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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. 
 
 (285)
 
 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 
 
 (293)
 
 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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