
of evidence bearing upon him, a great and constant source of irri-
tation is avoided, and the protection and respect of the court and
counsel secured. Without it, though intelligent in other respects,
discomfiture, disgrace and chagrin are almost inevitable ; — but,
possessing this knowledge of his rights and duties as a witness,
THE IMPORTANCE OF MEDICAL EVIDENCE. 299
and a clear and thorough knowledge of the special matter he is
supposed to represent and undersfcind better than others, there is
no position in which he can be [>laced, more favorable to a rich
harvest of honor, reputation and future success.
But above all these considerations, the great cause of justice,
whether in criminal or civil cases, demands, at the hands of the
professional medical witness, a clear explanation and elucidation
of the matter in issue, if belonging to his field, irrespective of
the opinions of court, jury, attorneys, society, or the result.
Any person may be a common witness when there is no legal
disability, and testify as to facts, and if there is a willful misrepre-
sentation or a mistaken statement, it may be corrected by others ;
this is not so easily done where the point in issue involves
scientific knowledge. In most communities, outside of large
cities, the solution of this class of problems depends upon a very
few, if indeed, upon more than two or three. As the medical
and surgical man is the guardian of the people's health and lives,
in his usual every-day business, so is he in another equally im-
portant sense, the protector of the community, — as well as of
those indicted for, or charged innocently with crime, — in the great
field of Criminal Jurisprudence, when the subject relates to the
momentous questions of life, health or death; subjects, around
which cluster a multitude of questions to be passed upon and
settled alone in courts of justice, on the testimony of medical and
surgical witnesses.
In homicide or in the contests over the validity of wills, insanity
and imbecility play an important part. There is scarcely a case
of homicide, where the evidences of guilt is overwhelming, that
the defens'^ made for the prisoner is not that of insanity. If a
man happens to die, possessed of religion enough to make a fair,
charitable distribution of the surplus of his property, for the pur-
pose of allcvi iting some of the hard paths and fortunes of life,
or for alToiding greater facilities for the education of the indigent
01 friendli.'ss ; then most assuredly he is imbecile or insane.
Thus this special and magnificent, yet dark and most difficult of
300 MEDICAL EVIDENCE.
all studies, insanity; in some of its various forms, is constantly
before the courts, and the opinions of medical men constantly
needed and depended upon for its solution. To guide the court
safely at this point, the witness must not only understand the
basis or the machinery of mind, — anatomy and physiology, —
but he must be well versed in the ethereal world of metaphysics
or psychology in its widest sense.
It is a constant source of complaint, on the part of writers on
Medical Jurisprudence, and indeed, of elementary law writers of
high standing, and also of the medical witness himself, that
medical testimony is not appreciated or treated by the legal pro-
fession with the consideration its character and value warrant.
There is too much ground for these complaints, especially in the
case of the medical witness. He does not always receive, at the
hands of the members of the bar, that courtesy and candor to
which he is entitled. Yet it is not to be denied, that the
" doctors " who often intrude themselves upon the court and bar,
as the representatives of the medical profession, do, by their
ignorance, self-conceit, and disgusting assurance and complacency,
present so perfect an embodiment of egotism and imbecility, that
every man of common sense is at once disgusted with the exhi-
bition of groundless pretension ; and the worthy members of a
noble profession have to bear unjustly, the odium and reproach
thus wrongfully incurred and heaped upon it, through the impu-
dence, imposition and ignorance, of knaves and fools.
The court and bar should remember, that a profession or
science that can live, flourish and bless mankind, notwithstanding
the loathful and deadly influence of charlatans, — a fungous growth
upon the body of the profession, like a cancer upon the breast
of womanhood, constantly eating out its life and presenting a
tormenting and disgusting ulcer, — must have great vitality and
tenacity of life, worthy of their respect and admiration.
What other profession than the medical, could have carried for
so long a time such " a body of death," and still survive, ap-
parently more strong and vigorous than ever from century to
THE IMPORTANCE OF MEDICAL EVIDENCE. 301
century ? No sooner do the recuperative powers of the pro-
fession throw off, by the process of sloughing, one fungous growth,
than another springs up, to be in turn thrown oft"; yet the science
of medicine lives on. Its history commenced and runs parallel
with the human race ; and we may hope that the day is not
far distant when the profession of medicine will be completely
disenthralled and rejuvenated from the great ditliculties with
which it has always had to contend, and without let or hinder-
ance, pursue its glorious mission of lengthening life, relieving
pain, and cheering and blessing mankind. These peculiar diffi-
culties and troubles, connected with the medical profession, attor-
neys should bear in mind when they would censure that profession.
But to take the case as we find it, the only chance for the
medical witness in court, is to present clearly, true science, and as
far as possible the reasons for the opinions given ; and his testi-
mony will be understood to mean something, and he will, at
least, be respected by the court and bar.
Strength of character, candor, intelligence, manly diffidence
on questions that science can not yet fathom, characterize the
true medical man, who, by hard labor and severe study, has
comprehended his science so far as possible. It gives to him a
proper confidence and self-reliance; enabling the court and
attorneys to distinguish the true representative of science, from
the impostor, who will be glad to retreat to an oblivion that can
alone shield him from the consequences of his guilt and presump-
tion. Indeed, this is true to-day ; the trae medical man, when
he comes upon the stand, though there may be much prejudice
against him at the outset, will soon disarm that prejudice, and
all that he says will be taken as evidence ; while the counterfeit
will be as surely nailed to the counter.
No man should presume to come upon the stand to enlighten
a court in a difficult case, unless he is able to do so. Such a
one, though called, and full of confidence, will go off with credit
only, by frankly admitting that he can not throw light upon the
subject. He then has the reputation of being an honest man,
302 MEDICAL EVIDENCE.
which he is not, if he wUl pretend to palm off his ignorance upon
a court and jury for true science.
That witness who undertakes to elucidate what he can only-
render more obscure, can not and ought not receive any favor at
the hands of the court or bar. The medical witness sometimes
complains that he is compelled to appear as a witness, and then
must submit to abuse, and perhaps ridicule. This may some-
times happen, but it is seldom that the deliberate, candid and
intelligent witness will be thus used, — certainly not by a court.
No witness is ever compelled to appear and testify to tvhat he
don 't know. He may be compelled to attend at court in obe-
dience to a subpoena ; but if he testifies, or attempts to, upon a
subject requiring opinions, upon which he has no well-settled and
well-defined ideas, fixed and definite, it is his own fault, for which
he alone is to blame ; for no one but himself can know so well
as he, — until he has exposed himself, — how unfit he is for the
occasion.
It is a very great mistake under which some medical witnesses
labor, that because of the simple fact that they are called '• doc-
tors," they can appear upon the witness stand and decide those
momentous questions to which we have referred. It will not
be tolerated. However anxious an incompetent witness may be,
to appear learned, and however hard he may labor to show it, he
will ever find it uphill business to make the court and counsel
believe that he is really so. To appear really learned, he must
be able to make the subject upon which he gives an opinion,
clear, and to give satisfactory reasons for his opinion. He must
be not only a thinker himself, but must satisfy others that he is
master of the subject. Take almost any one of the important
scientific questions upon which the professional witness is called
to pass an opinion, and unless he has looked at the subject before,
with a purpose to understand it, — comprehending its extent,
weight and relations, — he will find it to have suddenly assumed
an importance he has not before suspected, just at a time when
the discovery will add to his confusion and chagrin. It is better
THE I.MPORTANCt: OF MEDICAI. KVIDENCK. 303
to make this discovery in the quiet stilhiess and security of soli-
tary thought and study, than under the eye of a judge and the
severe scrutiny of counsel.
A man, whether learned or not, whether in court or out of
court, will talk clearly upon a subject he well understands,
whether it is scientific or otherwise ; but unless it is clear in his
own mind, his account of it will be confused and unsatisfactory.
No amount of windy pretension or technical verbosity, will help
him out of the ridiculous position into which he has voluntarily
and impudently placed himself, by pretending to do what he is
wholly incompetent to accomphsh. It is this profusion of dis-
agreeable assurance, empty pretension, gassy reputation, wise
looks and big words, that so often disgust the court and counsel,
and bring disgrace upon those who are really high-minded, learned
and candid.
William Hunter says : '' To make a show, and appear learned
and ingenious in natural knowledge, may flatter vanity ; to know
facts, to separate them from supposition, to arrange and connect
them, to make them plain to ordinary capacities, and above all,
to point out the useful applications, is, in my opinion, much more
laudable, and shall be the object of my ambition."
When the matter at issue is of sufficient importance to com-
mand able counsel in conducting it, all false pretension on the
part of the witness will be at once detected and exposed, whether
professional or unprofessional.
CHAPTER XXI.
DUTIES AND RESPONSIBILITIES OF MEDICAL WITNESSES
This whole subject of Medical Evidence has been too much
neglected by the medical profession at large. The witness stand
should be the arena upon which the scientific man should gladly
appear, as the public vindicator of justice; thereby defending
and vindicating his own noble profession from the discredit
brought upon it by the illiterate hangers-on, who claim to repre-
sent it, but do not any more truly, than does the miserable petti-
fogger truly represent the high-minded, intelligent and honorable
lawyer.
He who studies well the office of the professional witness, — com-
bining, as it does, the importance of the evidence, and the value
of the position to the witness himself, — will be impressed with the
magnitude of the consequences involved, and quahfications neces-
sary for an easy and honorable, as well as pleasant discharge of
its functions.
The works on Medical Jurisprudence must be read, studied
and analyzed; a great deal will be found practically useless, but
what is of real value must be treasured up under the hght of a
good judgment.
Nor in them does the medical witness find those directions he
needs to prepare him for the vastly important duties of making
up and giving opinions, that are to be received by a court and
jury as facts, and that will warrant them in rendering a verdict
or judgment upon such opinions.
(304)
DUTIES AND RESPONSIBILITIES OF MEDICAL WITNESSES 305
Dr. C. B. Coventry, of Utica, New York, makes the following
suggestions to the medical witness, in an able report to the
American Medical Association, on the Medical Jurisprudence of
Insanity: "If, however, he concludes to form an opinion and
testify, there are certain rules and regulations which he should
adopt, not only to give force to his testimony but for his own
protection.
1. He should listen attentively to the testimony, as to all the
facts in the case, and avail himself of every authentic means of
forming a correct opinion.
2. He should studiously guard against being biased, either by
popular clamor, or because he is called by one side rather than
the other. He is to form his opinion exclusively from what
appears in evidence, excluding, as far as possible, any previous
prejudices, or what he may have seen in the papers, or heard
from rumor.
3. The medical witness is not to take into consideration the
influence which his testimony may have on the prisoner at the
bar, or the case under consideration, if he is testifying as to facts.
He states the facts as he understands them. If it is a matter of
opinion, drawn from the facts, he should state it honestly ; but,
if he has doubts, he should express them.
4. The expert is called to testify as to the bearing of the testi-
mony given, and though he may have his own doubts of the
truth of the testimony, yet, if it stands unimpeached, he must
receive it as true. It is not proper for him to call in question
the testimony of another witness ; at the same time, he is not
required to say he believes him, but can say that the testimony
of the witness or witnesses prove so and so, leaving the jury to
judge of its credibility.
5. A medical witness should not assume the province of the
jury ; as, for instance, to s:iy a particular wound was the cause
of death ; he should only state what would be the ordinary effect
of such a wound ; or, in a question of insanity, that the testi-
mony given was an evidence, or was not an evidence of insanity.
20
30G MEDICAL EVIDENCE.
6. The medical witness should have his mind fully prepared,
before taking the stand, as to what he can testify to, and his
reasons, if they are required. He should, in his testimony, avoid,
as much as possible, the use of technical or professional terms,
which the jury would not be likely to understand ; but if unavoid-
able, then their meaning should be explained to the jury. In
giving his testimony, he should keep cool and collected, and not
permit himself to be irritated or confused by the counsel; and
should avoid introducing any expression or opinion not imme-
diately connected with the cause before the court."^
Though the medical witness may feel that he is sometimes too
roughly handled by counsel, he should remember that the ablest
and best judges and lawyers fully appreciate the difficulties and
importance of his position.
Chief Justice liornblower, on one occasion, said : " I consider
the administration of Criminal law greatly indebted to medical
men for the results of their valuable experience and professional
discussions on the subject of insanity, and I believe those judges
who carefully study the medical writers, and pay the most respect-
ful, but discriminating attention to their scientific researches on
the subject, will seldom, if ever, submit a case to a jury in such
a way as to hazard the conviction of deranged men."^
Judge Capron, who so ably presided over the celebrated
Huntington trial in the city of New York, said on that occasion :
"Insanity, or mental alienation, has, from time immemorial,
received the attention of the civil and criminal tribunals of all
enlightened governments ; able professors in all the learned pro-
fessions and other profound scholars, have studied and examined
the structures and functions of the human system, the laws
and operations of mind, th(i relations of each to the other, and
their mutual influence as a united organism, and have deducted
results, and demonstrated their correctness by practical illus-
' Pamphlet Report, p. 51.
2 The Spencer Case, 1 Zab. 271.
DUTIES AND RKSPON.SIIilLlTIES OF MEDICAL \VITNESS1-:S. o07
trations, and logical deductions from establislied data; these
results the courts have never failed to sjinction as soon as their
learned authors had agreed among themselves on the subject, and
practical experience had attested their certainty."^
The medical witness, unlike the ordinary witness, does not, as
a general thing, testify to matter-of-fact that comes within his
own knowledge from the exercises of his senses, but he must
give the deductions or inferences that are to be drawn from the
facts as given by others, — that is to say, certain facts being
given, he is to state the general principle which they indicate
or involve, so far as it bears on the question at issue.
The facts upon which the medical witness may suddenly be
called to give an opinion may be new to him ; they may be
drawn from any part of the wide domain peculiar to the scien-
tific physician or surgeon ; yet there may be no time for much
reflection, or for a reference to authority. The counsel who
manage the case, can take all the time necessary to familiarize
themselves with all the points of evidence in the case, and it is
their duty so to do ; but the medical witness, upon whose testi-
mony the case may turn, is brought upon the stand without any
intimation, perhaps, as to the case, or the points upon which he is
called. Now, this is quite different from being suddenly called
into court to state a fact, — what one has seen or heard. All the
common witness has to do, is simply to tell the truth ; when he
has done this, his highest duty is accomplished ; but the medical
witness must know the facts first, constituting the case upon
which his opinion is desired ; then he must apply to these facts
the special knowledge he has of other scientific fiicts, established
perhaps by many difficult experiments of different experimenters
in various countries, and possibly, in different ages. Upon
this chain of facts, one end, or the whole of which may lie
completely beyond the reach and sight of the court and jury,
his reasoning must be correct, or his opinion will be erroneous.
1 Trial of Huntington, 444.
308 MEDICAL EVIDENCE.
The court and all parties concerned have a right to know upon
just what evidence the jury found their verdict whether they can
understand it or not; that if there is any thing that influences the
verdict that is illegal, redress may be had by a new trial or
otherwise.
After he has thus applied his scientific knowledge to the facts
as stated by others, reaching a conclusion in his own mind, he is
then to give the opinion to w^hich he comes, to the jury or court.
His duty, therefore, involves all that constitutes true logic and
correct reasoning ; while an ordinary memory will enable the
common witness to state what he has seen.
The medical witness then, can only be prepared to do credit to
himselfj justice to the parties interested in the issue of the case
upon which he is called, and honor to the profession he repre-
sents, by a thorough, well-ordered, well-digested knowledge and
complete understanding of his profession, in all its extensive and
intricate departments; — upon questions in any of which he may be
called to give an opinion. In short, all the careful study, close
observation, correct reasoning, clearness of understanding, pre-
cision of thought, necessary to carry the medical man safely
through a life of active practice, without rendering himself liable
to a charge of Malpractice or incompetency, is essential to consti-
tute him a good, rehable expert.
The medical witness should never permit himself to be cun-
ningly drawn into a discussion while upon the stand, either
metaphysical or scientific ; because it will be always carried on
to disadvantage on his part. It is a discussion the court and
jury can feel but little interest in, and the chances are that it
will result to the discredit and discomfiture of the witness. The
counsel being perfectly at home in the presence of the court, and
the witness being placed in a new, and to him. perhaps, an em-
barrassing and awkward position, the former will, of course, have
every advantage. The witness has done his duty when he has
answered the question put to him, in as few words as will convey
the sense he wi.>;hes to utter, with the proper explanation, if any
DUTIES AND RESPONSIBILITIES OF MEDICAL WITNESSES. 309
is needed. When he volunteers any thing beyond this, not
directly bearing upon the question at issue, he does it at his
peril, and prejudices his position. While the witness has an
undoubted right to clothe his ideas in his own language, and ex-
plain fully just what he means, let him study brevity, for he has
no right to go out of his way. even to argue or defend his position,
unless called upon so to do. After he has given an opinion and
the grounds for it, whether right or wrong, it should be left there.
The witness is entitled to the right, — and should insist upon it, —
of having the question fairly and clearly stated. And he should
not attempt an answer until he fully comprehends its bearing.
The author once examined Profs. Frank. H. Hamilton and
Austin Flint, as medical witnesses ; and this peculiar character-
istic in their mode of discharging their duty as witnesses struck
him forcibly. Very learned and deliberate men as they are, they
would answer no question until it was so shaped as to mean
something, and until fully comprehended by them. So it should
be with any witness, who is an expert, desirous to enlighten the
case, and wishing to preserve his own reputation, and that of his
profession. He should be careful as to categorical answws to
questions, unless he completely comprehends the effect of such
direct answers, and the extent to which they reach. Yes, or no,
positively fixes the answer, and afterward, it may be found diffi-
cult to qualify such answ^ers. A witness may say yes, or no, to
facts within his knowledge, but when the question involves
several elements and various circumstances, as most professional
questions do, those positive terms should be used cautiously and
guardedly.
H}pothetical cases are sometimes troublesome to the witness,
unless he is on his guard. A case may be supposed very nearly
like the one upon which the evidence is to bear, and ye^ lacking
an essential element of the case at bar, but so nicely adjusted and
balanced, that the jury may not see the difference. It is neces-
sary, in many cases, for the counsel to hypothecate a case for the
witness to give an opinion upon, which, if the witness perfectly
310 MEDICAL EVTBENCE.
understands, he can properly answer ; but there should be no
confusion or contradiction in the terms or language used, and the
answer can not be too closely confined to the supposed case.
The rule formerly was, in the language of the court, — C. J.
Shaw presiding, — in the Roger's case ; to put the question to the
professional witness in this shape :^ " If the symptoms and indi-
cations testified to by other witnesses are proved, and if the jury
are satisfied of the truth of them, whether in his opinion the
party was insane, and what the nature and character of that
insanity ; what state did they indicate, and what he would expect
would be the conduct of such a person in any supposed circum-
stance." He is not, the court adds, to judge of the credit of the
witnesses or of the truth of the facts thus testified to by others.
It is for the jury to decide whether such facts are satisfactorily
proved.
Under this state and form of the question, the medical witness
passed upon the condition of the person being tried, in case the
facts testified to by other witness were believed by the jury. In
this case he must hear all the evidence that the jury hears ; he
must connect it ; he must reject what does not bear upon the
case; in fact, he discharges all the functions of a jury, except as
to the credibility of the witnesses.
A different rule as to the form of the questions put to a pro-
fessional witness, — especially in a case of insanity, — has been
adopted since the trial of Rogers. In the case of the U. S. z;.
McGlue, 1 Curtis, Mr. Justice Curtis said, that medical experts
" were not allowed to give opinions in the case. It is not the
province of the expert to draw inferences of fact from the evi-
dence, but simply to declare his opinion on a known or hypo-
thetical state of facts; and, therefore, the counsel on each side
have put to the physicians such states of fact as they deem
warranted by the evidence, and have taken their opinions thereon.
If you consider any of these states of facts put to the medical
Commonwealth v. Eodgers, 7 Metcalf, 505.
DUTIES AND RESPONSIBILITIES OF MEDICAL WITNESSES. 311
witness are proved, then the opinions thereon are admissible evi-
dence to be weighiHl by }'ou, otherwise their opinions are not
applicable to this case." This is also the view taken by the twelve
judges ill the McNaghton case.^
Although the old form oi' the question may possibly be still
allowed in some ol' th(! States, the ruU' as laid down by Judge
Curtis is the most correct and reasonable one. Here the witness
does not pass upon any question belonging to the jury ; but he
determines whether or not a compact statement of supposed facts
indicate a certain thing or condition, which deduction the jury
are unable to make, though all the facts upon which the medi-
cal witness bases his opinion are before them. In this case
the expert has not the responsibility of determining facts from
the evidence, — the facts upon which he is giving an opinion are
supposed to be true. If true, he says what they prove scien-
tifically.*
All this, however, requires the cool exercise of judgment, the
clear comprehension of science, and the lucid presentation of it
to the court and jury. And, let the question be put in either
way, on some difficult questions like that of insanity, this position
and duty of the medical witness is an embarrassing and weighty
one in the extreme. The symptoms that indicate insanity, often
indicate other forms of disease when taken singly, and unless
presented by the evidence, or in the hypothetical case collec-
tively, — which is rarely the case, — the matter is left so obscure
that the expert is necessarily puzzled as to the weight and place
he shall give to the symptoms as presented. The witness can
not safely answer the question affirmatively, because some of the
symptoms indicate other diseases ; and he can not possibly
answer in the negative, because some of the symptoms only, or
all, may indicate insanity, as well as other diseases. When dis-
1 10 Clarke & Fin. 210.
* An able article against the new rule will bo found in the July No., 1859, of
ihe Boston Monthly Law Eeporter, 127.
312 MEDICAL EVIDENCE.
crepancies and contradictions exist in the evidence, or on the
supposed case, as will often occur, the medical witness must
be necessarily embarras8ed,when asked to give an opinion upon
such a basis. If the evidence conflicts, it can not, of course, all
be true. If the question involves an impossibility, the proper
course is to decline answering altogether, and ask that a definite
hypothetical case be put.
No judicious judge will require any thing more than a fair and
common-sense eflbrt on the part of the medical witness ; and
it is to the court and not to counsel, that the witness is to look
for guidance and protection in his eflbrt to do his duty. If cool
and collected, having the necessary judgment and qualification,
the witness need entertain no fear of the court room. The
counsel who improperly invades the domain of the witness, either
to embarrass or abuse him, will receive no sympathy Irom a court
or jury, if the ivitness maintains a dignified manhood ; but, on
the other hand, such counsel will most certainly prejudice his
client's cause, and impair his influence with the jury and court.
There are several questions, in particular, that have produced
great trouble in their solution to the medical witness, — questions
very difiicult in themselves, but rendered much more so by the
skillful use made of them by shrewd counsel, for the purpose of
overturning the effect of the medical witness' testimony.
Where is the inexperienced witness, who can look at the follow-
ing question for the first time, in the presence of a court, jury
and counsel, without confusion and dismay ? " What is a wound ?"
or this, "What is meant by a wound dangerous to lifeV or this,
"What is meant by grievous hodilg harmV
These questions, and some others of the same character, as
" What is insanity ;" or, " What is a poison ?" and the like, have
driven many medical witnesses from the stand, broken down and
disgraced, because they have foolishly attempted to do what is
impossible. And yet it should not be so, and would not, if the
medical witness understood the true nature and bearing of these
questions, and their great difficulty of solution.
DUTIES AND RESPONSIBILITIES OF MEDICAL WITNESSES. 313
The witness will find it worse than in vain to attempt to give
a consistent and authoiiiative definition of these terms. The
books of medicine, surgery and law do not allbrd a positive defi-
nition to be relied upon.
Dunglison, in his Medical Dictionary, does not attempt a defi-
nition of the term "wound." Medical writers have, however,
attempted a definition of a wound: one says, a wound is "a
solution of continuity, from violence of any naturally continuous
parts:" another has said, the true definition should be, "an exter-
nal breach of continuity, directly occasioned by violence;" and
again, the term has been defined "an injury to an organic tex-
ture, by mechanical or other violence."
It is claimed by some, that to constitute a wound, the sJcin
should always be broken or injured, yet not regarding burns
produced by heated metals or corrosive liquids, as wounds.
DisUnctions like these only tend to the embarrassment of the
witness if he attempts to follow them, without facilitating the
attainment of truth, or the advancement of criminal justice.
Bouvier says : " This term, wound, in legal medicine, comprehends
all lesions of the body, and in this difiers from the meaning of
the word when used in surgery. The latter only refers to a
solution of continuity, while the Ibrmer comprises not only these,
but also every kind of accident, such as bruises, contusions,
fractures, dislocations and the like."^
The present rule of law applicable to the term "wound" is,
that no injury constitutes a vjoiind in law, unless the continuity
of the skin he broken. Upon an indictment for wounding, under
the act of 9 Geo. 4, c. 31, sec. 12, it appeared that the prisoner
had struck the prosecutor with an iron bar, and an iron hammer,
and that the collar bone had been broken, and the end of the
bone much injured by violence, and upon a case reviewed, all the
judges except Bay ley, B., and Park, J. A. J., thought that there
^ 2 Bouvier, Law Dictionary, 662.
314 MEDICAL EVroENCE.
was no wounding within the statute.^ Lord Lyndhurst said, on
one occasion, that "the definition of a wound, in criminal cases,
is an injury to the person, by which the skin is broken. If the
skin is broken and there is a bleeding, then it is a wound."-
It is not enough that the cuticle be divided, or that there is
only a scratch ; in such cases there is no wound in law, even
though death results therefrom. A case is reported where it
appeared that the prisoner attacked the prosecutor with a butch-
er's knife, and drawing him backward, attempted to cut his
throat, an injury, — which the prosecutor described as a slight
scratch, — was inflicted on the throat. Park, B., said : " Nothing
which can properly be called a wound has been inflicted in this
case. A scratch is not a wound within the statute ; there must,
at least, be a division of the external surface of the body."^
Upon an indictment for wounding, a medical man said, that
there was a slight abrasion of the skin, not exactly a wound, but
an abrasion of the cuticle or upper skin, it did not penetrate fur-
ther than that; blood would issue, but in different manner if
the whole skin was cut. Coleridge, J., told the jury : " It is
essential for you to be quite clear that a wound was inflicted. I
am inclined to understand, and my learned brothers are of the
same opinion, that if it is necessary to constitute a Avound that
the skin should be broken, it must be the whole skin; and
it is not sufBcient to show a separation of the cuticle only ; you
will, therefore, have to say on the first three counts, whether there
was a wounding in the sense in which I have stated, viz : was
there a wound, — a separation of the whole skin ?"^ If the skin
is broken internally, it will constitute a wound in law. A surgeon
stated, upon an indictment for wounding : " That the lower jaw
on the left side was broken in two places ; the skin was broken
^^ Rex V. Wood, 1 R. & M. C. G. R. 278 ;— 4 0. & P. 381 ; 1 Russ. on Crimes.
'29.
? Iviority v. Brooks, 6 C. & P. 664.
3 Kex V. Beckett, 1 Moo. & R. 526.
♦ Reg. V. McLoughlin, 8 C. & P. 635.
DUTIES AND RESPONSIBILITIES OF MI-DICAL WITNESSFS. 315
internally, but not externfilly ; there was not a great deal of blood;
one fracture was near the chin and the other near the ear." The
prosecutor had been struck by the prisoner with a hammer on the
left side of the face, ])ut there was no wound on the outside of
the face. It was objected that this was not wounding. Park,
J. A. J., said : " When I first read the deposition, I thought there
might be some doubt. In consequence, I have consulted with
my Loi'd Chief-Justice, and considered the question very much
in my own mind, and we are of the opinion that it is a wounding
within the meaning of the act." Lord Denman, in the same case,
said : " If it is the immediate effect of the injury, we think we
can not distinguish this from the cases which have been decided."
In summing up, Park said : " A question was very properly put
to us, as to whether we thought there was a wound within the
meaning of the statute. We are of the opinion that there was a
wound ; and upon consideration, I am more strongly of that
opinion than I was at the outset. There must be a wounding ;
but if there be a wound, — that is, if the skin is broken, whether
there is effusion of blood or not, — it is within the statute, whether
the wound is external or internal."'
Where a prisoner had bit off the end of a finger, it was held
on a case reserved, that it was no wounding. So, when the nose
has been bitten off, it has been held to be no wounding. So,
when the prisoner had thrown a quantity of concentrated sul-
phuric acid into the face of the prosecutor, because thei'e was no
instrument used, that there was no wounding, and it was held the
conviction was wTong.-
Any kind of instrument is sufficient, but there must be some
instrument used, to make it a legal woundino;. A stone bottle.
a hedge stake, a gun, and even a shoe, if off, or on the foot. A
kick from a bare foot would not be a wounding. It has not been
1 Reg. V. Smith, 8 C. & P. 173 ; Lord Deiiman, C. J.
2 Rex V. Stevens, R. & M. C. C. R. 409 ; Rex v. Harris, 7 G. & P. 456 ; Rex
V. Marron, R. & M. G. R. 456.
316 MEDICAL EVIDENCE
settled whether the teeth of a dog, which had been set to bite a
person, can be considered as instruments within these statutes.
In Elnasly's case, 2 Lew.. 124, Alderson thought that the bite
of a dog would be within the statute, but did not decide the
question. In the Hugh case, Park decided that wounds inflicted
by the teeth of dogs were not within the statute. It would
seem, too, that the skin must be broken at the time, and that
when sloughing takes place, thus destroying a large surface
afterward, it is not within the statute.
In a case decided in the Queen's Bench, in 1847, in which the
declaration alleged that the plaintiff had employed the defendant,
who was a surgeon, for the treatment and cure of certain ivoiinds,
fractures, bruises, complaints, and disorders ; but the evidence
showed that the defendant had been employed to cure the plain-
tiff of a dislocated arm. At the close of the plaintiff's case, it
was submitted to the learned Chief Baron, that there was no
word in the declaration which was appUcable to the case ; but
this objection was overruled. A dislocation, it was argued, was
neither a wound, bruise, nor fracture ; and the words " complaint
and disorder" were not at all applicable to surgical cases, but to
internal complaints, which required to be treated medicinally.
Lord Denman, in delivering the opinion of the court, said : " It
is rather strange that the pleader should have omitted the most
appropriate word, but we think the Chief Baron was quite right."
In this case the court does not say a dislocation is a wound, —
they may have placed it under some of the other terms. In the
United States the same rule of law prevails as in England, and a
wound is defined in the same manner. In France a different
definition obtains. All injuries are covered by the terms wound,
blows, or violence to the body, and either includes all injuries to
which the body is exposed.
Another question of much difficulty which the medical witness
is to meet, is in regard to wounds or injuries ''dangerous to life.''''
As a general thing, no wound is considered dangerous to life,
if it is not immediately dangerous. A wound to a great blood-
DUTIES AND RE.=^P0N^IBILIT1ES OF MEDICAL WITNEE^SES. 317
vessel, or to the brain, or to any import<int viscera, is a wounding
dangerous to life.
In a certain sense any wound, however small, may be con-
sidered dangerous to life ; but in law, a wound is dangerous to
life, when in an ordinary case the chances are that death will
result from the actual eflects of the wound. Yet it is a very-
troublesome question for the medical witness, and he should state
the difficulties attending an answer to the question. This ques-
tion, like some others, therefore, is one upon which medical wit-
nesses must almost necessarily differ, from its peculiar and com-
prehensive character. There being so many contingencies upon
which the danger depends, one physician may take in more of
these circumstances, or give to them more importance, than
another. If the witness says the wound is not dangerous to life,
then, in all probability, he will be asked if the wound was capable
of producing ^^ grievous bodily harm^ These terms are so
uncertain and vague in their meaning, it is almost a matter of
impossibility to say what degree of importance should be attached
to them, — what might be a "grievous harm " in one case, might
not be in another.
The safest course for the witness in regard to all these questions
is, to give a true and plain account of the wound, — describing it
minutely, and the probable consequences that may attend it.
The attending surgeon is likely to hear the dying statements
of the person, when the wound is fatal, which statement may be
very important evidence, and come to the court through him, as
a common witness. A few things, therefore, in relation to dying
declarations should be well understood by the medical witness.
Lord Chief Baron Eyre states the general principle upon w hich
dying declarations are admitted in evidence to be this: that they
are declarations made in extremity, when the party is at the point
of death, and when every hope of this world is gone ; when every
motive to falsehood is silenced, and the mind is induced, by the
most powerful consideration, to speak the truth. A situation so
solemn and so awful, is considered by the law as creating an
318 RIEDICAL EVIDENCE.
obligation equal to that which is imposed by a positive oath in a
court of justice.^
The dying declarations of a person made in extremis, are con-
sidered as being given under the same sense of responsibility as
those declarations made under the sanction of an oath. The
dying declarations of a person who would not have been a com-
petent witness while living, will not be taken in evidence. A
statement under oath is considered more important than that of
a statement not sworn to, because it is supposed the immediate
sanction of, and admission of the party's accountability to God,
and the idea that he must answer for the truth of what he says,
to his Maker, will induce him to tell the truth. The dying
declarations, therefore, must be made under the awful sanction of
an immediate expectation of meeting God, on the part of the
person making them, or they can not be received in evidence.
It is not enough that the person fears death, or looks forward
to a certain death in the future ; he must expect it, — feel that it
is impending at the time. If his medical attendant informs him
that he can not live, and he believes it, then his statements are
taken in evidence ; and it is sujfficient, though much time elapses
before death actually transpires, if he expected all the time to die
at any moment.
The circumstances under which the declarations are made, are
considered by the judge, and if sufficient he admits the testimony.
When the deceased has made a writing and signed it, embodying
his statement, it must be produced, if in existence, and parol evi-
dence can not take its place.
It is not absolutely necessaiy that the precise language used
by the deceased be given, but the substance must be stated.
The medical man should therefore note well the last words of
the dying man, and the circumstances, and also his signs, for
such signs, if intelligible, are also evidence.
» Eex V. Woodcock, 2 Leach, Crim. Oases, 267-556 ; 1 Greenleaf, 209.
CHAPTER XXII.
PRIVILEGED COMMUNICATIONS.
There has existed a ditierence of opinion among Medico-legal
writers as to the obligation of medical witnesses to reveal profes-
sional secrets upon the witness stand,
M. Fonblanque says, that when the ends of justice absolutely
require the disclosure, there is no doubt that the medical witness
is not only bound but compellable to give evidence, ever bearing
in mind that the examination should not be carried further than
may be relevant to the point in question ; of this the court will
judge, and protect the witness.^
On the other hand, an able French writer says : " The tribunals
neither ought nor have the power to exact from a physician the
revelation of a secret confided to him in consideration of his
office ; at all events he may and ought to refuse. Religion,
probity, nay, the rights of society make this law. Still more are
we bound to secrecy when not compelled to disclose. Upon this
point casuists and juris-consults iire of one opinion."^
It was decided in the important case of the Dutchess of
Kingston, "that in a court of justice medical men are bound to
divulge these secrets when required to do so." Lord AJansfield.
said on that occasion : " if a medical man was voluntarily to
reveal these secrets, to be sure he would be guilty of a breach of
honor and of great indiscretion; but to give that information
1 Med. Juris. 160.
* Belloc, Cours de Med. Leq. 17.
(319)
320 MEDICAL EVIDENCE.
which by the law of the land he is bound to do, will never be
imputed to him as any indiscretion whatever."
In this case Sir C Hawkins, who had attended the duchess as
a medical man, was compelled to disclose what had been com-
mitted to him in confidence.
This is the Common law rule undoubtedly, in both England and
this country ; while some of the States, like New York, Missouri,
Wisconsin, Iowa, Indiana, Michigan, and perhaps some others,
have passed a statutory rule on the subject, in the following lan-
guage : " No person duly authorized to practice physic or sur-
gery, shall be allowed to disclose any information which he may
have acquired in attending any patient in a professional character,
and which information was necessary to enable him to prescribe
for such patient as a physician, or to do any act for him as a
surgeon." But a physician consulted by the defendant in an
action on the case for seduction, as to the means of producing
abortion, is not privileged from testifying under this statute, as
the information was not essential to a proper prescription.^
Some of the elementary writers insist that the medical witness
ought to be privileged with regard to secrets confided to him in
the course of his professional attendance, while others take the
opposite ground.
Physicians, as a class, have never given up the idea that they
were entitled to the immunities and privileges enjoyed by
the attorney, and that their patients were worthy of the same
protection as that meted out by the courts to the client of the
attorney. Thus : John Gordon Smith, M. D., an EngHsh writer
on Medical Evidence, whose work has never been republished in
this country, says, after admitting that the rule of law compelled
medical witnesses to testify on every point, without excepting
professional secrets ; " A precedent in law is a mighty authority :
and I am quite satisfied that a point which has been so often and
1 Hargr. St. Tr. 243 ; 20 How. St. Tr. 613, 614.
« Hewitt V. Prime, 21 Wend. R. 79.
PRIVILEGED COMMUNICATIONS. 321
SO uniformly ruled, will never be ruled otherwise in the courts of
Westmhister Hall. I am also well aware that to law, and rules of
court, we must yield, or the administration of justice would be
impeded. But although satisfied on these points, I am not con-
tented that we should be placed beyond the pale of those, to whose
private and confidential dealing with their fellow citizens, such
respect is shown. I will not go at large into this question,
my design being merely to draw the notice of my brethren to
the circumstance, and to put them upon their guard as far as
possible ; yet will I say, that circumstances may occur, in which
a man of a delicate and honorable mind, being the depository of
certain things communicated to him, either under the seal of
professional or private confidence, would endure much ere he
would reveal. It will at once strike the manly mind, that in
regard to females, we might be called upon to reveal that wiiich
the promulgation would to them, be worse than death itself"^
Dr. Charles A. Lee, the able and intelligent editor of the
American edition of Guy's Forensic Medicine, says: "We believe
it to be the moral right, and the duty of medical men, to refuse to
disclose, in a court of justice, secrets intrusted to them in pro-
fessional confidence, and we have always acted on such belief
If physicians become the repositories of secrets, under the full
conviction, on the part of society, of our moral and professional
obligations to hold them sacred, — secrets which otherwise never
would have been revealed, — who can believe that there is any
earthly power which ought to wring them from us, or which can,
if we rightfully understand our privileges and duty ? If private
confidence is thus to be broken upon every imaginary necessity,
where is the end to the mischievous consequences that would
arise, especially at this day, where every trial is published to the
world through the medium of the public prints? The lawyer is
shielded from the obligation of revealing the secrets of his client,
on the gi'ound that it is necessary he should be acquainted with
' Smith's Analysis of Medical Evidence, 93.
21
322 MEDICAL EVIDENCE.
the real facts in the case, for the purpose of conducting the
defense, and because life and property are at stake. But we ask,
if character and reputation are not often of equal value, and
whether either of the former could be enjoyed without the pos-
session of the latter? So also it may be observed, that the
patient communicates freely with his physician for the purpose
of judgment ; no circumstances whatever, will warrant their publi-
cation to the world. In the case of females, such a disclosure
would be in the highest degree indelicate, and often worse than
any punishment that could be inflicted.^"
Thus medical men view the matter, and thus they reason upon
it. But the rule of the Common law is against them, whether
right or wrong."
The discover}", vindication and establishment of truth, and the
punishment of crime, are the main purposes of the existence of
courts of justice. For this the rules of law are established, and
to this end witnesses are put upon the stand, and they are to tell
the whole truth bearing upon the case, unless there is some
special, powerful reason why they should not.
The great interests of government, life, liberty and private
property, all depend upon a well-settled system of evidence, by
the rules of which the whole truth may be as surely as possible
brought out. Any privilege that a witness may enjoy, which
permits him to retain in his own bosom the knowledge of facts
bearing upon the case at issue, contravenes the great object of
all law, just to the extent that this privilege from testifying is
permitted to reach. As facts are taken or kept from a court or
jury, the means of arriving at a just conclusion are abridged, and
from the want of the light of these very flicts, thus kept out of
sight, the ends of justice may be defeated, — the guilty escape, —
the innocent suffer, — and possibly great public interests may be
endangered.
1 Guy's Med. Juris. 16.
2 Dixon V. Parmelee, 2 Verm. Rep. 185 ; Sherman v. Sherman, 1 Root, 486,
PRIVILEGED COMMDMCATIONS. 323
The reasons then, if any, for permitting private interests to
outweigh the certainty of judicial investigations and their results,
should, it would seem, be cogent and convincing. The justifi-
cation should be a complete one, that will permit a witness to
refuse information, essential perhaps, to the just solution of an
important issue, possibly involving life. This information a
privileged witness is permitted to refuse to give to a jury.
Should not such witnesses be subjected to the severest scrutiny,
and confined cautiously and carefully to the exceptional cases,
where, it is claimed, greater evil will result if the truth is per-
mitted to come out? A rule that limits the sources of informa-
tion in courts of justice ; that prevents truth from being followed
into every channel, and brought forth from every lurking place;
thus hazarding just results; is an exception, and an anomaly in
law, and should be subjected fo all the disabilities of an anomaly.
Since the time of Elizabeth, not before, the privilege of the
counsel, solicitors, and attorney to refuse to testify to matters
confidentially and professionally obtained, has hardly been ques-
tioned, yet even in these cases, the danger and difficulty of per-
mitting the testimony to be withheld, have been felt. Chief-
Justice Best says: "I think this confidence in the case of attor-
neys is a great anomaly in the law,"^ and Lord Tenterden agrees
with him.
The rule has been justified alone as necessary to secure the
rights of the client, and the free and unembarrassed administration
of justice; and it is supposed that the security and enjoyment of
civil rights require that the cHent's secrets, when confined to the
lawyer, shall be inviolate. Judge Story says : the privilege is
not that of the attorney, but that of the client, and that such
attorney can not disclose without the consent of the client, if he
wished to.^
Mr. Greenleaf says : the great object of the rule seems plainly
» Broad v. Pitt, 3 C. & P. 513.
2 Chisac V. Keinicker, 11 W. 294 ; CurtL«, 59.
324 ME )ICAL EVIDENCE.
to require that the " entire professional intercourse between client
and attorney, whatever it may have consisted in, should be pro-
tected by professional secrecy." This is certainly basing the rule
on very broad grounds ; — possibly too broad. It will not be
claimed that the privilege of law}^ers arise from any partiality of
the court toward members of the bar, but simply because he
represents the client, and that his interests forbid the publicity of
his case through his attorne}'. The attorney has no more rights,
personally as a witness, than the physician or any other person,
and if privileged, it is because he stands in the place of his chent.
Lord Chief-Justice Brougham says : " the foundation of this rule,
is not on account of any particular importance which the law
attributed to the business of legal professors, or any particular
disposition to afibrd them [)rotection But it is out of regard to
the interests of justice, which can not be upholden, and the
administration of justice, which can not go on without the aid of
men skilled in jurisprudence, in the practice of the courts, and in
those matters aflecting rights and obligations, which form the sub-
ject of all judicial proceedings."' The same learned judge says,
in another case, that without this privilege no man would dare to
consult a professional adviser, with a view to his defense and to
the enforcement of his rights, and no man could safely come into
court, either to obtain redress or to defend himself" No interest,
therefore, but that of the client, permits the attorney to refuse to
give in his testimony in the case, and this interest, it is said,
" comprehends the entire professional intercourse between client
and attorney, whatever it may have consisted in."
As ah-eady shown, high English authority pionounces all this
kind of testimony an anomaly in law; and Chief-Justice Shaw
has said that "the privilege of exemption from testifying to facts
actually known to the witness, is in contravention to the general
rules of law; it is, therefore, watched with some strictness, and
' Greenough v. Gaskill, 1 Mj. & R. 102, 103.
2 1 My. & R. 94, 95.
PRIVILEGED COMMUNICATIONS. 325
is not to be extended beyond the limits of that principle of policy
upon ^Yhich it is allowed." And again : " So strictly is the rule
held, that the privilege extends only to communicatiens made by
the client to his attorney for the purpose of obtaining legal
advice, that in a late case it was held, that a communication
made by a client to his attorney, not for the purpose of asking
his legal advice, but to ol)tain information as to a matter of fact,
is not privileged, and may be disclosed l)y the attorney, if called
as a witness in a cause :^" and again, in another case, he says, as
the rule is one "having a tendency to prevent the full disclosure
of the truth, it ought to be construed strictly."^
Where there is no particular motive for the disclosures of the
client to the attorney, or to get information upon a point of fact,
it will not be in either case a privileged communication. The
reason for this privilege does not apply to instruments of con-
veyance. Public policy requires, that the facts attending the
execution of such instruments should be publicly known, for the
prevention of fraud.^ The attorney is not permitted to be the
judge as to what is or is not privileged from disclosure, but the
question is decided by the court. If the communication was made
to the counsellor in the character of a friend, and not as counsel ;
or before he was employed ; or after the employment has ceased ;
or when the attorney was consulted as attorney, but refused to act
as such ; or when the fact merely took place in the presence of
the attorney ; or when the matter communicated was not in its
nature private ; or when the thing disclosed had no reference to
professional employment, though disclosed while the relation of
attorney and client subsisted, or when the attorney made himself
a subscribing witness ; or when he was directed to plead the facts
to which he is called to testify ; or when he acts simply as an
» 14 Pick. 423-3.
2 Foster v. Hall, 12 Pick. 98.
3 1 Stark. Ev. 204 ; Wadsworth v. Ilamshaw, 2 Brad. & Bingh. 5, note ; Wil-
liams V. Mundie, Ryan & Moody, 34 ; S. C. C. & P. 158.
326 MEDICAL m^IDENCE.
agent ; the attorney is not privileged ; so anxious are the courts to
limit this kind of testimony in as close a compass as possible.^
It is difficult to see how the attorney can be permitted to
occupy the position of a privileged witness to the extent laid
down by the learned Mr. Greenleaf, as already quoted. There is
no doubt but the tendency of jurisprudence is to Hmit, to a great
extent, if not altogether aboHsh this privilege ; therefore, under
the statutes of Ohio and other States, the party to a civil action
may himself be put upon the stand by the adverse party as
a witness, and compelled "to testify as a witness, in the same
manner, and subjected to the same rules as other witnesses."^ If
the privilege of the attorney depends upon his representative
capacity, as it undoubtedly does, how can he be privileged in
his " entire professional intercourse," while the client himself is
not himself privileged. The reason for the attorney's privilege
falls to the ground when the client himself is not privileged.
True, in the Common law practice, the party is not a witness ;
but statutory law is in advance of the Common law, and in this
case it is struggling to throw off all restraints to the complete
investigation of all facts bearing upon the issue involved. Where
the client is a competent witness, the testimony of his attorney
can not certainly be privileged upon principle.
On what ground is the criminal exempted from being a witness?
Confession of guilt has always been encouraged by the courts.
The criminal can, with a considerable degree of certainty, calcu-
late upon a milder punishment if he shows penitence by confess-
ing his guilt; the court then is ready and glad to get the evidences
of the indicted person's guilt, even (i-om his own lips. Why then
is he not compelled to answer all questions that might be put to
him tending to ehcit the truth, either by the direct answer or by
' 5 P. S. J. 65, Penn. Sharswood, J. ; 1 Cain's R. 157 ; 1 Vert. 197 ; 2 Atk.
524 ; 43 R. 431 ; 43 R. 753 ; Cowp. 846 ; 2 Ves. 189 ; Str. 1122 ; 7 East. R.
357 ; 2 B. & B. 176 ; 3 John. 198 ; Peake's R. 77 ; 10 Mod. 40, 3 Burr. 1687 ;
7 N. S. 179 ; 14 Pick. 422.
2 Swan's R. S. 663.
PRIVILEGED COMMUNICATIONS. 327
involving him in contradictions ? Is it said that there will be a
strong inducement to perjury ? Is there not an inducement to
perjury to almost the same extent, where the party in a civil suit
is compelled to testify against his own interests ? If that is an
objection in one case, it certainly is in the other. The courts can
not, in any case, prevent a witness from swearing false, they can
only punish him when proven guilty ; this reason then is hardly
sufficient to privilege the criminal party where the civil party is
obliged to testify.
The rule is, that when the answer tends to criminate, make
liable to a penalty, or to disgrace the witness, he is excused. In
civil cases this rule does not apply : in all such cases a witness
can not refuse to answer any question relevant to the matter in
issue, though such answer may subject him to a civil suit, or to
pecuniary loss.^
It is difficult to see but one reason for the rule privileging the
witness in criminal cases, and that is, that the courts would find
it embarrassing in the extreme to enforce an opposite rule.
Just in proportion to the severity of the penalty attached to the
crime which the witness convicts himself of, will be the severity
of the punishment necessary to compel such witness to testify ; if
the penalty is death, the witness will suffer every thing short of
death before he will admit his guilt, when such punishment follows
the admission. Hence, to enforce obedience to a rule requiring
the witness to criminate himself, the court must resort to all the
severity and horrors of the inquisition. To avoid this savage
necessity, and not on account of any special rights of a criminal
party over a civil one, the rule has properly been adopted,
although the reason for it may not be admitted.
Under this view of the whole question, how can the medical
man ask exemption from giving to the court and jur}' all the
fight he may possess bearing upon the issue? The question can
not be treated cavalierly, by saying : '' who can believe that there
» Ball V. Loveland, 10 Pick. 9 ; Roscoe's Cr. Ev. 170.
328 MEDICAL EVIDENCE.
is any earthly power which ought to wring from us such evi-
dence; or which can, if we rightly understand our privileges
and our duties." There must be a good and substantial reason
for the privilege given if it should exist, because such a rule
contravenes justice. The Common law knows no private confi-
dence, except between husband and wife, and that of attorney
and client, as we have seen, in which cases it is closely guarded,
and only permitted to a certain extent, for reasons, as it is thought,
of the highest public good. The rule can not be considered as
established, that clergymen in certain cases shall be exempt from
testifying in courts of justice, though there have been some
decisions and statutory acts, permitting them to be privileged
witnesses.
By the laws of New York and of Missouri, no minister of the
Gospel or priest of any denomination, is allowed to disclose any
confession made to him in his professional character, in the course
of discipline enjoined by the rules or practice of his denomi-
nation.^
It can hardly be claimed that a person will be guilty of suicidal
neglect of medical attendance, for fear of the testimony of medi-
cal men. No such case has ever been heard of It would be
criminal for a physician to aid, by his knowledge and science,
in the commission of a crime or the perpetration of a fraud, and
it will not be pretended that in such cases the medical witness
should be excused from testifying.
If a medical witness is allowed to decline on his own judgment,
he is privileged beyond the attorney, for the court decides and
not the witness, whether he shall be privileged. If the physician
does not decide for himself in what case he shall be privileged,
then the court must hear the testimony, and this will involve the
necessity of the testimony of experts, because the courts are not
informed on medical subjects, and can not decide as to the charac-
ter and necessity of medical treatment.
> Phillipps' Evidence, 139.
PRIVILEGED COMMUNICATIONS. 329
Do medical men claim immunity because their patients would
not be compelled to testify ? In civil cases the patient, if a party,
may be called upon to testify ; and in criminal cases, if the physician
attempted to shield the indicted person, wouhl he not be particepn
criminis ?
So, in either case, it would seem, he ought to give in his testi-
mony in full, that justice may be secured, by the punishment of
the guilty and the protection of the innocent. None of the
reasons for permitting the privilege of the attorney in behalf of
his client appHes to the physician in behalf of his patient. The
physician in no sense represents his patient in court ; the only
ground on which the attorney is permitted to refuse to testify.
Is the extremity of the patient the reason why the ph}'sician
should be privileged? Just as well might the benevolent man,
who has fed and lodged the hungry fugitive from justice, who has
lain in the woods until death from starvation has driven him forth,
claim that he ought to be a privileged witness, in reg;ird to such
fugitive criminal, because the great danger and sullering of the
person, made it necessary for him to apply to him tor help, as
patients apply to the physician. The patient has no privileges
that any other person in an extremity has not. The great ends
of justice would be defeated, if, because a stern necessity, or
supposed necessity, for the act done would exclude the evidence.
Those writers and medical men, who claim the privilege of
refusing to testify for the medical witness, feel that the honor of
the professional man is involved if he does divulge what has
transpired in his practice, — they are undoubtedly actuated liy the
highest motives, — but would not such a general rule produce more
evil than good ? Are not the rights of society paramount to those
of individuals in cases of this kind ?
It is another and very dillerent question, and one which will
not be discussed here, whether the physician or surgeon is
under obligations of secrecy, when not called upon by the authori-
ties of the court, to withhold information that would lead to the
detection of crime or the advancement of justice.
330 MEDICAL E\1DENCE.
Two cases have lately arisen in the city of New York involv-
ing this question. One is that of the younger Dr. Mott, who
was called upon to attend as surgeon, a burglar, who had been
shot while in the act, but who escaped wounded, without being
identified. From the account as published in the papers the next
day, Dr. Mott was satisfied that the man whom he treated the
night before for a pistol shot wound, was the burglar ; and reported
the case to the authorities, by whom the individual was arrested.
There is no doubt, whatever may be the opinion of the act itself,
but that Dr. Mott was influenced by the highest patriotic motives,
in thus exposing himself to great personal danger for the advance-
ment of justice.
The other case was connected with the celebrated Burdell and
Cunningham tragedy. Dr. Uhl being consulted professionally by
Mrs. Cunningham, to carry out her conspiracy to secure the
Burdell estate, he repeated the matter voluntarily to the district
attorney, who, through this information, was able to detect and
expose the whole plan. Both of these cases have been exten-
sively discussed and criticised by the medical profession, as to the
obligation or right of medical men under these circumstances,
to make known information thus acquired, when not upon the
witness stand.
CHAPTER XXIII.
MEDICAL BOOKS AS EVIDENCE
Not only do medical men insist upon the rights of " privileged
witnesses," but they also claim the right of introducing the
authorized text books and elementary works of the profession in
testimony, for the purpose of showing what the opinions of the
best and ablest minds are upon the particular question at issue.
They think the rule upon the subject has not been a consistent
one, as books have sometimes been admitted, and at other times
excluded. The question as to the admissibility of books has
thus been kept open ; the witness claiming the right to support
his opinions by reference to authority, and the court, if permitting
it at all, doing so by general consent and not upon principle.
Dr. Beck says : " In this country, I believe, the objection to
medical books has never been made. There is scarcely a case
of any note, where testimony has been required, in which fi-equent
reference has not been had to medical works. They are quoted
and commented on by the bench and bar and by the professional
witnesses."' The learned author is undoubtedly mistaken if he
means that these books were generally admitted as a right. It
is only when there is no objection that they are testimony.
On the trial of Abner Rogers, jr., tried for the murder of
Charles Lincoln, warden of the State Prison, in 1844, the defense
was insanity, and one of the most able ever made. Every point
was contested on both sides with marked ability, Chief-Justice
' 2 Beck, Medical Jurisprudence, 919.
(331)
332 MEDICAL EVIDENCE.
Shaw presiding. On this trial medical books were admitted, but
in a subsequent case the same court refused to admit them.
The English and American authorities agree that professional
or scientific books are not competent evidence in courts of justice.
In the case of Collier v. Simpson, where the question was, whether
a prescription was proper and the dose not too large, Chief-Justice
TiNDALL ruled that medical books could not be introduced as evi-=-
dence to determine whether the dose was too large, saying :
" Physic depends more on practice than law. I think you may
ask a witness whether, in the course of his reading, he has found
this rule laid down." An attempt was made to show that the
works of Sir Astley Cooper and Dr. Merriman were authority,
and acted upon in the medical profession, when the Chief-Justice
said : " I do not think that the books themselves can be read,
but I do not see any objection to your asking Sir Henry Haiford
his judgment, and the grounds of it, which may be in some
degree founded on books as a part of his general knowledge."'
This is now the rule in England.- On the trial of the Conmion-
wealth V. James Wilson, P. H. Sears, in opening the case for the
defendant, proposed to read to the jury a definition of insanity,
from works of established reputation on the subject ; and con-
tended that books written by lawyers were admissible, even if the
court should hold that the treatises of medical writers were not.
But Chief-Justice Shaw said : "■ Facts or opinions on the subject
of insanity, as on any other subject, can not be laid before the
jury except by the testimony under oath of persons skilled in
such matter. Whether stated in the language of the court or of
the counsel in a former case, or cited from the works of legal or
medical writers, they are still statemc.nits of facts, and must be
proved on oath. The opinion of a lawyer on such a question of
fact, is entitled to no more weight than that of any other person
not an expert. The principles governing the admissibility of
' Collier v. Simpson, 5 Car. & Payne, 73.
2 Cocks & Purdiiy, 2 Car. & Kirw. 270.
MEDICAL BOOKS AS EVIDENCE. 333
such evidence, have been fully considered by this court since the
trial of Rogers; and the more recent P]nglish authorities are
against the admission of such evidence."' So in the case of Ada-
Hne Phelps, tried in the same State about the same time, Charles
Allen, for the defense, undertook to read from various medical
works in support of his views, but Judge Dewey said : " The
rule had been changed since the trial of Rogers, and that the
court, upon full consulhition, hud decided to exclude all medical
books."- The court, in an Iowa case, on the other hand, have
decided that, "they can see no good reason why the pln'sician
may not read the views and opinions of distinguished writers.
The opinions of an author, as contained in his works, we regard as
better evidence than the mere statement of those opinions by a
witness, who testifies as to his recollection of thetn from former
reading. Is not the latter secondary to the Ibrmer? On the
whole, we think it the safest rule to admit standard medical books
as evidence of their opinions upon questions of medical skill or
practice involved in the trial. This rule appears to us the most
accordant with well-established principles of evidence."^ The
reasoning in the above opinion will not stand the test of examin-
ation. It is not good law because not good logic, and against
precedent.
The medical witness should bear in mind, that this rule applies
not to medical books especially or peculiarly, but it is equally
apphcable to treatises on law, or any other science. Chief-Justice
J. C. Spencer says of law books, that they *' may be sometimes
read to inform the mind of the court, but never as evidence." A
general history of a country may be read, not precisely as evi-
dence, but to refresh the memory of the court in respect to
general facts, which it is presumed to know. In an Eiighsh case.
Sergeant Ludlow proposed to read from Nicholls' History of
1 Commonwealth v. Wilson, 1 Gray, 338.
2 The Mouthly Law Reporter, May, 1854, p. 9.
' Bowman v. Woods, 1 Iowa R. 441.
334 MEDICAL EVIDENCE.
Brecknockshire, a statement of the boundaries of that county, at
the spot in conti'oversy ; when Baron Alderson said : " This i£ a
history of Brecknockshire. The writer of this history probably
had the same interest in enlarging the boundaries of the county
as any other inhabitant of it. It is not Hke a general history of
Wales. I shall not receive it."^ Mr. Justice Buller says : that
a general history may be admitted to prove a matter relating to
the kingdom at large, but can not be received as a proof of a
private right or particular custom." In Percy's case, which was an
ejectment for the baroncy of Cackermouth, the lessor of plaintiff
derived his title from Sir Inghram Percy, and offered in evidence
Dugdale's Baronage of England ; where it was stated that Sir
Inghram Percy died without issue, but it was not allowed to be
given in evidence. Lord Hale once refused to let Camden's
Britannica be read as evidence, to prove a custom, but held that
a general history might be given in evidence to prove a matter
relating to the kingdom in general, because the nature of the
thing requires it, but not to prove a particular right or custom.
Counsel are permitted to read from their law books in court, not
by right of any rule of evidence, but as part of their argument.
Counsel have the right to argue any law point or matter of fact
to the court, but any thing they read from elementary works, is
no more evidence than what they say on their own responsibility,
but it may have more weight in influencing the court because of
the acknowledged ability of the author, than the language of the
counsel. The court frequently says to counsel, "you need not
read that authority, I am familiar with it, but I will be glad to
hear what your opinion of the law applicable to the case is, and your
reasons for such opinion." But after the elementary works and
reports are read, the court is at liberty to charge the jury, or
decide contrary to those authorities, if they are not the reports
of a Superior court, to which an appeal will lie. The lawyer selects
1 Evans v. Getting, 6 Car. & Payne, 586.
2 B. N. P. 248.
MEDICAL BOOKS AS EVIDENCE. 335
the authorities which he beUeves contain the law, but then he
supports this position by argument ; so the medical witness may
base his opinion more or less upon the authorities he deems
worthy of the greatest confidence, and he has a right to give the
opinions of such writers in evidence, but he must be so far master
of their opinions and so understand them, as to make them his
own under oath.
The medical witness, therefore, has no just grounds of com-
plaint, because his books are not received iu evidence. The court
honors his individual opinion as of higher value than that of an
outside author. The court presumes, that from reading these
authors, close thought and actual observation and experience;
the witness under oath, subject to a cross-examination, will more
certainly enlighten the case than if it depends upon the published
opinions of authors, who perhaps, had a favorite theory to support
or an old prejudice to influence them, on a question or subject
constantly advancing. Then the author himself may have
changed his opinions since the book was written.
Experience alone does not make up a valuable scientific opinion :
if this is the principal element it is comparatively worthless.
Experience in medicine, though of some value to a witness, yet
it is often placed higher than its proper place. An intelligent
medical opinion is but seldom based upon experience alone, or
principally. Abercrombie says : " In point of fact, the knowl-
edge which is acquired by an individual, through his own percep-
tion and reflection, is but a small part of what he possesses;
much of the knowledge possessed by every one is acquired
through the perception of other men."^ Dr. Campbell, an English
writer, observes that, " what has been rightly perceived may be
misremembered, — what is rightly remembered, may, through
incapacity, or through ill intention, be misreported, and what is
rightly reported may be misunderstood. In any of these lour
ways, therefore, either of defect of memory, of elocution, or of
* Abercrombie on the Intellectual Powers, p. 47.
336 MEDICAL EVIDENCE.
veracity in the relator, or by misapprehension in the hearer, there
is a chance that the truth received by the information of the senses,
may be misrepresented or mistaken." Dr. Gordon Smith says :
*' It is very possible, therefore, that he who depends upon his
experience may be inferior, as to knowledge and intelligence, to
the diligent student ; for an accidental observer may be unquali-
fied to make use of his opportunities, while the other may acquire
much information, without going beyond the labors of ot';ers.
The man of experience, moreover, has to labor as much single
handed as all the rest put together, ere he can equal them in
pretension; while the student again may have opportunities of
experience to a minor extent, but will make a vastly better use
of a few than the uninformed can of many. Presumed experience,
for that is certainly what the word in its ordinary use must be
restricted to, is in a great measure accidental ; it must fall to the
share of different individuals, in different forms and degrees ; and
I beheve that no small portion of that odious discrepancy which has
prevailed among medical witnesses, whereby the lustre of medicine
itself has been so much tarnished, is chargeable to the prevalent
afiectation of being men of experience rather than men of learn-
ing, — to the over-anxious desire of being extensively employed,
rather than solidly instructed and properly qualified."^ It is
dangerous, therefore, for a medical witness, when upon the stand,
to depend in making up his opinions upon his own personal
experience, instead of basing them upon the elementary writers
upon the subject. With a thorough acquaintance of the standard
writers on the science of medicine, he is quaHfied to give an
opinion of his own on the matter at issue. It may be his own
experience, but he has the satisfaction of knowing that he is sus-
tained by authority. This gives to him confidence and certainty,
and the opinion is so received by the court and jury. He leaves
the stand with an enhanced reputation, — his profession vindicated
and honored.
1 Smith's Analysis of Medical Evidence, p. 126.
MEDICAL BOOKS AS EVIDENCE. 337
Dr. Charles A. Lee, remarks upon this point : " How often do
we see medical men of scant}' experience, priding themselves
upon their experience, and disparaging all knowledge derived
from books, and by so doing, demonstrating alike their ignorance
and want of sense ; for what is individual experience at the best,
when compared with the vast store accumulated by the sages of
the profession in all ages. It is but as a drop of water compared
with the ocean ; a moment of time with eternity. Personal
experience, unless enlarged, improved, and corrected by that of
others, is of little value. Medical testimony, when of any value,
is but Httle else than a reference to authority."^
The authorities, as we have seen, permit the witness, in giving
his opinions, to give the reasons that bring him to his conclusions,
which, in the language of Tindall, '* may be in some degree
founded on books, as a part of his general knowledge." He may
even read from medical books while on the stand, adopting what
he reads or refers to as his own opinions, and the jury will be
instructed to receive and weigh such matter as evidence.
In this way and under such a license, all that the medical wit-
ness wishes to indorse under oath from any particular writer goes
to the jury and nothing more ; thus avoiding the loose habit of
permitting whole medical libraries to be given in evidence, at the
option of counsel or witnesses.
* Guy's Medical Jurisprudence, p. 20.
22
c- — —
CHAPTER XXIV.
INSANITY— KNOWLEDGE ON THE SUBJECT LIMITED.
Insanity stands at the head of Medico-legal questions, in its
relation to Criminal and Civil Jurisprudence. The difficulties
that surround its study seem to be insurmountable. As an ele-
ment in criminal trials it is daily becoming more prominent and
troublesome.
Countless volumes having been written by the ablest minds
of the medical profession upon the great subject; quarterly and
monthly periodicals having been established expressly for its dis-
cussion and elucidation ; some of the ablest thinkers in medicine
having made it for a life time a specialty ; the patronage and sup-
port of governments being freely given to aid its unfortunate
victims and those who take care of them ; the popular mind and
general reader come very naturally to conclude that the whole
subject is well understood : or at least, that very nmch must be
well settled and satisfactorily established ; so that when the usually
calm and transparent mental ocean world, becomes turbid and
tumultuous from the action of the storms that sometimes sweep
across its surface ; it may still be safely navigated, — each sunken
rock and shallow bottom detected, aided and guided by the beacon
lights thus estabhshed upon the headlands.
With this general impression prevalent, it may be humiliating
to the pathological and psjchological student or scholar, to admit,
that notwithstanding all that has been accomp ishcd by the
accumulation of fiicts, and the enunciation and discussion of
theories upon the subject of insanit}-, especially during the last
century, the \\hoIe question is still ^tih judice.
This state of the subject results, not from want of laborious,
patient research by those best quahfied to make it ; but it depends
(338)
LSSANITY KNOWLEDGE ON THE SUJ5JECT LIMITED. 339
upon the inherent elementary difficulties investing and protecting
the whole subject of aberration of mind, — difficulties that no
human eflbrt however great, has, up to this time, been able to
surmount or remove.
After a protracted, learned and almost profitless discussion
between the two schools of psychologists, — the materalist or
pathological psychologist, and the spiritualist, or pure metaphysi-
cian, the main points of dispute, whether hallucinations in par-
ticular and insanity in general are idiopathic, — depending upon
a derangement in the very essence of mind itselfj — or whether
they are symptomatic, — arising from actual disease in the brain,
through which the mind manifests itself to the external world, —
are perhaps as far from being settled as when the question was
first propounded. Each party, it is true, considers the question
settled according to its favorite theory.^
The ablest authors and teachers on the subject of insanity,
generally hold to the material or somatic theory ; yet, able as they
are admitted to be, and notwithstanding the time and labor many
of them have devoted to the subject, and the confidence they
feel that their theory is correct, we have no settled classification or
definite description of the pathological changes upon which they
say the insane phenomena depend. Nor indeed, have they told us
definitely where these pathological changes are. They are gener-
ally located in the brain. Dr. Rush based the disease in the blood.
Dr. Ray, whose ability is only equalled by his ardor, in his
defense of the physical view or character of the subject, is
compelled to acknowledge that "these pathological changes are
not sufficiently definite to admit of classification, or of practical
application in the various kinds of insanity." For what useful
purpose then, is this theory of value in solving the mighty prob-
lem of insanity ? The same writer thinks these changes in the
* Dr. H. Morris' " Remarks on Insanity, its Nature and Treatment," London,
1850 ; Criminal Jurisprudence Considered in its Relation to Cerebral Organization,
London, 1843.
340 MEDICAL EVIDENCE.
organic structure, '^to us are chiefly valuable, as showing the
frequent liability to disease, either from excessive exertion or
disuse of its own powers, or from its proneness to be afiected by
morbid irritations, that radiate from other parts of the body.
We learn from these also, that changes of structure may proceed
in the brain as in other organs, to an incurable degree, without
giving rise to much, if any very perceptitAe disturbance of its
functions, until some striking .".nd unexpected act leads the en-
lightened physician to suspect its existence, and draws down upon
the unfortunate suliject the restraints and penalties of the law."
It is the act of the person, and not the pathological symptoms,
that determines the insanity, according to this writer. This is
not very clear. The distinguished author not only fails to give
any cases wherein his theory is of practical use, but thus directly
admits its impractability.
If the brain may sufier from disease to an " incurable degree,
without giving rise to much, if any perceptible disturbance of
its functions," how is it that this condition of structure forms the
basiii, and gives rise to insanity ? Or how do we know it depends
upon diseased brain ? Again he says : " Whatever opinion may
be entertained of the nature of mind, it is generally admitted, at
least by all enlightened physiologists, that it must of necessity be
put in connection with matter, and that the brain is the part of
the body by means of which this connection is effected. Little
as we know beyond this single fact, it is enough to warrant the
inference that derangement of the structure, or of the vital actions
of the brain, must be followed by abnormal manifestations of the
mind ; and consequently, that the presence of the efl'ect indicates
the existence of the cause. This leads us to the source of the
hesitation that has been evinced by pathologists to consider the
brain as the seat of insanity."
It is undoubtedly true that all enlightened physiologists agree
that the mind must be put in connection with matter before it
can 1)0 manifested ; still it is equally true that they agree that
matter must be put in connection with mind, before there are any
INSANITY KNOWLEDGE ON THE SUBJECT LIMITED. 341
mental phenomena. A union being necessary to produce a mani-
fest effect, how are we to determine upon which the disease origi-
nally depends ? Yet Dr. Ray stakes his favorite theory upon
" this single fad, little as we know beyond it," and argues that
it warrants the inference that derangement of the structure of the
brain, or of the vital adiom^^ must be followed by abnormal manifes-
tations of the mind ; and that consequently the effect, — insanity, —
indicates the existence of the cause. He has already told us that
there may exist disease of the brain to a fatal extent, without
the mind apparently pai'tici})ating or sympathizing, or being
affected by it. But he speaks of the vital adions being diseased.
These vital actions connected with and constituting mental mani-
festations, are the very phenomena under discussion, and may be
principally mind; at least they partake largely of the mental
force operating as it does through the brain.
The proposition is well established that an injury or disease of
the brain or disease of the body may produce insanity, but facts
also show that this is not necessarily the case. It is also well
known that in many of the worst cases of insanity, a post mortem
examination reveals no diseased structure. Sometimes insanity
arises from a sudden injury to the brain ; at other times it is
cured by the same kind of an injury.
Able physiologists and metaphysicians, like Professors Parker
and Oilman, of New York, while they agTee with Dr. Ray, that
insanity always depends upon diseased physical organization,
like him, they are wholly unable to show wherein this physical
derangement consists.
On the trial of Charles B. Huntington, for forgery, where the
defense was "moral insanity," Mr. Noyes, attorney for the State,
asked Dr. Parker the following questions :
Mr. N. — "When you say that he has no appreciation of his
situation, because of that diseased organization, you mean of
course by that, mental organization ?"
Dr. P. — " No, I do not ; I mean the organization of the brain,
— T mean the disease of the brain."
342 MEDICAL EVIDENCE.
Mr. N. — "Do you mean diseased moral organization?"
Dr. P. — "I mean the diseases of ihQ functions of the brain."
Mr. N. — " What particular organ is diseased ?"
Dr. P.—" The brain."
Mr. N. — "Do you mean to say that his mental organization
was such that he could not resist the impulse or tendency to
commit forgery ?"
Dr. P. — "I do; the 'tendency,' that is the word, sir."
Mr. N. — " That is the point then, upon which you place it, —
that his mental organization was such that he could not resist
the tendency to commit forgery. Now why could he not resist
it?"
Dr. P. — " Because of his diseased organization. I do not
mean mental organization. The organization of the mind I
Jcnoiv nothing ahoidP
Mr. N. — " Do you say physical or mental ?"
Dr. P. — " I say physical."
Mr. N. — " You say so because of his diseased physical organi-
zation ?"
Dr. P.— "Yes."
Mr. N. — "What was the disease of his physical organization
which prevented him from resisting the tendency to commit
forgery ?"
Dr. P. — " / am unable to give you the pathological anatomy of
the case^
Mr. N. — " Is that equivalent to saying that you are unable to
give the reason why he was unable to resist the tendency to com-
mit forgery in consequence of his organization?"
Dr. P.— "No, sir."
Mr. N.— " State what it is."
Dr. P. — " He had certain manifestation — certain symptoms.
I am now speaking of what I saw."
Mr. N. — " My question was : what was there in his physical
organization which prevented him from being able to resist the
tendency to commit forgery ?"
mSANTTY KNOWLEDGE ON THE SUBJECT LIMITED. 343
Dr. P. — " That is the difficulty, the precise nature of which I
can not explain. It is difficult to give a reason.'"'
Professor Gilman being a witness on the same occasion, made
the following statement, after saying that he believed the prisoner
to be insane.
Mr. X. — "How would you characterize that unsoundness?"
Dr. G. — '-I do not know that I can give it any name other
than that it was insanity or unsoundness."
Mr. N. — " Would you say intellectual or moral ?"
Dr. G. — "I think the two things were mixed together. If
this man had no intellectual disturbance, he would appreciate his
position, and not talk of getting out of this as he did. Then, as
to this moral sense, there does not seem to me to be any of it."
Mr. N. — '• Now, whether insanity be intellectual or moral, what
is your view of it?"
Dr. G. — " I refer insanity to physical organization."
Mr. N. — "You take it then that the brain is diseased in all
cases where insanity exists."
Dr. G.— " I think so."
Mr. N. — " Insanity of intellect is that which affects the intellect
alone?"
Dr. G. — "The brain is injured. In one case the intellect is
impaired ; in another the moral nature is destroyed. They are
both insane, — both result from physical change in the brain."
Mr. N. — "x\nd what that physical change is, is entirely im-
possible to tell ?"
Dr. Q.— ''Entirely:'
Mr. N. — " That is not within the compass of human knowl-
edge?"
Dr. G. — " It is not, so far as I hnoiv, within the measure of
the acquired knowledge ivhich we at present have.""
Dr. Forbes Winslow, the able editor of the Psychological Journal,
of London, says : he has examined no less than ten thousand cases
of insanity reported by different authors, with a view to ascer-
tain if there was physical disease as the basis of the trouble ; and
344 MEDICAL EVIDENCE.
the result is perfectly satisfactory to him, of the material cause
of mental derangement : yet, he says : " I do not maintain that
I am in a position to describe the peculiar and specific alterations
which some allege to give origin to that derangement of the
action of thought to which we apply the term insanity. Admit-
ting such a discovery to be beyond the range of finite intelligence,
it does not, in the slightest degree, militate against the material
view just propounded."^
Dr. D. Meredith Reese thinks : " The hrain is now recognized
as the organ or instrument of the mind, in every enlightened
creed, either among jurists, theologians, or physicians. The
mind sits enthroned in its immaterial majesty, employing the
brain, and its continuous elongation in the nerves, not only in
directing all the intellectual, moral, and instinctive faculties, but
in the perception by the several senses, and in the mobility of
the voluntary muscles, in obedience to the will ; and in a subordi-
nate way, by innervation, it may be regarded as enabling every
organ and tissue in the human body to perform its destined
function, in conformity to the vital laws."
Thus the ablest advocates of the doctrine, that insanity depends
always upon disease of the structure of the brain, or of some
other part of the body, are unable to tell what or where it is.
On the other hand, difiiculties of equal, and perhaps greater
magnitude, stare those psychologists in the face who reject the
material explanation, and thereby admit, if not squarely declare,
that the immaterial, immortal essence of pure thought may be
subject to disease.- That this Godlike principle is liable to become
diseased like the grosser parts of the singularly intricate com-
bination we call the physical man. Is not this contrary to our
conception of that wonderful spirit that thinks within us ? If the
spiritual principle is subject to disease, why not to death, — to
complete destruction or dissolution, the natural result of disease ?
' Journal of Psychological Medicine, Vol. 7, 212.
2 See Dr. Monroe's Remarks on Insanity, etc., London, 1850.
INSANITY KNOWLEDGE ON THE SUBJECT LIMITED. 345
^ How can that subtle, mental essence, which has neither members
nor parts, be disordered ? How can the immortal principle
within us decay ? It can not be ; disease, disorder, decay, all
belong to the body, and to the body only ; and consequently we
must place the essential seat of insanity in the body, not the
mind."^
It does not, however, follow conclusively that because mind is
immaterial, it can not become diseased in itself, nor does this view
render the immortality of the soul less probable and true.
Sir Benjamin Brodie, Bart., D. C. L., the distinguished surgeon,
physiologist and psychologist, says : " I entirely agree with you
in the opinion that we must admit the existence of the Deity as
a fact well esbiblished as that of the law of gravibition, and that
in doing so, we must further admit that mind may and does exist
independently of bodily organization. Be it also admitted that
mind, in its humblest form, is still mind, and that immeasurable
as the distance between them may be, it must, nevertheless, be
regarded as being of the same essence with that of the Deity
himself For my own part, I find no difficulty in conceiving the
existence of mind independently of corporeal organs. It seems
to me, the best writers on mental philosophy have erred in con-
sidering the mind too abstractedly, and in not taking sufficiently
into the account the physical influences to which it is subjected. I
am aware that mental derangement may in many instances be
traced to moral causes as its original source, and far be it from
me to assert that the one indivisible percipient thinking being,
which each of us feels himself to be, may not be in itself liable
to changes, independently of any previous change in the material
structure with which it is associated."'
Insanity may not be either a disease of the body or of the
mind, but may involve both. If this is not the true view of the
matter, how is it that the disease is more frequently cured by a
^ Prof. Gillman's Introductory Address on the Relations of the Medical and
Legal Profession, p. 18.
2 Mind and Matter, pages 40, 95.
346 MEDICAL EVIDENCE.
judicious combination of moral and medical treatment, and
almost always remediless by unassisted nature ?
An able writer says : " It is not a purely corporeal disease,
like one of the nervoses; it is not a nervous affection merely,
but a nervosis, and something more; neither is it purely a
mental afi'ection, or disease. Both mind and body are at fault.
According to the views of Feuchterleben, it is their relation that
is diseased, — of the body to the mind, so that perception is mor-
bid, — of the mind to the body, — so that volition is disordered.
From which, then, does that disturbed relation proceed, which
when established, becomes reciprocal ?" * * * "I repeat,
that insanity is not, strictly speaking, to be termed either a
bodily or a mental disease, — that it is a disturbed reciprocal
relation of mind and body ; but that, in its origin, it is sometimes
a mental, sometimes a bodily disease."^
Dr. Carpenter, the distinguished English physiologist, says:
" The degree in which the operations of the mind are dependent
upon its material instruments, is a question which can not be
regarded as conclusively determined by scientific evidence alone,
and it has little practical bearing on physiological research. The
doctrine usually regarded as having the best Scriptural basis, —
that the mind has an existence altogether distinct from that of the
body, — is attended with several difficulties, of which those arising
from the phenomena of insanity are perhaps the most important.
On the other hand, the opinion held by some, that mental phe-
nomena are the mere result of material changes, appear to involve
difficulties at least equal, among which may be noticed, the con-
sciousness of personal identity, preserved throughout the con-
tinued and rapid changes to which the nervous system is subject.
The assertion, however, that physiological operations can not be
the result of material changes, is based on the assumption that
we know far more of the essential character of both than is
1 Robert Jameson, M. D., Professor of Medical Jurisprudence in the University
of King's College, Aberdeen.
INSANITY KNOWLEDGE ON THE SUBJECT LIMITED. 347
admitted by the best metaphysicians to be the case regarding
either. This is a question tvhich scarcely comes tvithin the boun-
daries of human knowledge.
Thus we see, at the very threshold of investigation on tliis
subject, that the metaph}sician and pathologist are unable to deter-
mine satislactorily the nature of the cause or the nature of the
effect they witness. Though enthusiastic, and anxious to press
up directly into this wonderful and luminous temple, where thought
dwells, they hear a voice like the voice of God, saying : " Put
off thy shoes from oif thy feet, for the ground whereon thou
standeth is holy ground."
Not only at the outset do difficulties arise, but they deepen
and multiply constantly at every step, in the investigation of
insanity. These difficulties form an essential element in determin-
ing all questions of insanity. It is because of these difficulties,
that the great labor and study bestowed upon them by the medi-
cal profession, have proved so fruitless. It should be no reproach
however, to this great profession, that because it has sunk many
shafts with great skill, labor and perseverance, that the deep and
extensive mine is still hardly reached, and to a great extent unex-
plored.
There is a vast difference between arranging sanitary insti-
tutions and favorable external circumstances for the insane man,
and grappling with the invisible, intangible, ever varying spirit
of insanity itself Much has been accomplished in the former,
nothing comparatively in the latter.
The various eccentricities of sane men, — the diveisity of
motives influencing their conduct, and the cunning of the insane,
greatly embarrass the problem.
The ecc( ntricities of genius in particular, so much resemble
insanity, who can, without long obser\ation and the careful weight
and consideration of a series of various acts, determine and ascer-
tain which is the normal and which the insane state ?
Knaggs, in his work on unsoundness of mind, says : " There
was an old man well known in London during the last century,
348 MEDICAL EVIDENCE.
who was of an ungainly appearance, and subject to occasional
attacks of hereditary melancholy. So inconsistent was he in his
habits, that sometimes he practiced great abstemiousness, and at
other times devoured large meals with brutish slovenliness and
voracity. Sometimes he would persist in drinking nothing but
water, but occasionally drank wine by tumblersful. His income
was far from large, and not of a certain amount, yet he kept a
set of old men and women about his house, whose bickerings and
disaoreements now and then drove him out of doors. He was in
general very loquacious, but has been known to sit in company
and drink a dozen cups of tea, without speaking a s}dlable.
Wlien not engaged in discoursing, it was his custom to keep
muttering to himself In walking he performed strange gesticu-
lations, and would not go in at a door unless he could effect his
entry in a certain preconceived number of steps, and so as to
introduce himself on a particular foot, — turning back and recom-
mencing until he succeeded as he desired. There was a row of
f>osts near his house, which he would not pass without touching
singly, and if he omitted one in the series, he retraced his steps
to remedy the neglect. He hoarded up orange skins for some
mysterious purpose he would never divulge. He suffered remorse
of conscience for having taken milk in cofiee on Good Fiiday. He
believed in ghosts, and went ghost hunting in Cock Lane, and
maintained that he heard his mother calling for him by name in
the world." Was not this man insane? So far from it. Dr.
Johnson was by consent, regarded one of the most vigorous
thinkers of his time, and to-day he is called one of the greatest
sages and ablest writers that ever lived.
The lunatic not unfrequently shows more judgment and cunning
th m the sane. " A short time ago, a parish otfic(>r, from the neigh-
borhood of Middleton, took a lunatic to the asylum, pursuant to
an order signed by two magistrates. As the man was respec'ably
connected, a gig was hired for the purpose, and he was persuaded
that it was merely an excursion of pleasure on which lie was
going. In the course of the journey, however, something occur-
INSANITV KNOWLEDGE ON THE SUBJECT LIMITED. rUO
red to arouse the suspicions of the lunatic with respect to his real
destination ; but he said nothing on the subject, made no resist-
ance, and seemed to enjoy his jaunt. When they arrived at
Lancaster, it was too late in the evening to proceed to the asylum,
and they took up their quarters for the night at an inn. Very
early in the morning the lunatic got up and searched the pockets
of the oiiicer, where he found the magistrate's order for his own
detention, which, of course, let him completely into the secret.
With that cunning which madmen not unfrequently display, he
made the best of his way to the asylum, saw one of the keepers,
and told him that he had got a sad mad fellow down at Lancaster,
whom he should bring up in the course of the day, adding: "He's
a very queer fellow, and he has got very odd ways. For in-
stance, I should not wonder if he was to say I was the madman,
and that he was bringing me ; but \ ou must take good care of
him, and not believe a word that he says." The keeper, of
course, promised compliance, and the lunatic walked back to the
inn, where he found the officer still fast asleep. He awoke him,
and they sat down to breakfast together. " You're a lazy fellow
to be sleeping all day; I have had a long walk this morning,"
says the lunatic. "Indeed," says the officer, "I should like to
have a walk myself after breakfast ; perhaps you will go with
me?" The lunatic assented, and after breakfast they sat out,
the officer leading the way toward the lunatic asylum, intending
to deliver his charge; but it never occurred to him to examine
whether his order was safe. When they got within sight of the
asylum the lunatic exclaimed: — "What a fine house that is!"
"Yes," said the officer, "I should like to see the inside of it."
" So should I," observed the lunatic. " Well, I dare say the}'
will let us through, — I will ask," was the response. They went
to the door; the officer rang the bell, and the keeper whom the
lunatic had previously seen, made his appearance, with two or
three assistants. The officer then began to fumble in his pockets
for the order, when the lunatic produced it, and gave to the
keeper, saying : " This is the man of whom I spoke to you about.
350 MEDICAL EVIDENCE.
You will take care of him ; shave his head, and put a strait
waistcoat on him." The men immediately laid hands on the
poor officer, who vociferated loudly that the other was the mad-
man, and he the officer; but, as this only confirmed the story
previously told by the lunatic, it did not at all tend to procure
his liberation. He was taken away, and became so indignantly
furious that a straight waistcoat was speedily put upon him, and
his head was shaved, secundum arlem. Meanwhile, the lunatic
walked deliberately back to the ian, paid the reckoning, and set
out on his journey homeward. The good people in the country
were, of course, surprised on seeing the wrong man return ; they
were afraid that the lunatic, in a fit of phrensy, had murdered the
officer, and they asked him, with much trepidation, what he had
done with Mr. Stevenson. " Done with him ?" said the madman,
" why, I left him at the Lancaster Asylum, as mad as a fury !"
which, indeed, was not very far from the truth ; for the wits of
the officer were well nigh upset by his unexpected detention and
subsequent treatment.
Further inquiry was forthwith made by his neighbors, and it
was ascertained that the man was actually in the asylum. A
magistrate's order was produced for his liberation ; and he re-
turned home with a handkerchief tied around his head in Heu of
the covering which nature had bestowed upon it."^
There is no standard of health or disease, and so gradually do
they mingle, — mental as well as physical, — that the line between
them is an imaginary one. Who at the close of day can mark
where daylight ends and darkness begins ; or who can tell where
a child passes the line of accountability ? " When do virtue and
vice fade into each other ? Where is the boundary of courage
and rashness, between prudence and cowardice, between frugality
and avarice, liberality and profligacy? A good action is not
distinguished from a bad action by marks so plain as those which
* Manchester, (England,) Guardian ; W. & S. Med. Juris. 95.
INSANITY KNOWLEDaE ON THE SUBJECT LIMITED. 351
distinguish a hexagon from a square !"^ When any or all of
these things can be done, then, and not till then, ma}' insanity be
defined and its boundaries estabhshed. '' Who can mark precisely
the frontiers, the almost imperceptible limits which separate insanity
from sanity? Who can number the degi-ees by which reason
declines and falls into annihilation ? This would be to prescribe
limits to that which is illimitable, to give rules to lolly, to be
bewildered with order, to be lost with wisdom. "-
In cases of sudden or lingering death from poison, the medical
witness, if a toxicologist, is in a field where the landmarks are
well defined, — he has the data to guide him to a reasonable and
a correct conclusion, — he has those tests to direct him, the cer-
tainty of which has been established beyond a question ; his de-
ductions are therefore sound and safe. Courts of justice may
and do act upon his opinions, in these cases, with an assurance
amounting almost to certainty that they are true, exact, and not
theoretical and speculative. So with a great variety of Medico-
legal questions. A post mortem examination will, in many cases,
under the light of science, bring out the truth, and the court
gladly receives it from the medical witness. The criminal may
have poisoned his victim, and the body of such victim ma}- have
crumbled into dust, and scores of years passed over his grave,
when the chemist will sift those ashes and separate the incontro-
vertible evidence of the guilt of the murderer; the court will
pronounce sentence, and justice will be vindicated by the scien-
tific knowledge of the chemist applied to the question.
" How different, however, is the position of the witness, when his
mind is brought to :i consideration of the questions connected with
morbid mental phenomena 1 In his exalted inquiries, he has no
fixed or certain tests, — no iniallible standard, — no well-defined
rules, — no principles of exact science to aid him, — no beacon to
protect him fi'om the rocks and quicksands which beset his
' Hon. B. Macauley, M. P.
2 M. d'Aiiucsseaii, before the Parliament of Paris.
352 MEDICAL EVIDENCE.
course, — no chart to refer to in times of difficulty, — no compass
to guide him in the hour of danger, — no harbor of refuge into
which he can run his fragile vessel when the tempest is howling
and destruction impending. As Medico-legal witnesses, the ob-
stacles with which we have to contend, are often of a grave and
serious character. We have to deal with phenomena, of the
essence or intimate nature of what we know absolutely, positively
nothing. It is our duty to elucidate [»rinciples of belief, — to
unravel motions of action, — to explain erratic conduct the most
anomalous and extraordinary. We have to trace the line which
separates passion, — the subtle and shifting transformations of wild,
ungovernable, impetuous passion, — from the excitement of mania,
and the morbid emotions incident to the minor Ibrms of diseased
mind ; to sketch the varying frontier, the nice and shadowy dis-
tinction, which separates lunacy from malignity, — madness from
brutality ; to point out where folly merges into mental derange-
ment, — where responsibility terminates, and irresponsibility com-
mences ; to distinguish between eccentricity and insanity, — crime
and alienation of mind, — vice and mental derangement, — between
the delusion of the lunatic, and the false conclusions, — the illogical
deductions, — the unphilosophical reasoning of men of sound intel-
lect and of rational understanding, — to separate rhapsodies of the
healthy imagination, and the Arcadian illusion of the poet, from
the morbid conceptions of the fancy :
'Daggers of the mind, — false creations, —
Proceeding from the heat-oppressed brains,'
* those thick-coming fancies,' the products, — the well-recognized,
indisputable symptom of a mind thrown off its healthy balance
by actual cerebral disease.
There is no possibility of our placing the mental elements sub-
mitted to our critical examination in a physiological or test-tube ;
and we can not avail ourselves, in these investigations, of the aid
of the microscope ; there is no mode by which we can penetrate
behind the curtain, or tear aside the veil that divides the material
INSANITY KNOWLEDGE ON THE SUBJECT LIMITED. 353
from the immaterial, — mind from matter; there is no possibility
of our obtaining access to those mysterious chambers where the
spiritual portion of our nature is elaborated ; we have no gauge,
no square rule, by which we can ascertain in all cases, with any
approach to chemical or mathematical accuracy, an accurate idea
of the actual condition of the mind, when apparently under a
cloud. In the elucidation of these points, we are in a great
measure left to our own unaided mental sense, — to the uncertain
guidance of our deceptive experience, and alas! often fallible
judgment."^
The absurd and contradictory classifications or nosology adopted
by different authors upon the subject of insanity, add greatly to
the confusion and uncertainty that surround it; placing the
matter absolutely beyond the reach of the unprofessional. The
extent and minuteness to which these classifications are carried
tend only to embarrass the courts. With them the question is
not as to what order, class or division does the malady belong,
but it is as to the responsibility of the party. " Is he insane ?"
When a court is endeavoring to ascertain whether poison has
been administered, the question is not, " to what class or order
does the article administered belong," but it is, " is the article a
poison ?" So in the investigations of insanity ; the important
point is not as to the species of the disease ; it is, " whether the
party is responsible for his acts ?"
Every writer upon insanity has a system of nomenclature of his
own. Dr. Ray modifies that of Esquirol, and makes it the basis
of his classifications as follows : General divisions, — Idiocy, Imbe-
cility, Mania, Dementia. Idiocy is subdivided into two kinds.
Imbecility is also subdivided into two kinds. Mania is divided
into Intellectual and Affective, and these each into General and
Partial. Dementia he divides into, Consecutive to Mania, and
Senile.
Of these groups he says : " We shall often find them running
> Dr. Forbes Winslow, Editor of the London Journal of Psychological Med.
23
354 MEDICAL EVIDENCE.
into one another, and be puzzled to assign to a particular disease
its proper place ; but since such is the order of nature, we must
make the most of the good it presents, and remedy its evils in
the best manner we can."
The classification of Flemming is still more complex and diffi-
cult. His first divisions are two : imbecility and mental con-
fusion. Imbecility he subdivides according to origin and extent.
Its origin may be congenital, or arise from wounds on the head,
from nervous fevers or epilepsy, or from old age. As to extent,
it may be limited imbecility, and this he divides up into three
kinds : weakness of memory, imbecility of the deaf and dumb,
and imbecility of the blind; or there may be general weakness
of mind. Mental confu.^ion he subdivides into disorder of tempera-
ment, disturbance of the understanding, and general depravity.
Disorder of temperament he divides again into six kinds. The
symptoms of the first order are irritability, proneness to agitation,
irascibility, excessive disgust, etc. The characteristic of the second
kind is, "being an anomalous condition of particular states of
feeling, inclination, and impulses." This is again divided up into ;
1. Cases of "sadness, fear, dread, homesickness," etc.; 2. That
of "hilarity, recklessness of manner, raillery, proneness to see
all things in the most vivacious light;" 3. '■^Vacillation between the
two foregoing forms.'''' The third form of disorder of tempera-
ment is characterized by "apparent obtuseness, dull, heavy
reveries and abstractions, indistinct sensation of discomfort," etc.
His second subdivision of " mental unsoundness," consists of
disturbance of understanding. The char.icteristic here is " the
depravity of the physical powers, with a controlling anomalous-
ness of the intellectual faculties,''^ etc. This "anomalousness"
is run out to a very fine point ; I . " The characteristics being
unexpected a[»pearances and rapid subsidence; 2. Febrile de-
lirium ; 3. Drunkenness ; 4. Madness, caused by agit ition of
mind; 5. Confusion of mind in sleep; 6. Somnambulism; 7.
Chronic anoesia ; 8. Remittent anoesia ; 9. Partial anoesia; 10.
Halhicinations ; 11. Eccentricity, etc.; 12. General anoesia, etc."
INSANITY KNOWLEDGE ON THE SUBJECT LIMHED. 355
The third subdivision of mental confusion contains ten or
a dozen other subdivisions.
This classification Wharton and Stille adopt, saying it "is
very valuable, both for the delicate precision of its analysis, and
for the important aid it aflbrds to the nomenclature of forensic
psychology."' This may all be true, but it is so "delicate"
we fail to perceive any advantage that can be derived from such
a classification. It is certainly liberal enough to encompass
within its folds every son and daughter of Adam, sane or insane.
It tends only to render the darkness of the subject more visible.
Then we have, in the "moral" department of the subject, a
subdivision as extensive as are the propensities to commit various
kinds of crime, viz : homicidal mania, kleptomania, pyromania,
aidoiomania, pseudonomania, oikeiomania, suicidal mania, fana-
tico-mania, poHtico-mania, etc. There indeed seems to be a
name for every conceivable kind of mania, except that of maniacal
classification, or insane nomenclature.
The divison of the subject by some late writers into intellectual,
emotional, and instinctive, when well defined and guarded, which
is seldom the case, is less objectionable, because the divisions are
fewer and more natural than the common system.
These divisions and subdivisions being found in all the text
books on the subject of insanity, the attorney has a right to
expect, that when the medical witness comes upon the stand, if he
has given to the subject particular attention, that he will be able
to assign each case to its proper class, order and species; and
when the witness fails to do this, as fail he always must, he is
considered and looked upon as a pretender, not possessed of the
accessible knowledge upon the subject. The witness is mortified,
the attorney is disgusted, and the court and jury are left in greater
doubt upon the issue before them than at the outset of the inves-
tigation.
* W. & S. Medical Jurisprudence, 61.
CHAPTER XXV.
THE POSITION OF THE COURTS UPON INSANITY.
In view of all the doubt and uncertainty that surround the
question of insanity, it seems singular that Dr. Ray, Dr. Gilman^
and other writers upon insanity, should arraign the courts so
critically and severely, because of an alleged delinquency in not
having adopted a certain and positive rule by which an insane
man may not be improperly punished. Dr. Ray and Prof Gil-
man are particularly severe in their strictures upon the judiciary.
Prof Gilman says : '• Can it be doubted that in all its force and
in all its apparent harshness, the proposition is true, that where
this right and wrong test has controlled the administration of the
law, the result has been the perpetration upon the scaflbld of most
cruel murders ? Will any one say that the reckless haste that
denied to poor Bellingham the few^ days necessary to establish his
defense, was ought less than murderous ?
Was the partiality that sent Laurence to the gallows, while
Ross Touchet was spared, any thing but murderous ?
Above all, was the hanging of Thomas Bowler after he had
been, upon due legal investigation, declared insane, and as insane
deprived of the control of his property, aught but murder ?
The law must not continue this already too long catalogue of
judicial murders. The law must not keep in her rusty armory a
test of sanity which every man who has any knowledge of the
subject knows to be vain and futile; the law must not keep this
relic of an unenlightened age by her, to be brought out, as whim,
or chance, or the feeling of the hour may dictate, to slay those
t 35fij
THE POSITION OF THE COURT UPON INSANITY. 357
whom the Almight}', in his mysterious, — most mysterious provi-
dence, — has visited with a disease, compared to which all other and
mere physical diseases are but as nothing. Such beings, instead
of being dragged to the scaflbld or thrust into the prison-house,
should be hallowed by their great misery. The heathen wor-
shipped the tree that had been struck by lightning ; let not
Christian men be found less easily moved to sympathy with
human sorrows."^
Dr. Ray also, is unsparing in his charges against the courts,
while he at the same time admits the slow progress thus far made
in mental aberration. He says : " If the above hasty review of
the judicial opinions and practices that have hitherto prevailed
relative to insanity, left the impression that this disease is as yet
but imperfectly understood, as well in the medical profession as
out of it, an explanation of this fact may perhaps be demanded ;
but as it would be hardly relevant to the present purpose to enter
largely into a discussion of this point, nothing more will be at-
tempted than merely to indicate what seems to have had the
principal share in producing it. To explain the little progress,
comparatively speaking, that has been made by medical men in
the knowledge of insanity, it is too much the fashion to allege
that they have neglected the study of mental philosophy, or that
of mind in the healthy state, which is indispensable to correct
notions on the disordered condition of the mind. So far, how-
ever, is the fact here indicated from being true generally, that
one can not hesitate to say that the result in question has been
owing to the undue account that physicians have made of the
popular philosophy of mind, in explaining the phenomena of
insanity, and that they have failed, in consequence of studying
metaphysics too much instead of too little. While it is admitted
that the knowledge of healthy structure and functions is neces-
sary to a thorough understanding of diseased structure and
functions, there is every reason to believe that the converse of the
1 A Medico-legal Examination of the case of Charles B. Huntington, 23, 24.
358 MEDICAL EVIDENCE.
proposition is equally true; neither can be successfully studied
independently of the other. In the prosecution of psychological
science, this latter truth has been almost entirely disregarded, and
therefore it is that we see the metaphysician looking for his facts
and his theories in the healthy manifestations of the mind, and
directed in his course solely by his own self-consciousness, while
the student of insanity, after collecting his facts with commend-
able diligence and discrimination, amid the disorder and irregu-
larity of disease, resorts to the theories of the former, for the
purpose of generalizing his results, instead of building upon them
a philosophy of his own. Metaphysics, in its present condition,
is utterly incompetent to furnish a satisfactory explanation of the
phenomena of insanity, and a more deplorable waste of ingenuity
can hardly be imagined, than is witnessed in the modern attempts
to reconcile the facts of the one with the speculations of the other.
In proof of the truth of these assertions, it is enough barely to
mention, that the existence of monomania, as a distinct form of
mental derangement, was denied and declared to be a fiction of
medical men, long after it had taken its place among the estab-
lished truths of science, because probably, it was a condition of
mind not described by metaphysical writers. All this, however,
is in accordance with a well-known law of the human mind, which
resists important innovations upon the common modes of think-
ing till long after they shall have been required by the general
progress of knowledge. The dominant philosophy has prevailed
so long and so extensively, and has become so firmly rooted in
men's minds, that they who refuse to tike it on trust, and who
seriously inquire into its foundations, and after finding them too
narrow and imperfect, are bold enough to endeavor to remedy its
defects by laying foundations of their own, are stigmatized as
visionaries, and overwhelmed with ridicule and censure. The
only metaphysical system of modern times which professes to be
founded on the observation of nature, and which really does
explain the phenomena of insanity with a clearness and verisimili-
tude that strongly corroborate its proofs, was so far from being
THE POSITION OF THE COURTS ON INSANrTY. 359
joyfully received, that it is still confined to a sect, and is regarded
by the world at hirge as one of those strange vagaries in which
the human mind has sometimes loved to indulge. So true it
is, that in theory, all mankind are agreed in encouraging and
applauding the humblest attempt to enlargp the sphere of our
ideas, while in practice, it ol'ten seems as if they were no less
agieed to crush them by means of ever}' weapon that wit, argu-
ment and calumny can furnish. In the course of this work the
reader will have frequent occasion to see how the pofiular miscon-
ceptions, — which are too much adopted by professional men, —
of the nature of various forms of mental derangement, have been
produced and fostered by the current metaphysical doctrines, and
thus may have some means of judging for himself, how far the
imperfect notions of insanity^ that are prevalent^ may be attri-
buted to the cause above assigned."^
The learned author would have less of metaphysics and "more
of pathology, — the former failing to solve the great problem of
insanity, he adopts the latter, — attributing insanity, as he does,
wholly to disease of the brain, as if the scalpel could reveal the
hidden sources and springs of insane actions. We f-ar neither
morbid anatomy nor an analysis of the blood, — where Dr. Rush
supposed insanity to be located, — will throw' but a very dim light
upon the subject. Let anatomists and physiologists labor as long
and as hard as Dr. Ray admits metaphysicians have done, then,
and not till then, should they denounce the study of metaphysics
as fruitless, and as laying the ground for false theories and con-
clusions as to the understanding and the treatment, medically and
legally, of insanity.
Dr. Ray, by whose own writings we have shown the want of
definite knowledge upon the question of insanity, commences his
book with a criticism upon the courts, as severe as it is unreason-
able ; and from the assurance and confidence with which he starts
out, we naturally expect that before he closes his laliors he will
^ Ray's Medical Jurispmdence of Insanity, p. 66.
360 MEDICAL EVIDENCE.
set the courts right, by defining the boundaries of insanity accur-
ately, and point out its indices so clearly that they may not err
in future. This, however, he does not do. When he comes to the
troublesome points, — those upon which rest all the dispute and
doubt, — he deals in generalities, leaving the matter really where
he found it, — a terra incognita.
Of the judicial aspect and condition of the question, he says :
" Few, probably, whose attention has not been particularly directed
to the subject, are aware how far the condition of the law relative
to insanity is behind the present state of our knowledge concern-
ing that disease. While so much has been done, within a com-
paratively short period, to promote the comfort of the insane, and
so much improvement has been effected in the methods of treating
theu" disorder, as to have deprived it of half its terrors, it is both
a curious and a melancholy fact, that so little has been accom-
pHshed toward regulating their personal and social rights, by more
correct and enlightened principles of jurisprudence. While
nations are V}'iug with one another in the excellence of their
public institutions for the accommodation of this unfortunate class
of our fellow men, and physicans are every year publishing some
instances of an unexampled proportion of cures, we remain perfectly
satisfied with the wisdom of our predecessors in every thing rela-
tive to their legal relations." And yet, in the same paragraph
there is an admission that "insanity itself is an affection so
obscure and perplexing," that an ample field is required for its
illustration and discussion. After stating " the only difficulty, ^^ —
and it looks like a most radical one, embodying the whole ques-
tion, — "or diversity of opinion, consists in determining loho are
really insane, in the meaning of the law," — or he might add with
more propriety, in the meaning of medical men, — " which has been
content with merely laying down some general principles, and
leaving their application to the discretion of the judicial authori-
ties." At this very spot, hjis always been the great stumbling-
block with the coui-ts as well as with every body else, and from
whence arises all the difficulty, "q/* determining who are really
THE POSITION OF THE COURTS ON INSANITY. 361
insane.'''' The reason of this difference of opinion and difficulty, is
accounted for by Dr. Ray as follows : " Inasmuch as the greatest
possible variety is presented by the mental phenomena in a state
of health, it is obvious, that profound study and extensive obser-
vation of the moral and intellectual nature of man can alone
prevent us from sometimes confounding them with the effects of
disease. It would seem, therefore, an almost self-evident propo-
sition, that a certain knowledge of the mind in its healthy state,"
— that is, each individual mind, — " is an essential preliminary to
the attainment of correct ideas concerning its diseased manifes-
tiitions." And yet he blames and denounces the courts for not
having general, fixed, and hberal rules, on a subject where each
case is unlike all others.
Dr. Ray also complains that while in criminal cases the courts
are too severe, in civil ones they are too lenient, or too ready to
admit the insanity of the party. He says : " we can not but
think that the ends of justice would be better obtained if no
general rule at all were adopted, and every case decided on its
own merits. Where the insanity of one of the parties is per-
fectly well known to the other, or might have been so by the
exercise of ordinary sagacity, a contract between them, except
for the necessaries of life, or comforts and luxuries suitable to his
wealth or situation, should obviously be held invalid, because the
insane party is deprived by the act of Providence of his natural
share of discernment and foresight. It often happens, however,
that a person's insanity is not generally known and is not very
apparent, and in such cases, if it can be proved that the contract
is a fair one and reasonable on the face of it, and was entered
into in perfect honesty and good faith, he certainly should not
be permitted to stultify himself in order to escape its performance.
Neither does his death or interdiction so change the case, as to
render it proper for his heirs or guardians to do that which he
could not do for himself Much as the law is bound to protect
the interests of the insane, it is no less required to protect those
who deal with them, unacquainted with their mental condition.
3G2 MEDICAL EVIDENCE.
It as often happens, that the same party suffers from the avoid-
ance of the contract, as that the insane or his heirs do from its
validity ; and nothing can be more clearly unjust than the appli-
cation of a maxim or general rule that favors only the interests
of the unsound party.'" In the well marked cases of insanity, in
both Civil and Criminal Jurisprudence, " where the insanity of
one of the party is perfectly well known to the other, or might
have been so, by the exercise of ordinary sagacity," there is no
great difficulty in determining the rights and responsibilities of
all parties concerned ; but in criminal as in civil cases, the diffi-
culty arises where the symptoms are indistinct, — not well marked,
" for it often happens, that a person's insanity is not generalh^
known and is not very apparent,''' according to Dr. Ray himself
In discussing this question, one of the errors of Dr. Ray con-
sists in taking the ruhngs of a particular court, in an individual
case, and considering it a general rule, applicable to every case, —
or so applied by the courts in all cases. He does not seem to be
aware that judges always confine themselves as closely as possible
to the very points made before them in the particular case, and
that the reports generally give the case in brief, leaving all but
the very points at issue out, or untouched. Mr. Bishop, an able
writer upon Criminal law, says : "It is not easy to distinguish the
legal principles which are immutable, from those views of facts
of insanity which are open to inquiry in each particular ciise. It
should also be remembered that the various phases and manifes-
tations are next to infinite in number. No reason indeed
appears, why they may not be even more numerous, and certainly
more difficult to be understood, than the diverse qualities and
phenomena of sound minds."^
While there is so much acknowledged difficulty and doubt
surrounding this whole subject among psychologists and medic.il
men generally, in whose especial keeping the question is supposed
* Ray on Insanity, p. 11.
* 1 Bishop's Criminal Law, 254.
THE POSITION OF THE COURTS UPON INSANITY. 363
to rest, can it be reasonably expected that the courts can have
well-established and settled rules upon the sul)ject, by which to
determine correctly questions of insanity, — that they will take
a higher position than the medical profession itself? Is it just,
that judges should be censured for not knowing where, in every
case, to draw the line of accountability, if those who make the
study a specialty are unable to determine it ?
When psychologists and pathologists will establish certain
rules by which insanity and its extent may be surely known,
the courts will not be slow in applying those rules to the relief
of every one laboring under the malady, from the punishment
of crime. Judge Capron, in his charge to the jury in the
Huntington case, truly said : " You, doubtless, need not be told,
gentlemen, that the law holds no person bereft of reason, respon-
sible for his acts. Deprived of mind, man is but an automatic
machine ; and human courts in holding him, when thus afflicted
acquit of guilt, do but humbl}^ and obscurely imitate the perfect
justice of Deity. Insanity, or mental alienation, has from time
immemorial received the attention of the civil and criminal
tribunals of all enlightened governments; able professors in all
the learned professions, and other profound scholars have studied
and examined the structure and functions of the human system,
the laws and operations of mind, the relations of each to the
other and their mutual influence as a united organism, and have
deduced results and demonstrated their correctness by practical
illustration and logical deductions from established data ; these
results the courts have never failed to sanction as soon as their
learned authors had agreed among themselves on the su})ject, and
practical experience had attested their certainty. Acting in this
spirit, the theories of the schools on the subject of insanity, as
approved by the majority of the learned in that department of
science, have been from time to time recognized by the courts,
and placed among the rules of evidence and law." Xo special
class of cases, perhaps, has occupied so much time in the courts
as that of insanity, and no class of cases has been heard and
364 MEDICAL EVIDENCE.
examined with more patience, anxiety, stern and earnest endeavor
to arrive at truth by judges, than when this plea has been made
by the defense : so anxious have the courts been, that when any
doubt existed as to whether the conviction was right, a new trial
has been granted or the old one continued. The case of Abner
Rogers was thus continued. The courts are ever merciful. Lord
Kenyon, in Hadfield's case, said : " Insanity must be made out to
the satisfaction of a moral man, meeting the case with fortitude
of mind, and knowing the anxious duty he has to discharge ; yet
if the scales hang tremulouslij^ throw in a certain 'proportion of
mercy in favor of the prisoner.^"^
Parker, C, J., of New Hampshire, in one of his charges to the
grand jury, says : " The public papers, in giving reports of trials,
often say, 'the defense was, as usual, insanity,' or make use of some
other expression, indicating that this species of defense is resorted
to, in desperation, for the purpose of aiding in the escape of crimi-
nals from justice. Such opinions are propagated in many instances
by those whose feelings are too much enlisted, or whose ignorance
respecting the subject is too great, to permit them to form a
dispassionate and intelligent judgment, and they have a very
pernicious tendency, inasmuch as they excite the public mind,
and the unfortunate individual who is really entitled to the
benefit of such defense, is thereby sometimes deprived of a fair
and impartial trial. They tend to make the defense of insanity
odious, to create an impression against its truth in the outset,
and thus to bias the mind of the jury against the prisoner, and
to induce them to give httle heed to the evidence, in the very
cases, where the greatest care and attention, and impartiality are
necessar}^ for the development of truth, and the attainment of
justice.
We all concur in the doctrine of the law, that for acts com-
mitted during a period of insanity, and induced by it, the party
is not responsible ; that when the criminal mind is wanting, when.
1 27 Howell, St. Tr. 1354.
THE POSITION OF THE COURTS ON INSANITY. 305
instead of being guided by the reason which God bestowed, the
individual is excited and led on by insane fury and impulse, or
by the aberrations of a wandering intellect, or a moibid and
diseased imagination, or a false and distorted vision and percep-
tion of things, punishment should not follow the act as for an
offense committed; that when the faculty of distinguishing
between right and wrong is wanting, the individual ought not to
be held as a moral and accountable agent. As well, nay, much
better, might we, as was formerly done in France, institute prose-
cutions against the brute creation for offences comniitted by them,
and hang a beast for homicide, than to prosecute and condemn
a human being who is deprived of his reason ; for in such case
there is no hope of a restoration to a right mind, and a reinstating
"of a fellow citizen, who has been once lost to the community, in
the rights and aflections of humanity. But if we imbibe the
idea that instances of insanity are very rare, — that derangement
exists only when it manifests itself by incoherent language and
unrestrained fury, — that the defense, when ofiered, is probably
the last resort of an untiring advocate, who, convinced that no
real defense can avail, will not hesitate to palm off a pretended
derangement to procure the escape of his client from merited
punishment, — if in this way we steel our hearts against all
sympathy, and our minds against all conviction, it is of little avail
that we agree to the abstract proposition, that insanity does in
fact furnish a sufficient defense against an accusation for a crime.
There are undoubtedly instances where this defense is attempt-
ed from the mere conviction that nothing else will avail, — cases
where the advocate forgets the high duty to which he is called,
and excites a prejudice against the case of others, by f^it.mpting
to procure the escape of a criminal under this pretence out such
cases are truly rare and usually unsuccessful."
Thus the courts talk and act upon the subject of jsanity.
Notwithstiinding this relation of the courts to asanity, and
their practice under this relation, they have been constantly
charged, both by writers on Medical Jurisprudence and by
366 MEDICAL EVIDENCE.
counsel who defend on this ground, with being prejudiced against
the plea of insanity, even when well taken, and that such defense
is heard with impatience. It is doubtful whether a single work
on Medical Jurisprudence can be found where this complaint
is not reiterated against the courts ; and it forms the staple in
the plea of almost every attorney who may have charge of a
defense on the ground of insanity. This charge has been made
so often, no one seems disposed to dispute it ; yet the complaint
is unjust and groundless.
CHAPTER XXYI.
INSANITY— THE MEDICAL WITNESS— THE COURTS.
While, as we have seen, the most candid and able medical
men of both continents admit, that comparatively little is known
as to the essential elements of insanity ; it is not surprising that
the courts should be troubled in determining who are non compos
mentis, and that their history on this point should present some
conflict, — often only apparent, — of decisions, and that writers
upon Criminal law should complain that the medical profession
have not given to the courts sufficient data upon which they can
act intelligently, or from which can be deduced general principles
of law.
The distinguished author and physician. Prof D. Meredith
Reese, of New York, frankly acknowledges that the courts
and counsel defer to and depend upon the medical profession
for authority upon insanity. He says : " The bench and bar
have everywhere deferred to medical testimony, in all questions
of forensic medicine ; and especially in the jurisprudence of
insanity. No man in any civilized country can be confined in
an asylum, abridged of his liberty, deprived of the control of
his property, or released from his responsibilities to Civil and
Criminal law, without the judgment or testimony of medical men,
as to the fact of his being non compos mentis, or of ' unsound
mind,' in the language of the law. The courts and juries every-
where rely upon physicians for their guidance in all such ques-
tions. And we owe it to this deference everywhere extended to
our profession in these important cases, to see to it, that the
administration of justice is not embarrassed by the incompetency
of our representatives, for lack of adequate instruction being
(;r;7)
368 MEDICAL EVIDENCE.
included in the training provided in our medical colleges and
schools.
But how have we responded to the just demand of the legal
profession in this regard ? Dr. Pliny Earle justly complains that
this ' subject of insanity does not enter into the programme of
lectures in any of our leading medical schools. It is safe, per-
haps, to assert that not one in ten of the graduates of those
schools have ever read a treatise upon mental disorders.' Indeed,
the department of Medical Jurisprudence itself is either wholly
ignored in the curricidum of our universities and colleges, or
merely appended to some other chair or chairs, hy way of formal
recognition, and this for the most part stat nominis umbra.
In Germany, this subject attracts greater attention than in any
other country. As early as 1811, the University of Leipsic
founded the first professorship of Psychiatric, which was long
filled by the late Dr. lieinroth. Soon after, the establishment
of clinical teaching in the asylums was sanctioned by government,
and at the instance of the several faculties, attempts have been
made to include such clinics among the requisites for graduation,
on the rational ground that if physicians are to be intrusted with
the treatment of insanity, they should be obliged to study the
disease under capable and experienced teachers. It need scarcely
be added that, with such opportunities in the German asylums, a
multitude of students are found improving them, so that in most
of the institutions for the insane in that country, those physicians
who have been thus clinically trained are employed as superin-
tendents. It is full time that this subject should receive greater
attention in the United States, as it doubtless will do under the
enlightened guidance of the American Association of Superin-
tendents, and the American Journal of Insanity. The demands
of our civil and criminal courts all over the land, for competent
and intelligcnf medical testimony, must he met hy raising up an
army of experts in every department of Medical Jurisprudence,
and especially on this important topic of mental aherration.
Else the ignorance of too many physicians, displayed before the
INSANITY THE MEDICAL WITNESS THE COURTS. oG9
courts and juries, may lead to the undervaluation, if not the
rejection of medical evidence in all such cases."^
There should, therefore, be no general charge brought against
the courts for want of well-settled rules on this subject, until those
learned men who have spent so much time in the investigation of
the disease, shall have agreed upon something themselves, ami
demonstrated its truth to the world; a result they admit, as }et
unattained. When this is accomplished, the courts will not be
slow in putting into practical operation any well-settled tests that
may afford a better chance of determining more satisfactorily than
at present, who is sane and who is insane. Mr. Bishop, a late
philosophical and able writer upon Criminal law, says: "The law
of insanity, which seems simple, is in many respects difficult
and embarrassing, in the attempt more minutely to unfold it, or
apply it to cases arising in practice. In the first place, it is
apparent that there are numerous shades or degrees of sanity
and insanity, blending with one another, and separated by no
very distinct Unes. And since the law regards not small things,
it follows, that not every little cloud, floating over an otherwise
illumined understanding, will exempt from criminal responsibihty ;
nor, on the other hand, will every glimmering of reason, over the
dark waters of a ti'oubled mind, subject the unfortunate, being to the
heavy pains provided for willful wrong doing." He suggests also
another difficulty : " Now the Common law, — the atmosphere of
our political and social existence ; elastic in foriji, but unchanging
in essence ; to the dull mind ever varying, and to the clear one
ever the same, — is often, from the causes stated, so imperfectly
developed in these adjudications, that it is not easy to distinguish
the legal principles, which are immutable, from those views of the
facts of insanity, which are open to inquiry in each particular case.
It should also be remembered, that the various phases and mani-
festations of insanity are next to infinite iu number. No reason,
' Report on Moral Insanity in its Relations to Medical Jurisprudence. Extracted
from the Transactions of the American Medical Association, p. 13 — 15.
24
370 MEDICAL EVIDENCE.
indeed appears, why they may not be even more numerous, and
certainly more difficult to be understood, than the diverse quali-
ties and phenomena of sound minds; and our assurance may well
be humbled when we reflect, that what is called the learned world,
much more the mass of human kind, is still groping darkly upon
the borders of intellectual and moral science. And in consider-
ing the decisions of the judges, we must, in each case, take into
our view both the errors of lacts respecting the disease insanity,
and the malformation of idiocy, under which they labored ; and
also the peculiar circumstances of the case itself, as it appeared
in the evidence." Again : "Beside the intrinsic difficulty of the
subject, there is for this iact, another principal cause, already
alluded to, namely : the peculiar mingling of knowledge from two
distinct professions, the medical and legal, which these investiga-
tions require. An elementary writer, who should bring to the
work transcendent skill in both departments, would do an im-
mense service by a thorough elucidation of the entire question.
Our medical brethren fail to give us the instruction we need,
because they do not understand our wants, and we, in turn, do
not succeed in presenting the legal view in a manner to be rightly
apprehended by them. Dr. Beck seems to have been fully con-
scious of this difficulty. Dr. Ray, on the other hand, in his
excellent and useful volume, has undertaken to treat of the legal
branch, with the medical ; and he has most soundly cudgeled the
judges, on account, chiefly, though perhaps not wholly, of his
own failure to understand them. When the}', for example, have
laid down a doctrine in reference to the particular facts under
consideration, he has taken the doctrine in a general sense ; and
then, by representing how far from just it is when applied to
other circumstances, not under consideration, has shown up the
judges, whom he h is not intended to treat unfairly, in a very
unfavorable light. Thus he has made various adjudications of
the courts, on this subject, appear to be bundles of inconsis-
tencies and absurdities ; and the law, in many respects, as prac-
tically expounded, any thing but just and reasonable. And we
INSANITY THE MEDICAL WITNESS THE COCRTS. 371
need not wonder at this, when we reflect how diflicult it is for
men in any one prol'ession to comprehend what belongs to another,
with which they are entirely unfamiliar."^
Dr. D. Meredith Reese says : " The profession of law, in view
of our reciprocal relations and mutual responsibilities, are entitled
to an intelligible explanation, if not a specific definition, as well
as some reliable test, on which they and we can rely, as charac-
terizing those forms and degrees of insanity which are to be
recognized as exempting from responsibility to the laws of the land,
especially in criminal cases. It is only in the absence of any
medical definition or test, our profession having failed to furnish
either, that the bench has been appealed to by the bar for such
definition or test. Hence, the recorded decisions of the courts in
every country have, with singular uniformit}^, concurred in the
' knowledge of right and wrong,' or the ' knowledge that the act
was contrary to the laws of God and nature,' at the time of its
commission, as the definition and test of sanity for the guidance
of juries. But many in our profession have been ever remon-
strating against these legal decisions as defective and erroneous,
and alleging that such ' knowledge ' is often possessed by the
insane, who are unquestionably such. Still, however, we declare
ourselves wholly unprepared to lay down any other or better rule
of judgment ; nor is there any other definition or test, upon which
the medical profession have ever agreed. Our highest authorities
seem to content themselves with denying that an}^ definition is
practicable, or any test conclusive, although every medical scioHst
and tyro expects his ipse dixit to be infallible, and the bench, the
bar, and the jury are all profoundly to cower before a medical
certificate of insanity, and the dictum of a professional man that
the solemn judgment of the fifteen judges of Great Britain and
the House of Lords, as to irresponsible insanity, is 'absurd and
nonsensical,' must become the law of the land."
It is not easy to over-estimate or to exaggerate the importance
* 1 Bishop's Criminal Law, 254.
372 MEDrcAL EVIDENCE.
of the subject ; — the great difficulties that surround it, — its bear-
ing upon personal liberty and life, — the rights of property and
the safety of society, — all enhance the necessity of approaching
insanity with a true appreciation of the strength of the ramparts
behind which it is intrenched.
What position then can be conceived fraught with more diffi-
culties than that of the medical witness and courts of justice, on
this vexata qucestio. The court depends mostly if not altogether
upon the medical witness, who must sustain the responsibility.
The following paragraph is from Dr. Reese :
" There is assuredly no more important or responsible position
in which any medical man can be placed, than when called to be
examined before a legal tribunal in a case of this character. Nor
is there any duty so difficult to perform, without special prepara-
tion, by a cautious and diligent investigation of the individual
case, and a full knowledge of its history, its etiolog}^, its symp-
tomatology, and, in short, its pathological phenomena, with the
periods and order of their development, together with all the
morbid perversions, intellectual, moral, or instinctive, which he
can observe, or otherwise authenticate. Nor should an opinion
ever be given by a medical man, in any doubtful cise, on a
cursory or brief examination, nor without such special preparation
and repeated interviews as to protect him from his double liability
to imposition and error. The insanit}' may be, and often is feigned
so skillfully as to deceive the very elect ; while, where it exists,
it is sometimes so adroitly concealed by ingenuit}' and artifices
which insanity itself can alone invent, and which none but pro-
fessional exp rts can readily detect, and these only aftei" oft-re-
peated and continuous vigilance and skill. Hence, we can not
be too strongly impressed with the compHcated difficulties and
fearful responsibilities involved in such professional positions."
To the eleni(>ntary difficulties already noticed, which the medi-
cal witness carries with him to the st lud, are to be added the
ignorance and prejudice of relatives ; who are either over-sensi-
tive, — not willing that their friend should be pronounced insane, —
INSANITY THE MEDICAL WITNESS THE COURTS. 373
or, on the other hand, desirous that he should be declared imbecOe
or insane, to eflect some selfish purpose. The court looks on,
and hears with jealousy and doubt, perhaps, what is said, thinking
that the witness may not be able to enlighten it upon a sub-
ject, where theory and false i)hilosophy are so apt to sway the
mind of a witness, — even of good intention, and who really desires
not to mislead the court, but to come to correct conclusions ;
not, however, fully appreciating the insurmountable obstacles in
his way, — the various aberrations, — reflections of the glass through
which he attempts to examine the subject, — and that he may be
mistaken, or become lost in the mazes of uncertainty that surround
the subject. That the courts have at times been illiberal toward
the witness, who, anxious to discharge a solemn and thankless duty,
appearing in answer to a subpoena without inclination or reward, is
not to be denied or justified. Lord Campbell, Lord Chief- Justice
of England, in the Bainbrigge case, alluding to the evidence of
three physicians who had recorded their opinion in favor of the
insanity of the testator, observed, after they had retired from the
witness box : " The medical men who have just been examined
need not be detained any longer ?" Mr. Keeting. — " Certainly
not, my lord ;" and upon Sir A. Cockborn assenting, Lord Camp-
bell remarked: "Let it be fully understood, on both sides, that
the medical men may take their departure ;" and addressing the
three physicians, his lordship continued : " You may go home to
your patients, and I wish you may be more usefully employed
than you have been here !" Again to the jury he said, when
dwelling upon the medical testimony : " We have had, during
this trial, the evidence of three medical witnesses, and 1 think
they might as well have stayed at home, and have attended to
their patients." This occurred in one of those great will cases,
which the English courts are called upon occasionally to deter-
mine. Mr. Bainbrigge was immensely wealthy ; which wealth was
disposed of by will. Upon the issue of the case de[>ended the
vast property. The trial occupied more than a week ; some of
the most illustrious advocates and equity lawyers of England were
374 MEDICAL EVIDENCE.
engaged in conducting the suit. The only question was as to the
sanity or insanity of the testator. The evidence, as usual, was
very conflicting; the assumed facts upon which the alleged in-
sanity was based were conflicting. The medical faculty in the
locality where the case was tried, could throw no hght upon the
subject, and it was therefore deemed necessary to subpoena three
of the best London physicians, who, for experience, science and
sagacity, were supposed to be unexcelled. They heard the testi-
mony, and as experts, stated to the best of their judgment, what
was the condition of the testator's mind, — whether or not he,
when the will was executed, was of a healthy, sound and dispos-
ing intellect. The whole weight, therefore, of this great case,
covering millions, rested upon the shoulders of these three men !
And because they were not competent to make the matter clear,
and solve the problem, they were, as we have seen, driven out of
court amid contemptuous jeers. Owing to some informality, the
verdict of the jury, which was against the will, on the ground of
insanity, was set aside, and the case was to be tried a second
time, and two of these same medical witnesses were subpoenaed to
appear and give evidence again before the same court. In this
way the medical witness has been driven out of court for not
unravelling to the satisfaction of the judge, what no human being,
however learned, is able to make clear ; and then dragged back
again to be put to the rack, for not revealing a secret, so tightly
locked up amid the wonderful arcana of mind.
A Lord High Chancellor of England, on one occasion, while
he expressed no disrespect for the medical witnesses, said: "His
experience taught him there were very few cases of insanity in
which any good came from the examination of medical men.
Their evidence sometimes adorned a case, and gave rise to very
agreeable and interesting scientific discussions ; but after all it
had little or no weight with the jury." This extract shows how
medical evidence, on the question of insanity, is looked upon by
the best minds of the legal profession. They should not blame
the medical witness for not doing what is impossible, unless the
INSANITY THE MEDICAL WITNESS TUG COURTS. 370
witness arrogates to hinisell' :i knowledgo of the subject. If he
pretends to explain and mark out all the boundaries that define
and separate the limits of responsible intelligence and irresponsi-
bility, where the lives of a community or the fate of property
depend upon these limits and bounds, he must do it clearly, or
be disgraced in the eyes of intelligent men. The error is most
frequently in the witness himself pretending to know what
is not known, either by himself or others. He should be able
and willing to tell without a blush for his profession, or without
confusion, what, and how much is still unknown and unsettled in
this department of medical inquiry. Then he will be under-
stood, maintain his own self respect, and secure that of the court
and bar.
Under the unsettled and confused state of this question gener-
ally, it is not to be expected that any definition of insanity can
be given that will be satisfactory. Every writer attempts it, and
in his turn fails. Taylor says: "It is impossible, in Medical
Jurisprudence, to give any consistent definition of insanity. A
medical witness who ventures upon a definition will generally find
himself involved in numerous inconsistencies. No words can
possibly comprise the variable characters which this malady is
Hable to assume. Some medical practitioners have attempted
to draw a distinction between insanity and unsoundness of
mind !"^
Another writer on this subject says : " The term insanity, like
many other words which we are in the constant habit of using,
seems to have lost its original meaning, and to be now generally
taken in too restricted a sense, implying those deviations from
the natural and healthy condition of mind, which consist in
excessive and disproportioned activity of all or of some of its
faculties, and being rarely if ever applied to those states of mind
characterized by deficient energy of action, whether original or
acquired. The term insanity, therefore, does not include all
1 Medical Jurisprudence, p. 615,
376 MEDICAL EVIDENCE.
possible deviations from the sound and healthy condition of the
mind, and is therefore inapplicable to the present purpose."^
Dr. Geo. B. Wood says : " Insanity is a general term, includ-
ing all departments of the intellectual and moral functions, not
forming some other disease, nor an ordinary physiological result
of the time of life. The delirium of fever, the hallucinations of
hysteria, the temporary cerebral irregularities from excessive pain,
or functional disturbance in various parts of the body, the irrational
confidence and hopes of phthises, the equally irrational depression
of dyspepsia, the stupor of apoplexy, and the imbecility of old
age, can scarcely be considered as ialling within the term. Yet
it must be acknowledged that the definition is imperfect and per-
haps necessarily so, as our ideas of insanity are somewhat indefi-
nite, and when precision is wanting in our conception, it can not
be given in words."^
Dr. Wood's list of the symptoms of insanity, includes every
possible phase and condition of both disease and health. He
says : " The question of the existence of insanity in a particular
case is often difficult of solution ; and sometimes it is impossible
to come to a positive conclusion, because no precise line can be
drawn between sanity and insanity, the two conditions running
into each other by insensible gradations."^
Again : " It should be remembered, in our inquiries as to the
existence of insanity, that patients often have lucid intervals, in
which it is difficult or impossible to detect any trace of the
disease ; and a decision therefore should be avoided, until they
have been seen on different occasions ; and sometimes it is neces-
sary fur the physician, in forming his judgment, to rely upon the
testimony of others. In relation to moral insanity and insane
impulse, a just decision is often still more difficult than in cases
of monomania, with one steady illusion. Men so often act
1 Guy'3 Medical Jurisprudence, p. 258.
2 2 Wood's Practice of Medicine, 732-33.
3 Ibid, 757.
INSANITY THE MEDICAL WFINESS THE COURTS. 377
insanely under the influence of misguided opinion and excited
passion, that the physician should be very cautious in coming to
a conclusion. When the tendencies of the irregular feelincr or
impulse are materially to injure the person oi" others, or of the
allected individual himself, the judgment should, perhaps, incline
to insanity, so that the proper guard may be exercised ; if the
tendency be quite innocent, it may, without harm, pass for mere
eccentricity of feeling. The question as to the origin of the
peculiar state of feeling, and the circumstance of its first appear-
ance, should, in this form of insanity, as in monomania, be allowed
some weight."'
Dr. Gilmau says : The first difficulty the medical witness
encounters, is the definition of insanity. " The prudent course is
to decline, saying to the court that it is impossible to comprehend
all the phenomena of insanity within the limits of a definition.
If, however, you desire to give one, be sure that it is the result
of careful and patient thought. If you are quite sure that you
can recollect a definition which satisfied your mind, in your study,
}0u may give it; but rely upon it, if you try to extemporize a
definition, it will be a bad one. The best I have been able to
make is this : " Insanity is a disease of the brain, by which the
freedom of the will is impaired. "-
1 2 Wood's Practice of Medicine, 758.
* The Relations of the Medical to the Legal Profession, p. 20.
CHAPTER XXYII.
INSANITY IN ITS LEGAL RELATIONS.
We proceed to the consideration of the principal points in-
volved in the legal investigation of insanity, with the fact before
us, that the men of greatest eminence at the bar and in medicine;
unite in deploring the want of more definite knowledge on the
subject; and consequently the absence of well-defined and settled
first principles to regulate the judgment of the courts, and the
conduct of counsel and witnesses. Neither court or counsel can
feel the want of settled principles more than the medical witness.
Complexity, contradiction, difficulty, doubt and obscurity are the
rules, if they may be so called, that guide him ! These alone are
certain, and present in every case.
All attempts to deduce general principles in regard to Medico-
legal evidence on this subject of insanity, therefore, should be
made with humility and distrust.
There can be no settled rules for the courts or for the witness
in these cases, from the very nature of the subject. We have seen
that medical men have no definition or rules that fix and confine
insanity, any more closely than the normal mind is defined or
bounded ; and on the court side of this question the twelve judges
say to the House of Lords : " They deem it at once impracticable,
and at the same time dangerous to the administration of justice,
if it were practicable, to attempt to make minute application of
the principles involved in the answers given by them to their
lordship's questions." In their answer they, therefore, narrowly
and closely confine themselves to the abstract question proposed.
Mr. J. Maule delivered a separate opinion on this occasion, and
(378)
INSANITY IN ITS LEGAL RELATIONS. 379
goes even further in declining to lay down any precise rule which
should serve as an unbending precedent. Jn the debate which
called out the expression (rorn the judges, Lord Lyndhurst, the
Lord Chancellor who had tried Oilbrd, (5 Car. & Payne,) expressed
himseir with great doubts as to the propriety of undertaking to
make a universal rule or declaration ol' law in the matter.
But when is Medical Evidence needed upon this question, and
what has been the course adopted by the courts, in regard to it ?
The occasions upon which Medical Evidence is required in
courts of law on questions of insanity, are :
1. When the plea of insanity is urged in extenuation of crime.
2. When attempts are made to invalidate the legal operation
of testamentary disposition of property, on the ground of mental
incompetency.
3. When legal proceedings are instituted to invalidate a mar-
riage contract, on the plea of insanity and imbecility.
4. Cases where medical men are called upon to certify to the
existence of insanity, justilying an interference with the person
of the lunatic, and depriving him of his free agency, either for
the purpose of placing him under treatment, or protecting him
from the commission of acts of violence to himself or others.
In looking over the records of the courts for the last two
hundred years, it would be singular if we did not find much con-
fusion and vacillation on the subject of insanity.
At an early day, so great was the difficulty felt to be, in deter-
mining where the Une should be drawn, it was held that no degi*ee
of insanity should be an excuse for crime, but absolute disposes-
sion of the free and natural agency of the mind. It was no
defense that the party was partly insane, or insane on some sub-
jects. This was the rule laid down by Lord Hale. He says :
'' It is the condition of many, especially melancholy persons, who,
for the most part, discover their defect in excessive fears and
griefs, and yet are not wholly destitute of the use of reason ; but
this partial insanity seems not to excuse them in the committal
of any capital offense. Doubtless, most persons who kill
380 MEDICAL FV^IDENCE.
themselves are under a partial degree of insanity when they com-
mit these offenses, and it is very difficult to define the invisible
line that divides perfect from partial insanity ; but it must rest
upon circumstances, to be duly weighed by the judge and jury,
lest, on the one hand, there be an inhumanity toward the defects
of human nature ; or, on the other, too great an indulgence shown
to gi'eat crimes."^
Collinson s:\ys : " There must be an absolute dispossession of the
free and natural agency of the human mind. The prisoner must
have been incapable of distinguishing between good and evil, and
of comprehending the nature of what he was doing. "^ Shelford,
from a number of adjudged cases deduces the following rule :
" If a person, liable to partial insanity, which only relates to par-
ticular subjects or notions, upon which he talks and acts like a
madman, still has as much reason as enables him to distinguish
between right and wrong, he will be liable to punishment which
the law attaches to his crime." He cites Lord Ferrer's case, 10
Howell's State Trials, 947; Arnold's case, 16 Howell's State
Trials, 764; Parker's case; 1 Collinson on Lunacy, 477 ; Belling-
ham's case, 1 Collinson, 635 ; Offord's case, 5 Car. & Payne,
168 ; Bowler's case, 1 Collinson, 673.
Sir John Mitford said on Hadfield's trial : " Because there is a
natural impression on the mind of man, of the distinction between
good and evil, which never entirely loses hold of the mind, whilst
the mind has any capacity whatever to exert itself, nothing but
total and absolute debility depiives the mind of any man of that.
If conscious of the act, as the result of design and contrivance,
and of the consequence of the act, is there not a moral sense,
which indicates criminal responsibility ?"•''
In 1723, Mr. Justice Tracy, proceeding upon the common
error, that the derangement must be total in its character,
1 1 Hale's P. C. 29, 30.
2 Collinson on Insanity, 473.
3 27 Howell's State Trials, 1290.
INSANITY IN ITS LEGAL RELATIONS. 381
manifesting itself in wild, ungovernable, and incongruous actions,
or in stupid imbecility, and that a person can not appear like
other men in most or many respects, ordinarily, and yet be the
subject of insanity on some particular matters, said : " A man
to be insane, must have no more reason than an infant, a brute
or a wild beast." Another judge proposed a knowledge of the
multiplication table as a test of legal sanity.
But when it began to be suspected that an individual might be
insane on one particular subject, — that he might be a monoma-
niac, — subject to a particular delusion, — and yet appear perfectly
natural and regular in regard to every other, — both medical and
legal men seemed to feel the necessity of a different rule than
that requiring absolute dementia.
To the great Erskine, — a lawyer, — more than to any other
man, perhaps, is the world indebted for having emancipated the
courts from the old stern rule, and having incorporated into our
laws the principle that a person might be insane or deluded on
one subject and apparently sound and regular, — having a knowl-
edge of right and wrong, — on all others. This doctrine he laid
down in the celebrated Hadfield case, where he was for the defense.
He thus jBrst applied successfully in law, that which physicians
had claimed for some time before.
Erskine's main propositions were, that " the most difficult cases,
are where reason is not wholly driven from her seat, but distrac-
tion sits down upon it along with her, holds her trembling upon
it and frightens her from her propriety. Such patients are victims
to delusions of the most alarming description, which overpower
the faculties and usurp so firmly the place of realities as not to
be dislodged and shaken by the organs of perception and sense.
Delusion, therefore, when there is no phrensy or raving madness,
is the true character of insanity, and when it can not be predi-
cated of a man standing for life or death for crime, he ought not
to be acquitted." And again : " To deliver a lunatic from re-
sponsibility to criminal justice, above all, in a case of atrocity,
the relation between the disease and the act should be apparent ;
382 MEDICAL EVIDENCE.
the delusion and act must be connected. I can not allow the
protection of insanity to a man who exhibits only violent passions
and malignant resentments acting upon real circumstances, who
is impelled to evil from no morbid delusion, but who proceeds
upon the ordinary perceptions of the mind."
It will be remembered, that Had field was tried for shooting at
King George the Third, in Drury Lane Theatre, in the year
1800. The eftbrt was ineffectual; but as the attempt was itself
high treason by the law of England, he was tried for his life before
the Court of King's Bench. At his own request, Mr. Erskine,
the ablest advocate at the English bar, defended him, being
assigned by the court. In selecting Mr. Erskine, ITadfield
showed great judgment, and seemed to appreciate his danger.
The defense made by Erskine, was almost superhuman. He
threw more hght upon the dark subject of insanity, than all that
had been said or written on the subject before. Hadfield having
been a soldier in the army, had received a dangerous wound on
the head which made him insane for a time, and he was discharged
from the service. Subsequently he was subject to a partial de-
rangement every year, during the spring and summer months,
which made him imagine that he held intercourse with the Deity,
and was himself a Saviour like Jesus Christ. His actions also
during these periods were frequently the most extravagant and
irrational. He would threaten to kill one of his children, of
whom he was ordinarily very fond, saying he was commanded
to do so by the voice of God; had his wife not prevented it,
he would have probably, at one time, executed his intention.
Between this attempt upon the life of his child and his attempt
upon the life of the king, he frequently talked in an incoherent
and blasphemous manner. He was under a delusion, that like
the Saviour he must fulfill his mission by giving up his hfe, but
that he was not permitted to take it himself, so he must perform
Bome act which would subject him by law to capital punishment.
So he procured a pistol, and having carefully loaded it, he re-
paired to the theatre, and took a station where the king would
INSANITY IN ITS LEGAL REI-ATIONS. 383
be in full view as he entered. Having waited nearly an hour for
the king, when he came, he rose with the rest of the audience on
the king's entrance, and taking deliberate aim, fired, but with no
effect, the slugs going above and below the king's person. He
was immediately arrested, making no attempt to escape ; he said
he knew perfectly to ell that his life ivas forfeited ; that he was
tired of it, and regretted nothing but the fate of his wife ; that
he did not intend any thing against the life of the king ; he
knew the attempt only would answer his purpose. He showed
no appearance of derangement, — spoke with calmness. Many
witnesses testified that in his whole conduct in the theatre, they
witnessed no mark of mental aberration.
In many respects this case is very contradictory in its charac-
ter. The plea of insanity succeeded ; and yet there was much
appearance of cool calculation, and slow, patient deliberation ;
reasoning on the whole transaction correctly from beginning to
end; — evincing a clear understanding of the crime and the
punishment, — even a minute knowledge, — for he said he knew
the attempt alone was sufficient to bring upon him the penalty of
death. He appreciated fully the destitute condition of his family,
and the necessity of an able advocate. He was, nevertheless,
undoubtedly insane upon one point, to wit : that he was a Saviour
like Christ; and what he did was to save mankind, even to the
taking of the life of the king, and was right. He wished to kill
the king, and yet said he did not intend any thing against his
life. Altogether, the case of Hadfield is an important one, and
worthy of study.
To illustrate how an individual might be insane on one subject
and reason correctly on all others, so far as observation could
determine, Erskine related the following circumstance. "I well
remember," says he, " examining, for the greater part of a day,
in this very place, (the Court of King's Bench.) an unfortunate
gentleman, who had indicted a most atfectionate brother, together
with the keeper of a mad-house at Hoxton, for having imprisoned
him as a lunatic, whilst, according to his evidence, he was in his
384 MEDICAL EVIDENCE.
perfect senses. I was, unfortunately, not instructed in what his
lunacy consisted, although my instructions left me no doubt of
the fact ; but not having a clue, he completely foiled me in every
attempt to expose his infirmity. You may beheve that I left no
means unemployed which long experience dictated ; but without
the smallest effect. The day was wasted, and the prosecutor, by
the most affecting history of unmerited suffering, appeared to the
judge and jury, and to a humane English audience, as the victim
of the most wanton and barbarous oppression; at last Dr. Sims
came, who had been prevented by business, from an earHer atten-
dance ; from him 1 soon learned that the very man whom I had
been above an hour ineflectually examining, and with every pos-
sible effort which counsel are in the habit of exerting, believed
himself to be the Lord and Saviour of mankind ; not merely at
the time of his confinement, which was alone necessary for my
defense, but during the whole time he had been triumphing over
every attempt to surprise him in the concealment of his disease.
I then affected to lament the indecency of my ignorant examin-
ation, when he expressed his forgiveness, and said with the utmost
gravity and emphasis, in the face of the court : ' I am the Christ ;'
and so the cause ended."
Another illustration of partial insanity was given by Mr. Ers-
kine on the same occasion, from Lord Mansfield. "A man by
the name of Wood," said Lord Mansfield, "had indicted Dr.
Monroe for keeping him as a prisoner, when he was sane. He
underwent the most severe examination, by the defendant's coun-
sel, without exposing his complaint; but Dr. Battye, having
come upon the bench by me, and having advised me to ask him
what had become of the princess whom he had corresponded with
in cherry-juice, he showed in a moment what he was. He
answered, that there was nothing at all in that, because, having
been, (as every body knew,) imprisoned in a high tower, and
being debarred the use of ink, he had no other means of correspon-
dence but by writing his letters in cherry-juice, and throwing them
into the river which surrounded the tower, where the princess
mSANITY IN ITS LEGAL RELATIONS. 385
would receive them in a boat. There existed, of course, no
tower, no imprisonment, no writing in cherry-juice, no river, no
boat, but the whole the inveterate phantom of a morbid imagi-
nation." " I immediately," continued Lord Mansfield, " directed
Dr. Monroe to be acquitted ; but this man Wood, being a mei'chant
in Philpot Lane, and having been carried through the city in his
way to the mad-house, he indicted Dr. Monroe over again, for the
trespass and imprisonment in London. Knowing that he had lost
his cause by speaking of the princess at Westminster, and such
is the extraordinary subtlety and cunning of mad-men, that when he
was cross-examined on the trial in London, as he had successfully
been before, in order to expose his madness, all the ingenuity of
the bar, and all the authority of the court, could not make him
say a single word about the topic which had put an end to the
indictment before, although he still had the same indelible im-
pression upon his mind, as he signified to those who were near
him ; but conscious that the delusion had occasioned his defeat
t Westminster, he obstinately persisted in holding it back. And
it was only by proving the particulars of the former examination,
that Dr. Monroe established his innocence of the charge."
In this way did Erskine carry his defense through successfully ;
satisfying the court and jury that a person may have great judg-
ment, caution and prudence, — that he may appear to the world
to be sane, and baffle the ablest counsel in demonstrating the
contrary, and still be absolutely insane upon one or more sub-
jects.
Mr. Noyes related the following fact, in his argument in the
Huntington case : " I know an accomplished and intelligent lady,
who thought her feet were made of glass ; she was clearly insane
in regard to that subject. I have seen her, at the dinner table,
move the chairs all out of the way, for fear her feet would be
smashed."
The Rev. Dr. Sprague, in his " Annals of the American Pulpit,"
relates the following facts in the life of the Rev. Daniel Haskell,
a literary graduate of Yale College, a theological graduate of
25
386 MEDICAL EVIDENCE.
Princeton, and was for eleven years settled over a church in
Burlington, Vermont, which office he held with general accep-
tance, when he was chosen president of Vermont University.
After holding this position a short time he became deranged,
from what appeared to be a metastasis of rheumatism. He was
separated for many years from his family, wandering from State
to State, often placed in insane institutions, without relief
His peculiar, partial insanity or delusion was, that he was, as
he supposed, "shut out from a world of hope; a wanderer, where,
he could not tell ; save only of this, that he had not passed the
judgment. At the hight of his malady, there was a time when
he supposed himse'f to have passed out of this state of being;
he knew it, and from this flict all hope for him was gone forever.
Christ and his salvation were only oflered to sinners in the world
where he once was ; — he would not suffer himself to be deceived
by false appearances ; — he would not believe a lie. For a time
he was incapable of business or enjoyment, — his flesh wasted
away, and he had the look of despair at times, but not always.
In his latter years he was cheerful, and though he did not
acknowledge any change of opinion, he lost, in a measure, the
sense of his miserable condition, and found it almost impossible
to realize what he supposed to be true."
Yet, while this delusion held its position inflexibly, all the
other intellectual operations were clear, strong, correct and
active. He would reason and investigate correctly. He was
engaged by schools and lyceums to lecture, and his addresses
were able and instructive, and often sought after for publication.
Associated with another person, he published the Gazetteer of
the United States, and afterward edited McCullock's Geographical
Dictionary. He also was an adept in mechanism, constructing
apparatus for schools, etc.
Dr. Cox, of Brooklyn, who was for some years the pastor of
Mr. Havskell, says : " He was a man of great strength and sound-
ness of mind. — with this single exception; that he was dis-
tinguished for his attainments in science, literature, general read-
INSANITY IN ITS LEGAL RELATIONS. 387
ing, well digested thought and theological erudition ; that he was
a person of deep and genuine piety; beneficent and useful in the
whole tenor of his life. He was a profound mathematician and
astronomer, and occupied much of his leisure time, in the almost
twelve years that I was his pastor, as well as before, in exploring
the wonders of that magnificent science, in preparing and
manufacturing globes, planetariums, instruments, and learned
helps for its prosecution; in studying history, chronology and
antiquities, always engaged, and seeming to al)hor idleness."
''His words were fine, his conversation rather reserved. He
seemed to court solitude rather than society."
Dr. Cox says of the peculiar form of the delusion under
which Haskell labored : " He thought he was dead, since some
definite epoch gone by ; that he was no longer a prisoner of hope
or probationer for eternity; that it was in some other world,
not this, he formerly lived ; that he was a rebel, — selfish, dis-
obedient, antagonistic to his God ; and that God had removed
him into another state, where he was then remaining, although it
was a mystery ! Hence he would not pray. It would be wicked-
ness and impiety for him to attempt it. Sometimes Mr. Haskell
would forget his mania, interested in some object or topic of
conversation. But any reference made to it, or recollection of it
by himself, at once restored his melancholy consistency, as the
solemn contraction of his countenance always evinced. Once,
in conversation, it suddenly thundered, after a very vivid flash
of lightning, interrupting the course of thought and speech.
As he was thus abruptly stopped in the midst of cheerful talk,
one of the company asked him if that was not very much like
real thunder and lightning. The absurdity struck him, and he
said with an involuntary smile : ' It seems very like what I re-
member in the world where I once was.' His mania was quite
incurable. It was indeed the most perfect illustration of mono-
mania, or insanity on one point only, that I ever knew ; on all
other subjects, especially when he forgot, he was sane, sensible,
learned, instructive and engaging. He loved his friends, and
388 MEDICAL EVIDENCE.
seemed ever to have on his spirit a clear and subduing sense of
the ubiquity and supremacy of God."
There can be no doubt that Mr. Haskell was completely
insane on one subject, and at the same time, clear, logically cor-
rect, and strong in all his other intellectual phenomena ; with a
conscience tender, enlightened and morally sound. Dr. Hough,
professor in Middlebury, attests all of this.
How can cases of this kind be accounted for on the theory of
the individuality of the mind and the unity of consciousness?
CHAPTER XXYIII.
THE COURTS— PARTIAL INSANITY— DELUSION.
The term " partial insanity," as used by writers upon insanity,
does not seem to have a fixed and definite meaning. One class
declare, while they admit that there is a state of the mind called
monomania, that the mind being a unit, there is no such con-
dition as partial insanity ; that if the mind is diseased at all, it
is unsound as a whole in every respect.
The efibrt of Erskiue, therefore, though successful in the Had-
field case, did not render his position satisfactory and conclusive
in the opinion of some, so the discussion still goes on.
Dr. Oilman, in answer to a question by Mr. Noyes, on the
Huntington trial, said : " I pronounce Huntington insane. I
make no distinction. I do not believe in a man being partially
insane. There is a state of things which is called monomania,
but I call him insane. According to Lord Brougham, the mind
is a totality.'''' On the other hand. Dr. Willard Parker, as we
have seen, on the same occasion, while agreeing with Dr. Oilman
in most of his views, diflered with him in this, holding that ihere
was such a state as " partial insanity." The English medical
authority is also divided on this question, consequently the legal
state of the question is somewhat unsettled.
The term "delusion," so much used by judges and others,
seems sometimes to mean complete insanity, but generally only
partial or limited dementia. The meaning of the term is not set-
tled. In the case of Drew v. Clark, Sir John Nicholl says : " The
true test of insanity, I take to be the absence or presence of what,
used in a certain sense, is comprehended in a single term, viz :
(389)
390 MEDICAL EVIDENCE.
delusion. In the absence of any thing in the nature of delusion,
the supposed lunatic is, in my judgment, not properly insane."
Lord De-NMAn also says, in Regina v. Smith : " To say a man was
irresponsible, without positive proof of any act to show that he
was laboring under some delusion, seemed to him to be a pre-
sumption of knowledge, which none but the great Creator could
himself possess."
Mr. Chitty says : " The test of insanity, where there is no
phrensy or raving, is the absence or presence of delusion; and
delusion exists whenever an individual once conceives something
extravagant to exist, which has no existence, and when he is
incapable of being reasoned out of that absurd conception. In
criminal cases, therefore, the question is simply adapted to the
comprehension of every juryman, whether at the time that the
act was committed, the prisoner was incapable of judging between
right and wrong, and did not then know that the particular act
was an oftense against the law of God and nature."
Lord Brougham defines a delusion to be " a belief of things
as realities, which exist only in the imagination of the patient."
Sir John Nicholl says : " A delusion is a belief of facts which
no rational reason would have believed." To this last definition
Lord Brougham takes exception, and says it gives a conse-
quence for a definition. Mr. Winslow gives still another definition,
which he thinks is free from the objections to which the above
are obnoxious. " A delusion," he says, " is a belief in the ex-
istence of a something extravagant, which has, in reality, no
existence, except in the diseased imagination of the party, and
the absurdity of which he can not perceive, and out of which he
can not be reasoned." Then again, it has been held that delusion
was not essential to insanity. Lord Campbell, in the celebrated
Bainbrigge will case, said: that ^^ Mania may exist without
delusion^ In extreme cases, the person being insane on all sub-
jects, there is no special delusion, but a general one on matters
of reason. The test, therefore, of a delusion, does not necessarily
differ from that of partial insanity, and it is about as indefinite ;
THE COURTS PARTIAL INSANITY DELUSION. 391
nor is it improbable that the courts have generally intended the
one for the other.
There has, perhaps, been less confusion on this subject in the
American courts, than in those of England. There, the regard for
old precedents and old opinions are a little stronger than in this
country. Our courts, therefore, more readily adapt themselves to
the equity and circumstances of the case than in England, though
goveruel. to a great extent, by the decisions of that country.
This point was ably discussed by W. IT. Seward and John Van
Buren, and thoroughly considered by the court, in the case of
Freeman v. The People, 4 Denio, R. 27. In this case the
court below charged the jury, impanneled to try whether the
prisoner, indicted for murder, was at the time of trial insane,
that they were to decide, "whether the prisoner knew right from
wrong, and if he did not, then he was to be considered insane."
This charge, it was claimed, was erroneous. Beardslev, C. J.,
held ; " That a state of general insanity, the mental powers being
wholly prevented or obliterated, would necessarily preclude a trial ;
for a being in that deplorable condition can make no defense what-
ever. Not so, however, where the disease is partial, and confined
to one subject, other than the imputed crime, and contemplated
trial. A person in this condition may be fully competent to
understand his situation in respect to the alleged offense, and to
conduct his defense with discretion and reason. Of this the
jury must judge : and they should be instructed, that if such
is found to be his condition, it will be their duty to pronounce
him sane. In the case at bar, the court professed to furnish a
single criterion of sanity, that is, a capacity to distinguish
between right and wrong. This, as a test of insanity, is by no
means invariably correct; for, while a person has a very just
perception of the moral qualities of most actions, he may, at the
same time, as to some one in particular, be absolutely insane, and
consequently, as to this be incapable of judging accurately
between right and wrong. If the delusion extends lo the alleged
crime, or the contemplated trial, the party manifestly, is not in a
392 MEDICAL EVroENCE.
fit condition to make his defense, however sound his mind may be
in other respects ; still the insanity of such a person being only
partial, not general, a jury, under a charge like that given by the
court below on this case, might find the prisoner sane, for in
some respects he would be capable of distinguishing between right
and wrong. Had the instruction been, that the prisoner was to
be deemed sane, if he had a knowledge of right and wrong in
respect to the crime with which he stood charged, there would
have been but little fear that the jury could be misled ; for a
person who justly apprehends the nature of a charge made
against him, can hardly be supposed to be incapable of defending
himself in regard to it in a rational way. At the same time, it
would be well to impress distinctly on the minds of jurors, that
they are to gauge the mental capacity of the prisoner, in order to
determine whether he is so far sane as to be competent in mind
to make his defense, if he has one ; for, unless his faculties are
equal to that task, he is not in a fit condition to be put on his
trial. For the purpose of such a question, the law regards a
person thus disabled by disease, as non compos mentis, and he
should be pronounced unhesitatingly to be insane within the true
intent and meaning of this statute.
Where insanity is interposed as a defense to an indictment for
an alleged crime, the inquiry is always brought down to the
single question of a capacity to distinguish between right and
wrong at the time when the act was done. In such case, the
jury should be instructed that, 'it must be clearly shown that,
at the time of committing the act, the party accused was laboring
under such a defect of reason, from disease of the mind, as not
to know the nature and quality of the act he was doing ; or if he
did know it, that he did not know he was doing what was wrong.
The mode of putting the latter part of the question to the jury,
on these occasions, has generally been, whether the accused, at
the time of doing the act, knew the difference between right and
wrong; which mode, though rarely, if ever, leading to any
mistake with the jury, is not deemed so accurate, when put
TI^ COURTS PARTIAL INSANITY DELUSION. 393
generally and in the abstract, as when put with reference to
the party's knowledge of right and wrong in respect to the
very ad with which he is charged.' This is the rule laid down
by all the English judges but one, in the late case of Mc-
Naghton, while pending in the House of Lords. 10 C. & F. 210.
In the case of Oxlbrd, Lord Denman, C. J., charged the jury in
this manner : ' The question is, whether the prisoner was laboring
under that species of insanity which satisfies you that he was
quite unaware of the nature or character and consequences of the
act he was committing ; or, in other words, whether he was under
the influence of a diseased mind, and was really unconscious, at
the time he was committing the act, that it was a crime.' The
insanity must be such as to deprive the party charged with crime,
of the use of reason in regard to the ad done. He ma}' be
deranged on other subjects, but if capable of distinguishing
between right and wrong in the particular act done by him, he
is justly liable to be punished as a criminal. Such is the un-
doubted rule of the Common law on this subject. Partial
insanity is not. by that law, necessarily an excuse for crime, and
can only be so where it deprives the party of his reason in regard
to the act charged to be criminal. Nor, in my judgment, was
the statute on this subject intended to abrogate or qualify the
Common law rule. The words of the statute are : 'No act done
by a person in a state of insanity can be punished as an oflense. '
The clause is very comprehensive in its terms, and at first blush,
might seem to exempt (rom punishment every act done by a per-
son who is insane iqoon any subject whatever. This would, indeed,
be a mighty change in the law, as it would afford absolute impunity
to every person in an insane state, although his disease might be
confined to a single and isolated subject. If this is the meaning ol"
the statute, jurors are no longer to inquire whether the party was
insane ' in respect to the very act with which he is charged,' but
whether he was insane in regard to any act or subject whatever ;
and if they find such to have been his condition, render a verdict
of not guilt}'. But the statute is not so understood bv me. I
394 IVIEDICAL EVroENCE.
interpret it as I should have done if the words had been ' no act
done by a person in a state of insanity, in respect to such act,
can be punished as an offense.' The act, in my judgment, must
be an insane act, and not merely the act of an insane person.
This was plainly the rule before the statute was passed, and
although that took place more than sixteen years since, I am not
aware that it has, at any time, been held or intimated by any
judicial tribunal, that the statute had abrogated, or in any re-
spect modified, this principle of the Common law."
The above opinion was given on the construction of a New
York statute ; yet, as the statute is based on the Common law,
the decision has a general bearing and application, and may be
considered the Common law rule.
It is doubtful whether the rule of the Common law has been
as uniform as intimated by the court; still, at present this is un-
doubtedly the rule of law in England and this country, and has
been since the trial of Hadfield, that if the person is sound on
every other subject, and insane on the one under which the
crime was committed, he is irresponsible.^ Or, as settled in the
Freeman case; if the party is insane or laboring under a delusion
on one subject, and commits a crime not connected with such
delusion, he is responsible.
If the act complained of has been committed under an insane
condition of mind in regard to the particular act done ; in other
words, if the act was an insane act, the prisoner is allowed to
go unpunished, though in every other respect, in regard to all
other acts, he may appear to be perfectly sane. On the other
hand, if he is insane on all other questions, and rational on the
one complained of, — if such a condition is possible, — he is to be
punished. The whole question depends upon the fact, whether
he fully comprehended the moral and civil wrong of the transac-
tion, in regard to the act done.
1 Reg. V. Renshaw, 11 Jur. 615, 616 ; Lord Ferrers' Case, 19 St. Tr. 88G—
946, 947 ; Iladfield's Case. 27 Howell's St. Tr. 1281—1310 ; 4 Barr. 264 : Martin's
Caae, Shelford on Lunacy, 465.
THE COURTS — PARTIAL INSANITY DELUSION. 395
This rule, though much complained of, is nevertheless a
reasonable one under the present state of the subject, and should
be practiced upon until tlie revelations of ph}'siology, pathologv,
or psychology can show it to be wrong, by substituting a better
one, — a thing not yet accomplished. Nor will theoretical reason-
ing remove the difficulty, upon the assumption that the mind
being a unit, it can not be aifected in part, — that all must sufier
together, — that all parts are shadowed by a cloud, however small,
that may chance to pass over one portion of an otherwise en-
lightened intellect. At present, this is only theory. It is an
assumption that the mind is a unit ; it is another assumption that
if a unit, one part can not l)e affected without the whole participat-
ing. It may be true, and it may not. As yet, this theory has
not taken so tangible and positive a shape as to permit the courts
to take cognizance of it as an element upon which they are to act
in protecting society, personal rights, and in the punishment of
crime.
Lord Brougham's opinion, though of great weight, does not
establish the fact of the unity of the mind, and the consequences
claimed to depend upon such unity.
Chief-Justice Gibson charged the jury as follows, in a leading
Pennsylvania case : that of
MOSLER V. THE COMMONWEALTH, 4 Barr. 266.
" A man may be mad on all subjects ; and then, though he
may have glimmerings of reason, he is not a responsible agent.
This is general insanity ; but if it be not so great in its extent
or degree as to blind him to the nature and consequences of his
moral duty, it is no defense to an accusation of crime. It must
be so great as entirely to destroy his perception of right and
wrong; and it is not until that perception is thus destroyed,
that he ceases to be responsible. It must amount to delusion or
hallucination, controlling his will, and making the cominissi(Ui of
the -act, in his apprehension, a duty of overruling necessity. The
most apt illustration of the latter is the perverted sense of re-
396 MEDICAL EVIDENCE.
ligious obligation, which has caused men sometimes to sacrifice
their wives and children.
Partial insanity is confined to a particular subject, the man
being sane on every other. In that species of madness, it is
plain that he is a responsible agent, if he were not instigated by
his madness to perpetrate the act. He continues to be a legiti-
mate subject of punishment, although he may have been laboring
under a moral obliquity of perception, as much so as if he were
merely laboring under an obliquity of vision. A man whose
mind squints, unless impelled to crime by this very mental
obliquity, is as much amenable to punishment as one whose eye
squmts. On this point there has been a mistake, as melancholy
as it is popular. It has been announced by learned doctors, that
if a man has the least taint of insanity entering into his mental
structure, it discharges him of all responsibility to the laws.
To this monstrous error may be traced, both the fecundity of
homicides which has dishonoured this country, and the immunity
that has attended them. The law is, that whether the insanity be
general or partial, the degree of it must be so great as to have
controlled the will of its subject, and to have taken from him
the freedom of moral action.
But there is a moral or homicidal insanity, consisting of an
irresistible inclination to kill, or to commit some particular offense.
There may be an unseen ligament pressing on the mind, drawing
it to consequences which it sees, but can not avoid, and placing
it under a coercion, which, while its results are clearly perceived,
is incapable of resistance. The doctrine which acknowledges this
mania is dangerous in its relation, and can be recognized only in
the clearest cases. It ought to be shown to have been habitual,
or at least to have evinced itself in more than a single instance.
It is seldom directed against a particular individual ; but that it
may be so is proved by the young woman who was deluded by
an irresistible impulse to destroy her child, though aware of the
heinous nature of the act. The frequency of this constitutional
malady is fortunately small, and it is better to confine it within the
THE COURTS PARTIAL INSANITY — DELUSION. 397
strictest limits. If juries were to allow it as a general motive,
operating in cases of this character, its recognition would destroy
social order as well as personal safety. To establish it as a justifi-
cation in any particular case, it is necessary either to show, by
clear proofs, its extemporaneous existence, of an habitual tendency,
developed in previous cases, becoming in itself a second nature.
Now, what is the evidence of mental insanity in this particular
case?
1. — The prisoner's counsel rely on his behaviour, appearance,
and exclamations at the time of the act, or immediately after
it. According to one witness, his conduct was that of reckless
determination, evincing an unsound mind. ' I d(» it,' he repeated
three times, it is said, like a raving maniac. But you must recol-
lect that, to commit murder, a man nmst be wound up to a high
pitch of excitement. None but a butcher, by trade, could go
about it with circumspection and coolness. The emotion shown
by the prisoner was not extraordinary. He seemed to know the
consequences of his act, — was under no delusion, — and was self-
possessed enough to find a reason for the act, that reason being
her alleged ill-treatment.
2. — It is urged that the want of motive is evidence of insanity.
If a motive were to be necessarily proved by the Commonwealth,
it is shown in this case by the prisoner's own declaration ; but a
motive need not always be shown, — it may be secret; and to
hold every one mad whose acts can not be accounted for on the
ordinary principles of cause and effect, would give a general
license. The law itself implies malice where the homicide is
accompanied with such circumstances as are the ordinary symp-
toms of a wicked, depraved and malignant spirit, — a heart regard-
less of social duty, and deliberately bent on mischief
3. — ^But it is said there is intrinsic evidence of insanity from the
nature of the act. To the e}'e of reason, ever}"^ murderer may
seem a madman ; but in the eye of the law he is still responsible.
4. — His trip to Pittsburgh and voyage to Germany, it is con-
tended, have not been accounted for, except that he expected to
398 MEDICAL EVIDENCE.
get property in the latter, but did not; and there is an equal
obscurity about the motive of his setting fire to his wife's pro-
perty, — her barn, I think it was; but these things do not sho v
an insanity connected with his crime. The only circumstance
which seems to point to a foregone conclusion, is the repeated
visions he had after he started for Pittsburgh, of his wife and her
grand-daughter, whose throat he also attempted to cut, standing
at the foot of his bed. This foreboding may tend to show a
morbidness of mind in reference to this particular subject ; but it
is for you to say, — keeping in mind the fact, that, to constitute
a sufficient defense on this ground, there must be an entire de-
struction of freedom of the will, blinding the prisoner to the nature
and consequences of his moral duty, — whether these circum-
stances raise a reasonable doubt of the prisoner's responsibility."
Thus the law is laid down by the courts of New York and
Pennsylvania, and they are followed perhaps by all the other
States. The rule is general, and from the nature of the subject
must necessarily be so. No arbitrary rule more definite than
this would be at all practicable. And even such as it is, as
explained and understood by the courts, it can not be apphed
strictly. What is said about " right and wrong," does not mean
that a knowledge or admission barely, that the act was a bad or
unlawful one, will warrant conviction in every case, — the whole
character of the act must be rationally comprehended, or the
party is not amenable to law.
The able editors of the Americal Journal of Insanity, who are
always clear and correct in what they say upon the subject of
insanity, make the following sensible suggestions : " The sanity
or insanity of one, whose case is under legal investigation, is
his responsibility or his irresponsibility, — rather his punishability
or non-punishabiUty, — his capacity or his incapacity. The medi-
cal man does not form an opinion in such cases, apart from these
considerations ; and he could not if he would. They are foremost
with him in all c;ises presented ; — are primary and inseparable
from other considerations, and enter into all his plans of treatment.
THE COURTS PARTIAL INSANITY DELUSION. 399
Insanity, in a purely medical sense, is a hfjpothettcal form of
bodily disease. To the term are referred only those cases iu
which mental derangement exists, and in which no organic basis
or other proximate cause can be determined. Thus, softening of
the brain, sun-stroke, fracture of the skull, fevers, and alcoholic
and other poisoning, are not insanity, though more or less con-
nected with derangement of mind. How can it for a moment be
thought that this' classification has any thing to do ^^ ith the ques-
tion of responsibility in any case. A practical acquaintance with
the phenomena of mental disorder, and the hearing of facts in
the medical history of a case, can only be brought to bear directly
upon the prime question of responsibility. Insanity, in any case,
is irresponsibility, or incapacity, in such a case. x\nd }et we are
asked to define insanity before the courts ! We may be thought
hypercritical in attaching so nmch importance to the theory and
classification of insanity, but we remember for whom these
papers have been written. The mass of medical practitioners can
have but little practical experience of mental disease, and will be
greatly influenced by these theoretical divisions. It is not cer-
tain that the medical witnesses, in the liLintington case, would have
made their unfortunate error in diagnosis, but for the admission
by authorities of a ' moral insanity,' which they could not appre-
hend in the sense given it by experts in insanity. Although we
are convinced that this theory would not have warped the esti-
timate of this, or perhaps any case of questioned insanity, by their
distinguished friend, who is its chief advocate in this country."^
In determining the responsibility of a person, it is necessar}'
to determine what extent of devi;jtion from the standard of a well-
balanced mind there may be, before the responsibility of the party
is lost. Each person, too, must be judged by his former self)
rather than by the mental character of another, as he may have
eccentricities peculiar to himself
^ Joarnal of Insanity for April, 1859.
CHAPTER XXIX.
MORAL INSANITY.
We have had occasion already to allude to that specious
and dangerous form of insanity, or sentimentality, known and
dignified by the name of "moral insanity." The importance
given to it by two of the first physicians in the country, and the
use made of it by one of the ablest criminal law3^ers in New
York, in the celebrated Huntington case, render it a phase of the
great subject of insanity worthy of attention and discussion.
The history of the Huntington case is full of interest, whether
we consider the immense amount of money involved, the charac-
ter of the defendant, the ability of the prosecution, or the singular,
bold, and magnificent defense.
Huntington had lived a most reckless life in New York.
Always ready for a venture, no matter what it was ; — laying out
cemeteries in the vicinities of large towns and cities, — getting
charters from State legislatures and establishing banks, — setting
up a great laundry upon the Isthmus for the purpose of doing up
the washing of all who passed over that thoroughfare, — and finally
establishing himself in Wall Street as a banker or broker, doing
business with the sharpest financiers in the world, to the amount
of several millions of dollars, upon forced pcqyer. When at the
hight of these magnificent operations, living in the most costly
and extravagant style, — having the fastest horses, the finest fur-
nished houses, etc., he is arraigned for the crime of forgery. The
proof is overwhelming, and the amount incredible, and the defense
is " moral hisanity." " Two physicians of the first rank in their
profession learn the history of the prisoner from his relations
MOO )
MORAL INSANITY. 401
and counsel, examine him briefly, and under unfavorable circum-
stances, two or three times while in prison, listen to the evidence
at the trial, and afterward testify to his insanity."
Never before had moral insanity assumed a character so bold
and dangerous. Never was a man defended with greater ability.
We consider it proper, therefore, to devote some attention to
the subject.
The leading advocates of the theory of moral insanity in this
country, are Dr. Ray, — who may be properly regarded as its
champion, — Prof Gilman, of New York, and Dr. Coventry, of
Utica, New York. These distinguished writers urge moral insanity
as an excuse or defense for crime ; and they call upon the courts
to suspend " the perpetration upon the scaffold of most cruel mur-
der," charging that its practice presents a ''long catalogue of
judicial murders."^ This stern and serious charge against the
judiciary, coming as it does from so high a quarter, merits, and
requires candid consideration. Moral insanity is a state of mind,
as described by its advocates, where there is no illusion, nor
affection of the intellect, unless it may arise from an inscrutable
disease of the brain, but in which there is simply a perversion
of the moral sentiment ; the individual laboring under an impulse
to perform certain extravagant and outrageous acts, injurious to
himself and others, — such impulse being u'resistible, so that he is
tx) be held as being no more responsible for his acts or conduct
than an ordinary lunatic, or infant.
Prichard's definition is : "A disorder of the moral affections
and propensities, without any symptoms of illusion or error, im-
pressed on the understanding." Again, it is defined by its advo-
cates as " A perversion of the natural feelings, affections, inclina-
tions, temper, habits, moral dispositions, or impulses, without any
illusion or hallucination, the intellectual faculties being more or
less weakened or impaired."
The application of principles like these to criminal jurispru-
^ Dr. Gilman.
26
402 MEDICAL EVIDENCE.
dence, seems impmcticable and unsafe, while the present standard
of psychological science is so low.
The Divine law alone takes cognizance of motives; human
law is limited to acts, and to motives only, as developed by acts.
With the refined theories of ethics, human law does not, and can
not contend. It endeavors to arrive at the intent of the actor by
the act, and its attendant circumstances, the result therefore may
not be certain, for the agencies involved are falhble. The Divine
Judge is not limited to an overt act in determining the intent, —
the purpose, the motive, the hidden thought, being at once seen
by the Omniscient eye. His judgments alone are without possi-
bility of error.
The law has its subtelties, but none so indefinite and shadowy
as that involved in " moral insanity." If this theory is to be fol-
lowed in this department of Criminal law, the courts launch at once
upon an unexplored and unknown sea, without chart or magnet.
The American Journal of Insanity, — a journal that has, from
the beginning, steadily and ably borne up against the powerful
attempts that have been made to incorporate this new rule of
criminal responsibihty into our jurisprudence, says: "Moral
insanity, as commonly understood and defined, does not fall within
the precedents of the Common law, and is not provided for by
statute, unless it be under the general term, ' insanity.' It may
be as palpable to the eye of Omniscience, and possibly, to the
scrutiny of an expert, {expers expcrtissimus, he must be,) as
many forms of physical disease; but to legal tribunals it is
shadowy and intangible; — its very name of 'moral insanity'
seems to deprive it of legal recognition as a disease within the
compass of exact definition and discrimination ; and it is even
doubtful whether it be a disease; and, therefore, if tolerated as a
plea of irresponsibility, it would, like charity, cover a multitude
of sins. Almost any man may satisfy his mind, if not his con-
science, — a sane man, perhaps, the most readily, — that he has
been surprised into a crime by some strange and irresistible
impulse, some demoniacal instigation, some fatal propensity, or
MORAL INSANITY. 403
some unaccountable phrensy, that he could not master for its
suddenness and its force. Such casualties may be, and doubt-
less are; but God only can judge of them. Human laws can
not: their nicest refinements are too gross for such subtilties.
Beside, much of moral insanity, in the popular understanding
of the term, is the want of discipline, and of habitual self-con-
trol ; — nature uneducated and unchecked is, or very soon l)ecomes
the spiiit of Cain, — a propensity to something wrong, — to theft,
to perjur}^, to homicide, to forgery. If such impulses, instiga-
tions, propensities or phrensies are permitted to shield offense
against punishment, St. Giles' and the Five Points might surfeit
the Criminal courts with pleas of that character, the result, not of
disease, but of habit not absolutely uncontrollable, — of such
defective discipHne, and of such voluntary indulgence in vicious
courses as have deadened the moral sense, and confounded the
appreciation, without obliterating the knowledge of right and
wrong, much less the power of choosing between then."*
The same high authority upon matters of insanity says : '• The
exercise of any discretion in criminal cases, for the tempering of
justice to society, with mercy to the accused, is legally confided
to the executive authority, and not to the tribunals ; subject to
the practical qualification, that juries sometime leave no room for
the exercise of any discretion but their own, by finding a verdict
that absolves the accused. A humane jury will, in cases appeal-
ing to their sympathy, and showing, what in France are called
^extenuating circumstances,' seize upon the most trifling evi-
dence of insanity to justify a verdict in consonance with their
sense of humanity, rather than with the rigid ness of the law.
Juries are usually above law, when law itself is not flexible
enough to conform to the dictates of a reasonable sympathy, and
then it is, their legal conscience surrenders to the dictates of their
moral conscience, confident that the common suffrages of the
humane will applaud their decision."
' The American Journal of Insanity, Vol. 12, p. 339.
404 MEDICAL EVIDENCE.
Sir Benjamin Brodie, the distinguished philosopher and surgeon,
says : " The law makes a reasonable allowance of time for the
subsiding of passion suddenly provoked, but we are not therefore,
to presume that the same allowance is to be made for those in
whom a propensity to set fire to their neighbor's house, or commit
murder, is continued fur months, or weeks, or even for hours. Is
it true that such persons are really so regardless of the ill conse-
quences which may arise, so incapable of the fear of punishment,
and so absolutely without the power of self-restraint, as they have
been sometimes represented to be ? If not, there is an end of
their want of responsibility. Take the case of a gouty patient.
Under the influence of his disease, every impression made on his
nervous system is attended with uneasy sensations. If such a
person has exerted himself to acquire the habit of self-control,
the evil ends with himself, but otherwise he is fractious and peev-
ish; flies into a passion without any adequate cause, with those
around him, and uses harsh words which the occasion does not
justify, conduct of which he can offer to himself no explanation
except that he can not help it, and for which, if he is a right-
minded man, he is afterward sorry. If he were to yield to the
impulse of his temper so far as to inflict on another a severe
bodily injury, ought it to be admitted as an excuse, that Dr.
Garrod had examined his blood and found in it too large a propor-
tion of lithic acid ? Yet when the boy, Oxford, yielded to what
was probably a less violent impulse, which caused him to endea-
vor to take away the life of the Queen, the jury acquitted him,
on the ground of his being the subject of ' moral insanity.' It
seems to me that juries have not unfrequently been misled by
the refinements of medical witnesses, who, having adopted the
theory of puiely moral insanity, have ap[)li('(l that term to cases
to which the term insanity ought not to be apjilied at all. It is
true, that difll rence in the character of individuals may frequently
be traced to a difference in their organization, and to different
conditions as to bodily health ; and that, therefore, one person
has more, and another less difficulty in controlling his temper
MORAL INSANITY. 405
and regulating his conduct. But we have all our duties to per-
form, and one of the most important of these is, that we should
strive against whatever evil tendency there may be in us arising
out of our physical condition. Even if we admit, (which I do
not admit in reality,) that the impulse which led Oxford to the
commission of his crime was at the time irresistible, still the
question remains, whether, when the notion of it first haunted
him, he might not have kept it under his control, and thus pre-
vented him from passing into that state of mind which was
beyond his control afterward. If I am rightly informed, Oxford
was himself of this opinion ; as he said, when another attempt
was made to take away the life of the Queen, ' that if he himself
had been hanged this would not have happened.' We have been
told of a very eminent person, who had acquired the habit of touch-
ing every post that he met with in his walks, so at last it seemed
to be a part of his nature to do so ; and that if he found that he
had inadvertently passed by a post without touching it, he would
actually retrace his steps for the purpose. I knew a gentleman
who was accustomed to mutter certain words to himself, (and they
were always the same w^ords,) even in the midst of compan}\ He
died at the age of ninety, and I believe that he muttered these
words for fifty or sixt}^ years. These were foolish habits ; but
they might have been mischievous. To correct them at last
would have been a very arduous undertaking. But might not
this have been easily done at the beginning? and if so, — if
instead of touching posts, or muttering unmeaning words, these
individuals had been addicted to stealing or stabbing, — ought the}'
to have been absolved from all responsibility ? It has been
observed by a physician, who has had large opportunities of
experience in those matters, that 'a man may allow his imagi-
nation to dwell on an idea until it acquires an unhealthy ascen-
dency over his intellect.'^ And surely, if under such circum-
stances, he were to commit a murder, he ought to be held a
1 Forbs Winslow.
406 MEDICAL EVIDENCE.
murderer, and would have no more claim to be excused than a
man who voluntarily associated himself with thieves and mur-
derers until he has lost all sense of right and wrong ; and much
less than one who has had the misfortune of being born and bred
among such malefactors. * * * * j^; certainly seems to
me to be not less absurd in itself than it is dangerous to society
at large, to hold that any one, whom the dread of being punished
might deter from the commission of crime, is not a fit subject of
punishment. At the same time, I fully admit that a more or less
unsoundness of mind may afford a sufficient reason for commut-
ing, or modifying the nature of the penalty. Allow me to add,
that it is a very great mistake to suppose that this is a question
which can be determined only by medical practitioners. Any
one of plain, common sense, and having a fair knowledge of
human nature, who will give it due consideration, is competent
to form an opinion on it, and it belongs fully as much to those
whose office it is to administer the law, as it does to the medical
profession."^
Dr. D. M. Reese, who has discussed this question in an able
report to the American Medical Association, upon the subject,
says : '' But we now proceed to inquire * wherein does such moral
insanity differ from moral depravity,'' as defined by our stand-
ards ? ' I find a law in my members, warring against the law in
my mind.' ' When I would do good, evil is present with me.'
' He that knoweth to do good, and doeth it not, to him it is sin.'
• He that knoweth his Master's will, and doeth it not, he shall be
beaten with many stripes.' ' As a man thinketh, so is he.' ' Video
meliora prohoque, deteriora seqiior.'' 'I see the good, and yet
the ill pursue.' Here we see by Christian and heathen authorities,
that such ' moral insanity ' is a synonym of ' moral depravity,'
and that responsibility and * punishability ' are not to be shunned
or evaded by this plea. Intellectual insanity, resulting from
1 Mind and Matter ; or, Physiological Inquiries, etc., by Sir Benjamin Brodie,
Bart., D. C. L.; Vice-president of the Royal Society, 99—104.
MORAL INSANITY. 407
physical disease in the brain, either functional or organic, and to
an extent which incapacitates from reasoning correctly, by reason
of ilki^ion, delusion, delirium, or hallucination, can alone release
from the obligation of morals and law, in the judgment of sound
judicial authorities.
The writers who have successively urged this plea of ' moral
insanity,' in behalf of criminals of every grade, maintain the
doctrine that the instances of moral depravity, and especially the
examples of the most hideous crimes, all are so many evidences
that ' moral insanity ' exists, and that the parties are thus de-
praved, because of this malady. The greater the criminal, s.iy
they, the more reason exists for interposing this plea, for no man
in his senses would or could perpetrate such ' deeds of blood, as
make the cheek of darkness pale.' Hence, the practical effects
of their creed are avowed to be sought in the abolition of the gal-
lows, and the conversion of our prisons and penitentiaries into
hospitals, where the perpetrators of capital crimes should be
treated as patients, and not as criminals. Such men, they argue,
are only the victims of a 'fliulty organization,' their 'moral
organs' being too active, by reason of morbific causes, which
impel them to their guilty career, with an ' irresistibility,' of which
they are the hapless victims.
They differ with the great German expert, lieinroth, who
stoutly maintained that all insanity originates in vice, for they
assume the opposite doctrine, that all vice has its origin in
insanity. Hence, they avow the opinion that the commission of
crime is prima facie evidence of ' moral insanity.' Irresponsi-
bility is therefore claimed for all law-breakers, and the more des-
perate the criminal, the stronger is the evidence that he is morally
insane.
There is a specific sense in which all the guilty and depraved
may be said to be morally insane, as is distinctly taught in the
Sci'iptures. and insisted on by a large class of theologians. The
mooted questions of natural ability, and moral inalility, co-exist-
ing in the same mind, are urged as exhibiting a clear, intellectual
408 MEDICAL EVIDENCE.
perception of the path of duty, in those who are so imbecile in
their will that their corrupt passions, strengthened by evil habits
and vicious associations, overrule their intellect, and precipitate
them into vice and crime. Such depravity may become irresis-
tible, and yet irresponsibility can not be predicated in such cases ;
but the contrary, since their moral inability is self-originated.
Insanity may be, in a multitude of cases, the result of such de-
pravity, by the vicious indulgence, when often repeated and long
continued, involving the structure of the brain in serious or
hopeless physical disease.
That distinguished philosopher and philanthropist. Dr. Benja-
min Rush, before the commencement of the present century,
seems to have been the first to recognize that form of insanity,
since called dipsomania, and, indeed, he preceded Pinel himself,
in pleading for habitual drunkards, by ascribing their follies and
crimes to moral insanity, which he defined ' derangement of the
moral faculty, or morbid operations of the will' Hence, to
rescue such from the penalties of Criminal law, he urged the
opening of hospitals, or sober houses, for their physical restraint
and moral treatment, alleging that they were as fit subjects for
such sympathy, as other mad people. He declared all such to
be monomaniacs, the victims of physical disease, which he, with
philosophical accuracy, located in the brain. He taught that,
although their drinking habits were the fruit of moral depravity
at first, yet, after the brain itself had become diseased by this
vice of indulgence, their continued drinking was the result of
insanity.
The professions of both medicine and law have conceded
the justice of his views, and hence a wise distinction has been
made in the statutes between the delirium of recent intoxication,
which is regarded by the courts as no excuse but rather an aggra-
vation of crime, and the insanity which accompanies a paroxysm
of delirium tremens, which is held to be a legitimate defense
against the penalties of the law. This may be called a moral
insanity, but it is primarily a physical, and secondarily, an intel-
MORAL INSANITY. 409
lectual insanity, and is included in our proposed definition, by the
presence of disease in the brain, and the unconsciousness of the
change which has occurred in the mental functions, even while
they are terrific and appalling to every beholder. Our profession
are at no loss in identifying this form of mania-d-potu, nor are
the courts and juries embarrassed by any conflicting decisions
or precedents."
The question too, whether the punishment of those whose minds
are partially under a cloud, or who have less control over their
actions, resulting from their own fault, or of original or acciden-
tal organization, can be graduated according to the circumstances
of the particular case, is well worthy of close and careful con-
sideration.
This view of the difficult subject has already attracted the
attention of able writers. Dr. John Charles Bucknill, of PJngiand,
Mr. Wharton, the author of the " American Criminal Law," and
the American Journal of Insanity, all unite in recommending
the estjiblishment of a separate institution for the confinement
and special use of that class of alleged lunatics guilty of crimes,
who may actually labor under some ameliorating circumstance,
where proper punishment may be administered, and the necessary
help afforded to restore the person to a healthy control of his
actions.
There are, doubtless, many cases of alleged unsoundness of
mind, perhaps real, which the courts can not recognize, that
demand, nevertheless, milder and different treatment iiom that
measured out to ordinary criminals, and if such cases can be dis-
tinguished, and the criminal propensities corrected, and virtuous
tendencies invigorated by the necessary restraint and proper
punishment, it should be done. The effort, at least, is worthy of
a patient trial. In almo.st every lunatic asylum may be found
those who liave come to regard themselves highly favoied and
privileged above most men on this account, that they have com-
mitted and still may commit crime with impunity, where ordinary
mortals, even children, would be held to answer to the law ; and the
410 MEDICAL EVIDENCE.
idea will spread like an epidemic among this class ; they bear
themselves as a privileged class, or like potentates. It is possible
and probable that a little wholesome punishment, well regulated,
when they conuaiit crime, would, in nine cases out of ten, prevent
a repetition of it, by reminding them that they still belong to the
human race, and that they can and must suffer for the violation
of the rights of others.
There may be illusion, delusion, or a morbid habit of thought,
without real madness. If the illusion of sense is conjoined with
the loss or a defect of the comparing power, — of reasoning upon
his delusion, he should not be held responsible. But if there is
only a want of resolution, — an inertia of thought, from which
cause comparison and consideration are not exercised, and the
illusion thrown off, then the individual is himself to blame, and
should be held to answer for what has resulted from his own want
of resolution. If the power to reason by a special ellbrt, on the
part of the individual is destroyed, he will be no longer respon-
sible for his acts.
There being but very few well-balanced minds, it would be a
dangerous practice to hold, that because a man labored under
some degree of mental delusion or error in his judgment in
regard to his transactions or ideas, he is not a responsible agent.
Both sanity and insanity may, in many cases, depend upon the
amount of resolution exerted by the individual in reasoning upon
the subject. If his intellectual machinery is quickened by
disease, or from any other cause, it may still be under the control
of the will or judgment, though requiring a greater effort than
when in a well-balanced and healthy condition.
Fear, is one of the lowest, if not the very lowest motive that
can influence the conduct of men. Still it is brought to bear
upon the human mind for the highest purposes, and doubtless
with advantage, for after a man is arrested in a vicious course
of conduct by fear, and brought to stop and think, he mn3% and
in most cases does, take higher grounds. First, he avoids the
wrong because of the punishment, then he does right because he
MORAL INSANITY. 411
sees it is beneficial to him and others, and finally, he is led to
follow a virtuous course of life for the sake of virtue itself, and
from a sense that it is well pleasing to God.
This motive of fear must be a powerful balance wheel in the
mental apparatus of the insane, especially those who are capable of
arousing themselves to a correct train of thought and reasoning,
but from habit or indolence, are unwilling so to do. When all
power of reasoning from cause to eflect is destroyed, then, of
course, the motive of fear can not be brought to bear ; but when
it will influence conduct and prevent crime, then it should be
inflicted upon those of insane or unbalanced mind, as well as
upon the sane.
A man may be insane from passion. A false report may in-
cense him to a degree of fury ; he, however, believes it to be
true, and he seeks his supposed enemy and inflicts upon him
severe punishment ; — he does not take his life, because he fears
punishment. No love for order or law restrains him, for he
transgresses law by thus revenging himself But he may
stop short of assassination, because of fear of punishment. The
madman does the same thing, — his own senses suggest to him
what the former received from a second person ; wherein do they
differ? If either had taken the proper measures within his
reach to ascertain truth, then the result might have been avoided.
Both knew that such summary vengeance is forbidden by law.
The former is subjected to the degree of punishment his crime
deserves, why should not the latter be?
There is no doubt that the high intellectual powers of man may
be let down and prostituted by habit, by giving way to passion,
instead of being properly restrained, — by permitting the mind
to dwell upon improper subjects, or take what he well knows to
be a wrong view of things, from a controllable indisposition to
make the necessary effort, until a morbid state is superinduced.
The stimulus of passion, or a steady fixedness of thought in a
particular channel, causes an increased flow of blood to the brain ;
it hightens and intensifies the fiinctions of mind, and this may
412 MEDICAL EVIDENCE.
be continued until there is actual change of structure, adapted to,
and brought about by this passion or habit of thought upon an
improper subject, just as the sexual appetite may be intensified
by habit of life and thought until it is beyond control, and the
victim sinks to a premature grave. Had the passion been
properly restrained, which was at one time possible, then it would
have been a blessing, and completely under control through life.
The attributes of man, mental and physical, are to be used with
judgment, — if he neglects to use them enough, they perish, and
atrophy of mind or body is the result ; if he overtasks them, then
the vital forces are too strong for the machinery, and plethory,
apoplex}^, hypertrophy, or even insanity may supervene. But with
the judicious guidance of that reason and judgment that make
man a moral and responsible agent, he sails securely past these
dangerous reefs and whirlpools, enjoying a happy, thrilling, beau-
tiful hfe.
The alternative is most generally with the individual himself,
whether a strong desire or tendency to do a particular act, shall
be controlled and kept under, until it disappears or subsides alto-
gether; or whether it shall be indulged in until its influence has
increased and become irresistible. "Inefficiency of intellectual
force" is a convenient plea for the gratification of proscribed and
dangerous indulgences or passionate revenges, but it would be
both puerile and dangerous to admit it in courts of justice.
That man who has attained mature hfe, without having ever
put the brakes upon his passions, will find it no light work to
check them then. Every year it requires more resolution to
summon the necessary force, until that which at first had been
easy, becomes almost an impossibility, and the moral, intelligent
\oath grows into a passionate animal, driven by the whirlwind of
his instincts, his appetites and passions unbridled and intensified.
Without disease of brain, except what he has himself produced
by criminal neglect of the proper use of reason, he is the slave
of self indulgence and cherished sins.
The child permitted to run wild, and have the full gratification
MORAL INSANITY. 413
of his wishes for a few years, when finally checked up, rebels
against it, and will not be restrained except by a superior force or
fear ; so it is with the brain or mind unaccu^itomed to the steady
restraint of a tender, healthy conscience and enlightened intel-
lectual force ; when the latter attempts to assert its sway, it is in
a measure powerless.
Many in^^ane criminals are educated and formed, by their
own negligence, in this way. Should they not be held to a strict
accountability? To say such a one is insane, and therefore not
subject to punishment, is to utter a dangerous folly, and to en-
courage unchecked passion and fatalism.
Pinel gives the following case : " An only son, educated by a
silly and indulgent mother, was accustomed to give way to all his
passions without restraint. As he grew up, the violence of his
temper became quite uncontrollable, and he was constantly in-
volved in quarrels and lawsuits. If an animal ofiended him, he
instantly killed it ; yet when calm he was quite reasonable, man-
aged his large estate with propriety, and was even known to be
beneficent to the poor ; but one day, provoked to rage by a
woman, who abused him, he threw her into a well. On the trial
so many ^^itnesses deposed to the violence of his actions, that he
was condemned to imprisonment in a mad-house."
This is the history of very many passionate men, who are
counted among the sane until they commit some great crime,
then their irregularities are at once counted up and pronounced
evidence of insanity. For the time being the person may be in
a state of mania, or in a condition bordering thereon, but he is
not the less responsible, for he has wrongfully [lermitted himself
to become so. If he becomes thus insane, permanently or con-
tinually, — not momentarily, — even though he has brought it on
himself wrongfully, he is not considered in law responsible. Thus
insanity produced immediately by drunkenness does not shield
the criminal, because he voluntarily made himself so; while
insanity [iroduced immediate!}- by deUrlum trancns, affects and
relieves the responsibDity, because delirium tremens is not the
414 MEDICAL EVIDENCE.
intended result of drink, in the same way that drunkenness is,
there being no possibility that delirium tremens will be voluntarily
generated in order to alford a cloak for a particular crime.^
Most cases of insanity are undoubtedly induced by some fault
of the person himself, — some infraction of the laws of his being,
which he need not have violated, yet being so remote the law
does not regard it.
'•'A man unaccustomed to self-control becomes occupied with
one thought ; his ambition has been disappointed perhaps, or a
lawsuit has perplexed him, or he has been much emplo}'ed in
some engrossing pursuit, until, unable to regulate his thoughts at
will, he finds the one which circumstances have made habitual,
recur uncalled for. An eflbrt would probably dismiss it, for every
one who has studied much, knows that he has had to dismiss
many an intruding thought, and with some effort too, if he
wished to make progress in what he has undertaken; but this
individual has never been accustomed to make any such eflbrt,
and he knows not how to free himself from the subject which
thus haunts him. If it is an unpleasant one he is wearied and
worn by it ; but every day that it is not driven ofi", it assumes a
greater power, for the part of the brain thus brought into action
is now by habit rendered more unfit for use than any other; he
has not resolution enough to free himself from his tormentor by
a determined application to something else which would require
all his attention ; he sits brooding over it, and when life has thus
become irksome, he strives to terminate his discomfort by suicide ;
yet here is no structural disease, and if the man could be per-
suaded to exert himself, he might be sane. I will give an
instance : The master of a parish work-house, about thirty years
of age, was subjected frequently to gi'oundless suspicions of
peculations. Being naturally a taciturn, low-spirited man, these
J Wharton's Crira. Law, 135 ; U. S. v. Drew, 5 Mason U. S. Rep. 28; U. S. v.
Forbes, Crabbe's Rep. 558 ; Bennet v. State, Mart. & Yerg. 133 ; U. S. v. Clark, 2
Cranch, C. C. Rep. 158 ; R. v. Thomas, 8 C. & P. 820 ; 1 Rus. on Cr. 7 ; 4 Black.
Com. 26.
MORAL INSANITY. 415
false accusations which involved his character, and consequently
the maintenance of his family, preyed upon his mind, and a pro-
found melancholy was the result, attended by the usual symptom-
atic derangement of the digestive functions, and a constant appre-
hension that he had done something wrong, he did not know
what. No assurance on the part of those who knew and esteemed
him had any efiect, and finalh', after some months of melanchol}-,
he attempted to destroy himself He was then removed to St.
Luke's hospital, whence, after a year had elapsed, he was dis-
charged incurable. He was now placed in a private receptacle of
the insane, and here suffered all the misery which at that time
pauper lunatics were subject to. He was visited at this place
by a benevolent man, who seeing his state, immediately ordered
him to be removed into the gentleman's apartments, and paid
for his maintenance there. In a few months afterward he was
visited by the clergyman of his parish, who on conversing with
him, considered him sane. The man begged to be allowed to
rejoin his wife and family, and the rector, after many difficulties
and some threats to the parish authorities, succeeded in setting
him free. The man from that time was able to maintain his
family by his trade of shoemaking, for if ever a fit of melancholy
came over him his wife would threaten that he should go back to
the mad-house, which was sufficient to engage him to make an
effort to resume his cheerfulness ; and he remained to old age a
sane man. Here the insanity had been mere inefficiency of the
intellectual force. Placed in a place of comparative ease his mind
had become calm ; the wish to return to his wife and fanily, and
the hope of it, kept up by the visits of benevolent friends, did the
rest; for, be it observed, during the whole time he never felt him-
self abandoned. The poor and the uneducated are the classes
which most usually suffer from the inefficiency of the intellectual
force ; it is among the higher ranks usually that its misdirection
is a source of insanity."^
* Barlow on Man's Power over himself to prevent or control Insanity.
London, 1843.
416 MEDICAL EVIDENCE.
The same author says that Henri of Bourbon, son of the great
Conde, at times imagined himself transformed into a dog, and
would then bark violently. Once this notion seized him while in
the king's presence; he then felt it needful for him to control
himself, and he did so ; for though he turned to the window and
made grimaces as if barking, he made no noise. Had the king's
eye been on him, it is probable that he would have avoided the
grimaces also.
If these general views are correct, then it behooves society for
its protection, and the courts representing society, to constantly
keep the preventive influence of just and well-regulated punish-
ment^before all who may be unwilling to restrain an evil tendency
to commit crime, or to do that which inevitably leads to it, until
they themselves believe they have a right to do so, because they
are told, they are not able to withstand the temptation. "They
can not hang him," said the inmates of York lunatic asylum, when
a supposed lunatic like themselves, Martin, who burnt York
Minster, was being tried, "he is one of ourselves ! "
The celebrated Sickles case illustrates the tendency to drift
from the old moorings, that now exists on this subject.
The distinguished counsel who conducted the defense in the
Huntington case, defended Sickles when arraigned for killing
Key, where he also interposed the defense of insanity ; not calling
it, however, moral insanity, but "jealousy." He uses the term :
"Jealousy is the rage of a man," repeatedly, and says, " it converts
him into a phrensy, in which he is wholly irresponsible for what
he may do."
Mr. Brady claimed that the immediate circumstance attending
the seduction of Mr. Sickles' wife, and the death of Key, were of
so atrocious a nature as to overwhelm the mind of Sickles instan-
taneously, and thus render him irresponsible for the crime of
murder. He therefore drew up the following propositions, and
requested the court to embody them in its charge to the jury :
"1. — If, from the whole evidence, the jury believe that Mr.
Sickles committed the act, but at the time of doing so was under
MORAL INSANITY. 417
the influence of a diseased mind, and was really unconscious that
he was committing a crime, he is not in law guilty of murder.
2. — If the jury believe that from any predisposing cause the
prisoner's mind was impaired, and at the time of killing Mr. Key
he became, or was mentally incapable of governing himself in
reference to Mr. Key, as the debaucher of his wife, and at the
time of committing said act, was, by reason of such cause, un-
conscious that he was committing a crime as to said Mr. Key, he
is not guilty of any offense whatever.
3. — It is for the jury to say what was the state of the prison-
er's mind as to the capacity to decide upon the criminality of the
particular act in question, — the homicide, — at the moment it
occurred, and what was the condition of the parties respectively
as to being armed or not at the same moment.
These are open questions for the jury, as are any other ques-
tions which may arise upon the consideration of the evidence, the
whole of which is to be taken into view by the jury.
4. — The law does not require that the insanity, which absolves
from crime, should exist for any definite period, but only that it
exists at the moment when the act occurred with which the
accused stands charged.
5. — If the jury have any doubt as to the case, either in refer-
ence to the homicide or the question of sanity, Mr. Sickles should
be acquitted."
These propositions were argued at great length by counsel,
especially by Mr. Brady, who contended that the great sorrow
that had fallen upon Mr. Sickles, had, in fact, dethroned his
intellect, and for the moment he was not accountable for what
he did. Crawford, J., charged as follows on these propositions :
" Gentlemen of the Jury : The court is asked to give to the
jury certain instructions, whether on the part of the United
States or on the defense. The first instruction asked for by the
United States, embodies the law of this case on the particular
branch of it to which it relates, and is granted with some explana-
tory remarks as to insanity, with a reference to which the prayer
27
418 MEDICAL EVIDENCE.
closes. A great English judge has said, oii the trial of Oxford,
\Yho shot at the Queeu of England : ' That if the prisoner was
laboring under some controlling disease which was, in truth, the
acting power within him which he could not resist, then he wiH
not be responsible.' And again : ' The question is, whether he
was laboring under that species of insanity which satisfies you
that he was quite unaware of the nature, character and conse-
quences of the act he was committing, ur in other words, whether
he was under the influence of a diseased mind and was really un-
conscious at the time he was committing the act that that was a
crime.' A man is not to be excused from respousibiiity if he has
capacity and reason sufficient to enable him to distinguish between
right and wrong as to the particular act he is doing ; a knowledge
and consciousness that the act he is doing is wrong and criminal
and will subject him to punishment. In order to be responsible,
he must have sufiicient power of memory to recollect the relation
in which he stands to others, and in which others stand to him ;
that the act he is doing is contrary to the plain dictates of justice
and right, injurious to others, and a violation of the dictates of
duty. On the contrary, although he may be laboring under a
partial insanity, if he still understands the nature and character
of his act and its consequences ; if he has a knowledge that it is
wrong and criminal, and a mental power sufficient to apply that
knowledge to his own case, and to know that if he does the act,
he will do wrong and receive punishment, such partial insanity
is not sufficient to exempt him from responsibility for criminal
acts.
Now w^e come to those asked on the part of the defense, the
first of which is in these words :
In reply to the ninth instruction, the court responds thus: *It
is for the juiy to say what was the state of Mr. Sickles' mind
as to the capacity to decide upon the criminafity of the homicide,
receiving the law as given to them in relation to the degree of
insanity, whether it will, or will not, excuse, they (the jury) find-
MORAfe INSANITY. 419
ing the fact of the existence or non-existence of such degree of
insanity.'
The tenth prayer reads thus : ' The law does not require that
the insanit}^, which absolves from crime, should exist for any
definite period, but only that it exist at the moment when the act
occurred, with which the accused stands charged.'
That instruction is granted. The time when the insanity is to
operate is the moment when the crime charged upon the party
was committed, if committed at all. The eleventh and last
instruction asked reads this way :
* If the jury have any doubt as to the case, either in refer-
ence to the homicide or question of sanity, Mr. Sickles should
be acquitted.'
This instruction, as I mentioned in referring to prayer four
of the United States, will be answei'ed in conjunction with it.
It does not appear to be questioned that if a doubt is enter-
tained by the jury the prisoner is to have the benefit of it. As
to the sanity or insanity of the prisoner at the moment of com-
mitting the act charged, it is argued by the United States that
every man being presumed to be sane, the presumption must be
overcome by evidence satisfactory to the jury, that he was insane
when the deed was done.
This is not the first time this inquiry has engaged my attention.
The point was made and decided at the June Term, 1858, in
case of the United States y. Devlins, when the court gave the
following opinion, which I read from my notes of the trial : This
prayer is based on the idea that the jury must be satisfied, beyond
all reasonable doubt, of the insanity of the party for whom the
defense is set up ; precisely as the United States are bound to
prove the guilt of a defendant to warrant a conviction. I am
well aware, and it has appeared on this argument, that it has been
held by a court of high rank and reputation, that there must be
a preponderance of evidence in favor of the defense of insanity
to overcome the presumption of law, that every killing is a mur-
der ; and that the same court has said that if there is an equili-
420 MEDICAL EVIDENCE.
brium, including, I suppose, the presumption mentioned of evi-
dence, the presumption of the defendant's innocence, makes the
preponderance in his favor.
Whether a man is insane or not, is a matter of fact ; what
degree of insanity will relieve him from responsibility is a matter
of law, the jury finding the fiict of the degree too. Under the
insiruction of the court, murder can be committed only by a
sane man. Everybotly is presumed to be sane who is charged
with a crime, but when evidence is adduced that a prisoner is in-
sane, and conflicting testimony makes a question for the jury,
they are to decide it like every other matter of fact, and if they
should say or conclude that there is uncertainty, that they can
not determine whether the defendant was or is not so insane as
to protect him, how can they render a verdict that a sane man
perpetrated the crime, and that no other can ?
Nor is this plain view of the question unsupported by authority.
In the case of the Queen v. Ley, in 1840, Lewins C. C, p.
239, on a preliminary trial to ascertiiin whether a defendant was
sufficiently sane to go before a petit jury on an indictment,
HuLLOCK, B., said to the jury: 'If there be a doubt as to the
prisoner's sanity, and the surgeon says it is doubtful, you can
not say he is in a fit state to be put on trial.' This opinion was
approved in the People v. Freemen, Vol. 4 Denio's Report, p. 9.
This is a strong case, for the witness did not say the prisoner was
insane, but only that it was doubtful whether it was so or not.
The humane, and, I will add, just doctrine, that a reasonable
doubt should avail a prisoner, belongs to a defense of insanity, as
much, in my opinion, as to any other matter of fact. I believe,
gentlemen, that that answers all the questions."
In the Huntington case, a wild, reckless and criminal spirit of
speculation was uiged as one f nm of insanity, and should be a
defense and turn aside the edge of the law ; while in the Sickles
case, the same able lawyer labored with gre:it skill to show that
*• jealousy is the rage of man," that "it converts him into a phrensy,
in which he is wholly irresponsible for what he may do."
MORAL INSANITY. 421
In the latter case it is to be remarked, and to the honor of
the medical profession, that the defense received no assistance
from distinguished medical men.
Medical witnesses should weigh well the effect of their evi-
dence on the question of ins:inity when it is of a speculative
character. They should remember that it may be, in the hands
of able criminal lawyers, a powerful agency for shielding crime,
through the intervention of a humane and kind-hearted jury.
If the defense in the cases of Huntington and Sickles had
succeeded, — and we do not know how far this element in the de-
fense of Sickles influenced the jury that acquitted him, — then
would we have the propositions established, that a long course of
vice and reckless speculation, based upon forgery, and that sudden
violent passion, resulting in homicide, are each evidences of in-
sanity, and a legitimate defense for the accused, thus overturning
the very foundations of civil and religious society.
CHAPTER XXX.
OPINIONS OF LAYilEN, AS EVIDENCE UPON ALLEGED INSANITY.
An unsettled question of much importance, connected with
the Medical Evidence of insanity, is whether or not the testi-
mony of those who are not medical experts should be received in
determining the mental character of the alleged insane party.
Able medical and legal authority is found on both sides of the
question.
While it should not be denied that the learned and experienced,
like Drs. Ray, Gilman, Coventr}- and Woodward, can determine
close questions of mental aberration more correctly and certainly,
than any other persons of less experience, yet there are but few
such men, and if they were more numerous, there is no good
reason why these questions should be submitted to them alone.
A medical man not connected with insane asylums, is in
general but little, if any better quahfied to give an opinion upon
insanity than the intelligent unprofessional man. He may not
he as well qualified to judge of the condition of the alleged
insane person, as one who is acquainted with the previous history
of the party, and who can compare his present condition with
his previous acts and character. Hence the folly of shutting out
all evidence but that of experts on the trial of these cases.
The distinguished American editor of the Cyclopedia of Practi-
cal Medicine, upon this point, says :
" In regard to the nature of the testimony relied upon in cases
of insanity, and the mode of judging of the same, there is much
room for anim\dversion. Too great weight appears to be given
to medical testimony in such cases. It has always been the
(422)
OPINIONS OF LAYMEN, AS EVIDENCE. 423
expressed conviction of the wiiter, that medical men are no better
judges of the existence of mental alienation, than well-informed
and discriminating individuals not of the profession. The only
advantage, at least, which they can be presumed to have, is from
the constant habits of observation and discrimination, which the
practical exercise of their profession requires. Yet, for no other
reason than that they belong to the medical profession, inferior
men, whose judgments on any other subject would be contemned,
are often called upon to decide and establish the existence or
non-existence of a mental condition which demands the most
careful and rigid scrutiny."
An able writer in the British and Foreign Medical Review,
thinks it ''' essential for justice to aboHsh medical testimony as it
is at present given on trials for crime, when insanity is the plea;
and that questions of this important nature should be referred to
a board of twelve or more competent men. The state of mind
of a person accused of crime, should not be left to be decided by
those members of the profession whom the prisoner or his friends
may select, for their known support of his case. As to the ques-
tions of his responsibihty and punishment, these should be intrusted
to the authorities of law. The whole subject is surrounded with
difficulties, and hence much room is left for the ingenuity of
counsel, to act upon a jury generally composed of men who are
eminently unqualified for forming any correct judgment on the
intricate subject submitted to their decision."
D)'. Meredith Reese adds the weight of his testimony to the
above views. He says: "Many medical men announce their
opinions as to the sanity or insanity of a defendant, as an oracle,
and with a confidence proportionate to their ignorance. And
when called upon by the ministers of the law for the grounds or
reasons upon which their opinion is based, the}' are ' wiser than
twenty men who can give a reason,' while they reph', ' no definition
is possible, no test is reliable, but your right and wrong theory
is arrant nonsense.' We doctors are the judges, and ' wisdom will
die with us.' Verily, we assume that another Daniel has come
424 MEDICAL EVIDENCE.
to judgment. That our brethren of the bench and bar should
smile at our ludicrous assumption of infallibility, and that a
common-sense jury should ignore such incoherent testimony,
and even impute * moral insanity ' to such doctors, is not at all
marvel ous."^
Sir Benjamin Brodie says: "Allow me to add, that it is a
great mistake to suppose that this is a question which can be
determined only by medical practitioners. Any one of plain,
common sense, and having a fair knowledge of human nature,
who will give it due consideration, is competent to form an opinion
on it ; and it belongs fully as much to those whose office it is to
administer the law, as it does to the medical profession."-
How are most cases of insanity determined ? We have seen
there are no purely scientific or medical tests. There being, there-
fore, no scientific standard by which the actun controversy can
be determined positively, a responsible or irresponsible one, the
question must be determined by weighing well all the attending
circumstances connected with the act, — the previous history of
the individual, — his character and conduct in early life, and mature
manhood, — the causes that may have incited him to the alleged
insane act, — the manner of its execution, — the conduct before
and after the act, — the eccentricities of character and conduct, —
peculiar opinions, — in what respect the individual differs, not
with all others, but with himself, — his former self, — whether the
careful, prudent, and cautious man, suddenly becomes a careless,
visionary speculator, squandering his property, — whether the fond
and afiectionate parent becomes tyrannical and morose without
any known adequate cause, — whether a previous blameless life is
suddenly changed into one of crime, apparently without any motive,
— if he assigns a reason for his conduct, whether it is not wholly
extravagant and insufficient ; — these considerations and very man}''
1 Pamphlet Report on Moral Insanity, in its Relations to Medical Jurispru-
dence, 16.
2 Mind and Matter ; or. Physiological Inquiries, 105.
OPINIONS OF LAYMEN, AS EVIDENCE. 425
others, enter largely into the determination as to insanity or
sanity ; and who are better able to mark and weigh these elements,
than those persons nearest and best acquainted with the alleged
insane person, — having the best opportunity of knowing his
history, — the changes in it, if any, — than his family, and those
clear-headed business men with whom he has dealt, and who have
observed him closely, perhaps for years. Yet these persons, who
are of all others, often best qualified to decide these questions, are
not competent witnesses on insanity ; and its solution is handed
over to a medical man, who perhaps, sees the party for the first
time in court, or a half an hour in jail.
Haslam and Shelfbrd remark, "that it has been questioned
whether medical evidence to prove insanity, be not inferior to that
of other people who may have had opportunities of observing the
individuals, when the same opportunities have not been in the
power of the practitioner."
This question has generally divided the bench, when it has been
called to pass upon it. It was fully discussed and considered in
the Supreme Court of New York in an important case,^ and also
in a late case in the Court of Appeals of the same State.^
These are undoubtedly the leading cases upon this point in this
country.
In the case of Culver v. Haslem, the majority of the court
held, that any one intimately acquainted with the alleged insane
person, though not a professional man, might express an opinion
upon the question. The court says :
" Apart from the difficulty of restraining a witness from inter-
mingling his opinions with his testimony, in questions of this
kind, there are strong reasons why he should be permitted to do
so, when he discloses the facts and circumstances within his knowl-
edge, upon which they are founded. Human language is imperfect ;
and it is often impossible to describe, in an intelligible manner, the
1 Culver V. Haslem, 7 Barb. 314.
2 Dewitt V. Barley & Schoonmaker, 5 Selden, 371.
426 MEDICAL EVIDENCE.
operations of the mind of another. We learn its condition only
by its manifestations, and these are indicated, not only by articu-
late words, but by signs, gestures, conduct, the expression of the
countenance, and the whole action of the man. Noi- is there any
danger that a court and jury will be misled by such opinions
when the reasons for them are disclosed. The force and value
of opinions depend upon the general intelHgence of the witness,
the grounds on which he bases it, the opportunities he has had
for accurate and full observation, and his entire freedom from
bias or interest. I agree with Judge Cowen, in Norman v. Wells,
that causes are, in general, better tried without them, and I con-
cur with him, the Chancellor, Senator Verplanck and Judge Bar-
culo, that mere opinions of an ordinary witness, unless supported
by good reasons, and founded on facts, are entitled to no regard.
The question under consideration, is not what weight should be
given to such opinions, but whether they are competent. The
learned judge correctly instructed the jury that they were en-
titled to but little iveight I think he was right also in holding
them admissible, with the qualification under which they were
received."
This decision of the Supreme Court of New York was re-
versed by the Court of Appeals, in the case of Dewitt v. Bai'ley
& Schoonmaker, when the whole question was again ably dis-
cussed by the counsel and court. The decision however of the
court, is essentially shaken by the able dissenting opinion of a
large minority, among whom is Mr. Justice Denio. He says :
" In a case of doubtful competency, witnesses will ordinarily
be produced who knew the individual when in health, who have
observed the changes which have since taken place, and have
incidentally tested his memory and judgment in a great number
and variety of instances in the relations of social and domestic
hfe, the particulars of which have been forgotten, though the
impression caused by them remains upon the mind of the wit-
ness. Such a witness, if possessed of discrimination and judg-
ment, will usually have formed an opinion of considerable value
OPINIONS OF LAYMEN, AS EVIDENCE. 427
as to the capacity of the party for doing an act requiring memory
and judgment. But it would scarcely be possible for him to lay
before the jury all, or the greater part of the circumstances upon
which his opinion is based. The judgment which we form as to
the mental condition of an acquaintance, depends as much upon
his looks and gestures connected with his conversation and con-
duct, as upon the words and actions themselves, and yet it
would be a hopeless task for the most gifted person to clothe in
language all the minute particulars, with their necessary accom-
paniments and qualifications, which have led to the conclusion which
he has formed. I am of the opinion that the question of testamen-
tary competency, or what is the same thing, of mental capacity to
do an act requiring the faculty of judgment and memory, does,
upon principle, form a well-defined exception to the rule which
excludes the mere opinions of the witness; and unless the point
has been otherwise settled by adjudication which all are bound to
regard, the ruling in this case should be sustained.
In testamentary cases in England, I am satisfied that it is the
universal practice of the Spiritual Courts to receive the opinions
of witnesses who are acquainted with, or have seen and conversed
with the alleged testator as to his competency. In White v.
Driver, which was the case of a contested will, Sir John Nicholl
laid great stress upon, if he did not wholly decide the cause, in
consequence of the favorable opinion of a friend of the deceased,
and of his clergyman, solicitors, nurses and apothecaries, against
the pretty strong testimony on the other side. Kinleside v.
Harrison, arose upon the probate of the will and codicil of a
person ninety years old. A great number of witnesses were
examined upon the question of the capacity of the deceased, who
freely gave their opinions upon one side or the other, differing
very much in their conclusions. Sir John Nicholl commenced
his elaborate judgment by some remarks upon the difficulties of
cases of this nature. In the first place, he said :
'It may be observed that a large portion of evidence to
capacity is evidence of mere opinion, and to matter of opinion
428 MEDICAL EVIDENCE.
mankind differ even to a proverb.' Further on, he observes,
that discrepancy would arise ; ' first, from the different abilities of
witnesses to form such opinions ; secondly, from their different
opportunities of seeing the person ; and thirdly, from the ditler-
ent state and condition of the testator's mind at different times.
It is certainly true, that the study of the human mind is an
abstruse science ; the different lines and traits of the understand-
ing are matters which attract the notice and consideration of the
intelligent. Ignorant persons and enlightened ones, will form
different opinions upon subjects of this kind ; ignorant persons,
servants, and those in their condition, who form their judgments
on the conversations of the kitchen circle, are very apt to form
erroneous opinions on matters of this sort ; and this will be the
case even without throwing in the additional ingredient which
takes place in those circles, the loose suspicions and prejudices by
which their judgments are often biased and carried out of their
true course. In the next place, from the different opportunities
persons have of judging, they will form different opinions ; per-
sons who see the testator only occasionally, will form different
opinions from those who have better opportunities of judging.
We know that little appearances, occurring in this way, are
extremely fallacious, yet we often find occasional observers
depose with great confidence. It frequently happens that the
most ignorant are the most confident. This kind of opinion is
still more various when the testator's capacity is fluctuating,
when he is sometimes better and sometimes worse ; and this is
generally the case with persons laboring under old age or other
infirmities ; it is so, even when there is no special attack occasion-
ally opemting; accidental cold or other indisposition often ren-
ders an old, infirm person worse one day than another. After a
good or bad night, a person will be alert or dull ; so, after a
night's sleep, a person may be active and capable of consider-
able exertion, even in matters of business, who, in the afternoon,
when the process of digestion is going on, shall appear drowsy
and stupid, and not able to rouse himself into action. The
OPINIONS OF LAYMEN, AS EVIDENCE. '429
humor of a testator will sometimes make him appear almost fatu-
ous, or induce him to rouse himself into exertion as the occasion
is either interesting or disagreeable to his inclinations. Now,
these considerations, while they tend to reconcile the apparent
contradictions of witnesses, render it necessary for the court to
weigh such evidence with great attention ; to rely but little upon
mere opinions ; to look at the ground upon which opinions are
formed, and to be guided in our judgment by facts proved and
by acts done, rather than by the judgment of others.' I have
referred to these remarks so much at large, depreciatory though
they are of the kind of testimony in question, in order to show,
that though opinions are entitled to but little confidence, except
when connected with and supported by facts, yet that it was not
thought of, that they might be excluded altogether as incompe-
tent. To show that opinions are habitually received and relied
on in these courts, when connected with facts, I might refer to
many decisions. The point does not seem to have been distinctly
decided in the courts of this State, if we except the recent case
in the Supreme Court hereafter noticed. In Jackson v. King,
where a conveyance was attacked for the alleged incaiiacity of
the grantor, unprofessional witnesses, who were acquainted with
him, were examined as to their opinions respecting the soundness
of his mind, without so far as it appears any objection having
been taken. Those who testified for the plaintiff, based their
opinions upon specific facts, which were held by the court not
sufficient to warrant the opinions which they expressed. In
Clark V. Fisher, which was an appeal from a decree of the Surro-
gate, admitting a v,i\\ to probate, testimony of the kind under
consideration had been received. In commenting upon it the
Chancellor, I think, recognizes the rule as contended fur by the
respondents in this case. He says, in commenting upon the
case, that 'the evidence of capacity, in most contested cases,
consists in the opinions of witnesses, sometimes with and fre-
quently without the particular facts on which such opinions are
founded.' After adverting to the unsatisfactory character of
430 MEDICAL EVIDENCE.
opinions generally, he adds ; ' It is for this reason that opinions
of witnesses are never received in evidence when all the facts
on which such opinions are founded can be ascertained and made
intelligible to the court and jury. And when the opinions of
witnesses, from the necessity of the case, are received as evidence,
the weight of testimony will not depend so much upon the number,
as upon the intelligence of the witnesses, and their capacity to
form correct opinions, their means of information, the unpreju-
diced state of their minds, and the nature of the facts testified
to in support of these opinions.' The case of Culver v. Haslam,
contains an able examination of the precise question now under
consideration ; and the conclusion arrived at by a majority of
the court, that the opinion of a witness acquainted with the indi-
vidual whose capacity is in question, in connection with those
facts and circumstances within the knowledge of the witness, is
admissible, meets with my entire assent."
Thus the question stands in New York, — the Court of Appeals
having decided with a heavy dissenting sentiment, that none but
professional witnesses are competent to testify on the subject of
insanity, while the Supreme Court admits the opinions of laymen,
— or did, before the Court of Appeals passed upon it. The ques-
tion can not, therefore, be considered as settled, even in that State.
In Pennsylvania, the point seems to be settled in favor of
admitting the testimony of non-professional witnesses. In the
case of Rambler v. Tryan,' the right of the defendant depended
upon the validity of a will, which was impeached by the plaintiff
on the ground of the imbecility of mind of the alleged testator ;
and witnesses who had known him intimately from his childhood
to his death, were offered to prove certain facts tending to show
an extraordinary dul ness of understanding, followed up by the
opinions of the witnesses, founded on these facts, that he was
incapable, from defect of understanding, to make a will. The
court admitted the evidence, and the defendent excepted. In
» 7 Serg. & Eawle, 90.
OPINIONS OF LAYMEN, AS EVIDENCE. 431
reviewing this ruling, the court said they did not know how
otherwise the alleged imbecility of mind could be proved, than
by the evidence of those who grew up with him, who marked his
conduct in infancy, in the prime of life, and in his decline. The
opinion of witnesses, they said, without stating the grounds of
such opinions, ought not to be received. But when they state
facts indicative of want of common intellect, their opinion is always
received. In Wogan v. Small,' on the trial of an issue of de-
visavit vel non, the plaintiff was allowed to ask a witness, sworn
in his behalf, whether, from his actual knowledge of Peter Eipe,
the supposed testator, he considered him unfit to make a will,
and a motion for a new trial for an alleged error in that respect
was denied.
The same view has been taken of the question, in Connecticut
An action on a promissory note was defended on the ground of
the insanity of the defendant. On the trial, the court rejected
the mere opinion of the witnesses, but permitted them to state
their opinions in connection with facts on which such opinions
were founded, that there was a continued and uninterrupted lunacy
and total want of understandinr;; of the defendant, commencino; at
a time prior to, and continuous at, and after the execution of the
note. The opinion of the court upon the exceptions, was given
by Chief- Justice Hosmer, who declared that the judge, at the trial,
" discriminated soundly and legally," and that the holding was
sanctioned by the usual practice of courts in such cases." In
the subsequent case of Kinne v. Kinne, similar testimony was
received, upon which the court remarked, that upon the facts
stated in support of the opinions, the triers would draw the infer-
ence as to the state of the testator's mind.
In Indiana, the rule is stated to be, that the opinions of unpro-
fessional witnesses may be taken as to the sanity of a testator
or grantor, but the facts upon which the opinions are founded
» 11 Serg. & Rawle, 141.
2 Grant v. Thompson, 4 Conn. 203.
432 MEDICAL EVIDENCE.
must also be stated.^ It has been so held in Tennessee, North
Carolina and Ohio."
The Supreme Court of Ohio, in passing upon this point, said :
"It may be impossible for a physician, who has not become
famihar by experience, with some of the peculiar, indefinable,
but certain indicia of insanity, in a case where it is feigned, to
determine that it is so, without watching the patient by night,
as well as by day, for some time, and when he does not know
that he is watched, to see whether he can resist hunger, cold and
sleep, and whether his conduct affords any sure test to distinguish
feigned appearances, assumed for a particular purpose, from a
case of real disordered intellect. It is idle to suppose that none
but medical men can do this ; and as idle to assume that, when
done by an intelligent observer, his conclusions would be worth-
less. Doubtless an opinion formed by a person professionally
conversant with disease, upon the same observations, would be the
most reliable ; but if formed upon any relation of the facts which
the observer would be able to give, it would be difficult to say, in
many cases, that it would be the safest. A careful daily observer
of a person feigning madness, would witness innumerable acts,
motions and expressions of countenance, which, with the attending
incidents and circumstances, conclusively satisfying him of the
fictitious character of the pretended malady ; but which he could
never communicate to a jury of scientific men, so as to give
them a fair conception of their real importance.
From the poverty of language, these facts, should a witness
attempt to detail them, would necessarily be mixed up with
opinions, general or partial, in spite of his best eflbrts to avoid it.
There are things well known to all persons, which our language
only enables us to express by words of comparison, — such are
the peculiar features of the face indicating an excitement of the
, 1 Doe V. Eeagan, 5 Black. 217.
2 Gibson V. Gibson, 9 Yerger, 329 ; Clary v. Clary, 2 Iredell's Law Kep. 78 ;
The State v. Clark, 12 Ohio, 483.
OPINIONS OF LAYMEN, AS EVIDExNCE. 433
passions, affections and emotions of the mind, as hope, fear, love,
hatred, pleasure, pain, etc. Testimony affirming the existence
or absence of either of these, is but a matter of opinion. So, the
statement of the fact that a man's whole conduct is natural, is but
the opinion of the witness, formed by comparing the particular
conduct t^poken of with the acts of the past life of the individual
It would hardly be claimed that such evidence should be ex-
cluded, yet it is equivalent to an opinion that the person is sane.
We are not now considering whether the professional witness
shall be permitted to give an opinion upon the question of sanity,
and under what circumstances, but whether, in the absence of
such testimony, and under any circumstances, an opinion may be
evidence, coming from non-professional witnesses. Medical testi-
mony is of too much importance to be disregarded. When
delivered with caution, and without bias in favor of either party,
or in aid of some speculative and favorite theory, it becomes a
salutary means of preventing even intelligent juries from follow-
ing a popular prejudice, and deciding on inconsistent and unsound
principles. But it should be given with great care, and received
with the utmost caution, and Hke the opinions of neighbors and
acquaintances, should be regarded as of little weight if not well
sustained by reasons and facts that admit of no misconstruction,
and supported by authority of acknowledged credit."
In Vermont, it is stated by the court, in two cases, that upon
questions of insanity, witnesses, not professional men, may be per-
mitted to give their opinion in connection with facts observed by
them ; but in neither of the cases was the question material to
the judgment which was given.^
In the Circuit Court of the United States, sitting in New
Jersey, it was held on trial of an issue devisavit vel non, that a
witness might be asked what opinion he had formed of the sanity
of the testator at about the time of the will beino- made.- It is
1 Lester v. Pittsfoid, 7 Verm. 158 ; Morse v. Crawford, 19 Id. 499.
2 Harrison v. Rowan, 3 Wash. C. C. K. 58a
28
434 MEDICAL EVIDENCE.
presumed that the witness was acquainted with the testator,
though the fact is not distinctly stated.
This exact question does not seem to have been decided in the
courts of Massachusetts. In Need ham v. Ide,' Morton, J.,
instructed the jury, in a probate case, to the efiect that the attest-
ing witnesses might lawfully give their opinions as to the testator's
sanity, "but that mere opinions of other witnesses were not com-
petent evidence, and were not entitled to any weight, farther than
they were supported by the facts and circumstances proved on
the trial." This charge was approved by the Supreme Judicial
Court." Judge Denio, in the case already referred to, says:
" If a rule could be formed which should confine the evidence of
opinions, in this class of cases, to witnesses who were well-informed,
judicious and discriminating, and whose opportunities of observ-
ing the mental operations of the individual whose competency
was in question, were ample, and who were, moreover, free from
bias, no one would seriously object to the doctrine of admitting
it to be given. But a rule so limited would be obviously im-
practicable, from the number of collateral issues which it would
involve. There are, however, certain qualifications which are
indispensable. In the first place, the witness whose opinion is
received, should be one acquainted with the person of whom he
is to speak, and should have heard him converse, and have ob-
served his conduct generally, or in respect to some particular
transaction, and the opinions should be such as the witness has
formed from his own observation, and not from information other-
wise derived ; and in the next place, if his opinion is unfavorable
to the competency of the party, he should relate, so fir as he is
able, the facts upon which it is based. With these necessary
limitiitions, we think such evidence should be received, and that
its weight may be safely left to the decision of the jury."
» 5 Pick. 510.
2 Dickinson v. Barber, 9 Mass. 225 ; Poole v. Kichardson, 3 Id. 33a
CHAPTER XXXI.
WHAT MENTAL INCAPACITY INVALIDATES A WILL. '
Wills are wholly void, unless the testator is in a competent
state of mind. Lord Coke laid down the rule of law upon this
subject, thus : " It is not enough," he tays, '• that the testator,
when he makes his will, should have sufficient memory to answer
familiar and usual questions, but he ought to have a disposing
memory, so as to be able to make a disposition of his lands with
understanding and reason ; this," he adds, " is such a memory as
the law calls sane and perfect."^ Mr. PhilUpps says : " Apparent
sanity, on some subjects, is not conclusive proof that delusion on
particular subjects, and showing itself on particular occasions,
does not exist. And it seems that, in civil cases, this partial
insanity, if existing at the time of an act done, invalidates that
act, though it be not directly connected with it. It has been
said, that, when there is delusion of mind, there is insanity ; as
when persons believe things to exist, which exist only, or, at
least, in that degree exist only, in their own imagination, and of
the non-existence of which, neither argument nor proof can con-
vince them, and which no rational person could have believed.
This delusion may sumetimes exist on one or two particular sub-
jects, though, generally, there are other concomitant circum-
stances, such as eccentricity, ii'iitability, violence, suspicion,
exaggeration, inconsistency, and other marks and symptoms
which may tend to confirm the existence of delusion, and to
estabhsh its insane character."
1 Stewart v. Lispenard, 26 Wend. 255 ; 9 Paige, 618.
2 Dew V. Clark, Etvst. T. 1826, Edited by Dr. Haggard.
(435)
436 MEDICAL EVIDENCE.
If a party impeaches the validity of a will on account of a
supposed incapacity of mind in the testator, frora whatever cause
it may proceed, whether from natural decay of intellect, from
derangement, or partial insanity, it will be incumbent on him
to establish such incapacity, by the clearest and most satis-
factory evidence.' The burden of proof rests upon the party
attempting to invalidate what, on its face, purports to be a legal
act. If he succeeds in proving that the testator had been alfec-
ted by habitual derangement, then it is for the other party, who
claims under the will, to adduce satisfactory proof, that, at the
time of making the will, the test^itor had a lucid interval, and was
restored to the use of his reason." Lord Thurlow has observed,
in the case of The Attorney-General v. Paruther, " that the evi-
dence in support of the allegation of a lucid interval, after the
proof of the derangement, at any particular period, should be as
strong a demonstration of such facts, as where the object of the
proof is to establish derangement. Perhaps it would be more
just to observe that, if on the one side derangement has been
clearly proved, a lucid interval must also be clearly and satisfac-
torally proved on the other side. But there appears no reason
for requiring, in the proof of each of these several ficts, pre-
cisely the same measure of evidence or the same degree of
demonstration. It is possible, that both f icts may be the most
satisfactorally established, though the proof in the one case may,
perhaps, not be stronger or so demonstrative as in the other.
Insanity, from its peculiar nature, admits of more easy and
obvious proofs, than the existence of a lucid interval. The wild-
ness and unnatural appearance of insanity can never be misunder-
stood ; but whether light and reason have been restored, is often
a question of the greatest difficulty. It may happen, therefore,
that insanity, at a particular period, is established by such a body
1 White V. Wilson, 13 Ves. Juris. 89.
2 Stewart v. Kedditt, 3 Md. 67 ; Levy v. Buffington, 11 Geo. R. 337 ; Fitz-
hugh V. Wilcox, 12 Barb. 235.
WHAT MENTAL INCAPACITY INVALIDATES A WILL. 437
of cogent evidences, as to dissipate every possible shade of doubt,
and to convince the mind of the truth of the fact, as strongly as
of its own existence. But to insist on the same weight of evi-
dence, and the same degree of demonstration in the proof of a
lucid interval, is requiring more than almost any case can be
expected to supply, and perhaps more than the nature of the
question will generally admit. It is scarcely possible, indeed, to
be too strongly impressed with the great degree of caution neces-
sary to be observed in examining the proof of a lucid interval ;
but the law recognizes acts done during such an interval as vahd,
and the law must not be defeated by any overstrained demands
of the proof of the fact."^
Nor can it be necessary to prove, that the patient had been
restored to as perfect a state of mind as that which existed before
his derangement, in order to be competent to make his will, or to
do any other legal act. " The strongest mind," says Lord Eldon,
" may be reduced, by the delirium of a fever, or some other cause,
to a very inferior degree of capacity ; but the conclusion is not
just, that because the person is not what he had been, he should
not, therefore, be allowed to make a will.'"- Mr. Philiipps says :
" A gi-eat intellect may lose half its powers, and still retain more
reason than falls to the lot of the common order of minds." All
that the law requires is that the person should be restored to a
"disposing mind," capable of doing an act of thought and judg-
ment ; not that he should regain all the powers of intellect which
distinguished him before the malady.^
Some important observations on the subject of lucid intervals
have been made by Sir W. Wynne, in a case lately reported, in
the Court of Prerogative. After observing that a person is not
incapacitated, even after general habitual insanity, provided there
is an intermission of the disorder at the time of the act, and
^ Sir John NichoU's Judgment in White v. Driver.
2 Exparte Holyland, 11 Ves. 11.
' Idem.
438 MEDICAL EVIDENCE.
that where an habitual insanity is established, then the party who
would take advantage of the fact of an interval of reason, must
prove such fact ; he proceeds thus : '' Now I think the strongest
and best proof, that can arise, as to the lucid interval, is that
which arises from the act itself; that I look upon as the thing to
be first examined ; and if it can be proved and estabhshed that
it is a rational act, rationally done, the whole case is proved. In
my apprehension, when you are able completely to establish that,
the law does not require you to go further; and the citation from
Swinburne states it to be so. The manner in which he has laid
it down is, if a lunatic person, or one that is beside himself at
times, but not continually, makes his testament, and it is not
known whether the same were made while he was of a sound
mind and memory, or not, then, in case the testament be so con-
ceived as thereby no argument of phrensy or folly can be
gathered, it is to be presumed, that the same was made during
the time of his calm and clear intermission, and so the testament
shall be adjudged good ; yea, although it can not be proved, that
the testator useth to have any clear and quiet intermissions at all,
yet, nevertheless, I suppose, that if the testament be wisely and
orderly framed, the same ought to be accepted for a lawful testa-
ment. Unquestionably, there must be a complete and absolute
proof, that the party who has so framed it, did it without any
assistance. If the fact be so, that he has done without assistance,
as rational an act as can be, what more is there to be proved ? I
do not know, unless it can be shown, by any authority, or law,
what the length of the lucid interval is to be, whether an hour,
a day or a month. I know no such law as that. All that is
wanting is, that it should be of sufficient length to do the rational
act intended. I look upon it, if you are able to estabHsh the
fact, that the act done is perfectly proper, and that the party who
is alleged to have done it, was free from the disorder at the time,
that is completely sufficient."'
1 3 Phillipps on Ev. 606-7 ; 1 Williams on Executors, p. 17 — 30 ; 1 Jarman on
Wills, cli. 3 ; Johnson v. Moore's heirs, 1 Little's Reports, 371.
CHAPTER XXXII.
POISONS— GENERAL PRINCIPLES AND OBSERVATIONS.
Next to the questions relating to insanity, those connected
with poisons give most trouble to the medical witness and to the
courts.
The plan we have adopted, and which will be followed as far as
possible in what we have to say on the subject of poisons, is to
simply record what is now considered settled and reUahle author-
ity in this department of Medical Jurisprudence. While this
course will greatly abridge the subject in some respects, compared
with the manner in which it is usually treated, it will also be more
satisf ictory and useful to the lawyer and to the medical witness.
The disputed questions, and theories connected with poisons,
must be fully discussed in the proper place ; but it is very ques-
tionable whether that place is within the narrow compass of a
text-book upon Medical Jurisprudence.
Those who would examine the matter in detail, will find all they
wish upon the subject in Taylor's work upon poisons, or that of
Mr. Christison, and also in the several works upon Materia
Medica, as well as in most works on Medical Jurisprudence.^
1 Taylor's Medical Juris.; Christison on Poisons; Palmer's Trial, England,
London Ed. 185G ; 2 Beck's Elements, p. 573 ; Orfila, Vol. 18, p. 5 ; Thomp-
son, p. 477 ; Guy's For. Med.; W. & S., Med. Juris. 501, 105 ; Wharton's Crim.
Law, p. 453 ; Wills on Circum. Ev. 209 ; Roscoe's Crim. Law, 702 ; Bishop's Crim.
Law, Sec. 1 517, 519 ; Mittermaier, Deutsch. Straf., Sec. 124 ; Meckel, Lehrb,
Sec. 145 ; Ann. d'Hygiene et de Med. Leg., Juellet, 1830, p. 365 ; Fodere Med.
Leg., 3, p. 449 ; Lafarge case, Raspoil, Paris, 1840 ; Puccinotti Med. Leg., p.
195 — 255 ; Celebrated Trials, p. 140. For a large number of references to
3-ermau and French authorities, sea American Criminal Law, p. 453 — 457.
(439)
440 MEDICAL E^TDENCE.
The great number of agents that may be poisonous to the
human system, — the imperfection of the tests used to detect
many of them, — the great variety of symptoms which result from
poisons, often resembling those attending natural disease, — the
diabolical skill and ingenuity practised by the criminal in their
administration, — all tend to complicate and embarrass the medical
witness in determining what poisonous agent has been used, if
any, and what its effect, in a case of alleged poisoning. Then
there are the idiosyncrasies of constitution, and active or latent
disease in the system, rendering the exact effect of a poison-
ous agent in many cases, extremely doubtful.
Although there may be at this day no professional poisoners,
like Brinvilliers, or Anna Maria Zwanziger, yet the increasing
frequency of criminal poisoning is actually alarming.
It appears from the Registrar General's Report and from other
sources, that in England there are about one thousand six hundred
known cases of poisoning per annum. We see no reason to
doubt but that the murders in this country, from poisoning, may
equal those of England, in proportion to our population. The
popular knowledge of the efiect of the most dangerous and deadly
of the poisons, and the facilities for obtaining them are such,
that poisoning has become, perhaps, the most common form of
homicide.
No class of cases, therefore, can be fraught with more importance
to the public, or to the individual arraigned for having adminis-
tered one of these deadly agents for the purpose of taking life.
In them the medical witness is aided by no well-defined lines,
or positive knowledge, as a general thing, in their elucidation,
except by analysis, in the case of a few poisons. He has not even
the aid of a clear definition of the term poison. It will trouble
him to draw a boundary hne between a poison and a medicine.
Dr. Taylor says it can not be done.
M. Bernard thinks a correct definition of a poison is impos-
sible. Let this be as it may, no complete definition is to be
found, notwithstanding almost every author upon the subject tiies
POISONS GENERAL PRINCIPLES AND OBSERVATIONS.. 441
to frame one. Legislators in their statutory acts, do not pretend
to define the meaning of the term when used therein. In the Eng-
lish statute, it is enacted mter alia, *' that whosoever shall adminis-
ter any poison or other destructive thing, with intent to commit
murder, shall be guilty of felony, and upon being convicted there-
of shall suffer death." Here the meaning of the two important
terms poison and destructive thing is to be determined by the
medical witness, if determined at all. And how can there be a
conviction until the terms of the statute are positively defined?
In Ohio, and perhaps most of the other States, the statutory
language is, "that if any person or persons shall administer
poison to another," etc., leaving the meaning of the term to be
settled by the courts.
Some articles, simple and harmless in themselves, as used by
people in general, may, by reason of some idiosyncrasy, be deadly
poisons to some. Yet, they are not poisons, in a general sense.
Those articles that act by reason of a peculiar temporary con-
dition of the system, as cold water on a heated circulation ; or in
a mechanical way, such as steel or glass, or needles, are not
poisons ; still the effect in some cases may be poisonous.
Dr. Guy defines a poison as follows : " A poison is any sub-
stance which, W'hen applied to the body externally, or in any way
introduced into the system, without acting mechanically, but by
its own inherent qualities, is capable of destro}ing life." Mr.
Ta} lor does not attempt a definition, but says : " Perhaps the most
comprehensive definition which may be suggested is this: A
poison is a substance which, when taken internally, is capable of
destro} ing fife without acting mechanically on the system." This
definition is at fault in this, making it essential that the agent
must be taken internally. Other attempts at a definition have
been made, but with no better success.
The term, deadly, is often used in indictments. It should not
be used unless it is certain that one of the most potent poisons,
like prussic acid or strychnine, has been given. When the ques-
tion is put to the medical witness, as to the deadly character of
442 MEDICAL EVIDENCE.
a particularly deleterious medicine, he should confine the term
deadly, to prussic acid, morphine, strychnine, and a few others of
the most virulent kind. Other agents, poisonous in their charac-
ter, may produce death, and in that sense they are deadly, but it
is those that produce death in small quantities, and with great
rapidity, that are really and technically '' deadly," in law or medi-
cine. Some poisons act upon specific organs, and leave other
parts of the system comparatively uninjured. Tobacco, hemlock,
digitalis and upas antiar, produce a paralyzing effect upon the
heart. Tartar emetic, inflames the mucous membrane and the
lungs. The narcotic, and narcotico-acrid poisons affect the brain.
Strychnia affects the spinal cord, producing violent attacks of
tetanus, and oxalic acid sometimes produces the same effect.
Arsenic also produces inflammation of the mucous membrane,
hke antimony, and sometimes affects the heart like digitalis, and
the brain like the narcotics, and the muscular system like lead.
Mercury attacks the salivary glands, cantharides the bladder,
manganese and copper the liver, iodine the lymphatic glands,
lead the muscular system generally, spurred rye — ergot, — pro-
duces gangrene of the limbs, and acts specifically upon the
uterus, and chromate of potassa, on the conjunctiva of the eyes.
Most poisons act by entering the circulation, while some operate
through sympathy. Some, that enter the blood-vessels, impress
the sentient extremities of the nerves, and hence are carried to
the great nervous centers, and to the organs, upon which they act
specificall}'.
The more soluble any poison is when administered, the sooner
and more certainly it operates upon the system ; and when mixed
with food or mucilage, the effect produced is comparatively slow
and uncertain. When there is a chemical combination formed in
the stomach, as a general result, the poison is destroyed.
It is a singular fact, that those animal poisons which find
their way into the system through a sting, or poisonous cyst, do
not always thus affect the system when introduced into the
stomach. Thus, the venomous poison from a viper or mad dog,
POISONS GENERAL PRINCIPLES AND OBSERVATIONS. 443
may be taken into the stomach with impunity. It would seem
that these poisons are not absorbed into the S}'stem through the
mucous membrane, but must be introduced directly into the
circulation.
While some poisonous agents, hke opium, alcohol and tobacco,
lose their effect by continued use, others, like arsenic and mercur}',
have a more positive and certain effect, the oftener they are re-
peated. Zinc and antimony, on the other hand, may be taken
by a healthy person, in continually increasing doses, with the
same eli'ect.
From some idiosyncrasy of constitution, some articles, whose
action is well known to be innocent in their general effect, may
prove a poison. Epsom salts has sometimes acted like opium,
and opium like the salts, — this, however, is rare. Ipecacuanha is
sometimes poisonous.
In disease, poisons do not act upon the system as in health ;
indeed, all medicines are said to be poisonous to the system in its
normal condition, but in disease they act differently, and, if given
properly, act innocently and beneficially. This does not apply
to those poisons, the action of which tends to produce the same
state that already exists ; for irritants would increase an inflam-
mation of the mucous membrane, if given internally, and narcotics
might aggravate a difficulty of the brain.
Poisoning may be reasonably suspected when a healthy person
is suddenly taken sick, after having swallowed moderately of a
usually healthy article. If the poison taken is soluble, the symp-
toms may appear suddenly, but if in a solid shape, hours may
elapse before the poisonous effect is produced, and the cause may
be thus entirely lost sight of
Much reliance may be placed on the post mortem appearances,
when any of the irritant poisons have been taken ; but the vege-
table poisons leave but few traces for the anatomist or pathologist
to follow indicative of the agent of death.
Tetanic convulsions are sure to attend poisonous doses of strych-
nine. When arsenic has been administered, there is generally, —
444 MEDICAL EVIDENCE.
but not always, — traces of its effects in the mucous membrane,
especially of the stomach. If it still exists in the system, the
chemist will find it, — even in the smallest quantities. It may
have been taken in sufficiently large doses to produce death, and
yet leave no post mortem appearance indicating that agency, —
not a particle being found by the chemist in the system, becaus >
vomiting will sometimes relieve the system from its presence, or
it may be eliminated by the kidneys, after having done the work
of death. The body of the deceased, having died from the etiect
of arsenic, is generally found in a wonderful state of preservation,
from the antiseptic nature of the poison.
Disease is liable to be mistaken for poisoning, and poisoning
for disease. Cholera may be mistaken for poisoning, because
of the suddenness of its invasion of the system, — the vomiting
and purging that attends it, — and its usual fatal termination. The
witness must study well the distinctive character of this disease.
Gastritis, enteritis, gastro-enteritis, and peritonitis, resemble, in
many respects, the effects produced by irritant poisons, as does
also perforation of the stomach and intestines. Intussusception
of the bowels may be taken for poisoning. Colic may be mistaken
for lead poisoning.
The above diseases are confounded with irritant poisoning ;
while apoplexy, epilepsy, tetanus, convulsions generally, diseases
of the spinal marrow and brain and heart, are, without much care
and experience, mistaken for neurotic poisoning. The efiect of
various accidents also, often resemble poisoning.
It is well to remember that sleep, intoxication, a full stomach
and disease, render poisons slower in their operation.
It is now well settled, that the system does not adapt itself,
as was once supposed, to the use of mineral poisons, so that a
I age quantity can be introduced by habit into the system with
impunity. The system may, to some considerable extent, become
reconciled to the use of vegetable or organic poisons, so that
large doses will be tolerated, as in the case of opium or tobacco.
If Mithridates fed on poison, until it became as nutriment,
POISONS GEKERAL PRINCIPLES AND OBSERTATIOyS. 445
the poison mu^t have been opium. It is, however, but a poetic
hcense, that permitted him to thus indulge in poisons until they
became a healthy diet
These are some of the general points with which the medical
witness should be fimiliar. The counsel alsfo, must understand
these leading and settled matters connected with poisons, for they
will, to some extent, aiise in every case of poisoning.
Mr. Taylor seems to think that in cases of poisoning, more
than in any other, the witness is apt to become a "professional
witness," or "turn advocate." If his professional brethren in
Eno-land are one half as bad as he represents them, the condition
of medical testimony in that country is truly deplorable. We
think, however, he has overdrawn the matter. At least, some
of his legal cotemporaries have felt called upon to criticise this
feature of his late work on poisons, and defend the medical
profession. In the London Law Magazine and Review we find
the following :
<' There is one point in Dr. Taylor's book which we can not
help alluding to. We mean the controversial and personal tone
which the author falls into too frequently,— unless indeed it is
unavoidable. In the present state of the practice of experts, and
the morale of 'professional witnesses,' it maybe true that an
upright and honorable mind can not avoid taking every oppor-
tunity of bitterly denouncing the abuse of scientific knowledge,
and the disregard of the responsible office of assisting public
justice, and securing private rights. . Yet we wish the frequency
of the attack and exposure of the conduct of certain well-known
professional men, were not so perpetually recurring, and so broadly
put forth. We are flir from saying that the author condemns
unfairly ; but is it necessary in a standard work to adopt the
bitter and pointed language which we are now noticing? We are
fully aware of the evils he complains of; indeed, in an article m
the Law Magazine for August, 1856, ('The Evidence in Palm-
er's case,') we have ourselves expressed our opinions strongly
with regard to the disreputable mode in which Medical Evidence
445 MEDICAL EVIDENCE.
is proffered. We there have said : ' The witness-box seems to
be sought by some as a cheap advertisement, by others as the
means of contradicting or discomfiting a rival ; but from what-
ever cause it may arise, the worst danger to the administration
of justice, and the greatest injury to the scientific character, will
be incurred whenever it shall be known that professional wit-
nesses may be retained to establish indifferently a case for either
side. This is no fanciful danger ; for we believe that there are
few lawyers of considerable practice who could not, within their
experience, give instances of the profligacy with which scientific
testimony is tendered, and not in criminal cases only.' And
again : ' That there have been frequent occasions when (to use
Lord Campbell's expression,) the medical witness is turned into
the * retained advocate,' is as true as it is grievous, and when
such occasions occur they call for most unrelenting comment.'
It is not, therefore, that we do not concur with the author in
condemning notorious and scandalous misconduct of so-called
scientific ' professional ' witnesses ; but we think, in a standard work
Uke Dr. Taylor's, contemporary culprits need not be so perpetu-
ally pilloried. We get tired of perpetually seeing notes of admir-
ation placed after the assertions, doctrines, and imperfections of
Dr. Letheby and Mr. Herepath. These seem to be Dr. Taylor's
especial aversion, and their inconsistencies are frequent themes
of observation. One effect of Dr. Taylor's remarks on this head
will be, that every unscrupulous jail attorney or accomplice of
felons, who seeks to have a case made out, go up, or carried
through, has had plainly indicated to him that there is a market
of ' scientific evidence,' where he can procure the testimony best
suited to his wants."
We see no reason why the medical witness should yield to
improper influences in cases of poisoning particularly; — the
difficulties of these cases, may, and probably do, leave a wider
margin for a difference of opinion, than in almost any other, and
the importance of the issue gives to attorneys good cause, as they
think, to magnify these differences ; but medic:il witnesses certainly
POISONS — GExXERAL PRINCIPLES AND OBSERVATIONS. 447
should not. There is no doubt but that most Medical Evidence
in cases of poisoning, requires a vigorous cross-examinat on to
strip the subject of the mere theory and speculation of witnesses,
as well as to determine his honesty and intelligence. The Palmer
case, and a gi'eat many others upon record, illustrate this necessity.
In most cases, when a mineral poison has been given or taken,
a well-informed and expert chemist will detect it. It may, how-
ever, require a long and laborious investigation. The substance
used, not being known, the experimenter may have to go through
a large range of poisons. Hence, the necessity for a liberal pro-
vision by law being made, both to encourage and to compeubate
the chemist in making thorough investigations. When there is
fallacy or error, it usually results from t^e fact that the chemist
did not spend time enough upon the case, in trying the several
tests as thoroughly as certainty demands. So certain is science
in this department, that its results are almost always conclusive
and correct, in regard to certain poisons. The examination of
the body, together with an examination of the dishes used, the
victuals last eaten from, the matter ejected from the somach, and
a careful consideration of all the circumstances attending the last
sickness, will almost invariably enable the medical witness to
detect the cause of death, if from poison. It has already been
said, that the presence of poison in the stomach or body does not
prove the corpus delicti, nor do the other circumstances just
enumerated ; but when the inference is strong, and the concurrent
evidence of the symptoms of the disease of such a nature as to
make any other presumption less probable, the oflense is suf-
ficiently established.
When the poison is found in the body, or when the unmis-
takable symptoms of poison are present, and unaccounted for,
the probabilities are greatly increased that the death was from
poison. Still, it must be remembered ; 1, That the absence of
poisons in the body, or the failure to find it, does not prove that
poison was not the cause of death; 2, That though it is
clearly established that poison was taken, it does not prove that
448 ' MEDICAL EVIDENCE.
the death resulted therefrom ; 3. That though poison is found in
the immediate vicinity of the deceased, it don't necessarily follow
that he partook of it; 4. Though there may be no trace of
poison in the body, as is often the case when vegetable poisons
have been taken, the surrounding circumstances and symptoms
may point directly to a poisonous ngenfc. Mr. Taylor properly
cautions the medical witness against giving a positive opinion,
before the process of chemical analysis is complete, when it is insti-
tuted. Tho-e who are interested, are very apt to urge the medical
witness to give an opinion before he has had time to thoroughly ex-
amine the case. It often happens that the last step in the analy-
sis, is the one that determines the question of poison or no poison.
In the Boughton case, Dr. Rattray gave an opinion in the first in-
stance, that the poison administered to the deceased was arsenic,
but he subsequently attributed death to laurel-water. Taylor
speaks of a case where arsenic was pronounced to be present,
when really sulphuric acid was the poison ; and of another case,
where the medical witness stated at the coroner's inquest, that it
was arsenic, when it was afterward found to be oxalic acid. In
another case, the witness said oxahc acid had been given, when it
turned out to be arsenic.
This mistake respecting the nature of the poison, not only
impedes and prevents the attainment of justice, but it seriously
affects the leputation of a witness. It all arises from, either
ignorance, or from hasty and ill-formed opinions. It is a rule,
that no opinion should be formed from a few experiments, and ;
2. That no opinion should be expressed until the analysis is
completed. Where the medical witness is obliged to acknowl-
edse, on cross-examination, that he has once been mistaken on a
question so important, and requiring so decided an answer, a
jury may be induced to believe that the witness may have made
a second mistake, and that his last positive opinion, is of no more
value than that which he first expressed, and afterward retracted.^
» Taylor's Med. Juris. 66.
POISONS GENERAL PRINCIPLES .\ND 0DSERVATI0N5. 449
We will next examine the action of the courts, in regard to
cases of poisoning and Medical Evidence therein, before we pro-
ceed to consider the different kinds of poisonous agents. As
most substances denominated poisons, may, under certain circum-
stances, be used and act as medicines, and, under other circum-
stances, the same agents may be dangerous to life or injurious to
health ; the intent of the party determines the character of the
act. Upon this intent, therefore, more than upon the exact
nature of the agent used, does the criminality of the act depend.
Mr. Roscoe makes the following judicious remarks, on the
evidence of medical men in cases of murder by poisoning : " In
proving murder by poisoning, the evidence of medical men is
frequently required, and in applying that evidence to the facts
of the case, it is not unusual for difficulties to occur. Upon this
subject the following observations are well deserving of attention.
In general, it may be taken, that where the testimonials of pro-
fessional men are affirmative, they may I e safely credited ; but
where negative, they do not appear to amount to a disproof of
a charge otherwise established by strong, various, and independ-
ent evidence. Thus, on the view of a body after death, on sus-
picion of poison, a physician may see cause for not positively
pronouncing that the party died by poison ; yet, if the party
charg'ed be interested in the death, — if he appears to have
made preparations of poison without any probable just motive,
and this secretly ; if it be in evidence that he has in other
instances brought the life of the deceased into hazard ; if he has
discovered an expectation of the fatal event ; if that event has
taken place suddenly, and without previous circumstances of ill-
health ; if he has endeavored to stifle the inquiry by prematurely
burying the body, and afterward, on inspection, signs agreeing
with poison are observed, though such as medical men will not
positively affirm could not be owing to any other cause, the
accumulative strength of circumstantial evidence may be such
as to warrant a conviction, since more can not be required than
that the charge should be rendered highly credible from a variety
29
450 MEDICAL EVIDENCE.
of detached points of proof, and that supposing poison to have
been employed, stronger demonstrations could not reasonably
have been expected, under all the circumstances, to have been
produced."^
The same distinguished author, makes this distinction between
principal and accessory, in cases of murder by poisoning, and
murder resulting from other causes. " With regard to the law
of principal and accessory, thei-e is a distinction between the
case of murder b}^ poison, and other modes of killing. In gen-
eral, in order to render a party guilt}' as principal, it is neces-
sary, either that he should, with his own hand, have committed
the oflense, or that he should have been present aiding and
abetting ; but in the case of killing by poison it is otherwise.
If A., with an intention to destroy B., la)'s the poison in his
way, and B. takes it and dies. A., though absent when the
poison is taken, is a principal. So if A. had prepared the
poison, and delivered it to D., to be administered to B., as a
medicine, and D., in the absence of A., accordingly administered
it, not hiotving that it was poison, and B. had died of it. A.,
would have been guilty of murder as principal, for D. being
innocent, A. must have gone unpunished, unless he could be
considered as principal. But if D. had known of the poison as
well as A. did, he would have been a principal in the murder,
and A. would have been accessory before the fact."*
Where an indictment for the murder of A. B, by poison,
stated that the prisoner gave and administered a certain deadly
poison, and was supported by proof that the prisoner gave the
poison to C. D. to administer as a medicine to A. B., but C. D.
neglecting to do so, it was accidentally given to A. B. by a
child, it is sufficient ; the prisoner's intention throughout being
to murder.^
* Eoscoe's Crimina] Evidence, 701.
2 Roscoe's, Ci-ira. Ev. 702 ; Foster, 349.
3 R. V. Michael, 2 Moo. C. C. 120 ; .38 Eng. Com. L. R. 152.
POISONS GENERAL PRIXCIPLES AND OBSERVATIONS. 451
It has been held that an " attempt to poison," is not committed
by administering a substance not poisonous, even though believed
to be so ; because, if it actually killed the person, he would not
have been poisoned to death.^
Though the poisonous article given may be completely protect-
ed, so that its poisonous properties are not manifested, the intent
being to kill, the person administering it, is as guilty as if it had
not been thus protected. The English judges have unanimously
held, under a statute against administering "poison or other
destructive thing," with intent to kill, that cocculus indicus
berries, while inclosed in their exterior pod unbroken, given to
a child nine weeks old, are poisonous ; though, by reason of this
covering, over the poisonous part, they could not, as they did not,
harm the child.^
An indictment for mixing sponge with milk, with intent to
poison, has been held bad, for not setting out that the sponge was
of a deleterious or poisonous nature.^
When the prisoner gave the prosecutor a cake containing
poison, which she merely put into her mouth, and spit out again
without swallowing it ; the judge held that a mere delivery did not
constitute a crime within the act of 43 Geo. 3, c. 58, and that
there was no administering unless the poison was taken into the
stomach.^ Harley's case settles the point, that to constitute an
administering, there need not be an actual delivery by the hand
of the prisoner.
A servant having put poison into a coffee-pot, and when her mis-
tress came down to breakfast, told her that she had put the coffee-
pot there for her, and the mistress drank of the poisoned coffee ; it
1 The State v. Clarissa, 11 Ala. 57 ; Commonwealth v. Manley, 12 Pick. 173 ;
Rex V. Coe. 6 Car. & P. 403 ; Reg. v. Williams, 1 Den, G. C. 39 ; Rex v. Hughs,
5 Car. & P. 126 ; Rex v. Leddington, 9 Car. & P. 79.
2 Reg. V. Cluderay, 1 Den. C. C. 515 ; Car. &. K. 907 ; 1 Temp. &. M. 219.
3 Rex. V. Powells, 4 Car. &. P. 571.
* Codman's case ; Harley's case, 4 C. & P. 370, where the Report of this Case
in 1 Moo. C. C. 114 is stated to be inaccurate.
452 MEDICAL EVIDENCE.
was held by Park, J., that it was not necessary, in order to an
" administering," that there should be a delivery by the hand,
and that this was '• a causing to be taken," within the 9 Geo. 4.
So, where the prisoner knowingly gave poison to A., to adminis-
ter to B. as a medicine, and it was accidentally given to B. by a
child, the judge held this to be an administering by the prisoner.^
When A. sent poison, intending it for B., with intent to kill B.,
and it came into the possession of C, who took it, but did not
die, Gurney, B., held this to be an administering within the
statute."
Where poison is given to produce abortion, the nature of it
must be proven.
It is to be borne in mind, that because poison has been ad-
ministered, it does not follow necessarily, that the death resulted
therefrom.^
Either because poisoning is more frequently practiced in
Europe than in this country, or for some other reason, a more
thorough legal examination is made there, on the least suspicion
of poisoning, than here. In Germany, in particular, it is the duty
of the officer who prosecutes, as soon as there is the least sus-
picion, to secure the seivices of thorough chemists, and a pro-
fessed forensic physician, to make an analysis and pathological
diagnosis of the case. In this country, the law does not make it
the duty of any person to make these examinations, which are
of the greatest importance in detecting the presence of poison.
It is usually done in important cases, but it is done voluntarily
by the profession, and usually without any certain prospect of
an adequate compensation. The chemical analysis of the viscera
of a dead person, in search of an unknown poison, is a tedious
process, often costly and nauseating in the extreme. The courts
should pay the chemist liberally.
1 R. V. Michael, 2 Moo. C. C. 120 ; 9 C. &. P. 356.
2 R. V. Lcwins, C. C. &. P. 161.
3 Wills on Circum. Ev. 209 ; Wharton's Grim. Law, Sec. 749.
CHAPTER XXXIII.
ARSENIC— FATAL DOSE— SYMPTOMS— POST MORTEM EXAMINATIONS.
Arsenic is perhaps the most popular criminal poison in exist-
ence, or the agent most frequently selected for criminal purposes ;
while opium is the one most commonly selected by the suicide.
The fatal properties of arsenic being generally known, — the
small quantity required to produce a deadly effect, — the facility
and certainty of its action, — its acquisition being eas}-, and the
effect resembling the symptoms of inflammatory disease ; all tend
to make it the most common drug employed by the murderer.
This poison is better known and understood by toxicoligists than
any other.
Arsenic is not a natural or constituent element of the human
body, nor does it remain there indefinitely when taken.
Properties of Arsenic. — Arsenic is slightly soluble in cold
water, dissolving from one half to a grain of arsenic to the ounce
of water. In hot water more of the mineral is held in solution.
The presence of organic matter in the liquid, renders the poison
less soluble, as in the case of milk, or tea, with milk and sugar.
Though less soluble in milk, coffee, tea, brandy and the like, than
in distilled water, it is sufliciently so to render those articles
poisonous. Mucilaginous Hquids suspend the arsenic mechanic-
ally. Mr. Taylor says : " A medical witness must always take
care to draw a distinction between the actual solution and the
mechanical suspension of the poison in a viscid liquid, especially
when it is necessary to determine whether the quantity taken was
sufficient to kill." The case of Madeline Smith involved a point
of this nature. A doubt was raised whether eighty-eight grains
(453)
454 MEDICAL EVIDENCE.
of arsenic, (found in the stomach,) could have been taken unknow-
ingly, and it was considered difficult to suggest a vehicle in which
so large a dose could have been secretly administered. There is
no doubt that this, or even a still larger dose of powdered arsenic
might be secretly administered in such liquids as gruel or cocoa.
Fatal Dose. — Dr. Christison places the smallest fatal dose of
arsenic in powder at thirty grains. It produced death in six
days. The smallest fatal dose in solution he puts at four and a
half grains, killing a child of four years of age in six hours.
Mr. Guy thinks the minimum of a fetal dose is four and a half
grains. Prof R. 0. Doremus, a distinguished chemist of New
York, stated in the Stephens case, where he was a witness, and
testified with great credit to himself and honor to his profession,
that "a fatal dose of arsenic was variously estimated, at from
one quarter to four grains," the amount requisite to produce
death, depending upon the manner of its administration, and age,
constitution, etc., of the victim.
Mr. Taylor says : " facts will justify a medical witness in stat-
ing that, under circumstances favorable to its operation, the fatal
dose of this poison is from two to three grains. When the dose
is below two grains, although the symptoms of poisoning may be
violently developed, the person generally recovers."
While the general rule may be as above stated, yet, a very
small dose will sometimes produce dangerous symptoms or even
death, while in other cases a very large amount may be taken
without such a result. Dr. Burns has reported the case of a
young female, who very nearly lost her Kfe from one-fifth of a
grain of arsenic. Mr. Taylor mentions a case where a physician
took sixty grains and recovered, though suffering severely.
The medical witness should not be expected to give the quan-
tity of a dose of arsenic from subsequent appearances, nor the
time when taken.
Symptoms — Different persons are affected variously by arsenic,
as to the length of time that transpires before the symptoms appear,
as well as to the attending symptoms themselves. Within an
ARSENIC FATAL DOSE SYMPTOMS. 455
hour after the poison is taken its effects are usually manifested.
Dr. Christison has seen an instance where the symptoms appeared
in eight minutes, and Mr. Taylor has known them to appear in
fifteen minutes ; and on the other hand, he mentions a case where
one drachm was taken on an empty stomach and no symptoms
appeared for two hours. Dr. Thompson gives a case, in which
from thirty to forty grains of arsenic were taken, and yet there
were no symptoms of poisoning for five or six hours. A case is
mentioned where the poisonous effects did not appear for ten hours.
This case Mr. Taylor calls "the maximum period yet known."
The exact nature of the symptoms of arsenical poisoning
and their distinctive features, should be well understood by the
medical witness, so far as it is possible.
In an acute case, the first symptoms manifested are faintness,
nausea, with an intense burning pain in the stomach, which is
increased by pressure. This pain in the stomach, Mrs. Stephens
described as a " ball of fire." The matter vomited is generally
turbid and brown, mixed with mucus, and occasionally with blood.
There is also at times purging, with cramps. The color of the
matter vomited, depends partly upon the kind of arsenic taken,
and its nature may, therefore, be inferred sometimes from the
color of the evacuations. In the case of L'Angelier, who was
supposed to have been poisoned by Madeline Smith, it was in evi-
dence that he vomited a greenish colored matter of the thickness of
gruel, and it was therefore inferred that the blue arsenic was
used. Blue arsenic was traced to the prisoner.^ There is intense
thirst, constrictions, and burning in the throat. The pulse is
small, frequent, and irregular ; the skin cold and clammy in the
latter stage, when there is also paralysis, tetanic convulsions, or
spasms. These symptoms are in general continuous in fatal cases,
though there may be remissions or interruptions. Some of these
symptoms, if not all, will be present in almost every case of
arsenical poisoning.
' Keg. V. Smith, Irvine's E. 30, Edinburgh ; Taylor.
456 MEDICAL EVIDENCE.
In a case recorded by Taylor, three hundred and forty children
were poisoned at one time accidentally, and the symptoms in them
all varied but slightly. There was shivering, with pains in the
stomach and bowels, and vomiting of a clear mucous fluid of a
green color.
In case of chronic poisoning, there will be inflammation of the
conjunctiva, with suffusion of the eyes and intolerance of light.
This may take place in acute poisoning. The skin become af-
fected by a vesicular eruption called " eczema arsenicale." The
symptoms that follow chronic poisoning are those that indicate a
general and rapid giving way or breaking up of the powers
of life.
Post mortem Appearances. — Arsenic produces but few changes,
as shown by a post mortem examination, except in the stomach
and intestines. Having a specific effect upon the mucous mem-
brane of the stomach, it is in that organ that the greatest visible
effects are found. It generally presents a red, inflamed surface.
Mr. Taylor says : " The mucous membrane of the stomach, which
is often covered with a thick layer of mucus mixed with blood,
and with scattered, white, pasty-looking patches of arsenious acid,
is commonly found red and inflamed ; the color, which is some-
times of a dull or brownish red, becomes brighter on exposure to
the air, at other times it is of a deep crimson hue, interspersed with
black-looking streaks or patches of altered blood. The redness
is usually most strongly marked at the greater extremity : in one
case it may be found spread over the whole mucous surface,
giving to it the appearance of red velvet, — in another it will be
chiefly seen on the prominences of the folds. It frequently
assumes a dotted or striated form, stretching in curved lines
between the two openings of the stomach. Blood of a dark color
is effused in various parts between the folds, or beneath the lining
membrane, an appearance which has been mistaken for gangrene.
The stomach often contains a mucus liquid tinged with blood.
The coats are sometimes thickened in patches, being raised up
into a sort of fungus-like tumor, with arsenic imbedded in them;
ARSENIC POST MORTEM APPEARANCES. 457
at other times they have been found thinned ; and in others of a
glutinous consistency and appearance. The mucous membrane is
rarely ulcerated, and still more rarely gangrenous. Perforation
is but very rarely found after arsenical poisoning."^
Inflammation will supervene in from two to six hours after the
poison has been taken, and even ulceration has been produced
within the last named period. It is well settled, that inflam-
mation is not invariably present, though death may have resulted
from the elFect of arsenic. Mr. Taylor says : " Medical evidence
of poisoning from appearances after death, is, in such cases,
entirely wanting; they are not very common, but still their
occurrence proves, that unless great care be taken in forming an
opinion, a case of arsenical poisoning may be easily overlooked.
They teach this important fact in legal medicine, that the non-
existence of striking changes in the alimentary canal after death,
is no proof that the party has not died fiom the effects of arsenic.
When the dose of arsenic is small, well-marked changes in the
body are rarely met with."
Elimination of Arsenic — Experiments upon animals show that
arsenic is not only rapidly taken from the stomach into the
system by absorption, but that it is equally rapidly eliminated
and thrown off from the body, and from analogy, it follows that
the same process goes on in the human subject. Actual observa-
tion in the human subject sustains this position. In this c ise, as
in others, when an injurious agent finds its way into the system,
there is an effort of nature to relieve itself by completely driving-
out the enemy. Orfila thinks thit arsenic does not remain in
the living body over twelve or fifteen days at the longest, and
that, very often it is removed in much less time. This elimi-
nation goes on through the kidneys, skin, and intestinal canal.
Arsenic has been found in the liver and other organs, in fatal
cases, in four hours by Taylor, and in ten hours by Chevaliier,
after being taken. Notwithstanding the kidneys are the main
1 Taylor oa Poisons, 336.
458 MEDICAL EVIDENCE.
channel through which the eHmination takes place. Arsenic may
exist, in the system to a fatal extent, as in the case of the Duke
de Praslin, and yet not show itself in the bile or liver.
Arsenic may be eliminated from all parts of the system, and yet
remain in certain organs, as the Uver. After death, arsenic does not
penetrate the liver by imbibition from the stomach. The liver
does not eliminate through the stomach. Mr. Taylor says : " In
the case of Reg. v. Hunter, a medical witness was asked how long
a period was required for the entire removal of arsenic (by absorp-
tion) from the body. There was reason to believe that the
deceased had died from the effects of arsenic ; but a difficulty in
the case was, that although he had died within the short period of
three days after the dose of arsenic could have been administered
to him by the accused ; and although the symptoms and the
appeai-ances in the body were such as might have been caused
by arsenic, not a trace of that poison could be found in the
stomach or bowels, or in their contents. The question, therefore,
was, if this man had really died from arsenic, could every par-
ticle of the poison have been carried out of his body within the
period of three days ? The analysis of the tissues was not so
well understood then as it is now ; but had these been examined,
some absorbed arsenic might have been found, and the question
thus practically solved. The medical witnesses answered the
question by saying, that they thought the whole of the arsenic
taken by deceased might have been removed from the body in
three days, partly by vomiting, partly by purging, and partly by
absorption, the poison being carried off' by the urine and cutane-
ous exhalation. The answer was correct so for as it applied to
their chemical examination ; because they sought for the poison
only in a free state in the contents of the stomach and bowels ;
and violent vomiting and purging might thus have got rid of a
single dose taken three days previously ; but it could not be
applied to arsenic deposited in the liver and other organs."
CHAPTER XXXIY.
TAYLOR'S ANALYSIS OF ARSENIC.
A MOST important subject connected with the Medical Evi-
dence of arsenical poisoning, and the point upon which most
cases turn, is the analysis of the mineral, or the chemical process
by which it is detected.
That this process may be well understood, at least by the medi-
cal witness and the attorney, we here give Mr. Taylor's Analysis,
as found in the late edition of his valuable work on poisons. It
is the fullest and most reliable exhibit of the chemical experiments
upon which the life of the alleged criminal, and the safety of
society, often depend.
TAYLOR'S CHEMICAL ANALYSIS.
Arsenic as a solid. — In the simple state, white arsenic may be
identified by the following properties: 1. A small quantity of the
powder, placed on platina-foil, is entirely volatilized at a gentle
heat (380°) in a white vapor. Should there be any residue it is
impurity. If a small portion of the white powder be gently
heated in a glass tube of narrow bore, it will be sublimed, and
form a ring of minute octahedral crystals, remarkable for their
lustre and brilliancy. Under a microscope of high magnifying
power (250 diameters) the appearance of these crystals is
remarkably beautiful and characteristic ; one not exceeding the
4000th of an inch in size may be easily recognized by the aid
of this instrument. The form is that of the regular octahedron,
of which the sides are equal. The crystals are frequently
grouped, or nucleated j^ the solid angles are sometimes cut ofij
(459)
460 MEDICAL EVIDENCE.
and occasionally equilateral triangular plates are seen. The forms
are various ; but all are traceable to the octahedron. Crystals
which do not exceed the 10,000th, or even the 16,000th of an
inch in diameter, present these microscopical characters distinctly ;
and the 1000th part of a grain of white arsenic will furnish
many hundreds of crystals visible under the microscope. Gener-
ally speaking, the smallest crystals are those in which the octa-
hedral form is the best defined. 2. If a portion of the powder
be introduced on a fine platina wire into the edge of the flame of
a spirit-lamp, it will impart a steel-blue color, and evolve a white
vapor. It will be observed, in these experiments, that white
arsenic in vapor possesses no odor. 3. On boiling a small quan-
tity of the powder in distilled water, it is not dissolved ; but it
partly floats in a sort of white film, and is partly aggregated in
small white masses, at the bottom of the vessel. It requires long
boiling, in order that it should become dissolved and equally dil-
ilised through water. This was a point of some importance in
the case of Reg. v. Lever. A question here arose, whether arse-
nic would float on tea. I have observed that the film formed on
putting powdered arsenic into a vessel of cold water, remained
for five weeks on the surface, notwithstanding the occasional
agitation of the vessel. 4. On adding a few drops of a solution
of potash to the mixture of arsenic and water, and applying heat,
the poison is entirely dissolved, forming a clear solution of arsenite
of potash. 5. The powder is soluble by heat in hydiocholoric
acid, and when a piece of bright copper is immersed in the solu-
tion, it acquires a dark iron-gray stain from the deposit of metallic
arsenic. 6. When the powder is treated with a solution of hydro-
sulphuret of ammonia in a watch-glass, there is no immediate
chiuge of color as there is with most metallic poisons. On heat-
ing the mixture, the white powder is dissolved; and on continu-
ing the heat until the ammonia is expelled, a rich yellow or
orange-red film is left (sulphuret of arsenic), which is soluMe in
all alkalies, and insoluble in hydrochloric acid. This }'ello\v com-
pound is produced from the mixture by spontaneous evaporation.
Taylor's analysis of arsenic. 461
A solution of sulphuretted hydrogen colors it slowly, and leaves,
by evaporation, the same yellow compound. 7. It is oxidized
and dissolved when heated in strong nitric acid ; and on evapor-
ation to dryness on a sand-bath, it leaves a white deliquescent
residue (arsenic acid), which, when dissolved in a few drops of
water, produces a brick-red colored precipitate with a solution of
nitrate of silver. 8. When the powder is heated in a tube with
two or three parts of charcoal, or of a carbonaceous flux, it yields
an iron-gray sublimate of metallic arsenic, which has an odor of
garlic as it is evolved in vapor. This is called the " reduction
test or process."
Reduction process. — The best reducing agent is soda-flux, ob-
tained by incinerating neutral acetate or tartrate of soda, in a
covered platina crucible. When the qumtity of arsenic is from
one-fourth to one-twentieth part of a grain, the tube emplo\ed
for this experiment may be three inches long, and from one-eighth
to one-sixth of an inch in diameter. When the arsenic is in still
smaller proportion, a tube of smaller diameter should be used ;
or, as recommended by Berzelius, the closed end of the tube may
be drawn out into a bulb with a narrow neck. The sublimate of
metallic arsenic is then concentrated in the slender neck, instead
of being diffused over a large surface of gliss. lieat should be
gradually applied, first to the glass above the mixture, and then
to the mixture itself As the alkali in the flux retains some
arsenic, it has been suggested that a slip of charcoal should be
employed in place of soda-flux when the quantity of arsenic is
very small. I have, however, never found it necessary to resort
to the use of charcoal. The reduction process with the soda-flux
will be found sufficient for any quantity of arsenic that is visible
to the eye.
During the application of heat to the mixture in the tube,
there is a perceptible odor resembling that of garlic, which is
possessed by metallic arsenic only while passing from the state
of vapor to arsenious acid. This odor was at one time looked
upon as peculiar to arsenic, but no rehance is now placed on it as
462 JIEDICAL EVIDENCE.
a matter of Medical Evidence, — it is a mere accessory result.
Many mistakes were formerly made respecting it. Thus, we find
it stated to have been perceived under circumstances in which it
could not have been produced ! It was not then known that
white arsenic (arsenious acid) possessed no odor in the state of
vapor.
In this experiment of reduction, there are commonly two
sublimates or rings deposited in the tube; the upper ring has a
brown color, and appears to be a mixture of finely divided metal-
lic arsenic and arsenious acid, or, according to some chemists,
a sub-oxide, more volatile than the metal. The lower ring is
smaller, well defined, and of an iron or steel-gra}^ lustre. This is
pure metallic arsenic. In order to determine the tveight of the
siihlimate, the glass tube should be filed ofl' closely on each side
of the metallic rings, and weighed ; the sublimate may then be
driven off by heat, and the piece of glass again weighed; the
difierence or loss represents the weight of the sublimate. These
sublimates are remarkably light, and require to be weighed in a
delicate balance. I found, in one experiment, a large sublimate
to weigh no more than -08 grains. By heating gently the piece
of tube, reduced to powder in an agate-mortar, in another tube of
larger diameter, the metallic arsenic, during volatilization, forms
octahedral crystals of arsenious acid, which, after examination by the
miscroscope, may be either dissolved in a few drops of water, and
tested by the liquid tests, or submitted to the process mentioned
heretofore. This process is as satisfactory as the application
of the liquid tests, and it has the advantage of not leading
to the subdivision and dilution of a small quantity of arsenic.
One of the metallic rings should be also submitted to the action
of nitric acid, — converted to arsenic acid, and tested by nitrate
of silver. Dr. Christison states, that by the reduction process a
distinct metalHc subHmate may be obtained from the 300th part
of a grain of arsenic. These sublimates may be preserved
unchanged for years by filing off the ends of the tube, and then
hermetically sealing them in the flame of a spirit-lamp.
Taylor's analysis of arsenic. 463
Objections to the reduction process. — The demonstration of
the presence of arsenic is complete when all the results I have
described are obtained. The other tests are useful, as indicating
the properties of arsenic, but they are not necessary when metallic
sublimates, convertible to octahedral crystals by heat, and to
arsenic acid by the action of nitric acid, have been procured.
With such evidence of the chemical nature of the sublimates as
that above described, there are no reasonable objections to the
reduction process. Cadmium, selenium, and mercur}^ produce
sublimates, but these do not possess the appearance ur properties
of the arsenical sublimate. Fixed stains in the glass tube from
the presence of lead, or from adhering charcoal, can not be mis-
taken for a volatile metallic deposit. Arsenic is sometimes used
in the manufacture of glass, but the whole is volatilized during
the process. It is contained as an ingredient in some kinds of
opal glass ; but this is not used for chemical purposes. The pro-
cess of reduction, therefore, with the simple precautions above
mentioned respecting the properties of the sublimate, is conclu-
sive of the nature of the substance under examination.
Arsenic in solution in water: Liquid tests. — The aqueous
solution of arsenic is clear, colorless, possesses scarcely any per-
ceptible taste, and has a very faint acid reaction. In this state,
we should first evaporate slowly a few drops on a glass plate,
when a crystalline crust will be obtained. On examining this
crust by a microscope, it will be found to consist of numerous
minute octahedral crystals, presenting equilateral triangular sur-
faces by reflected light. By this simple experiment, arsenic is
distinguished from every other metallic poison. 1. On adding
to the solution, Aminonio-nitrate of silver, a rich }ellow precipi-
tate of arsenite of silver falls down: rapidly changing in color to
an olive brown. This test is made by adding to a very strong
solution of nitrate of silver, a weak solution of ammonia, and
continuing to add the latter, until the brown oxide of silver, at
first thrown down, is almost rcdi;?sulved. The yellow precipi-
tate is soluble in nitric, tartaric, citric, and acetic acids, as well
464 MEDICAL EVIDENCE.
as in a solution of ammonia. It is not dissolved by potash or
soda. 2. On adding to the solution of arsenic, Ammonio-sulphate
of copper., a rich green precipitate is formed (Scheelu's green),
the tint of which varies, according to the proportion of arsenic
present and the quantity of the test added ; hence, if the quan-
tity of arsenic he small, no green precipitate a': first appears :
the liquid simply acquires a blue color from the test. In less
than an hour, if arsenic be present, a bright green deposit is
formed, which may be easily separated li'om tho blue liquid by
filtration, or decantation. This test is made by adding ammonia
to a weak solution of sulphate of copper, until the bluish-white
|»recipitate, at fir.^t produced, is nearly redissolved : it should not be
used in large quantity if concentrated, as it possesses a deep violet-
blue color, which obscures the green color of the precipitate
formed. The precipitated arsenite of copper is soluble in all
acids, mineral and vegetable, and in ammonia, but not in potash
or soda. When collected and dried, it possesses this characteristic
property : by very slowly heating a few grains in a tube of small
bore, arsenious acid is subUmed in a ring of minute resplendent
octahedral cr}'stals, visible to the eye, or by the aid of a lens or
microscope. Ohjediom. — The tests above described are called
the liquid tests for arsenic. The Silver test, first discovered by
Mr. Hume, in 1789, acts with remarkable dehcacy, and is of use
as a corroborative test in the various processes for determining
the presence of this poison in the body. A solution of an alkaline
phosphate, which yields a yellow precipitate with nitrate of silver,
is not affected by the ammonio-nitrate ^vhen properly made ; and
conversely, a solution of arsenious acid gives only a f iint turbid-
ness with nitrate of silver, while it is copiously precipitated of a
vellow color by the ammonio-nitrate. A diluted solution o^ phos-
phoric acid may be, in some cases, precipitated by this test,
exactly like a solution of arsenic ; but there is one general answer
to these objections. We do not rely upon the application of one
test, but of several ; and the fallacies attending one are removed
by the employment of others. With respect to the dehcate
Taylor's analysis of arsenic. 465
reaction of the silver-test, Mr. Marshall states, that it is fully
capable of detecting the 1000th part of a grain in solution, — a
proof that its application was well understood more than a quar-
ter of a century ago. Dr. Traill asserts that the IG, 000th part
of a grain of arsenic in solution is precipitated by the silver-test,
and with the 10,000 part of a grain a precipitate is visible to the
eye. I have found the 8000th part of a grain dissolved in one
drop of water, gave a pale-yellow film ; but the result materially
depended on the quantity of water present. Thus the 4000th
part of a grain of arsenic, in ten drops of water, was not percep-
tibly affected by the test; but the 2000th of a grain, dissolved
in four drops of water, gave a decidedly yellow precipitate. The
evidence derivable from these minute reactions would not be of
much value, except that the test is used to corroborate inferences
from the results of other experiments. The Copper test is far
less delicate in its reaction, and having an intensely blue color,
it entirely conceals the green tint which may be given by a small
quantity of precipitated arsenite of copper; but, in spite of this,
if arsenic is present, the green precipitate is, after some hours,
deposited at the bottom of the vessel. In cautiously adding a
solution of arsenic of known strength to a few drops of this test,
no green tint was imparted, until the quantity of ai'senic amount-
ed to the 173d part of a grain in less than one fluid-drachm of
water — the degree of dilution being about 8640 times. When-
ever the arsenic is in small quantity in its aqueous solution, this
should be concentrated to the smallest possible bulk, and not more
than one or two drops of the ammonio-sulphate should be added
by means of a glass rod.
No one, in the present day, would think of employing these
liquid tests in solutions, in which arsenic was mixed with organic
matter. Almost all liquids used as articles of food, are precipi-
tated or colored by one or both of them, somewhat like a solu-
tion of arsenic, although none of this poison is present. Thus,
then, any evidence founded on the production of color, unless
the arsenic is dissolved in pure water, or unless the precipitates
30
4G6 MEDICAL EVIDENCE.
be proved to contain arsen'c, should be rejected. These hquid
tests are now employed rather as adjuncts to other processes, than
as a direct means of detecting the poison. An exclusive reliance
upon them, as color tests, has led to the rejection of chemical
evidence on several trials, where they had been most improperly
employed in the analysis of suspected liquids containing organic
matter. The trial of Donnall at Launceston, in 1817, aflbrds a
memorable lesson to the medical jurist on this subject.
3. Sulphuretted hydrogen gas. Sulphur or Gaseous test. — The
hydrosulphuret of ammonia gives no precipitate in a solution of
arsenic until an acid has been added, whereby arsenic is known
from most metallic poisons. On adding an acid (acetic or pure
diluted hydrochloric) a rich golden yellow-colored precipitate is
thrown down (orpiment or sesquisulphuret of arsenic). It is
better, however, to employ in Medico-legal analysis, a current of
sulphuretted b}'drogen gas, which is easily procured by adding
sulphuret of iron to one part of strong sulphuric acid and three
parts of water in a proper apparatus. The arsenical hquid should
be slightly acidulated with acetic or very diluted muriatic acid,
before the gas is passed into it : at least care should be taken that
it is not alkaline. The yellow compound is immediately pro-
duced and dissolved if arsenic is present in small quantity : but
it may be collected after boiling the hquid so as to drive off the
surplus gas. This yellow precipitate is known to be sulphuret
of arsenic by the following properties : 1. It is insoluble in water,
alcohol, and ether, as well as in all acids, mineral (nmriatic) and
vegetable ; but it is decomposed by strong nitric and nitro-muri-
atic acids, leaving on evaporation at a low temperature arsenic
acid, which may l^e neutralized by ammonia and tested by nitrate
of silver. A brick-red precipitate, will indicate that the yellow
compound was sulphuret of arsenic, or orpiment. If strong nitric
acid alone be used there will be no risk of losing any portion of
the arsenic. 2. It is immediately dissolved by caustic potash,
soda, or ammonia, forming, if no organic m itter be present, a
colorless solution. 3. When dried and strongly heated, with a
TAYLOR S ANALYSIS OF ARSENIC. 467
mixture of three parts of well-dried carbonate of soda and oue
part of cyanide of potassium, it furnishes a sublimate of metallic
arsenic. This sublimate may then be tested by the processes
already described. 4. The precipitated sulphuret may be defla-
grated in a porcelain capsule with a mixture of pure nitrate and
bicarbonate of potash. The saline residue, acidulated with nitric
acid, should be evaporated, and the arseniate of potash dissolved
out by a small quantity of water. The nitrate of silver may
then be added to this solution, when the brick-red arsenite of
silver will be produced. Unless these properties are proved to
exist in the yellow precipitate formed by sulphuretted hydrogen
in an unknown Hquid, it can not be safely regarded as a com-
pound of arsenic. On the other hand, when they are possessed
by the precipitate, it must be arsenic, and can be no other sub-
stance. The sulphur test is extremely dehcate in its reaction. It
begins to give a yellow tinge when the liquid contains only the
4000th part of a grain of arsenious acid in ten drops of water;
the arsenic therefore forming about the 40,000th part of the
solution. This becomes more decided with the 2000th part of a
grain, and still more with the 250th part of a grain : the sulphu-
ret is not, however, actually precipitated until diluted hydrochloric
acid, in which it is insoluble, has been added to the liquid. It is
important to observe that the effect produced by this test will
materially depend on the quantity of water in which the given
weight of arsenic happens to be diffused. In one experiment the
gas was passed into a solution containing the 400th part of a
grain in twenty drops of water : the results were clear and decided ;
the liquid acquired a rich golden-yellow color, but when passed into
a solution containing the same weight of arsenic in half an ounce
of water, a yellow tint was scarcely perceptible. The arsenic in
the first case was in the proportion of the 8000th, and in the
second of only the 1,000,000th part of the solution. Dilution
therefore seriously affects the chemical results. Ohjediom. —
Many objections have been taken on criminal trials to the Medi-
cal Evidence, founded on the application of this test ; but it may
468 MEDICAL EVIDENCE.
be at once stated that there is no objection to the inference
derivable from the sulphur test, provided the properties of the
precipitate, under J, 2, 3, or 4, have been determined. The ob-
jections apply only to those cases in Avhich arsenic is said to be
present, when a yellow precipitate is produced by sulphuretted
hydrogen. 1. Cadmium. It is remarkable that this metal
should furnish, at the same time, a plausible ground of objection,
both to the process by reduction from the solid state, and to the
gaseous test applied to a solution of the poison. Thus the soluble
salts of cadmium yield, with sulphuretted hydrogen, a rich yellow
precipitate resembling closely that produced by arsenic, and this
also. gives a metallic sublimate when heated with soda-flux. There
are, however, these striking diflerences : the yellow compound of
arsenic is soluble in ammonia, that of cadmium is insoluble, — •
the compound of arsenic is insoluble in strong hydrochloric acid,
that of cadmium is perfectl}' soluble. Of the dried precipitates,
the sulphuret of arsenic is not perceptibly affected in the cold by
strong hydrochloric acid, that of cadmium is dissolved readily in
the cold with the evolution of sulphuretted hydrogen gas; and a
colorless salt of cadmium (chloride) is thereby formed, precipi-
table as a white carbonate by alkaline carbonates. A solution of
a salt of cadmium is immediately precipitated, of a rich yellow
color, by hydrosulphuret of ammonia, — that of arsenic is not
precipitated by this agent. There are many other differences :
thus cadmium, when boiled with diluted muriatic acid, is not pre-
cipitated on copper under the same circumstances as arsenic, and
it does not combine with hydrogen to form a combustible gas.
An objection, on the ground of the strong similarity of cadmium
to arsenic, was unsuccessfully taken to the chemical evidence
given on the trial of Mrs. Burdock at Bristol, in 1835. 2. Tin.
A persalt of tin is precipitated of a dusky yellow color by the
gas ; but the precipitate is destitute of all the properties of sul-
phuret of ar.-^^nic : it is insoluble in ammonia, and it gives no
metallic sublimat*^ when heated with flux. A solution of tin is
also known from one of arsenic, by its being instantly precipitated
Taylor's AxNalysis of arsenic. 469
by the hydrosulpLuret of ammonia. 3. Antimony. A solution
of this metal is precipitated of a rich orange-red (not yellow)
color by the gas, — the precipitate yields no metallic sublimate
with flux, and the solution of antimony is also precipitated by
hydrosulphuret of ammonia. If sulphuret of antimony should
be mixed with sulphuret of arsenic, the antimony is retained and
the metallic arsenic alone volatihzed by the process under Exp. 3.
4. Uranium. A solution of a persalt of uranium gives, with a
current of sulphuretted hydrogen gas, a yellow-brown precipitate,
wholly unlike that caused by arsenic. This precipitate differs
from that of sulphuret of arsenic, in being insoluble in ammonia,
soluble in hydrochloric acid, and in yielding no metallic subli-
mate with soda-flux. Besides, a solution of uranium salt is
precipitated by hydrosulphuret of ammonia.
Marsh's Process. Hydrogen Test. — This process for the
detection of arsenic was first proposed by Mr. Marsh, at Wool-
wich, in the year 1836. It is based on the decomposition of
arsenious acid and the soluble compounds of arsenic, by hydrogen
evolved in the nascent state from the action of diluted sulphuric
or hydrochloric acid on zinc. The apparatus is of the most
simple kind, and is so well known, as to need no description. It
has undergone various modifications, and has received the names
of various supposed inventors or improvers, but the principle is
the same, and the sole merit of the invention must be assigned
to Mr. Marsh. The arsenic may be introduced into the short
leg of the tube in the state of powder ; but it is better to dissolve
it in water, by boiling, either with or without the addition of a
few drops of a solution of potash. The metallic arsenic combines
with a portion of the hydrogen, forming arsennreited hydrogen
gas, which possesses the following properties: 1. It has an offen-
sive odor, somewhat similar to that of garlic. 2. It immediatel}'
blackens a solution of nitrate of sflver. This may be proved
by holding a piece of filtering paper, wetted with a solution of
nitrate of silver, in the current of gas as it escapes from the jet.
The silver is reduced, and presents a black metallic appearance.
470 MEDICAL EVIDENCE,
If the gas is passed into a tube containing a weak neutral solu-
tion of nitrate of silver, a black precipitate of reduced silver is
formed, and the liquid, on evaporation, yields arsenic acid or red
arsenite of silver. 3. It burns with a pale bluish-white flame,
and evolves, during combustion, a white smoke (arsenious acid).
4. A cold plate of glass or white porcelain, held in the flame
near the point, receives a dark stain from the deposit of arsenic
upon it. This stain is composed in the centre of pure metallic
arsenic, which may be sometimes raised up in a distinctly bright
leaf of metal, — immediately on the outside of this, is an opaque
black ring (suboxide of arsenic ?), which, when viewed by trans-
mitted light, is of a clear hair-brown color at the extreme edge :
if the quantity of arsenic be very small, the metallic lustre and
opacity may be wanting, and the deposit will be merely a film of
a brown color by transmitted light. On the outside of this black
ring is a thin wide film, of a milk-white appearance, which is no-
thing more than arsenious acid reproduced by the combustion of
the gas. 5. A white saucer, or a slip of card or paper moistened
with ammonio-nitrate of silver, held about an inch above the point
of the flame, will be found, if arsenic be present, to be colored
yellow, from the reproduced arsenious acid being absorbed, and
forming yellow arsenite of silver, easily soluble in ammonia. If
a current of the gas be conducted through a tube of hard Ger-
man glass, and a spirit-lamp applied to the tube during the pas-
sage of the current, metallic arsenic of a steel-gray color will be
deposited on the glass at a short distance from the flame. This
may be removed, and tested by nitric acid.
This process is probably the most delicate of all those which
have been devised for the detection of arsenic ; but for this reason
it requires the greatest caution in its application. Its delicacy
has been sometimes improperly estimated by the assumed weight
of the metaUic deposit on glass ; whereas it is certain that the
quantity of arsenic in one infinitesimal deposit, if transferred to
the apparatus, would give no indication whatever of the presence
of arsenic. In operating on the poison it must be remembered
Taylor's analysis of arsenic. 471
that, by this process, we are dividing and subdividing the metal
into a series of deposits, the weight of some of which might not
be equal to the millionth part of the weight of the arsenic which
is actually furnishing them. More or less arsenic is always lost
during the combustion of the gas; and most of the apparatuses
are so constructed, that they allow of the escape of this poison-
ous gas ; a fact which may be demonstrated by placing a solution
of nitrate of silver on filtering paper over the open end of the
tube. Objections. — Other substances will combine with nascent
hydrogen, and when the gas is burnt, a deposit will be formed on
glass or porcelain, which may be mistaken for arsenic. A liquid
containing antimony, selenium, phosphorus, sulphur, or even
some kinds of organic matter, may produce a compound with
hydrogen, which, when burnt, will leave a dark deposit or stain
on glass. The only objection of any practical force is that
founded on the presence of antimony, which, as a result of medi-
cinal use, may be present in the liquids as well as in the tissues
of a dead body. A current of antimonuretted hydrogen gas
reduces silver from a solution of the nitrate, but it has not the
odor of arsenuretted hydrogen. It burns with a very pale lemon-
yellow flame, and forms a white smoke (oxide of antimony).
When a solution of ammonio-nitrate of silver, in a saucer, is
exposed to this white vapor, there is a black stain, in place of
the yellow deposit produced by arsenic. The differences between
the arsenical and antimonial deposits obtained by the process of
Marsh are, however, well marked. The antimonial deposit has
rarely a bright metallic lustre, except when seen on the reverse
side of the glass. By transmitted light, the deposit is of smoky-
black color, while that of arsenic is hair-brown. Numerous
suggestions have been made for distinguishing a deposit of arse-
nic from that of antimony. The plan which I find to be best
adapted for this purpose has been already described in reference
to arsenious acid and reduced arsenic. Receive the deposit from
the burning gas on the interior of a small white porcelain cap-
sule. Add a few drops of strong nitric acid. The deposit will
472 MEDICAL EVIDENCE.
be immediately dissolved. Evaporate gently to dryness. Moisten
the dry residue with one or two drops of water, and then add
a few drops of a strong solution of nitrate of silver. If the
stain was owing to arsenic wholly, or in part, a brick-red
colored precipitate will immediately appear. This will be more
or less distinct, according to the quantity of arsenic present. The
precipitate (if owing to arsenic) is entirely soluble in ammonia.
A deposit of antimony thus treated, leaves a white residue (oxide
of antimony), insoluble in water. Nitrate of silver added to it
produces no colored precipitate; but if a little ammonia be
brought near, either in vapor or liquid, and a solution of potash
is added, a precipitate is formed, which becomes black by stand-
ing. Hydrosulphuret of ammonia dissolves the antimonial de-
posit immediately, and on evaporation leaves an orange-reddish
colored film of sulphuret of antimony, soluble in hydrochloric
acid, and insoluble in ammonia. The hydrosulphuret does not
readily dissolve the arsenical deposit, but when gently evaporated,
it leaves a bright-yellow film (sulphuret of arsenic), not soluble
in hydrochloric acid, but soluble in ammonia. Imponderable
quantities of the two metals may be thus easily identified. In
testing these minute films for arsenic, hydrochloric acid must not
be used with the nitric, since, on evaporation, a portion, or the whole
of the arsenic may be volatilized, and lost as chloride of arsenic.
It will be observed, in the production of a ntimonu retted hydro-
gen, that antimony is rapidly deposited in the form of a fine
black precipitate in the tube. This arises from the chemical
action of the zinc. The antimonuretted hydrogen can not be
kept long, as the antimony is speedily separated from it. Arse-
nuretted hydrogen may be kept for use for a much longer period,
but, sooner or later, some arsenic is deposited on the zinc, as well
as on the metallic parts of the apparatus. Stopcocks are thus
coated with a film of arsenic ; hence fresh zinc and a clean stop-
cock should be used on each occasion, or the arsenic of a former
operation might be erroneously referred to a substance under
examination. The operator must not only look to the state of
Taylor's analysis of arsenic. 473
the apparatus, but be sboukl also satisfy himself of the absolute
purity of his materials.
The zinc, sulphuric, and hydrochloric acids, which are employed
in Marsh's process, are often contaminated with arsenic. Dr.
Clark, of Aberdeen, informed me, some years since, that he had
not discovered a specimen of zinc free from arsenic, when about
an ounce of the metal was used in an experiment, and the hydro-
gen gas evolved was tested by a solution of nitrate of silver: hut
pure distilled zinc may now be procured from respectable drug-
gists. The sulphuric acid of commerce sometimes contains a
large quantity of arsenic. The late Mr. Scanlan found that 2000
gi'ains of one specimen of acid yielded 1-5 grains of sesquisul-
phuret of arsenic. From the great demand for a cheap and im-
pure sulphuric acid for agricultural purposes, it is now the
exception to the rule to find this acid free from arsenic. Hydro-
gen procured by this acid is often contaminated with arsenic to a
dangerous extent. An impure sample of acid led to the death of
an Irish chemist, who breathed hydrogen thus produced, and who
had neglected to test the acid before use. The impurity of this
acid leads to the contamination of hydrochloric or muriatic acid
with arsenic, for the cheap arsenical acid is now largely employed
in this manufacture. The best answer to all objections based on
the presence of arsenic from accidental sources is. that the
materials were tried repeatedly before the suspected liquid was
introduced into the apparatus. If no sublimate or deposit be
formed until after the introduction of the suspected liquid, it is
evident that the arsenic must have been in the liquid introduced ;
a fact which may be considered as clearly estabhshed, if, on re-
moving the liquid and washing out the tube, no deposits what-
ever result from employing the portions of the same acid and
zinc.
These are, I believe, the only tangible objections to the use
of Marsh's test, and they are not difficult of removal, when ordi-
nary c.ire is taken. It will be apparent, that not one of these
objections could apply, except to those cases where ^Marsh's test
474 MEDICAL EVIDENCE.
is relied on as the sole and exclusive chemical proof of the pres-
ence of arsenic; but in most instances, when this process is
safely applicable, other tests are also applicable ; and it does not
at all diminish the merit of this most useful and ingenious inven-
tion, to say that the results which it furnishes should be corrobo-
rated by the use of some of the other tests, if it were only for
the sake of preventing any plausible objections to the inference
derivable from its employment. The great object of chemical
evidence is not to show a court of law what may be done by the
use of one test only, by peculiar manipulations on imponderable
traces, but to render the proof" of the presence of poison in the
substance examined most clear and convincing. If, in any case,
we have no other evidence to offer than that furnished by Marsh's
process, — a case in which the quantity of poison must be infi-
nitesimal, and the metallic deposites proportionally minute, — it
would be better to abandon the evidence altogether, than to main-
tain that poison is present from results which admit of no sort
of corroboration ; for all who have experimented on the subject,
must have perceived the utter inefficacy of applying hquid tests
to determine the chemical properties of imponderable and scarce!}'
visible sublimates. This appears to me to have been the most
objectionable part of the evidence in the well-known case of
Madame Laffarge. Orfila admitted that he had obtained only a
few deposits, so slight that they could not be weighe^l. He esti-
mated the united weight at half a milligramme (-0077 gr.), or
about the one hundred and thirtieth part of a grain.
When reHance is placed on the blackening of a solution of
nitrate of silver as evidence of the presence of arsenic, it must
be remembered that sulphuretted hydrogen will produce the same
effect, and that sulphur is often contained in zinc. The gas
should either be first passed through a solution of a salt of lead, —
or so entirely decomposed by heat, that metallic arsenic is obtained
in the tube through which the current part is passing.
Delicacy of Marslis process. — Marsh's process is undoubtedly
one of great delicacy. MM. Danger and Flandin assert that
Taylor's analysis of arsenic. 475
metallic deposits may be procured when the arsenic forms only
the 2,000,000th part of the liquid examined. M. Signoret states
that he has procured metalHc deposits with only the 200,000,000th
part of arsenic in the liquid : this is in the proportion of one
grain of arsenic dissolved in about 400,000 ounces, or 3000
gallons of water ! As the delicacy of this test has been already
made a subject of discussion in a court of law (The Queen against
Hunter, Liverpool Spring Assizes, 1843), it may be proper to
offer a few remarks respecting it. It was stited at that trial,
that the one-millionth pirt of a grain of arsenic might be
rendered visible by Marsh's test; and the judge, guided by
this statement, put the question to another medical witness,
whether arsenic could be so removed from the stomach in three
days, as that it would be impossible to discover the one-millionth
fart of a grain in the body. It appears to me that the facts
relative to the delicacy of tests are not always stated with suffi-
cient clearness on these occasions. Thus we have to consider two
points : 1. The total quantity of poison expeiimented on ; and
2. the degree of dilution, or the total quantity of liquid in which
the poison is dissolved or suspended. There is no doubt that
considerably less than the millionth part of a grain of arsenic
may, by Marsh's test, be rendered visible on a glass plate : it is
possible to distinguish with the eye a piece of leaf-gold which
would weigh less than the ten-millionth part of a grain ; but the
practical question is, whether this test will enable us to discover
arsenic in a single drop of a solution, made by dissolving one
grain of the poison in a million grains or sixteen gallons of water !
If not, the statement amounts to nothing ; for it is clear that if
more than one drop of such an extremely diluted solution be
taken, the test is acting upon a larger quantity of arsenic than
the above form of expression would indicate. I have generally
found that the fractional quantity stated to be detected, referred
rather to the degree of dilution than to the absolute quantity of
poison present : whereas a test may fail to act, as it has been
already stated, either from the smallness of the quantity of poison
476 MEDICAL E^TDENCE.
present, or from the large quantity of water in which it is
diflbsed. The results of my own experiments are, that when
arsenic is mixed with the acid Hquid in a tube capable of holding
two fluid-ounces, very faint and scarcely perceptible deposits
begin to be formed on a glass plate, with a quantity equal to the
2160th part of a grain: the diffusion here being equal to two
milhon times the weight of the poison. With the 1080th part
of a grain in the same quantity of water (the arsenic forming
therefore one-millionth part), slight brown annular stains were
procured. The annular form is probably due to the central
portion of the minute film being volatilized by the heat of the
point of the flame: unless the glass is speedily removed, the
whole of the deposits may vanish. With the 720th of a grain,
the arsenic being in the proportion of about the 800,000th part
of the liquid, the stains were much more decided, but quite im-
ponderable. With the 100th grain in one fluid-ounce of water
(the 48,000th part), and the 67th grain in two fluid-ounces (the
64,800th part), the deposits on glass were decided and character-
istic ; and it is at this point that the process begins to be safely
available for the purposes of legal medicine. M. Villain has
attempted to determine how many metallic deposits can be ob-
tained from a given weight of arsenious acid. The result at
which he arrived is, that 1-6 5th part of a grain of white arsenic
will yield on an average 226 metallic deposits of an average
diameter of the l-12th of an inch. The average weight of each,
therefore, even supposing there were no loss, would be about the
1-1 5,000th part of a grain.
Reinsch's process. — Hugo Reinsch first published an account
of this process, which originated in an accidental discovery of
arsenic in muriatic acid, in 1843. Soon after the announcement,
I examined the application of the process to the purposes of
Medical Jurisprudence, and a full account of the results was
published in the British and Foreign Medical Review, for July,
1843, p. 275. It has since been extensively employed in this
countrary in Medico-legal practice. While it is open to fewer
Taylor's analysis of arsenic. 477
objections than the process of Marsh, it is preferable in its sim-
plicity, and in the facility of its application. It enables the
analyst to trace arsenic to a minute degree in all its combinations,
if we except arsenic acid and the arseniates ; and in reference to
these compounds, it is inferior in delicacy to the process of Marsh.
One substance only is required of which the purity must be
guaranteed, namely, the muriatic or hydrochloric ac'.d. Metallic
copper, either in the form of freshly polished foil or wire, is used
for the separation of the metal. The material best adapted for
this process is the finest copper-wire woven into a gauze con-
taining from twelve to sixteen thousand apertures to the square
inch. A small piece of this, by reason of the extensive surface
presented, will enable the analyst to collect a comparatively larger
proportion of arsenic than would be deposited on the foil. The
arsenic adheres to it with greater firmness, and the gauze will
indicate by a change of color the presence of the poison, when
the appearance on the foil would be indistinct.
The liquid suspected to contain arsenic is mixed with from one-
sixth to one-eighth part of its volume of muriatic acid (free from
arsenic), and brought to the boiling-point. A solid is simply
boiled in distilled water containing about the same proportion of
acid. When brought to the boiling-point, about half a square
inch of copper gauze is introduced, and if arsenic is present, even
in a small quantity, this is indicated by the copper acquiring an
iron-gray color. The gauze is removed, washed in water to free
it from any trace of acid, — dried on blotting paper and in a
warm current of air, rolled into a small cylinder and placed in a
dry and warm reduction-tube. Heat is now gradually applied to
the cyhnder of coated copper, and the metallic arsenic, in sublim-
ing, is deposited in a cool part of the tulje in the form of a ring
of brilliant octahedral crystals of white arsenic. These may be
identified by the microscope, and then tested in the manner
described. When the quantity of arsenic is small, the polished
copper merely acquires a faint greenish-blue or blnish tint, and
the time required for the deposit is materially afiected by the
478 MEDICAL EVIDENCE.
quantity of water present, or in other words, the degree of dilution.
But one great advantage is, that we are not obliged to dilute the
liquid in the experiment, and there is no material loss of arsenic
after the copper is introduced, as in Marsh's process ; the whole
may be removed and collected by the introduction of successive
portions of the metal. This process is extremely dehcate, the
results are very speedily obtained, and are highly satisfactory.
Among the cautions to be observed are these : 1. Not to employ
too large a surface of copper in the first instance ; and 2. Not to
remove the copper from the liquid too soon. When the arsenic
is in small quantity, and the liquid is much diluted, the deposit
does not take place sometimes for half an hour. If the copper
is boiled in the liquid for an hour or longer, it may acquire a
dingy fcirnish, in the absence of arsenic, from the action of the
acid onl}' (oxychloride of copper). This is known by its yielding
no crystalline sublimate when heated, its want of metaUic lustre,
as well as by its being easily removed by friction.
Objections. — Certain objections have been urged to this pro-
cess. 1. Arsenic may be present in the muriatic acid : this is at
once answered by boiling the copper in a mixture of the muriatic
acid and water before adding the suspected liquid. This should
always be a preliminary experiment. In the case of Mrs. Woolei,
some doubt was thrown on the scientific evidence by reason of
the use of arsenical muriatic acid. The discovery of the impurity
was not made, until after the analysis was completed. 2. Another
objection is, that other metals are liable to be deposited on copper
under similar circumstances. This is the case with antimony,
whether in the state of chloride, or of tartar emetic ; and it is
not always easy to distinguish by the appearance the antimonial
from the arsenical deposit. Should the quantity of antimony be
small, the deposit is of a violet tint : if large, of an ii'on-gray
color, resembling arsenic. In this case, a portion of the solution
may be greatly diluted, when the peculiar violet-red color of the
antimonial deposit will be made apparent. There is one answer
to these objections, namely, that from an arsenical deposit,
TAYLOR S ANALYSIS OF ARSENIC. 479
octahedral crystals of arsenious acid may be procured by sloivly
heating the copper, and the crystals may be proved by other
tests to be those of white arsenic. Such a corroboration is neces-
sary, because the crystalline form of arsenious acid is not always
distinguishable by the eye ; and the antimonial deposit gives a
white amorphous sublimate, which, however, is quite insoluble in
water. Care must be taken not to mistake minute spherules of
water, mercury, or muriatic acid for detached crystals of arsenious
acid ; and here the microscope will be found of great service.
The facility of applying Reinsch's process renders it necessary
that the experimentalist should be guarded by his inferences. It
is not merely by the production of a deposit on copper that he
judges of the presence of arsenic : but by the conversion of this
deposit to arsenious acid, demonstrable by its crystalline form and
its chemical properties. If a deposit take place on copper, and
arsenious acid can not be obtained by heating it, then the evi-
dence of its having been caused by arsenic is insufficient. Owing
to the neglect of these corroborative results, antimony and other
substances have been occasionally mistaken for arsenic. Bismuth,
silver, mercury, gold, and platina, are deposited on copper from
diluted solutions under similar circumstances : the four last-meu-
tioned metals being rapidly deposited in a cold acidulated solution.
The deposits of the three first metals have a silvery white
appearance, quite unlike that of arsenic, and the only volatile
metal among them is mercury, which is sublimed in the form of
bright metallic globules, visible to the naked eye, or by the aid
of a lens or microscope. Gold produces a yellowish or bronze-
colored deposit. Platina produces a deposit like arsenic, but it
is fixed : no sublimate can be obtained from it. An alkaline
sulphuret, or sulphuretted hydrogen, if present, as in a putrescent
liquid, may give a tarnish to copper ; but this is a fixed stain of
sulphuret of copper. All objections are at once answered by the
production of a crystalline sublimate, and the chemical proofs of its
properties. The above facts show that a mere deposit or tarnish
on copper can not be relied on as a proof of the presence of arsenic.
480 MEDICAL EVIDENCE.
Delicacy of Reinsdis process. — This test failed to detect the
4000th part of a grain of arsenic in thirty drops of water, the
dilution being equal to 120,000 times the weight of the arsenic.
The deposit on copper commenced with a purplish-colored film,
when the quantity of arsenious acid was equal to the 3000th
part of a grain in thirty drops of water, or under a dilution of
90,000 times its weight. It was very decided with the 2000th
part of a grain in the same quantity of water, but in neither of
these cases could octahedral crystals of arsenious acid be obtained
by heating the copper. The following experiments will show how
this test is liable to be affected by dilution: The copper was
coated in a few seconds, when boiled in a solution containing the
4000th part of a grain in ten drops of water, although the test
had failed to detect the same weight of arsenic in three times that
quantity of water. So, again, the 2160th part of a grain in
thirty drops of water gave an arsenical deposit on copper; while
the same quantity in half an ounce of water, did not produce
any change of color in the metal. By concentrating a diluted
solution with the copper immersed in it, we shall, sooner or later,
secure a deposit of the arsenic and at the came time prevent it
from escaping in vapor as chloride of arsenic. The deposit ad-
heres with great firmness to the copper gauze. In examining
one of these deposits after it had been loosely wrapped in paper
for a period of nearly fourteen years, I found it of a brownish-
black color and iridescent: the eighth of a square inch, when
heated, still gave a well-marked ring of octahedral crystals of
arsenious acid.
There can be no doubt that Marsh's process will enable an
operator to detect a smaller quantity of arsenic than that of
Reinsch ; but when Reinsch's process fails to detect arsenic, it
would be hardly safe to trust to the evidence furnished by the
process of Marsh alone. Our law authorities have not yet been
inclined to receive with favor chemical evidence when it is based
on the fiftieth or the one hundred thousandth part of a grain, and
the numerous mistakes respecting normal and cemetery arsenic,
Taylor's analysis of arsenic. 481
which have owed their origin to too great a reliance on Marsh's
process, are a justification of this distrust.
ArseJiic in liquids containing organic matter. — Arsenious acid,
when in a state of solution, is not liable to be precipitated by
any animal or vegetable principles, although all such substances
render it less soluble in water. The liquid for analysis should
be filtered through muslin, cotton, or paper, in order to separate
any insoluble matters. Should it be colored, this is of little
moment, provided it be clear. If viscid, it should be diluted
with water and boiled with a small quantity of muriatic acid ; on
standing, a deposit may take place, and this should be separated
by a filter. A portion of the original liquid before boiling should
always be filtered and tested for arsenic, in order to determine
whether any of the poison is present in a state of solution.
As a trial-test, we may boil in a portion of the liquid, strongly
acidulated with pure muriatic acid, a small piece of copper gauze
fixed to the end of a fine and polished copper wire. In a few
seconds, if arsenic be present, the copper will acquire a gray
metallic coating. If, after half an hour, the copper remain
unchanged, the arsenic, if present, must be in extremely minute
proportion ; if, on the other hand, the copper be covered by a
gray deposit, it should be dried and heated in a reduction-tube in
the manner already described. From several such slips of copper,
or copper gauze, a quantity of metallic arsenic may be procured,
sufficient, on reconversion to arsenious acid, to allow either of a
solution in water being made, to which all the liquid tests may
be applied, or of its conversion by nitric acid to arsenic acid.
Some organic matter may be deposited in the meshes of the
gauze ; this may be removed, after washing in water, by warming
the gauze in alcohol, or immersing it in ether or chloroform ; it
should be again washed in water and dried before heat is applied
to it. When much oily matter is present, it is better to boil the
organic substance with diluted muriatic acid, strain the liquid
from it, through calico, and filter it through a tvet filter before
introducing the copper gauze. An even coating of arsenic was
31
482 MEDICAL EVIDENCE.
by this process obtained on copper gauze from the decomposed
tissue of the stomach of -a person who had been buried nearly
two years. As the gauze is remarkably hygrometric, it always
requires to be thoroughly dried in a warm current of air before
it is submitted to heat in a redaction-tube. The arsenical nature
of the deposit on copper must be then established by the micro-
scope and the tests already described. In a fine sublimate, derived
from some hay in the stomach of a horse that had been killed
by arsenic, I counted twenty-eight distinct crystals of arsenic
(arsenious acid), in a space the l-2000th of an inch square.
The greater number of these crystals had a diameter of the
l-2000th of an inch ; some distinct octahedra, which had a
diameter less than the l-4000th of an inch, were recognized
among them.
By this process, the 144th part of a grain of arsenic was
detected in two fluid-drachms of gruel, milk, porter, and other
organic liquids, in so many diiierent experiments. It was also
thus easily separated from wine, brandy, the liquid contents of
the stomach, the blood, and the tissues of the viscera. Here
our analysis might be closed, if the object were to determine only
the presence of arsenic, since a case can rarely occur in Medico-
legal practice, in which it w'ould be necessary to extract the tvhole
of the poison from the contents of the stomach or intestines, or
from all parts of the body.
Another process for procuring evidence of the presence of this
poison in liquids, consists in transforming the arsenious acid to
the state of sulphuret, b}' a current of sulphuretted hydrogen.
The liquid should be first boil( d, a little diluted muriatic acid
added, and then filtered to sepai'ate organic matters. This object
may be further accomplished by adding to the filtered liquid,
when cold, one-third of its bulk of alcohol, again filtering and
concentrating the liquid by evaporation. Sulphuretted hydrogen
gas may now be lieely passed into the liquid acidulated with
either of the acids mentioned. When the precipitation has
ceased, the liquid shoulil be filtered, the precipitate collected, and
TAYLORS ANALYSIS OF ARSENIC. 483
dissolved in ammonia to separate it from organic matter ; it may
then be obtained by evaporating the ammonia. That the yellow
compound is sulphuret of arsenic may now be proved by the
tests elsewhere described. The sulphur process succeeds only
when the quantity of arsenic is large.
Arsenic is soluble in oil. It may require analysis either in
this state, or mechanically diffused in fat, butter, tallow, or similar
substances. From these mixtures it may be separated by boiling
them in a sufficient quantity of water, with about one-tenth part
of muriatic acid. The aqueous solution may then be freed from
the oil or fat by passing it through a filter previously saturated
with water, and the arsenic obtained by sulphuretted hydrogen,
or by Reinsch's process.
Contents of the stomach — Vomited matters. — ^The contents of
the stomach are often mixed with lumps of arsenic, which may
be separated by throwing those portions that do not pass through
a filter into a large glass of distilled water, and after giving to
it a circular motion, suddenly pouring off the supernatant liquid,
when the heavy portions containing arsenic will be found at the
bottom. The lumps may sometimes be left in the contents ; they
may then be easily removed, dried on filtering paper, and tested.
If the arsenic has been taken in fine powder, there will be no
lumps, but it will probaby be deposited in masses, mixed with
mucus and blood, on the coats of the organ in those parts where
it is much inflamed and ulcerated. The arsenic in this state
looks like moistened plaster of Paris, but it is of a darker color,
and when examined by a lens it is crystalline. It may be re-
moved on a spatula, spread in masses on filtering paper, and
slowly dried. As it dries, the granules will detach themselves
from the mass. It is necessary to examine the arsenic carefull}',
with a view of determining whether the white particles are or are
not mixed with either of the coloring matters required by the
Act of Parliament, — indigo or soot. The microscope should
here be used for the examination of the dried sediment, and
after this examination it may be tested either by the reduc-
484 MEDICAL EVIDENCE.
tioQ test or by Reinsch's process. The suspected particles, or
even the stained portions of paper on which the organic matter
has become dried, may be boiled with muriatic acid and copper
gauze. Mucus, blood, or even a layer of the mucous membrane
of the stomach may be thus easily tested. This is in general
the only method which it is now necessary to employ. By the
use of numerous tests and processes, a witness exposes his evi-
dence most unnecessarily to many ingenious objections. It is
sufficient to obtain the deposit on copper ; to convert this by
heat to crystallized arsenious acid, and to test the sublimate. • We
thus avoid the troublesome and complex method of separating
organic matter from arsenic. Care must be taken in examining
a stomach not to confound pieces of bread, or lumps of fat or
adipocere with arsenic. Small portions of such substances appear
very much like lumps of the poison. In the t-tomachs of exhumed
bodies a crystalline substance is found, resembling arsenic in
appearance, but not in properties. It is the ammonio-phosphate
of magnesia derived from putrefaction.
The liquid contents may yield no arsenic, although the poison
is present. I have I'ound solid arsenic spread over the coats of
the stomach in two cases, when the liquid contents yielded no
traces of the poison in solution. In the same way I have de-
tected no arsenic dissolved in tea when it was abundant in the
sediment. If none should be found either dissolved in the contents
of the stomach or on the surlace of the organ, we must remove
the inflamed and ulcerated portions of the mucous coat, or even
the whole of the stomach cut into small pieces, and boil the cut
portions with diluted muriatic acid and copper for half an hour.
The liquid may be then filtered and tested. It may happen that
no arsenic wi.l be detected in the contents of the stomach or
vomited matters, until after they have been boiled for at least one
or two hours, and the organic matter broken up.
Detection of absorbed arsenic in the tissues- — When arsenic
can not be detected in the liquid contents of the stomach, it is
necessary to examine the blood, secretions, muscles, or viscera
Taylor's analysis of arsenic. 485
of the deceased for that portion of the poison which has been
ahsorhecl In most cases of acute poisoning, arsenic will be found,
but in variable quantities, in every one of the soft structures of
the body, — more abundantly in the organs of the abdomen than
elsewhere. In general a medical witness has it in his power to
make a selection; but even here criminal ingenuity may be exerted
to defeat his evidence. In a case tried in France, in 1846, the
body of a man named Gloeckler, who was alleged to have died
from poison administered by his wife, had been clandestinely
removed, and thrown into the soil of a privy, where it was subse-
quently found. The abdomen had been opened, and the organs
removed, with the intention of obliterating all traces of the
criminal act which had been perpetrated. The proof of crimin-
ality rested entirely upon the chemical evidence, for the symp-
toms were not well marked. It was clearly shown at the trial,
that the wound in the abdomen had been made after death ; and
arsenic was readily extracted from the soft parts of the body in
sufficient quantity to be weighed. The accused was convicted.
From this account, it will be perceived, that but for the process
of detecting arsenic in the tissues, this crime must have passed
undetected and unpunished. Except by the entire destruction
of the body in a case of arsenical poisoning, a criminal can not
now defeat the objects of a chemical investigation. Dr. SchafTer
met with a case in which an attem})t was made by the accused to
destroy the dead body by fire. A woman had suflered from
symptoms of poisoning by arsenic, and died in about eight hours.
Notice was given to the husband that there would be an inspec-
tion of the body, and on the next night his house was found in
flames. The dead body of the wife was so burnt that it could
scarcely be recognized. The stomach, however, had not been
entirely destroyed, and in the shrivelled remains of this, some
particles of solid arsenic were found. The facts were clearly
proved against the husband.
In the case of the Queen v. Hunter, tried at the Liverpool
Spring Assizes, 1843, arsenic could not be detected in the con-
486 MEDICAL EVIDENCE.
tents of the stomach and bowels ; as no analysis was made for
absorbed arsenic, the benefit of the omission was given to the
accused person. In the case of the Queen v. Thomas, no arsenic
was found in the contents of the stomach and intestines of one
of the deceased persons ; but the poison is stated to have been
detected in the liver by the coarse process of incinemtion with
nitre. This evidence, although attacked in cross-examination on
the ground (now refuted) that arsenic was a natural constituent
of the body, was received as a satisfactory proof of the presence
of the pjison. There are few cases in which this branch of the an-
alysis should not be resorted to, although it entails much additional
trouble. The detection of arsenic in the tissues makes it clear,
under the Hmitations elsewhere pointed out, that the poison must
have been introduced during life, and that it has most probably
caused death; its detection merely in the contents of the stomach
or intestines, does not give this absolute proof Beside, the
poison found in these contents is not that which has caused
death ; this, as it has been elsewhere stated, must be referred to
the portion of poison which has entered the blood by absorption.
It is worthy of remark that under the Medical Witnesses' Act
(6 and 7 William IV, c. Ixxxix), a medical practitioner is only
required to make " an analysis of the contents of the stomach or
intestines," and for this only is a fee allowed !
The process commonly employed for the discovery of arsenic
in the tissues, are those of Marsh and Reinsch; and Marsh's
process has been almost universally employed by continental and
English chemists. When an organic liquid, containing arsenic,
is placed in the apparatus, there is a frothiness produced which
interferes with the combustion of the arsenuretted hydrogen.
Various plans have been proposed to remove this inconvenience
by destroying the organic matter, and procuring the arsenic in a
form convenient for testing. In 1839, Orfila suggested the de-
flagration of the organic matter (brought to a state of dryness)
with powdered nitre. He subsequently advised that the organic
matter, finely cut up, should be boiled in a weak solution of
Taylor's analysis of arsenic. 487
potash, and mixed with twice its weight of pure powdered nitre.
The sahne residue obtained on evaporation was then deflagrated
by projection in small quantities in a red hot crucible. Another
of his plans consisted in decomposing the organic matter by
strong nitric acid, — bringing it to the state of a dry carbonaceous
mass, — and acting on this by nitro-muriatic acid. The arsenic
was subsequently dissolved by water, and then placed in the
apparatus. These processes occasioned a great loss of arsenic,
and they had the disadvantages that the presence of any nitric
acid or a nitrate interfered with the production of arsenuretted
hydrogen. MM. Danger and Flandin recommended the com-
plete carbonization of the organic matter by heating it in a quan-
tity of strong sulphuric acid (proved to be free from arsenic),
equal to about one-third of the weight. It thus forms a tarry-
looking mixture, which should be brought to dryness. The dry
carbonaceous mass is then treated on the plan recommended by
Orfila. The vapors evolved during this operation are of the
most offensive and persistent description.
If sulphuric acid can be obtained pure, there is no doubt that
this is the best mode of carbonizing organic matter. The car-
bonaceous ash should not be too strongly heated, or, as pointed
out by Blondlot, there will be a loss of arsenic. It will be found
better for the conversion of the arsenious into arsenic acid, to use
strong nitric in preference to nitro-muriatic acid, as this will avoid
the volatilization of arsenic as chloride. After heating the mix-
ture to expel the greater part of the nitric acid, the ash may be
drenched with water, until all that is soluble is removed. This
may be brought to dryness in a porcelain vessel, and again
treated with nitric acid several times, until the residue is without
color. The acid residue dissolved in water should be neutralized
by pure carbonate of potash, and when again brought to dryness,
the arseniate of potash thus produced (if arsenic were present)
may be separated from the other salts by a small quantity of
water. This solution may be introduced into Marsh's apparatus.
If a deposit of metal is obtained on glass, or porcelain, or a ring
488 MEDICAL EVTDENCE.
of metal in a tube, by heating the current of gas, these must be
tested by the methods already suggested. When Marsh's pro-
cess is employed, I have found this to be the best plan of pro-
ceeding for destroying organic matters and avoiding a loss of
arsenic.
In the event of Reinsch's process being selected at this stage,
it will be necessary to reconvert the arsenic acid, obtained by the
above-mentioned carbonizing process, to arsenious acid. This is
effected by evaporating it to dryness with a strong solution of
sulphurous acid.
Fresenius and Babo destroy the organic matter by hydrochloric
acid and chlorate of potash, and advise a series of proceedings
of a most minute and elaborate kind. In fact, this mode of
detecting arsenic may be designated an exhaustive process. It
provides for the exclusion of lead, bismuth, mercury, copper,
tin, antimony and other me'als; but in thus excluding many
bodies which are never likely to be found, it encumbers the in-
vestigation with the employment of so many chemicals, that a
question might fairly arise whether arsenic had not been actually
introduced into the organic matter during the operation. I have
known only one case in which it has "been Medico-legally em-
ployed in this countr}-, that of Reg. v. Wooler, and there fortu-
nately the proof of death from arsenic was so clearly made out
from other facts, that it was unnecessary to make this elaborate
mode of testing a subject of cross-examination. The reader who
is curious about this process, the complication of which, according
to Orfila, surpasses all credibility, will find the details in Orfila.
Reinscli's process. — I have found that Beinsc/i's process, with-
out any preliminary carbonization, is well adapted for the separ-
ation of absorbed arsenic. I have by it separated arsenic from
all the organs of the body, excepting the brain and spinal marrow.
The organ suspected to contain deposited arsenic, is cut into the
thinnest pieces. It is then digested at a gentle heat, with a mix-
ture of one part by measure of muriatic acid (proved to be free
from arsenic), and eight parts of water. When the structure of
Taylor's analysis of arsenic. 489
the organ is broken up, a piece of copper gauze, at the end of a
fine and pohshed copper wire, is put into the vessel, and the
liquid brought to the boiling-point. If no deposit takes place in
a few minutes, a little more muriatic acid may be added. If
after half an hour, there is no change of color in the wire or
gauze, there is probably no arsenic present. The liquid may
now be boiled down on the copper, and the metal again washed
and examined. The quantity of gauze used must be small, until
there is clear evidence of a free deposit, and then a number of
pieces may be successively added until the arsenic ceases to be
deposited. The pieces of gauze which are coated, should be well
washed in water, and if necessary in alcohol, to separate adhering
organic matter. They may then be tested for arsenic by the
processes already described. The only precaution required here,
is that the muriatic acid should be pure. The water, the copper,
the acid, and the vessel, may be tested for arsenic before the
addition of the substance supposed to contain it.
In January, 1852, six ounces of a thick turbid fluid were
taken from the stomach of a dog supposed to have been poisoned.
As there was no poison present, — the copper gauze remaining
unchanged in color, five drops of a solution of white arsenic,
equivalent to ("06) six hundredths of a grain of the poison, were
put into the mixture, and the whole was well stirred. In ten
minutes the copper was coated of a steel-blue color, and crystals
were obtained from it by heat. The 16th part of a grain of
arsenic was here detected, in about forty thousand times its
weight of a complex organic hquid.
Sometimes the red color of the copper is seen, owing to the
thinness of the arsenical depo.sit. In all cases it is advisable to
dry the gauze, to heat a portion of it in a reduction-tube, and
examine the sublimate, if any, by the microscope, before giving
an opinion that arsenic is absent.
Either ol' these processes will enable the analyst to separate
arsenic from the tissues. By Marsh's process he can accumulate
in a porcelain capsule, in a state convenient for testing, any
490 MEDICAL EVIDENCE.
number of metallic deposits. In reference to Reinsch's process,
as soon as the copper is covered by arsenic, the chemical effect
ceases : the use of gauze allows the operator to eoncentrate a
large quantity of arsenic in a small space. This yields a linjj;-
of crystals sufficient for testing, or it may be made so by heating
a number of pieces successively. There can be no doubt that
Reinsch's process is the most simple, and the least open to objec-
tion in respect to the casual introduction of arsenic, as neither
zinc nor sulphuric acid is required. It has also this advantage ;
while searching for arsenic in the tissues, it enables the operator
to discover and separate at the same time both mercury and
antimony, without interfering with the search for arsenic.
There is no doubt that a portion of arsenic is lost by either
process, and from the researches of Dr. Geoghegan, it appears
that but little more than one-half of the arsenic deposited on
copper in Reinsch's process can be reobtained by sublimation in
the crystalline state, the rest being retained as arsenuret of copper.
So in the combustion of arsenuretted hydrogen in Marsh's pro-
cess, there is an unavoidable loss of arsenic on each occasion that
the jet is opened. Either process is, however, so delicate, that
even making due allowance for loss of the poison, the arsenic will
be easily revealed when forming not more than from the 1-1 50th
to the 200th part of a grain, and this is itself a point of de'.icacy
in an analysis which, when the issues of life and death are in-
volved, might almost suffice to justify a reasonable distrust of
the resources of science. Orfila professed to have detected the
2,000,000th of a grain by Marsh's process, but the smallest
quantity on which he ever ventured to give evidence before a legal
tribunal was in the well-known case of Madame Laffarge. His
evidence, however, was strongly objected to. He admitted that
the quantity which he obtained from the body of the deceased
was too small to be weighed, but estimated it roughly at half a
milligramme, i. e. about the one hundred and thirtieth part of a
grain ! In this country, I am not aware that chemical evidence
of the presence of arsenic in a dead body has ever been based
Taylor's analysis of arsenic. 49]
on a smaller quantity than in the case of Margaret Wishart.
Dr. Christison did not detect more than the one-fortieth part of
a grain of arsenic in the coats of the stomach ; but this was
deemed sufficient chemical evidence, and the prisoner was con-
demned and executed. The smallest quantity on which I have
had occasion to give evidence in criminal trials, was from half a
grain to a grain, estimated as the quantity actually obtained in
crystals from the stomach, intestines, and tissues. In these two
cases, the accused were tried and convicted on the charge of
administering poison with intent to murder. The cause of death
w;is not here at issue.
Nevertheless there is a strong prejudice among lawyers that
the chemical evidence is defective unless the quantity found is
sufficient to cause death. The irrelevancy and the absurdity of
such a proposition, in a medical point of view, has been elsewhere
pointed out. It would be just as reasonable, in a case in which
a man had been killed by a discharge of small shot, to insist
upon a failure of proof of the cause of death, because only a
single pellet had been found on the body. The value of chemical
evidence does not depend on the discovery of any particular
quantity of poison in the stomach, — it is merely necessary that
the evidence of its presence should be clear, distinct, conclusive,
and satisfactory. At the same time a reasonable objection may
be taken to a dogmatic reliance upon the alleged discovery in a
dead body of minute fractional portions of a grain ; and consider-
ing the great liabiHty to fallacy from the accidental presence of
arsenic in the articles used, the chemical evidence in the case of
Laffarge was of a most unsatisfactory kind, and should have been
rejected by the court. No man with any respect for his character,
or for the common sense of a jury, would base chemical evidence
on the thousandth, or less than the thousandth part of a grain of
poison in a case of life and death ; although he may make use
of his alleged power to detect this, or even a smaller quantity, for
the purpose of procuring the acquittal of a notorious criminal.
Quantitative analysis. — The quantity of arsenic met with in
492 MEDICAL EVIDENCE.
a free state in the stomach and bowels after death, is subject to
great variation. The quantity found has varied from half a grain
to two ounces, or 960 grains. The circumstances which affect
this quantity have been elsewhere considered. In dealing with
a liquid article of food or with the contents of a stomach, assum-
ing that the arsenic is dissolved, we pursue the same plan. In
some cases, solid arsenic, in lumps or powder, may be separated
by washing from the contents. In this case we simply collect it,
dry it, and weigh it. A measured portion (one-fourth or one-
sixth) of the liquid should be acidulated with diluted muriatic
acid, boiled and filtered. A current of sulphuretted hydrogen
may now be passed into it, until there is no longer any precipi-
tation. The liquid should be again boiled, and the precipitated
sulphuret of arsenic collected by decantation or on a filter, and
thoroughly washed. While still moist, it may be dissolved in
ammonia, and the ammoniacal liquid filtered into a balanced cap-
sule, from which the ammonia may be driven off by evaporation.
The sulphuret of arsenic dried at 212" may now be weighed,
and as every hundred grains of shulphuret represents eighty graim
of white arsenic (100 : 80-4), the quantity of the latter may be
found sufficiently close for practical purposes in multiplying the
weight of the precipitate by 4 and dividing the product by 5.
When we are dealing with the tissues, the quantity of arsenic
is generally too small lor the application of this method. In all
cases, the deposited arsenic is in very small proportions, rarely
exceeding a few grains in an organ like the liver weighing four or
five pounds ; and, according to Flandin, although this statement
is not in accordance with the experience of others, nine-tenths of
the deposited arsenic are found in the liver, the other tenth being
unequally diftlised through the other organs. As a general rule,
the liver will be found to contain the largest proportion, and next
to this the spleen and kidneys, the heart and muscles contain-
ing the smallest proportion. I have sometimes found none in
the liver, while it has been present in the other organs, and even
in the bile contained in the gall-bladder.
Taylor's analysis of arsenic. 493
In order to determine the proportion of absorbed arsenic in an
organ (e. g. the Hver), which, under any circumstances, can be
done only approximately, we take a weighed quantity (tour
ounces), slice it, and treat it by Reinsch's process, se[)arate the
whole of the arsenic by copper gauze, and determine or estimate
the weight of the sublimates obtained, — doubling this weight to
allow for the unavoidable loss, and calculating from the quantity
found in four ounces, the quantity difiused through the whole of
the liver. Another portion of liver may be examined, if neces-
sary, to correct the result. 1 believe that the quantity thus
determined is always below the amount actually present. Some
prefer the determination of the quantity from a given weight, by
passing the arsenuretted hydrogen, generated in Marsh's appar-
atus (by the process heretofore described), into a weak solution
of neutral nitrate of silver, until there is no longer any blacken-
ing. The arsenic is here supposed to be converted entirely to
arsenic acid ; the surplus silver is cautiously removed by hydro-
chloric acid, and after filtration and evaporation to dryness, the
arsenic is precipitated from the residue dissolved in water by
sulphuretted hydrogen. Another plan consists in passing the
arsenuretted hydrogen through a tube of infusible glass, dipping
into a solution of chloride of gold, and when air is expelled, apply-
ing heat to the tube. Metallic arsenic is deposited, and any por-
tion of gas which escapes decomposition is collected and dissolved
in the solution of gold, which it decomposes. The quantity thus
obtained, is determined by a process similar to that above-men-
tioned. In pursuing these methods, there ma}- be a loss of arse-
nic in carbonizing and heating to dryness the organic matter with
sulphuric acid ; a portion of arsenic is liable to be separated and
deposited in the apparatus used ; and it is nut improbable that a
portion combines with the reduced silver and gold.^
' Taylor on Poisons.
CHAPTER XXXV.
LEADING ADJUDICATED CASES IN ARSENICAL POISONING.
REX V. MART BLAND Y, Tried in 1752; Smith Med. Ev. 198.
The case of Mary Blandy, tried at Oxford, for the murder of
her father, in 1752, is perhaps the oldest case of arsenical poison-
ing of importance on record, where we have a complete account
of the medical testimony.
Dr. Addington testified that he found the deceased, when he
first saw him, in bed, and that he told him, that after drinking
some gruel, he had perceived an extraordinary grittiness in his
mouth, attended with very painful burning and pricking in the
tongue, throat, stomach, and bowels, and with sickness and grip-
ings, which had been relieved by vomiting and purging. That
on drinking the gruel he every time tasted the grittiness and
became more sick. That it did not result from any medicine he
had taken. His tongue was swollen, his throat raw, his bowels
swoolen; — his upper lip was dry and rough, and had angry
pimples on it. His eyes were bloodshot ; his pulse low, trem-
bling and intermitting.
He told Miss Blandy that he thought her father had taken
poison : she said it was impossible. As he passed out, a paper
was put into his hands, said to have been thrown into the fire by
Miss Blandy. The fire had not consumed it, and there was an
inscription on it, as follows : " the powder to clean the pebbles
with." The paper contained arsenic. The same kind of powder
was found in the gruel.
The deceased being asked if he thought he had taken poison,
(494)
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. -t95
and if so, from whom ; said he thought he had, and from " a poor,
love-sick girl. I forgive her. I always thought there was mis-
chief in those cursed Scotch pebbles." The deceased continued
to grow worse. His hands trembled; his flice was cold and
clammy ; he was at times delirious ; he was like a person bit
by a mad dog ; he wanted to drink, but could not swallow. His
symptoms all indicated that he had taken white arsenic. Dr.
Lewis corroborated Dr. Addington in every particular, and said
it was his absolute opinion that the deceased died of poisoning by
arsenic.
We learn from this trial, the process of detecting arsenic, one
hundred years ago. Dr. Addington was asked by counsel, on
cross-examination, how he knew the article in the paper was
arsenic. He replied, that : 1st, This powder has a milky white-
ness, so has white arsenic : 2d, This is gritty, and almost insipid,
so is white arsenic : 3d, Part of it swims on the surface of cold
water like a pale sulphureous film ; but the greater part sinks to
bottom, and sinks there undissolved ; the same is true of white
arsenic : 4th, This thrown on a red-hot iron does not flame, but
rises entirely in thick white fumes, which have the stench of
garlic, and cover cold iron held just over them, with white
flowers ; white arsenic does the same : 5th, I boiled ten grains
of this powder in four ounces of clear water, and then, passing
the decoction through a filter, divided it into five equal parts,
which were put into as many glasses. Into one glass I poured a
few drops of sal ammoniac, into another some of the hxivium of
tartar, into the third, some strong spirits of vitriol, into the
fourth, some spirits of salt, and into the last, some syrup of
violets. The spirits of sal ammoniac, threw down a few parti-
cles of pale sediment ; the lixivium of turtar gave a white cloud,
which hung a little above the middle of the glass ; the spirits of
vitriol and salt made a considerable precipitation of a lightish-
colored substance, which in the former hardened into glittering
crystals, sticking to the sides and bottom of the glass ; syrup of
violets produced a beautiful pale green tincture. Having washed
496 MEDICAL EVIDENCE.
the sauce-pan, funnel and glasses used in the foregoing experi-
ments very clean, and provided a fresh filter, I boiled ten grains
of white arsenic, bought of Mr. Wilcox, druggist in Reading, in
four ounces of clear water ; and filtering and dividing into five
equal parts, proceeded with them just as I had done with the
former decoction. There was an exact similitude between the
experiments made on the two decoctions ; they corresponded so
nicely in each trial, that I declared that I never saw two things
in their nature more alike, than the decoction made with the
powder found in Mr. Blandy's gruel, and that made with white
arsenic. From these experiments and others, which I am ready
to produce if desired, I believe that powder to be white arsenic."
These were crude experiments, and at this day would prove no-
thino". He did not, by these experiments, detect arsenic, but
some of the foreign substances with which arsenic is sometimes
combined. The ''spirit of sal ammoniac," — suhcarhonate of
ammonia, — in the experiment decomposed the sulphate of lime,
with which white arsenic is often adulterated, and the suhcar-
honate of potassa, " hxivium of tartar," for the same reason would
precipitate a white substance, as stated in the evidence. The
" white glittering crystals " were also lime, in all probability.
Mr. Blandy may have been poisoned, and probably was; his
symptoms indicated it. There was no post moriem examination,
and the analysis was most unsatisfactory, or would be so now.
The daughter expiated her crime on the scaffold, declaring to the
last that she was innocent.
REX V. ELIZABETH PENNING, Tried in 1815 ; Smith's Med, Ev. 207.
Elizabeth Fenning was tried and executed at the Old Bailey,
in 1815, for administering arsenic, with intent to Idll. She was
charged with mixing arsenic with yeast dumplings, and thus
poisoning Mr. Jones' family.
Mr. John Marshall, testified that he was a surgeon, that he
saw the iamily soon after they had been taken sick, that all the
symptoms attending the family were produced by arsenic. " I
LEADING ADJUDICATED CASES IN ARSENICAF, POISOxMNQ. 497
have no doubt of it by the symptoms ; the prisoner was also ill
b}' the same, I have no doubt." He was shown a dish the next
morning; he examined it, washed it in a tea-kettle of v/aim
water, stirred it, and let it subside, decanted it oftj found half a
teaspoonful of white powder, — found it to be arsenic. Question
by counsel. "Will arsenic, cut with a knife, produce the appear-
ance of blackness upon the knife?" '■^ I have no doubt of ity
Mr. Marshall found arsenic, simply from examining the plate
alone on which the dough had been made up. No examination
of the vessel or water in which the dumplings were boiled. No
inquiry as to where the water or flour came from, or the salt or
the milk. Mr. Marshall had no doubt that it was arsenic just
from looking at it. This is all very loose. Throughout the
whole case there is no evidence of any poison being administered.
In the case of Ehza Ward, tried in 1816, a medical witness
testified, in answer to a question from Mr. Justice Bailey as to
how little arsenic would produce death, that he thought one
hundred and twenty grains would be sufficient, though of that sold
in the shops, it would require one ounce and a half; that sixty
grains would produce violent retching, and the effect would be
greater still on an empty, than on a full stomach, and much
would also depend upon the strength of the person to whom it
was administered.
REX V. ROBERT SWALE DONNALL, Tried 1817; Smith Med. Ev. 212.
Donnall, a surgeon of Falmouth, England, was tried for
poisoning his mother-in-law, Mrs. Downing, with arsenic. It
appeared that when Mrs. Downing eat at the defendant's on the
2d of November, she became sick, and continued ill four days.
Dr. Edwards swore that he saw her on the 3d. Mr. Donnall
informed him that Mrs. Downing had an attack of cholera inorbus,
and that she had a similar attack a fortnight before. Mrs. Down-
ing felt heat in her stomach and also cramps in her legs ; her
pulse was a frequent fluttering pulse. Cholera morbus produces
death in two or three days j never met with a case that produced
32
498 MEDICAL EVIDENCE.
death in less than that time. This patient, therefore, could
not have died of cholera morhus. She died the next morning.
Went Thursday af ernoou to examine the body as to the cause
of death, was requested by the coroner to make the examination.
Mr. Donnall was there, and Mr. Street, a surgeon. Mr. Donnall
prepared to operate, — told him he was to have nothing to do
with the operation. The stomach was opened and examined,
and the contents poured into a basin. " We examined that
which ivas put into the basin tvith our fingers, in order to ascer-
tain loheiher any heavy or gritty substance had subsided to the
bottom; found no deposit of any heavy substiince." The
stomach was inflamed, in parts stellated, coats of stomach
softened, and some parts nearly destroyed by some corrosive
subsfcince ; the intestines were inflamed. Such an inflammation
could net be produced in that time by any natural cause; any
active poison will produce such an effect in so short a time. Mr.
Donnall had emptied the jug into another vessel while we were
examining the other parts of the body. Took the contents and
examined it with diflerent chemical tests, and they all showed
the presence of arsenic, — " detected arsenic in solution, but not in
substance," " have no doubt that death was produced by arsenic."
The prisoner claimed that the death resulted from cholera
morbus, that the post mortem examination revealed the appear-
ances of cholera morbus. He introduced a number of physicians
who swore they believed the deceased died of cholera morbus.
The tests used in this case were, as usual, very unsatisfactory;
but, singularly enough, the prisoner was acquitted in the fice of
an able and one-sided charge against him from Mr. Justice
Abbott, afterward Lord Chief-Justice.
KEX r. ANN BARBER, Tried in 1821 ; Smith's Med. Ev. 233.
The leading medical witness gave the following very unpro-
fessional testimony on the occasion. '-lama surgeon and apothe-
cary at . On Saturday, March 17 th, I was sent for, to
LEADING ADJUDICATED CASES IN ARSENICAL POTSOMNG. 499
see the body : I went on Sunday morning, when the inquest was
sitting, and opened the body : I was able, very clearly, to ascer-
tain the cause of death : I found the stomach in a very putrid
state ; the coats were much corroded ; it was very much inflamed
indeed ; the death I attributed to mineral poison. It is within my
knowledge and experience that mineral poison would produce the
effect I observed. From the coats of the stomach I took mineral
poison ; it was white arsenic ; I proved it by a solution of ammoni-
ated copper ; the solution is purple ; on putting arsenic in it, it
becomes quite green. Nitrate of silver does the same ; it is a very
delicate test ; I tried it by both, and found the same result. I
know of no other substance but arsenic that does convert them
into green ; I am satisfied that it was arsenic. I opened the body
further ; the lungs were very black, which I look upon as a cri-
terion of mineral poison ; the external appearances were the same
as I saw in cases where it was known that arsenic had been taken.
On the body of the deceased were various livid spots ; the skin
of the stomach was quite green, twice the breadth of a man's
hand. I was satisfied from the appearance that he had died of
mineral poison."
Cross-examination. — " I never saw the body till Sunday morn-
ing, between eleven and twelve ; and he died on Saturday morn-
ing at four, I understood. The ears were black, the finger-ends
were black; convulsions would make the body look black;
appearances in so aggravated a state could not be produced but
by mineral poison. Matter issued from the mouth, which is
another criterion; convulsions are produced by many causes
quite distinct from poison. I can not tell how many mineral
poisons there are. / never applied the test before, and never saw
any other person apply it. The presence of arsenic may be
detected by red-hot iron; upon that a smell, as of garlic or
onions arises. I did not try that test ; I was sufficiently con-
vinced without that. This poison is a subject I am very little
acquainted with. The lungs could not be so black, h id there
not been arsenic given. I did not open the head, there was no
500 MEDICAL EVIDENCE.
occasion. None of the circumstances, but all together, convinced
me that the death proceeded from poison; there was not one
circumstance inconsistent with that conclusion."
Only thirty-eight years ago, this kind of medical testimony
sealed the fate of this victim in England.
REX V. MARY SMITH, Sym's Judiciary R. 93.
The progress and certainty of science is illustrated, almost for
the first tune, in the case of Mary Smith, tried in Edinburgh, in
1827, for administering poison to her servant, Margaret Warden.
The deceased was pregnant by the prisoner's son. The supposed
poison, it appears, was twice given to her. From the first, which
was taken at night, no decided eliect seems to have accrued.
She complained of pain, and was sick and vomited. The second
dose produced thirst, vomiting and purging, and violent paiu in the
bowels, and these symptoms were ibllowed by prostration, stu[»ur,
cold extremities and a leeble pulse. Death ibllowed in thirty-six
hours. All examination of the body took place two days after ;
there was considerable putrefictiou externally, yei. the stomach
and bowels were in a state oi" •' wonderful preservation." The
inner coat of the stomach was raised and separated in many
places from the adjoining ones, and in other places was corrugated
and abraded. Blood was extravasated under it. The intestines
bore marks of vascular excitement.
The fluid found in the stomach amounted to ten or twelve
ounces, and yellow particles floated on it. Similar particles also
adhered to it. The physicians of Dundee examined a portion of
the contents by the liquid tests, and then reduced some with the
black flux. With each, indications of arsenic were given. Dr.
Christison made a similar investigation, and also obtained the
metal. The court supposed it had sufficient evidence to convict
the prisoner, but the jury did not so think.
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 50 i
REX V. WISELART, Sym's Judiciary R., Appendix 1.
Wishart was tried in Scotland, convicted and executed, on the
testimony of Dr. Christison. He was charged with poisoning a
pregnant sister, by introducing arsenic into the porridge eaten by
deceased. It was eaten on Tuesday evening, the usual symptoms
of arsenical poisoning supervened. On Friday the deceased was
delivered of a living child, and on Saturday she died. Eight
days after the body was disinterred ; there was a small perforation
in the stomach, and the villous coat was very vascular, and
in some places abraded. The intestines were very red. The con-
tents of the stomach, and a portion of the viscus were submitted to
the action of tests, but in none of these did the silver and copper
tests give any indications of arsenic. After the liquor had been
acidulated with acetic acid, sulphuretted hydrogen yielded a
yellow precipitate, which was reduced by the black flux. Dr.
Christison afterward converted the crust, by repeated sublimation,
into little octahedral crystals of oxide of arsenic, which he esti-
mated to amount to about the fo)iiefh part of a grain. In the
stomach, there were appearances of the sulphuret.
Orfila furnished to the French government the necessary evi-
dence for the conviction of one Urbain X., under the following
circumstances :
In 1832, three persons, named Teiner, all in good health,
experienced severe colic and nausea, followed by violent vomiting,
after eating cabbage soup. Others who had eaten of it were
affected in the same way. Two of the three died, the other con-
tinued infirm through the effect of what they had eaten. The
disease was pronounced to be gastro-enteritis. Urbain succeeded
to their property. It was ascertained soon after, that he was in
possession of a large quantity of arsenic. It appeared, that a few
days before the sickness he called to dine with a brother and
sister-in-law, and talking about the quality of their new corn,
expressed a wish to see it. The wife, who was about to b;5ke,
had recently put flour in the chest. She showed the flour to
502 MEDICAL EVIDENCE.
Urbain, who took up a handfal of it, and in a few seconds threw
it back again into the chest, saying it was better than his. Soon
after she made her bread. Twelve persons ate of it, and all were
attacked with violent colic and frequent vomiting. When they
resumed the use of the bread the sickness came on, and at no
other time. Had others of the party died, Urbain would have
inherited their property also.
These circumstances led to a chemical examination of the
bread. Two chemists were commissioned, but could find no
poison. It was then committed to Orfi!a. He cut the bread
into small pieces, tested it with distilled water, filtered the liquid,
and tested it by concentrated liquid sulphuretted hydrogen. The
fluid became instantly yellow, but was not sensibly troubled. A
few drops of muriatic acid were now added, to precipitate any
sulphuret of arsenic that might form. It was not until several
days had elapsed, that a yellow precipitate, consisting of sulphu-
ret of arsenic and organic matter, was deposited. This precipi-
tate being washed with distilled water, was placed on a little filter,
and washed with very weak ammonia. Thus the sulphuret was
dissolved and the organic matter left. The ammoniacal solution
was now evaporated to dryness, and the residuum mixed with a
little charcoal and carbonate of potash. The organic matter was
then driven off by the application of gentle heat. And finally
the watch-glass and its contents were pulverized in a mortar and
the powders introduced into a tube, the upper end of which was
drawn out in the spirit-lamp. As soon as it become of a red
heat, metallic arsenic quickly appeared.
In other cases like this, Orfila has detected arsenic when others
failed, by being longer, more careful and more skillful in the
application of his tests.
For correctness of observation, clearness of detail, and con-
clusiveness of results, the experiments are justly celebrated, hav-
ing done much to establish the certainty of arsenical tests.
The most important American adjudicated cases are the fol-
lowing:
LEADING ADJUDICATED CASES EN ARSENICAL POISONINQ. 503
COMilONWEALTH t. LUCRETIA CHAPMAN AND LINO JIINA, 2 Beck, 543.
Lucretia Chapman and Lino Mina were tried for the murder
of William Chapman, in Philadelphia, in 1831.
Mr. Chapman, it was supposed, died of cholera morbus. But
the marriage of Mrs. Chapman with Miua excited suspicion, and
the body was disinterred, about two months after interment.
The prisoner, Mina, was a lodger in the house of Chapman,
and became enamored of Mrs. Chapman, and she of him. There
was an attempt to poison Mr. Chapman on the ITth of June,
but it failed. On Monday the 20th, the arsenic was given to
him in soup. The usual symptoms of burning heat in the
stomach supervened, with vomiting and purging ; no physician
however saw him until the 21st, when Dr. Knight visited him.
He was deaf, his extremities were cold, and he was at times de-
lirious, no fever ; but pulse very feeble. He soon afterward had
bloody stools, and died on the 23d. The physicians being friends,
called, hearing of his sickness, without being sent for.
The post mortem appearances were a livid and putrid face,
no offensive odor from the body. The abdomen was firm and
remarkably resistant. A very peculiar smell arose from the
stomach when cut open, which the witness compares to pickled
herring. The internal surface of the stomach was covered with
dark brownish-colored mucus, and presented an inflammatory
appearance. The distinguished J. K. Mitchell, of Philadelphia,
examined the contents of the stomach. The mucus was subjec-
ted to one form of analysis, and the solid parts to a.;o[her.
Distilled water was added to the mucus, and the whole boiled
in a Florence flask for some time ; the fluid was then filtered.
The matter and filter was thrown into nitric acid. The filtered
liquor was transparent and of a faint amber-yellow color. The
liquid test was used. The copper test gave an undecided grass
green, — nitrate of silver, a brownish-yellow flocculant precipitate,
which grew darker and soon lost its yellowness, — sulphuretted
hydrogen gas deepened the yellow tint of the solution a verj'
504 MEDICAL E\'roENCE.
little. The whole of the Hquid was then subjected to the last
test, heated until it became distinctly yellow, and its transparency
was gone. The whole was then left on a filter for several hours.
When again examined, there was a transparent liquid below the
filter, and on it a yellow substance, which could not be separated
from it being in too small a quantity, and the whole, filter and all,
was thrown into the vessel containing the firmer portions of the
body, which were being dissolved. This solution being evaporated
to dryness, was again heated with nitric acid, and evaporated
until the animal matter was destroyed.
Water was added to the residue, and heat to boiling again
appHed. To the product obtained by filtration and evaporation,
lime-water was added, and this again evaporated. A portion of
this was mixed with charcoal, placed in a glass tube and subjected
to the heat of a spirit-lamp. The tube became covered at some
distance from the material with a black and glistening substance,
but at this point of the experiment the tube broke fiom the
action of the heat. Mr. Clemson, a highly educated chemist,
instantly detected the odor of arsenic. The other portions were
heated in like manner, but nothing beyond the black dark-brown
matter could be obtained. There was no arsenic detected by the
eye. There was a difference of opinion as to the cause of death
among the medical witnesses. The analysis was not satisfactory.
Mina was convicted, — Mrs. Chapman, however, escaped.
THE STATE v. SAGER, 2 Beck, 646.
Sager was tried in Maine, in October, 1834, for poisoning his
wife. In this case there was great distress experienced immedi-
ately after taking the poison. It had been added to wine, in
which an egg had been stirred. Nausea, retching and vomiting
succeeded, with violent spasms, great distress at the stomach,
feeble pulse, and cold sweats. The vomiting was stained with
blood toward the last. On dissection, livid patches were found
in the stomach, as if blood was collected betwen the coats j the
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 505
remainder of that viscus and the intestines were of a high florid
color. The silver and copper tests would not act on the contents
of the stomach, or the matter vomited, but the sulphuretted
hydrogen produced its usual result, applied by Prof Cleveland,
the principal medical witness. The prisoner was convicted.
THE COMMONWEALTH t\ JOHN EARLS, 2 Beck, 548.
In 1836, John Earls was tried and convicted for the murder
of his wife, in Lycoming County, Pennsylvania. The case was
tried by the Hon. Ellis Lewis. This case also illustrated, in a
high degree, the advanced state of Medical Evidence on this sub-
ject of poisoning with arsenic. The deceased was confined on
Wednesday; she was doing well, and rapidly improving on
Thursday, when she was seized with violent vomiting in the
evening, after drinking some chocolate. Some mint tea, also
drugged with arsenic was now administered. The vomiting con-
tinued, with violent pain, particularly in the stomach, intense
thirst, until she finally sunk and died. On dissection, the coats
of the stomach were found highly intkmed, and easily separable ;
the intestines were also inflamed ; the brain turgid, and the right
and left auricles and ventricles of the heart each filled with blood.
The contents of the stomach were examined with the usual tests,
and gave complete indications of arsenic. The process of reduc-
tion was also performed. Drs. Dougal, Kittoe and Ludwig
were the medical witnesses, and acquitted themselves with great
credit to themselves and honor to the profession they so ably
represented. The prisoner ultimately confessed the crime.
THE PEOPLE V. JAMES E. ELDRIDGE, New York.
James E. Eldridge was tried, December, 1857, for the murder
of Sarah Jane Gould, St. Lawrence Oyer nnd Terminer, New
York. The case is still pending on a writ of error. The defend-
ant was convicted and sentenced by Judge James.
Dr. Ira Gibson testified on the trial, that he visited the deceased
506 MEDICAL EVIDENCE.
on the 20th of May, found her vomiting, distress in the stomach,
with thirst ; vomited every ten or fifteen minutes ; complained of a
burning sensation in the stomach. Next day " her stomach felt
as if it was burning up," thirst excessive; vomited once a:i hour.
On Thursday morning was a little better, not quite so much
burning in the stomach, worse in the evening; severe palpitation
of the heart, hurried breathing; and on Friday her symptoms
were worse, vomitings more frequent, more pain, breathing diffi-
cult. Saturday morning, nervous system much excited, extremi-
ties cold. She died Saturday afternoon. Made a post mortem
examination with Dr. Paddock, soon after death. There was but
little ulceration. The stomach and uterus were tjiken out. No
indications of disease, except a little congestion of the lungs.
No natural disease that would account for her death. The de-
ceased was pregnant, advanced six or eight weeks. Never had
any acquaintance with the effect of arsenic upon the system
before this case.
It was supposed the prisoner also took arsenic, soon after
suspicion rested on him. Dr. Gibson testified, that on the
morning of the 7th, the day after the post mortem examinntion,
he called to see the prisoner. The prisoner said he was t iken in
the night with sickness at the stomach. Took up a tumbler
sitting by him in which there was some white powder adhering
to the inner surface of it; the prisoner said he did not know
what it was, that there must have been something in it when it
was given to him. Scraped off some of the powder, threw it
upon some coals ; it went up in a white smoke, and gave off the
(idor of garlic. The prisoner denied having taken arsenic. Hj
complained of a burning sensation in his stomach, was very
thirsty, and vomited frequently. He continued very sick for
more than a week. His symptoms were very much like those
attending the deceased.
Drs. Joseph Ripley and W. A. Paddock were present at the
post mortem, and corroborated Dr. Gibson.
Dr. S. N. Sherman testified, that he bad bestowed some little
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 507
attention to analytical chemistry and the detection ol' poisons in
the human system. Examined the Ijody of the deceased at the
request of the District Attorney and the court Went to Louis-
ville for that purpose and had the body disinterred. No bad
odor. No incipient signs of decomposition of the skin. Neither
the large or small intestines were distended, but appeared on
their upper surface like parchment, or as if they had been exposed
to the direct rays of the sun. No appearance of inflammation
of the bowels, except slight traces in the duodenum. No peri-
toueal inflammation; found the stomach and uterus had been
removed at a previous post mortem examination. Removed the
int( stinal canal, the liver, heart, spleen kidneys, lungs and bladder.
He was furnished with a jar said to contain the stomach and uterus
of the deceased, all of which he took away. He also took above
two ounces of what purported to be Dr. Rogers' Syrup of Tar,
of which the deceased had been taking. He purch:ised another
bottle of the same with the seal unbroken. For ten or twelve days,
Dr. Sherman, assisted by Dr. Page, was engaged in the analysis
of these several parts. Having nothing but the solid parts of the
body, these were reduced to a soluble condition by boiling them in
distilled water and hydrocloric acid in a glass vessel. Reinsch's
test was applied, when he obtained the presence of arsenic in the
shape of crystals of the oxide of that metal. To a little distilled
water, he added one-hundredth of a gi-ain of arsenic in solution,
and applied to it the same test, but got only faint indications of
its presence. Then took three-hundredths of a grain of arsenic
in solution, and submitted it to the same test, and got more
marked results. Took six-hundredths, of a grain of arsenic and
submitted it to Reinsch's test, and got still more marked evi-
dence of arsenic, but not so evident as the first from part of the
liver. Found arsenic by the same test in the liver, spleen, kid-
neys, intestines, heart and stomach. From the copper test got a
rich green precipitite, so characteristic of the presence of arsenite
of copper. The Liverwort and Tar, of which the deceased par-
508 A-IEDICAL EVIDENCE.
took, also contained arsenic. The other bottle, that had not been
opened, gave no evidence of arsenic.
The hydrogen test was also carefully applied with the same
results, revealing the presence of arsenic.
These experiments enabled the witness to say : " I unhesitat-
ingly embrace the conviction, amounting to certainty, that arsenic
in appreciable amounts existed in the body of Sarah Jane Gould,
at her death, and was the cause of her deaths
This witness then stated : " I have heard all the testimony ol'
the witnesses, and Dr. Gibson, in regard to her symptoms, and
it is my opinion that they were caused by the administration of
arsenic." This evidence was certainly objectionable. 1. Because
the witness might not h;ive heard all that was said ; his attention
might not have been given to the material points in the case, though
present all the time. 2. It is impossible to tell what elements
entered into his conclusion. He may have considered some
things that were not evidence. 3. He passed upon facts the
jury alone were sworn to decide, under the charge of the court.^
A hypothetical case should have been given to the witness,
and the jury left to determine whether the case had been made.
The prisoner was declared by the jury to be guilty, and sen-
tenced by the court to be hung.
The case was carried to the Supreme Court on a writ of error,
which was overruled, when an appeal was taken to the Court of
Appeals, where the writ of error was sustained and a new trial
ordered.
THE PEOPLE V. JAMES STEPHENS, Common Pleas, New York, 1859.
In September, 1857, the wife of Stephens died, and was buried
in Greenwood. The ff\mily was in humble circumstances, of moral
standing, and at the time of the death no one out of the family
1 Jamesons v. Drinkald, 32 E. C. L. R. 636 ; 12 Moo. 148 ; Ramage v. Ryan,
33 E. C. L. R. 604 ; 9 Bing. 333.
LEADING ADJUDICATED CASES IN ARSENICAL POISOxNING. 509
thought of any criminal agency connected with it. The deceased
lay in her grave a twelvemonth, when circumstances drew atten-
tion to the causes of her death.
It seemed that the prisoner had a motive in relieving himself
of his wife, which was, she was several years older than him-
self, and his treatment of her was unkind and cruel. He wished
to marry a younger lady. It was ascertained that the prisoner
purchased arsenic before the ilhiess of his wife, and there was evi-
dence that he administered it to her. The symptoms attending
the sickness were those of arsenical poisoning. When a physician
was called and had complete charge of the patient, she grew
better, when Stephens was with her and gave the medicine she
grew worse. The prisoner remained with her all day on the 22d
of September, giving her medicine, until at three o'clock next
morning, when she died.
This case, more forcibly perhaps than any other ever tried in
this country, illustrates the advancement of science of late years,
by which the mute body of a deceased person can be brought
forth after resting a long time in the grave, and with powerful
eloquence tell the story of its own death. It is also distinguished
for the great ability of the Medical Evidence, especially that of
Prof Doremus, of whom Mr. Ashmead, although for the defense,
said : " I would also state that I have seldom seen so able a man
as Dr. Doremus, who so thoroughly understood his profession,
and I feel proud that we have such a man among us; and I
believe, from the ability he has displayed, that his name must at
all times be recalled at the side of Orfila and the other great
chemists of the world." The counsel, for both the prosecution
and the defense were able, and there was never a more complete
vindication of the profession of medicine than in this case.
We shall only give the Medico-legal aspects of the case.
It was in evidence that Stephens gave to his wife apples and
oranges, after eating which, she always vomited. The counsel for
the State asked the witness " What more did Mr. Stephens do to
the orange beside cutting it up ?" Objected to as leading ; but
610 MEDICAL ET^'IDENCE.
the court allowed it to be asked in this form : '* What was done
to that orange ?" The answer was : " He first peeled it, then cut
it up, then put sugar on it, and gave it to my aunt ; my aunt
complained of burning in the stomach, and vomiting; said she
felt as if there was a ball of fire in her stomach, and if she could
only get that out she would feel better; once at dinner Mr.
Stephens put some rice on a plate and took it to my aunt, who
was in bed ; he put white sugar on the rice ; the sugar was stand-
ing on the table ; she commenced eating it, and Mr. Stephens
went out; witness soon after went into the room and ate some
of the rice."
Counsel for defense objected to evidence as to the eflect of that
rice upon the witness, but the objection was overruled.
" In a few minutes after eating the rice witness's head grew
dizzy, and she went to her room and commenced vomiting ;
when she left the room her aunt was vomiting ; witness continued
to vomit freely until half-past five or six o'clock ; her aunt came
into witness's room, and said that Bella, (the little girl,) had
eaten of the rice and was vomiting, and she would send for Mr.
Stephens."
This evidence was again strenuously objected to by defense.
As to the symptoms attending the case, this witness said :
" Stephens gave her aunt tea, lager beer, brandy, porter, ale, milk,
water, coffee and lemonade ; deceased first complained of red
spots before her eyes, and dizziness in her head, and then she
complained of a heat in her chest ; she thought it was her lungs ;
this was a few days after she was taken sick ; deceased did not
complain of pain ; she said there was a burning pain or ball of
fire, in her chest ; it grew worse each day ; this was after Dr.
Cadmus called, about two or three days ; deceased did not vomit
much at first ; the color of the matter vomited was at first yel-
low ; witness desired to correct her statement in regard to the
word ' pain ;' that her aunt always said she had a burning in the
chest like a ball of fire ; the vomited matter continued yellowish
for some days, and when it changed, it became a dark color, and
LEADING ADJUDICATED CASES IX ARSENICAL POISONING. 511
seemed darker each time till she died ; deceased had a running
at her mouth, and remarked that she could not get her mouth
clean; she wiped it with her handkerchief; deceased was always
thu'sty ; two or three days prior to her de tth, a great change
came over her countenance; she seemed very languid and
anxious, and her eyes sank considerably, and she did nut answer
questions readily ; the second day after Dr. Cadmus called, she
laid in bed a part of the day ; her limbs became weak, and her
hands numb; her legs and feet were swollen; they began to swell
a day or two before she died ; she said her feet were cold, and
she asked witness to put something to warm them; she was con-
stantly throwing her arms about the bed, catching hold of some-
thing; her lips were swollen; her face was redder than usual;
otherwise did not notice the color of her skin ; the discharges
from the bowels, when diarrhea sat in, were d irk, and very often-
sive; they continued until she died ; there was also a suppression
of urine ; witness learned of this about a week before she died ; it
continued until she died ; deceased complained of pain in connec-
tion with this; the discharges from the bowels were also attended
with severe pain."
Medical Testimony. — Dr. James R. Wood was examined by
Mr. Sedgwick, the assistant District Attorney, who conducted the
case for the prosecution, as respected the medical testimony. The
witness testified that he was a physician and surgeon, residing at
No. 2 Irving-place ; made a post mortem examination on the 24th
September, 1858, in presence of Dr. Doremus, and his assistant,
the coroner, the director of the hospital museum. Dr. Wood-
ward, and several others ; made the post mortem examination of
a female which he caused to be taken from a coffin, on the plate
of which was the inscription: "Sophia Stephens. Died 23d
Sept., 1857. Aged 46 years." "The Misses Bell were not in
the room ; caused the body to be removed by his assistant in the
hospital, and by his effort and that of the witness, it was removed
without dismemberment ; found the skin on the anterior portion
of the body oi* a yellow dirty color, in a remarkable state of
512 MEDICAL EVIDENCE.
preservation, very little differing from a body which had recently
died; it had not shrunk, and was plump and full; the face and
side of the head and the anterior portion of the scalp were in an
advanced state of decomposition, which was accounted for by the
escape of gas in the stomach ; examined the posterior portion of
the body, which was in the same good state of preservation, ex-
cept the skull, which was decomposed ; opened the body from the
sternum to the pubis, when gas escaped ; this brought into view
the anterior portion of the hver, the stomach, a portion of the
colon and the omentum ; the liver, stomach and colon were in a
remarkable state of preservation; the omentum was well pre-
served and loaded with fat; they were as healthy and as well
preserved as the specimens in the museum ; the other viscera of
the abdomen were also apparently healthy and well preserved ;
then proceeded to remove the viscera of the abdomen, first by
applying a ligature round the candial orifice of the stomach to
the left, which removed the food from the sesophagus, and also
the orifice to the right where the food passes, this was handed to
Dr. Doremus, and placed in a vessel prepared for that purpose ;
then removed a portion of the liver, gall, and bladder and intes-
tines, which were also placed in a prepared vessel ; the intestines
were examined, and the internal lining found in a remarkable
state of preservation, and but little in their cavity ; the lower
part of the large intestines, the rectum and colon had their inter-
nal surface reddened ; beyond this there was nothing remarkable ;
this indicated congestion or probaby inflammation of the parts;
the other viscera, a portion of the small intestines, kidneys and
uterus, were given to Dr. Doremus ; the cavity of the belly con-
tained nothing but two or three ounces of oily material, which had
percolated through the tissues, which were all loaded with fat;
the examination was made without cutting into the cavity of
the thorax ; this was next examined, and the viscera were won-
derfully well preserved ; the lungs and heart were in a remark-
able state of preservation ; the other tissues, (the pleura and so
on,) were very dry, and no moisture on them ; then proceeded to
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. ol3
examine the head and face by request of parties present, who
had said there was a scar or bruise at the time of death, but the
face was so far decomposed that nothing was discovered ; the
brain was next examined, but was very much decomposed, and
a portion was given to Dr. Doremus ; on another occasion the
muscular tissues were examined, and they had not lost their
coloring matter, but were still red, and were as well preserved as
many bodies that were seen now-a-days in the dissecting-rooms
of country colleges. The shroud and the napkin which were
placed about the natus and vulva were preserved by Dr. Dore-
mus, as was also some cotton found in the mouth; examined
the mucous membrane of the stomach at Dr. Doremus's house ;
it was shrunken and harder than natural ; there were large
veins crossing over the stomach ; there was no redness except
what was noticed ; the veins looked as if they were over dis-
tended or enlarged; the contents of the stomach were unusu-
ally small, only about a tablespoonful of brownish matter; there
was a peculiar odor from the body, but it was not that of a
decomposed body; the odor was unlike what witness smelled
before, because bodies preserved for dissection were preserved
in alcohol."
Dr. Robert Ogden Doremus testified that he was a professor
of chemistry, and was present at Bellevue Hospital when Dr.
Wood made a post mortem examination, on Friday, 24th Septem-
ber, 1858; one of his assistants. Dr. Zincker, was also present;
'' Dr. Wood made a post mortem examination of a female after she
had been recognized by two ladies, (the Misses Bell,) in the pre-
sence of the coroner ; the body was removed from a coffin on
which was the inscription testified to by Dr. Wood ; received from
Dr. Wood the stomach, which had been previously tied at the
cardiac and pyloric orifices, a part of the liver, the gall bladder,
the kidneys, the pancreas, uterus, bladder, small and large intes-
tines, with a portion of the lungs, the heart, a part of the brain,
some oily material, together with the napkins; these portions
were placed in new and clean glass jars, and conveyed to his
33
514 MEDICAL EVIDENCli. *
private laboratory, where they were chemically analyzed ; arsenic
was found; several jiorLions of the liver, varying from two to
eight ounces, were cut in very fine pieces, and then heated by
various chemical substances, such as pure hydrochloric and sul-
phuric acids, hydrochloric with chloride of pofcish, chlorine and
various gases.
Witness explained the extent of the operation of the appara-
tus. He illustrated by the charts and diagrams ; these were pre-
pared for Marshall's apparatus, consisting of a bottle, in which
zinc, water and hydrochloric acid were used ; this was in order
to set free gas, which was ignited ; after testing these gases, the
suspected liquid was introduced, and Marshall's apparatus em-
ployed in the following way : If arsenic be introduced in a cer-
tain form, it formed a gas known as arseniated hydrogen ; this
was inflammable ; the mode of ascertaining if arsenic was associ-
ated with h}'drogen, was by placing a cold piece of glass over
the flame, when, if arsenic te present, a white crystalline powder
was obtained.
The results of these experiments were stains on the glass tube,
some of a yellowish hue, and others of a dark appearance ; wit-
ness never having met these stains before, but suspecting that
yellow sulphuret of arsenic was present, the experiment was
tried at the New York Medical College, and the sulphur was
divided from the arsenic, but as the traces were so faint, the
chemists arranged a three necked bottle, in which pure oxygen
was placed, and dried by passing through a tube containing
chloride of calcium, when the oxygen made its appearance at
the extremit}' ; the sulphur obtained was found to exhibit one of
the properties of sulphuret of arsenic ; the arsenic, or arsenious
acid, (which was white,) was dissolved in watei', tested with a
solution of ammonia-nitrate of silver, and produced a yellow
precipitate, the arsenite of silver, which dissolved in ammonia ;
another portion of the dissolved white precipitate was tested with
the ammonia-sulphate of copper, yielding a precipitate of arsenic
known as Shield's green, which dissolved in ammonia ; another
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 515
portion was tested with sulphuretted hydrogen, yielding a yellow
precipitate, which also dissolved in ammonia. The proofs of
arsenic were as follows :
1. Yellow in color.
2. It volatilized when heat was applied.
3. It oxydized into sulphuret of arsenic and arsenic acid.
4. It dissolved in water.
5. It yielded a precipitate which dissolved in ammonia.
6. It gave the characteristic to green precipitate, which
7. Dissolved in ammonia.
8. It yielded a yellow precipitate, which
9. Dissolved in excessive ammonia.
There was no substance but arsenic known to chemists by
which such results could be produced ; these results were from
the liver and kidneys; the stomach and intestines were examined
in the presence of Dr. Wood, Drs. Budd, Zincker and witness;
the stomach contained a tablespoonful of a brownish mass, re-
sembling coffee grounds, which were retained for examination ;
the contents of the stomach were tested by hot distilled water
and hydrochloric acid, and Marshall's apparatus, and yielded no
stain, beyond what was found on the heated coil ; this was an
indication that no arsenic existed in these contents ; it was also
tested for opium, without hope of success, because the profession
have yet to learn that opium can be found after so long a period ;
the liquid produced from the contents of the intestines was intro-
duced, and yellow stains found, which led to the suspicion of
the presence of sulphuret of arsenic, they have since been oxy-
dized, and correspond to the liquid chemical test of arsenic ; the
white crystalline precipitate found was also examined by the
microscope, and showed the presence of arsenious acid; the
quantity taken from the intestines was scarcely half a teaspoonful.
Witness described the process by which he tested the viscera ;
he next presented the various tubes and glasses on which the
black metallic and yellow stains appeared, and explained the
tests which were used to distinguish the black metallic arsenic
516 MEDICAL EVIDENCE.
from antimony, which simulated the appearance of the former.
He next alluded to a statement in the coroner's report, to the
effect that he had not observed such yellowish stains before, nor
heard of them ; b:.t he had since seen a foot-note in a chemical
work, which showed that in such stains there would be found
black arsenic, arseuious acid, and lastly, sulphuret of arsenic,
combined.
He then described the process pursued with ten ounces of
the muscular and adipose tissues, until a powder was obtained,
which was tested by aqua regia, and by means of Marshall's
apparatus a metidlic stain was found. Some four pounds
and four ounces of the same were treated with strong hydro-
chloric acid, etc., and other stains were found, from which
sulphuret of arsenic was procured ; this was oxydized with
nitric acid, neutralized by soda, and then treated with nitrate
of soda, and after other te^ts a dark stain appeared beyond the
heated coil; oxygen beiiig passed through, seven-eighths of the
stain was oxydized, and white arsenious acid was found, which,
being also tested by nitrate of silver and sulphate of copper,
produced the stains which attended upon such tests; one-eighth
of the stain was kept for any further tests if found necessary.
Wherever the metallic arsenic was heated and oxydized, the char-
acteristic garlic odor thereof was recognized, not only by him-
self and assistants, but by persons present who did not expect
such odor. When examining the pieces of kidney and liver also,
the black stains were obtained upon pieces of porcelain; this
had been considered a tiue indication of the presence of arsenic,
but as other substances, (antimony for instance,) would give out
a similar stain, the one in question was tested by hydochloride
of soda, and dissolved, which antimony will nut do by the same.
Some of the bones were also heated with hydrochloric acid until
they dissolved, the lime was removed, and sulphuretted arsenic
found by the test of sulphuric acid, which subsequently became,
on being tested, arsenious acid, or arsenic; the octahedral crys-
tals were seen and could still be seen under the microscope- Subse-
LEADING ADJUDICATED CASES IN ARSENICAL POISONmO. 517
quent to the coroner's report, about two pounds and two ounces
of the muscular tissue were tested chemically in a special labor-
atory, whose doors, windows, etc., were locked and sealed when
leaving, and the seals examined on returning, so that no person
could enter, and no one was allowed to enter the room but Dr.
B. L. Buidd and witness. This process was described at great
length, the result being the discovery of the presence of arsenic.
The skin and a portion of the adipose tissue were treated in the
same room, where the usual safeguards were used ; this process
was also described ; it lasted about one hundred and fifty-two
hours, and, having been prepared by Wooler's process for Marsh's
apparatus, the black stain, indicating the presence of arsenic, was
discovered, which, being oxydized, was converted into arsenious
acid ; another portion being oxydized, and tested, proved to be
metallic arsenic ; the remainder- of the skeleton was next dis-
solved find treated by Wrensch's process, when it produced the
black metallic arsenic.
The witness said that he had not mentioned all his experi-
ments, for himself and assistant had been employed thereon
almost incessantly since the day the body came into his charge,
up to the present time. Estimated the amount of arsenic
found at about two grains ; should estimate that there was loss
of the metal in the process; if one should examine a body,
and there was an ounce, or half an ounce, the loss would
be small, but when there would be only six grains or so, in a
large body, which should be subjected to all these processes,
unquestionably a great portion would be lost ; it was very diffi-
cult to estimate the quantity of arsenic in the body, yet, on
consultation with his assistants, he thought that from four to six
grains were in the body ; all the articles used in the investigation
were new, and purchased for the purpose that there might be no pos-
sihility of the arsenic being thus introduced, and all other articles
used in it were tested to ascertain if there were arsenic in them.
We removed portions from the different parts of the coffin and
shroud ; they were tested and found to contain no arsenic ; three
518 MEDICAL EVIDENCE.
samples of the soil about the coffin was also subjected to an
examination in different ways with no result ; before absorption
in the body, arsenic may be removed by vomiting or evacuatio.i ;
after absorption, it is removed rapidly from the system through
the kidneys ; the removal began in twenty-four hours, witness
took the sixteenth of a grain of arsenic three times in a day ;
the urine voided in twenty-four hours was examined by Waller's
method, and metallic arsenic obtained ; believed that arsenic did
not exist as a natural constituent of the human body ; he beheved
this because chemistry had not detected it, except in cases where
there was known to have been poisoning by arsenic.
At the request of the court, witnc ss explained the difference
between metallic arsenic and arsenious acid, sulphuret, and the
other forms of arsenic. A fatal dose of arsenic was variously
estimated at from one and a quarter to four grains; the amount
required would depend upon tlie manner and form given, and
other circumstances, Avhich the witness detailed. In the case of
Mrs. Stephens, arsenic was found in the contents of the large
and small intestines, throughout the viscera, in the adipose and
muscular tissues, in the skin, and in the bones ; the symptoms
of arsenical poisoning in the human body varied in accordance
with the circumstances, most commonly vomiting, pain at the pit
of the stomach, almost uniformly described as a burning pain,
pain in the throat, were the S}'mptoms ; it might also attack the
nervous system ; in one case, instant death had been produced ;
it might produce diarrhea, though not always ; it might produce
swelling of parts of the body, or peculiarly anxious appearance
of the countenance ; death commonly ensues by the person being
in a state of collapse ; witness came to the conclusion, from ob-
servation, from the statements of standard authors, and from
the analysis of two hundred cases of poisoning, recently made
by Dr. Benjamin Lee. Witness exhibited the analyses of Dr. Lee
in tabular statement. In cases of arsenical poisoning, the urine
was scanty, and sometimes suppressed; the feces were usually
soft, with a fetid odor."
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. uVJ
William Detmoid, M. D., sworn. — " Witness was a physician
and surgeon, and had been between thii'ty and forty-nine years,
and was Ibrmerly professor in the Medical Department of the New
York University ; was familiar with symptoms of arsenical poi-
soning; they varied with the amount of the dose, the condition
of the system, and other circumstances, which the}' could not
appreciate ; those which were almost invariably found were first,
vomitino- of the contents, afterward streaked with blood, an intense
burning pain, beginning in the pit of the stomach and proceeding
downward, making the whole of the abdomen painful ; descended
sometimes to the anus, and ascended to the throat t^ometimes;
the burning pain was unquenchable; they had also diarrhea,
sometimes streaked with blood, an anxious face and sunken ej'e,
and in rare cases a brilliant lool^ of the eye, excessive prostration
of the vital powers, the pulse quick and feeble, and the limbs often
paralyzed ; the extremities became numb ; the mine was in most
cases very scanty, of a high color, and was sometimes entirely
suppressed ; the mind was generally free, and in rare cases was
there delirium ; this was to be remarked, because in other diseases
having similar symptoms there was delirium ; there was paralysis
generally, but in some cases convulsions ; witness had not men-
tioned all the symptoms which might occur in cases of arsenical
poisoning, but had confined himself to those which were the
ordinary symptoms.
The witness described the pain felt by persons poisoned by
arsenic to be a fiery pain from the pit of the stomach, extending
upward, with a sore mouth and lips, and extending downward to
the orifice of the anus, so as to malco the evacuation painful. In
cases where death follows in a few days afrer a large dose being
taken, the eyes might either have a wild, brilliant appearance, or
be sunk deeply in the head, and frequently injected with blood ;
but in c ises which were not so immediately liital, and where death
occurred in a week or two after repeated doses, the eyes were apt
to be swollen ; in the slower cases there is frequently edematous
sweUing of the lids, with pain in the eyes; at first, the color of
520 MEDICAL EVIDENCE.
the vomited matter would depend much on the contents of the
stomach, but after the stomach was emptied then the color would
depend on the secretions, and the ejected masses would be yellow,
with spots or streaks of blood ; if there were a great deal of
blood it might be much darker; the vomited matter might at
times be of the color of coffee grounds ; the patients are very
frequently exceedingly restless, tossing their arms and hands
about ; very frequently there is numbness and loss of sensation,
also paralysis or convulsive twitchings, showing that the nerves
are affected ; the manner of death varies according to the quan-
tity taken ; in most cases it occurs under collapse, (cold, clammy
skin, weak pulse, etc.;) at times there is great lethargy when
death approaches; great prostration is noticeable through the
whole course of thQ disease ; laudanum produced drowsiness and
a contraction of the pupil, which in large doses becomes smaller ;
the patient becomes drowsy, and before death may have convul-
sions, together with coma ; the respiration is very slow, and snor-
ing, — a loud breathing, that can be heard ; when medical men
give over two drachms at a time, it is an exceptional case ; three
and a half ounces between nine A. M. and seven P. M., would
certainly be a colossal dose ; when arsenic is taken in successive
small doses it will accumulate in the body more rapidly than it.
would be thrown out again ; it is removed chiefly by the kidneys,
and begins about the loins ; but within twenty-four hours after
the first dose there is reason to suppose that such removal goes
on until the whole of the arsenic leaves the system, provided no
new doses are introduced; arsenic would be eliminated more
rapidly where the blood and all the functions performed their
active duties, than when they move slowly ; the dose thus sup-
posed, must be a very small one; if 1-1 6th of a grain it is diffi-
cult to find minute particles, but in three days arsenic could not
be found after one dose.
A dose of arsenic begins with 1-1 6th of a grain, which would
be given only twice a day, and then the patient would be watched
for poisonous symptoms, which occur sometimes after such doses>
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 521
and then it would cease to be medical; the effects of the medici-
nal doses of arsenic are slow, and those of laudanum very rapid ;
so that if a dose of arsenic and laudanum be given at the same
time, the laudanum would be mainly noticed, while in larger doses
of each it would be directly the reverse, and the doses of arsenic
would be but slightly influenced by the laudanum, which would
in a measure relieve the pains and partially stop the vomiting and
diarrhea, but all these would be overpowered by the arsenic ; the
post mortem appearances ofa case ofarsenical poisoning are at first
negative; thus, if death occurred rapidly and a rent was found
in the stomach, they would not go further, and suspect poisoning ;
they generally find a slight inflammation extending through the
intestines from the mouth to the anus, witli black particles under
the mucous membrane which could not be washed off; there
might be abrasion of the skin in the intestines ; in looking at
these spots or patches by the microscope, probably blood would
be found ; had not much experience in anatomical matters, but
arsenic is a preventive of putrefaction ; in a great many cases,
when a body poisoned by arsenic is exhumed, the body is found
in a sbite of good preservation ; the non-existence of those post
mortem appearances described would prove nothing, but their
existence would be proof positive ; witness took his degree at
Gottingen, in Germany. The suppression of the urine would
make the arsenic more rapidly fatal."
Dr. B. Fordyce Barker, examined by IVIr. Sedgwick, deposed. —
"I reside at No. 70 Union-place; I am professor of Midwifery
and Diseases of Women, in New York Medical College." The
witness went on to describe the symptoms of acute poisoning to
be vomiting, nausea, a burning in the throat, commonly called by
patients " a ball of fire," gradually extending over the whole abdo-
men. Professor Barker gave testimony similar to that of Dr.
Detmoid as to the symptoms and effects of poisoning by arsenic
acid.
Mr. Benjamin W. Macready resides at No. 8 Ninth street ; is
one of the visiting physicians of Bellevue ; as professor of toxi-
522 MEDICAL EVIDENCE.
oology, he g.ive lectures on the subject of poisoning by arsenic ;
the witness detailed the symptoms which are manifested in a per-
son suffering under the effects of poison ; the testimony was, in
effect, similar to that of the other medical witnesses.
Ques. — What would be the effect upon the human system of
three ounces of laudanum, administered between a period of ten
hours? (Objected to, and objection sustained.)
Ans. — The effect of that amount of laudanum on ninety-nine
persons out of one hundred would be that the pulse would become
slow, and in most cases the dose would be sufficient to produce
death, and also a drowsiness out of which it would be difficult to
awaken the patient. Patients suffering from lock-jaw, hydrophobia,
etc., wherever there is acute pain, violent purging and certain
diseases of the nervous system, large doses of laudanum can be
borne. Never knew of a single disease or a combination of dis-
eases which would produce the symptoms named in the present
case. Arsenic is not a natural constituent of the human system,
either before or after death. Would call a poisonous dose of arse-
nic one grain ; it would produce unpleasant effects ; there was
evidence of a case where two grains had produced death.
Alanson S. Jones, physician, gave similar testimony as to the
symptoms on a patient under the effects of poison ; he also added
that the disease most resembling poisoning by arsenic is Asiatic
cholera; there was no Asiatic cholera in this city in 1857; the
discharges are never accompanied with blood in Asiatic cholera ; it
does occasionally accompany the discharges in cases of poisoning;
in colic the pain is removed by pressure, in poisoning it is in-
creased by pressure.
Ques. — If you found in a human body two grains of arsenic,
would you say that a greater amount had been administered ?
Ans. — la my judgment there can be no doubt of that; a
larger amount must have been introduced into the system, be-
cause arsenic produces vomiting, and more or less must be
thrown off!
Dr. Adam Zenker, a graduate of the New York Medical Col-
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 523
lege ; studied chemistiy in Germany under Leibig and Wohler,
and given particular attention to the study of poisons during
the last eight years; sometimes in the laboratory they poison
animals with arsenic and poisonous gases; sometimes the coi-i -
ners sent them poisoned stomachs and intestines to examine. Dr.
Zenker assisted in the post mortem examination, and the chemical
analysis of the body of Mrs. Stephens, and testified that these
investigations were conducted with great care and caution, as
stated by preceding witnesses. He discovered metallic arsenic
ill the viscera taken from the bod}' of Mrs. Stephens at the post
mortem.
Dr. Bern L. Budd, another of Dr. Doi-emus's assistants, who
had pursued the practical study of chemistry for seventeen years,
corroborated the testimony of Dr. Doremus.
On Sunday, October od, he went to Bellevue Hospital with
Dr. Doremus ; separated the body of Mrs. Stephens from the
lower extremities; placed the whole body in a trunk and conveyed
it to the New York Medical College. Then the soft parts were
removed from the bones, and the muscular and adipose tissues
and the skin were separated, and distinct analyses were made.
The doors of the laboratory were carefully secured and sealed.
A portion of the tissues were analyzed at a laboratory expressly
fitted up for the purpose in Eighteenth street.
Witness gave a detailed statement of the various processes and
the precautions used to insure the purity of the materials used.
In one case, being unable to procure pure nitrate of sod,'., they
were obliged to make it.
From two pounds and two ounces of muscular tissue, scraped
from the spine, they obtained, by a separate analysis, one-twenty-
second pai't of a gi'ain of arsenic. Arsenic was also obtained
from the skin and bones, and from urine found in the bladder.
Arsenic does not exist in the human body ; they had proved this
by the careful analysis of an entire human body, in the same
manner in which they examined that of Mrs. Stephens. Had
since analyzed drugs obtained from Shipley & Yanderhoof, similar
524 MEDICAL EVIDENCE.
to those prescribed for Mrs. Stephens by her physicians, and
they obtained no arsenic.
He had examined the subject of arsenic-eating, said to prevail
in some countries, and came to the conclusion that it was all the
fjibulous fancy of travelers ; the standard writers nil discredited
it, and an American physician who had traveled in Hungary and
Styria had recently [lublished a statement, that the whole story is
without foundation. He had lately analyzed the entire coffin of
Mrs. Stephens, and it contained no arsenic. The coffin-plate was
exhibited in court."
In the able charge of Judge Roosevelt to the jury, in this
case, he said of the Medical Evidence : " You have also heard
from the lips of some of the most distinguished members of the
medical profession, — all agreeing in the main features of their
teetimonv, — what are the efiects exhibited before death where
arsenic has been taken in poisonous quantities, and which of those
effects are peculiar to that one cause. On these statements,
weighing them deliberately, it will be for you to determine, as one
of the steps to your ultimate conclusion, whether the symptoms
in the case before you were, in point of fact, the same substanti-
ally as those attendant on arsenious poisoning. Should the com-
parison, after the most careful study of every particular, still
leave any doubt on the mind, you will then have the right, and
it will be your duty, to look to another, and perhaps the most
wonderful feature in this most remarkable case. Po.st mortem
examinations, as generally understood, are dissections of the body
made within a few hours, or, at furthest, days, after the death.
In the instance of Mrs. Stephens, a whole yeir had elapsed.
She died on the 23J of September, 1857, and was exhumed on
the 23d of September, 1858. This long period of interment, so
fatal in ordinary cases to both observation and experiment, has
furnished, it is said, one of the strongest links in the chain of
evidence to establish the fact that ar.-:enious pr)ison, howsoever
and by whomsoever administered, was the true cause of the
death in question. The body was in a state of preservation, to
LEADING ADJUDICATED CASES IN ARSENICAL POISONING. 525
be accounted for, says the chemists, by the known action of arse-
nic, and yielded, under the operation of probably the most perfect
and careful analysis ever conducted by scientific men, a suflicient
quantity of the poison to demonstrate that arsenic had been taken
into the system before death, and that death resulted from it. I
need not go over these admirable experiments, which so wonder-
fully illustrate the powers of science, and do much honor to Dr.
Doremus and his associates. They have been almost repeated
by description in the course of the trial, and must be fresh in
your recollection. It will be for you to consider them candidly,
and to give them as on a question of life and death, all the weight
to which, in your deh berate judgment, making due allowance foi
possible error, they shall seem entitled."
The prisoner was convicted ; but the case is still before the
Court of Appeals, on important questions of law.
The foregoing report of the most interesting case of arsenical
poisoning that has occurred in this country, is not as complete
as we would desire. We have been obliged to rely on the report
given to the daily New York papers.
The leading medical witness, Prof Doremus, received from the
State, we understand, $4,000, for his chemical analysis in this
case. This is the most liberal compensation to a medical witness,
on record, in this country ; or, perhaps, any other.
The very able argument of Mr. Ashmead, for the State, has
been published, and occupies ninety pages, octavo.
CHAPTER XXXVI.
POISONING BT STRYCHNIA.
The celebrated Palmer case, in England, produced throughout
the whole civilized world a profound alarm ; illustrating as it did,
the fact that strychnia, in the hands of one acquainted with its
properties, might be used to produce death, and be detected only
by the most profound skill of medical men.
The first case upon record, of importance, where strychnia was
used, was that of Miss Abercromby, who was poisoned by her
brother-in-law in 1830, in England. So crude however was the
knowledge of the agent at that time, that Wainright, the mur-
derer, escaped conviction, although there is, at this time, no doubt
of his guilt, judging from the symptoms that attended the death
of Miss Abercromby.
Poisoning by this article is constantly becoming more frequent ;
and the courts, counsel, and medical men, will doubtless soon have
to deal with it, as often as with arsenic, in criminal matters.
Strychnia is an alkaloid, extracted from nux vomica, an eastern
drug. It has not been much known and used as a poison, except
by medical men, until recently, being discovered in 1S18.
TAYLOR'S CHEMICAL ANALYSIS AND SYMPTOMS.
The pure alkaloid. — Strychnia is a white crystalline solid,
scarcely soluble in water. It is dissolved by hot rectified spurit,
and, in a smaller degree, by ether. Its alcoholic solution by slow
evaporation deposits strychnia in well-formed crystals. 1. It
crystaUizes in lengthened cuneiform octahedra. which have been
described as four-sided prisms, and in flattened prisms, crossing
(52G)
POISONING BY STRYCHNIA. 527
each other at angles of G0°. 2. When heated on platina-foil
or mica, it melts, and burns Hke a resin, with a yellow flame,
evolving a black smoke. When heated in a small reduction-tube,
ammonia is one of the products of its decomposition. 3. It re-
quires 7000 parts of cold water and 2500 of boiling water to dis-
solve it. It is thus separated and known from its salts, all of
which are very soluble in water. 4. It is not very soluble in
potash, ammonia, or any alkali j hence an alkali gives a white pre-
cipitate in the saline solutions of strychnia, when they are not
too much diluted. 5. It is very soluble in chloroform. 6. It is
dissolved by weak acids, mineral and vegetable. 7. Strychnia
and all its salts have an intensely bitter taste, even when they do
not form more than the yirio^th part by weight of the solution.
8. Like the solutions of all the alkaloids, they are precipitated by
tannic acid.
Tests in the solid state. — 1. Nitric acid does not produce any
change of color in pure strychnia or its salts ; but the strychnia
used in pharmacy is generally reddened by this acid, owing to its
containing brucia. 2. Iodic acid produces no change in this
alkaloid, whereby it is known from mor[)hia. 3. Coid concen-
trated sulphuric acid dissolves it without producing any change
of color. If to this solution, a fragment of a crystal of bichro-
mate of potash is added and allowed to remain for a few seconds,
a series of beautiful colors will appear wherever the bichromate
meets the acid mixture. These colors commence with a deep
blue, passing through violet, purple, and red tints, until by long
exposure to the air, the mixture assumes a light-red color. A
fragment of ferrocyanide of potassium, or a particle of peroxide
of manganese, will produce the same play of colors. As they
are produced by finely powdered peroxide of manganese (if not
added in too large quantity), they present the finest variations
of tint, while the changes are not so rapid. These results are
obtained equally with the salts of strychnia. This '• color-test "
will apply to the smallest visible quantity of pure strychnia ob-
tained by the evaporation of the smallest quantity of any of its
528 MEDICAL EVIDENCE.
solutions. It should be applied, not to the solution, but to the
dry residue ; the proportion of acid and manganese or bichro-
mate of potash must be adjusted accordingly.
Sails of strychnia in solution. — 1. If not too diluted, potash
and all alkalies throw down a white precipitate not redissolved by
a slight excess of the alkali. 2. Carbonate of potash slowly
precipitates a diluted solution in fine prisms. 3. Bicarbonate of
potash does not precipitate the solution, if acid. 4. Sulphocy-
anide of potassium produces a crystalline precipitate, appearing
as flattened prisms under the microscope. 5. Ammonia gives
crystals of strychnia. 6. Chromate of potash produces in very
diluted solutions, prismatic crysfcds of a golden-fellow color, and
when a drop of sulphuric acid is added to these under the m'cro-
scope, the purple and violet colors are immediately brought out.
This is a useful test for strychnia, first suggested by Mr. Horsley,
of Cheltenham. 7: The chlorides of platina and gold, and the
iodide of potassium, with or without iodine, produce precipitates,
the crystalline characters and polarizing properties of which, as
observed by the miscroscope, are in some respects peculiar. The
iodide of potassium gives, even in very diluted solutions, well-
marked stellated prisms with fusiform terminations. 8-. The
solution has an intensely bitter taste, perceptible even when
diluted to ^TfTTnrth part, or according to some, when diluted to
TT^TTirth part.
Objections to the tests. — There are no objections to these tests
when we are dealing with the pure alkaloid, and when we take
care that the more salient properties of crystallization and taste
are brought out as well as the production of color. Some enthusi-
astic chemists have proposed that we should rely on color alone,
and they have affirmed that there is no substance but strychnia
which will produce, with a mixture of sulphuric acid and bichro-
mate of potash, ferricyanide of potassium, or peroxide of lead,
the colors above described. This was stated on oath by the
chemical witnesses for the defense on the trial of William Palmer,
in 1856. The researches of Bernard and Pehkau, published in
POISONING BY STRYCHNIA. 529
1857, have, however, made known to the scientific world that
the South American poison, curara, contains an alkaloid, curarina,
which resembles strychnia in the action of the color tests, brucia
in the action of nitric acid, and both in its intense bitterness.
Sulphuric acid gives a variety of colors with organic substances.
Narceine and papaverine are rendered by it blue ; salicine acquires
a pinkish-red ; pyroxanthine, a rich sapphire-blue color, with vari-
ous shades of purple ; cyclamine, a violet-red color ; and cerebral
matter, a violet color with various shades of red. But these sub-
stances are colored by sulphuric acid irrespective of the use of
bichromate of potash, or the other oxidizing agents. Aniline
acquires a deep sapphire-blue color when a mixture of sulphuric
acid and bichromate of potash is added to it. In all these cases,
it is true, a distinction may be drawn, provided the acid and the
bichromate be separately added, and not used in a mixed state,
as recommended by Otto and some other analysts ; yet the fact
that such a variety of colors is produced by sulphuric acid on
organic substances should teach caution in drawing inferences
from its employment in cases in which we are operating on the
solids or liquids of a dead body. On the whole, in Medico-legal
practice, it would be unsafe to rely upon color thus produced in
organic extracts, unless we have the corroboration derived from
crystalline form and bitter taste. In the absence of the latter,
whatever results the color test may give, there can be no cer-
tainty that strychnia is present.
A negative result must be received also with equal caution.
Bocker has pointed out that morphia, quinia, certain organic acids,
nitre, common salt, and sugar, modify or prevent the reaction of
chromic acid on strychnia. An analyst ought therefore to be well
assured of the purity of the substance which he is examining
before he comes to a conclusion that strychnia is present or
absent in an article presented for analysis.
Organic mixtures. — Numerous processes have been suggested
for the detection of this poison in the contents of the stomach
and in organic liquids generally. It is unnecessary to describe
34
530 MEDICAL EVIDENCE.
the whole of them. The general principle of separation is nearly
the same in all. The alkaloid i.s first rendered soluble by the use
of a diluted acid, — the tartaric, oxalic, acetic, sulphuric, hydro-
chloric, and phosphoric have all been used for this purpose. The
alkaloid is then precipitated by carbonate of potash, and redis-
solved in alcohol mixed with acetic acid ; or, after concentration,
the acid liquid is neutralized by potash or its carbonate, and the
alkaloid removed by ether; or lastly, the salt of strychnia is
removed from the organic liquid by agitating it with animal char-
coal, and it is then separated from the charcoal by rectified spirit.
Among these processes, that which is least open to objection is
based on the principle first suggested by M. Stas. 1. A small
quantity of acetic acid (a few drops to an ounce) is added to
the liquid or to the solid very finely cut up. A sufficient
quantity of water is used to make a thin liquid, a small quantity
of alcohol is added, and the whole is now digested in a water-bath,
with frequent stirring. 2. After an hour's digestion, the liquid is
sti'aiued, filtered, and pressed ; the residue is washed with more
water and alcohol until all the soluble matter is removed. The
liquid is evaporated in a water-bath to one-half, and the residue
is then treated with hot alcohol and filtered. 3. The alcoholic
solution (containing acetate of strychnia) is evaporated, and the
residue is digested with a small quantity of distilled water. This
is filtered, and placed in a stoppered tube ; it is then rendered
alkaline by potash, and shaken with twice its volume of rectified
ether. The ethereal liquid is poured ofi' and allowed to evaporate
spontaneously, when strychnia, if present, will be left in small
circular spots, which appear crystalline under the microscope.
The crystalline form, the bitter taste, and the effect produced by
sulphuric acid and bichromate of potash, will enable the analyst
to determine whether the ethereal residue does or does not contain
the allTaloid strychnia.'
Symptoms. — When strychnia is taken in solution it has a hot
1 Taylor on Poisons, 689—693.
POISONING BY STRYCHNIA. 531
and intensely bitter taste. This, of course, is not necessarily
perceived when it is swallowed in the form of a pill. At an
interval varying from a few minutes to an hour or longer, and
sometimes without any premonitory symptoms, the person is
suddenly seized with a feeling of suffocation and great difficulty
of brtathing. There are twitchings and jerkings of the head
and limbs, — a shuddering or trembling of the whole frame.
Tetanic convulsions then commence suddenly with great violence,
and nearly all the muscles of the body are simultaneously affect-
ed. The limbs are stretched out, the hands clenched, — the head,
after some convulsive jerkings, is bent backward, the whole body
is as stiff as a board, — and assumes, by increase of the convul-
sions, a bow-like form, (opisthotonos,) being arched in the back
and resting on the head and heels. During the fit the head is
firmly bent backward, and the soles of the feet are incurvated or
arched and everted. The abdomen is hard and tense, — the chest
spasmodically fixed, — so that respiration appears to be arrested, —
the face assumes a dusky or congested appearance, with a drawn
and anxious aspect, the eyeballs are prominent and staring, and
the lips are livid. The features have been observed to assume
the peculiar appearance given by the sardonic grin, (risus sar-
donicus.) The patient complains of a choking sensation, with
thirst and dryness of the throat. An attempt to drink is often
accompanied with a spasmodic closure of the jaws, by which the
glass or vessel is broken or bitten. In several cases of poisoning
by strychnia there has been fi-om the outset a sense of impend-
ing dissolution, and one of the first exclamations made by the
patient has been, '' I shall die." The intellect is generally clear
and unclouded during the intervals of paroxysms, and the patient
appears to have a full sense of his danger. After a succession
of fits and generally shortly before death, there may be a loss of
consciousness. This was observed in a case which occurred to
Dr. Ogston, and in that of Mrs. Dove. Pain is occasionally felt
at the pit of the stomach, and during the paroxysms there is
severe suffering from the violent spasms of the voluntary muscles.
532 MEDICAL EVIDENCE.
The consciousness of the access of the fit is very remarkable.
The patient calls out loudly, " It is coming," and screams or
shrieks, asking at the !?ame time to be held. He in vain seeks
for relief in gasping for air and in requiring to be turned over,
moved, or held. Sometimes there is frothing at the mouth, and
this (roth is bloody from injury to the tongue. With respect to
the muscles of the lower jaw, — these, which are the first to be
affected in tetanus from disease, are generally the last to be af-
fected by the poison. The jaw is not primarily attacked, and is
not always fixed during the paroxysm. It is relaxed in the
interval, and the patient can frequently speak and swallow.
When the jaw has been fixed by spasm, unlike the lock-jaw
of disease, this has come on suddenly in full intensity, with
tetanic spasms in other parts, and there are intermissions which
are not witnessed in the tetanus of disease. The sudden and
universal convulsion affectinof the voluntarv muscles has been
sometimes so violent that the patient has been raised up and even
jerked oiY the bed. During the convulsions the pulse is very
quick. After an interval of half a minute to one or two minutes,
the convulsions subside; there is an intermission, — the patient
feels exhausted and is sometimes bathed in perspiration. It has
been noticed in some of these cases that the pupils wei'e dilated
during the paroxysm, while in the intermission they were con-
tracted. Slight causes, such as the attempt to move, or a sudden
disturbance, or even touching the person lightly, will frequently
bring on a recurrence of the convulsions. In cases likely to prove
fatal, they rapidly succeed each other and increase in severity and
duration, until at length the patient dies exhausted. The tetanic
symp'oms produced by strychnia, when once clearly established,
progress rapidly either to death or recovery. The duration of
the case, when the symptoms have set in, is reckoned by minutes,
while in the tetanus of disease when fatal, it is reckoned by hours,
days, and even weeks. As a general statement of the course of
these cases of poisoning, — within Uvo hours from the commence-
ment of the symptoms the person either dies or recovers, accord-
POISONING BY STRYCHNIA. 533
ing to the severity of the paroxysms and the strength of his
constitution."^
As to detecting the poison in the body after death, the follow-
ing points, Mr. Taylor thinks, are established: "1. Tiiat strych-
nia may be found in the stomach as in other cases of poisoning,
when it has not been entirely absorbed, and the stomach and
contents have been properly preserved for analysis, 2. That a
putrefied condition of the body does not interfere with its detec-
tion and separation when present in the remains. 3. That in
some cases, when given in small doses, and in other cases, even
in large doses, although it may be detected in the stomach, (if
carefully preserved,) it can not be detected in the absorbed state.
in the blood and tissues. 4. That there are no facts derived
from experiments on animals, or from observations on the human
body, to justify the statement, that in all cases of poisoning by
strychnia, the poison must by proper chemical processes be cer-
tainly detected. 5. That in strychnia poisoning, as in morphia
and other forms of poisoning, a person may live a sufficient time
for the poison to be entirely removed from the stomach, and in
this case he may die without a trace of strychnia being found in
the blood, tissues, or any part of the body."-
1 Taylor on Poisons, 681-682.
2 Idem, 695.
CHAPTER XXXTII.
TESTIMONY OF CURLING, TODD. BRODIE, CHRISTISON AND TAYLOR,
IN THE PALMER CASE.
There is very great danger that the symptoms of convulsions
resulting from a poisonous dose of strychnine, may be mistaken
for genuine tetanus. This has doubtless sometimes happened, as
in the case of Miss Abercromby.
On the trial of Palmer, the defense took the grounds, that the
convulsions testified to as existing, before Cook died, were either
idiopathic or traumatic tetanus, and not the effect of strychnine
poisoning.
The most distinguished physicians and chemists of England
and Scotland were present and testified on this point. Among
them were Curling, Todd, Brodie, Christison, Taylor and Solly.
Their testimony so clearly, and definitely settles the peculiar
characteristics of the different forms of tetanus, we give it from
a pamphlet report of the Palmer case, published by the London
Times.
Dr. Curling, surgeon to the London Hospital, and author of a
work upon tetanus, testified as follows : " Tetanus means a spas-
modic affection of the voluntary n;uscles. Of true tetanus there •
are only two descriptions, — idiopathic and traumatic. There are
other diseases in which we see contractions of the muscles, but we
should not call them tetanus. Idiopathic tetanus is apparently
self-generated ; traumatic proceeds from a wound or sore. Idio-
pathic tetanus arises from exposure to damp or cold, or fi"om the
irritation of worms in the alimentary canal. It is not a disease
of fiequent occurrence. I have never seen a case of idiopatic
tetanus, although I have been surgeon to the London Hospital
(534)
TESTBIONY IN THE PALMER CASE. 535
for twenty-two years. Cases of traumatic tetanus are much more
frequent. Speaking quite within compass, I have seen fifty
cases. I believe one hundred would be nearer the mark. The
disease first manifests itself by suffering about the jaws and back
of the neck. Rigidity of the muscles of the abdomen afterward
sets in. A dragging pain at the pit of the stomach is an almost
constant attendant. In many instances the muscles of the back
are extensively affected. These symptoms, though continuous,
are liable to aggravations into paroxysms. As the disease goes
on, these paroxysms become more frequent and more severe.
When they occur, the body is drawn backward ; in some instances,
though less frequently, it is bent forward. A difficulty of swal-
lowing is a very common symptom, and also a difficulty of breath-
ing during the paroxysm. The disease may, if fatal, end in two
ways. The patient may die somewhat suddenly from suffocation,
owing to the closure of the opening of the windpipe ; or he may
be worn out by the severe and painful spasms ; the muscles may
relax, and the patient gradually sink and die. The disease is
generally fatal. The locking of the jaw is an almost constant
symptom attending traumatic tetanus, — I may say a constant
symptom. It is not always strongly marked, but generally so.
It is an early symptom. Another symptom is a peculiar expres-
sion of the countenance.
To Lord Campbell. — I believe this is not peculiar to traumatic
tetanus, but my observation is taken from such cases.
Witness. — There is a contraction of the eyelids, a raising of
the an2;les of the mouth and contraction of the brow. In trau-
matic tetanus the lower extremities are sometimes affected, and
sometimes, but somewhat rarely, the upper ones. When the
muscles of the extremities are affected, the time at which that
occurs varies. If there is no wound in the arms or legs, the
extremities are generally not affected until late in the progress of
the disease. I never knew or read of traumatic tetanus being pro-
duced by a sore throat or by a chancre. In my opinion a syphi-
litic sore would not produce tetanus. I know of no instance
536 MEDICAL EVIDENCE.
where a syphilitic sore has led to tetanus. I should think it an
unlikely cause. The time in which traumatic tetanus causes
death varies from twenty-four hours to three or four days, or
longer. The shortest period that ever came to my knowledge
was eight or ten hours. The disease when once commenced, is
continuous.
Attorney-General. — Did you ever know of a case in which a
man was attacked one day, had twenty-four hours' respite, and
was then attacked the next day ? — Never. I should say that
such a case could not occur.
Attorney-General. — You have heard the account given by Mr.
Jones of the death of the deceased ; — were the symptoms there
consistent with any forms of traumatic tetanus that has ever
come under your observation ? — No.
Attorney-General. — What distinguishes it from such cases? —
The sudden onset of the disease. In all cases which have come
under my notice, the disease was proceeded by the milder symp-
toms of tetanus, gradually proceeding to the complete develop-
ment.
Attorney-General. — Were the symptoms described by the
woman, Mills, as being present on Monday night, those of
tetanus ? — No ; not of the tetanus of disease.
Attorney-General. — There was not, in your opinion, either
idiopathic or traumatic tetanus? — No. — Why are you of that
opinion? — The sudden onset of the spasms and their rapid sub-
sidence, are consistent with neither of the two forms of tetanus.
Attorney-General. — Is there not what is called hysteric tetanus?
— Yes. It is rather hysteria combined with spasms, but is some-
times called hysteric tetanus. I have known of no instance of
its proving fatal, or of it occurring to a man. Some poisons
will produce tetanus. Nux vomica, acting through its poisons,
strychnine and brucia, poisons of a cognate character, produce
that effect. I never saw a case of either human or animal Hfe
destroyed by strychnine."
Dr. Todd, physician at King's College Hospital, having held
TESTIMONY IN THE PALMER CASE. 537
that office twenty years, and author of a work on physiology,
testified, that he agreed with Dr. Curling in his distinction between
idiopathic and traumatic tetanus. He said : " I have seen two
cases of what appeared to me to be idiopathic tetanus, but such
cases are rare in this country. I define idiopathic tetanus to be
that form of the disease which is produced without external wound,
apparently from internal causes, — from constitutional causes. In
my opinion, the term, tetanus, ought not to be applied to disease
produced by poisons, but I should call the symptoms tetanic, in
order to distinguish the character of the convulsions. I have
observed cases of traumatic tetanus. Except that in all such
cases there is some lesion, the symptoms are precisely the same
as those of idiopathic tetanus. The disease begins with stifluess
of the jaw. The symptoms gradually develop themselves, and
extend to the muscles of the trunk. When the disease has
begun, there are remissions, but they are not complete ; only a
diminution of the severity of the symptoms, not a total sub-
sidence. The patient does not express himself as completely,
only quite comfortable. I speak from my own experience. As
to time, the cases may be divided into two classes. Acute cases
will terminate in three or four days, chronic cases will go on as
long as from nineteen to twenty-two or twenty-three days, and
perhaps longer. I do not think I have known a case where
death occurred within four days ; cases are reported in which it
occurred in a shorter period. In tetanus the extremities are
affected, but not so much as the trunk. Their affection is a late
symptom. The locking of the jaw is an early one. Sometimes
the convulsions, epilepsy, assume somewhat of a tetanic charac-
ter, but they are essentially distinct from tetanus. In epilepsy
the patient always loses consciousness. Apoplexy never produces
tetanic convulsions. Perhaps I may be allowed to say, that
when there is effusion of blood upon the brain, and a portion of
the brain is involved, the muscles may be thrown into short
tetanic convulsions. In such cases the consciousness would be
destroyed. Having heard described the symptoms attending the
538 MEDICAL EVIDENCE.
death of the deceased, and the post mortem examination, I am
of opinion that in this case there was neither apoplexy nor epilepsy.
I never knew tetanus arise either from syphilitic sores or (i-om
sore throat. There are poisons which will produce tetanic con-
vulsions. The principle of those poisons are nux vomica, and
those which contain, as their active ingredients, strychnine, and
brucia, I should not like to give to a human subject a quarter
of a grain. I think that it is not unlikely that half a grain
might destroy life ; and I believe that a grain certainly would.
I think that hall" a grain would kill a cat. The symptoms which
would ensue upon the administration of strychnine when given
in solution, — and I believe that poisons of that nature act more
rapidly in a state of solution than in any other form, — would
develop themselves in ten minutes after it was taken, if the dose
were a large one ; if not so large, it might be half an hour before
they appeared. Those symptoms would be tetanic convulsions
of the muscles, more especially those of the spine and neck ; the
head and back would be bent back, and the trunk would be
bowed in a marked manner ; the extremities also would be stif-
fened and jerked out. The stiffness, once set in, would never
entirely disappear; but fresh paroxysms would set in, and the jerk-
ing rigidity would reappear ; and death would probably ensue in a
quarter of an hour or so. The difference between tetanus pro-
duced by strychnine and other tetanus is very marked. In the
ibrmer case the duration of the symptoms is very short, and
instead of being continuous in their development, they will subside
if the dose has not been strong enough to produce death, and
will be renewed in fresh paroxysms ; whereas, in other descrip-
tions of tetanus, the symptoms commence in a mild form, and
become stronger and more violent as the disease progi'esses. The
difficulty experienced in breathing is common alike to tetanus,
properly so called, and to tetanic convulsions occasioned by strych-
nine, arising from the pressure upon the respiratory muscles. I
think it was remarkable that the deceased was able to swallow,
and that there was no fixing of the jaw, which would have been
TESTIMONy IN THE PALMER CASE. 539
the case with tetanus proper, resulting either from a wound or
from disease. From all the evidence I have heard, I think that
the symptoms which presented themselves in the case of Mr.
Cook, arose from tetanus produced by strychnine. I do not
agree with Dr. Taylor, or the authorities, in the opinion, that in
cases of tetanus, animals died asphyxiated. If they did, we should
invariably have the right side of the heart full of blood, which is
not the case. I think that the term, asphyxiated, or suffocated,
is often very loosely used. I know from my reading that morphia
sometimes produces convulsions ; but I believe that they would
be of an epileptic character. I think that the symptoms from
morphia would be longer deferred in making their appearance
than from strychnine, but I can not speak positively on the point.
Morphia, like strychnia, is a vegetable poison. I have not
observed in animals the jaw fixed after the administration of
strychnine."
Sir Benjamin Brodie testified as follows: "I have been for
many years senior surgeon to St. George's Hospital, and have
had considerable experience as a surgeon. In the course of my
practice I have had under my care many cases of death from
tetanus. Death from idiopathic tetanus is, according to my
experience, very rare in this country. The ordinary tetanus in
this country is traumatic tetanus. I have heard the symptoms
which accompanied the death of Mr. Cook, and I am of opinion
that so far as there was a general contraction of the muscles they
resembled those of traumatic tetanus ; but as to the course those
symptoms took, they were entirely different. I have attended
to {he detailed description of the attack suffered by Mr. Cook
on the Monday night, its ceasing on Tuesday, and its renewal on
the Tuesday night. The symptoms of traumatic tetanus always
begin, so far as I have seen, very gradually, the stiffness of the
lower jaw being, I believe, invariably, the symptom first com-
plained of, — at least, so it has been in my experience. The con-
traction of the muscles of the back is always a later symptom, —
generally much later. The muscles of the extremities are affected
540 MEDICAL EVIDENCE.
iu a much less degree than those of the neck and trunk, except
in some cases where the injury has been in the hmb, and an early
symptom has been spasmodic contraction of the muscles of the
limb. I do not myself recollect a case of ordinaiy tebmus, in
which occurred that contraction in the muscles of the hand, which
I understand was stated to have taken place in this instance.
Again, ordinary tetanus rarely runs its course in less than two
or three days, and often is protracted to a much longer period. I
knew one case only in which the disease was said to have termi-
nated in so short a time as twelve hours; but probably in that
case the early symptoms had been overlooked. Again, I never
knew the symptoms of ordinary tetanus to last for a few minutes
and then subside, and then come on again after twenty-four
hours. I think that these are the principal points of difterence
which I perceive between the symptoms of ordinary tetanus and
those which I have heard described in this case. I have not wit-
nessed tetanic convulsions from strychnine on animal Hfe. I do
not beheve that death, in the case of Mr. Cook, arose from what
we ordinarily call tetanus, — either idiopathic or traumatic. I
never knew tet^mus result from sore throat or from chancre, or
any other form of syphilitic disease. The symptoms were not
the result either of apoplexy or epilepsy. Perhaps I had bettei
say at once I never saw a case in which the symptoms that 1
have heard described here, arose from any disease. When I say
that, of course I refer to no particular symptoms, but to the
general course which the symptoms took."
Professor Christison testified as follows : " I am fellow of the
Royal College of Physicians, and Professor of Materia Medica
to the University of Edinburgh : I am also author of a work on
the subject of poisons, and I have directed a good deal of my
attention to strychnia. In my opinion, it acts by absorption into
the blood, and through that upon the nervous system. I have seen
its effect on a human subject, but not a fatal case. I have seen
it tried upon pigs, rabbits, cats, and one wild boar. I first di-
rected my attention to the poison in 1820, in Paris. It had been
TESTIMONY IN THE PALMER CASE.
541
discovered two years before in Paris. In most of my experi-
ments upon animals, I gave very small doses,— a sixth of a
grain; but I once administered a gi'ain. I can not say how
small a dose would cause the death of an animal by administra-
tion into the stomach. I generally appHed it by injection through
an incision in the cavity of the chest. A sixth part of a grain
so administered killed a dog in two minutes. I once adminis-
tered to a rabbit, through the stomach, a dose of a grain. I saw
Dr. Taylor administer three-quarters of a grain to a rabbit, and
it was all swallowed except a very small quantity. The s}'mp-
toms are nearly the same in rabbits, cats, and dogs. The first is
a slight tremor and unwiUingness to move ; then frequently the
animal jerks its head back slightly ; soon after that all the symp-
toms of tetanus come on, which have so often been described by
the previous witnesses. When the poison is administered by the
stomach, death generally takes place between a period of five
minutes and five-and-twenty minutes after the symptoms first
make their appearance. I have frequently opened the bodies of
animals thus killed, and have never been able to trace any effect
of the poison upon the stomach or intestines, or upon the spinal
cord or brain, that I could attribute satisfactorially to the poison.
The heart of the animal generally contained blood in all cases in
which I have been concerned. In the case of the wild boar, the
poison was injected into the chest. A third of a grain was aU
that was used, and in ten minutes the sym[)toms began to show
themselves. If strychnia is administered in the form of a pill,
it might be mixed with other ingredients that would protract the
period of its operation. This would be the case if it were mixed
with resinous materials, or materials that were difficult of diges-
tion, and such materials would be within the knowledge of any
medical man, and they are frequently used for the purpose of mak-
ing ordinary pills. Absorption in such a case would not com-
mence until the pill was broken down by the process of digestion.
In the present state of our knowledge of the subject, I do not
think it is possible to fix the precise time when the operation of
542 MEDICAL EVIDENCE.
the poison commences on a human subject. In the case of an
animal we take care that it is fasting, and we mix the poison with
ingredients that are readily soluble, and every circumstance favor-
able for the development of the poison. I have seen many cases
of tetanus arising from wounds and other causes. The general
symptoms of the disorder very nearly resemblu each other, and
in all the natural forms of tetanus the symptoms begin and ad-
vance much more slowly, and they prove fatal much more slowly,
and there is no intermission in certain forms of natural tetanus.
In tetanus from strychnia there are short intermissions.
I have heard the evidence of what took place at the Talbot
Arms on the Monday and Tuesday, and it induces me to come to
the conclusion that the symptoms exhibited by the deceased were
only attributable to strychnia, or the four poisons containing it.
There is no natural disease of any description that I am ac-
quainted with to which I could refer these symptoms. In cases
of tetanus consciousness remains to the very last moment. When
death takes place in a human subject by spasm, it tends to empty
the heart of blood. When death is the consequence of the adminis-
tration of strychnia, if the quantity is small I shou'.d not expect to
find any trace in the body after death. If there was an excess of
quantity more than was required to cause the death by absorption,
I should expect to find that excess in the stomach. The color
tests for the detection of the presence of strychnine are uncertain.
Vegetable poisons are more difficult of detection than mineral
ones, and there is one poison with which I am acquainted, for
which no known test has been discovered, and that is strychnia.
The stomach of the deceased was sent in a very unsatisfactory
state for examination, and there must have been a considerable
quantity of strychnine in the stomach to have enabled any one
to detect its presence under such circumstances."
The examination of Dr. Taylor was lengthy, and the substance
of it is given in the extract we make from his book on this sub-
ject. He was handled roughly in the cross-examination, but
sustained himself well.
TESTIMONY IN THE PAIJUER CASE. 543
This Palmer trial being the leading case upon strychnine
poisoning, and being the one that has awakened courts to the
dangers of this form of poisoning, we give an abstract of the
trial as we find it in the work of My. Taylor. Being an import-
ant witness in the case, he has given an interesting account of it,
which will be found in the next chapter.
This case should be thoroughly studied, by the medical wit-
ness, and by the lawyer. The distinctive features characterising
genuine tetanus, and the effect of strychnia upon the system, are
nowhere else so clearly and ably set forth. The medical wit-
nesses, many of them, are at the head of their profession. It
will be referred to as authority in all cases of this kind, in this
country.
CHAPTER XXXVIII.
LEADING ADJUDICATED CASES IN POISONING BY STRYCHNIA.
REG. v. WILLIAM PALMER, Cent. Crim. Court ; Taylor, 697.
The prisoner was indicted for the murder of his friend, John
Parsons Cook, by strychnia, and, after a lengthened trial, was
found guilty of the crime. Whether we view the social position
of the accused, the enormity of the crime, the stealthy and artful
manner in which it was perpetrated, and the unscrupulous eflbrts
made by some professional men to save this notorious criminal
from the scaffold, this case surpasses all others in ancient or
modern records. The deceased, set. 28, enjoyed good health, had
never been subject to fits and convulsions, and was fond of out-
door sports. On the evening of the 14th November, 1855, while
in the society of Palmer, he was first seized with a violent vomit-
ing after drinking some brandy and water. From this illness he
recovered, but he had repeated attacks of vomiting after taking
various articles of food, until his death, on the night of Novem-
ber 20th. During this time. Palmer was daily with him, and
sent him broth, which caused vomiting. Some of this broth
had been privately taken by a servant before delivering it to
deceased, and it caused her to vomit. The vomiting continued
more or less daily after deceased had taken various articles of
food, except on November 19th, on which day the prisoner was
absent. On the 17 th November an aged practitioner, (Bamford)
was called in by Palmer to attend Cook. On the 18th, Palmer
wrote to a medical friend of deceased's (Jones) to come and see
him, stating what, as a medical man, he must have known to be
untrue, that he was laboring under a bilious attack combined with
(544)
LEADING ADJUDICATED CASES IN POISONING BY STRYCHNIA. 545
diarrhea. Bamford prescribed two pills containing calomel-, rhu-
barb, and half a grain of the acetate of morphia, to be taken at
night. They were taken by deceased on the nights of the 17th
and 18th, with benefit. On the night of the 19th, at about half-
past ten o'clock. Palmer gave to deceased two pills, and lift him.
At a quarter before twelve, the deceased was heard to scream, and
he was then seen by a servant sitting up in the bed and beating the
bed. He said to this witness, that the pills which had been given
to him by Palmer had caused his illness. She thus described his
symptoms : his head was in motion, jerking backward ; his arms
were straightened out, and his legs were quite stiff; the eyes
were starting; the head was drawn back; the mouth closed. He
could speak, and he said he should die. The prisoner, who had
been sent for at the request of deceased, gave him a wine-glassful
of a brown liquid, after which he vomited, and asked to have his
hands rubbed. These were stiff, cold and damp. On November
20th Palmer was with him, and gave him coflee, which he vomited.
Jones arrived, and saw him in consultation with Bamford and
Palmer in the evening ; he was then going on satisfactorily. He
refused to take more pills, but it was agreed that he should have
the morphia pills that night. The prisoner, Palmer, did not
inform either Jones or Bamford, that deceased had been attacked
with tetanic spasms on the previous night after having taken
pills, and that he, the prisoner, had attended him, and sat with
him for several hours. On the night of the 20th, Palmer called
on Bamford for the pills: on the previous night they had been
sent by a messenger. Bamford made them up in Palmer's pres-
ence, and at his request wrote a direction on the box, " night-pills,"
and delivered them to Palmer, who took them with him. Bam-
ford did not again see the deceased alive.
About a quarter past eleven on this night (and about an houi
after the pills had been delivered to him by Bamford,) the prisoner,
Palmer, gave two pills to deceased in the presence of Jones, call-
ing Jones's attention to Bamford's handwriting on the box.
Palmer then left the house. Deceased, fearing an attack like
35
546 MEDICAL ETIDENCE.
that of the preceding night, requested Jones to have a bed made
up, so that he might sleep in the room with him. But for this
circumstance, on which the prisoner had not calculated, it is
probable that deceased wou'.d have been found dead in his bed,
and no accurate history of the symptoms preceding death would
have been made known. Three-quarters of an hour after tjiking
the pills deceased appeared comfortable, but in ten minutes more
(fifty-five minutes after taking them) Jones was sudde:ily roused
by deceased, who was sitting up in bed, said he was going to be
ill, asked his friend to rub his neck, and to send for Palmer.
After swallowing two other pills (said to con'.ain ammonia,) which
Palmer had brought with him, deceased fell back on the bed in
convulsions. He said he should be sufibcated. They tried to raise
him, but he was so stitlened out with spasms that it was impossible.
He then sad, " Turn me over." He was turned on his side, and he
died in a few minutes. Jones described the symptoms as those
of tetanus ; every muscle of the body was stiffened. When his
neck was rubbed, the muscles of the head and neck were found
to be affected with violent spasms ; his head was thrown back ;
his hands were clenched ; and his arms were in a state of rigidity.
His jaw was fixed and closed. His body was stretched out, and
rested on the head and heels (opisthotonos.) The symptoms,
therefore, in this second and fatal attack, came on in about an
hour after deceased had taken the suspected pills, and he died in
from sixteen to twenty minutes after their commencement.
The body of the deceased was inspected on the 26 th Novem-
ber, six days after death ; it was then in a state of rigid spasm,
and this state of spasm continued in the limbs for more than two
months after death, i. e. when the body was exhumed for a second
inspection. The viscera were stated to be universally in a sound
and healthy condition. The membranes of the brain were a little
congested, the heart was empt}^, and the blood generally dark
and fluid. The mucous membrane of the stomach, as well as
that of the intestines, was partially congested. There was no
appearance of any disease to account for death.
LEADING ADJUDICATED CASES IN POISONING BY STRYCHNIA. 547
The stomach and intestines were delivered in a j;ir to Dr.
Rees and myself for analysis, without any other information than
that it was suspected the deceased might have died from poison.
We could procure no history of the symptoms preceding death.
As there has been much misrepresentation regarding the con-
dition of the articles for analysis, I here give parenthetically the
facts.
Dr. Rees and I made an examination of the coats of the
stomach and of the coats and contents of the bowels. The only
poison found in these and other organs was antimony in traces,
and this discovery at once explained the cause of the vomiting
from which deceased had sufiered during his illness. No anti-
mony had been prescribed for him by his medical attendant.
As there were no contents of the stomach discoverable in the
jar, we examined the coats for various poisons, — among others
for strychnia, — by the process known as that of Merck, and
described by Fresenius. We preferred this process for its sim-
plicity, and although not so delicate as that of Stas, yet it has
this advantage: it separates strychnia (if present) in a form to
leave no doubt upon the mind. It was this process which was
used by Dr. Ogston in his case, and by Mr. Morley subsequently,
in the case of Dove. It has been ignorantly attacked by those
who for a time had a personal interest in attacking it, and who
would have equally attacked any process whatever that Dr. Rees
and I had adopted. We found no bitter taste in the alcoholic
extract, and no satisfactory indication of the presence of strych-
nia. The charcoal process of Graham equally failed to show the
presence of the poison. There was an effect produced by one color
test, which would probably have satisfied some ardent chemist of
the undoubted presence of strychnia. We, however, declined to
risk the possible conviction of a man for murder upon so slender
a piece of evidence as this. When we were at length (iirnished
with an account of the symptoms under which deceased had died,
we did not hesitate to refer death to strychnia, in spite of these
equivocal chemical results: and this opinion was subsequently
548 MEDICAL EVIDENCE.
confirmed at the trial by the evidence of some of the most
eminent pathologists and physiologists of the day, including
Bi'odie, Todd, Christison, Curling, Solly, and others.
It may be sufficient to state that the moral evidence against
the prisoner was of the strongest possible kind. He had bean
associated with the deceased in vaiious money transactions con-
nected with racing, to such an extent that the death of the de-
ceased had become, at that time, a necessity to him, in order, as
he thought, to extricate himself from his difficulties.
The Medical Evidence for the prosecution was to the effect
that viewing the symptoms as a whole in the two attacks, they
were unlike any known form of disease, and admitted of no
reasonable explanation, except that of death from strychnia. It
was proved that the prisoner had secretly possessed himself of
three grains of strychnia on the night of the 19 th November,
shortly before he gave to deceased the pills which led to the first
attack, and that on the 20th, the day of deceased's death, he
had procured six grains of strychnia at a druggist's shop. No
reasonable motive could be suggested for his procuring nine
grains of this poison from two difierent sources within twenty-
four hours, or any explanation given of what had become of it.
The prisoner had, therefore, the motive, the means, and the oppor-
tunity, of perpetrating the crime, while death by suicide or acci-
dent was wholly inconsistent with the facts.
The defense turned mainly on the non-discovery of strychnia
in the body. The criminal tampering with the stomach, was
conveniently ignored : and it was assumed that no difficulties had
been placed in the way of the analysis. With this assumption
it was alleged that no person can die of poison unless the poison
is found in the dead body, and that strychnia being susceptible
of detection up to the minutest fractional part of a grain, its
absence, under a proper chemical research, was a proof that
deceased could not have died from its effects. To support this
view, the counsel for the defense called Mr. Herapath and Dr.
Letheby, who asserted their power to detect strychnia up to the
LEADING ADJUDICATED CASES IN STRYCHNINE POISONING. 549
one fifty-thousandth part of a grain or less ! But while these
witnesses, by their chemical evidence, were thus leading the jury
to believe that the deceased had not died from strychnia, because
it was not found in the coats of his stomach and intestines,
they each had a mental reservation to the effect, that the i;o!i-
deteciion was not really owing to the absence of the poison, but
to the alleged imperfect process pursued by the crown witnesses
for its separation! Mr. Ilerapath had, indeed, expressed this
opinion openly on various occasions before the trial, and Dr.
Letheby subsequently published his views to the same effect. If
these witnesses had only candidly stated this at the trial, it would
have saved the court and jury much time, and science much
scandal ; for they appeared to differ from the crown witnesses on
the main fict, namely, the cause of death, when the difference in
reality was as to the relative value of their own and other pro-
cesses for the detection of strychnia, — a point which a jury could
not decide, and which was quite unimportant to the issue.
The state in which the stomach was delivered for analysis
would to most scientific persons have alone sufficed to account for
the failure of the chemical evidence ; but it was impossible to
look for any charitable consideration from men who were bent on
making a trial for murder a scene of personal contention and
rivalry. Had even the stomach and its contents been delivered
to us in an entire state, and the poison not found, the medical
dogma on which the defense was based is utterly false. In nearly
every chapter on every poison in this volume, the reader will
find that chemistry has in some cases completely failed to reveal
the presence of poison, while in others it has misled an " expert "
to swear to the presence of poison in a definite quantity in a
dead body when the whole was a fiction of the imagination.
The evidence for the defense had this bearing. If strychnia
had been found in the stomach the death of the deceased would
have been at once explained ; hence the symptoms taken as a
whole were certainly not inconsistent with poisoning. This in
fact was admitted by more than one witness for the defense. It
550 MEDICAL EVIDENCE.
was suggested that the symptoms were too long a time in appear-
ing, to have been dependent on the pills, — a suggestion utterly
at variance with facts, — also that the deceased if suflering from
the effects of strychnia poisoning could not have borne to be
rubbed, and that the cavities of the heart after death would not
have been found empty. These statements are all contrary to
fact. In short, no natural form of disease could explain the
symptoms or death of Cook ; and when closely examined, there
was not a single incident in the case which was not reconcilable
with death from strychnia. The possession of the poison, and
the moral circumstances were conclusive of the guilt of the
prisoner, while the only point that might have created doubt, —
the non-discovery of poison, — admits of explanation either on
the theory of the prosecution or on that of the defense.
On the theory of the chemical witness for the defense, a suf-
ficiently delicate chemical process had not been pursued, while on
the theory of those for the prosecution, the criminal Palmer and
his friend Newton had either ignorantly or designedly destroyed
the stomach and its contents, so as to render the detection of a
small residuary quantity of this poison impossible. But the
view of the witnesses for the defense, when taken with the Medi-
cal Evidence, fully justified the verdict of the jury. A criminal
is not to be acquitted upon the assumption that a more deHcate
chemical process might have been ado[>ted by the crown witnesses
for the detection of poison in a dead body ; for there is not a
criminal case in which an unscrupulous solicitor might not pro-
cure this kind of evidence of opinion in favor of the most accom-
plished professional poisoner. There are various methods of
arriving at the same chemical result, and every analyst thinks
his own process the best. In fact, the chemical witnesses for
the defense differed among themselves as to the best process for
extracting strychnia; and they only agreed, pro Iidc vice, in can-
demning that which was adopted by the crown witnesses ! The
jury meanwhile decided the case on the common-sense principle,
that evidence based on the 50,000th of a grain of something
LILVDDsQ ADJUDICATED CASES IN STRYCHNINE POISONING. 551
said to be strychnia by one or two chemists, could not mat.niidly
add to the value of the evidence from symptoms. Either the
symptoms were safe for their guidance without this refined arith-
metical addition, or they were not. If they were not safe with-
out it, they could hardly have acquired safety with it, especially
when it is considered that the most confident of chemical wit-
nesses are liable to be deceived by the results of their tests.
That the prisoner was guilty of the foul crime of murdering
his friend, no one who views the whole case apart from prejudice
can entertain a reasonable doubt. A distinguished German
writer who has commented on this trial, expresses his astonish-
ment that any professional men could be found in England who
could stand forward and publicly state on oath that the symp-
toms under which Cook died might be explained by any form
of nervous disease, epilepsy, or angina pectoris. It argues but
little for the knowledge or moral feelings of medical witnesses,
and must shake the confidence of the public, as it has already
done to a great extent in the trustworthiness of medical opinions.
Such must be the result when scientific witnesses accept briefs
for a defense ; when they go into a witness-box, believing one
thing, and endeavoring to lead a jury by their testimony to
believe another, — when they make themselves advocates and
deal in scientific subtleties, instead of keeping to the plain truth.
Such men should be marked by the public, and their eflbrts at
endeavoring to confer impunity on the foulest crimes, and to
procure the acquittal of the most atrocious criminals should be
duly noted. The chemical defenders of the culprit Tawell on
the " apple-pip " theory, were in the foremost rank to defend the
culprit Palmer ! Fortunately for society, their efforts did not
prove successful in either case. In the meantime this pernicious
system is a heavy blow and a great discouragement to the detec-
tion and exposure of murder by secret poisoning. No man in
this country can henceforth venture to denounce a grave crime
of this kind committed by a person of wealth or social position,
without being prepared to incur the most calumnious attacks.
552 MEDICAL EVIDENCE.
and to have his opinions and motives grossly misrepresented. I^
after due consideration, he boldly expresses his opinion at an
inquest and persists in it, he is said to be prejudiced ; if he hesi-
tates or expresses himself timidly, he is not to be trusted!
There is but little protection afforded to a witness by a court of
law ; the accused person is there the sole object of sympathy
and consideration, and a learned counsel is only mildly rebuked
who, against the whole bearing of the scientific evidence, asserts
that the prisoner is innocent, and asks the jury to adopt his
venal assertion in preference to the unbiassed opinions of medi-
cal men.
REX V. DOVE, York Summer Assizes ; Taylor on Poisons, 703.
This case presents many features of interest. The prisoner
was charged with the murder of his wife, by administering to her
strychnia. About six days before her death, after having break-
fasted with the prisoner, the deceased was suddenly seized with
loss of power in the legs, general stiffness, twitchiugs and cramps
of the muscles. These symptoms occurred with greater or less
severity during the week, and each attack followed soon after the
prisoner had administered medicine to her. She had five or more
similar attacks in the six days, but from these she recovered.
They were set down to hysteria by the medical attendant, and
were treated accordingly. On the evening of her death the
prisoner, while partially intoxicated, gave to her some medicine
as usual (in a liquid form.) She complained of its being hot and
very bitter. In less than half an hour she had another attack,
and after a succession of fits she died in two hours, under all the
usual symptoms of tetanus from strychnia. It seems that in
every attack, excepting the last, she had asked to be rubbed ;
the rubbing seemed to relieve her, and on this occasion when she
felt the S[)asm coming on she asked one of her attendants to
take hold of her hand. The appearances in the body corrobo-
rated the medical inference, that death had taken place from
strychnia, a view supported by Dr. Christison, Mr. Hey, Mr.
LEADING ADJUDICATED CASES I\ POISONI.NG BY STRYCHNIA. 553
Morle}', and others. Mr. Moiiey carefully removed the stomach
and contents, and in the latter he found enough strychnia not
only to give the chemical results with all the tests, but to poison
several animals. Traces were also found in the contents of the
intestines. For some unexjilained reason, the tissues were not
examined for absorbed strychnia. Considering that at this time
accurate scientific information was required on this point, the
omission was a serious one, and equally damaging to the cause
of justice as well as the interests of science. If there be any
truth in the doctrine of the deposition and retention of strychnia
in the organs, this woman's body must have been saturated with
the poison.
In the defense it was not denied that death had taken place
from strychnia. It was proved and admitted that the accused had
procured at different times, recently before the deceased's death,
ten grains and five grains of strychnia. The former quantity
had been used by him, at least in part, to poison cats and mice ;
the latter quantity was probably that which, in divided doses,
had led to the death of his wife. A defense of insanity was set
up, but this utterly failed, as a criminal motive, means, and
opportunity were apparent; and with a full knowledge of the
effects of the poison, there was evidence of conversation on the
part of the prisoner regarding the power of detecting the poison
in the body. The only strong point of the defense turned upon
the non-analysis of the tissues. The slighter attacks of spasms
up to the Saturday were assigned to hysteria ; they had been
treated as such by the medical attendants ; if due to strychnia
administered in divided doses over a week, the poison would have
been found in the tissues, and should have been sought for there.
The fatal illness and death, as well as the appearances in the
body, and the discovery of strychnia in the contents of the
stomach and bowels, were, it was contended, reconcilable with the
hypothesis of one accidental administration of the poison in the
medicine or food on Saturday night. The supposition of accident
was however inconsistent with the conduct of the prisoner, and
554 MEDICAL EVIDENCE.
he was properly convicted and executed. Nevertheless it is a
matter to be regretted that the alleged frequency of administra-
tion was not supported by the detection of strychnia in the blood
and tissues, especially as one of the analysts (Mr. Nunneley)
had volunteered his opinion at the trial of Palmer three months
previously that it might be there detected ! But considering
the kind of defense set up in Palmer's case, and supported by
Mr. Nunneley, the omission was judicious. The result might
have at once falsified some of the loose assertions made at this
trial.
CHAPTER XXXIX.
INFANTICIDE.
Medical testimony is constantly called for, in questions of
Infanticide. By this term is designated those cases where there
is a question whether the child was born alive, and its life after-
ward criminally terminated.
In these cases, the first important point after the pregnancy is
established, is to determine whether the child was born alive.
Infanticide may be committed upon an unborn live child. But
if the child was dead when born, and no evidence exists of its
having suffered in utero, that ends the case. Hence the great
importance of determining accurately, whether the child lived
after being born. This is often attended with much difficulty,
and calls into the requisition the highest scientific knowledge.
How does a still-horn child differ from one born alive daring
the first few hours of its fife ? 1. The lungs, thorax and trachea,
show no signs of having been inflated, and lie in the posterior
part of the thorax, surrounded with a fluid of glutinous charac-
ter. 2. Owing to the hurry of concealment, when a child has
actually been born dead, in those cases when there is an object
in concealing the death, the child is found still covered with the
vernix caseosa, or sebacious secretion. The hair is closely
agglutinated. The eyes are closed, and the eyelids, when raised,
immediately shut.
If the child has breathed, the lungs occupy a larger space in the
thorax than in the still-born. The cavity is generally completely
filled, and the lungs partly cover and conceal the pericardium.
They feel tough and doughy, and retain the impression of the
finger slightly. They crepitate when pressed or cut, and when
(655;
556 MEDICAL EVIDENCE.
cut yield blood in small quantities, and of a frothy appearance.
When pressed between the fingers under water, air bubbles rise
from them. The diaphragm is lower than in the still-born. They
are heavier than the foetal lungs, though lighter than water. The
desiccation of the cord is supposed by Billard, and obstetricians
generally, to be an act of vitality, and therefore can not occur
in the still-born child. This has been called in question, how-
ever, by Elsasser and others, who claim to have seen the phe-
nomen in the case of the still-born. This process begins at
the severed end, and in the course of twenty-four hours after
birth, reaches to within half an inch of the navel. The wither-
ing and desiccation of the cord gives a fair presumption that the
child was born alive and lived some time, and as the process is
a gradual one, its extent will indicate tolerably correctly the
length of time the child has survived. The e}'es remain half
open if the child has been alive, and resist all efibrts to close
them. The hair is usually dry and clean, and the ears stand out
from the head more than in the still-born. The vernix cascosa is
only found under the armpits and behind the ears ; and then
only when the birth has been recent. In other respects mostly,
the child born alive does not differ externally from the still-born,
and if there has been but feeble life and respiration, the appear-
ance is not particularly different from what it is in the strong
and healthy. It must be admitted that the test arising from the
condition of the lungs is somewhat shaken, from the fact that
there ma^ be vaginal or even uterine respiration, if the testimony
ui" credible and intelligent medical men is to be taken. It is,
however, so rare, — many obstetricians whose practice has been
the most extended, not having met a case of the kind, — it hardly
forms an exception to the general rule, that when air has passed
into the lungs the child was born alive.
What are the proofs of air having filled the lungs? The
ques'iion is important, as this condition is claimed to be the most
important and decided test, of a live birth, within the knowledge
of medical men. There are no tests that certainly determine the
INTANTICIDB. 557
fact that the child breathed after birth. There may also be life
without respiration. So this condition may not exist, and still the
child may have been killed after birth. In a case of this kind,
all the medical expert could do would be negative. He could
only determine that the child had not breathed, leaving the ques-
tion of the existence of life to be established by other testimony.
Dr. Schriyer, of Zeitz, first applied what is called the hydi'o-
static test, to the solution of this question. It depends upon the
difference of specific gravity between the lung of a child that has
breathed, and one that has not. It is said that the lung of the
former will swim, while that of the latter will sink. If they float,
the reasoning is, air has entered the part, and the higher they float
the more perfect has been the respiration. Porous lung, or that
part fullest of air-cells, should be used in this test. Then the test
is far from being satisfactory, though the most so, perhaps, of
any. A portion of the lung from an unborn child may swim,
and a piece from one born alive may sink, for various reasons
known to the pathologist and physiologist. The temperature of
the water, too, is an important element in the investigation. In
a case of alleged child murder recently tried in Penns}'lvania,
the State undertook to establish the fact that the child had been
born alive, by evidence of an examination of the lungs by the
hydrostatic test, physicians giving it as their opinion that the
child had lived, because the lungs floated in water, in whole or in
part. The physician, having neglected to regulate strictly the
temperature of the water in which the lungs had been tested, it
was taken advantage of by the counsel for the defense, who by
a very ingenious and delicate experiment demonstrated to the
jury that there was no reliance to be placed on the hydrostatic
test, unless the temperature of the water had been carefully ascer-
tained. He put a small vial of shot, just heavy enough to float
in water of a medium temperament, into warm water, and it
sank ; on putting it into cold water the vial floated.' Then the
» Wharton's Criminal Law, sec. 874 ; W. & S. Med. Jur. 280.
558 MEDICAL EVIDENCE.
air which gives buoyancy to the lungs may have been intro-
duced otherwise than by natural respiration. The sources from
which the air may have been derived are putrefaction, emphysema,
and artificial inflation afer death, and this artificial inflation, can-
not be diiitinguished from that of imperfect respiration. Though
the child lived and breathed, the lung used in the water test may
still sink from disease of any kind that increases the density of
the part.
Hence the medical witness is unable to say positivel}^, when
the lung sinks, that the child has not hved, or when it swims,
that it was born ahve. The weight of authority now is, that in
cases of alleged Infanticide it must be clearly shown, not only
that the child breathed at birth, — this is not enough, — but that
the child had acquired an independent circulation and existence.
This proof of an existence, contrary to the ordinary presumption
of law, has been extended by Judge Story to a child several
months old, whom the mother, during an attack of puerperal
fever, had thrown out of the window of a steamboat. This decis-
ion of Judge Story had been criticised by Judge Gibson, in a
leadino- Pennsylvania case.^ While these difficulties attend the
questions connected with the condition of the lungs, the medical
witness has discharged his duty when he has stated what is
settled upon the question, and that is but little.
The question as to what caused the death of the child, —
whether it was criminal or accidental, — either before or after birth,
is often solved only by the medical witness.
Death sometimes results from the compression of the cord dur-
ing parturition, and leaves marks similar to that of strangulation
by other causes. Ecchymosis may possibly occur from tightness
of the umbiHcal cord, though this is not likely ; but Taylor says,
if this condition is attended with abrasion of the skin it could
not have been produced by the cord. Protracted delivery
» Whart. Crim. Law, sec. 748 ; R. v. Poulton, 5 Car. & P. 399 ; Commonwealth
V. Harman, 4 Barr. 272.
I^TAIsTICIDE. 559
often produces death, or the child may die from mere debility.
Hemonhage from the umbilical cord sometimes is the cause of
death. Fractures of the skull of new-born infants does not
necessarily imply criminality. The skull of the unborn infant
may be fractured from a violent blow received on the abdomen of
the mother. It may occur during labor from the force of the
pains, the condition of the passage favoring it. The appearance
of the wound and fracture, in these cases, as in others, may de-
termine whether an instrument has been used to efiect it. Some-
times defective ossification of the bones of the head are mistaken
for a Iracture. The cautious witness, however, will not make the
mistake. The mother is sometimes delivered in such a position,
and without help, that the child falls some distance, and is thereby
killed. The possibility of this accident is always to be remem-
bered by the medical witness.
The accidental causes that may produce death after birth are,
of course, numerous. Exposure, suffocation, strangulation, drown-
ing, poisoning, etc.
These are the main points of medical testimony in cases of
alleged Infanticide, stripped of rare and singular cases, and theo-
retical discussion.
ENGLISH ADJUDICATED CASES.
REX r. POULTON, 5 Carr. & Payne, 377.
In this case, Anne Poulton, the defendant, being charged with
having murdered her child, the medical witnesses testified as fol-
lows : one said : " It frequently happens that a child is born, a^
far as the head is concerned, and breathes, but death takes place
before the delivery is complete. My opinion in this case is, that the
child had breathed ; but I can not take upon myself to say that
it was wholly born alive." Another said that death might have
occurred when the child was partly born, if no medical man was
present to assist in the delivery. The third said : " It is impos-
sible to say when the child respired ; but there is no doubt, from
550 MEDICAL EVIDENCE.
the state of the lungs when they were examined, that it had
breathed ; children may breathe during the birth."
Mr. Justice Littledale said to the jury: '*The material ques-
tion for you will be, was the child born alive. For, if it was not,
the prisoner can not be convicted of the murder. But if you
think there is sufficient evidence that the child was born alive,
then you will inquire if the prisoner was the cause of its death ;
and if you think she was, you will find her guilty of the murder.
But if, in your opinion, either the child was not born alive or that
the prisoner was not the cause of its death, then she may be
found guilty of concealing the birth, if you think that fact is
made out. With respect to the birth, the being born must mean
that the whole body is brought into the world; and it is not
sufficient that the child respires in the progress of the birth.
Whether the child was born alive or not, depends mainly upon
the evidence of medical men. None of them say the child was
born alive ; they only say it had breathed ; and if there is ah
this uncertainty among the medical men, perhaps you would
think it too much for you to say that you are satisfied that the
child was born alive." The jury said they thought the child was
not born alive.
CHAPTER XL.
EFFECT OF WOUNDS IN" PRODUCING DEATH.
The surgeon who undertakes to dress or treat a case of crimi-
nal wounding may be certain that he will be called as a witness,
— as a medical expert, and that his own treatment will undergo
a rigid scrutiny. He assumes, therefore, more than ordinary
responsibility. If his treatment is in the least out of the usual
course in either direction, — whether novel or negligent, — it will
be urged in mitigation of the crime. From the flict that death
may follow a wound, and yet not be the cause of it, the utmost
care and the nicest discrimination should be made by the attend-
ing physician or surgeon; two lives instead of one may depend
upon the medical treatment.
The rule of law upon this subject is, that if a man give another
a stroke not in itself so mortal, but that with good care he might
be cured, yet if the party die of this wound within the year and
day, it is murder, or other species of homicide, as the case may
be ; though if the wound or hurt be not mortal, and it shall be
made clearly and certainly to appear that the death of the party
was caused by the ill application by himself or those about him,
of bad medical or surgical treatment, and not by the wound or
hurt, it seems that this is no species of homicide. But when a
wound not in itself mortal, for want of proper applications, or
from neglect, turns to a gangrene or a fever, and that gangrene
or fever is the immediate cause of the death of the party wound-
ed, the party by whom the wound is given is guilty of murder,
or manslaughter, according to circumstances. For though the
fever or gangrene, and not the wound, be the immediate cause of
36 (561)
562 MEDICAL EVIDENCE.
death, yet the wound being the cause of the gangrene or fever,
is the immediate cause of death, causa causati}
Thus, it was resolved, that if one gives wounds to another,
who neglects the care of them, or is disorderly, and doth not
keep that rule which a person wounded should do, yet if he die,
it is murder, or manslaughter, according to the circumstances,
because if the wounds had not been, the man had not died ; and,
therefore, neglect or disorders in the person who received the
wounds shall not excuse the person who gave them."
When a surgical operation is performed in a proper manner,
and under circumstances which render it necessary in the opinion
of competent surgeons, upon one who has received a wound ap-
parently mortal, and such operation is ineffectual to afford relief
and save the life of the patient, or is itself the immediate cause
of death, the party inflicting the wound will, nevertheless, be
responsible for the consequences.^
Nor does a refusal upon the part of the injured person to submit
to the necessary surgical treatment excuse the person committing
the offense. In the case of Holland, who was indicted for murder,
it appeared that the deceased had been waylaid and assaulted by
the prisoner, and that amongst other wounds, he was severely cut
across one of his fingers by an iron instrument. The surgeon
urged him to submit to amputation of the finger, telling him that
unless it was amputated, ho considered that his life would be in
great hazard. The deceased refused to have the finger ampu-
tated. The surgeon dressed it, and the deceased attended from
day to day to have the wound dressed ; at the end of a fortnight,
however, lock-jaw came on, induced by the wound on the finger;
the finger was then amputated, but too late, and the lock-jaw
ultimately caused death. The surgeon deposed, that if the finger
^ 1 Russel on Crimes. 505 ; 1 Hale, 428.
* Rew's case, Kel. 26 ; Roscoe's Grim. Ev. 704.
^ Commonwealth v. Green, 1 Ashmead, 289 ; The Commonwealth v. McPike,
3 Gush. 181.
TIIE EFFECTS OF WOUNDS IN PRODUCING DEATH. 563
had been amputated at jSrst, he thought it most probable that the
life of the deceased would have been preserved, and it was con-
tended for the prisoner that the cause of the death was not the
wound inflicted by the prisoner, but the obstinate refusal of the
deceased to submit to proper surgical treatment. Maule, J., how-
ever, was clearly of the opinion that this was no defense, and
told the jury that if the prisoner willfully, and without any justi-
fiable cause, inflicted the wound on the party, which wound was
ultimately the cause of death, the prisoner was guilty of murder ;
that for this purpose it made no difference whether the wound
was in its own nature instantly mortal, or whether it became the
cause of death by reason of the deceased not having adopted the
best mode of treatment; the real question was, whether in the
end the wound inflicted by the prisoner was the cause of death.^
Upon an indictment for manslaughter, it appeared that the
prisoner and the deceased had been fighting, and the deceased
was killed. A surgeon stated that a blow on the stomach in the
state in which the deceased was, arising from passion and intoxi-
cation, was calculated to occasion death, but not so if the party
had been sober. HuUock, B., directed an acquittal, observing,
that when the death was occasioned partly by a blow, and partly
by a predisposing cause, it was impossible to apportion the oper-
ations of the several causes, and to say with certainty that the
death was immediately occasioned by any one of them in par-
ticular. It may be doubted how far the ruling of the learned
judge in this case was correct, for if by the act of the prisoner
the death of the party was accelerated, it seems that the prisoner
would be guilty of the felony." It is by no means certain that
intoxication was the cause of death ; it might render the party
more liable to suffer injury from the blows, but this could no
more excuse the ojBfender than the infirmities of old age. Lord
Hale held that if a man be sick of some disease, which, by the
1 Reg. V. Holland, 2 M. & Rob. 357.
2 Roscoe's Criminal Ev. 703 ; Martin's case, 5 C. & P. 130.
564 MEDICAL EVIDENCE.
course of nature might possibly end his life in half a year, and
another gives him a wound or hurt which hastens his death, by
irritating and provoking the disease to operate more violently or
speedily, this is murder, or rather homicide, according to circum-
stances, in the party by whom such Avound or hurt was givuu.
For the person wounded does not die simplex visitation Dei, but
his death is hastened by the hurt which he received ; and it shall
not be permitted to the offender to apportion his own wrong.^
Upon an indictment for manslaughter, it appeared that the
death was caused by a blow on the back of the neck, and that
the deceased was not at the time in a good state of health, and
that she was desired to remain in the hospital, where the best of
care would be aflbrdrd her, but would not. Park, B., said : "It is
said that the deceased was in a bad state of health, but that this
is perfectly immaterial ; as if the prisoner was so unfortunate as
to accelerate her death, he must answer for it.- So when Mor-
rison's pills have been administered to a patient ill of the small-
pox, and the medical witnesses gave it as their opinion that
the pills must have aggravated the disease under which the
deceased labored, and have accelerated his death, it was held by
Lord Lyndhurst, that " It is true, the witnesses do not say whether
the deceased would, in their opinion, have died of the small-pox
if the pills had not been administered, but they all agree in this,
that his death was accelerated by the pills. Now, their evidence,
being translated, comes to this, that the party died on the day
when he did die, viz : on the 27th of June, by reason of these
pills. At present, therefore, it appears to me that the indictment
was good." Where death has been accelerated or occasioned by
medicine given in small-pox under the circumstances, it was held
that the prisoner was liable.
Mr. Roscoe says very few decisions are to be found in our
own books on this subject, and it may be therefore allowable to
1 1 Hale, 428.
2 Rex V. Morton, C. & P. 128.
EFFECT OF WOUNDS IN PRODUCING DEATH. 565
illustrate it by reference to a few cases in the Scotch law, which is
in principle the same as our own on this point, and to the text
writers on the criminal law of the country. It is clear, says Mr.
Alison, that if the death be owing, not to the eflects of the wound,
but to a supervening accident or misfortune, though induced by
the first violence, the prisoner can not be convicted of homicide.
When the prisoner had thrown a quantity of sulphuric acid in
the lace of the deceased, and produced inflammation of the eyes,
that bleeding was deemed necessarj', and the orifice made by the
surgeon inflamed, and of this the party died, but not of the injury
of the face, the court held this second injury produced by a dif-
ferent hand not so connected with the original violence as to sup-
port the charge of murder, and the prisoner was convicted of
assault only.^ When a physician is summoned in one of these
cases, he is very apt to be pressed for a positive opinion as to the
cause of death, which opinion he can not give positively. Though
there may not be but one ultimate cause of death, there may be
many accelerating or auxiliary causes, and the medical witness is
expected to give to each its relative importance and place. The
determination of these cases rests almost wholly on medical testi-
mony. The connection between the act of the prisoner and the
death of the deceased, must be proved by the opinions of persons
of professional skill and experience.
The important question for the medical witness to settle for the
court and jury is, would the deceased have died at the time he
did, or as soon, had he not received the wound ? No one, of
course, can determine absolutely what wounds are necessarily
mortal, and what ones are not; each case, therefore, must be
judged by itself, and the circumstances surrounding it. It is too
much to expect that a medical witness will determine certainly
whether a wound is fatal or not. In many cases he may easily,
and surely pronounce a certain wound fatal, from the parts affect-
ed, but there are so many aggravating causes, both constitutional
1 Macmillan's case, Alison's Prim. Cr. L. of Scot. 147.
566 MEDICAL EVIDENCE.
and others, that a very simple injury may prove deadly. The
witness must be on his guard in deciding these cases. Taylor has
well said, " that a witness can not do greater mischief to his own
reputation than by assigning many speculative causes for death.
The court will at once infer, that he is ill-informed in his pro-
fession, or that he has taken no pains to estimate in his own
mind what was the real cause, previous to the appearance at the
trial By preliminary reflection it is very easy for medical wit-
nesses to guard against the conunon occurrence of stating one
cause of death to the counsel lor the prosecution, and another to
the counsel for the prisoner."
In judging of the effect of a wound in predisposing to, or in
producing death, there are so man}^ circumstances to be taken
into the account, that only a few, comparatively, can be here re-
ferred to.
Wounds of the head are more difficult to determine, in their
extent and effect, than in any other part. The particular part
of the head hurt — the age — the weapon used — the state of the
system, etc., all tend to complicate the prognosis. A wound of
the superficial integuments, though simple, may inflame and
extend to the brain very unexpectedly. Erysipelas may inflame
the disease suddenly, and produce death. Slight wounds of the
integuments, by producing inflammation of the bone and mem-
branes, are often more dangerous than extensive injuries. A case
is reported, where a soldier got drunk on the line of march, and was
placed in a baggage wagon, out of which he fell, his head coming
right in the track of the wheel, which passed obliquely orer it, strip-
ping the whole of the integument oft' one side of it, and leaving
the bone completely bare. The integuments being replaced and
secured by stitches, and the whole kept in situ, by means of ban-
dages, he travelled for four days on the wagon, when he was
put into the hospital, and in less than a fortnight was enabled to
resume his duty. Even a complete division of the pericrajaium
is not so dangerous as a wound from a sharp pointed instrument.
From the arch shape of the head, the real injury to life may be
EFFECT OI' WOUNDS IN PRODUCING DEATH. 567
at the base, though the Ibrce was applied to the superior part of
the head. Orfila sa}'S, there is more danger from a blow when
given from above downward, than if it falls laterally, from below
upward, and Watson agrees with him. In a case tried in Scot-
land, in 1812, quoted by Beck from Duiilap, the murder was per-
petrated by repeated blows on the top of the head, yet the fractures,
four in number, were all at the base of the skull. There may be
no fracture, yet the concussion may produce death : there may or
may not be any disorganization or change in the structure of the
brain revealed by post mortem examination, it being a functional
derangement, aflecting the vital forces.^
In these cases, and a thousand others, all the medical witness
can do, is to explain the uncertainty of recovery from such injuries,
and it is also well to show, under what extraordinary circum-
stances persons will survive, with all their faculties unimpaired.
The French surgeons have generally agreed upon the following
four aphorisms of Vicq d'Azzr, as comprising the experience of the
art on these points : 1. That the larger wounds of the head are
not always the most dangerous. 2. That it is possible to lose a
considerable quantity of the brain without death ensuing. 3.
That the slightest injuries often are succeeded by fatal conse-
quences, and that hence they should, in no case, be neglected.
4. That a contusion of the bone alone may gradually extend itself
so as to effect the brain.
It is well to remember, that the testimony of individuals who
have been hurt by injuries upon the head, is not very reliable,
because of the disordered state of the intellect, and of the memory
in particular, from the effect of the injury. This kind of testi-
mony should always be corroborated.
The eye being so intimately connected with the brain, injuries
of it are more dangerous than of any other part of the face below
the brain, and the medical witnesses' opinion as to the effect of a
wound on this part should be cautious. This is also true of
I Cooper's Lectures, Vol. 1, page 119.
568 MEDICAL EVIDENCE.
wounds of the neck. If the par vagum or the spinal marrow is
injured, death is inevitable, while extensive injuries of the blood-
vessels, larynx and trachea, may not prove fatal. Dislocation of
the neck is not always destructive of life though generally so.
Mr. James L. Van Gorder, of Warren, Ohio, several years ago
partially luxated his neck, so that ever since, he has carried his
head partially on one side, yet he still lives and attends to busi-
ness, though suilering constantly great pain.
Dr. Spencer, of Ticonderoga, gives a case where the dentatus
was luxated completely, yet the patient lived forty-eight hours,
with complete paralysis below the head ; he retained his speech.
Wounds of the thorax, in general, are not so dangerous
as those of the head and neck. Injuries to the lungs are attend-
ed with much danger, yet one may be shot through, as in the
case of General Shields, while in Mexico, and not prove fatal,
If the large nerves and blood-vessels are uninjured, an extensive
wound may possibly heal. If the pericardium is injured it is
very apt to extend to the heart, but if the wound does not reach
the heart, and does reach the pericardium, it is dangerous, if not
absolutely fatal.
Injuries to the heart are not as suddenly fatal as is generally
supposed. A British soldier survived for thirteen days with a
musket ball i'n his heart. In a case tried in Glasgow, in 1819,
the Medical Evidence showed that the auj-icles and part of the
aorta next the heart, were destroyed by slugs and brass nails,
with which the piece was charged, and in that case, he must have
dropped down dead the moment he received the shot. But the
evidence showed the body to have been found some distance
from the door where the prisoner claimed he shot him, as he was
entering his house by force, as a stream of blood was found
from the door to the place where the body lay. It was determined
that the prisoner did not run out into the street and shoot the
deceased, but that the deceased did run from the house to the
spot where he lay, though shot in the manner described. The
prisoner was discharged. Many cases are reported where the
EFFECT OF WOUNDS IN PRODUCING DEATH. 569
person has survived an injury of the heart. Beck has given a
large Kst of cases.^ Wounds on the aorta and vena cava must
be fatal, so of the lower part of the oesophagus.
The fatality of a wound of the abdomen, hke that of the chest,
depends altogether upon the part injured. Wounds of the stomach
and small intestines are more dangerous than of the large intes-
tines. Wounds of the liver are generally fatal, certainly so, if
the gall-bladder is hurt. One great danger attending wounds of
the abdomen is from extravasation of blood, bile, foecal matter,
chvle, or urine into the viscera, causing acute inflammation.
The majority of wounds of the extremities are not dangerous,
even when the large blood-vessels are ruptured, for modern sur-
gery has triumphed over all difficulties, so far as the immediate
elTect is involved.
Gunshot wounds are more apt to be attended with serious re-
sults, than other injuries.
These are the general points the medical man is to consider,
and keep in view, in cases of wounds ; but still, it must not be
forgotten, that every case of wounding, like every disease the
physician is called on to treat, is in some respects different from
all others, and must be judged by itself, — that what is fatal in one
constitution may be comparatively harmless in another, — that
any wound, however small, may possibly produce death.
1 2 Beck Med. Juris. 330 —Note.
CHAPTEE XLI.
RAPE— ADJUDICATED CASES.
Rape, in law, is the carnal knowledge of a woman tvithout, or
against her consent.
Common witnesses — the party herself — rather than medical
experts, usually determine cases of alleged rape. Questions of fact
rather than of opinion decide the result. Yet the medical witness
may be called on certain points to which we may properly refer
connected with this subject. The evidence, not only of medical
experts, but of common witnesses in detail, is given in works
on Medical Jurisprudence, leaving much confusion in the mind
of the medical witness, as to what he is expected to testify
to, as an expert. So generally treating of the common evi-
dence connected with Medico-legal questions, by Medico-legal
writers, is to be deprecated. The evidence of the witness who
testifies only to facts, is not based upon special scient'fic knowl-
edge. The medical man can testify to facts as any other witness.
It seems singular that writers upon Medical Jurisprudence will
constantly load down their works in this wa}', with outs' de matter,
which, when connected with the great amount of speculation, and
the recoi'd of strange and extraordinary cases, renders unintelli-
gible and obscure the proper matter of the treatise.
The external signs of violence on the parts of the female upon
whom the rape is alleged to have been committed, as well as the
gener.il appearances of the persons and circumstances of the
case, may be testified to by any intelligent person. When the
oflense is committed upon a child, the mother or some female
friend is usually the best witness, — she sees and examines the
parts first. The ability to resist, is not a Medico-legal question
570
RAPE ADJUDICATED CASES. 571
in a healthy person, any person of judgment may determine
that fact.
The questions connected with the hymen, venereal disease, the
use of chloroform and the like, must be solved by the medical
witness alone.
If a child is the subject of an alleged rape, and gonorrhoea is
found to exist, the presumption is, that it was produced from
sexual intercourse, and not otherwise : — though it may possibly
have been communicated in some other way ; the cases however
are so rare, the presumption is against this idea. Unless the phy-
sician is on the look-out, he may readil}' misfcike leucorrhoea for
gonorrhoea, the discharges being similar, and the attending symp-
toms so much alike. The opinion, therefore, of the medical wit-
ness, should be well considered and cautious on this point. The
two diseases must be carefully and recently studied, and com-
pared, before a safe opinion can be given.
Gangrenous inflammation of the vulva may occur naturally,
although rarely. The value of the hymen, as indicating rape, is
not of as much importance as was once supposed ; for the reasons,
that it is not always destroyed by the first connection, and it may
be lost from other causes than coition.
The most reliable medical evidence in these cases is undoubt-
edly the presence of seminal stains upon the clothing of the
female. There is no doubt but that the skillful and enlightened
microscopist, will detect the peculiar characteristics of semen in
the fresh or dried specimen. The animalcules will be seen. The
chemical tests of semen are of some value. Semen is alkaline
and glutinous, and slowly soluble in water, with a peculiar and
distinctive odor.
Rape, in a legal sense, is the violent assault, or the destroying
of resistance by artificial means, by which chastity is destroyed.
The a^-ent may not have been given to overcome consciousness ;
if the object is to produce sexual excitement, and thereby leading
to voluntary submission, it 'is equally criminal. If any agent is
given by which reason is suspended, and while that condition
572 MEDICAL EVIDENCE.
exists the person is violated, it is rape. Ignorance of the nature
of the act on the part of the female, though with her consent,
renders the act rape.^ If the child was of tender }'ears she can
not give consent in law.^ If connection is had with a man
through fraud, the woman mistaking him for her husband, it is
rape on his part.^ Consent under duress or fear is no defense.^
The prior and present character of the complainant, may be
shown for the purpose of affecting her credibility, but not as a
justification for the act. She may be asked whether she had not
had previous connection with other men, and she is not privileged
from answering.^ In a case in England, the following question
was asked the prosecutrix : " whether she was not, on the Friday
last, walking on High-street to look out for men," which she
denying, a witness was allowed by the defense to contradict her.*'
As a general rule, veracity can not be impeached by attacking
chastity, but when rape is the issue it may be.
The testimony of medical men may therefore be required as
to previous venereal disease, delivery, or other evidence of illicit
intercourse falling within his peculiar province.
It was at one time held in England, that to constitute rape,
there must have been an emission within the parts of the female.
By the statute of that country, now in force, emission is not
essential. It has always been held that the entrance of the
private parts of the man within the private parts of a woman,
when proved, constitutes rape." In this country it is the general
1 R. V. Stanton, 1 Car. & Kir. 415 ; R. v. Case, 1 Eng. R. 544 ; Wh. Cr. Law^
4th Ed. 584.
2 Hays V. People, 1 Hill, N. Y. Rep. 351 ; Stephen v. State, 11 Ging. 225.
3 1 Wheel. C. C. 381 ; People v. Metcalf, 1 Wheel. C. C. 378 ; State v. Ship,
9 Com. 54.
' Dalt. C. 105—607 ; 1 Hawk. P. C. Ca. 41 ; Wh. Cr. Law, 584.
5 People V. Abbott, 19 Wend. 192.
6 R. V. Booker. 3 C. & P. 589.
7 R. V. Allen, 9 C. & P. 31 ; R. v. Russell, 1 East. P. C. 438, 439 ; R. v. Jor-
dan, 9 C. & P. 118 ; R. V. Hughes, 8 C. & P. 752 ; R. v. Sims, 1 C. & K. 393 ;
W. & S. Med. Juris, sec. 432.
RAPE ADJUDICATED CASES. 573
rule, that some entrance must be proved, but that there need be
neither rupture of the hymen or emission.
REGINA V. WILLIAM CAMPLIN, 1 L. & P. 746.
The prisoner was indicted for ravishing Jane Matthews, on
the 31st day of December, 1844. It was proved that the
prisoner made her quite drunk ; and when she was in a state of
insensibility took advantage of it and violated her. The jury
found that the prisoner gave her the liquor for the purpose of
exciting her, not with the intention of rendering her insensible,
and then having sexual intercourse with her. Ballantine, for the
defendant submitted, that under those circumstances the crime of
rape was not committed. Parke, B., reserved the case for the
fifteen judges. Verdict — Guilty.
When the case came before the judges, Ballantine, for the
prisoner, said : " I submit, that in this case the offense of the
prisoner did not amount to rape. Lord Hale, Mr. Sergeant
Hawkins, Lord Coke and Sir E. H. Easrall, define rape to be
the unlawful carnal knowledge of a woman hy force, and agaimt
her will In the present case, the giving the prosecutrix liquor
to excite her, shows that the prisoner intended to bring her mind
to a position that she might yield to what he did, and I submit,
that to constitute rape there must be actual force and actual
resistance, and that this can not be suppUed by any inference
whatever. • ut i
Patterson, J.— Do you contend that every woman who is blmd
drunk at the road-side is open to a rape from every person who
passes by ?
Ballantine. — The cases go to show that there must be actual
force and actual resistance ; and I submit, that insensibility is
contradictory in terms to the definition of rape, as the definition
of rape implies will, and the exercise of it. In cases of robbery,
as distinguished from larceny, the ofiense must be against the
will of the person robbed; thus, a person would be guilty of
574 MEDICAL EVIDENCE.
robbery by taking goods from a person asleep. Authorities
show that, if a man, by fraud, has connection with a married
woman, she believing him to be her husband, and therefore con-
senting to the connection, this is not rape.
Patterson, J. — If a man came behind a woman and gave her
a blow on the head, and made her insensible, that, according to
your doctrine, is no rape, because resistance and will are out of
the question.
Alderson, B. — In cases of fraud the woman is a wiUing agent,
although her will is influenced by the fraud ; but in the case put
by my brother Patterson, there is force. In that case resistance
would be impossible, from a blow given by the prsioner. In the
present case, it was rendered impossible by the hquor he gave.
If a woman was fainting at the time, what would you say then ?
Ballantine. — I would fall back on the definition, ' against her
will.' I should draw the distinction between robbing by force,
and picking a person's pocket when he did not know it.
Erie, J. — Larceny and robbery are both committed invito
domino.
Lord Denman, C. J. — It is against the general and permanent
will of the party to have his pocket picked.
Alderson, B. — And so may a woman have a general will not
to be ravished. Was there not a case in Ireland, of a lady who
had laudanum given to her, and who was ravished while in a
state of insensibility ? Wliat became of that case ?
Ballantine. — In that case the prisoner was condenmed and
afterward transported ; but in that case, the jury found that the
prisoner had intended to ravish her at all events. The finding
of the jury here is different. I submit, that as it is neirher
shown that the prisoner used force, nor that the prosecutrix exer-
cised any resistance, the offense of rape is not committed.
Lord Denman, C. J. — It is put as if resistance was essential
to a rape ; but that is not so, although proof of resistance may
he strong evidence in the case.
RAPE ADJUDICATED CASES. 575
The case was considered by the judges, and Patterson, J.,
delivered judgment as follows : William Camplin, you have been
found guilty of the offense of rape, by the jury before whom
your trial took place; but, from some circumstances which ap-
peared upon that trinl, the learned judge desired to have the
opinion of his brethren, her Majesty's judges, whether the offense
was complete in point of law. It appeared upon the evidence
that the young woman, upon whose person was committed the
offense, refused her consent so long as she had sense or power to
express such want of consent; but that you made her quite in-
sensible by administering liquor to her, and whilst she was in a
state of insensibiUty took advantage of it, and violated her per-
son; and the only ground upon which any doubt could possibly
arise on this state of facts was, that the jury found that you
gave her liquor for the purpose of exciting her, and then having
sexual intercourse with her, and not for the purpose of rendering
her insensible. It is my duty to inform you, that, after hearing
counsel on your behalf, a great majority of the judges are of
opinion that the evidence, that the rape was committed without
the consent and against the will of the prosecutrix, was sufficient,
and that consequently the offense has been completely proved.
The prosecutrix showed by her words and conduct, up to the
very last moment at which she had sense or power to express
her will, that it was against her will that intercourse should take
place. And it was by your illegal act alone, that of administer-
ing liquor to her, to excite her to consent to }'our unlawful
desires, that she was deprived of the power of continuing to ex-
press her want of consent. Whatever your original design was
in giving her the liquor, you knew that it was calculated in its
natural consequences to make her insensible, and you know also
that it had produced that effect upon her at the time you took
advantage of her insensibility. Your case, therefore, falls within
the description of those cases in which force and violence consti-
tute the crime, but in which fraud is held to supply the want of
576 MEDICAL EVIDENCE.
both. I have therefore the duty cast upon me of pronouncing
the sentence of the law, which is, that you be transported beyond
the seas for the complete term of your natural life."
The several States have enacted statutory provisions relating
to rape ; references to which, with the decisions upon them, are
here referred to.^
1 U. S. Law, Act 3d March, 1825, sec. 4—7 ; Mtiss. R. S. p. 884 ; Cora. v.
Cooper, 15 Mass. R. 197 ; Com. v. Drum, 19 Beck, 497 ; Com. v. Goodhue, 2
Metc.ilf, 193 ; New York, 2 R. S. 663, sec. 22. 23 : Penn. Act 22d April, 1794,
3 Dalla.s, p. 600, 3 Smitli, p. 187 ; Act 23d April, 1829 ; Virginia Code, 1849, c.
191 — c. 200, for similar offeuses against negroes ; Ohio, Swan's Stat. 269, sec. 4,
5, 6 ; Williams v. State, 14 Ohio, 222 ; Johnson v. State, 19 Ohio, 593 ; Laugh-
lin V. State, 18 Ohio, 99.
CHAPTER XLII.
CORONER'S OFFICE AND INQUESTS.
Nearly one thousand years ago, King Athelstan, of England,
granted certain rights and privileges to the authorities of Beverley
who were to attend the special pleas of the crown, — hence the
name of coroners, from corona, a crown.
The office from that time onward, was considered a very im-
portant one, both as to its duties and honors. The Lord Chief-
Justice of the Queen's Bench is ez-officio the first coroner of the
kingdom ; throughout which his jurisdiction extends. As far
back as Henry II., the justices, as part of their duties, appointed
three knights and one clerk in each county these Custodes placi-
toriim coronce, as they were called, were keepers of the pleas of
the crown, and discharged the duties of coroners.^ Knights
alone were eligible to this oifice.^ A property qualification was
also required.
From the appearance of the present lineal descendant of the
once high and honorable office, it would never be suspected of
such parentage. Like the famihes themselves, who monopolized
the office, it has become dilapidated, and its significance has
departed, yet it is still an office demanding a higher place than
it now occupies. It should never have been permitted to sink to
so low a point as the one at which it now rests.
There is hardly an official position in which there is greater
need of sagacity, skill, tact, and of legal and medical knowledge ;
^ History of Eng. Law, Crabbe, c. xi.
« 3 Edward I. c. 10.
37 (^"^^
578 MEDICAL EWDEKCE.
yet the office is usually filled by pursons destitute of both these
qualifications.
The old English law provided that where a sudden death took
place, under suspicious circumstances, the coroner should issue a
warrant, summon a jury to make due inquir}-, upon view of the
body, into the manner of the killing, and examine into all the
circumstances of the transaction, and that he shall commit any
person to prison who may be adjudged as the perpetrator of the
crime, and bind over the witnesses by recognizances, to appear at
the next term of court. All these powers, and still greater facili-
ties, are aflbrded the coroners under our laws.
When there has been a sudden and mysterious murder com-
mitted, the first court that investigates the case, while all the com-
munity is excited to the highest pitch, is the coroner's; which
court, in its very nature and powers, is designed to detect the
perpetrator of the crime, and to throw all possible light upon the
transaction. When the coroner does not detect the perpetrator
of a homicide, in most cases he is not detected at all. The
means and ficilities for determining who the guilt}' party is,
within reach of the coroner, are very great. When a crime has
just occurred, there is more interest felt and wakefulness exer-
cised than afterward. The bod}^ of the deceased is fresh ; the
opportunity of scientific examination are usually perfect, much
more so than after disorganization has destroyed the structure of
the body. Those who saw the victim last, and the circumstances
surrounding him, are present. Witnesses have not yet been tam-
pered with, and that security which lapse of time gives to the
guilty party, is not thrown around him — the anxiety and fear
of being detected shows itself — the attempt to cover up the evi-
dences of guilt is more difficult. If the guilty party is followed
up immediately with quick, sharp strokes, the chances of arriving
at the truth are greatl}' increased.
Again, in r.o court is there allowed such unusual latitude in
the examination of witnesses. The usual rigid rules of evidence
may be wholly disregarded. Hearsay evidence, leading questions,
CORONERS OFFICE AND INQUESTS. 579
and all forms of examination may be adopted. The guilty or
suspected person may himself be put upon the stand, if he does
not object, when he may be subjected to the severest cross-
examination possible. No technicalities trammel the coroner, and
if he understands his business and his powers, and is ingenious
enough, he mav extort from a witness a confession of his guilt or
complicity. In the criminal courts of Europe this examination
of the criminal himself is a tremendous weapon in the hands of
an acute and able officer. In France and Germany, the interro-
gation of the prisoner is the main incident of a trial. In Bavaria,
the murderer is not executed until he has confessed his guilt ;
and he is taken periodically from his cell, to be examined. This
method of extorting the truth, by a well-directed battery of ques-
tions, is precisely what our law permits to the coroners, and the
opportunity should be skillfully and carefully improved.
After the case goes to the higher courts, the lips of the prisoner
are sealed by the common law ; many of the circumstances are
forgotten or left indistinct, antagonistic influences are brought to
bear on the witnesses, and other circumstances conspire to render
convictions less certain, if the coroner does not furnish the evi-
dences on his preliminary examination.
It is more important that the coroner should be a medical man
than that he should be a lawyer ; because of the importance of
the Medical Evidence, involving many intricate and most perplex-
ing scientific questions, a correct solution of which can only be
made by the best instructed minds, used to such investigations.
Of late years, this necessity for having medical coroners has
been felt, particularly in England and in this country. It should
be so, to secure the ends of justice. The medical profession, too,
have a direct interest in this matter, and they should claim as a
right, this office. In most cases of sudden death, or homicide,
a medical examination at the time, over the dead body, well con-
ducted by a medical man as coroner, would not only be conclu-
sive, as to the condition of the body, but the testimony would be
in such certain and definite form, as to confer honor upon the
580 MEDICAL EVIDENCE.
medical profession in the higher courts ; and those medical wit-
nesses who did not examine the body, could get a correct idea
of the condition of it, from those who did. If the coroner is a
medical man, he will know better than one who has not a medical
education, to what extent the medical examination should be
carried.
Judge Bouvier says : " The duties of the coroner are of the
greatest consequence to society, both for the purpose of bringing
to punishment murderers and other offenders against the lives
of the citizens, and of protecting innocent persons from criminal
accusations. This office, it is to be regretted, is regarded with too
much indifierence. This officer should be properly acquainted
with medical and legal knowledge, so absolutely indispensable to
the faithful discharge of his office. It not unfrequently happens
that the public mind is deeply impressed with the guilt of the
accused, and when probably he is guilty, and yet the imperfec-
tions of the early examinations leave no alternative to the jury but
to acquit. It is proper in most cases to procure the examination
to be made by a physician, and in some cases it is the coroner's
duty.'
Dr. Beck also urges the difficulty, in the following language :
" That the duties of this office are imperfectly understood, and
often most negligently performed, hardly admits of a doubt.
The individuals appointed are frequently unfit for the situation,
both from habit and education, while the jury are too commonly
desirous of hurrying through the investigation. It has been pro-
posed to remedy the first difficulty by selecting coroners from
among medical men, and there is no doubt that the adminis-
tration of criminal justice might be promoted thereby. In
England, and indeed in this country, considerable efforts have
been made of late to procure the election of medical coroners.""
Dr. Semmes, in his able report to the "American Medical
' 1 Bouvier's Law Dictionary, 318.
2 2 Beck, Med. Juris. 2.
coroner's OFnCE AND INQUESTS. 581
Association/' on the Medico-legal duties of coroners, says : '' As
every inquest involves a medical principle, your committee are
pained to acknowledge that, from the shameless and disgraceful
manner in which coroner's inquests in most of the United States
are necessarily conducted, from the incompetency or want of zeal
and attention of that ofiBcer, the inquests are rendered loose,
vague, hurried, and ill adapted to the purposes for which they are
intended at Common law, — the discovery of the cause of death in
cases of presumed or alleged felonious killing, — the identification
of the body, and the collection of that which can often only be
susceptible of verification immediately after the discovery of the
corpse, and before any change has been made in it and in the
condition of the surrounding objects. The superficial view^ cast
by the jurors upon the dead body presented for their inspection,
— many of them avoiding to approach it closely, either from re-
pugnance to the sight or contact of the dead, especially when
mutilated or disfigured by wounds, bathed in blood, or in a state
of partial decomposition, or from fear of contracting some con-
tagious or pestilential disease, which might possibly have been the
cause of death, — is scarcely a formal compliance with the require-
ments of the law."^ We are indebted to this report for many
of the preceding facts.
It is to be regretted, that while the Medical Evidence is of
such acknowledged importance, there has been but a niggardly
provision made in most of the States of this Union, for a compen-
sation of the medical witness, commensurate with the time spent,
and importance of his investigation. The physician and the
chemist are referred to the uncertain action of county commis-
sioners or county judges, for their pay. " It is to be hoped, that
such a simple act of justice will not much longer be withheld
fi'om a body of men who render more unrequited services to the
public than all other classes and professions put together." " By
the laws of our State, (New York,) it is made the imperative
» See Law Register for May, 1858, p. 390.
682 MEDICAL EVIDENCE.
duty of the coroners to summon a medical man as witness, in
every case when an inquest is held; but they establish no regu-
lations as to examination, or to compensation. The law is, how-
ever, frequently disregarded; and where the coroner is not a
regular physician, the examination is often very superficial and
unsatisfactory. It is, therefore, highly important that the coro-
ner should be a medical man, otherwise the duties of the office
will be imperfectly understood, and negligently performed."^
In England, provision is made by law for the remuneration
of the medical witness, when he is called upon to make a post
mortem examination.
The medical man, when summoned as a witness to give evi-
dence in a coroner's court, is liable for contempt, if he refuses to
appear. He can not, however, by the coroner, or any other
court, be compelled to make a post mortem examination unless
he is paid for it. In a late case, Gibson, C. J., said : " Had the
plaintiff below attended merely as a witness, though as an expert,
he would have been entitled to nothing ; for as the law provides
no compensation for witnesses summoned by the coroners, they
must give their attendance ; and to allow the plaintiff as a witness,
even the compensation allowed to witnesses in other cases, would
be an infraction of the fee-bill. But he was not called as a wit-
ness. When the testimony before the inquest was closed, it
seems the jurors, being unable to agree as to the cause of death,
requested a post mortem examination, which was made by the
plaintiff in their presence, who dispelled their doubts by the appli-
cation of chemical tests to the contents of the stomach. In this
he performed, not the office of a witness, but the business of a
person employed in a particular service. The coroner might
have compelled him to swear to his opinion on a superficial view
of the body, but he could not have compelled him to touch it, or
do the more nauseous and dangerous work of opening it"^
* Guy's Forensic Medicine, (Dr. Lee,) 6.
2 Allegheny County, v. Watt, 3 Barr. 462.
APPENDIX.
A. — Notes to Chapter L
1 Negligence, in correct legal phraseology, is very nearly synonymous with
carelessness, and signifies the want of care, caution, attention, diligence, or
discretion, in one having no intention of committing an injury. It is a violation
of the obligation which enjoins care and caution. Even when gross, the negli-
gence is but an omission of duty. Tonawanda R. R. Co. «. Hunger, 5 Den. 255,
267; Amick t'. O'Hara, 6 Blackf., 258. Neglect of physician, see Odlin v. Stetson,
17 Maine, 247; Wilmot «. Howard, 39 Yt., 447.
2 Negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent man would not do.
Alderson B. Blythe «. Birmingham Water Works Co., 11 Exch., 781.
3 A party is not -negligent if he uses all the skill and diligence which can
be attained by reasonable means, and is not responsible for failure. Richey v.
West, 23 111., 385 ; Taylor v. Atlantic Ins. Co., 9 Bosw., 369.
4 ' When there is injury on the part of the plaintiff, and negligence on the
part of the defendant concur, the plaintiff cannot recover if the defendant could
not have prevented the injury from occurring by the exercise of due care. Bellet.
&c. R. Co. V. Bailey, 11 Ohio St. R., 333 ; Lockhardt v. Lich., 4G Penn. St. R., lol.
5. Concurring negligence arises when both parties contribute to produce the
injury complained of, and there can be no recovery in law or equity. Spencer^.
Utica &c R. Co., 5 Barb., 337; Brown v. Maxwell, 6 Hill, 592 ; Williams «. M.ch
Cent. R. Co., 1 Dutch, 556 ; Heil ^. Glanding, 42 Penn, 493 ; Haley ^. Earle, 30
N. Y. R., 208.
6. It has been held that when the direct cause of the injury is the neghgence
of the party injured, the other party, after becoming aware of the injured party's
negligence, must use a proper degree of care to avoid the consequences of such
negligence. Wright v. Brown, 4 Ind., 95 ; 9 Ind.. 397; Kerwhacker v. Cleveland,
C. & C. R. Co., 3 Ohio S., 172; also in Duval, 114; 19 111., 499; 18 N. Y., 248, 258;
3 Allen, 176; Clark v. Kirwan, 4 E. D. Smith, 21.
7. Physicians are liable for students' negligence, or when employed by third
persons. Henke v. Hooper, 7 C. & P., 81; 1 Hilliard on Torts, 252.
^ (583)
584 APPENDIX.
8. When the negligence of the plaintiff is relied upon to defeat his recovery,
he must have been guilty of at least ordinary negligence. His failure to take
great care is no defense to the action. Ernest r. Hudson K. R. Co., 35 X. Y. 9, 26;
Bieseigel v. X. Y. C. R. Co., 34 N. Y., 622, 628, 632 ; 2 Seld. Xotes, 44 ; Eakin v.
Brown, 1 E. D. Smith, 36.
9. Though a physician may be guilty of culpable negligence, yet if his act
was not wanton and intentional, and the patient essentially contributed to pro-
duce the result, he cannot recover. Berge i\ Gardiner, 10 Conn., 507.
10. The patient must also exercise ordinary care and prudence. Eakin v.
Brown, 1 E. D. Smith, 36; Spooner v. Brooklyn R. R. Co., 31 Barb., 419; Cos v.
Westchester Turnpike Co., 33 Barb., 414; Morris v. Phelps, 2 Hilton, 38.
11. The patient may be negligent to a certain extent, and yet the pliysician
has been so negligent that ordinary care on the part of the patient would not
have prevented the unfortunate result, and the patient will recover. Clark v.
Kerwin, 4 E. D. Smith, 21; Parker v. Adams, 12 Mete, 417; White v. W. Co., 7
Cush., 155; Smith v. Smith, 2 Pick., 621; Holly v. B. G. Co., 8 Gray, 131; Chamb.
T. Porter, 9 Min., 2G0.
12. For definition of "reasonable diligence and skill," see Kannen v. McMul-
len, Peake, 83; Fornworth v. Garrard, 1 Campb., 38; West v. Martin, 31 Miss.,
875; Fisher v. Samanda, 1 Camb., 190; Manypenny v. Hartland, 2 C. & P., 378.
13. When a Kpccial contract exists for a definite time, the patient cannot
discharge the physician before the expiration of the contract. In all other
cases, the patient can discharge the physician at any time sua sponte. A physi-
cian must give his patient reasonable notice before leaving him. McDaniel v.
Yuba Co., 14 Cal., 444.
14. For a late leading case on negligence, skill, responsibility, &c., see Patten
V. Wiggin, 51 Maine, 594.
15. A sign, or other proof that one practices as a physician, is prima facie
evidence of his professional character. Sutton v. Tracy, 1 Mich., 243.
16. A physician is expected to practice according to his avowed system. Bow-
man ■». Woods, 1 Iowa, 441; Corsi v. Maretzek, 4 E. D. Smith, 1.
17. A sign is a standing solicitation for business, and in pleadings a physician
may be charged with having solicited the service simply on the evidence of his
sign.
18. The word physician or doctor is held to mean any person who makes
it his regular business to practice physic, and no distinction is taken as to the
various " schools," and each is expected to practice according to his theory.
Corsi V. Maretzek. 4 E. D. Smith, 1; Brown v. Mins, 2 Rep. Con. Ct., 235; Patten
V. Wiggin, 51 Maine, o94; Reynolds v. Graves, 3 Wis., 410.
19. A medical diploma is prima facifl evidence of ordinary skill. Leighton v.
Sargent, 7 Foster, X. H., 470. But not evidence per se that the college issuing
it is a regularly constituted medical institution. Hill v. Bodie, 2 Stewart &
Porter, 56.
20. Usually the patient must furnish the medicines and unusual or extra
surgical instruments, unless it is the custom of the physician to do so. Bassett v.
Spofford, 11 X. H., 167; Holland v. Adams, 21 Alab., 680.
21. A physician has discretionary powers over his patient as to modes of
treatment or the necessity of an operation, and he may withhold from him a
APPENDIX.
5S5
knowledge of his condition. McClellan v. Adams. 19 Pick.. 333; Townley v.
Leach, 11 Cush., 397.
22. Dentists are liable to same rules as those applicable to physicians and
surgeons. Slmonds v. Henry, 39 Maine, 153.
23. For failure in detecting the nature of the disease, see Fowler v. Sargeant,
1 Grant, 355. In cases of malpractice, it is usual to inform the jury of the
circumstances of the respective parties. lb.
24. Gratuitous serN-ice does not relieve the medical attendant from lia-
bilitv. Shiels v. Blackburn, 1 H. Black, 159; Nelson v. Mackintosh, 1 Starkie,
188;"wilson v. Brett, 11 M. & W., 113. He is also liable in public institutions.
Pippin T. Shep., 11 Price, 400. If employed by a third party, he is liable. 1
Hilliard on Torts, 252. Or by an infant. Gladwell v. Sleggall, 5 Bingham,
N. C, 733.
25. Particular acts of misconduct of the defendant might be given in evi-
dence to sustain general allegations in the declaration ; and that it was compe-
tent for the plaintiff to show by what means such injuries were received ; and
that the declaration of the defendant that B. was inlected with venereal disease,
and that this was the cau^e of the difficulty of her case, it being proved that she
had not this disease, was admissible, for the only purpose of evincing the igno-
rance of C. as to the real state of her case ; and that it was competent to show
that the defendant had not been regularly bred to his profession, for rebutting
purposes. Grannis v. Brandon, 5 Day, 260.
26. Malpractice cases reported in medical journals. See 40 Boston Med. and
Surg. Journal. 318; 54 do., 109, 129, 149, 229; 55 do., 515; 56 do., 9, 25, 148; 57 do.,
222; 59 do., 364; C4 do , 97, 505; 05 do., 299; C6 do., 95, 524, 544; 3 Amer. Medical
Monthlv, 153; 2 Med. Times, (N. Y.,) 365. A late and important case is Walsh t.
Sayer, tried in the Supreme Court, city of New York, in 1868. (one vol..) published
by Geo. H. Shaw & Co., New York.
27. In an action by a person who had been a patient at a hospital, for mal-
treatment there by two surgeons, it appearing that the alleged maltreatment was
in the administration of a hot bath which they had ordered, but which it was no
part of their ordinary duty personally to direct and superintend, and at the
actual administration of which they were not present. Held that he was Lot
entitled to expect more than the usual and ordinary degree of care and attt-ntion
at the hands of the surgeons. And that, if they were not personally cognizant
of the alleged ill usage, they were not liable. Perionowsky «. Freeman, 4 Fost
& F., 977.
08 No particular system affords a test of skill : all " schools " seem to stand
before the law alike. Corsi v. Maretzek, 4E. D. Smith, 1; Bowman t. Woods, 1
Green (Iowa ) 441; Com. v. Thompson, Mass., 134. And yet the law dots not
countenance 'quackerv. Long v. Morrison, 14 Ind., 595 ; Eitchey v. West, 23 111.,
385- Fowler v. vSargeant, 1 Grant, (Pa.,) 355; Wood v. Clapp, 4 Snecd, 6a. In
North Carolina it has been held that what is reasonable skill in the treatment ot
a patient is a question of law not to be determined by a jury. Woodward t.
Hancock, 7 Jones' Law, 384.
29. Failure to remove the placenta after child-birth is highly culpable negli-
gence. Lynch v. Davis, 13 How. Pr.. 823.
586 APPENDIX.
30. On tlie administration of anaesthetics, see Jones v. Fay, 4 Fost. & F., 525.
31. The plaintiff had settled with a railroad company on the mistaken
opinion that tlie injury was slight. Held that, even assuming? that his injuries
were greater, there was no ground of action. Pirn v. Ropar, 2 Fost. & F., 783.
32. In an action on tho case against a physician for malpractice, it is not
competent for the plaintiff to give evidence that the defendant abandoned the
patient aud refused to attend upon him, unless the cause of action is so laid in
the declaration. Bemus v. Howard, 3 Watts, 255.
33. A person not qualified, as not being a regular practitioner, but assuming
to be or to practice as such, and undertaking to treat another for a disease, is
liable for an injury caused by ignorant and improper treatment, by which the
patient is rendered worse instead of better, and is injured by the use of improper
medicines. Euddock v. Lowe, 4 Fost. & F., 519.
B. — Notes to Chapter II.
1. "We regard the subject of this Chapter of the utmost importance,
as tending, if properly considered, to place before the lawyer the real and
unavoidable causes of failure on the part of the physician in the treatment of
disease. Could the capable and the conscientious legal adviser clearly under-
stand and be thoroughly impretsed with the inhereiit elementary difficulties in
the practice of medicine, he would be slow to counsel prosecutions of medical
men ; and had the Court the same knowledge, we believe that a nonsuit would
be the summary termination of many a trial for alleged malpractice. It is upon
these subjects that the legal profession is in sad want of information, and we
turned to this Chapter in the belief that the medical education of the author
would enable him to elucidate, in precise and accurate terms, the true source of
failure in practical medicine of which the physician is himself so often conscious."
Review of this work (1st edition) in Am. Journal of Med. Sciences for July, 1860.
2. " The mechanism of the human body is clear, and that is all. We see the
workmen and the tools, but the skill that guides the work and the power that
performs it, are as invisible as ever. We have learned nothing but the mechanism
of life, and are no nearer its essence. Beyond the mechanical facts, all is mystery
in thi) movements of organization, as profound as the fall of a stone or the forma-
tion of a crystal. To the chemist and the microscopist the living body presents
the same difficulties arising from the fact that everything is in perpetual changv-
in the organism. The fibrine of the blood puzzles the one as much as its globules
puzzle the other. In the brain we are sure we do not know how to localize func-
tions ; in the spinal cord we think we know something, but there are so many
anomalies and seeming contradictions, and sources of fallacy, that, beyond the
facts of crossed paralysis of sensation and the conducting agency of the gray
•"-ubstance, I am afraid we retain no cardinal principles discoveied since the devel-
opment of the reflex functions took its place by Sir Charles Bell's great discovery.
No satisfactory and conclusive answer has been made to these questions. Why
does one cell become nerve and another bone ? why one select bile, another fat ;
APPENDIX.
587
How is the solvent agency of the digestive fluid explained ? What is the mean-
ing of " affinity " or " catalysis " in chemistry ? How is it that the liver secretes
sugar? or how are blood-corpuscles formed out of lymph-corpuscles, and what
becomes of them? What is the office of the viscular glands, the spleen, the
thyroid and thymus bodies ? What is the function of Peyer's patches? Do these
glandules perform the office of lymphatic glands? Which theory of animal
heat is correct— that of Black, Lavoisier, Crawford, or Liebig, or of no one of
them? That of Liebig now being doubted, who will explain the wonder?"
Oliver Wendell Holmes, Professor of Anatomy in Harvard University.
3. " Existing chemistry is therefore all powerful in the circle of mineral "
nature, even when its processes are carried on in the heart of the tissues of plants
or animals and at their expense. And she has advanced no farther than the
chemistry of the ancients in the knowledge of life, and in the exact study of
livincr matter ; like them, she is ignorant of the mode of generation. * * The
chemist has never manufactured anything which, near or distant, was susceptible
even of the appearance of life. Everything he has made in his laboratories
belongs to brute matter ; as soon as he approaches life and organization, he is
disarmed." Inaugural Lecture before the London Chemical Society, m honor of
Faraday, June 18, 1869, by Dumas.
C. — Note to Chapter III.
Physicians and surgeons who offi;r themselves to the public as practitioners,
impliedly promise, thereby, that they possess the requisite knowledge and skill
to enable them t) treat such cases as they undertake with reasonable success.
This rule does not require the possession of the highest, or even the average
skill, knowledge, or experience, but only such as will enable them to treat the
case understandingly and safely.
The law implies that, in the treatment of all cases which they undertake,
they will exercise reasonable and ordinary care and diligence.
They are also bound always to use their best skill and judgment in deter-
mining the nature of the malady and the best mode of treatment, and in all
respects to do their best to secure a perfect restoration of their patients to health
and soundness. .
But physicians and surgeons do not impliedly warrant the recovery ot their
patients, and are not liable on account of any failure in that respect, only through
some default of their own duty, as already defined. Patten n:. Wiggin, 51
Maine, 594.
D. — Note to Chapter IV.
" According to accurate statistics to which we have access, in several hundred
suits for malpractice, but little over two-thirds were for the causes assigned
above, (amputations, fractures and dislocations.) Of one hundred and forty-two
588 APPENDIX
suits growing out of amputations, fractures and disTocations.but eigtt were refer-
able to amputations, tliirty-two to dislocations, and the remaining one hundred
and two to fractures. We allude to these statistics, not to prove that the sul ject
of amputations or dislocations occupy too much space in this work, but to show
that there are many other causes of malpractice suits equally (and in many
instances far more) entitled to consideration than these. The practice of obstetrics
has given origin to a largo number of suits for alleged malpractice, and medico-
legal questions thence arising would be appropriate to the pages of such a work."
Review of this work (Ist edition) in Am. Journal of Med. Sciences, July, 1860.
E. — Note to Chapter X.
Prof. March, of Albany, an able surgeon, was once sued by the father of a
child ten or twelve years of age, upon whom he performed an operation for
strabismus. Inflammation followed, and the cornea become opaque. The Court
charged the law as laid down in Leighton v. Sargent, ante, 135.
F. — Notes to Chapter XVIII.
1. A physician cannot, as a witness, be allowed to express his professional
opinion as necessarily to imply his belief of material facts outside of his art or
profession, and not within his own knowledge, and which are not in their nature
subject matter of mere opinion. William Moore v. State of Ohio, 17 O. S. R., 521;
McCurry v. Hooper, 13 Ala., 823.
3. A physician cannot give an opinion as to whether another practitioner
had acted honorably and faithfully; nor can he give an opinion on the opinion of
another expert. Campbell r. Richards, 5 B. & Adolph, 840; Ramadge v. Ryan, 9
Bingh., 333.
3. A physician who for more than thirty years has devoted his attention
almost exclusively to the treatment of insane persons cannot be permitted, as an
expert, to testify as to the medical capacity of a person not previously insane, but
in the last stages of disease. Fairchild v. Bascom, 35 Vt., 308.
4. A physician's opinion should be formed entirely from his own examina-
tion, and not from information derived from oihers, even if that information is
communicated by the attending physician. Ileald r. Wing, 45 Maine, 392;
Whetherbee's Ex'rs v. Whetherbee's Heirs, 38 Vt., 454.
5. There is no greater or more common mistake among medical men than to
suppose that an experienced practitioner is necessarily a ekillful medical expert
or a safe medical witness. Lecture by Prof. Christison before the Royal College
of Physicians, Edinburgh. London and Edin. Journal of Medical Science, Nov.,
1851, p. 402.
G. A physician who has not made the subject of insanity a special study,
and who, when his patients required medical treatment on insanity, was in the
habit of calling on a physician who made insanity a specialty, or recommending
APPENDIX. ^^
the removal to an insane asylum, 5s not competent to give an opinion on a liypo-
thit cal case put to Inm. Com. v. Rich. 14 Gray. 335, 337. In a late case n
Massachusetts, a physician who had not made insanity a study was allowed to
give opinions on questions of insanity. Barter r. Abbott, < Gray, .1, 80.
7 In American Courts, the rule is to put the facts to which other witnesses
testify in a hypothetical form, and ask the witness his opinion on Buch state of
llci Woodbury v. Obear, 7 Gray, 467, 471; Hunt .. Lowell Gas Light Co.. 8
^^Ta medical witness may, when the issue is sanity or insanity, be asked
whether sttch and such appearances, proved by other witnesses, are in Ins judg-
^::U,.p.... of insanity; but he cannot be asked if the -t-^th wh>ch the
defendart is charged is an insane act ; for this is a fact to be decided by the jury
ReTv^YZ^Cl & ^- 436; Re. .. Searle, 1 M. & Bab., 75; Collett r. CoUett. 1
Curtis GST; Malton r, Xesbit, 1 C. & P., 72.
9 la White i: Bailey, 10 Mich., 155, it is held to be improper to inquire of a
medical witness whethe^ the person in question possessed sufficient capacity to
transact business or to make a will.
10 The following question may be put to a professional witness who has
heard all the evidence before a jury : " Assuming the facts stated in the evidence
to be true what state or condition does it indicate ? " Collett r. Collett 1 Curtis,
687; Rex ;. Searle, 1 M. & Rob., 75; Fenwick r. Bell. 1 C. & Kir., 312; McNaugh-
ton'B ca?e, 10 CI. & F., 200.
11 Special knowledge must be fully established before a witness can be
examined as an expert. Sinclare r. Roush, 14 Ind., 450, Winans r. ^ 1 & E. R.
Co 21 Howard U. S.. 88; Com. .. Wilson. 1 Gray, 337; Daniels r. Mosher, 2 Anch..
183; Lester r. Pittsfort, 7 Vt.. 161; Mendum v. Com., 6 Rand., 704; Elfeit v. Smith.
1 Minn.. 125; Tullis r. Kidd, Alab., 648.
10 The witness must be strictly confined to the special knowledge while
testifying as an expert. Woodin .. Plafle, 1 Parker Cr. R., 464; Concord R...
Greeley, 3 Foster. 237; Cooke v. State. 4 Zabrisk. 843; Robertson t"- Stork, lo
N H 109- Rider v. Ocean Ins. Co.. 20 Pick.. 259; M'^rse r. State, 6 Conn., 9;
SoweJs r. Duke, 8 Minn., 23; Page .. Parker. 40 N. H., 47; Woodbnrn v. Farmers
& M. Bank, 5 Watts & Serg.. 447; Rochester v. Chester, 3 N. H.. 349.
13 Limited knowledge, as attending upon persons made sick by breathing
gas from the same leak, does not qualify one to act as an expert. Emmerson v.
L. G. L. Co., 6 Allen. 146.
14 In an action to recover damages for personal injuries, medical witnesses
may be called and give their opinion as to the permanency of the injury, iiuell
V. N. Y. C. R. Co.. 31 N. Y. Court of Appeals. 314.
15. The opinions of persons not experts must be sustained by facts. Seibles
V. Black well, 1 McMullan. 56,
16 The opinion of a witness who is not an expert as to the sanity of one
charcred with crime is incompetent, although based upon his own knowledge of
facts? Com. v. Fairbanks, 2 Allen. 511. Referring to the case of Baxter r. Abbot,
the Court says : " It was only held, by a decision not unanimous that the opinion
of a famil V phvslcian as to the sanity of a te.tutor might be introduced in evidence.
But in general, where the jury have the facts in detail, they are as competent to
590 APPENDIX.
form a correct judgment as the witness; and the practical experience of those
familiar with Courts shows that the defense of insanity is one easy to be made,
and favorably listened to by juries. The rule, therefore, should not be extended
beyond the adjudicated cases."
17. Mr. Justice Davis, of the Supreme Court of Maine, who, nft»r saying that
he considers juries far more trustworthy than experts on the subject of insanity,
remarks: "If there is any kind of testimony that is not only of no value, but
even worse than that, it i.-, in my judgment, that of medical experts. They may
be able to state the diagnosis of the disease more learnedly; but upon the ques-
tion whether it had, at a given time, reached such a stage tliat the subject of it
was incaijablo of making a contract, or irresponsible for his acts, the opinion of
Lis neighbors, if men of good common seuse, would be worth more than. that of
all the experts in the country." Redfield on Wills, 2d ed., part I, pp. 103, 105.
18. Mr Justice Grier, of the Supreme Court of the United States, made the
following remarks in delivering the opinion of the Court in Winans v. Xew York
& Erie Railway: " Experience," said the learned Judge, "has shown that opposite
opinions of persons professing to be experts may be obtained to any amount; and
it often occurs that not only many days, but even weeks, are consumed in cross-
examinations to test the skill or knowledge of such witnesses, and the correct-
ness of their opinions, wasting the time and wearying the patience of both the
Court and the jury, and perplexing instead of elucidating the question involved
in the issue." 21 Howard, 101. And in his charge to the jury, in the recent trial
of Andrews in Massachusetts, Chief Justice Chapman thus alludes to the conflict-
ing opinions of the medical experts in the case: " I think the opinions of experts
are not so highly regarded as they formerly were ; for, while they often afford
great aid in determining facts, it often happens that experts can be found to
testify to any theory, however absurd." Boston Med. and Surg. Journal, Feb. 25,
1869. To these opinions may be added that of the late Chief Justice of Vermont,
a jurist of high reputation, who, in his valuable work on Wills, remarks that
"experience has shown, both here and in England, that medical experts differ
quite as widely in their inferences and opinions as do the other witnesses. This
has become so uniform a result with medical experts of late ihat they are begin-
ning to be regarded much in the light of hired advocates, and their testimony as
nothing more than a studied argument in favor of the side for which they have
been called. So uniformly has this proved true in our experience, that it would
excite scarcely less surprise to find an expert called by one side testifying in any
particular in favor of the other side than to find the counsel upon either side
arguing against their clients and in favor of their antagonists."
19. In a very late case in Massachusetts, a question proposed to an expert
was excluded because it sought to establish a historical fact under the guise of a
scientific opinion. McMahon r. Tyng, 14 Allen, 171. It is a well-settled rule of
law that witnesses cannot state their views on matters of legal or moral obliga-
tion, nor on the manner in which other persons would probably be influenced if
the parties acted in one way rather than in another. Therefore the opinions of
medical practitioners upon the question whether a certain physician had honora-
bly and faithfully discharged his duty to his medical brethren have been rejected.
Greenleaf on Evidence, §441. But this rule does not prevent a medical man
from testifying to a fact derived from his own observation, from which another
APPENDIX. ^^^
medical man's incapacity or unfaithfulness might be inferred. Thus in an
Tctn o recover damag;s for a personal injury, a physician was allowed in a
recent case to testify what had been another physiaan's previous treatment of
Ms patient what effect it had upon him, and whether or not he saw any ey.denc
that the p tient had been injured by such treatment. Barber r. M-riam 1
Allen 322. It was held, in the same case, that the statement of a patient to his
physician as to the character and seat of his sensations, made for the purpose of
receX^ medical advice, are competent evidence in his favor in an action to
recover damages for a personal injury, even though such statements were not
made mi afte;the action was brought. This is an exception to tl^a -le of law
which confines expressions of the bodily or mental feelmgs of a pa j .o p ove
the existence of such feelings to those made at the time. In both of these
caLs the admission of this testimony is contrary to the general principle of
etdence which excludes hearsay, because it cannot be subjected to the ordeal of
a ross exLination to test its truth. It is admitted, however, from the necessi y
^f the case, as this is the only way by which the condition of a patient can be
made known to his physician, who has a fair opportunity of ascertaining its
Trrecti's by observltion, and it is for the interest of the patient to tel the
tru lunder these circumstances. And as the opinion of. the physician would be
competent evidence in such a case, it would be absurd to keep from the jury the
asons for his opinion, as they would then be unable to ^^t^mine its soundn^^
But an expert will not be allowed to express an opinion upon the value of the
!pt on 'o'fother witnesses in the case. It is not his province or ^^.ty to make
such comparisons. Haverhill Loan and Fund Association r. Cronin. 4 Allen. 141.
But tbe narration bv a patient to his physician of the cause of injuries received
Several months pre^Aously is not admissible as evidence of that cause. Chapin ..
Inhabitants of Marlborough. 9 Gray, 244.
20 The wish to appear learned sometimes influences the witness o make a
pedantic use of technical terms, and even professional men who are not troubled
with r desire to parade the treasures of their vocabulary often use language
which alhouc^h intelligible enough to the scientific student, is wholly beyond
The comprel^erision of tie Court and jury. The following anecdotes illustrate
Te ridiculous extent to which this practice has sometimes been earned. In a
case o alleged child-murder, a medical witness, being asked for a plain opinion
of he cause of death, said that it was owing 'to atelectases and a general
eLorlement of the pulmonary tissue.' On a trial for an assault, which took
^fce^t rAssizes sonie years since, a surgeon, in giving ^^;^:^^;^^;^^^
L Court that, on examining the P^-tor he fouud linn ^^^2:^:],
contusion of the integuments under the lett orDit,%Mtn ^leau
blood and ecchymosis in the surrounding cellular tissue, which was in a tumefied
Ite There was, also, considerable abrasion of the cuticle.' Judge: 'lou mean
fstn-e, that the man had a bad black eye.' r.Y....:;^ ^-^^- Then
why not sav so at oncer- Taylor's Med. Jur.,Gth Am. ed., 53.
21 If the expert does not understand the question, it is very often his best
cour e to acknowledge his ignorance of the subject Let ^^^l^l^^^^^^^^^^
The question may be presented in another form. If not understood, let this
at once stated. Dr. Walter Channing.
692 APPENDIX.
k
G. — Fees — General Notes.
1. A surgeon or physician is entitled to a reasonable reward for his services.
The amount is a question for the jury. The eminence of the practitioner, wealth
of patient, delicacy and difficulty of operation to be considered. The principle
has never been adopted in this country that the professions of physicians and
counselors are merely honorary, and cannot be charged for. Adams v. Stevens,
20 Wend., 451; "Baxter v. Gray, 4 Scott N. R., 374; Mock v. Kelley, 3 Alab., 387;
Beekman n. Planter, 15 Barb., 550; Judah v. McXamee, 3 Blackf., 3G9; McPherson
V. Chedell, 34 Wend., 15; Simmons v. Means, 8 Sm. & Marsh, 397; Rouse v. Morris,
17 Ser. <Si R., 338. Smith v. Watson, 14 Vt , 332; Sweet v. Hooper, 1 Davies Ab.,
610; Mooney v. Tilovd, 5 Ser. k R., 41G; Wilcoks on Med. Prof, 111. Can recover
for services of students. People v. Monroe, 4 Wend., 200. Xo agreed specified
price necessary. Story, Bailm., §375. Book of original entries may be ofi'ered in
evidence, supported by his own oath, 3 Dane's Ab., cap, 81, a. 5, §16. Success
not necessary to a recovery of fees. Kanna v. McMullen, Peake, 83; Hupe v.
Phelps, 2 Starkie, 434.
2. A medical charge should be specific, and not general, giving the number
of visits and dates. Hughes v. Hampton, 3 Const. Rep., (S. C .) 745. He is not,
however, limited to the -amount of the first bill presented, if the services are
shown to be worth more. Miller v. Beal, 26 Ind., 334. '" Consultation " visits
must be limited ; if frequent, they become ordinary visits. Succession of Duclas,
11 Louis., A., 406. Physician and surgeon, acting together in the management of
a case, may be sued jointly. 1 Slater v. Baker and Stapleton, 3 Wilson, 359. An
epidemic does not authorize exorbitant fees. Collins v. Grady, 13 Louis., A., 95;
also, 2 Louis, 331. Cannot recover fees if guilty of malpractice. Bell nger v.
Craigue, 31 Barb., 534; Long v. Morrison, 14 Ind., 595; Ritchey v. West, 23 HI.,
885; 2 Parsons on Contracts, 106.
3. A physician must respond to the subpoena of a Court ; but when put upon
the stand as an expert, he is not obliged to testify until he is paid, by the party
calling him, such a fee as the professional opinion and time spent in Court would
be worth under ordinary circumstances out of Court. 1 Green. Ev., §310, n;
Webb V. Page, 1 Carr & Kir., 23. In this case the Court said : " There is a dis-
tinction between the case of a man who sees a fact and is called to prove it in a
Court of justice, and that of a man who is selected by a party to give his opinion
on a matter with which he is peculiarly conversant from the nature of his em-
ployment in life. The former is bound, as a matter of public duty, to speak of a
fact which happens to have fallen within his knowledge : without such testi-
mony the course of justice must be stopped. The latter is under no such obliga-
tion : there is no such necessity for his evidence ; and the party calling him must
pay him." Taylor's Med. Juris., 6th Amer. ed., 38; Redfield on Wills, 2d ed.,
part 1, 155, note 46.
4. lu a case in the U. S. District Court, Mr. Justice Sprague refused to compel
the attendance of an interpreter who had neglected to obey a subpoena. The
learned Judge said that " a similar question had heretofore arisen as to experts,
and he had declined to issue process to arrest in such cases. When a person has
knowledge of any fact pertinent to an issue to be tried, he may be compelled to
attend as a witness. In this all stand upon equal ground. But to compel a
APPENDIX. 593
«
person to attend merely because he is accomplished in a particular science, art, or
profession, would subject the same individual to be called upon in every cause in
which any question in his department of knowledge is to be solved. Thus, the
most eminent physician might be compelled, merely for the ordinary witness'
fees, to attend from the remotest part of the district in which a medical question
might arise. This is so unreasonable that nothing but necessity can justify it.
The case of an interpreter is analogous to that of an expert. It is not necessary
to say what the Court would do if it appeared that no other interpreter could be
obtained by reasonable effort." In the matter of Roelker, 1 Sprague's Dec, 276.
5. When a physician, duiing his attendance upon a patient, (the defendant,)
having also attended patients infected by small pox, and, by want of proper care,
communicated the infection to the defendant and his family, making it necessary
for further attendance and an increased bill; it was held, in an action by the
physician to recover for his services, that no recovery could be had for the addi-
tional service rendered necessary by the plaintiflTs own want of proper care ; and
the defendant was entitled to a further deduction from that portion of his bill
which he had sustained by bodily suffering and loss of time. Piper v. Menifee,
12 B. Monr., 465.
6. The usual price per visit must be charged, or a notice given of change of
price. Sidener v. Fetter, 19 Ind., 310.
7. Medical attendance on paupers, or persons sick with contagious disease,
cannot be charged to the overseers of the poor or to the town without a special
contract. Evarts v. Adams, 12 Wend., 449; Kellogg v. St. George, 28 Maine, 255.
8. Under a contract that if there is no cure there shall be no pay, the physi-
cian cannot recover for medicines unless there has been a performance of the
contract. Smith v. Hyde, 19 Vt., 54.
9. An unlicensed physician cannot maintain an action for services where the
statute requires a diploma or license, neither before nor after the repeal of such
statute. Bailey v. Mogg, 4 Denio, 60; Warren v. Saxby, 12 Vt , 146. See per
contra, Hewitt v. Wilcox, 1 Mete, 154; Durand v. Grimes, 18 Gray, 693; Jordan v.
B. & B., 19 Alab., 238.
10. The administration of drugs must conform to State laws, though covered
by a patent. Jordon v. Overseers of Dayton, 4 Ohio, 295; Smith v. Tracy, 2 Hall
Sup. Ct. (N. Y ) R., 465; Thompson v. Staats, 15 Wend., 395.
11. If a defendant, when sued for fees, pleads that the plaintiff was not
licensed to practice, having employed him as a physician, the defendant must
prove that he was not so licensed. Dickinson v. Gordy, 5 Rob., 489; Provosty v.
Nichols, 11 Martin, 21; 19 Alab. 238.
12. The case of Walsh v. Sayer, in the Supreme Court of New York, estab
lishes the right of a surgeon to demsind personal inspection of the party alleged
to be the subject of malpractice previous to the trial of the case. Jones, J., says :
'I am aware there is no recorded case of an application for any such discovery
having been granted; but at the same time there is no recorded case of any appli-
cation having been denied. Nor have I overlooked the fact that the Court of
Chancery established many rules for its guidance in granting and refusing a
discovery asked for ; but none of these rules are antagonistic to granting this
motion. The fact that the discovery asked is a portion of the body, at first dis-
posed the mind to regard it unfavorably on the ground of delicacy. But it is not
594 APPENDIX.
the first case in which such an examination has been had." 2 Black. Corns., 333;
5 Pai^re R., 554; 1 Beck's Med. Juris., IIG, 125, 204, 205; Walsh v. Sayre, 50, 51,"
pamphlet edition, Geo. H. SLaw, New York.
-13. The general principles applicable to physicians and surgeons are well
unfolded in a recent case in Maine, where it was said that —
. " Physicians and surgeons who offer themselves to the public as practitioners,
impliedly promise thereby that they possess the requisite knowledge and skill to
enable them to treat such cases as they ur,dertAke wiih reasonable success.
" This rule does not require the possession of the highest, or even the average
skill, knowledge, or experience, but only such as will enable them to treat the
case understandingly and sately.
" The law also implies that, in the treatment of all cases which they undertake,
they will exercise reasonable and ordinary care and diligence.
"They are also bound always to use their best skill and judgment in deter-
mining the nature of the malady, and the best mode of treatment, and in all
respects to do their best to secure a perfect restoration of their patients to health
and soundness.
" But physicians and surgeons do not impliedly warrant the recovery of
their patients, and are not liable on account of any failure in that respect, unless
through some default of their own duty, as already defined." Patten r. Wiggin,
51 Maine, 594.
14. In insanity, the following rulings in respect to wills are importa::t :
The testator must, at the time of the execution of a will, have been of sound
disposing mind ; that this does not imply that the powers of the mind have not
been weakened or impaired by disease or old age ; that it is not suificient that
the testator was able to answer questions rationally, nor was it necessary that he
should have been of Buflicient capacity to engage in complex and intricate busi-
ness. If he was at the time capable of understanding the nature of the business
and the elements of the will — that is, the nature and extent of his property, and
the persons to whom he meant to convey it, and the mode of distribution — it was
sufiicient. Converse r. Converse, 21 Vt., 168; Redfield on Wills, §9, n. 2.
In Connecticut, the Court held that all which is necessary to testamentary
capacity is an understanding of the nature of the business the testator was
engaged in, a recollection of the property he means to dispose of, and of the
persons to whom he means to convey it, and of the manner he means to dis-
tribute it among them. Comstock v. Hadlyme, 8 Conn., 265; Kinne v. Kinne, 9
Conn., 102.
In Pennsylvania, it was held that a less degree of mental imbecility is neces-
sary to invalidate a will than would be ground of acquittal from a criminal
charge. McTaggart v. Thompson, 14 Penn. St., 149.
The important question to be settled is — Whether the document claimed to
be the will of the testator was really the product of his own free will and action,
or that of others ; in short, whether it is the icill of the testator, or the act of some
other person or persons? 1 Redfield on Wills, 132.
INDEX.
Abortion, — Fceticide.
adjudicated cases .n, 251.
causes and frequences of, 243, 244.
laws relating to, 250.
Rex V. Wycherly, adjudicated case in,
251.
Accidents,
latent diseases developed by, 41.
AcROMXAN Process,
fracture and surgical treatment of, 88.
Age,
influence in surgical practice, 42.
Allegations,
must be proved as laid, 148, 149.
Amputation,
malpractice in, 56.
importance of the operation, 57^ — 59^
in disease of the joint, 60.
gangrene, 61 — 63.
malignant disease, 64.
hemorrhage, 64.
ulceration of the skin, 65.
compound fractures, 66 — 80.
dislocations, 68, 69.
Howard v. Grover, 70 — SO.
American Journal of Insanity,
on moral insanity, 402, 403, 404.
Anatomy,
its importance to the surgeon, 51 — 53.
in articulations, 107.
Ankle Joint,
dislocation and fracture of, 135.
Sargent's case, 135.
Anchylosis,
of wrist and ankle, 94.
Apothecaries,
laws applicable to, 107.
adjudicated "ases,
HoUenkemp's case, 187.
Arsenical Poisoning,
analysis of Taylor, 459 — 492.
elimination of arsenic, 457.
fatal doses, 454.
post mortem examination, 456.
properties of arsenic, 453.
symittoms in, 454 — 455.
adjudicated cases in, 494 — 525.
Eex V. Mary Blaudy, 494—496.
I Arsenical Poisoning — Continued.
Rex V. Elizabeth Fanning, 496, 497.
Eex V. Dr. Snell, 497, 498.
' Rex V. Ann Barber, 498—500.
i Rex V. Marv Smi.h, 500.
Rex V. Wishart, 500, 501.
I Commonwealth v. Chapman and Mi-
I na, 503.
I The State v. Sager, 504.
The Commonwealth v. Earls, 505.
The People v. Eldridge, 505—508.
The People v. Stephens, 508—525.
B.
Baker's Case, -
fracture of tibia and fibu.a, 112.
Barbaric Surgery,
natural bone setters, 51, 52.
Barlow,
on insanity, 414, 415.
Basset v. Collins and Barnes.
case of doubtful diagnosis, 98, 99.
Books, Medical.
as evidence, 331 — 336.
text-books not admissible, 232 — 336.
the medical witness has no ground of
complaint, 335.
Collier V. Simpson, 352.
Breck's Case,
alleged malpractice in dressing an in-
cised wound, 163 — 166.
Prof. Flint's deposition in, 163.
Prof. Hamilton's deposition in, 166.
Brougham, Lord,
definition of delirium by, 390.
Brodie, Sir B.
on moral insanity, 404, 405.
c.
Chemists,
laws applicable to, 163—173.
leading cases, 173 — 197.
Children,
peculiar difiiculties attending the treat-
ment of, 42.
Circumstantial Evidence,
definition of, 266.
Gibson, C. J. on, 267.
(595)
INDEX.
Circumstantial Evidence — continued.
examples of, 269.
Clifford's Case,
fracture and dislocation, 90, 91.
Collins and Barnes' Case,
fracture of femur, 98.
Collier v. Simpson,
medical books as evidence, 332.
Coracoid Process,
fracture of, 88.
Condyle,
fracture of, case, 90.
Compound Fractures,
definition and treatment of, 77 — 79.
complicated with simple fractures, 80.
Comminuted Fracture,
of the fibula and tibia, McWha's case,
118.
Criminal Malpractice,
laws applicable to, 198—201.
Long's cases, 208, 220.
Thompson's case, 232.
Van Butchell's case, 201.
Williams' case, 204.
Culver v. Haslem,
laymen's evidence in insanity, 425,
426.
D.
Damages,
measure of, in personal injuries, 190.
Declaration,
counts in, 135, 136, 143.
Deformities after Fractures,
Prof. Hamilton's cases, 85, 86, 104.
of the humerus, 92.
of the radius, 94, 95.
prognosis in fractures imperfect, 86.
American surgery compared with Eng-
lish, 87.
White's case, fracture of the surgical
neck of the humerus, 89.
Clifford's case, diflSculty in the diagno-
sis, 90.
non-union of shaft of humerus and
ulna, 94.
of radius and ulna, 96.
of the femur, 97.
shortening almost universal, 97.
Basset v. Collins and Barney, fracture
within the capsule of the head of
the femur, 98—100.
shortening of femur, litigation, 101,
102.
alleged tight bandaging, 103.
Dknio, J.
on lay evidence in insanity, 426—434.
Delusion,
in what it consists, 381, 389.
Wood's case, 384.
Haskell's case, 385—388.
Dewitt v. Barley.
insanity, laymen's evidence in, 426 —
430.
Diagnosis,
in accidents of the joints, 106.
Diligence,
what degree required of the physi-
cian, 23, 24, 127.
Disease,
its influence in surgery, 40.
malignant, amputation in, 64.
Dislocations,
diagnosis in difficult dislocations and
fractures, 90, 98, 100.
irreducible, amputation in, 68.
time when reducible, 108.
anatomical knowledge essential, 105.
mistakes in, 106.
of ankle joint, 115.
Thompson's case, 115.
applications for reduction, 109.
Dissection,
importance of, to the surgeon, 53, 54.
Drew v. Clark,
insanity, delusion, 381 — 389.
Druggists,
their responsibility, and principles of
law applicable to, 169. 170.
American Pharmacautical Association,
suggestions of. 170 — 173.
Thomas and wife v. Winchester, 173
—187.
Fleet & Semple v. HoUenkemp, 187
—194.
Drunkenness,
insanity from, 413.
Dying Declarations,
the medical witness, to observe, 317,
319.
E.
Education,
may be shown to rebut the charge' of
ignorance, 140 — 143.
elementary, not sufficient, 56.
Errors,
of judgment, the physician not liable
for, 40, 142.
Evidence,
in general, 263—267.
circumstantial, 265 — 272.
impressions, belief, 270, 271.
form of hvpothetical question, 277
309, 310^
djdex.
597
Evidence. — Continued.
manner of the witness, 272.
medical evidence, 285, 318.
Eye,
surgery of, 145.
alleged malpractice in treating the, 146.
Experts,
who are experts, 275, 293.
opinions defined, 273, 277.
what degree of knowledge required,
283, 284, 293, 294.
F.
Femub,
fracture of, shortening, 97.
transverse fracture of, 97, 98.
litigation, 98—102.
Fibula,
fractures of, 103.
.Fingers,
anchylosis of, 94, 95.
Fleet "& Semplev. Hollenkemp,
responsibility of druggists, 187.
Flint, Prof.,
deposition in Break's Case, 163 — 166.
as a witness, 163.
FcETiciDE. — Abortion,
definition of, 243.
causes of, 243, 244.
extent of the evil, 244 — 247.
the law of, 250—254.
Madame Restell's case, 254—260.
Foot,
mortification of— suit for damages, 103.
Fractures,
treatment of, often diflficult, 76 — 81.
litigation, 75, 76, 81, 82, 97, 101.
with dislocation, 90, 91.
oblique, 93, 106.
of humerus, proportion of cures, 91, 92.
near joints, 93.
of femur, 97.
of- tibia, 103.
of fibula and tibia, McWba'a case,
118—135.
compound, 47.
Freeman v. The Pboplb. Partial in-
sanity, 391, 392.
G.
Gallagher and "Wife, v. Thompson,
dislocation and anchylosis, 115.
Gangrene,
cause of amputation, 70.
General Principles,
applicable to medical men, 19.
Grant v. Thompson,
insanity— u n professional opiniona, 43L
Grover's Case,
amputation, 70.
H.
Hamilton, Prop.,
reports on fractures and dislocations,
85, 86, 104.
deposition in Breck's case, 166.
as a witness, 305.
Haskill's Case,
insanity, 385.
Hemorrhage,
amputation in, 64.
Hereditary Disease,
its influence in surgery, 40.
Hip,
dislocation of, 106.
History of Medicine, 285.
Hollenkemp's Case, 187.
druggists, duties of, 187.
Holt v. Breck,
amputation from incised wounds, 165.
Howard v. Grover,
amputation, 70 — 74.
Humerus,
non-union of, 94.
oblique fracture of, 91.
proportion of imperfect cures, 92.
fracture of upper end, 88, 89.
Huntington's Case,
moral insanity, 400, 420, 421.
Profs. Parker's and Oilman's testimo-
ny in, 341, 342.
Hypothetical Questions,
form of, 277, 309, 310.
form of question changed, 310.
Insanity,
but little settled on the subject of,
338—340.
diflBculties of this subject generally,
340—358.
Profs. Parker and Gilman on, 341, 342.
the Huntington case, 343, 400, 419,
420.
the material theory, 340 — 343.
the immaterial theory, 344.
the mind itself may be diseased — Sir
B. Brodie, 344.
Dr. Carpenter's view, 346.
eccentricities of genius, 347, 348.
cunning of the insane, 348 — 350.
558
INDEX.
Insanity. — Continued.
classification of, absurd, 353, 355.
■ courts, position of, on, 356.
Bishop on, 362, 369.
Capron, Judge, on, 363.
Kenyon, Lord, on, 364.
Ray, on, 357 — 362.
Reese, on, 367 — 372.
ifjnored in schools, 368.
witness on, in court, 373 — 379.
no definition of, 375 — 377.
position of courts on, varied, 379 — 384.
Hale's rule, 379.
Collinson's rule, 380.
Mitford's rule, 380.
Erskine's rule, 381.
Hadfield's case, 382—384.
delusion, 381—389.
Wood's case, partial, 384.
Haskill's case, partial, 385 — 388.
adjudicated cases on, 395. .
Mosler v. The Commonwealth, 395.
moral insanity, 400.
American Journal of Insanity, 402.
Brodie, on, 404, 405.
from passion, 411, 412.
Sickles' case, 416—420.
non-professional opinions on, 422 —
434.
lucid intervals, 437.
Brougham's definition of, 390.
Barlow on, 414, 415.
Joints,
amputation, near, 67.
dislocation of, 106.
study of, neglected, 106.
stiffness of, 135, 144.
Judgment,
sursjeon not responsible for errors of,
46, 142.
Jurors,
verdicts of, 72, 73.
K.
Kendall's Case,
trade mark, 192.
Knowledge,
degree of, required, 20, 142.
what constitutes a witness an expert,
283.
L.
Latent Diseases,
complicate surgical treatment, 40.
Leighton v. Sargent,
dislocation of ankle, 135.
Longmeid v. Hollidat,
negligence, immediately dangerous to
life, 185.
Long's Cases,
criminal malpractice, 208, 220.
M.
Manslaughter,
by medical men, 183, 240.
McCandless v. McWha,
malpractice, 118.
McMuLLEN's Case,
ophthalmic surgery. 146.
Medicine,
a progressive science, 56.
the practice of, 294.
Medical Books,
as evidence, 331 — 337.
Medical Education,
may be shown to rebut charge of ig-
norance, 140.
Medical Evidence,
history of, 285.
its distinctive character, 307.
importance of, 288—292.
Dr. Coventry's suggestions on, 305.
its growth and literature, 286. 287.
its importance illustrated, 289 — 292.
general importance of, 295, 296.
errors of witnesses, 302. 303.
has been neglected, 304.
Hornblower's, C. J., opinion of. 306.
Capron's, Judge, opinion of, 306.
Hamilton, Prof., as a witness, 309.
Flint, Prof., as a witness, 309.
hypothetical questions, 309, 310.
difficult questions, 312—317.
dying declarations, 318.
Medical Profession,
American, 34, 35.
Medical Witness,
on the stand, 307-509.
Moral Insanity,
general subject of. 400.
Brodie on, 404, 405,
Reese, on, 406.
Mortification,
of foot, — malpractice, 103.
N.
Negligence,
in apothecaries, litigation, 173.
in phvsicians and surgeons, 22, 33,
46/142.
INDEX.
599
NON-UXION,
of humerus after fracture, 94.
Natural Boxe-setteb,
belief in, 51.
0.
Oblique Fractures,
deformities from, 96.
of the femur, shortening, 97.
of fibuh\ and tibia, 118.
Obstetrics,
malpractice in Restell's case, 204.
Ohio State Medical Society,
report of, on malpractice, 8, 83, 84.
Old Age.
influence of, in surgery, 43.
Operations,
decrease of, 50.
Ophthalmic Surgery,
malpractice in, 145 — 162.
Opinions,
as evidence, 273—275, 422.
Palmer's Case,
strychnine poisoning, 543.
Pathology,
importance of, to the surgeon, 37 — 53.
Patient,
duties of, 29—32, 127.
entitled to the application of the im-
provements of the science, 128.
Partial Insanity,
Erskine's examples of, 383 — 385.
Noves' examples of, 385.
Hakkell's case, 385—388.
Oilman on, 389.
Parker on, 389.
the sreneral subject, 385 — 389.
Physiology,
importance of, to surgeon, 51 — 53.
Physician,
not a warrantor, 142.
gross carelessness of, 27.
contract of, 142,
Privileged Communications,
the medical witness, 319.
Duchess of Kingston's case, 319. m
Common law rule, 320.
John Gordon Smith, and Charles A.
Lee, upon, 320, 321.
the medical witness not privileged,
322—328.
the attorney as a privileged witness,
325, 326.
I Privileged Communications. — continued.
the criminal.'s privilege, 326, 327.
voluntarv information by medical
men, 328.
the cases of Drs. Uhl and Mott, 328.
Prentice's Case,
fracture of arm, 110.
Poisoning,
general observations on, 439 — 444.
post mortem appearance in, 456.
the medical witness, 445, 446.
compensation of witnesses, 447, 525.
evidence in homicide by, 449, 450.
law of the subject, 450 — 452.
Q.
Quackery.
no allowance for, in law, 47, 128.
why it attaches itself to medicine,
134, 294.
R.
Radius,
proportion of imperfect cures in frac-
tures of, 94.
difficulties in treatment, 95, 96.
fracture of, at wrist, 95.
radius and ulna, fracture of, 96.
Rambler v. Tryan,
insanity, non-professional opinions,
430.'
Reasonable Knowledge, m
required of the surgeon, 48, 126, 142,
Reese, Dr.
on moral insanity, 406.
on medical evidence, 367.
on medical evidence in insanity, 372.
Rex v. Long,
criminal malpractice, 208.
second case, 220.
Rex v. Simpson,
criminal malpractice, 200.
S.
Sargent's Case,
dislocation and fracture of ankle, 135.
Sear v. Prentice,
dislocation, 110.
Sex,
influence of, in disease, 42.
Skill,
what degree required of the surgeon,
20, 22, 55, 56, 73. 127.
extraordinarv, 55. 56, 128.
McWha's case, 118, 121.
600
INDEX.
Sickles' Case,
insanity, 416.
Shoulder Joint,
diagnosis in injuries of, difBcult, 93.
Shortening,
in fracture, 85.
of the femur, 97.
Simple and Compound FBACTxraES,
treatment of, 79, 80.
oblique, 91.
Snell's Case,
fracture of humerus, 96.
State of Iowa, v. Hinkle, .
malpractice, medical opinions, 283.
Strtcunia,
poisoning by, 526.
analysis of, 526 — 530.
symptoms, 530.
medical testimony in, 534.
the Palmer case, 543.
Curling's testimony in, 543.
Brodie's testimony in, 537.
Christisou'3 testimony in, 540.
Surgery,
the peculiar difficulties of, 40, 45.
of comparatively recent origin, 52.
manual dexterity in, 49.
the surgeon not a warrantor, 142.
when not liable, 127.
importance of his position, 51.
Tkmpebament,
influence in surgery, 42.
Tesstmond's Cask,
liability of druggists, 170.
The People v. Madam Restell.
abortion, 254.
Thomas and Wife, v. Winohesteb,
liability of druggists and chemists,
169,' 173.
Thompson's Case,
dislocation of ankle joint, 115.
Tibia and Fibula,
fracture of, McWha's case, 118.
Time,
length of, for extension, 83, 84.
Transaction of American Medical
Association,
Prof. Hamilton's Reports, 85—104.
report on druggists, 170.
Tbansversk Fractures,
shortening in, 97, 98.
overlapping in, 83.
Ulceration,
of skin, amputation, 45.
Ulna,
fracture, of, 96.
Uncertainty in Medicine,
the subject generally, 44 — 46.
Vabiance,
in allegations, 140.
7an Butchell's Case,
criminal malpractice, 201.
Verdicts,
intemperate and extravagant, 72.
w.
Warrantor,
surgeon not a warrantor, except oj
contract, 142, 162.
White's Case,
fracture of humerus, 87.
Wilful Malpractice.
Van Butchell's case, 201.
Williamson's case, 204.
Long's cases, 208, 220.
Wills,
law as to, 435.
impeachment of, 436.
Winchester's Case,
liability of druggists, 173.
WiNTERBOTTGM V. WbIGHT,
liability of druggists, 183.
Wounds,
definition, etc., 313 — 316.
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