THE MEDICAL PROFESSION 
AN1) THE 
COMMONWEALTH. 
By FRANK WINTIIROP DRAPER, M.D. 
Professor of Legal Medicine in Harvafct"*pfniversity. 
The Annual Discourse delivered before the Massachusetts Medical 
.Society, .Iune 8, 1892. 
BOSTON: 
DAVID CLAPP & SON, PRINTERS, 115 HIGH ST. 
1 8 9 2. THE MEDICAL PROFESSION 
AND THE 
COMMONWEALTH. 
FRANK WINTHROP DRAPEiR, M.D. 
The Annual Discourse delivered before the Massachusetts Medical 
Society, June 8, 1892. 
BOSTON: 
DAVID CLAPP & SON, PRINTERS, 115 HIGH ST. 
1 8 9 2. THE MEDICAL PROFESSION AND THE 
COMMONWEALTH. 
Mr. President and Fellows 
of the Massachusetts Medical Society: 
The father of modern lexicographers defines a 
physician as “ one who professes the art of healing.” 
This definition, even with its evident limitations, 
accords with the popular idea of the doctor’s proper 
place in the world’s atfairs; he is of value as a 
prescribe!* of remedies for sickness. His character- 
istic business is the cultivation of therapeutic skill. 
To this end, medical education is largely directed, 
with its clinical features made prominent. To the 
attainment of this result, hospitals lend their aid 
and specialties have been organized in such num- 
bers and variety as to confound the traditions of 
conservatism. All this preparation and special- 
ism fairly represent the current notion that the art 
of medicine, rather than medical science, is the 
physician’s specific domain. How to defy success- 
fully and to conquer effectively the foe of the 
household,—this is held to be the main purpose 
of our profession, our chief reason for being. 
“ They that be whole need not a physician, but they 
that are sick.” 
But while the medical and surgical practitioner 
illustrates in his clinical round of duty his prin- 
cipal function, there are other relations in his 4 
THE MEDICAL PROFESSION 
experience to which his profession necessarily ex- 
poses him. Some of these are imperative and can- 
not he evaded; others are voluntary but are full 
of noble possibilities; all of them, properly used, 
give increased value and dignity to our professional 
vocation. In the discharge of the distinguished 
duty which places me in your presence at this time, 
I shall endeavor to make clear the true attitude 
which our profession should maintain toward some 
of these external conditions. I ask your indulgent 
attention to a study of the relations which, as phy- 
sicians, we hold toward the Commonwealth. 
Our obligations to the State derive added signi- 
ficance from the circumstances attending the incor- 
poration of the Society of which we are the Fellows. 
Our organic existence began in the troublous times 
at the close of the revolutionary war, when the 
more hopeful felt sure that they saw the dawn of 
an independent nation, but did not dream of the 
difficulties and delays that were to postpone for 
nearly a decade the establishment of constitutional 
government. The seat of military operations had 
been carried southward, leaving ISew England 
without serious apprehension of the further presence 
of hostile forces. Yorktown was the point upon 
which, during the early autumn of 1781, attention 
was centred, and here the war reached its trium- 
phant climax. Meanwhile, here in Massachusetts, 
civil affairs, though still unsettled, had begun to 
take permanent shape. For a year, the people 
had been living under a constitution of their own 
devising, an instrument of solid framework, the AND THE COMMONWEALTH. 
5 
prototype and model of many others constructed 
after it. 
It was at this time, when the national government 
was in revolutionary instability and our own Com- 
monwealth was in its infancy, that a few medical 
men, chiefly resident in Boston, saw the desirability 
of an association that should bring qualified prac- 
titioners into closer relations for their own benefit 
and for the good of the public. No doubt there 
was ample ground for this feeling. The exigen- 
cies of the war then closing had called many Mas- 
sachusetts physicians into the public service, \tfhere 
they met associates from other States and, with 
them, by the intercourse thus available, were stim- 
ulated to discuss the needs of the profession and 
were led into a community and cohesion of in- 
terests not possible otherwise. Out of this oppor- 
tunity and experience grew a purpose to secure 
order in place of medical chaos. Medical knowr- 
ledge was limited and the facilities for obtaining 
it were difficult; more difficult in New England, 
indeed, than in other sections of the country. 
There were already many pretenders and knaves 
who made easy- prey of the credulity of humanity. 
There was no standard of medical knowledge or 
of fitness to assume the responsibilities of medical 
practice. Recognizing these conditions, the pub- 
lic-spirited founders of our Society resolved to 
come into closer union for the common good. 
The preliminary deliberations which led to our 
incorporation are not matters of record ; we simply 
know their results. But these results are sug- 6 
THE MEDICAL PROFESSION 
gestive of the bond of attachment which, at t his 
time, existed between the State and the better 
class of medical men and which has never been in 
serious peril since. The very name of our asso- 
ciation is one evidence of this. Our fathers might 
have looked across the sea and found an appro- 
priate title in some "Medico-Chirurgieal” society 
or "Academy of Medicine” or "College of Phy- 
sicians,” which could be translated to the new 
world. But this would not have been in harmony 
with their purpose; their purpose was to make a 
"body politic and corporate” which should estab- 
lish “a just discrimination” between educated 
practitioners and ignorant pretenders in medicine, 
a purpose that had in view the welfare of the 
community in its broadest sense. They therefore 
asked the General Court to give permanent ex- 
pression to this object by granting the name of 
the Commonwealth to the new guild and by be- 
stowing corporate privileges that should corres- 
pond therewith. That request was granted and 
we are the Massachusetts Medical Society, broader 
than medical sectarianism, abhorring exclusive- 
ness, loyal ever to the Slate’s highest interests, 
proud of the charter which, bearing the historic 
names of John Hancock and Sam Adams in at- 
testation of its validity, the State bestowed upon 
us in 1781, the first document of the kind granted 
under the constitution. The commonwealth thus 
became our alma mater. She gave her name to 
our newly created body; she endowed us with 
valuable rights; and she bestowed other encourag- AND THE COMMONWEALTH. 
7 
ing assistance and recognition. If she did not 
actually rock the infant ” body corporate ” in the 
" cradle of liberty,” she contributed an added flavor 
of legality and dignity to our first proceedings by 
loaning the "county court-house in Boston” as 
the place of meeting for Doctor Holyoke and his 
thirty fellow-founders, and placed us under new 
obligations of gratitude later by permitting meet- 
ings of the society in the state-house and in other 
public buildings belonging to the State. 
Such was the beneficent and disinterested aim 
of our fathers in founding this association; such 
the gracious and helpful attitude of the Common- 
wealth in aiding that foundation. It is becoming 
in us, the heirs and beneficiaries of the endowment 
thus established, to ask how the aim of its creators 
has been fulfilled during all the years of the cen- 
tury now drawing to its close; to what degree the 
prosperity of the State has been advanced by the 
Fellows of this organization; and what are our 
present duties to the public in the discharge of the 
trust which our organic charter imposes. The little 
company of physicians which assembled in the 
county court-room near Scollay square, in No- 
vember, 1781, has by normal growth become a 
multitude so large that it requires an entire block 
of buildings to supply the needs of its anniversary 
meetings, outgrowing all less adequate accommo- 
dations. Keeping pace with the progress which 
has made Massachusetts a leader in all things that 
make for the highest civilization, our organization 
holds and has long held the highest rank as the 8 
THE MEDICAL PROFESSION 
representative of the best type of scientific and 
practical medicine. It is true that it does not 
include, nor has it ever included, in its fellowship, 
all those who by education and personal character 
have been entitled to avail themselves of its priv- 
ileges. Undoubtedly there are many practitioners 
who ought to be on our rolls of membership but 
who are content to remain as medical gentiles- 
Any study of the relations of physicians to the 
commonwealth should not omit these from its 
scope. It is their misfortune, as well as their 
fault, that they neglect the invitation to affiliate 
with the only incorporated association which rep- 
resents in the largest sense the principles which 
should be dear to every educated medical man. 
But I remember that what I have to offer to-day, 
while it may apply comprehensively to all who use 
the title and perform the functions of physicians, 
is addressed especially to a body which for more 
than a hundred years has stood for the best that 
is attainable in medical science and art, and it is 
therefore peculiarly appropriate that the physician 
whose relation toward the commonwealth we are 
to discuss should be the physician who is also the 
Fellow of this society. It is likewise fitting that 
the commonwealth concerning which we speak in 
this connection should be the one to which we owe 
allegiance as citizens and the one from which we 
derive our chartered rights as Fellows. 
Massachusetts, in founding its constitutional 
government in 1780, established three co-ordinate, 
yet independent, departments; and ordained that AND THE COMMONWEALTH. 
9 
the legislative, the executive and the judicial func- 
tions should be forever distinct. This three-fold 
distribution of organic powers and duties in the 
State invites consideration of our relations, as 
physicians, to each of the fundamental depart- 
ments, and leads us to ask what has been accom- 
plished and what remains to be done in directions 
wherein the commonwealth and the medical pro- 
fession are mutually concerned. 
I. To what extent, then, in the first place, has 
the State, through its General Court, as its legis- 
lative department, enacted laws that are of parti- 
cular interest to the members of our profession as 
a class? An inspection of the public statutes will 
be rewarded with the discovery of the following 
requirements, exemptions and prohibitions, in force 
at the present time: 
" Practising physicians,” with a few other equally 
fortunate public servants, are exempt from enrol- 
ment in the militia. 
"Able and discreet men, learned in the science 
of medicine ” are to be appointed medical exami- 
ners in each county. 
" A physician who has attended a person during 
his last illness ” must furnish, for the purposes of 
registration, certain specified facts relating to the 
patient and his illness. 
"Physicians” shall make a monthly report of 
the births at which they were present, the penalty 
for neglect being double that for delinquency in 
the matter of death certificates. 10 
rilE MEDICAL PROFESSION 
"A physician shall give” immediate written 
notice of all the cases of such diseases under his 
care as the local sanitary board declares to be 
dangerous to the public health, and again the 
penalty for neglect is substantial. 
Under carefully elevised provisions and restric- 
tions, " any physician or surgeon ” may have the 
deael bodies of certain paupers, " to be by him usee! 
within the State for the advancement of anatomi- 
cal science”; and, in similar fashion, he may have 
the deael boely of an executed murderer; but if he 
" willfully eligs up, elisinters, removes or conveys 
away a dead boely ” without authority, or " buys, 
sells, or keeps for sale, the dead body of a human 
being,” he shall be punisheel by imprisonment or 
fine. 
No insane person shall be committeel to a lunatic 
hospital except upon the certificate of "two phy- 
sicians ” having special qualifications and comply- 
ing with specific requirements; and in each of the 
State lunatic hospitals, “an educated female physi- 
cian shall be appointed assistant physician.” 
When the estate of a deceased person is insol- 
vent, " the necessary expenses of his last sickness” 
stand as a preferred claim before all other debts; 
while if the insolvent debtor be living, "all debts 
due to physicians for medical attendance on him 
or his family ” are third in the order of priority. 
" Practising physicians and surgeons regularly 
licensed ” are in the list of persons exempt by law 
from serving as jurors; but they are not excused 
from any of the requirements which pertain to AND THE COMMONWEALTH. 
11 
witnesses in courts of law, nor have they any 
special privileges if misfortune overtakes them and 
a judgment for debt is to be executed. 
Among the " twelve reputable citizens ” to whom 
the law accords an invitation to be present at the 
hanging of a condemned murderer, " a physician 
or surgeon ” is especially included. 
" A physician or surgeon ” is mentioned in the 
list of the officers to be appointed by the Governor 
for the administration of affairs at the state prison 
and the reformatory prison for men; while the 
reformatory prison for women has, according to 
the statute requirements, a staff almost wholly 
composed of women, including the " one physician ” 
whose term of service is ” during the pleasure of 
the Governor and Council.” 
Such are some of the statutory privileges and 
obligations which to-day apply to Massachusetts 
physicians. It cannot have escaped your notice 
that the obligations far exceed the privileges. 
When we have mentioned exemption from jury 
and militia duty, some preferment of the claims of 
physicians against insolvent estates, the rarely 
used permission to dissect dead bodies, together 
with the happily infrequent opportunity of attend- 
ing a judicial hanging, we have included all the 
essential benefits which the commonwealth bestows 
on medical practitioners. It is not a long list of 
special indulgences, nor a very valuable one. 
Another feature of these statutes invites a word 
of comment. Is it just and equitable, on the part 
of the State, to exact gratuitous service and to 12 
TIIE MEDICAL PROFESSION 
punish us by a heavy fine for non-compliance? 
This is a question which has exercised the minds 
of medical men who were entirely free from any 
purely mercenary bias. Take the matter of death 
certificates, for example; the determination and 
proper formulation of the cause of a death is a 
work requiring professional skill and judgment. 
It is not the easy task which it appears to be; and 
those who have to do with the registration of 
deaths know the truth of this, for they see numer- 
ous instances of failure and blundering in this 
seemingly simple matter. I doubt not that many 
of my audience have met with difficulty, again and 
again, in the satisfactory framing of a death-certi- 
ficate, and have done some severe medical thinking 
in order to comply with the statute requirement. 
And this service the State exacts as a formal 
matter, without any return consideration; more 
than this, it makes neglect or refusal to obey the 
law forthwith a crime of the same grade and with 
similar penalties as the passing of a toll-bridge 
without paying the legal toll, or the wilful suffer- 
ing of one’s sheep, swine or fowl to trespass on 
his neighbor’s land, or public indulgence in profane 
cursing and swearing. And the same reasoning 
applies to the requirement that every physician 
shall give immediate notice in writing, over his 
own signature, of every case of small-pox, diph- 
theria, scarlet fever, or any other disease which 
his local board of health declares to be dangerous 
to the public health and which he is called upon 
to visit, the penalty for disobedience in this in- AND THE COMMONWEALTH. 
13 
stance being not less than fifty not more than two 
hundred dollars. Let me not be misunderstood. 
I am not desirous for a moment of arguing that 
the State is wrong in requiring from physicians 
this service concerning the living and the dead; 
I regard the registration of vital statistics and of 
infectious diseases as fundamentally indispensable 
to all sanitary administration, and to take any 
position of apparent hostility to it or to suggest 
any course of conduct that would impair its value 
and completeness would show a deplorable lack 
of wisdom. Nor am I pleading for the principle 
of remuneration for all service rendered; for I 
believe that every intelligent and public-spirited 
physician, recognizing that his contributions to 
registration will aid in maintaining and promoting 
the public health and general welfare, would not 
be stimulated to better or readier obedience of the 
statutes if, for each certificate, he received a small 
fee. On the other hand, he is not inspired to do 
his duty more punctually through fear of fines 
which, like the Quaker guns of Manassas, are 
meant rather to intimidate than to destroy. Yet 
the criticism remains true, that there is an obvious 
want of equity in the fact that the State makes an 
unrequited requisition upon physicians for medical 
facts which they alone can supply at an expense 
of time and knowledge, and threatens them with 
punishment as petty criminals if they neglect or 
refuse to heed the requisition promptly. If a 
penalty in connection with registration is to be 
exacted at all, it would be more worthily attached 14 
THE MEDICAL PROFESSION 
to wilfully false and fraudulent certificates, to 
certificates that try to cover criminal abortion 
under the disguise of septic peritonitis, or that 
conceal suicidal pistol-shot wounds under the 
euphemism " rupture of blood-vessels and hemor- 
rhage,” or that attempt to mislead by calling a 
suicide by laudanum a death by coma. 
This matter, indeed, is not an important one; 
but it is worth while to mention that the common- 
wealth has shown some inconsistency by recogniz- 
ing that the services of physicians do have a value, 
trivial in degree, yet real in fact, when applied to 
observations and reports requiring no special skill 
to make them. For if a physician reports punc- 
tually to the clerk of his city or town a correct list 
of all children born therein during the month next 
preceding, at whose birth he was present, he shall 
receive for this purely clerical duty a fee of 
twenty-five cents for each birth so reported; while 
neglect to report such list is punishable by a fine 
not exceeding twenty dollars. It is notorious that 
the registration of births in Massachusetts is de- 
fective, even under this legislation which has pro- 
vided a hope of reward and a fear of punishment 
as the double incentive to the faithful discharge of 
a public duty. 
The critical student of the public statutes who 
searches for any evidence therein that the com- 
monwealth through its legislature has ever set up 
any standard of education or skill on the part of 
medical men, will find little in existing laws to 
reward him for his inquiry. In a few instances. AND THE COMMONWEALTH. 
15 
the general court has provided that special, though 
purely relative, qualifications shall be requisite in 
certain contingencies. Generally, however, the 
members of our profession are mentioned under 
their generic title simply, as " physicians ” or 
"physicians and surgeons,” and the undoubted 
intent is to include under this term all who pub- 
licly announce themselves to be practitioners of 
the art of medicine and undertake to treat sick or 
injured persons, either for reward or gratuitously. 
There is no attempt in the statutes to classify or 
to define "physicians,” to declare by legislative 
act who may practise medicine and who shall not, 
to protect the people from the evil doings of igno- 
rant pretenders, to establish a standard which 
would exclude both fools and knaves. Massa- 
chusetts has ever been hospitable to all sorts and 
conditions of men, and she welcomes with a reck- 
less graciousness any who choose to pass her open 
door. She knows no sects, no schools, no differ- 
ences among physicians; all doctors are alike to 
her and, according to the assembled wisdom of 
her law-givers, they can safely be left to take care 
of themselves according to the principles of the 
common law. There is no distinction, either 
natural or arbitrary, which our statutes recognize, 
to mark the fraudulent pretender from the educated 
and trustworthy practitioner. To the citizens of 
this State, there is absolutely unrestricted liberty 
in the choice of their medical attendants when 
they are ailing or are injured, a full realization of 
the very opening words of the constitution of the 16 
TIIE MEDICAL PROFESSION 
commonwealth, that the end of the institution, 
maintainance and administration of government is 
to secure the existence of the body politic, to pro- 
tect it, and to furnish the individuals who compose 
it with the power of enjoying in safety and tran- 
quillity their natural rights and the blessings of 
life.” 
This attitude of Massachusetts, allowing unre- 
stricted freedom in the practise of physic, has 
exposed the State to much criticism. It has given 
rise to the impression that her present policy of 
non-interference with medicine has always pre- 
vailed, and that she is now simply carrying forward 
a traditional rule of conduct in obstinate indiffer- 
ence to the lessons of experience learned in other 
‘and younger communities. This inference is incor- 
rect. Long before any of the modern devices for 
statutory regulation of medical practice were an- 
nounced, long before many of the commonwealths 
which are now taunting us had been staked out in 
the primeval wildernesses of the west and north- 
west, Massachusetts saw the need of controlling 
the pretensions and active arrogance of charlatanry 
within her borders and the clear duty of bestow- 
ing her recognition upon reliable men and women. 
As early as 1649, the colonial legislature enacted 
a law concerning " Chirurgeons, Midwives, Phy- 
sitians,” which forbade all " persons whatsoever 
imployed at any times about the bodyes of men, 
women or children, for the preservation of life or 
health ... to presume to exercise or put 
forth any act contrary to the known approved Kules AND THE COMMONWEALTH. 
17 
of Art, . . . without the advice and consent of 
such as are skillfull in the same Art,” upon such 
” severe punishment as the nature of the fact may 
deserve”; and the act has this quaint codicil, that 
the law " is not intended to discourage any from 
all lawfull use of their skill, but rather to incour- 
age and direct them in the right use thereof.” 
Does any statute of the many relating to medical 
practice, which the present generation has wit- 
nessed in various states of the Union, show a 
better spirit? 
But we need not look beyond the words of our 
own charter of incorporation to find full evidence 
that long ago the State discriminated sharply be- 
tween those who merited confidence and those 
who deserved to be restrained. The whole docu- 
ment, from its preamble to its conclusion, is filled 
with the flavor of this wholesome feeling. But 
that which applies itself chiefly to our purpose in 
this regard is the remarkable sentence which, like 
a strong back-bone, is built solidly into the very 
middle of the charter:— 
“ And whereas it is clearly of importance, that 
a just discrimination should he made betweeyi such 
as are duly educated arid properly qualified for the 
duties of their profession, and those who may igno- 
rantly and wickedly administer Medicine, whereby 
the health and lives of many valuable individuals 
may be endangered, or perhaps lost to the com- 
munity : 
“ Be it therefore enacted by the authority afore- 
said, That the president and fellows of said socie- 18 
THE MEDICAL PROFESSION 
ty, or other such of their officers or fellows as they 
shall appoint, shall have full power and authority 
to examine all candidates for the practice of physic 
and surgery, who shall offer themselves for exami- 
nation, respecting their skill in their profession.” 
This placed a premium on proper qualifications 
and proved fitness. It established a standard and 
made our society the keeper of that standard, and 
if with the recently accepted Bill of Rights in 
popular remembrance, it did not forbid the prac- 
tice of medicine by those who neglected or failed 
to become licentiates under this charter, it never- 
theless gave the community, what it had not had 
before, a chance to have its medical practitioners 
classified according to their worth and learning. 
It was a most responsible function to place upon 
this young society of physicians, but the trust was 
adequately fulfilled then and is to-day being ful- 
filled; and the men and women who possess the 
letters testimonial of the censors of the Massachu- 
setts Medical Society attesting their demonstrated 
and approved knowledge and fitness need no fur- 
ther passport to the full confidence of the people 
and no better certificate to distinguish them from 
those who “ignorantly and wickedly administer 
medicine.” 
But Massachusetts, through its legislature, did 
not stop here. It supplied in our charter a standard 
by which it strove to distinguish the genuine coin 
from the counterfeit, and it created the agency for 
the application of this standard to all who wished. 
Subsequent enactments strengthened and con- AND THE COMMONWEALTH. 
19 
firmed this aim. The act of incorporation of 1781 
was altered in 1803, the better to " effect the im- 
portant and desirable purposes for which it was 
designed.” The limit to the number of fellows, 
previously set at only seventy as its maximum, 
was removed; the councillors were created; and a 
board of censors was provided who were to ex- 
amine candidates, and to .give to such as were 
successful in their examination a certificate of 
approbation and of their license to become prac- 
titioners in medicine or surgery; "after three 
years of approved practice in medicine and sur- 
gery, and being of good moral character, and not 
otherwise,” these licentiates were to be eligible for 
the higher honor of becoming Fellows. By this 
same act, district societies were allowed to be 
organized for purposes of medical improvement, 
and each district was endowed with the additional 
function of sharing with the censors-at-large the 
authority to examine and admit candidates for the 
regular practice of medicine. In 1831, the provi- 
sion that required three years of probation for 
licentiates before they were admitted as Fellows 
of the Massachusetts Medical Society, was re- 
pealed. 
These various enactments, designed specifically 
for the organization and development of this 
society, but having the fundamental purpose also 
to improve the character of the medical profession 
in general in this commonwealth, do not complete 
the catalogue of statutes which the legislature has 
made for the regulation of medical practice. 20 
TIIE MEDICAL PROFESSION 
Broad as our charter was, in its permissive provi- 
sions, it was not in the least useful as prohibitive 
legislation. We might admit all duly qualified 
practitioners to our ranks, we had no control over 
the disqualified pretender who cared little for the 
privileges which the Massachusetts Medical Society 
offered. This weak negative side in the then cur- 
rent statutes came at length to be seen, and in 
1818 a law was passed which was designed to 
remedy this defect. It is of interest to us that 
the State continued to turn to this Society to aid 
in the fulfilment of its purpose. The statute pro- 
vided that every person practising physic or sur- 
gery in Massachusetts, without having received a 
medical degree from some college or university, 
or without being licensed by some medical society, 
or college of physicians, or by three Fellows of the 
Massachusetts Medical Society to be designated 
in each county by the Councillors, should not have 
'r the benefit of law for the recovery of any debt, 
or fees, accruing for his professional services”; 
and every licensed practitioner was required to 
deposit a copy of his license with the clerk of the 
town where he resided. Just a year later, the 
general court modified its predecessor’s work and 
enacted that no person entering the practice of 
physic or surgery after a specified date should be 
entitled to the benefit of law for the recovery of 
any debt or fee for his professional services unless, 
previously to rendering those services, he had been 
licensed by the regularly appointed censors of the AND THE COMMONWEALTH. 
21 
Massachusetts Medical Society or had been grad- 
uated a Doctor of Medicine in Harvard University. 
This law, it will be observed, distinctly recog- 
nized the principle of the regulation of medical 
practice, and this was the only good purpose 
which it served. It had two ludicrously weak 
features; it did not provide any punishment for 
failure or neglect to procure the required license, 
and while it presumptively made the way of the 
irregular practitioner a difficult one in the matter 
of collecting his fees, it left him perfectly free to 
do what no reputable physician ever does, it left 
him free to take his pay in advance. Neverthe- 
less, the law was so satisfactory and acceptable in 
its working, that it was re-affirmed in all its main 
features in the Revised Statutes of 1836, seven- 
teen years later, this Society being still designated 
by name as the authority to manage the machinery 
of examination and licensing; but there was this 
important modification,—the courts were no longer 
closed to such unlicensed physicians as sought 
legal help in the collection of their fees. The 
penalty for neglecting to secure a license was still 
missing, and the only express reward for compli- 
ance with the law was the privilege of dissecting 
dead bodies acquired in accordance with well de- 
fined conditions and restrictions still extant. This 
anomalous statute (vox et preterea nihil) remained 
in force without amendment until 1859, when it 
dropped out of sight in the general revision of the 
laws made by the legislature of that year. Since 
its disappearance from the stutute book there has 22 
THE MEDICAL PROFESSION 
been nothing unlawful in w ignorantly and wickedly 
administering medicine ” to the people of Massa- 
chusetts in violation of any statute; the principles 
of the common law are the only safeguard. 
Meanwhile, during this period of thirty years, a 
wave of legislative virtue has swept over the land 
with reference to the regulation of medical prac- 
tice. One State after another has passed restric- 
tive laws of greater of less stringency hut with 
the single aim of discouraging quackery. How 
effective these laws have been in accomplishing 
their purpose, or how zealously they are executed, 
in the various communities, we are not now con- 
cerned in determining; the suggestive fact is that 
Massachusetts stands almost alone in her attitude 
of toleration. Of one result of this state of affairs 
we all are clearly aware. The action of neighboring 
States, near and more distant, in requiring irreg- 
ular practitioners to move on and to stand not 
upon the order of their going, has brought to our 
too hospitable territory a horde of medical pre- 
tenders who have not been slow in discovering the 
advantages of an asylum here. Moreover, the 
unlimited freedom which characterizes medical 
practice has encouraged the growth of a native 
variety of charlatans and adventurers; the weeds 
are not all of exotic stock, some of them are in- 
digenous and have been permitted to grow in rank 
luxuriance. It is safe to state that never in the 
history of the commonwealth has such a wide 
variety been offered to her people in the matter of 
choosing a medical counsellor in time of sickness, AND THE COMMONWEALTH. 
23 
and that never has the class of charlatans been so 
numerous or so haughty. 
And what a motley company they are, these 
disreputable parasites upon the medical profession! 
They offer to the curious student of anthropology 
a great diversity of types, ranging all the way from 
the long-haired male Indian medicine-man to the 
short-haired female Christian scientist; creatures 
with " natural ” and supernatural powers, extraor- 
dinary owners of superior intellects who find no 
difficulty in the problem of curing incurable dis- 
eases; bio-chemists, nature-pathists, mesmerists, 
vivopaths, psychopaths, botanic healers, magnetic 
healers,—a great procession of social pests with 
labels designed to captivate the unwary and the 
credulous. 
But these people who boldly affect superiority 
by announcing themselves openly as irregular 
practitioners, and by assuming an eccentric or 
distinctive title in proof of it, are not the worst 
representatives of their class. The charlatans 
who are most harmful are those who deliberately 
and fraudulently take on the simple designation 
of ” physician,” and so far as any outward sign is 
concerned are not to be distinguished by the pub- 
lic from the best and noblest members of our pro- 
fession. It is possible that this variety of irreg- 
ular practitioners shows, in their method of mak- 
ing a living out of the public, a higher degree of 
shrewdness than their fellows of the former class, 
because in their use of professional titles, the pre- 
fix, " Doctor,” and the suffix, " M.D.” are in no 24 
THE MEDICAL PROFESSION 
respect different in their external application, from 
those employed in a genuine way by right. 
Then, there is another form of medical fraud 
which manifests itself in the shape of w medical 
institutes.” These are evidently business enter- 
prises simply, and the management being in the 
hands of several persons, who are always an- 
nounced as distinguished, successful and trust- 
worthy exponents of medical science, the victims 
of disease read the obvious lesson that in a multi- 
tude of such counsellors there must be safety. 
But however we may classify and differentiate 
these people, they all have certain characteristics 
in common; there is nothing beneficent in their 
motives or actions; they are to the last degree 
mercenary; they are busy obtaining money under 
false pretences; they add nothing to the common 
stock of knowledge; they contribute nothing to 
the social welfare; they are a constant menace to 
the public health. They defile the columns of 
the daily press and of the religious weekly journals 
with disgustingly suggestive notices of their 
pretensions and insinuating invitations to walk 
into their parlors. They make open solicitations 
through their advertisements to the victims of 
lustful practices to add crime to imprudence, and 
they cover with the thinnest disguise their public 
and defiant announcements that they will commit 
unlawful acts and will take all risks of detection 
and exposure. It is openly declared that, dis- 
guised as female practitioners of medicine, they 
conduct houses of prostitution. They deface all AND THE COMMONWEALTH. 
25 
accessible surfaces with their bold and lying 
promises, and offend good morals by their too open 
allusions to unmentionable subjects. Like jug- 
gling fiends, they take advantage of every form of 
human misery to raise hope where hope is vain, 
and they wickedly and cruelly draw the last pos- 
sible dollar from their credulous victims, who get 
small comfort from the fact that payment has been 
made in advance for the wretched disappointment 
of unfulfilled agreements. If in such a case death 
comes to the relief of these double sufferers, the 
ignorance of the only physician recognized by the 
statutes in such a relationship is attested by the 
manner in which the required certificate of the 
cause of the death is executed, sometimes unintel- 
ligibly, sometimes fraudulently, covering a crime 
under the name of an innocent disease, and always 
raising a doubt and question of the value of such 
data for the purpose of vital statistics. 
Can it be possible that Massachusetts, which 
has long defended its claim to the possession of 
superior wisdom in the care of all matters pertaining 
to public health and public morality, is willing to 
tolerate this state of affairs indefinitely? Is not 
her indifference reprehensible? And have not we, 
as physicians, remained far too quiescent under 
these growing evils? Have we not evaded a duty 
while we maintained a neutrality? Ought we not 
now to speak out boldly and persistently until 
some effective measure has been adopted to con- 
trol and suppress the fungous growth of quackery? 
It is to legislation, supported by an enlightened 26 
THE MEDTCAL PROFESSION 
public sentiment, and rendered fruitful by an 
energetic enforcement, that we must look for the 
real remedy, legislation that shall he practical 
without being cumbrous or needlessly burdensome. 
This is not the occasion for outlining the details 
of such legislation; whether the statute should 
supply a method of registration administered by 
some already established board, like the State 
Board of Health; or should require examination 
and license through the agency of a purely 
medical board; or should be framed upon the 
model of the English law which forbids the false 
and fraudulent use of any name, title or description? 
implying that its user is a physician or surgeon, 
when he has not been educated or licensed as 
such,—all these matters may safely be left to 
legislative wisdom. But the main point is that 
the commonwealth should afford to its citizens 
some guarantee that the persons who are permitted 
to practise medicine are trustworthy by virtue of 
education. Above all, let it he understood and 
insisted upon that this guarantee, with its attendant 
conditions and penalties, is not a matter into 
which sectarian medicine enters in any degree. 
Let there he an avoidance of all differences rela- 
ting to schools of practice. Let not the smoldering 
embers of medical contention be drawn out of the 
ashes and fanned into life for the gratification of 
controversialists. Let it be remembered that this 
is not a question of therapeutics or of medical 
ethics, but a question of medical education, with 
the fundamental purpose of excluding from medi- AND THE COMMONWEALTH. 
27 
cal practice those who are unfit for it through 
ignorance or wickedness. 
But, some will say, how does this matter con- 
cern the Massachusetts Medical Society, as a 
society? Why need this organization trouble 
itself to take any part in securing legislation 
against quackery? Are we not in the possession 
of an indefeasible charter, with ample protection 
of our rights and privileges as physicians? Do 
we not enjoy, as a Society, the respect and con- 
fidence of the community? Does not the public 
recognize in this association a body of medical 
men and women offering ample evidence of the 
trustworthiness and intelligent skill that are de- 
sired? If any educated physician in Massachusetts 
wishes to acquire the privileges of this recognition, 
by entering this fellowship., is not the way easy 
and the method simple? AVhy need we, an old 
and honored body of regular physicians, fret about 
quackery? Do not the charlatans give us new 
and profitable business by their blunders? AVhy 
should we meddle with the inherent right of every 
individual to choose his adviser in case of injury 
or sickness? AVill not the prudent man make 
seasonable inquiry and select the best; and cannot 
we wisely leave this decision without dictation, 
sure that in the long run the fittest will survive? 
Why need we ask to have new burdens and re- 
strictions placed upon us? 
From the point of view of expediency and pro- 
priety, as they apply to this Society, this purely 
selfish and pharasaical course of reasoning is clearly 28 
THE MEDICAL PROFESSION 
correct. This organization will do well to maintain 
its independent attitude. It has no wish for a re- 
newal of the legislation which formerly made it the 
sole censor of medical practice in this State. It is 
content to attend to its own affairs. It has no 
ambition to pose as a monopolist in medicine. It 
sets an example in medical tone, and in its tradi- 
tions and present aim, cordially favors the highest 
attainable development in medical education and 
medical practice, but it has seen the mischief and 
disappointment which have attended attempts 
made, in its name, to influence and procure medical 
legislation. But this view does not absolve us, 
its individual members, from grave responsibility 
regarding questions of public welfare. We are 
citizens of the commonwealth as well as physi- 
cians; and, as citizens, jealous of the good name 
of Massachusetts, ashamed of her false position in 
the matter now under discussion, we have the 
right and the duty to protest that some remedy 
should be applied to eradicate the evils which I 
have tried to describe. We ought to do all in our 
power to secure some practical process of sifting 
which shall afford to the people an assurance that 
the State is unwilling to trust the lives and health 
of her inhabitants to charlatans and adventurers. 
We ought to insist, and insist again, that it is not 
for ourselves, or to promote our own interests, that 
we wish the State to interfere, but that it is in be- 
half of the thousands in her population who, 
through lack of knowledge or discrimination, 
become the victims of chicanerv and fraud. We AND THE COMMONWEALTH. 
29 
ought to demand that protection for the classes of 
people that do not and cannot protect themselves. 
If professedly intelligent and cultured persons 
choose to demonstrate their wisdom in a peculiar 
fashion, by amusing themselves with the mind- 
cure, and Christian science and hypnotism, and 
other genteel fads, it should be with the distinct 
condition that it is without the State's approval of 
their folly. The strong desire shown by a certain 
class of individuals in this community to imitate 
and emulate their prototypes in ancient Athens in 
eagerness " to hear and to tell some new thing ” 
otters no excuse for indifference, for human life 
is in the balance as the material upon which the 
novelty is to be tried as an experiment. 
In this matter, we can take a useful lesson from 
the very class of pretenders who are under our 
study. The lesson is that if we would accomplish 
anything with the legislature, there must be har- 
monious, energetic, associated action. Let there 
be but a whisper of an intended purpose to obtain 
legislation to regulate medical practice, and the 
swarm of charlatans, grown bold by its very numeri- 
cal strength in Massachusetts, begins to organize 
for defence. The whole body comes to the rescue 
with a zeal and enthusiasm born of a resolve to 
ensure self-preservation. They raise funds, the 
manner of whose distribution it would not be re- 
spectful to intimate. They secure able counsel in 
the persons of eloquent lawyers or popular clergy- 
men, who talk long and well of personal liberty 
and the rights of man. They publish a newspaper 30 
THE MEDICAL PROFESSION 
of their own, which gives information of every 
movement of their ”enemy”; and, by methods 
easily imagined, they convert to their views the 
newspapers which others publish and which derive 
from the advertisements of quackery a revenue 
not to be despised. And so it happens that the 
petitioners for legislation, only half prepared for 
effective action, usually representing a small 
coterie and a divided sentiment, have gone down 
again and again before this numerous and power- 
ful alliance of falsehood and fraud, and have been 
given leave to withdraw. It is evident that this 
experience will be repeated until we realize the 
extent and the strength of the force which has 
intrenched itself in our midst, and until we emulate 
it in enthusiasm, sacrifice and persistency. 
Is it not extraordinary that Massachusetts has 
always been so ready to legislate in an endless 
variety of directions affecting the life and well- 
being of her population, and is reluctant to inter- 
fere with uneducated and unfit practitioners of 
medicine? The general court has provided for 
the inspection of nearly everything that enters in- 
to domestic administration, and has ordained 
proper penalties for frauds and adulterations; we 
have ample protection in the matter of milk and 
vinegar, chocolate and nails, gas and leather, con- 
fections and drugs; but none against the charlatan. 
Massachusetts licenses her auctioneers and her 
pedlers, her pilots and her publicans, her pawn- 
brokers and her warehouse-men, her dentists and 
her druggists; she places even clergymen and AND THE COMMONWEALTH. 
31 
lawyers under regulations, but no difference exists 
in her esteem between the educated physician and 
the fraudulent healer which an adjacent State has 
spewed out upon our soil. We have statutes for 
the protection of lobsters and smelts, rabbits and 
partridges; but for sick people, the State offers no 
defence against quackery. 
Let not medical men say that it is useless to 
seek a remedy from the legislature, that charlatan- 
ism has become too firmly rooted here to be eradi- 
cated by any means, however drastic. Repeatedly 
it has been demonstrated that measures of reform 
have been successfully accomplished with the aid 
of our profession in shaping and guiding legisla- 
tion. Take a single illustration, the evolution of 
the methods prescribed for the commitment and 
treatment of the insane. As late as 1827, an act 
was passed by the Massachusetts legislature 
which included every excited lunatic with “ rogues, 
vagabonds, common beggars, and other idle, dis- 
orderly and lewd persons,” and provided for his 
incarceration in a jail or house of correction until 
he was “ restored to his right mind.” This barba- 
rity continued until the State, in 1832, heeding 
the representations of physicians, established the 
first lunatic hospital at Worcester. For many 
years after this, the process of commitment 
continued to be a purely legal one, without any 
required medical examination. But the protests 
of physicians again prevailed. In 1841, the legis- 
ture passed an act which recognized, for the first 
time, that insanity was a disease, whose diagnosis 32 
tup: medical profession 
required medical knowledge, rather than legal 
acuteness. In 18(>2, it was enacted that for the 
commitment of an insane person to a lunatic hos- 
pital, “the evidence and certificate of at least two 
respectable physicians ” should be required as a 
preliminary to establish the fact of insanity. Some 
modifications have been made in the amount and 
character of the medical evidence in these cases, 
but the recognition of the true nature of insanity 
and of the propriety of placing its humane treat- 
ment in the hands of physicians, rather than in 
those of the keepers of jails, was due to the labors 
of such men as Bell, Wyman, Kay and Jarvis. 
This result shows the effects which medical men 
may accomplish at the State House if only their 
efforts are rightly directed and persistently exer- 
cised. Other examples of this force might be 
cited. The statutes relating to the public healthy 
to the registration of vital statistics, to compulso- 
ry vaccination, to the use of subjects for anatomi- 
cal study, to the investigation of deaths by vio- 
lence, are all memorials of the intelligent zeal of 
medical men in shaping and obtaining wise legis- 
lation. What physicians have accomplished in 
the past is an augury and proof of what they may 
now accomplish in the attainment of statutory 
regulation of medical practice. And not in this 
direction alone. There are other matters wherein 
wholesome laws are needed. I have only to sug- 
gest the desirability of legislation for the more 
effectual prevention of the spread of contagious 
diseases, including syphilis; for less barbarous AND THE COMMONWEALTH. 
33 
methods in the punishment of convicted murderers; 
for better dwellings for the poor; for medical in- 
spection of schools; for the compulsory establish- 
ment of a local health-board in every town. In 
these, and other similar directions, the educated 
physicians of Massachusetts have it in their power 
to bring about salutary reforms. It is a power that 
is not sufficiently appreciated by us, its possessors. 
It is a power which may find its correct exercise in 
various ways: in the open and candid expression 
of opinion as we meet our acquaintances and 
clients; or in properly formulated memorials to 
the general court; or in attendance and spoken 
testimony at hearings before legislative commit- 
tees; or even in service in the law-making body 
itself. It is to the credit of our Society that its 
members have shown their willingness to interrupt 
their professional labors and to respond to the call 
of their neighbors to represent them in the legis- 
lature. It is an honorable service, and nearly 
every session has found, included in its rolls, the 
names of reputable physicians, members of this 
Society, who have given intelligent and faithful 
attention to legislative problems, the satisfactory 
solution of which has been largely due to their 
wise counsel and to the experienced judgment 
derived from their medical training. 
II. But the true test of the value of laws lies 
in their faithful execution and judicious applica- 
tion. Let us inquire, now, concerning the rela- 
tionship of our profession to the Commonwealth’s 
executive department. 34 
TIIE MEDICAL PROFESSION 
In two instances, Massachusetts has selected its 
supreme executive magistrate, the Governor, from 
the medical profession and from the fellowship of 
this Society. Governor John Brooks was elected 
in 1810 and continued in office, by annual re- 
election, until 1823. lie was a practising physi- 
cian, and became a Fellow of the Massachusetts 
Medical Society in 1786. He undoubtedly received 
high political recognition on account of his servi- 
ces as an officer during the revolutionary war, for 
he held the rank of Major at the battle of Bunker 
Ilill, and, later, was in command of a regiment 
and was held in high esteem by Washington. It 
does not appear, however, that his medical know- 
ledge acted to discredit his reputation, or to limit 
his efficiency, as a Governor; for his long service 
in that office is good proof of the manner in which 
he commended himself to the people’s favor. His 
standing as a physician is attested by the honorary 
degree of Doctor of Medicine which Harvard Col- 
lege bestowed upon him in 1810, six years before 
political success lent adventitious lustre to his 
name as a medical man. It is further attested by 
the fact that he was ehosen in 1808 to deliver the 
annual discourse before this Society, and by his 
election to the presidency of the Society in 1823, 
as soon as he was excused from farther service as 
Governor of the State. He was greatly attached 
to this organization, and gave good proof of his 
interest in its welfare by bequeathing to it his en- 
tire medical library. 
Governor Brooks was succeeded in 1823 by AND THE COMMONWEALTH. 
35 
another physician, Dr. William Eustis, who died 
in office in 1825. He, too, like his predecessor, 
had a reputation derived from his military ser- 
vices in the war of the revolution; but his services 
here were distinctly in the line of his profession, 
for he was associated with Dr. John Warren and 
Dr. William Damage in the care of the wounded 
after the battle of Bunker Hill, he himself being 
the senior surgeon of the staff. Although he had 
studied medicine with Dr. Joseph Warren, who is 
better known by his title of Major General, it does 
not appear that Dr. Eustis ever took a medical 
degree. He remained in the army surgical staff 
till the close of the war. He joined this Society 
in 1785. He evidently had ambition to shine in 
other orbits than that of the plodding practitioner, 
for besides being governor of Massachusetts he 
was, earlier, a member of congress, a secretary of 
war and a minister resident at the court of the 
Netherlands. 
These two physicians appear to have satisfied 
the desire of the people for governors having 
medical training and experience, although tradi- 
tion suggests that, since the time of Eustis, other 
medical men have not been reluctant to assume 
the cares of the office if the opportunity appeared 
auspicious for their ambition. But it should be 
stated that long before Brooks and Eustis, long 
before our Society was conceived, Massachusetts 
had in her colonial history two other governors who 
were primarily magistrates, but who knew enough 
of medicine to add materially to their usefulness 36 
THE MEDICAL PROFESSION 
and esteem. Governor Edward Winslow " was 
skilled in the practice of physic ” and made his 
therapeutic attainments materially advantageous 
to the colonists of Plymouth and to their aborigi- 
nal neighbors as well. Governor John Winthrop, 
too, added to his other claims to the gratitude of 
the settlers of the Massachusetts Hay Colony, a 
practical acquaintance with drugs and their uses, 
which made his public functions all the more bene- 
ficent. His double service to his people was 
recognized by his venerated pastor, Kev. John 
Cotton, who described him as a " help for our 
bodies by physick, for our estates by law”; thus 
fixing his place as an ideal medico-legal practi- 
tioner. His son, John Winthrop, Governor of 
Connecticut, was an educated physician. 
The second office in the gift of the people of 
Massachusetts, that of lieutenant-governor, has 
been held by three members of this Society, David 
Cobb (who presided as a judge when he was not 
practising medicine), Henry Halsey Childs and 
Elisha Huntington. 
The executive council of the commonwealth has 
had many medical representatives in its member- 
ship in the course of its history. They have done 
excellent service in advancing the interests of our 
profession whenever occasion offered. This was 
especially the case in 1877, when the assistance of 
the late Dr. William Cogswell was of great value 
in the reform of the methods for conducting in- 
vestigations of deaths by violence. 
In municipal administration, our profession has AND THE COMMONWEALTH. 
37 
shown its adaptability for public affairs in numerous 
instances. Repeatedly, medical men have demon- 
strated their acceptability in the office of mayor 
and in various subordinate positions in city and 
town government. When we read, a few months 
ago, in the obituary notice of one of our oldest 
and most esteemed associates, that he had served 
continuously for forty years as the keeper of the 
records of the town in which he lived and died, 
we had good proof that his capability and fidelity 
were recognized by his fellow citizens. So, too, 
we may recall the admirable services of our 
brethren in the conduct of school-administration 
and in the interests of free education under the 
fostering care of the commonwealth. 
Again, in the management of the public institu- 
tions belonging to the State, medical men have 
found a congenial field for the exercise of their 
wise judgment and executive ability. Ever since 
the establishment of the first lunatic hospital by 
the State in 1832, at Worcester, the boards of 
trustees of these and similar foundations have 
welcomed the acquisition and assistance of phy- 
sicians as an essential element of their success. 
The credit for the progressively humane methods 
in the treatment of the dependent wards of the 
State in hospitals for the insane must be divided 
between the able medical superintendents of those 
asylums and the medical men in the boards of 
government. If one desired a demonstration of 
the executive ability of physicians, let him com- 
pare the State Almshouse at Tewksbury, as it is 38 
THE MEDICAL PROFESSION 
to-day, with its scandalous condition before 1876; 
its discipline, its fine hospital service, its freedom 
from abuses, are in sharp contrast with the methods 
and results which characterized its management 
before a physician took charge of it under the 
authority of the legislature. 
Why should uot the executive efficiency of men 
trained as physicians be utilized still further in 
our public institutions? In India, the governor- 
ship of jails and the position of medical officer 
are combined in the one person of a medical man, 
whose united functions result in great advantage 
to the institutions and economy to the State. 
Doctors of medicine who can manage great hos- 
pitals, can govern penal reformatories; and con- 
victs, as well as lunatics, would be none the worse 
if their full sanitary supervision were in the hands 
of specially trained officials. Who can doubt that 
the discipline of a convict prison would be im- 
proved if it were manifest that judicious care were 
taken to maintain the health of the inmates by the 
humane and practical methods of medical resident 
officers? By the gradual education of junior 
medical officers in this service, a supply of execu- 
tive officials would be at the disposal of the State 
for the management of its correctional institutions 
in a proper and acceptable manner 
There is one chapter of the Massachusetts laws 
whose administration has always been an agreeable 
duty for the members of our profession. The 
statutes relating to the public health have been 
especially interesting to medical men, and the in- AND THE COMMONWEALTH. 
39 
telligent practical application of them has always 
had its best agents among physicians. Ever since 
the board of health of Boston, ninety years ago 
this summer, fitted up an observation hospital on 
Noddle’s Island and invited Dr. Benjamin Water- 
house and other physicians to demonstrate upon 
the patients therein the immunity from small-pox 
infection which Jenner’s recently discovered opera- 
tion of vaccination bestowed; nay, ever since Dr. 
Boylston, nearly a century earlier, fearlessly and suc- 
cessfully acted as the champion of variolous inocu- 
lation, and showed it, in the face of bitter prejudice 
and opposition, to be a means of protection against 
the justly dreaded aud disgusting scourge which 
had swept periodically through the community, 
Massachusetts has found among her physicians the 
most zealous advocates of sanitary legislation, and 
the most faithful servants in executing her enact- 
ments. To the public, this paradox has always 
been a mystery. Why medical practitioners should 
desire earnestly to hinder or control the spread 
of disease, when their livelihood and material 
prosperity depend on its presence, and their 
reputation for skill and success is directly re- 
lated to its prevalence, is a problem which the 
ordinary intellect is unable to solve. The 
reason is that the vulgar apprehension has not 
grasped the difference between a vocation and 
a trade. The enterprising tradesman is not ac- 
customed to place obstacles in the way of the 
successful development of his business, and he 
cannot understand why physicians do not follow 40 
THE MEDICAL PROFESSION 
his example. But we are not engaged in the pur- 
suit of a trade, and our methods are on a higher 
plane than those of mercantile or of mechanic in- 
dustries. We look to the welfare of humanity as 
our first and fundamental object, and the practi- 
tioner who forgets this and seeks primarily the 
gains which are the objective reward of diligence 
is not true to the high purposes of his profession. 
The majority of physicians follow the more un- 
selfish course and are therefore ready always to 
aid and to adopt measures which will protect the 
people from preventable suffering. It is, there- 
fore, not surprising that they are earnest allies of 
the State in the administration of sanitary laws. 
I refer, of course, to the statutes relating to muni- 
cipal sanitation in its broadest sense, including 
those enactments, to which I have already alluded, 
requiring the service of physicians in giving in- 
formation concerning the presence of infectious 
diseases and the registration of births and deaths. 
And what a comprehensive array of enactments 
affecting the public health the statute books of 
Massachusetts present! The silence and indiffer- 
ence of the State with regard to curative medicine 
is in the sharpest possible contrast with the num- 
ber and variety of laws relating to preventive 
medicine. There would almost seem to be a de- 
sign in this, an evidence of a purpose, however 
chimerical, to make our profession a superfluity, 
needing no legislative regulation, by abolishing 
through manifold acts of the general court the 
diseases which call into exercise our therapeutic AND THE COMMONWEALTH. 
41 
skill. However this may have been, the authority 
with which the legislature has endowed municipal 
boards of health in this commonwealth is extra- 
ordinary. 
Recall, for a moment, the almost bewildering 
array of laws which are at this moment in force, 
designed to promote health and resist the encroach- 
ments of disease. The board of health of your 
city or your town has the power, under the statutes, 
re-inforced by decisions of the Supreme Court, to 
interfere with personal and property rights in the 
most arbitrary fashion, if only the interference is 
in the name of the public health. It may remove 
sick persons from their homes and from the care 
of their friends and family physician, and place 
them in hospitals specially provided; or it may 
depopulate a neighborhood, and leave the patient 
in sole and isolated possession of it. It may turn 
back travellers who come from " infected places ” 
across the boundary line of adjacent States, and 
may detain at quarantine those who come by sea 
from other ports. It may forcibly break open and 
enter any house in search of baggage, clothing or 
other articles supposed to be infected with diseases 
dangerous to the public health, and may take pos- 
session of other premises for the safe keeping and 
storage of such articles. It may call unpleasant 
attention to your dwelling by placing danger sig- 
nals upon it if infectious disease has unhappily 
entered there. It may forcibly enter any building 
or premises for the purpose of examining into and 
destroying, removing, or preventing a nuisance, 42 
THE MEDICAL PROFESSION 
source of filth or cause of sickness; and it may, 
in like manner, in its own way, but at the cost of 
the owner, remedy undrained land on which stag- 
nant water stands. It may compel you to abandon 
the conveniences of the ancient cess-pool and privy 
vault on your grounds and, at considerable ex- 
pense to you, connect your dwelling with the pub- 
lic sewer. It may surprise you by a declaration 
that a disease which you have not deemed to be 
formidable is hereafter to be classed as rf danger- 
ous ” to the public, and that every case under your 
observation is to be reported, and the method of 
disinfection at the termination of the case is sub- 
ject to its approval. It may vacate and close 
dwellings which it deems unsuited for habitation 
and may prohibit the exercise of any offensive 
trade outside the limits which it assigns. It has 
control of the cemeteries in which your dead are 
buried, it licenses the undertakers who have charge 
of the burial, and it stands in the way of a burial 
until the medical certificate of the cause of the 
death is satisfactory in form and substance. 
This epitome of the powers with which every 
local board of health in Massachusetts is clothed, 
gives but a hint of the profusion and force of the 
laws which, since the establishment of the first 
board in 1799, the State has enacted. Substantial 
penalties are attached in case of their violation, 
and it would seem that every sanitary emergency 
and exigency had been anticipated. And it is 
worthy of remark that, with all this array of 
authority at their command and with the judicial AND THE COMMONWEALTH. 
43 
officers of the State under an obligation to render 
executive aid in case of need, the boards of health 
have never acted in an arbitrary or unjustifiably 
severe manner. Too often, indeed, sanitary ad- 
ministration has been characterized in some com- 
munities by deplorable laxity and shiftlessness, 
rather than by offensive zeal. The cause of this 
inertia lies in the lack of a genuine public spirit 
which should support and compel the enforcement 
of the laws. If our people would show for sani- 
tary precautions and regulations the sympathetic 
interest which is deserved, the authorities who 
administer the health laws would not be indifferent. 
Wherever a city or town has provided for its 
people a proper local board of health, with an in- 
telligent, energetic medical man as its executive 
officer, the result has been satisfactory, because 
physicians, better than the ordinary citizen, know 
what can be accomplished as well as what is 
needed. 
There is an impression that the State Board of 
Health is endowed with an authority similar to, if 
not greater than, that of local boards. This is an 
error. The functions of the State board are largely 
advisory; its powers as a purely executive body, 
to make orders and enforce them, are quite limited 
and are inferior to those of the local board of 
health of the smallest town in the State. It has 
authority to make investigations concerning the 
causes of disease, to diffuse sanitary information 
among the people, to conduct experiments relative 
to the disposal of sewage, to recommend measures 44 
THE MEDICAL PROFESSION 
for the prevention of the pollution of the water 
supplies of cities and towns, and to advise persons 
or corporations concerning proposed water supplies 
or plans for sewage-disposal, its recommendations 
and advice being a preliminary requisite before 
legislative action. It has special duties assigned 
to it with reference to the adulteration of foods 
and drugs, and may, by its agents, bring offenders 
to trial. Without doubt, the fact that the field of 
its operations is comprehensive, untrammelled by 
municipal limits and embracing whole communities 
and large territories, adds value to its conclusions 
and recommendations by relieving them of local 
or sectional influences. It is a pleasure to ac- 
knowledge publicly that, in all its investigations, 
the board has had the hearty co-operation and 
assistance of the members of this Society. 
But the cynic will ask, of what use is all this 
cumbrous, expensive and complicated sanitary ma- 
chinery? Of what value has it been to the State? 
Do not epidemic diseases prevail just as they did 
before all this legislation was piled up for our 
admiration? Has not pandemic influenza stalked 
defiantly around the world again and again in the 
last three years, without the least hindrance from 
any source? Do not scarlatina and diphtheria 
enter our households and take possession in spite 
of all precautions, official and personal, devised to 
bar them out? Do not the children die by hun- 
dreds in August, and the grand-parents perish by 
the score in March, just as they did a century ago? 
Has tuberculosis been controlled? AND THE COMMONWEALTH. 
45 
To all such pessimistic questioning, full answer 
has been made in the impressive address to which 
you listened three years ago,1 and in the thought- 
ful essay2 of last evening. It is unnecessary for 
me to add to their authoritative statements. But 
it is not improper to remind the sceptic that the 
general mortality rate has been made to diminish; 
that the average duration of life has been appre- 
ciably increased; that in communities which use 
vaccination with reasonable fidelity, small-pox is 
rare enough to be a luxury; that typhus fever, 
once so common, is now a genuine medical curios- 
ity, and to most physicians is as unfamiliar a 
subject for his clinical study as a case of the 
plague. Is it of no consequence, moreover, that 
dwelling-house architecture has followed the ad- 
monitions of physicians and sanitarians and that 
ventilation and drainage are no longer left to 
chance? Is it of no importance that the water- 
supplies of the State are more carefully protected 
from pollution than ever before, and that every 
new supply is critically tested in all its relations, 
physical, chemical and biological, before it is 
accepted? Is it of no significance that the men 
and women of to-day find in athletic exercise and 
out-door recreation the surest road to robust 
health? These are some of the queries that are 
suggested by doubts of the unbeliever in sanitary 
teachings aud practice. To you, who have always 
been in harmony with the progressive spirit in 
1 The Annual Address for 1889, by Dr. H. P. Walcott. 
3 The Shattuck Lecture for 1892, by Dr. J. F. A. Adams. 46 
TIIE MEDICAL PROFESSION 
Massachusetts which is embodied in her health 
laws, obstructive criticism will appear unworthy 
of serious reply. Preventive medicine looks to 
the future hopefully. Many of its problems will 
be solved by the trained bacteriologist whose 
greatest achievements are still before him. Public 
sentiment will approve more stringent methods 
in the preventive management of communicable 
diseases. Tenement blocks for the poor will be 
better adapted to their purposes. And in all 
measures—scientific, practical, administrative—the 
commonwealth, in the future as in the past, will 
look to us and our successors as its best allies and 
most efficient for the protection of the 
people from harmful influences affecting life and 
health. 
There is one other department of the State’s 
affairs to which I wish to refer briefly, because in 
its administration our profession has been con- 
spicuous. I allude to that chapter of the Public 
Statutes entitled " Of Medical Examiners.” The 
Massachusetts law relating to inquests is no longer 
on trial as a questionable innovation; it has passed 
the experimental stage and is now as permanent 
and stable as any part of the judicial system of the 
commonwealth. The practical experience of fif teen 
years has demonstrated that the legislature of 
1877 enacted a law of exceptional value, thoroughly 
adapted to fulfil the purposes for which it was 
designed. In all this period, only two material 
amendments have been made, and neither of these 
modified the essential principles and methods pecu- AND THE COMMONWEALTH. 
47 
liar to the original statute; one of these changes 
simplified the disposal of the bodies of strangers 
found dead, and the other required publicity of the 
official records of medical examiners. In all its 
main features, then, the new Massachusetts method 
of conducting inquests has remained without 
modification since it was put upon trial; and, as a 
piece of experimental legislation, radically de- 
parting from traditional and familiar usages, it has 
accomplished most gratifying and successful re- 
sults. And the reason for this is easy to com- 
prehend. When the general court of 1877 de- 
termined that the venerable but discredited and 
abused system of investigating violent deaths by 
means of coroners and their juries had outlived its 
usefulness in Massachusetts, it was under an obli- 
gation to substitute a legal mechanism that should 
be simple, practicable, economical and trustworthy. 
And this it did with such consummate success as to 
challenge admiration. It provided a procedure 
that accomplished the desired end promptly and 
without friction. It differentiated the purely 
medical elements of the inquiry from those which 
were essentially judicial. It created a medical 
officer whose sole function it should be to deter- 
mine, in any case of mysterious or violent death, 
the anatomical proofs of unlawful acts entering 
into the cause of death; and it made his conclu- 
sions upon this purely medical question the basis 
for further inquest-proceedings by judges trained 
in the methods of taking and sifting evidence and 
required to solve the problem of accountability in 48 
TIIE MEDICAL PROFESSION 
the case. The initial stage, then, of the inquest 
is always the medical determination of the cause 
and manner of the death, and for this determination 
the law provides ample resources. 
It is obvious that the responsibility resting on 
the medical examiner in the discharge of such a 
duty is not of a trivial character. In simple cases, 
even, where his observations are but confirmatory 
of evidence clearly established beforehand, he can- 
not regard his task as a slight one. Suppose a 
person to have been murdered by a pistol-shot 
wound in the presence of witnesses; the tracing 
of the missile through the dead body, with accurate 
study of its course, direction and lesions in the 
various organs and tissues, made and described in 
such a manner as to be clearly intelligible to a 
jury and creditable to the witness, is an exercise 
which calls forth the best activities of the medical 
mind. But such instances are not those which test 
the merits of our Massachusetts system of inquests 
most conclusively. The highest evidence of its 
value is found in the mysterious cases in which 
there is entire want of such information as may 
furnish a correct guide to the examiner in his pro- 
ceedings; or in cases wherein the facts are pur- 
posely and wilfully concealed, or falsely stated, 
with the intent to cover a crime. A young, un- 
married woman dies suddenly in the office of a 
physician, to whom she has gone for advice and 
treatment; if the medical examiner believes the 
doctor’s ready statement and his circumstantial 
account of the affair, he will call the cause of the AND THE COMMONWEALTH. 
49 
death " heart failure” and demonstrate his own 
failure in the discharge of a delicate duty; but if 
he recognizes his obligation as a public officer, 
standing between the community and the commis- 
sion of crime, he will push his investigation beyond 
the voluntary statements of interested persons, 
and he may be rewarded by finding that the fatal 
issue was the result of an abortionist’s manipula- 
tions upon a pregnant womb, admitting air to the 
blood-vessels and causing a death by unlawful 
violence. Such an instance illustrates the possi- 
bilities for usefulness and efficiency which our 
system offers; it shows that to the qualities of 
ability, discretion and learning, which the statute 
requires of medical examiners, there may properly 
be added a wholesome incredulity in doubtful 
cases, a conservative agnosticism which refuses to 
believe that which is not demonstrated. 
That the Massachusetts method of conducting 
these inquiries is acceptable is shown by the entire 
absence of real criticism, as well as by the cordial 
approval of jurists .who have studied its details. 
It has commended itself to the authorities of other 
States, who find in it the indications of a great ad- 
vance in comparison with the clumsy and inverted 
coroner system. It is quiet in its operation. It 
does not, by the exercise of noisy authority, upset 
and demoralize households overshadowed by re- 
cent grief. Its results are certain and tangible. 
It secures for use at trials for homicide the testi- 
mony of trained men well fitted by experience to 
be witnesses. It has absolutely eliminated all 50 
TIIE MEDICAL PROFESSION 
scandal and sensationalism from inquest proceed- 
ings. It has saved money to the county treasuries, 
at the same time affording better service to the 
people. Incidentally, it has gathered a large 
amount of valuable medico-legal observations in 
the transactions of the society conducted by the 
medical examiners, and it has supplied material for 
a full annual course of practical study in legal 
medicine to the students of the Harvard Medical 
School. 
The credit for suggesting and initiating the re- 
form which has wrought these results, and for 
framing the legislative bill whose enactment made 
the reform practical, belongs to a single member 
of the Suffolk bar.1 The credit for making the 
change an accomplished fact belongs largely to a 
few representative members of this Society, who 
persistently and effectively urged the arguments in 
its favor, and, in the face of determined opposition, 
convinced the legislature that a new method of 
inquests was imperatively needed. Hut the credit 
of making the law itself, once enacted, a success, 
rests with the medical men who have been com- 
missioned to administer it. Left to the care of a body 
of selfish, reckless or weak men, appointed indis- 
criminately, this law would have quickly fallen into 
disrepute. Hut it has not been so left. The corps 
of medical examiners in commission to-day repre- 
sents a selection made with care by the executive 
of the State. From the time of the first appoint- 
ments down to the present, the office has been 
1 Theodore II. Tyndale, Eaq. AND THE COMMONWEALTH. 
51 
kept out of the demoralizing influences of partisan 
politics, and for this the community should be 
cordially grateful. The large quota which this 
Society has supplied to the present ranks of this 
useful corps1 contains some of the best representa- 
tives of the medical profession in Massachusetts; 
the same is true of the recent past, and when I 
recall to your minds the names of Hosmer, and 
Cogswell, and Russell, and Winsor, among the 
dead, who while living served in this relation, you 
will not marvel that the law has been administered 
successfully, for it has been administered by con- 
scientious medical men striving faithfully to per- 
form their duty. In the last fifteen years, these 
medical examiners, drawn largely from the Massa- 
chusetts Medical Society, have investigated the 
circumstances of more than twenty thousand 
deaths, and it is not an exaggeration to say that 
no method has yet been suggested by which this 
great medico-legal service could have been dis- 
charged so efficiently, with proper guarantees for 
the protection of the interests of society and the 
administration of justice. 
From this allusion to a special medico-legal 
function of great responsibility which our Fellows 
are discharging acceptably, the transition is easy 
to a consideration of the relationship which our 
profession, in general, bears to the judicial depart- 
ment of the commonwealth. 
III. To state the proposition broadly, the 
medical man finds himself in a court of justice 
1 Sixty-four out of seventy-three. 52 
THE MEDICAL PROFESSION 
under the same exigencies which occur to the 
ordinary citizen, service on the jury alone ex- 
cepted. He is either a plaintiff seeking reparation 
for alleged wrong, or a defendant meeting a charge 
of wrong-doing, or a witness summoned to testify 
in an issue to which others are the parties. Al- 
though these are the three varieties of necessity 
which take him, as they take others, out of the 
routine of daily life, and subject him to novel ex- 
periences more or less unpleasant, he is conscious 
that his vocation as a physician places him in a 
peculiar attitude unlike that of the layman. And 
it is these peculiarities characterizing our position 
in court that I now ask you to consider with me. 
As a plaintiff, appealing to the judicial depart- 
ment of the State to settle the issues of a quarrel 
or to determine the money value of imputed 
wrongs, or to solve for him other problems of a 
similar nature, involving the law of contract, or tort, 
or trespass, the physician is a spectacle of extreme 
rarity. I think it can be claimed with confidence 
that medical men, whatever their other character- 
istics may be, are not noted for litigiousness. 
They do not readily engage in contention. They 
are generally too busy to find in the behavior of 
their fellow-men the occasion for law-suits. Al- 
though there is a certain hyperaesthesia which is 
said to apply to the profession in connection with 
the subject of medical etiquette, this never finds 
its way to the gates of the temple of justice; and 
in the ordinary affairs of life the doctor of medicine 
is seldom found on the hither side of the abbre- AND THE COMMONWEALTH. 
53 
viated Latinism which in the court docket stands 
as a low barrier over which the parties to a suit 
defy each other. If litigation brought into being 
by physicians were the only business which en- 
gaged the attention of juries or equity sessions, 
the courts would have long vacations and the 
practitioners of law would find other more pro- 
fitable employment. The doctor in court as a 
plaintiff, then, need not detain us longer. 
But with the doctor in court as a defendant, 
strenuously bending his energies and using his 
resources to resent an imputation upon his skill 
and care, the case presents a theme of serious 
interest, for it concerns the whole domain of our 
legal rights as medical practitioners. Most of the 
suits in which physicians are the defendants are 
actions instituted by former patients to recover 
damages for alleged malpractice. The fact sug- 
gests, at the very outset, some consideration of 
the obligations which the law imposes on physi- 
cians and surgeons in their treatment of the sick 
and injured persons who employ them. 
To the medical man as he stands in the presence 
of a person who has summoned him for professional 
aid and counsel in time of suffering, the law says: 
" You were under no obligation to respond to the 
summons which called you to this bedside. This 
person had no lawful claim upon you for your 
services. However strongly selfish interest, ex- 
pediency, prudence, or humanity may have urged 
you hither, you had the right to decline the call 
and to remain at home in comfort, if you so 54 
TIIE MEDICAL PROFESSION 
desired. But having responded, and having under- 
taken the care of this case, you have assumed 
certain obligations which the law fully recognizes, 
and which you cannot avoid, except at the risk of 
losing both money and reputation. 
" Your obligation is that of an implied contract 
which, though less formal and specific than an 
express contract executed in writing, is not less 
binding it its nature. 
" You must continue in attendance here, and 
may not abandon the case or desert the patient 
without reasonable cause, or without allowing suffi- 
cient time for the procurement of other attendance. 
"Ip undertaking the medical care of this person, 
you shall attend upon him with reasonable dili- 
gence and skill, and you will be answerable to him 
for any want of ordinary care, diligence and skill 
which results in his injury. 
" Under the obligations of the implied contract, 
in accordance with which you are employed, you 
do not warrant or insure that all the results of 
your attendance shall be satisfactory, that there 
shall be a perfect recovery, or that your treatment 
shall effectually stand in the way of unexpected 
complications. 
"Your judgment relative to the application of 
certain remedies or modes of treatment may err, and 
the law will not hold you responsible for ill results 
growing out of errors of judgment. But you en- 
gage, under the law, to treat this case in such a 
way that any injury which the patient suffers, in its 
course or subsequently, cannot reasonably be 55 
AND THE COMMONWEALTH. 
traced to a neglect of competent and ordinary care 
and skill on your part as its proximate cause.” 
Such are the principles established hy the com- 
mon law as the intangible environment of the 
medical or surgical attendant for his guide and 
control under the usual circumstances of his em- 
ployment. They are the rules which underlie and 
govern those actions of tort wherein the claim is 
set up that negligence and unskilfulness on the 
part of the medical attendant have caused injury 
and distress to his patient, and that money will be 
the proper remedy to heal the wrong imputed to 
him. And it is reassuring to record the fact that 
these rules and principles, however difficult they 
may seem to be as practical guides, have been in 
effect a shield rather than a menace to the inter- 
ests of defendant physicians, and that the cases 
are fortunately few in number in which it can 
be said that unjust and unfounded verdicts have 
been returned by juries upon the issue of impu- 
ted negligence and unskilfulness; where verdicts 
against the defendant have been recorded, the 
testimony has usually left little question that the 
decision was right, because the negligence charged 
was really inexcusable on any reasonable ground. 
But while this is true concerning the issue of 
suits for damages, it is also true-that the law 
interposes no obstacle in the way of initiating such 
suits. Let us suppose that the medical attendant 
has done all that the law requires in the care of 
his case, that he has to the best of his ability used 
ordinary and reasonable skill and diligence and 56 
THE MEDICAL PROFESSION 
has avoided all measures that could be criticised 
as experimental, he may nevertheless, through 
circumstances and conditions over which he has 
no control, find himself a defendant in an action 
of tort brought by his patient. Perhaps the dis- 
located shoulder which he has reduced months 
ago, with proper attention to all surgical details, 
persists in giving pain and in refusing to resume 
its mobility. Perhaps the fractured femur is re- 
stored to duty with a permanent and irremediable 
though unavoidable shortening. Perhaps the 
broken forearm, when taken out of the splints, 
has an uncomely deformity in spite of the most 
assiduous care. Or, in a puerperal case, perhaps 
the woman on her recovery finds that she has a 
disgusting leakage of urine through a fistula in 
the vesico-vaginal septum, and she remembers that 
the doctor used forceps' to deliver her; but she 
forgets that she consented to their use only after 
hours of ineffectual labor, during which the child’s 
head lay low down, without progress, pressing 
upon the very spot that is now the seat of her 
misery. In any of these events, whatever has 
happened out of the ordinary course, it is easiest 
to blame the attending physician for it; and the 
next step is equally easy, the initial step in the 
proceedings for wdiat is called " getting satisfac- 
tion.” However clear the attendant’s conscience 
may be that he is not blameworthy; however 
positive his memory may be that he has done 
nothing and has omitted nothing in his attendance 
that was in violation of the soundest teaching and AND THE COMMONWEALTH. 
57 
the tests of experience, these will not save him 
from the trouble and expense of defending him- 
self against the charge of negligence and unskil- 
fulness as it is formulated and openly made in 
court. The story is an old and familiar one. 
Too often the motive that initiates the suit and 
urges it forward is a most unworthy one, and is 
scarcely to be distinguished from the wickedness 
of blackmail. Too often it is nurtured and stimu- 
lated by lawyers more hungry for plunder than 
ambitious for a good name. Too often it is encour- 
aged by the unfriendly words and actions of pro- 
fessional rivals. Sometimes, no doubt, a suit is 
well founded and the complainant really believes 
in the justice of the complaint, and is candid in 
accusing the physician of carelessness; but such 
apparently well-founded instances are exceptional, 
as we all know, and they cannot bear comparison 
with the number of suits brought with discreditable 
motives. Over these prosecutions, the physician 
is powerless to bring any control; however strong 
his defence may be, he cannot prevent a trial, with 
all its annoyances, risks and costs, except by 
adopting the course of paying money to settle the 
claim out of court,—a course which any self- 
respecting medical man will not adopt, though 
sorely tempted to escape thereby all the wretched 
miseries of a jury trial. 
This constant menace of unjust lawsuits which 
every physician, and especially every surgeon, has 
constantly before him, as the law is now practised, 
is an evil which we may properly criticise and 58 
THE MEDICAL PROFESSION 
denounce. There is one remedy for it which 
might well have general application; if every com- 
plainant of the class we are considering were re- 
quired, upon initiating the suit, to demonstrate his 
sincerity in the justice of his cause by filing a 
sufficient bond, with sureties, to indemnify the de- 
fendant physician for all the costs of the trial if 
the jury should give a verdict unfavorable to his 
claim, we should hear far less of these iniquitous 
suits than we now do. 
It has often been suggested that, in view of 
their liability to unwarranted claims for malprac- 
tice, medical men would do well to organize co- 
operative defence unions for their own protection. 
Such a suggestion has much to make it attractive, 
and it has actually borne fruit in England in a 
flourishing and fully equipped association pre- 
pared to assist its members when they are brought 
to bar as the victims of irritable, or avaricious, or 
depraved human nature. The way is so easy for 
ungrateful or unprincipled convalescents to institute 
charges, and it is so burdensome and costly to re- 
fute such charges, that a medical defence union 
appeals to the imagination very strongly as a real 
relief. But while such a fellowship might serve 
to deter the unscrupulous from bringing suits 
against physicians, in such suits as are pressed to 
trial, the appearance of a medical defendant backed 
by the money and the sympathy of a numerous 
company of his professional brethren might have 
a reactionary effect upon jurymen, who are notori- 
ously ready to render verdicts against corporations 
and corporate interests. AND THE COMMONWEALTH. 
59 
But the incivilities of the so-called civil suits 
which we have been studying do not exhaust the 
opportunities offered to physicians to become de- 
fendants in legal proceedings. There is a kind 
or a degree of negligence and unskilfulness which, 
while offering no bar to an action of tort, is suffi- 
cient ground for the State’s interference and may 
become a subject of investigation on a criminal 
charge. It is when the death of a patient is 
charged to the carelessness or ignorance of the 
attending physician that the machinery for crimi- 
nal prosecutions is set in motion for his discipline. 
All law-writers use nearly identical terms in their 
definition of the degree of dereliction which con- 
stitutes criminal malpractice; and this general 
definition is so tersely expressed by Mr. Bishop 
in his work on Criminal Law that I quote it: "If 
a person, whether a medical man or not, profess 
to deal with the life or health of another, he is 
bound to use competent skill and sufficient atten- 
tion ; and if he cause the death of another through 
a gross want of either, he will be guilty of man- 
slaughter.” 
It is, then, that degree of malpractice which the 
law characterizes as "gross” which renders the 
practitioner liable to punishment under a criminal 
charge. As in the law of civil malpractice, so 
here, definitions hardly define; for the term 
" gross ” conveys a relative and not an absolute 
meaning, and in many cases where a man’s liberty, 
or possibly his life, depended on the decision, a 
real difficulty might easily arise in applying it. 60 
THE MEDICAL THOFESSION 
When we remember that such a decision is to 
come from twelve unenlightened and perhaps 
prejudiced jurymen, we may well contemplate 
with something akin to awe the immunity of med- 
ical men, and feel a sense of gratitude that all 
deaths are not made the subject of judicial in- 
vestigation. On the other hand, however arbitrary 
the criminal law may be in theory, the leading 
cases which are reported demonstrate that, in 
practice, medical defendants under the accusation 
of criminal negligence have been dealt with 
leniently. 
Chief Justice Parsons, in his charge to the jury 
in the notorious Thomson case, said there was no 
reasonable doubt that the patient had died by the 
unskilful treatment of the prisoner and that the 
latter’s ignorance was very apparent; but that if 
the prisoner acted with an honest intention and 
expectation of curing the deceased by his dosing, 
although death, unexpected by him, was the con- 
sequence, he was not guilty of either murder or 
manslaughter. The defendant’s acquittal followed 
promptly. This statement of the law served as a 
precedent in Massachusetts for seventy-five years. 
It has been somewhat modified within the past 
ten years, the Supreme Court having set aside a 
convicted charlatan’s reliance upon it; in this 
latter case, it was decided that a verdict of guilty 
was correct because the death, which followed the 
prolonged swathing of body with flan- 
nels saturated with petroleum, was the result of 
reckless and foolhardy presumption judged by the AND THE COMMONWEALTH. 
61 
standard of what would be reckless in a man of 
ordinary prudence under the same circumstances. 
But it is incomprehensible that any individual 
in my present audience can have any personal or 
direct interest in these legal decisions concerning 
homicidal malpractice. The judicial history of 
Massachusetts contains no mention of any repu- 
table medical man in the position of a defendant 
indicted for the destruction of his patient’s life 
through gross carelessness or reckless and fool- 
hardy presumption. Such an exhibition is mo- 
nopolized by the representatives of quackery. 
Let us turn, then, to a far more familiar relation- 
ship between medical men and the courts of law, 
that sustained by physicians as witnesses. Rightly 
considered, the function of a medical witness 
establishes one of the most dignified and honor- 
able positions in the service of the commonwealth 
which a member of the medical profession can 
discharge. That the function has been abused 
and has experienced a measure of disrepute, is 
quite true. That there are certain features of it 
which are deplorable and most unsatisfactory is 
also true. But it is likewise true that, with all the 
criticism and disparagement of which it has been 
made the subject, medical evidence will continue 
to be an indispensable element in judicial proceed- 
ings, and the medical witness, if he be properly 
equipped for his service, if he be duly appreciative 
of the real responsibilities which rest upon him, 
and if he studiously avoid certain well-defined 
errors and evils which have grown up in connection 62 
THE MEDICAL PROFESSION 
with medical testimony, has it in his power on 
every occasion to command the respect of all who 
observe him, and to be, in the court of justice as 
in the sick-room, the representative of sound learn- 
ing and of manly deportment. 
It has been customary, in treating of medical 
evidence, to classify medical witnesses as of two 
distinct varieties, according to the assumed 
character of their testimony; they are regarded as 
ordinary witnesses if they testify to facts, and as 
expert witnesses if they express opinions or under- 
take to interpret facts. This purely arbitrary dis- 
tinction has had a mischievous tendency affecting 
every medical witness, hampering his usefulness 
on the witness-stand and opening the way to faulty 
practices. The differentiation of facts from opin- 
ions is of service practically, so far as physicians 
are concerned, in establishing a basis for remuner- 
ation and in impressing juries favorably by creating 
a presumption of superior attainments on the part 
of so-called experts. But if we recall the usual 
methods under which medical witnesses are em- 
ployed, we shall see how artificial is such an attempt 
at classification. The truth is that nearly every 
piece of medical testimony is a composite of facts 
and opinions in which the facts largely predomi- 
nate. But they are medical facts, the correct de- 
termination and statement of which require medical 
knowledge, skilled training, and a special aptitude. 
In a trial for homicide, for example, the medical 
examiner who describes the post-mortem appear- 
ances observed at the autopsy is dealing with AND THE COMMONWEALTH. 
63 
anatomical facts, and the correct inference of the 
cause and manner of the death rests, as an incident 
only, on these many ascertained data, the fruit of 
his observation. So, too, when the chemist ex- 
hibits to the jury the arsenical mirror which is the 
result of his analysis of suspected organs or rem- 
nants of food, he is submitting, not opinions, but 
incontrovertible facts. When Professor Wood, in 
a recent capital trial in a neighboring State, de- 
scribed the methods and stated the results of 
hundreds of micrometric observations of blood- 
globules recovered by him from stains upon 
clothing worn by the accused, and testified that 
his observations were consistent with the view 
that the stains were made with human blood, he 
was giving medical facts. When Professor Austin 
Flint testified that in his microscopic and chemical 
examination of the material found under the finger- 
nails and on the clothing of a degraded criminal 
accused of the murder of a woman and the muti- 
lation of her body, he detected crystals of tyrosine 
and other substances which must have come from 
no other part of the intestinal tract than that found 
cut open in the victim’s abdomen, he was giving 
an indisputable physiological demonstration of 
objective facts, which fastened the guilt of the 
homicide upon the prisoner. When Professor 
Jeffries Wyman, in the memorable case which so 
engrossed public interest in this community in 
1850, established by his evidence the identification 
of a mutilated human body, the work that he did 
was not guess-work, but was again a demon- 64 
THE MEDICAL PROFESSION 
stration based upon accurately observed anatomical 
material. 
These are illustrations of the highest type of 
medical testimony, commonly called expert, but 
really an extraordinary grade of ordinary testi- 
mony relating to facts. The same principle is 
seen in the numerous civil suits growing out of 
imputed negligence, whereby accidental injuries 
result. The testimony of medical men connected 
with these cases is largely directed to the descrip- 
tion of symptoms and conditions of a purely 
physical and objective character; to the establish- 
ment of the proof of genuine lesions and the 
elimination of what is subjective or feigned; to 
the reasonable connection of well-ascertained 
causes and effects. Even in the comparatively 
rare cases in which a medical man answers purely 
hypothetical questions, and gives his opinion upon 
assumed facts, of which he has no personal proof, 
the examination does not end with this exhibition 
of the expert’s technical office, but wanders away 
into the various regions of medical knowledge 
pertinent to the questions at issue; the hypothe- 
tical recedes from view and the actual becomes 
prominent. 
Conversely, the physician who responds to a 
subpoena as an ordinary witness, without any inti- 
mation that his testimony will extend beyond 
simple matters of fact, is generally asked some 
questions when on the witness-stand which call for 
the expression of an opinion; and this entitles him 
to recognition and remuneration as an expert. AND THE COMMONWEALTH. 
65 
He may evade the dilemma by declining to answer 
the questions, and may, for his reward, have a 
mercenary element imputed to his motives. Or he 
may take the risk of personal embarrassment by 
attempting to formulate on the spot opinions on 
difficult issues adroitly presented. In either event, 
the fact remains that a purpose has been shown to 
use him as a medical expert when his call to court 
gave no suggestion of such a purpose. 
The conclusion, then, which I wish to draw 
from these considerations is that all medical testi- 
mony is of the nature of skilled service, and de- 
serves appreciation as such. The State has no 
right to place the usual low value on evidence 
which, though denominated "ordinary,” implies 
under every possible contingency an adequate 
degree of learning, skill and training in medicine. 
It has been held repeatedly that knowledge, in 
science or art, is its possessor’s capital, accumu- 
lated through years of study and application; and 
that neither the commonwealth nor any individual 
can make any lawful requisition upon that capital 
without substantial reimbursement. This is the 
well-recognized and universally applied rule 
governing the employment of medical experts, 
who go to court to state opinions with facts. 
Why should not the same rule attach to the ser- 
vices of surgeons and physicians who, heeding the 
peremptory summons, respond as witnesses to give 
evidence of clinical facts, of physical appearances, 
the presence or absence of signs and symptoms, 
and all those other matters the correct observation 66 
THE MEDICAL PROFESSION 
and description of which require a definite amount 
of knowledge, the fruit of much patient study 
or long experience? The demand which in the 
name of the commonwealth is made upon medical 
men, wasting their time in tiresome delay, in- 
terrupting their professional routine of duty, 
subjecting them to disagreeable and irritating 
experiences, extorting from them facts acquired 
under the confidential relations of the sick-room, 
is not one which, under prevailing conditions, is 
answered with cordiality. It is among the un- 
pleasant incidents of professional life. It reminds 
us that of all departments of our practical work, 
the medico-legal service is the only one which we 
cannot control, or evade, or transfer to others. 
The call of a judicial summons is imperative, and 
physical disability will alone excuse its neglect. 
When, therefore, we consider the nature of the 
testimony which the medical witness will impart, 
its indispensable value in determining disputed 
questions, and the degree of technical knowledge 
required for its correct presentation, we do not 
exceed propriety if we ask that the State shall in 
some way provide fit methods for the adequate 
reward of such involuntary service, or shall place all 
purely medical testimony in the relation now held 
by expert testimony and subject to the ordinary 
customs of preliminary adjustment and agreement. 
One other feature of medical testimony solicits 
attention; it relates to the deportment of the wit- 
ness in court. The ideal medical witness possesses 
these qualities: his demeanor is dignified and un- AND THE COMMONWEALTH. 
67 
constrained; he has large stores of well-seasoned 
knowledge; he is quick in apprehension, firm and 
immovable in his convictions, but conservative and 
judicial in reaching them; he has a retentive 
memory, a reserved courage and an imperturbable 
temper; he is terse, direct, clear and concise in 
statement, and especially is an adept at translating 
every technical term into words and phrases clearly 
intelligible to every juryman; he abhors garrulity, 
flippancy and trickery; he aims to be candid and 
strives to be impartial, disinterested and free from 
bias. 
Sometimes, though very rarely, one sees a phy- 
sician on the witness-stand who represents faith- 
fully all these requirements; he is the object of 
our emulation and envy. Much more commonly, 
however, medical testimony illustrates character- 
istics quite in contrast with the ideal. The 
physician whose methods on the witness-stand 
we do not desire to copy is garrulous, affected, 
pedantic, flippant, ready to engage in controversy, 
dogmatic, and above all saturated with partisan- 
ship. Of all these faults, the last is the most 
common and conspicuous and the one which has 
brought the greatest reproach on medical men as 
witnesses; it is this which has led judges on the 
bench to disparage and belittle medical experts; 
which has caused writers on jurisprudence to dis- 
credit their value; and which, in practice, has 
induced juries to ignore their testimony altogether 
in trying to reach a verdict. But while admitting 
that partisanship is a too common element of medi- 68 
TIIE MEDICAL TIIOFESSION 
cal evidence, I insist that it is an evil for which 
medical men should not be held responsible. It 
is the unavoidable and legitimate fruit of the con- 
ditions under which the modern practice of the law 
is pursued. The physician in the sick-room does 
not exhibit the disposition here depicted; but place 
him under the novel and subtle influences of the 
court-room and he becomes another creature. In 
this new' relation, he inevitably finds himself 
subject, in greater or less degree, to peculiar temp- 
tations. For nearly all that is objectionable in the 
exhibitions of partisanship made by medical wit- 
nesses, I blame the methods under which such 
experts are employed; the system, and not the 
witness, is at fault. A case, for example, occurs 
wThich offers an opportunity for the use of medical 
testimony. You receive a politely insinuating 
invitation from the counsel, to serve as an expert. 
You do not inquire very closety into the grounds 
that have determined the selection; you feel com- 
plimented, at all events, and you consent to be 
retained. Now, having fully committed yourself 
to the service of your employer, your independence 
is almost necessarily laid aside. You are expected 
in preparing for the trial to develop all the ele- 
ments in the case favorable to your employer’s 
side only. The advocate consults with you, nour- 
ishing in you a controlling partiality, and doing 
all in his power to stimulate a cordial interest in 
his client’s cause. The witness thus appproaches 
the trial, expert chiefly as a partisan medical ad- 
vocate. Against the insidious influences which AND TIIE COMMONWEALTH. 
69 
promote this surrender of mental equipoise, few 
physicians could successfully defend their judg- 
ment. Ordinarily, the exigencies of his service, 
his sympathy with the client’s claim, his sense of 
obligation to fulfil an implied contract, all draw 
the medical witness from a judicial independence. 
Then at the trial itself, still more compulsory in- 
fluences encompass him. He now finds himself in 
the arena, marshalled with others to defend his own 
side, to defeat the opposing side. He is harassed 
by the technical limitations of the rules of evi- 
dence. Through the inability of lawyers to 
conduct acceptably an examination on medical 
subjects, he is made inadvertently to state views 
which, under other circumstances, he would not 
think of supporting. The leading questions with 
which the cross-examination bristles ensnare him 
into unexpected and embarrassing corners, out of 
which the easiest way lies through extraordinary 
expositions of medical knowledge. Professional 
pride compels him to defend stoutly his position* a 
retreat from the ground being deemed worse than 
the blunder which took him there. First, last and 
always, he is to shape his course with the single 
aim of helping to win a verdict favorable to his 
side, and of earning thereby the dollars which are 
his reward for faithful service. 
It is cause for regret that the English and 
American methods of employing medical experts 
have fallen away so far from the primitive practice. 
Under the Roman law, the physician in court as 
an. expert witness held a relation of exceptional 70 
THE MEDICAL PROFESSION 
honor and responsibility; he was amicus curies, 
an independent and unprejudiced interpreter of* 
medical facts. He was summoned to instruct the 
court and jury in matters of which they had, pre- 
sumably, an imperfect knowledge. His duty was 
to aid in establishing the whole truth. Jn such 
a position, a physician occupied an oflice of honor, 
lie was chosen because of his fitness; he truly 
represented his profession. And in still more 
recent times, even down to the present period, the 
system in vogue in France and Germany is far 
in advance of our own in securing the end which 
the theory of medical expert testimony designs. 
Either under the German plan which provides for 
official experts, or under the French method which 
leaves the choice and employment of the expert to 
the discretion of the court, the medico-legal re- 
sults are admirable and in striking contrast with 
the procedures with which we are familiar, and 
which permit a suitor to come into court with a 
company of medical Hessians enlisted to defeat 
his opponent. 
Now, what can be done—and this is the one 
important question for consideration—to modify, 
or, if need be, to revolutionize these unsatisfactory 
methods? Without pausing to review the various 
propositions that have been made from time to 
time for accomplishing this end, I remark at the 
outset that, as may readily be inferred from what 
has been presented, the first thing to be desired is 
the removal of the medical witness from the influ- 
ences and temptations of partisanship; he must be AND TIIK COMMONWEALTH. 
71 
lifted far above the plane of bias. This is the 
corner-stone on which the entire new structure 
must be built, if the evils of which we complain at 
present are to be eliminated. Other provisions are 
mainly correlative and subordinate details growing 
out of this. 
To secure this end, the best way, because it is 
the most in accord with American notions of fair- 
ness, is that which would provide that the medical 
expert in any action at law, civil or criminal, 
should be the choice of the two parties interested 
in the litigation; or, in the event of their disagree- 
ment or neglect, the choice of the court.1 Grant 
this primary principle, and all other secondary 
questions and exigencies will find comparatively 
easy adjustment. The advantages of such an in- 
novation, both theoretical and practical, are too 
plain to be mistaken. Theoretically, such a plan 
would secure experts in fact as well as in name, 
since it would obviously be for the interest of all 
concerned that the best available medical judg- 
ment should be obtained upon technical questions 
involved in the issue on trial. Instead of the 
present deplorable exhibitions, so amusing to 
lawyers, so discreditable to our profession, so 
subversive of justice, we should see a true repre- 
sentative of medical science, selected because he 
is recognized as such, appearing in court as the 
interpreter of the medical data established in the 
1 The practicability of this method was demonstrated by the New 
Hampshire Supreme Court in a case which occurred during the prepara- 
tion of this discourse. 72 
THE MEDICAL PROFESSION 
evidence. We should see him the impartial ex- 
ponent of the most recent authoritative advances 
in science, as well as of the settled principles 
which are the fruit of long experience. We 
should see him, with the same judicial indepen- 
dence which the presiding justice himself must dis- 
play, passing judgment, without fear or favor, on 
matters which legitimately fall to his office as an 
expert. There would be little danger that this 
altogether honorable function would fall into un- 
worthy hands under such a system; the man 
chosen would, from the necessities of the case, be 
well known as the possessor of knowledge fitting 
him to comprehend and to elucidate the points 
presented in the testimony. The man of pro- 
nounced and peculiar views, the man of hobbies, 
would not be sought; his judgment is already 
discounted. 
In practice, the expert thus selected would 
make such investigations as the case demanded, 
would listen to all the testimony, and at the proper 
time would report his conclusions, either as oral 
evidence or, preferably, in the form of a written 
statement. Here would occur an opportunity for 
professional distinction. The name of medical 
expert, instead of conveying with it a questionable 
flavor, would become a term of good repute, at- 
tracting rather than repelling the master-minds 
in our profession; while the many-sided questions 
presented in legal suits and actions would offer 
occasions for medico-legal reports such as have 
made Germany and France confessedly the leaders 
in forensic medicine. AND THE COMMONWEALTH. 
73 
But at just this point, the typical banister, with 
a gesture and in tones familiar to those of us who 
have ever served as witnesses, says: "Stop a mo- 
ment! I object!” And when asked to state his 
objection, he replies: "I object because such a 
scheme would interfere with the constitutional right 
of the individual citizen to defend his life, person, 
property or character by producing 'all proofs that 
may be favorable to him.’ I object because when 
I undertake to prosecute a suit at law or when I 
am engaged to defend a client, I wish to know 
precisely what the evidence favorable to my cause 
is to be; I have no intention of remaining wholly 
ignorant of the medical conclusions up to the time 
of the expert’s appearance in court. Moreover, 
I object because I will not waive my control over 
all accessible proofs that will aid my purpose. I 
am in court theoretically to see that justice is ad- 
ministered; but I am here in reality to do what I 
can to win a verdict for my client, and I wish, in 
order to secure that end, to employ all lawful 
means, including medical evidence of my own 
choosing; and if this evidence is skilfully warped 
and stretched to meet well the exigencies of my 
claim, it will be so much the more useful and ac- 
ceptable.” This is the lawyer’s view of the matter; 
and it is this spirit which has hitherto stood as an 
insuperable obstacle in the way of a much needed 
reform of the present methods. It is a purely 
selfish spirit held by a large part of the legal pro- 
fession, but repudiated by a few conspicuous and 
honorable exceptions. It will continue to offer 74 
THE MEDICAL PROFESSION 
objections to the advent of better procedures, 
however fully it may have been demonstrated that 
they are entirely feasible and satisfactory in prac- 
tice. 
Meanwhile, we as physicians have a plain re- 
source. When required to discharge the duty of 
medical witnesses, let us diligently aim to illus- 
trate a high standard. Let us avoid well-recog- 
nized errors to the utmost of our ability. Let us 
decline to act simultaneously as medical advocates 
and medical witnesses. Let us endeavor to give 
our testimony with the same candor and the same 
independence which would characterize our state- 
ments if instead of the peculiar environment of a 
court of justice, we were in the presence of an 
audience of friendly, but critical, medical asso- 
ciates. Difficult as such a duty is, it is not im- 
possible of performance. 
IV. This review of the relationship which our 
profession holds toward the commonwealth will be 
incomplete without some reference, in conclusion, 
to a still higher obligation resting on us. It is the 
obligation of loyal citizenship, involving duties 
superior to any of those which I have undertaken 
to discuss. Men sometimes speak of citizenship 
as a privilege, to be used or laid aside with easy 
indifference. Properly considered, it is much 
more than this; it is a living trust, a priceless 
heritage, involving duties as well as rights. In 
the presence of educated physicians, there is no 
need to emphasize this. They recognize their 
obligation and their opportunity,—their personal AND THE COMMONWEALTH. 
75 
obligation of earnest loyalty, their opportunity, 
through the place they hold in the community and 
in the household, to raise the level of civic virtue 
by precept and example. To them, the service to 
the State which the best type of citizenship pre- 
sents is not expressed in political zeal, in greed 
for office, or in an active partisanship which in 
medical men is always especially offensive and 
objectionable. It means, on the other hand, abso- 
lute independence of all machine methods in 
politics. It leaves practical politics to "profes- 
sional ” politicians, but it never fails or omits to 
register its convictions through the agency of the 
ballot. It is found in sympathy with all reason- 
able methods of moral and social reform, but 
avoids impracticable radicalism and sensationalism. 
It stands for popular education and defends the 
public schools from all assaults, overt or insidious, 
that would impair their usefulness and freedom. 
It insists on fidelity and honesty in official station. 
It aims to aid in shaping a healthy public opinion 
upon all matters pertaining to the welfare of society 
and the elevation of mankind. It protests against 
the fastidious indifference which too often marks 
the attitude of educated men toward civic affairs. 
When the nation’s life is assailed, it is found at 
the front represented by such men as Derby and 
Otis, and Sargent, and Hooker, and Bell and Ly- 
man, adding new lustre to the proud title of 
Massachusetts volunteers. 
Fellows, these closing years of the nineteenth 
century are making an extraordinary record of 76 
TIIE MEDICAL PROFESSION. 
progress in all that pertains to the science and the 
art of medicine. The brilliant, almost audacious, 
achievements of modern surgery and the benefi- 
cent triumphs of rational and preventive medicine, 
inspire our admiration and stimulate our zeal. In 
the rapid movements of our noble profession along 
all the lines of advanced development, we find it 
difficult to keep our leaders in sight; star-eyed 
science certainly does not encourage loitering on 
the part of her votaries. But while we strive to 
keep in touch with this spirit of progress in all 
that belongs to our domain as physicians, let us 
not forget the claim which the commonwealth may 
properly make upon us as citizens. Let us seek 
earnestly, each in his own community, to illustrate 
the highest ideals of loyalty and fidelity. So may 
we, in a double sense, as physicians and as citi- 
zens, discharge our duty to humanity.