_Of Professional Duties in certain Cases which require a Knowledge of
Law._
§ 1. Gentlemen of the Faculty of Physic, by the authority of different
parliamentary statutes, enjoy an exemption from serving on inquests or
juries, from bearing armour, from being constables or church-wardens,
and from all burdensome offices, whether leet or parochial[39]. These
privileges are founded on reasons highly honourable to Medical men, and
should operate as incentives to that diligent and assiduous discharge
of professional duty, which the legislature has generously presumed to
occupy the time and to employ the talents of Physicians and Surgeons,
in some of the most important interests of their fellow-citizens. It
is perhaps on account of their being thus excused from many civil
functions, that Sir William Blackstone, in his learned “Commentaries,”
judges the study of the law to be less essential to them, than to any
other class of men. He observes, that “there is no special reason why
gentlemen of the Faculty of Physic should apply themselves to the study
of the law, unless in common with other gentlemen, and to complete the
character of general and extensive knowledge; a character which their
profession, beyond others, has remarkably deserved[40].” But I apprehend
it will be found that Physicians and Surgeons are often called upon to
exercise appropriate duties, which require not only a knowledge of the
principles of jurisprudence, but of the forms and regulations adopted in
our courts of judicature. The truth of this observation will sufficiently
appear from the following brief detail of some of the principal cases, in
which the science of law is of importance to Medical practitioners. To
enter at large on so comprehensive a subject, would far exceed the bounds
of the present undertaking.
§ 2.[41] When a Physician attends upon a patient, under circumstances
of imminent danger, his counsel may be required about the expediency of
a last will and testament. It behoves him therefore to know, whether,
in case of intestacy, the daughters or younger children of the sick
person would be legally entitled to any share of his fortune; whether the
fortune would be equally divided, when such equality would be improper
or unjust; whether diversity of claims and expensive litigations would
ensue, without a will, from the nature of the property in question; and
whether the creditors of the defunct would by his neglect be defrauded of
their equitable claims. For it is a culpable deficiency in our laws, that
real estates are not subject to the payment of debts by simple contract,
unless expressly charged with them by the last will and testament of
the proprietor[42]; although credit is often founded, as Dr. Paley well
observes, on the possession of such estates. This acute moralist adds,
“He, therefore, who neglects to make the necessary appointments for the
payment of his debts, as far as his effects extend, sins in his grave;
and, if he omits this on purpose to defeat the demands of his creditors,
he dies with a deliberate fraud in his heart[43].”
Property is divided by the law into two species, personal and real; each
requiring appropriate modes of transfer or alienation, with which a
Physician should be well acquainted. It may also be required of him to
deliver an opinion, and even a solemn judicial evidence, concerning the
capacity of his patient to make a will, a point sometimes of difficult
and nice decision; for various disorders obscure, without perverting,
the intellectual faculties; and even in delirium itself there are lucid
intervals, when the memory and judgement become sufficiently clear,
accurate, and vigorous, for the valid execution of a testament. In such
cases the will should commence with the signature of the testator,
concluding with it also, if his hand be not, after continued mental
exertions, too tremulous for subscription; and it should be made with all
possible conciseness and expedition[44].
If the patient be surprised by sudden and violent sickness, the law
authorizes a _nuncupative will_ in the disposal of personalty[45]. But,
to guard against fraud, the testamentary words must be delivered with an
explicit intention to bequeath; the will must be made at home, or among
the testator’s family or friends, unless by unavoidable accident; and
also in his last sickness,—for, if he recover, it is evident that time is
given for a written will[46].
The law excludes from the privilege of making a will madmen, idiots,
persons in their dotage, or those who have stupified their understandings
by drunkenness. But there is a high degree of hypochondriacism, which
not unfrequently falls under the cognizance of a Physician, and on which
he may be required to decide whether it amounts to mental incapacity
for the execution of a last will and testament. To define the precise
boundaries of rationality is perhaps impossible; if it be true, according
to Shakespear[47], that
“The lunatic, the lover, and the poet
Are of imagination all compact.”
But a partially distempered fancy is known to subsist with general
intelligence; and a man, like Mr. Simon Browne, believing the extinction
of his rational soul by the judgement of GOD, may uniformly evince in
every other instance very distinguished intellectual powers, and be
capable of directing his concerns and disposing of his property with
sufficient discretion. To preclude one so affected from being a testator,
seems inconsistent either with wisdom or justice; especially if the
will which has been made, discover in its essential parts no traces
of a disturbed imagination or unsound judgement. But, whenever false
ideas of a practical kind are so firmly united as to be constantly and
invariably mistaken for truth, we properly denominate this unnatural
alliance _Insanity_; and, if it give rise to a train of subordinate
wrong associations, producing incongruity of behaviour, incapacity for
the common duties of life, or unconscious deviations from morality and
religion, _Madness_ has then its commencement[48].
§ 3. A lunatic, or _non compos mentis_, in the eye of the law, is one
who has had understanding, but has lost it by disease, grief, or other
accident. The king is the trustee for such unfortunate persons, appointed
to protect their property, and to account to them, if they recover, for
their revenues; or, after their decease, to their representatives. The
Lord Chancellor, therefore, grants a commission to enquire into the
state of mind of the insane person; and if he be found _non compos_
by a jury, he usually commits the care of his person, with a suitable
allowance for his maintenance, to some friend, who is then called his
Committee[49]. The Physician who has been consulted about the case will
doubtless be called upon to deliver an opinion concerning his patient;
and, before he becomes accessory to his deprivation, as it were, of all
legal existence, he will weigh attentively the whole circumstances of
the disorder, the original cause of it, the degree in which it subsists,
its duration, and probable continuance. For, if the malady be not fixed,
great, and permanent, this solemn act of law must be deemed inexpedient,
because it cannot be reversed without difficulty; and when insanity has
been once formally declared, there may be grounds of apprehension that
the party will be consigned to neglect and oblivion. With regard to the
waste or alienation of property by the person thus afflicted, little risk
is incurred, if he be put under the ordinary restraint of a judicious
curator; for, whilst his mind remains in the state of alienation, he is
incapable of executing any act with validity; and the next heir, or other
person interested, may set it aside, on the plea of his incapacity. But
the use of a guardian or committee of a lunatic is chiefly to renew, in
his right, under the direction of the court of chancery, any lease for
lives or years, and to apply the profits for the benefit of the insane
person, of his heirs, or executors.
§ 4. The law justifies the beating of a lunatic, in such manner as the
circumstances may require[50]. But it has been before remarked[51], that
a Physician who attends an asylum for insanity is under an obligation
of honour as well as of humanity, to secure to the unhappy sufferers
committed to his charge all the tenderness and indulgence compatible with
steady and effectual government; and the strait waistcoat, with other
improvements in modern practice, now preclude the necessity of coercion
by corporal punishment[52].
§ 5[53]. Houses for the reception of lunatics are subject to strict
regulations of law. These regulations refer to the persons keeping such
houses, to the admission of patients into them, and to their inspection
by visitors, duly authorized and qualified. If any one conceal more
than a single lunatic without a licence, he becomes liable to a penalty
of five hundred pounds. The licences in the cities of London and
Westminster, or within seven miles of the metropolis, are granted by the
College of Physicians; who are empowered to elect five of their fellows
to act as commissioners for inspecting the lunatic asylums, within their
jurisdiction. Houses for the reception of lunatics in the country are to
be licensed by the justices of the peace during their quarter-sessions:
and at the time when the licence is granted the magistrates are directed
to nominate two of their own body, and also one Physician, to visit
and inspect such licensed houses. This inspection they are empowered
to make as often as they judge it to be expedient; and an allowance is
to be granted for the expences incurred. The keeper of every licensed
house is bound, under the penalty of one hundred pounds, not to admit or
confine any person as a lunatic, without having a certificate in writing,
under the hand and seal of some Physician, Surgeon, or Apothecary, that
such person is proper to be received into the house, as being _non
compos mentis_. And he is further required, under the same penalty, to
give notice of this certificate to the secretary of the commissioners,
appointed either by the College of Physicians, or the magistrates at
their quarter-sessions. The Act of Parliament which establishes these
regulations states this important proviso, “That in all proceedings
that shall be had under his Majesty’s writ of _Habeas Corpus_, and in
all indictments, informations, and actions, that shall be preferred and
brought against any person or persons, for confining or ill-treating
any of his Majesty’s subjects, in any of the said houses, the parties
complained of shall be obliged to justify their proceedings, according to
the course of the common law, in the same manner as if this Act had not
been made[54].”
The legal allowance to a Medical commissioner, for the visitation and
inspection of a lunatic-asylum, is fixed by the statute at one guinea.
This gratuity, which cannot be regarded as a just compensation for the
time and trouble bestowed, it may often be proper to decline; for to
a Physician of a liberal mind an inadequate pecuniary acknowledgement
is felt as a degradation, but he will be amply remunerated by the
consciousness of having performed an office, enjoined at once by the laws
of humanity, and of his country.
§ 6. In the case of sudden death, the law has made provision for
examining into the cause of it by the Coroner, an officer appointed for
the purpose, who is empowered to summon such evidence as is necessary
for the discharge of his inquisitorial and judicial functions. On these
occasions the attendance of a Physician or Surgeon may often be required,
who should be qualified to give testimony consonant to legal, as well
as to medical knowledge. To this end he must not only be acquainted
with the signs of natural death, but also of those which occur when it
is produced by accident or violence. And he should not be a stranger
to the several distinctions of homicide, established in our courts of
judicature; for the division of this act into _justifiable_, _excusable_,
and _felonious_, will aid his investigation, and give precision to the
opinion which he delivers.
§ 7. When a crime, which the law has adjudged to be capital, is attempted
to be committed by force, the resistance of such force, even so as to
occasion the death of the offender, is deemed _justifiable homicide_.
Mr. Locke carries this doctrine to a much greater extent; asserting,
that all manner of force, without a right, upon a man’s person, puts
him in a state of war with the aggressor, and of consequence, being in
such a state of war, he may lawfully kill him that puts him under this
unnatural restraint[55]. But Judge Blackstone considers this conclusion
as applicable only to a state of uncivilized nature; and observes, that
“the law of England is too tender of the public peace, too careful of the
lives of the subjects, to adopt so contentious a system; nor will suffer
with impunity any crime to be _prevented_ by death, unless the same, if
committed, would also be _punished_ by death[56].”
§ 8. With cases of justifiable homicide, however, gentlemen of the
Faculty are seldom likely to be professionally concerned. But _excusable_
homicide may frequently fall under their cognizance, and require their
deliberate attention and accurate investigation. It is of two sorts;
either _per infortunium_, by misadventure; or _se defendendo_, upon
a principle of self-preservation. Death may be the consequence of a
lawful act, done without any intention of hurt. Thus, if an officer,
in the correction of a soldier, happen to occasion his death, it is
only misadventure; the punishment being lawful. But if the correction
be unwarrantably severe, either in the manner, the instrument, or the
duration of punishment, and death ensue, the offender is at least
guilty of manslaughter, and in some circumstances, of murder. A Surgeon
therefore is usually present when soldiers are chastised with the lash
in pursuance of the sentence of a court-martial; and on his testimony
must depend the justification of the mode and degree of punishment
inflicted.—When medicines administered to a sick patient, with an honest
design, to produce the alleviation of his pain or cure of his disease,
occasion death, this is misadventure, in the view of the law; and the
Physician or Surgeon who directed them is not liable to punishment
criminally, though a civil action might formally lie for neglect or
ignorance. But it hath been holden that such immunity is confined to
_regular_ Physicians and Surgeons. Sir Matthew Hale, however, justly
questions the legality of this determination, since physic and salves
were in use before licensed Physicians and Surgeons. “Wherefore he treats
the doctrine as apocryphal, and fitted only to qualify and flatter
Licenciates and Doctors in Physic; though it may be of use to make
people cautious how they meddle too much in so dangerous an employment.”
The College of Physicians, however, within their jurisdiction, which
extends seven miles round London, are vested by charter with the power
of fine and imprisonment _pro mala praxi_[57]. Yet Dr. Groenevelt, who
was cited in the year 1693 before the Censors of the College[58], and
committed to Newgate by a warrant from the President for prescribing
cantharides in substance, was acquitted on the plea that bad practice
must be accompanied with a bad intention, to render it criminal. This
prosecution, whilst it ruined the doctor’s reputation and injured his
fortune, so that he is said to have died in want, excited general
attention to the remedy, and afterwards established the use of it; though
it must be acknowledged that his doses were too bold and hazardous. But,
whatever be the indulgence of the law towards Medical practitioners, they
are bound by a higher authority than that of the most solemn statute,
not to exercise the healing art without due knowledge, tenderness, and
discretion; and every rash experiment, every mistake originating from
gross inattention, or from that ignorance which necessarily results from
defective education, is, in the eye of conscience, a crime both against
GOD and man.
It must frequently devolve on the Faculty to decide concerning the nature
and effects of blows, strokes, or wounds inflicted, and how far the death
of the sufferer is to be ascribed to them, or to some antecedent or
subsequent disease. In homicide, also, _se defendendo_, the manner and
time of the defence are to be considered; for, if the person assaulted
fall upon the aggressor when the fray is over and he is running away,
this is revenge, and not defence; and, though no witness were present,
the situation of the wound or of the blow would afford, if in the back
of the assailant, presumptive evidence of felonious homicide.
§ 9. This crime, which in atrocity exceeds every other, is considered by
the law under the three heads of _suicide_, _manslaughter_, and _murder_,
concerning each of which the Faculty are occasionally obliged to give
professional evidence. A _felo de se_ is one who has deliberately put
an end to his existence, or committed any unlawful malicious act, the
immediate consequence of which proved death to himself. To constitute
this act a crime, the party must have been of years of discretion, and
in the possession of reason. A Physician, therefore, may be called
upon by the coroner to state his opinion of the mental capacity of the
defunct. And the law will not authorize the plea, that every melancholic
or hypochondriac fit deprives a man of the power of discerning right
from wrong. Even if a lunatic kill himself in a lucid interval, Sir
Matthew Hale affirms that he is a _felo de se_.—And the Physician who
has attended him is best qualified to judge of the degree, the duration,
or periodical seasons, of such returns of sanity. But there are cases
of temporary distraction, when death may be rushed upon apparently with
design, but really from the influence of terror, or the want of that
presence of mind which is necessary to the exercise of judgement and the
discrimination of actual from imaginary evil. Of this kind the reader
will find an affecting instance related by Dr. Hunter in the “Medical
Observations and Inquiries,” published by “a Society of Physicians in
London[59].”
§ 10. _Manslaughter_ is defined “the unlawful killing of another without
malice either express or implied; which may be either voluntarily, upon
a sudden heat; or involuntarily, but in the commission of some unlawful
act.” Yet, though this definition is delivered from Sir Matthew Hale, by
the excellent Commentator on the Laws of England so often quoted[60], it
is not sufficiently precise and comprehensive. For, when a person does an
act lawful in itself, but which proves fatal to a fellow-citizen, because
done without due circumspection, it may, according to circumstances, be
either misadventure, manslaughter, or murder. Thus, when a workman kills
any one by flinging down a stone or piece of timber into the street, if
the accident be in a country village, where there are few passengers, and
if he give warning by calling out to them, it is only _misadventure_;
but if it be in London, or any other populous town, where persons are
continually passing, it is _manslaughter_, though warning be loudly
given; and it is _murder_, if he know of their passing, and yet gives no
warning; for this is malice against all mankind[61].
On the like grounds we may reason concerning the cases of death
occasioned by drugs designed to produce abortion. This purpose is not
always unlawful; for the configuration of the pelvis in some females
is such as to render the birth of a full-grown child impossible, or
inevitably fatal. But even in such instances the guilt of manslaughter
may be incurred by ignorance of the drastic quality of the medicine
prescribed, or want of due caution in the dose administered; and, when
no moral or salutary end is in view, the simple act itself, if fatal in
the issue, falls under the denomination of murder[62]. “If a woman be
quick with child, and, by a potion or otherwise, killeth it in her womb,
this is a great misprision, yet no murder; but if the child be born
alive, and dieth of the potion or other cause, this is murder[63].” The
procuring of abortions was common amongst the Romans; and, it is said,
was liable to no penalty before the reigns of Severus and Antoninus.
Even those princes made it criminal only in the case of a married woman
practising it to defraud her husband of the comforts of children, from
motives of resentment; for, the foetus being regarded as a portion of
the womb of the mother, she was supposed to have an equal and full right
over both. This false opinion may have its influence in modern, as well
as in ancient, times; and false it must be deemed, since no female can
be privileged to injure her own bowels, much less the foetus, which is
now well known to constitute no part of them. To extinguish the first
spark of life is a crime of the same nature, both against our Maker and
society, as to destroy an infant, a child, or a man; these regular and
successive stages of existence being the ordinances of GOD, subject alone
to His Divine will, and appointed by Sovereign Wisdom and Goodness as the
exclusive means of preserving the race, and multiplying the enjoyments
of mankind. Hence the Father of Physic, in the Oath enjoined on his
pupils, (which some Universities now impose on the candidates for Medical
degrees,) obliged them solemnly to abjure the practice of administering
the πεσσὸς φθόριος[64]. But, in weighing the charge against any person
of having procured abortion, the methods employed should be attentively
considered by the Faculty; as this effect has often been ascribed to
causes inadequate to its production. Even the pessary, so sanctimoniously
forbidden by Hippocrates, has little of that activity and power which
superstition assigned to it.
§ 11. The law of England guards with assiduous care the lives of infants,
when endangered by motives which counteract, and too often overbalance,
the strong operation of maternal love. In cases of bastardy, therefore,
it is declared, by a statute passed in the reign of James the First,
that, “If any woman be delivered of any issue of her body, male or
female, which, being born alive, should by the laws of this realm be
a bastard, and she endeavour privately, either by drowning, or secret
burying thereof, or any other way, either by herself, or the procuring of
others, so to conceal the death thereof, as that it may not come to light
whether it was born alive or not, but be concealed, she shall suffer
death, as in case of murder, except she can prove, by one witness at
least, that the child was born dead[65].” This law, though humane in its
principle, is much too severe in its construction[66]. To give certainty
to punishment, by facilitating conviction, is doubtless an essential
object of jurisprudence; and it has been well observed, that the statute
which made the possession of the implements of coining a capital offence,
by constituting such possession complete evidence of guilt, has proved
the most effectual mean of enforcing the denunciation of law against
this dangerous and tempting crime[67]. But the analogy which the able
moralist has drawn between this ordinance and that relating to bastardy,
is not fully conclusive. For possession, in the former case, clearly
implies a specific purpose, for which the legislature with sufficient
wisdom and justice has provided a specific punishment. Whereas secrecy
in the mother, concerning the death of her illegitimate offspring,
hardly amounts to the lowest degree of presumptive evidence of felonious
homicide. Gentlemen of the Faculty have often melancholy experience of
the distraction and misery which females suffer under these unhappy
circumstances; and, when it becomes their painful office to deliver
evidence on such occasions, justice and humanity require that they should
scrutinize the whole truth, and
“nothing extenuate,
Nor set down aught in malice[68].”
“What is commonly understood to be the murder of a bastard child by the
mother,” says Dr. Hunter, “if the real circumstances were fully known,
would be allowed to be a very different crime in different circumstances.
In some (it is to be hoped _rare_,) instances, it is a crime of the very
deepest dye.... But, as well as I can judge, the greatest number of what
are called murders of bastard children, are of a very different kind.
The mother has an unconquerable sense of shame, and pants after the
preservation of character: so far she is virtuous and amiable. She has
not the resolution to meet and avow infamy. In proportion as she loses
the hope either of having been mistaken with regard to pregnancy, or of
being relieved from her terrors by a fortunate miscarriage, she every
day sees her danger greater and nearer, and her mind more overwhelmed
with terror and despair. In this situation many of these women, who are
afterwards accused of murder, would destroy themselves, if they did not
know that such an action would infallibly lead to an enquiry, which would
proclaim what they are so anxious to conceal. In this perplexity, and
meaning nothing less than the murder of the infant, they are meditating
different schemes for concealing the birth of the child; but are wavering
between difficulties on all sides, putting the evil hour off, and
trusting too much to chance and fortune. In that state often they are
overtaken sooner than they expected; their schemes are frustrated; their
distress of body and mind deprives them of all judgement and rational
conduct; they are delivered by themselves, wherever they happened to
retire in their fright and confusion; sometimes dying in the agonies of
child-birth, and sometimes being quite exhausted they faint away and
become insensible of what is passing, and, when they recover a little
strength, find that the child, whether still-born or not, is completely
lifeless. In such a case, is it to be expected, when it could answer
no purpose, that a woman should divulge the secret? Will not the best
dispositions of mind urge her to preserve her character? She will
therefore hide every appearance of what has happened as well as she
can; though, if the discovery be made, that conduct will be set down as
a proof of her guilt.... Here let us suppose a case, which every body
will allow to be very possible. An unmarried woman, becoming pregnant,
is striving to conceal her shame, and laying the best scheme that she
can devise for saving her own life and that of the child, and at the
same time concealing the secret; but her plan is at once disconcerted by
her being unexpectedly and suddenly taken ill by herself, and delivered
of a dead child. If the law punishes such a woman with death for not
publishing her shame, does it not require more from human nature, than
weak human nature can bear? In a case so circumstanced, surely the only
crime is the having been pregnant, which the law does not mean to punish
with death; and the attempt to conceal it by fair means should not be
punishable by death, as that attempt seems to arise from a principle of
virtuous shame[69].”
The observations here quoted have a just claim to attention from the
extensive experience which the author possessed, and still more from
his intimate knowledge of the female character. Yet to the moral and
political philosopher, Dr. Hunter may appear to have exalted the
sense of shame into the principle of virtue; and to have mistaken the
great end of penal law, which is not vengeance, but the prevention of
crimes. The statute, indeed, which makes the concealment of the birth
of a bastard child full proof of murder, confounds all distinctions of
innocence and guilt; as such concealment, whenever practicable, would
be the wish and act of all mothers, amiable or vicious, under the same
unhappy predicament. Law, however, which is the guardian and bulwark
of the public weal, must maintain a steady, and even rigid, watch,
over the general tendencies of human actions: and, when these are not
only clearly understood, but interpreted according to the rules of
wisdom and rectitude, that may justly be constituted a civil crime,
which, if permitted, might give occasion to atrocious guilt, though in
its own nature innocent. The measure of punishment, however, should be
proportionate, as nearly as possible, to the temptation to offend, and
to the kind and degree of evil produced by the offence. If inadequate
to the former, it will be nugatory; and if too severe for the latter,
it will defeat itself, by furnishing a just plea for superseding its
execution[70]. A revision of our sanguinary statutes is much wanted[71];
and it would be happy if means could be devised of suppressing the
punishment, by obviating the crime, when it is merely positive or
municipal. This we have seen accomplished with respect to the coinage of
money, by the simple introduction of a standard weight in the payment
of gold. And a sagacious legislator might doubtless discover and adopt
similar improvements in other branches of penal jurisprudence.
Much observation is required to discriminate between a child still-born,
and one that has lived after birth only a short space of time. Various
appearances, also, both internal and external, may be mistaken for
marks of violent death. Even the swimming of the lungs in water, a
test on which so much reliance is placed, will, on many occasions, be
found fallacious. But these are points of professional science, which
do not strictly fall under the subject of this section; and the reader
is particularly referred to the paper already quoted, and also to J.
F. Faselii “Elementa Medicinae Forensis [Regim. 4to. 1787.];” or to a
valuable epitome of the same work in English by Dr. Farr[72].
§ 12. Duelling is another species of felony, even though the consequences
of it should not prove fatal: and gentlemen of the Faculty are peculiarly
interested in the knowledge of the laws relating to it; because they are
not only liable to be summoned on the trial of the parties, if either or
both of them be wounded, but are frequently professional attendants on
them in the field of combat[73]. It is astonishing that a practice which
originated in ages of Gothic ignorance, superstition, and barbarism,
should be continued in the present enlightened period, though condemned
by the ordinances of every state, and repugnant to the spirit and
precepts of Christianity. Sir Francis Bacon, when Attorney-General,
in the reign of James I., delivered a Charge before the Court of
Star-Chamber touching duels, which gives a clear and animated view of the
light in which they were then regarded. “The first motive,” he says, “is
a false and erroneous imagination of honour and credit; and therefore
the King, in his last proclamation, doth most aptly and excellently
call them _bewitching duels_. For, if one judge of it truly, it is no
better than a sorcery, that enchanteth the spirits of young men that bear
great minds with a false shew, _species falsa_; and a kind of satanical
illusion and apparition of honour against religion, against law, and
against moral virtue.... Hereunto may be added, that men have almost lost
the true notion and understanding of fortitude and valour. For fortitude
distinguisheth of the grounds of quarrels whether they be just; and not
only so, but whether they be worthy; and setteth a better price upon
men’s lives than to bestow them idly. Nay, it is weakness and disesteem
of a man’s self, to put a man’s life upon such liedger[74] performances;
a man’s life is not to be trifled away; it is to be offered up and
sacrificed to honourable services, public merits, good causes, and noble
adventures. It is in expense of blood as it is in expense of money; it
is no liberality to make a profusion of money upon every vain occasion;
nor no more it is fortitude to make effusion of blood, except the cause
be of worth[75].”
The decree of the Star-Chamber against Priest and Wright, the objects of
Sir Francis Bacon’s Charge, was, that they should both be committed to
prison; that the former should be fined £500, and the latter 500 marks;
and that at the next assizes they should publicly acknowledge their high
contempt of, and offence against, GOD, the King’s majesty, and his laws,
shewing themselves penitent for the same.—Though this judgement appears
to have been founded in wisdom and equity, yet, happily for our country,
the court which passed the sentence has been long suppressed; and we
are now governed, not by arbitrary will, but by known and fixed laws.
Those which subsist against duelling, I shall quote on the authorities
of Foster, Blackstone, Hawkins and Burn. “Deliberate duelling, if death
ensueth, is in the eye of the law murder; for duels are generally
founded in deep revenge; and, though a person should be drawn into a
duel, not upon a motive so criminal, but merely upon the punctilio of
what the _swordsmen falsely call honour_, that will not excuse; for he
that deliberately seeketh the blood of another upon a private quarrel,
acteth in defiance of all laws human and divine, whatever his motive may
be[76].” “Express malice is when one, with a sedate deliberate mind and
formed design, doth kill another.... This takes in the case of deliberate
duelling, where both parties meet avowedly with an intent to murder;
thinking it their duty as gentlemen, and claiming it as their right, to
wanton with their own lives and those of their fellow-creatures, without
any warrant or authority from any power either divine or human, but in
direct contradiction to the laws both of GOD and man. And therefore the
law has justly fixed the crime and punishment of murder on them and on
their seconds also[77].” “The law so far abhors all duelling in cold
blood, that not only the principal who actually kills the other, but
also his seconds, are guilty of murder, whether they fought or not: and
it is holden, that the seconds of the party slain are likewise guilty
as accessaries[78].”—From variations in the moral and intellectual
character of man, it is impossible to ascertain the precise period when
the passions may be supposed to become cool, after having been violently
agitated. Judgement, therefore, must be founded on the circumstances of
deliberation which are delivered in the course of evidence. In many cases
it has been determined that death, in consequence of an appointment and
meeting a few hours subsequent to the provocation, is murder[79].
§ 13. Before a Surgeon engage professionally to attend a duellist to the
field of combat, it behoves him to consider well, not only how far he is
about to countenance a deliberate violation of the duties of morality and
religion; but whether, in the construction of law, he may not be deemed
an aider and abettor of a crime which involves in it such turpitude that
death is alike denounced against the principal and the accessary. Does
he not voluntarily put himself into a predicament, similar, in many
essential points, to that of the second, who is expressly condemned by
the legislature of this country? Both are apprized of the purpose to
commit an act of felony; both take an interest in the circumstances
attendant upon it; and both are present during the execution, the one to
regulate its antecedents, the other to alleviate its consequences. But I
suggest these considerations with much diffidence: and, though I observe
some passages in Sir Michael Foster’s “Discourse concerning Accomplices,”
which seem to confirm them, yet it may be proper to quote the following,
apparently adverse, opinion of this excellent judge. “In order to render
a person an accomplice and a principal in felony, he must be aiding and
abetting at the fact, or ready to afford assistance, if necessary: and
therefore if _A._ happeneth to be present at a murder, for instance, and
taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth
the murderer, nor levieth hue and cry after him; this strange behaviour
of his, though highly criminal, will not of itself render him either
principal or accessary[80].”
But, whatever be the objections against the attendance of a Surgeon in
the field of combat, they cannot be construed to extend to the affording
of all possible assistance to any unfortunate sufferer in an affair of
honour; provided such assistance be not preconcerted, but required as
in ordinary accidents or emergencies. For in the offices of the healing
art no discrimination can be made either of occasions or of characters;
and it must be acknowledged, that many of the victims of duelling have
been men, from their talents and virtues, possessing the justest claim
to assiduous and tender attention. That lives of such inestimable value
to their friends, to their families, and to the public, should be at
the mercy of any profligate rake who wantonly gives affronts or idly
fancies he receives them, is a great aggravation of the folly, as well as
of the guilt, of duelling. This reflection seems to shew the propriety
of a change in the penal code respecting it; and that the punishment
inflicted should be confined to the aggressor; strict inquisition into
the circumstances of the case being previously made by the coroner, or
some magistrate authorized and bound to exercise this important trust.
And _he_ may with reason be regarded as the aggressor, who either
violates the rules of decorum by any unprovoked rudeness or insult,
or who converts into an offence what was intended only as convivial
pleasantry[81].
§ 14. A Physician has no special interest in an acquaintance with
the statutes relative to duelling; but, as he possesses the rank of
a gentleman, both by his liberal education and profession, the law
of honour (if that may be termed a _law_, which is indefinite and
arbitrary,) has a claim to his serious study and attention. As a
philosopher also it becomes him to trace its origin, and to investigate
the principles on which it is founded; and as a moralist duty calls
upon him to counteract its baneful influence and ascendancy: for in
principle it is distinct from virtue; and as a practical rule it extends
only to certain formalities and decorums, of little importance in the
transactions of life, and which are spontaneously observed by those who
are actuated with the true sense of propriety and rectitude. Genuine
honour in its full extent may be defined, a quick perception and strong
feeling of moral obligation, in conjunction with an acute sensibility to
shame, reproach, or infamy. In different characters these constituent
parts of the principle are found to exist in proportions so diversified,
as sometimes to appear almost single and detached. The former always
“aids and strengthens virtue:” the latter may occasionally “imitate
her actions[82],” when fashion happily countenances, or high example
prompts to, rectitude; but, being connected for the most part with a
jealous pride and capricious irritability, it will be more shocked with
the imputation, than with the commission, of what is wrong; and thus it
will constitute that spurious honour, which, by a perversion of the laws
of association, “puts evil for good and good for evil,” and, under the
sanction of a name, perpetrates crimes without remorse and even without
ignominy[83].
§ 15. Homicide by poison is another very important object of medical
jurisprudence. When it is the effect of inadvertency, or the want of
adequate caution in the use of substances dangerous to health and life,
the law regards it as a _misdemeanour_; when it is the consequence
of rashness, of wanton experiment, or of motives unjust though not
malicious[84], it becomes _manslaughter_; and when the express purpose
is to kill by means of some deleterious drug, it constitutes a most
atrocious species of _murder_. In cases of this nature the Faculty are
called upon to give evidence concerning the nature of the poison, the
symptoms produced by it, and the actual fatality of its operation. I
know not whether the period of this fatal operation be extended, as in
the infliction of blows and wounds, to a year and a day; but, if it be,
the most nice and accurate investigation of the progressive advances
of disease and death will be incumbent on the Physician or Surgeon
who is consulted on the occasion. No subject has given rise to more
misconception and superstition than the action of poisons. Numberless
substances have been classed as such, which, if not inert, are at least
innoxious; and powers have been ascribed to others, far exceeding their
real energy. Even Lord Verulam, the great luminary of science, in his
Charge against the Earl of Somerset for the murder of Sir Thomas Overbury
in the tower of London, seems to give credit to the story of Livia, who
is said to have poisoned the figs upon the tree, which her husband was
wont to gather with his own hands; and he seriously states, that Weston
chased the poor prisoner “with poison after poison; poison in salts,
poison in meats, poison in sweet-meats, poison in medicines and vomits,
until at last his body was almost come, by use of poisons, to the state
that Mithridates’s[85] body was by the use of treacle and preservatives,
that the force of the poisons was blunted upon him: Weston confessing,
when he was chid for not dispatching him, that he had given him enough to
poison twenty men[86].” In this criminal transaction the truth probably
was (what has been judiciously suggested by Rapin,) that the lieutenant
of the Tower, refusing to be concerned in the crime, yet not daring to
discover it from the fear of the Viscount Rochester’s resentment, seized
the victuals sent from time to time for the prisoner, and threw them
into the house of office. Sir Thomas Overbury, however, fell a victim at
last to an empoisoned glyster.
When the particular drug, or other mean employed, can be accurately
ascertained, its deleterious qualities should be fully investigated; and
these should be cautiously compared with the effects ascribed to it in
the case under consideration. It may often be expedient also to examine
the body of the sufferer by dissection; and this should be accomplished
as expeditiously as possible, that the changes imputed to death may
not be confounded with those which are imputed to poison. But on such
points reference can alone be made to the knowledge and experience of
the practitioner, and to the lights which he may acquire by consulting
Faselius and other works of a similar nature. I shall, therefore, close
this article with a few passages of the charge of Mr. Justice Buller to
the grand jury, relative to the trial of Captain Donellan, for the murder
of Sir Theodosius Boughton, at the Warwick assizes, in March 1781. “In
this case, gentlemen,” he says, “you will have two objects to consider,
first, whether the deceased did die of _poison_? secondly, whether the
person suspected did assist in _administering_ the poison? With respect
to the first of these considerations, you will, no doubt, hear the
sentiments of those who are skilled in the nature and effects of poison,
which is of various sorts, and most subtile in its operation. From the
information of such persons you will be able to form an opinion upon
the effects which different poisons have on different persons; and also
of the effects the same poisons have on persons of different habits and
constitutions.... If you find he did get his death by poison, the next
case is, to consider who gave him that poison. Where poison is knowingly
given, and death ensues, it is wilful murder; and if one is present when
poison is given by another, he is not an accessary but a principal[87].”
§ 16. In all civilized countries the honour and chastity of the female
sex are guarded from violence by the severest sanctions of law: and this
protection is at once humane, just, and necessary to social morality.
It is consonant to humanity that weakness should be secured against
the attacks of brutal strength; it is just that the most sacred of all
personal property should be preserved from invasion; and it is essential
to morality that licentious passion should be restrained, that modesty
should not be wounded, nor the mind contaminated, in some instances,
before it is capable of forming adequate conceptions of right and
wrong. The crime of rape, therefore, subjects the perpetrator to condign
punishment by every code of jurisprudence, ancient or modern[88]. Amongst
the Jews death was inflicted, if the damsel was betrothed to another
man; and, if not betrothed, a fine amounting to fifty shekels of silver
was to be paid to her father by him who had “laid hold of the virgin,”
and she was to become his wife; and, “because he had humbled her, he
might not put her away all his days[89]:”—for the privilege of divorce
was authorized by the Jewish institutions. The Romans made this offence
capital, superadding the confiscation of goods. Even the carrying off a
woman from her parents or guardians, and cohabiting with her, whether
accomplished by force or with her full consent, were made equally penal
with a rape, by an imperial edict. For the Roman law seems to have
supposed, that women never deviate from virtue without being seduced
by the arts of the other sex; and, therefore, by imposing a powerful
restraint on the solicitations of men, they aimed at a more effectual
security of the chastity of women. “Nisi etenim eam solicitaverit,
nisi odiosis artibus circumvenerit, non faciet eam velle in tantum
dedecus sese prodere.” But the English law, as Judge Blackstone has
observed[90], does not entertain such sublime ideas of the honour of
either sex, as to lay the blame of a mutual fault on one only of the
transgressors; and it is therefore essential to the crime of rape, that
the woman’s will is violated by the execution. But, by a statute of Queen
Elizabeth, if the crime be perpetrated on a female child under the age of
ten years, the consent or non-consent is immaterial, as she is supposed
to be of insufficient judgement. Sir Matthew Hale is even of opinion,
that such profligacy committed on an infant under _twelve_ years, (the
age of female discretion by common law,) either with or without consent,
amounts to a rape and felony[91]. But the decisions of the courts have
generally been founded on the statute abovementioned.
A male infant under the age of fourteen years is deemed by the law
incapable of committing, and therefore cannot be found guilty of, a rape,
from a presumed imbecility both of body and mind. This detestable crime
being executed in secrecy, and the knowledge of it being confined to the
party injured, it is just that her single testimony should be adducible
in proof of the fact. Yet the excellent observation of Sir Matthew Hale
merits peculiar attention: “It is an accusation,” says he[92], “easily
to be made, and hard to be proved; and harder to be defended by the party
accused, though never so innocent.” He then relates two extraordinary
cases of malicious prosecution for this crime, which had fallen under
his own cognizance; and concludes, “I only mention these instances,
that we may be the more cautious upon trials of offences of this
nature, wherein the court and jury may, with so much ease, be imposed
upon, without great care and vigilance; the heinousness of the offence
many times transporting the judge and jury with so much indignation,
that they are over-hastily carried to the conviction of the person
accused thereof, by the confident testimony sometimes of malicious and
false witnesses.” Collateral and concurrent circumstances of time and
place[93], appearances of violence on examination, &c., are, therefore,
necessary to be added to the mere affirmative evidence of the prosecutor;
and the inspection of a Surgeon is often required, to ascertain the
reality of the alleged violence. On such occasions his testimony should
be given with all possible delicacy, as well as with the utmost caution.
Even external signs of injury may originate from disease, of which the
following examples, which have occurred in Manchester, are adduced on
very respectable authorities.
A girl about four years of age was admitted into the Manchester Infirmary
on account of a mortification in the female organs, attended with great
soreness, and general depression of strength. She had been in bed with a
boy fourteen years old, and there was reason to suspect that he had taken
criminal liberties with her. The mortification increased, and the child
died. The boy, therefore, was apprehended, and tried at the Lancaster
assizes; but was acquitted on sufficient evidence that several instances
of a similar disease had appeared, near the same period of time, in
which there was no possibility of injury or guilt. In one of these cases
the body was opened after death. The disorder had been a typhus fever,
accompanied with a mortification of the pudenda. There was no evident
cause of this extraordinary symptom discoverable on inspection. The
lumbar glands were of a dark colour; but all the viscera were sound.
§ 17. Concerning nuisances, the investigation and testimony of the
Faculty may be required, whenever they are of a nature offensive by the
vapours which they emit, and injurious to the health of individuals
or of the community. The law defines any thing that worketh hurt,
inconvenience, or damage, to be a nuisance[94]. Thus, if a person
keep hogs or other noisome animals so near the house of another that
the stench incommodes him and renders the air unwholesome, this is a
nuisance, because it deprives him of the enjoyments and benefits of his
habitation. A smelting house for lead, the smoke of which kills the grass
and corn, and injures the cattle of a neighbouring proprietor of land,
is deemed a nuisance. Dye-houses, tanning-yards, &c., are nuisances,
if erected so near a water-course as to corrupt the stream. But a
chandler’s factory, even when situated in a crowded town, is said to be
privileged from action or indictment, because candles are regarded as
necessaries of life. Hawkins, however, questions the authority of this
opinion, since the making of candles may be carried on in the country
without annoyance[95]. But this is scarcely practicable in a populous
neighbourhood; and, as Lord Mansfield has adjudged, that, in such cases,
what makes the enjoyment of being and property uncomfortable, is, in the
view of the law[96], a nuisance, various works and trades, essential
to the happiness and interest of the community, may fall under this
construction. But chemistry, mechanics, and other arts and sciences,
furnish methods of diminishing or obviating almost every species of
noisome vapour; and there can be no doubt that vitriol works, aqua-fortis
works, marine acid-bleaching works, the singeing of velvets, &c., may be
carried on with very little inconvenience to a neighbourhood, by means
neither difficult nor expensive. The same observation may be applied to
the business of the dyer, the fell-monger, the tanner, the butcher, and
the chandler; and, as these with many other disgustful trades are in some
degree necessary in large towns, justice and policy require that they
should only be prosecuted as nuisances, when not conducted in the least
offensive mode possible. To guard against arbitrary powers in municipal
government, and to render the decision and investigation of such points
perfectly consistent with the liberty of the subject, the reference
should be made to a jury; or at least, any individual should be allowed
an appeal to one, if he think himself aggrieved.
The frequency of fires in large manufacturing towns makes it expedient
that magistrates or commissioners should be authorized to scrutinize
rigidly into the causes of them when they occur, to punish neglect or
carelessness, as well as malicious intention, and to enforce suitable
measures of prevention. The plans proposed for this last very important
purpose by Mr. Hartley and Lord Stanhope have been proved to be
effectual, and are not expensive[97]. The adoption of them, therefore,
or of other means which may hereafter be discovered, should be required,
under a heavy penalty, in cases deemed by insurers _doubly hazardous_.
§ 18. It is a complaint made by coroners, magistrates, and judges, that
Medical gentlemen are often reluctant in the performance of the offices
required from them as citizens qualified by professional knowledge to aid
the execution of public justice. These offices, it must be confessed, are
generally painful, always inconvenient, and occasion an interruption to
business, of a nature not to be easily appreciated or compensated; but,
as they admit of no substitution, they are to be regarded as appropriate
debts to the community, which neither equity nor patriotism will allow to
be cancelled[98].
When a Physician or Surgeon is called to give evidence, he should avoid,
as much as possible, all obscure and technical terms, and the unnecessary
display of Medical erudition. He should deliver, also, what he advances,
in the purest and most delicate language consistent with the nature of
the subject in question.—When two or more gentlemen of the Faculty are
to offer their opinions or testimony, it would sometimes tend to obviate
contrariety, if they were to confer freely with each other, before
their public examination. Intelligent and honest men, fully acquainted
with their respective means of information, are much less likely to
differ, than when no communication has previously taken place. Several
years ago a trial of considerable consequence occurred relative to a
large copper work; and two Physicians of eminence were summoned to the
assizes, to bear testimony concerning the salubrity or insalubrity of the
smoke issuing from the furnaces. The evidence they offered was entirely
contradictory. One grounded his testimony on the general presumption
that the ores of copper contain arsenic; and consequently that the
effluvia proceeding from the roasting of them, must be poisonous because
arsenical. The other had made actual experiments on the ore employed
in the works under prosecution, and on the vapours which it yielded:
he was thus furnished with full proof that no arsenic was discoverable
in either. But the affirmative prevailed over the negative testimony,
from the authority of the Physician who delivered it; an authority
which he probably would not have misapplied, if he had been antecedently
acquainted with the decisive trials made by his opponent.
§ 19. It is the injunction of the law, sanctioned by the solemnity of
an oath, that in judicial testimony “the truth, the whole truth, and
nothing but the truth” shall be delivered. A witness, therefore, is
under a sacred obligation to use his best endeavours that his mind be
clear and collected, unawed by fear, and uninfluenced by favour or
enmity. But in criminal prosecutions, which affect the life of the person
accused, scruples will be apt to arise in one, who, by the advantages
of a liberal education, has been accustomed to serious reflection, yet
has paid no particular attention to the principles of political ethics.
It is incumbent, therefore, on gentlemen of the Faculty to settle their
opinions concerning the right of the civil magistrate to inflict capital
punishment, the moral and social ends of such punishment, the limits
prescribed to the exercise of the right, and the duty of a citizen to
give full efficiency to the laws.
The magistrate’s _right_ to inflict punishment, and the _ends_ of
such punishment, though intimately connected, are in their nature
distinct. The _right_ is clearly a substitution or transfer of that
which belongs to every individual by the law of nature, viz. instant
self-defence, and security from future violence or wrong. The _ends_
are more comprehensive, extending not only to complete security against
offence, but to the correction and improvement of the offender himself,
and to counteract in others the disposition to offend. Penal laws are
to be regulated by this standard; and the lenity or severity with which
they are executed, should, if possible, be exactly proportionate to it.
In different circumstances, either personal or public considerations
may preponderate; and in cases of great moral atrocity, or when the
common weal is essentially injured, all regard to the reformation of a
criminal is superseded, and his life is justly forfeited to the good of
society. In the participation of the benefits of the social union, he has
virtually acceded to its conditions; and the violation of its fundamental
articles renders him a rebel and an enemy, to be expelled or destroyed,
both for the sake of security, and as an awful warning to others. When
capital punishments are viewed in this light, the most humane and
scrupulous witness may consider himself as sacrificing private emotions
to public justice and social order; and that he is performing an act at
once beneficial to his country and to mankind. For political and moral
economy can subsist in no community, without the steady execution of wise
and salutary laws; and every atrocious act, perpetrated with impunity,
operates as a terror to the innocent, a snare to the unwary, and an
incentive to the flagitious. The criminal, also, who evades the sentence
of justice, like one infected with the pestilence, contaminates all whom
he approaches. He, therefore, who, from false tenderness or misguided
conscience, has prevented conviction by withholding the necessary
proofs[99], is an accessary to all the evils which ensue. The maxim, that
“it is better ten villains should be discharged than a single person
suffer by a wrong adjudication,” is one of those partial truths which are
generally misapplied, because not accurately understood. It is certainly
eligible that the rules and the forms of law should be so precise and
immutable, as not to involve the innocent in any decision obtained by
corruption, or dictated by passion and prejudice; though this should
sometimes furnish an outlet for the escape of actual offenders. The plea,
also, may have some validity in crimes of a nature chiefly political,
(with which, however, the Faculty can professionally have no concern,)
such as coining and forgery, or in cases wherein the punishment much
exceeds the evil or turpitude of the offence. For Lord Bacon has well
observed, that “over-great penalties, besides their acerbity, deaden the
execution of the law[100];” and, when they are discovered to be unjustly
inflicted, its authority is impaired, its sanctity dishonoured, and
veneration gives place to disgust and abhorrence.
But the dread of innocent blood being brought upon us by explicit and
honest testimony, is one of those superstitions, which the nurse has
taught, and which a liberal education ought to purge from the mind: and
if, in the performance of our duty, innocence should unfortunately be
involved in the punishment of guilt, we shall assuredly stand acquitted
before GOD and our own consciences. The convict himself, lamentable as
his fate must be regarded, may derive consolation from the reflection,
that, though his sentence be unjust, “he falls for his country, whilst
he suffers under the operation of those rules, by the general effect
and tendency of which the welfare of the community is maintained and
upholden[101].”
§ 20. When professional testimony is required in cases of such peculiar
malignity as to excite general horror and indignation, a virtuous mind,
even though scrupulous and timid, is liable to be influenced by too
violent impressions, and to transfer to the accused that dread and
aversion, which, before conviction, should be confined to the crime,
and as much as possible withheld from the supposed offender. If the
charge, for instance, be that of parricide, accomplished by poison,
and accompanied with deliberate malice, ingratitude, and cruelty; the
investigation should be made with calm and unbiassed precision, and
the testimony delivered with no colouring of passion, nor with any
deviation from the simplicity of truth. When circumstantial proofs are
adduced, they should be arranged in the most lucid order, that they may
be contrasted and compared in all their various relations with facility
and accuracy; and that their weight may be separately and collectively
determined in the balance of justice. For in such evidence there
subsists a regular gradation from the slightest presumption to complete
moral certainty; and, if the witness possess sufficient information in
this branch of philosophical and juridical science, he will always be
competent to secure himself, and, on many occasions, the court also, from
fallacy and error. The Marquis de Beccaria has laid down the following
excellent theorem concerning judicial evidence:—“When the proofs of a
crime are dependent on each other, (that is, when the evidence of each
witness, taken separately, proves nothing,) or when all the proofs are
dependent upon one, the number of proofs neither increases nor diminishes
the probability of the fact; for the force of the whole is no greater
than the force of that on which they depend; and, if this fails, they all
fall to the ground. When the proofs are independent of each other, the
probability of the fact increases in proportion to the number of proofs;
for the falsehood of one does not diminish the veracity of another....
The proofs of a crime may be divided into two classes, perfect and
imperfect. I call those _perfect_, which exclude the possibility of
innocence; _imperfect_, those which do not exclude this possibility. Of
the first, one only is sufficient for condemnation; of the second, as
many are required as form a perfect proof; that is to say, that, though
each of these, separately taken, does not exclude the possibility of
innocence, it is nevertheless excluded by their union[102].”
FOOTNOTES:
[38] [In this chapter there are numerous statements on different points
of law, which after the lapse of nearly half a century are no longer
accurate: these, where material, the Editor has endeavoured to correct,
chiefly by the assistance of Edward Herford Esq., Coroner of Manchester.]
[39] [See Willcock’s _Laws relating to the Medical Profession_.]
[40] Introd. § 1. vol. i. p. 13.
[41] [See Notes and Illustrations, No. X.]
[42] [This is no longer the case; as, by 3 & 4 Will. IV. c. 104, freehold
and copyhold estates in all cases are made assets for the payment of
simple contract as well as specialty debts.]
[43] _Moral and Political Philosophy_, bk. iii. pt. i. ch. 23.
[44] “In the construction of the statute 29 Car. II. c. 3. it has been
adjudged that the testator’s name, written with his own hand, at the
beginning of the will, as, ‘I, John Mills, do make this my last will and
testament,’ is a sufficient signing, without any name at the bottom;
though the other is the safer way.” See Blackstone’s _Comment._, bk. ii.
ch. 23. vol. ii. p. 376. [This is no longer law.]
[45] [Nuncupative wills are now abolished, except in the case of sailors
and soldiers in actual service.]
[46] See Blackstone’s _Comment._, bk. ii. ch. 32. vol. ii. p. 501.
[47] [_Midsummer Night’s Dream_, act v. sc. 1.]
[48] See the Author’s _Moral and Literary Dissertations_, p. 127 (or
_Works_, vol. ii. p. 82); also Notes and Illustrations, No. XI.
[49] Blackstone’s _Comment._, bk. i. ch. 8. vol. i. p. 304.
[50] Hawkins, _Pleas of the Crown_, bk. i. ch. 60. § 23; Burn’s
_Justice_, vol. iii. p. 1288. (ed. 1845.)
[51] Ch. ii. § 30.
[52] [If Dr. Percival could say this in 1793, much more may _we_
thankfully repeat the statement in 1849.]
[53] [See Notes and Illustrations, No. XII.]
[54] See _Statutes at Large_, vol. viii. 14 Geo. III. c. 49. § 31; [also
9 Geo. IV. c. 40; 3 & 4 Will. IV. c. 36 & 64; 1 & 2 Vict. c. 14 & 64; 3 &
4 Vict. c. 54; 5 & 6 Vict. c. 87, and 7 & 8 Vict. c. 101. s. 27.]
[55] _Treatises of Government_, bk. ii. ch. 3. (_Works_, vol. iv. p. 347.)
[56] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 181. [This
test, however, by the relaxation of the criminal law with respect to
rape, burglary, and some other crimes, is no longer applicable.]
[57] [See Willcock’s _Laws relating to the Medical Profession_, p. 91.]
[58] [See Groenevelt’s _Tutus Cantharidum in Medicina Usus Internus_,
præf.]
[59] Vol. vi. p. 279.
[60] [Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 190.]
[61] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 191.
[62] See Burn’s _Justice_, vol. iii. p. 810. [By 7 Will. IV. and 1 Vict.
c. 85. the unlawfully administering any poison or other noxious thing,
or using any instrument or other means to procure miscarriage, is made
felony, punishable with transportation for life.]
[63] _Ibid._, vol. i. p. 10. (ed. 1845.)
[64] [Οὐδὲ γυναικὶ πεσσὸν φθόριον δώσω. Hippocr. _Jusjur._, tom. i. p. 2.
ed. Kühn.]
[65] Burn’s _Justice_, vol. i. p. 613. (ed. 1845.)
[66] [It has long been repealed; and the endeavour to conceal the birth
of a child is now a misdemeanour punishable with imprisonment.]
[67] See Paley’s _Moral and Political Philosophy_, bk. vi. ch. 9.
[68] [Shakespear’s _Othello_, act v. sc. 2.]
[69] _Medical Observations and Inquiries_, vol. vi. pp. 271, 286.
[70] “L’atrocité des lois en empêche l’exécution.—Lorsque la peine
est sans mesure, on est souvent obligé de lui préférer l’impunité.”
(Montesquieu.)
[71] [This has taken place, and the punishment of death is now inflicted
in comparatively few cases.]
[72] “Elements of Medical Jurisprudence, &c. &c. by Samuel Farr, M.D.”
3rd. ed. 12mo. Lond. 1815. [Or the more modern works of Beck, Christison,
Taylor, &c.]
[73] [See Notes and Illustrations, No. XIII.]
[74] Liedger, i. e. _slight_, _trifling_, from the French _leger_.
[75] Bacon’s _Works_, vol. iv. p. 401.
[76] Sir Michael Foster’s _Discourse of Homicide_, ch. 5. § 5. (in his
_Crown Law_, 8vo. p. 297.)
[77] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 198.
[78] Hawkins, _Pleas of the Crown_, bk. i ch. 31. § 31; and Burn’s
_Justice_, vol. iii. p. 812. ed. 1845.
[79] See Legg’s case, in Kelyng’s _Reports_, p. 27; Eden’s _Principles of
Penal Law_, chap. 20. p. 224.
[80] Foster’s _Crown Law_, 8vo. p. 350.
[81] See Notes and Illustrations, No. XIV.
[82] Addison’s _Cato_, act ii. sc. 5.
[83] See the Author’s _Moral and Literary Dissertations_, p. 295. (or
_Works_, vol. ii. p. 203.)
[84] “If an action unlawful itself be done deliberately, and with
intention of mischief or great bodily harm to particulars, or of mischief
indiscriminately, fall it where it may, and death ensue against or beside
the original intention of the party, it will be murder. But if such
mischievous intention doth not appear, (which is matter of fact and to
be collected from circumstances,) and the act was done heedlessly and
incautiously, it will be manslaughter, not accidental death, because the
act upon which death ensued was unlawful.” (Foster’s _Crown Law_, p. 261.)
[85] [See Galen, _De Antid._ i. 1; _De Ther. ad Pis._ c. 16. tom. xiv.
pp. 3, 283.]
[86] Bacon’s _Works_, vol. iv. p. 481.
[87] _Hist. Sketches of Civil Liberty_, p. 209.
[88] See Notes and Illustrations, No. XV.
[89] Deut. xxii. 25, 28, 29.
[90] [_Comment._, bk. iv. ch. 15. vol. iv. p. 210.]
[91] [It is now created a misdemeanour by statute.]
[92] [_Hist. Placit. Coronae_, Pt. i. ch. 58. vol. i. p. 635.]
[93] These circumstances are particularly adverted to in the Mosaic Law.
See Deut. xxii. 25-27.
[94] See Blackstone’s _Comment._, bk. iii. ch. 13. vol. iii. p. 216 &c.;
and bk. iv. ch. 13. vol. iv. p. 161 (?)
[95] Hawkins, _Pleas of the Crown_, bk. i. ch. 75. § 10; Burn’s
_Justice_, vol. iii. p. 233 ed. 1845.
[96] Burrow’s _Reports_, p. 333; Burn, _ibid._
[97] [Mr. Hartley’s plan the Editor has not been able to find; that of
Lord Mahon (afterwards Earl Stanhope,) is contained in the _Philos.
Trans._ for 1778, p. 884. The titles of more recent works on the same
subject may be seen in Watt’s _Bibl. Brit._]
[98] [See Notes and Illustrations, No. XVI.]
[99] “The oath administered to the witness is, not only that what
he deposes shall be true, but that he shall also depose the _whole_
truth; so that he is not to conceal any part of what he knows, whether
interrogated particularly to that point or not.” Blackstone’s _Comment._,
bk. iii. ch. 23. vol. iii. p. 372.
[100] See _Proposal for Amending the Laws of England_. (_Works_, vol. iv.
p. 367.)
[101] Paley’s _Moral and Political Philosophy_, bk. vi. ch. 9.
[102] _Essay on Crimes and Punishments_, chap. 14.
NOTES AND ILLUSTRATIONS.
NOTE I. Chap. i. § 31. p. 45.
_Caution or temerity in practice._
It is the observation of an elegant writer on the subject of morals, and
applicable to Medical practice, that “The best character is that which
is not swayed by temper of any kind; but alternately employs enterprise
and caution, as each is useful to the particular purpose intended. Such
is the excellence which St. Evremond ascribes to Mareschal Turenne,
who displayed every campaign, as he grew older, more temerity in his
military enterprises; and being now, from long experience, perfectly
acquainted with every incident in war, he advanced with greater firmness
and security, in a road so well known to him[103].” Yet it is said of
the great Duke of Marlborough, that ten years of such uninterrupted and
splendid success as no other general could boast of, never betrayed him
into a single rash action[104].
That boldness in Medical practice is more frequently the antecedent than
the consequence of experience, is a melancholy truth; for it is generally
founded either on theoretical dogmas, or on pride which disclaims
authority. To the consideration of Physicians who are thus prematurely
confident in their own powers, the remark of Lord Verulam[105] may be
recommended: “This is well to be weighed, that boldness is ever blind;
for it seeth not dangers and inconveniences: therefore it is ill in
counsel, good in execution: so that the right use of bold persons is,
that they never command in chief, but he seconds, and under the direction
of others. For in counsel it is good to see dangers, and in execution not
to see them, except they be very great.”
NOTE II. Chap. ii. § 2. p. 48.
_Temperance of Physicians._
“Though much has been said, and with some truth, of the good effects
of wine in producing rapidity and vivacity of thought, it has scarce
ever been pretended that it favoured the exercise of discrimination
and judgement. The only persons in whom it has ever been supposed not
to have the very opposite effects, are some gentlemen of the Faculty.
The ignorant vulgar would think _a priori_, that, _caeteris paribus_,
a Physician who was sober, would attend more accurately to the case of
his patient, and compare and distinguish all circumstances better, and
judge more soundly, and prescribe more rationally, than he could do
when he was drunk. But some Physicians, who should be supposed to know
themselves best, and who certainly must have known how they acquitted
themselves in those different situations, have boasted that they
prescribed as well drunk as sober. In this they could not be mistaken;
for, whether we consider the matter physically or logically, their boast
amounts precisely to this, that they prescribed no better when they were
sober than they did when they were drunk; which is undoubtedly a noble
accomplishment, but it is not surely either wonderful or rare[106].”
Tacitus, in his admirable treatise “De Situ, Moribus et Populis
Germaniae,” has stated, that those nations “de reconciliandis invicem
inimicis, et jungendis affinitatibus, et adsciscendis principibus, de
pace denique ac bello, plerumque in conviviis consultant: tamquam nullo
magis tempore aut ad simplices cogitationes pateat animus, aut ad magnas
incalescat. Gens non astuta nec callida, aperit adhuc secreta pectoris
licentia loci. Ergo detecta et nuda omnium mens postera die retractatur;
et salva utriusque temporis ratio est. Deliberant dum fingere nesciunt:
constituunt dum errare non possunt[107].” (c. 22.)
In deliberation it may on some peculiar occasions be of importance
to break off all former strong associations. A fit of drunkenness
accomplishes this fully: sleep has the same tendency, and hence the
proverb, “I will sleep upon it.” But such deliberation bears no analogy
to what is required from a Physician, when he is to consider the case of
a patient.
“Universal temperance,” says Mr. Gisborne[108], “both in eating and
drinking, is particularly incumbent on a Physician in every period of
his practice, not merely as being essentially requisite to preserve
his faculties in that alert and unclouded state which may render him
equally able at all times to pronounce on the cases which he is called
to inspect; but because it is a virtue which he will very frequently
find himself obliged to inculcate on his patients, and will inculcate on
them with little efficacy, if it be not regularly exemplified in his own
conduct.”
NOTE III. Chap. ii. § 3. p. 49.
_“A Physician should be the minister of hope and comfort to the sick.”_
Mr. Gisborne, in one of his interesting letters to me on the subject of
Medical Ethics, suggests, that it would be advisable to add, _as far
as truth and sincerity will admit_. “I know very well,” says he, “that
the sentence, as it now stands, conveys to you, and was meant by you to
convey to others, the same sentiment which it would express after the
proposed addition. But, if I am not mistaken in my idea that there are
few professional temptations to which Medical men are more liable (and
frequently from the very best principles,) than that of unintentionally
using language to the patient and his friends more encouraging than
sincerity would vindicate on cool reflection, it may be right
scrupulously to guard the avenues against such an error.”
In the “Enquiry into the Duties of Men,” the same excellent moralist thus
delivers his sentiments more at large[109]. “A professional writer[110],
speaking in a work already quoted[111] respecting the performance of
Surgical operations in hospitals, remarks, that it may be a salutary
as well as an humane act in the attending Physician, occasionally to
assure the patient that every thing goes on well, _if that declaration
can be made with truth_. This restriction, so properly applied to the
case in question, may with equal propriety be extended universally to
the conduct of a Physician, when superintending operations performed,
not by the hand of a Surgeon, but by Nature and Medicine. Humanity,
we admit, and the welfare of the sick man, commonly require that his
drooping spirits should be revived by every encouragement and hope which
can honestly be suggested to him. But truth and conscience forbid the
Physician to cheer him by giving promises, or raising expectations, which
are known or intended to be delusive. The Physician may not be bound,
unless expressly required, invariably to divulge at any specific time
his opinion concerning the uncertainty or danger of the case; but he is
invariably bound never to represent the uncertainty or danger as less
than he actually believes it to be; and whenever he conveys, directly
or indirectly, to the patient or to his family, any impression to that
effect, though he may be misled by mistaken tenderness, he is guilty of
positive falsehood. He is at liberty to say little; but let that little
be true. St. Paul’s direction, _not to do evil that good may come_[112],
is clear, positive, and universal.”
Whether this subject be viewed as regarding general morality, or
professional duty, it is of high importance; and we may justly presume
that it involves considerable difficulty and intricacy, because opposite
opinions have been advanced upon it by very distinguished writers. The
ancients, though sublime in the abstract representations of virtue, are
seldom precise and definite in the detail of rules for its observance.
Yet in some instances they extend their precepts to particular cases;
and Cicero, in the third book of his “Offices,” expressly admits of
limitations to the absolute and immutable obligation of fidelity and
truth. (cc. 24, 25.)
The maxim of the poet, also, may be adduced as intended to be
comprehensive of the moral laws, by which human conduct is to be
governed:—
“Sunt certi denique fines,
Quos ultra citraque nequit consistere rectum[113].”
The early Fathers of the Christian Church, Origen, Clement, Tertullian,
Lactantius, Chrysostom, and various others, till the period of St.
Augustine, were latitudinarians on this point. But the holy father last
mentioned, if I mistake not, in the warmth of his zeal, declared that
he would not utter a lie, though he were assured of gaining Heaven by
it[114]. In this declaration there is a fallacy, by which Augustine
probably imposed upon himself: for a lie is always understood to consist
in a _criminal_ breach of truth, and therefore under no circumstances can
be justified. It is alleged, however, that falsehood may lose the essence
of lying, and become even praiseworthy, when the adherence to truth is
incompatible with the practice of some other virtue of still higher
obligation. This opinion almost the whole body of civilians adopt, with
full confidence of its rectitude. The sentiments of Grotius may be seen
at large in the satisfactory detail which he has given of the controversy
relating to it[115].
Puffendorff, who may be regarded as next to this great man in
succession as well as authority, delivers the following observations
in his “Law of Nature and Nations,” which are pointedly applicable to
the present subjects, yet carried assuredly to a very reprehensible
extent:—“Since those we talk to may often be in such circumstances,
that, if we should tell them the downright truth of the matter, it would
prejudice them, and would incapacitate us for procuring that lawful
end we propose to ourselves for their good; we may in these cases use
a fictitious or figurative way of speech, which shall not directly
represent to our hearers our real thoughts and intentions: for, when
a man is desirous, and it is his duty, to do a piece of service, he
is not bound to take measures that will certainly render his attempts
unsuccessful[116].”—“Those are by no means guilty of lying, who, for the
better information of children, or other persons not capable of relishing
the naked truth, entertain them with fictions and stories; nor those who
invent something that is false, for the sake of a good end, which by the
plain truth they could not have compassed; as, suppose, for protecting
an innocent, for appeasing a man in his passion, for _comforting the
afflicted_, for _animating the timorous_, for _persuading a nauseating
patient to take his physic_, for overcoming an obstinate humour, for
making an ill design miscarry[117].”
Several modern ethical writers of considerable celebrity have been
no less explicit and indulgent on this question. Amongst these it
may suffice to cite the testimony of the late Dr. Francis Hutcheson
of Glasgow; of whom it is said by his excellent biographer, that “he
abhorred the least appearance of deceit either in word or action[118].”
“When in certain affairs,” says he, “’tis known that men do not conceive
it an injury to be deceived, there is no crime in false speech about
such matters.... No man censures a Physician for deceiving a patient too
much dejected, by expressing good hopes of him, or by denying that he
gives him a proper medicine which he is foolishly prejudiced against:
the patient afterwards will not reproach him for it.... Wise men allow
this liberty to the Physician in whose skill and fidelity they trust: or
if they do not, there may be a just plea from necessity[119].”—“These
pleas of necessity some would exclude by a maxim of late received, _We
must not do evil that good may come of it._ The author of this maxim is
not well known. It seems, by a passage in St. Paul[120], that Christians
were reviled as teaching, that, since the mercy and veracity of God were
displayed by the obstinate wickedness of the Jews, they should continue
in sin that this good might ensue from it. He rejects the imputation upon
his doctrine; and hence some take up the contradictory proposition as
a general maxim of great importance in morality. Perhaps it has been a
maxim among St. Paul’s enemies, since they upbraid him with counteracting
it. Be the author who they please, the sentence is of no use in morals,
as it is quite vague and undetermined. Must one do nothing for a good
purpose, which would have been evil without this reference? ’Tis evil to
hazard life without a view to some good; but, when ’tis necessary for a
public interest, ’tis very lovely and honourable. ’Tis criminal to expose
a good man to danger for nothing; but ’tis just even to force him into
the greatest dangers for his country. ’Tis criminal to occasion any pains
to innocent persons, without a view to some good; but for restoring of
health we reward chirurgeons for scarifyings, burnings, and amputations.
‘But,’ say they, ‘such actions, done for these ends, are not evil. The
maxim only determines that we must not do, for a good end, such actions
as are evil even when done for a good end.’ But this proposition is
identic and useless; for who will tell us next, what these actions,
sometimes evil, are, which may be done for a good end? and what actions
are so evil that they must not be done even for a good end? The maxim
will not answer this question; and truly it amounts only to this trifle;
_you ought not for any good end to do what is evil, or what you ought not
to do, even for a good end_[121].”
Dr. Johnson, who admits of some exception to the law of truth,
strenuously denies the right of telling a lie to a sick man for fear of
alarming him. “You have no business with consequences,” says he; “you are
to tell the truth. Besides, you are not sure what effect your telling him
that he is in danger may have. It may bring his distemper to a crisis,
and that may cure him. Of all lying I have the greatest abhorrence of
this, because I believe it has been frequently practised on myself[122].”
If the Medical reader wishes to investigate this nice and important
subject of casuistry, he may consult Grotius _De Jure Belli ac Pacis_,
Puffendorff, Grove’s _Ethics_, Balguy’s _Law of Truth_, Fénelon’s
_Telemachus_, Butler, Hutcheson, Paley, and Gisborne. Every practitioner
must find himself occasionally in circumstances of very delicate
embarrassment, with respect to the contending obligations of veracity
and professional duty; and when such trials occur, it will behove him to
act on fixed principles of rectitude, derived from previous information
and serious reflection. Perhaps the following brief considerations, by
which I have conscientiously endeavoured to govern my own conduct, may
afford some aid to his decision.
Moral truth, in a professional view, has two references; one to the
party to whom it is delivered, and another to the individual by whom
it is uttered. In the first, it is a _relative_ duty, constituting a
branch of justice; and may be properly regulated by the Divine rule of
equity prescribed by our SAVIOUR, to do unto others, as we would (all
circumstances duly weighed,) they should do unto us[123]. In the second,
it is a _personal_ duty, regarding solely the sincerity, the purity,
and the probity of the Physician himself. To a patient, therefore,
(perhaps the father of a numerous family, or one whose life is of the
highest importance to the community,) who makes enquiries, which, if
faithfully answered, might prove fatal to him, it would be a gross and
unfeeling wrong to reveal the truth. His right to it is suspended, and
even annihilated; because, its beneficial nature being reversed, it would
be deeply injurious to himself, to his family, and to the public: and
he has the strongest claim, from the trust reposed in his Physician, as
well as from the common principles of humanity, to be guarded against
whatever would be detrimental to him. In such a situation, therefore,
the only point at issue is, whether the practitioner shall sacrifice
that delicate sense of veracity, which is so ornamental to, and indeed
forms a characteristic excellence of, the virtuous man, to this claim
of Professional justice and social duty. Under such a painful conflict
of obligations a wise and good man must be governed by those which are
the most imperious; and will therefore generously relinquish every
consideration referable only to himself. Let him be careful, however, not
to do this, but in cases of real emergency, which happily seldom occur;
and to guard his mind sedulously against the injury it may sustain by
such violations of the native love of truth.
I shall conclude this long note with the two following very interesting
biographical facts. The husband of the celebrated Arria, Caecina Paetus,
was very dangerously ill. Her son was also sick at the same time, and
died[124]. He was a youth of uncommon accomplishments, and fondly beloved
by his parents. Arria prepared and conducted his funeral in such a
manner, that her husband remained entirely ignorant of the mournful event
which occasioned that solemnity. Paetus often enquired with anxiety about
his son; to whom she cheerfully replied, that he had slept well, and was
better. But if her tears, too long restrained, were bursting forth, she
instantly retired, to give vent to her grief; and when again composed,
returned to Paetus with dry eyes and placid countenance, quitting, as
it were, all the tender feelings of the mother at the threshold of her
husband’s chamber.
“Lady Russell’s only son, Wriothesley, Duke of Bedford, died of the
small-pox in May 1711, in the 31st year of his age[125].... To this
affliction succeeded, in Nov. 1711, the loss of her daughter, the Duchess
of Rutland, who died in child-bed. Lady Russell, after seeing her in the
coffin, went to her other daughter, married to the Duke of Devonshire,
from whom it was necessary to conceal her grief, she being at that time
in child-bed likewise; therefore she assumed a cheerful air, and with
astonishing resolution, [verbally] agreeable to truth, answered her
anxious daughter’s enquiries with these words: ‘I have seen your sister
out of bed to-day.’”
NOTE IV. Chap. ii. § 5. p. 50.
“_The practice of a prior Physician should be treated with candour, and
justified, so far as truth and probity will permit._”
Montaigne in one of his “Essays” treats with great humour of Physic and
Physicians; and makes it a charge against them, that they perpetually
direct variations in each other’s prescriptions. “Who ever saw,” says
he, “one Physician approve of another’s prescription, without taking
something away, or adding something to it? By which they sufficiently
betray their art, and make it manifest to us that they therein more
consider their own reputation, and consequently their profit, than their
patients’ interest[126].”
NOTE V. Chap. ii. § 9. p. 53.
_Theoretical discussions should be generally avoided._
This rule is not only applicable to consultations, but to any reasonings
on the nature of the case and of the remedies prescribed, either with
the patient himself or his friends. It is said by my lamented friend Mr.
Seward in his entertaining “Anecdotes,” that the late Lord Mansfield gave
this advice to a military gentleman, who was appointed Governor of one
of our islands in the West Indies, and who expressed his apprehensions
of not being able to discharge his duty as chancellor of his province:
“Always decide, and never give reasons for your decision. You will in
general decide well; yet give very bad reasons for your judgement[127].”
NOTE VI. Chap. ii. § 11. p. 54.
_Regular academical education._
“It is the general opinion,” says Dr. Johnson[128], “that Sydenham was
made a physician by accident and necessity; and Sir Richard Blackmore
reports in plain terms[129], that he engaged in practice without any
preparatory study, or previous knowledge, of the Medicinal sciences; and
affirms, that, when he was consulted by him what books he should read to
qualify him for the said profession, he recommended _Don Quixote_. That
he recommended Don Quixote to Blackmore,” continues Dr. Johnson, “we
are not allowed to doubt; but the relater is hindered, by that self-love
which dazzles all mankind, from discovering that he might intend a satire
very different from a general censure of all the ancient and modern
writers on Medicine; since he might perhaps mean, either seriously or in
jest, to insinuate that Blackmore was not adapted by nature to the study
of Physic, and that, whether he should read Cervantes or Hippocrates, he
would be equally unqualified for practice, and equally unsuccessful in
it. Whatsoever was his meaning, nothing is more evident than that it was
a transient sally of an imagination warmed with gaiety, or the negligent
effusion of a mind intent upon some other employment, and in haste to
dismiss a troublesome intruder.” Sydenham himself has declared[130],
that, after he determined upon the profession of Physic, he applied in
earnest to it, and spent several years in the University of Oxford,
before he began to practise in London. He travelled afterwards to
Montpelier in quest of more information; “so far was he from any contempt
of academical institutions, and so far from thinking it reasonable to
learn Physic by experiments alone, which must necessarily be made at the
hazard of life[131].”