LECTURES 
ON TOPICS CONNECTED 
WITH 
MEDICAL JURISPRUDENCE 
DELIVERED BEFORE THE 
Medical Department 
OF THE 
UNIVERSITY OF VERMONT 
BY 
is. cr. ip:h::ei_1:p&. 
APRIL, 1881. I 
Reported Stenographically by Sumner Gleason and Chas. H. Nichols, 
and printed for the use of the Medical Class. 
BURLINGTON : 
THE FREE PRESS ASSOCIATION. Entered according to Act of Congress, in the year eighteen hundred and eighty-one, by 
SUMNER GLEASON and CHARLES HENRY NICHOLS, 
in the office of the Librarian of Congress at Washington. LECTURE I. 
MEDICAL EVIDENCE. 
Medical jurisprudence, gentlemeif, is that combination of 
legal and medical science sometimes found necessary to the 
administration of justice. Its learning- is principally medical, 
its application altogether judicial. When taught by the phy- 
sician to the lawyer, it treats of medicine; when the lawyer 
instructs the physician, it treats of law. It is wholly from 
the legal side that I shall attempt to deal with the subject, in 
the few lectures I shall be able to offer you. I could not 
supplement your medical instruction; certainly I shall not 
try. And even of the law that belongs to the subject, much is 
only useful to the lawyer, and but a part is ever actually 
serviceable to the physician. I shall therefore confine myself 
to some of those practical considerations and suggestions, 
which, as it seems to me, may be valuable to you in your coming 
professional life; troubling you with no theories, with no 
speculation, with none of the theoretical philosophy, if it may 
be dignified by that title, which attaches to this subject as to 
so many others, endless in its extent, and very rarely useful in 
its results. 
The sole connection, with a single exception, you will 
ever be likely to have professionally—as physicians—with the 
department of medical jurisprudence, is hi the capacity of 
medical witnesses. The one exception, if strictly it may be 
called so, is the liability of a physician, civilly and criminally, 4 
MEDICAL JURISPRUDENCE. 
for his own professional conduct. On that point I shall have 
something to say before the course is completed. But with 
that exception, the whole subject, from the legal standpoint, 
so far as you are practically concerned, narrows itself down to 
a consideration of the rights, the privileges, the duties, the 
responsibilities, and the requirements of the medical witness. 
What I have to say might therefore have been more property 
entitled, observations upon medical evidence, rather than upon 
medical jurisprudence. 
Now in tlie first place wliat is “expert testimony?” And 
what, especially, is meant by the term “ medical expert ?” Or- 
dinary testimony in a* court of law, is confined to the state- 
ment of those facts which a man learns by the use of his phy- 
sical senses. He may state what he has seen, what he has 
heard (from the proper quarter), what he has tasted, or smelt, 
or physically felt; and that is all. The operations of his men- 
tal consciousness are entirety excluded. His opinions, infer- 
ences, conclusions, expectations, theories, hopes, fears, and 
thoughts, are all shut out. When he has stated the facts he 
personalty knows, the inference, the conclusion, the opinion to 
be formed upon them, must be formed by the court or jury, 
that has the case to decide. So that an ordinary witness, no 
matter how humble his capacity, requires no previous prep- 
aration. The very idea of preparation usually suggests that he 
is expected to tell something besides the truth. He has but 
one rule to observe, and that is to tell the truth, as far as he 
knows it, in the simplest way. But the administration of the 
law further demands, and therefore allows, the class of testi- 
mony I have mentioned, called “expert testimony;” that is to 
say, the testimony of men who by their familiarity through 
study or special experience, or both, with a science, an art, or 
sometimes an industry, are permitted to state not merely facts, 
but opinions, scientific truth in the abstract, theories, con- 
clusions, and their application to particular cases. Who is a 
competent expert in any given case, is a question that is de- Medical evidence. 
5 
cided by the court. Upon a preliminary inquiry to the witness 
selected and called by a party to the cause, as to his experi- 
ence and acquaintance with the subject, the court determines 
whether or not he is a competent witness for that purpose, 
whose testimony may be heard for what it may be worth. 
Experts are of two kinds, practical and scientific. Practical 
experts are those who have acquired a peculiar skill in some 
unscientific specialty, by actual experience in it,—as the me- 
chanic, or sometimes the farmer, in respect to certain branches 
of their callings. That is an humble class of expert testi- 
mony, not usually of great importance. It is not commonly 
dignified with the name of expert testimony, although strictly 
speaking it is such. The more important class, and that to 
which your attention is required, is that of scientific experts; 
those who have become sufficiently acquainted with the 
principles of some established science like medicine, surgery, 
chemistry, engineering, or mechanics. On such subjects, those 
accomplished or learned in them are received as expert wit- 
nesses, and are called scientific experts, or, within your own 
profession, medical experts, or medical witnesses. 
Now, as a medical witness, you are permitted and will often 
be required to state, in the first place, abstract scientific truth 
in your own department ; such as the anatomy of man ; the 
structure of the body ; the various organs, and their functions; 
the pathology of disease, its source, its progress, its diagnosis, 
its prognosis, its treatment, its consequences, the origin of 
life, the cause of death. Then you will be called on further, 
to give opinions in respect to particular cases of injury, 
disease, or death. “What is the matter with this man ? What 
was the cause of it ? What should be the treatment ? Is he 
likely to recover ?” In short, the whole range of material in- 
quiries, that may arise in respect to any given case. And those 
questions may be put under three different conditions. 
1. You may be asked to testify in respect to some case that 
you have personally examined, either because you have at- 6 
MEDICAL JURISPRUDENCE. 
tended it in a medical capacity, or have been called to 
examine it for the purpose of forming an opinion as a witness, 
to be stated in court. 2. Abu may be required to answer the 
same questions, upon conditions and symptoms detailed by 
some other physician, in respect to a case you have never 
seen ; and where the inquiry assumes such statement to be 
true. 3. And finally, you may be subjected to the same ques- 
tions, upon supposed or theoretical cases. These latter inquiries 
may be put, not only where the case supposed is taken to be 
or claimed to be the real case in dispute, but also for the pur- 
pose of testing the capacity of the witness, his knowledge, his 
intelligence, his fairness. Of course there is a limit to that 
sort of inquiry, which rests largely in the discretion of the 
court, and depends somewhat upon the witness to whom such 
questions are addressed. In these three ways, therefore, you 
may be called upon to give opinions, conclusions and theories, 
sometimes in the abstract, and sometimes in respect to indivi- 
dual cases. That constitutes the testimony of the medical 
expert. 
While every man in the community can be compelled to 
attend court as a witness in any case in which either party 
thinks proper to summon him, whether he knows anything 
about the case or not; and although a physician or a surgeon 
like any other man may be brought into court as a witness, 
and compelled to attend there in response to a subpoena, and 
to state all material facts within his personal knowledge, he is 
not obliged to testify to opinions, or to give what I have at- 
tempted to define to you as expert testimony. A physician 
has a right, if he pleases, in response to inquiries of that sort, 
to decline to express opinions. He must judge for himself 
whether he has sufficient acquaintance with the subject— 
whether he possesses an opinion that he is willing to swear to. 
And one of the values of that privilege to the medical profession 
is, that it enables them to command a compensation for attend 
ing as expert witnesses, beyond the small fee that the law pro- MEDICAL EVIDENCE. 
7 
vides for ordinary witnesses. It is customary, and it is proper, 
that physicians who are called into court to testify to scientific 
truths or opinions, and perhaps to examine cases to qualify 
themselves to testify in regard to them, should receive an 
adequate compensation for their services. Of course cases 
arise in courts of justice as in private practice, where charity 
or humanity call for the gratuitous services of the physician as 
an expert witness, as they call for his services at the bed-side. 
But there is no legal obligation on the part of the medical 
witness, to give his opinion as an expert. 
Communications made to physicians by the parties on 
whom they are attending, are not protected by law from dis- 
closure in courts, if the physician should happen to be called 
as a witness, except in a few states where special statutes on 
the subject exist. In my judgment they ought everywhere to 
be protected, and the confidential communications between a 
patient and his physician should be placed on the same footing 
with similar communications between a client and his counsel 
or attorney, which cannot be disclosed. I hope, ultimately, 
such will everywhere be the law. But as the general law now 
stands, you may be in most states compelled in courts of 
justice to disclose communications and statements of your 
patients that were confidential in their character, and which 
perhaps it may be very important to the patient should re- 
main confidential. And that being the case, only two sugges- 
tions can be made on the Subject. One is that physicians 
should be careful, where they perceive that what is said to 
them may be the topic of judicial inquiry, or may expose the 
patient to some legal consequences, neither to invite nor 
receive confidence beyond what their professional duty makes 
necessary. The other suggestion is, that it is comparatively 
rare that witnesses are called upon in courts to testify upon a 
point, on which their knowledge has not been previously 
ascertained. You will not be very likely, therefore, to be 
asked for such a disclosure, unless it has in some way trans- 8 
MEDICAL JURISPRUDENCE. 
pired that you are able to make it. And I need not say that 
in respect to communications of that sort from patients, 
very great care should be taken by the physician, that no one 
becomes aware that the enterprise of interrogating him on the 
stand concerning them, would be likely to be successful. In 
short, they never should be disclosed at all, so long as it can 
be avoided without perjury, or a direct violation of the order 
of the court. 
Let me say one thing further on the general topic of 
medical and surgical evidence. Your profession has an ex- 
clusive monopoly of it. There is no other witness who under 
any circumstances will be heard in a court of justice on that 
subject. The whole matter is absolutely in your hands. And 
though you are not called upon as judges to decide the cause, 
you furnish all the materials on which the questions turn which 
do decide the cause, where it depends upon medical evidence. 
It is the only monopoly you have ;—not the only monopoly, in 
my judgment, you ought to have; but in most of the states of 
our country a man may be doctored by a quack or an impos- 
tor if he pleases, and it is the pernicious right of the quack or 
the impostor to doctor him. The medical profession have 
generally no legal monopoly of the practice of medicine or 
surgery. But the equally important function of supplying 
the courts in all cases where it becomes necessary, with all the 
medical truth, and all the opinions in respect to individual 
cases, on which they must proceed, belongs exclusively to the 
physician. 
Now, I ask you, young men, with your professional life 
before you, to pause on the threshold of the subject, and try 
to appreciate adequately the importance of this great duty. 
And you will see upon a very little reflection, that there is 
no duty you are likely to be confronted with in your profes- 
sional capacity, more important than that of supplying to the 
tribunals of your country, the evidence upon which questions of 
this sort are to be determined. If I were to venture to pass MEDICAL EVIDENCE. 
9 
any criticism upon a profession so honored and so honorable as 
yours, deduced, as all that I have to say to you will be, from 
a long experience in courts, where I have seen many physicians 
brought forward as witnesses—I say if I were to venture upon 
any criticism, it would be, that it is too often the case that 
physicians come forward as witnesses, without reflecting upon, 
without realizing, the very great importance that may be at- 
tached to what they say. It is important in the first place to 
the parties concerned. Life is often involved in it. There is 
hardly a day in the year, but somewhere within the range of 
the common law, some life is trembling in the balance, depen- 
dent upon medical testimony. Thousands of men have gone 
to their death upon such evidence, and as many more have been 
saved from death by it. It involves character and liberty very 
often, which are better than life. It involves family and social 
relations; it comes between husband, and wife, parent and 
child, brother and sister. And it involves constantly, large 
amounts of property, great public interests, and all sorts of 
private concerns. It is important likewise to the administra- 
tion of justice, that most precious of all public functions, too 
often, like good health, unappreciated till impaired; and es- 
pecially important, because such evidence, unlike ordinary 
testimony, can rarely be answered or refuted outside of the 
profession from which it comes. In respect to unscientific 
subjects, a reckless or mistaken witness can usually be contra- 
dicted. The knowledge and experience of courts and juries 
themselves, on such topics, enable them to estimate evidence 
at its true value, and to perceive its mistakes. But when they 
enter the field of scientific learning, and its application to par- 
ticular controversies, they must go by the light they receive. 
The most enlightened magistrate, the most intelligent jury, 
are unable to judge over the heads of the profession. If phy- 
sicians disagree, the triers must settle the dispute as well as 
they can ; but it is the preponderance of the medical evidence 
after all, when ascertained, that must determine the issue. 10 
MEDICAL JURISPRUDENCE. 
It may be doubted, distrusted, suspected, but there is no other 
resource. 
And it is further to be kept in mind, that the importance 
of such evidence extends not less to its manner than to its 
substance. It is extremely liable to be misunderstood by un- 
scientific minds, unless expressed with clearness, accuracy and 
completeness. It is easily perverted where room for perver- 
sion is left. Here more than elsewhere is it true, that 
“ Many a shaft at random sent, 
Finds aim the archer never meant.” 
Bear in mind, then, always, in approaching this subject, 
that the law of the land places in your hands a great trust, 
which as all trusts do, carries with it a corresponding obliga- 
tion, and a corresponding responsibility. It trusts the profes- 
sion to which you belong ; it trusts the training you have re- 
ceived ; it trusts the moral character which true intellectual 
training always ought to develop. And it leaves with confi- 
dence the whole duty in your hands. 
Now, alive, an I hope you will always be, to the serious 
importance of the errand you are upon, whenever you cross 
the threshold of a court of justice for this purpose, allow me 
to offer you some suggestions on the subject of the character, 
the manner, and the proprieties of that sort of evidence. And 
do not regard me, I pray you, as undervaluing either the sub- 
ject or yourselves when I say, as the first thing to be kept in 
mind, that a physician should not permit himself to be made 
an expert witness, which as I have already shown you requires 
his own consent, nor assume to occupy that responsible posi 
tion in any case, until he is very sure that he has an adequate 
knowledge of the topic in hand. The range of medical testi- 
mony is as large as the theory and practice of medicine itself. 
There is no case you can be called to, from the teething 
of the infant to the most insidious disease that ever baffled the 
skill of a physician, or the most critical and difficult operation 
that surgical science ever achieved, but may become the sub MEDICAL EVIDENCE. 
11 
ject of medical testimony. Of course there are many topics 
which gentlemen in the profession have no right to be ignorant 
of. If they are, they have no right in the profession. On 
this ordinary range of topics, every regularly educated physi- 
cian should be and is at home always. But there are many 
others, of less frequent occurrence, that may come under the 
review of judicial proceedings, on which a physician may have 
some general, perhaps vague and inadequate knowledge, but 
no thorough acquaintance. He has never made them the sub- 
ject of particular study. In the course of his practice he has 
never or rarely encountered them. They are out of the every 
day routine of medical life. On such subjects, a partially in 
formed physician ought to decline to take the responsible 
situation of an expert witness. It is no discredit to a man to 
say, “I do not know.” That is often a creditable answer, 
and it is remarkable how often it is a true one* A man need 
therefore be neither afraid nor ashamed to leave expert testi- 
mony on rare and out-of-the-way points, to those with whom 
they have been a study or a specialty. This seems all very ob- 
vious when it is stated; it is pretty much the same as saying, 
‘T)o not testify to what you do not know.” But I have some 
times seen professional gentlemen—not often, I am happy to 
say—make them appearance on the witness stand, to testify 
glibly as experts upon subjects with which they were very im- 
perfectly acquainted. And I have seen them go away with 
a lively and realizing sense of the sifting process that superfi- 
cial knowledge, that worst kind of ignorance, undergoes in a 
court of justice. 
Again, while I never knew a man succeed in conveying to 
others knowledge that he did not possess, I have known 
many who have entirely failed in trying to convey the knowl- 
edge they did undoubtedly possess. A man may be full of 
information which he cannot express. He has not, it is said, 
the gift of language. But the difficulty in expressing himself 
is usually much less the want of language, than the want of 12 
MEDICAL JURISPRUDENCE. 
that clearness of idea that comes from systematic, calm, and 
continuous thought. Knowledge not digested by reflection, 
is just as valueless as food that is undigested in the stomach. 
The curse of our time is the vast quantity of undigested 
knowledge that is everywhere prevalent. Thousands of force- 
pumps are at work in all directions forcing knowledge into 
people. It is wonderful how much men know,—and it is won 
derful, often, how little good it does them. 
I might hold up before you a crystal, symmetrical, translu 
cent, beautiful, and in the other hand a handful of mud. The 
one you treasure; the other you throw out at the window. 
Yet chemistry might inform you, that in that handful of mud 
were all the constituents of the crystal. The difference is that 
they have not been separated, and they have not been crystal 
lized. That silent mysterious process in the laboratory of na 
ture, which has formed the crystal somewhere and somehow, 
has not acted upon these crude materials. There is the same 
difference, as it seems to me, between the mental processes of 
the man who has knowledge that has been crystallized into clear, 
distinct, accurate perceptions, and those of the man who is 
crammed full of knowledge that he has never digested. He 
who is too lazy to think, as many are. or too busy to think, as 
many more are, had better keep his mouth shut, because he 
never will distinguish himself by anything he is likely to 
say. The application of these suggestions that I desire to 
make, is this : When you are going to appear in a court of 
justice as an expert, to attempt to throw light upon any sub- 
ject, it is not enough, though indispensable, that you possess 
an adequate knowledge of it; you must first subject your 
knowledge to that careful reflection, that shapes it into definite, 
clear, intelligible, unmistakable propositions. Then the neces- 
sary language will follow. You need take no thought what 
you shall speak ; you need consult no rhetoric to teach you 
words. Clear and accurate thought is the parent of that clear MEDICAL EVIDENCE. 
13 
and accurate expression, which the way-faring man can under- 
stand as well as the professor. 
A very great lawyer, now dead, Judge Curtis of Boston 
told me that in his younger days he once had the advantage 
of being called into consultation with Mr. Webster, in respect 
to an important cause. And as he had considered it very care- 
fully beforehand, he stated to Mr. Webster, what he conceived 
to be the leading proposition of law on which the case Avas 
likely to turn. Mr. Webster thought of it a moment, and said, 
“ Let us write it down.” He drew up to the table, took his 
pen, and carefully wrote out the proposition, not in many 
words, and then considered it for a while with attention. “That 
will do,” said he, “ that will stand. Always write your propo- 
sition down, Brother Curtis, always write it down.” He wrote 
only the proposition ; he did not write out what was to be 
said in support of it; and he did so in order to put it beyond 
mistake, that the idea in his mind Avas not a vague, indeter- 
minate idea that would perish in the stating, but one that 
could stand looking in the face. It is a maxim that may be 
Avell commended to all professions, to Avrite down the cardinal 
points ; those on which the question turns. Then you are 
sure that Avhat you think you see clearly in the mind’s eye, 
you do see clearly, can reflect upon clearly, and can express 
clearly, when the occasion conies. 
I shall continue this subject to-morrow. LECTURE II. 
MEDICAL EVIDENCE. 
{Continued.) 
Perhaps, gentlemen, a part of what I said yesterday, may 
he thought more applicable to a public speaker than to a med- 
ical witness. But testifying on scientific subjects is a sort of 
public speaking, and requires the best qualifications that be- 
long to that art. In the lecture we had the pleasure of hearing 
afterwards from Dr. Garland, you had an admirable specimen 
of the clearness of diction I had tried in my imperfect way to 
describe; and I do not know that I can add anything more or 
better on the subject than to say, that such is the sort of talk 
courts like to hear from medical witnesses ; but, I am sorry to 
say, do not hear as often as they could wish. An accomplished 
medical witness is as rare as a highly accomplished surgeon. 
I have listened sometimes with as great admiration as I ever 
felt at any display of public speech, to the elucidation of scien- 
tific subjects by medical witnesses; to which even the great 
words of the Genesis of the earth might almost without pro- 
fanation be applied, ‘‘Let there be light, and there was light.” 
On the other hand, I have seen excellent physicians on the wit- 
ness stand, with no idea at all except that of doing their duty, 
placed in a false position, misunderstood, attacked, ridiculed, 
their evidence perverted, and, perhaps, used in the end to es- 
tablish some conclusion which they would have entirely rcpu- MEDICAL EVIDENCE. 
15 
diated ; and largely, though not altogether, as I shall try to 
point out in what I have to say to-day, owing to a 
want of that very clearness, accuracy, and certainty of diction 
and of expression, which, as I have tried to show, cannot be 
artificially acquired, and comes from only one source in the 
world. 
Assuming, then, that the medical witness approaches a 
court of justice with an adequate sense of the importance of 
the business he is upon ; with a competent knowledge of the 
subject he is to testify about; and with that clearness of un- 
derstanding', born of reflection, which will enable him to give 
lucid expression to what he means to say, there are some 
further requisites to successful medical testimony, to which I 
shall invite your attention. I ask you to remember, and, if 
necessary, to write down, four cardinal rules, founded, as I 
had occasion to say yesterday, not upon any views of my own, 
but upon an experience which all judges and lawyers will cor- 
roborate. And the first is, not to permit yourself under any 
circumstances, to be enlisted in a cause, in sympathy, feeling 
or fact, on one side or on the other. This rule is the most im- 
portant of all, and it is the most difficult of all. It is a hard 
thing for any one to witness a contest, without feeling a sym- 
pathy or an interest. A man of vigorous intellect is liable to a 
sort of joy of battle;—c/audet eertamine. Then you are brought 
into the cause by one side ; you are the plaintiff’s witness or the 
defendant’s witness ; you are very naturally consulted and 
perhaps employed by your friends ; you participate to some 
extent in their deliberations ; you believe the side on which 
you are called is right, and that the theory or the scientific fact 
you testify to is right; you may see or think you see, likewise, 
a conflicting theory, set up perhaps by medical experts on the 
other side, which you believe is wrong, and which you believe 
is going to result in injustice. Now it is no imputation upon 
a man when he sees his friend involved, or indeed anybody in- 
volved in a contest where he supposes him to be right, and MEDICAL .JURISPRUDENCE. 
where liis own testimony is opposed and in danger of being 
overthrown by what he considers to be wrong, that he should 
have a feeling on the subject, and that the feeling should in- 
sensibly show itself. But it is this very feeling that requires 
to be suppressed in the witness, who goes on to the stand to 
present under oath the material for deciding difficult ques- 
tions, and on whom the responsibility for the truth is altogeth- 
er cast. He goes into court, not as the advocate, charged 
with the interests of one side, but as the judge goes, bound 
to deal impartially with both sides. I hope to see the day 
when the selection of medical experts will be made by the 
court and not by the parties ; so that such witnesses will be 
brought in, not on one side or the other, but rather like an ar- 
bitrator or a referee, chosen for both sides, and equally the 
representative of both. But as the law is, and always has 
been, the party who desires to use the testimony of a medical 
expert, selects and examines him. 
There are two sufficient reasons why at any effort, and 
as I have said, it costs an effort, this bias should be avoided. 
The first is, that it will invariably color the testimony given. 
It is not in the power of the human mind that it should be 
otherwise. You may swear to a statement, but you can never 
safely swear to an argument. The moment you charge your- 
self with the presentation of one side of a question, your pre- 
sentation becomes an argument ; and the very essence of an 
argument is, that it is upon one side. There may be an im- 
partial presentation of both sides, but when you begin to sus- 
tain vour own opinion against an adversary, you enter upon an 
argument ; and such testimony will be inevitably colored. 
A little color sometimes goes a great way in a tribunal not 
competent to criticize statements of that kind, or to weigh 
them as a physician would, and insensibly the statement be- 
comes stronger than it should be. 
Another sufficient reason against bias in the witness, is 
that whether the testimony is actually influenced or not, the MEDICAL EVIDENCE. 
17 
impression will get into the jury-box that he is enlisted on 
one side. He appears to be the plaintiff's or the defendant’s 
man, trying to support his own theory, and to put down that 
of the other side. He is not impartial. He is saying what he 
would not say if he did not feel an interest in the contest. 
That, of course, detracts very much from the force of the evi- 
dence ; it puts the physician in a position he would be very 
sorry to be placed in, if he was aware of it, and defeats the 
object for which he is called. On the other hand, when a 
man is able to go before a court, and with clearness, pre- 
cision and certainty, state the scientific facts and truth it re- 
quires, without apparent bias, without fear of one side or 
favor of the other, his words carry weight—and deserve 
weight.—And there is no more gratifying position for a scien- 
tific witness to occupy, than when he is able to command in 
an important cause the confidence of both sides, so that what 
comes from him will be received as the unbiased and uncolored 
truth. Remember that you are not charged with the conduct 
of the cause. It is not for you to see that justice takes place, 
or that injustice does not take place, except so far as your 
own evidence is concerned. The court and the counsel are 
charged with that. You have only to discharge your duty, 
and to leave the responsibility of trying the cause where it be- 
longs, and where it will certainly fall in the end. 
The second rule to which I ask your attention, is this : 
In your anxiety to avoid the appearance of partiality, do not 
go to the other extreme, and become indefinite and uncertain. 
I have heard witnesses testify, who were so sensitive on the 
point I have been discussing, and so afraid of appearing to be 
on one side, that nothing definite could be got out of them. 
Whatever you make up your mind to say, make it definite and 
clear. There is no question in the world that does not admit 
of a definite answer. If a man were to ask me the cause of 
the Aurora Borealis, for example, I could give him a prompt, 18 
MEDICAL JURISPRUDENCE. 
definite and decided answer. I should say “I do not know." 
This rule has a special application to medical testimony, be 
cause so many questions that arise, and are put, do not admit 
of a decided or certain solution. Such are questions as to fu- 
ture results, that cannot be foretold with certainty. But if 
you understand the subject, you can convey an intelligible 
idea of what you think the chances are, and what they depend 
upon, so that the hearer, who learns from you that the result 
is uncertain and cannot be demonstrated, will form an intelli 
gent judgment of how uncertain it is, what are the chances, 
and what are the conditions to be regarded in estimating them. 
And so with other questions, such as those touching the char 
acter of disease, or the cause of death. Many of them do not 
admit of a positive answer, or a demonstration that you can 
swear to, but do admit, however, of a definite and clear treat 
ment, that w ill give the hearer all there is to be given on the 
subject. 
This brings me to the third suggestion I desire to make, 
and that is : Do not employ in a court of law (or anywhere 
else except before educated physicians), the technical phrased 
ogy that belongs to the medical profession. It is the only ac- 
curate phraseology, I admit. Its propriety and necessity are 
undoubted : but do not use that sort of language where it can 
not be understood. If you assume at all to try to make a 
point clear to laymen, not educated in medicine or surgery, 
furnish yourself with language that is not derived from the 
Greek. Technical terms are a constant and fertile source of 
ridicule among those who do not comprehend them. The wit- 
ness is placed in an unjust position, and the force of his testi 
mony is lost. 
This morning I took out of the postoffice a circular of a 
legal stenographer, containing some specimens of his work as a 
reporter. He has given extracts on this slip of paper from the 
language of various speakers, and among others a medical ex- MEDICAL EVIDENCE. 
19 
pert, who testified in a cause in another State. It illustrates 
so well what I am trying to say, that I read it : 
“Ecchymosis occurs without any injury from a certain 
condition of the blood globules or the blood itself, particularly 
of the blood globules, being in a condition of debility and 
weakness themselves, consequent upon debility and weakness 
of the blood vessels themselves, to such a degree that stagna- 
tion occurs ideopatliically, and disintegration of the blood 
takes place, and the coloring matter of the blood globules, or 
hematin, is dissolved in the fluids, and the blood by endos- 
mose passes out in the areolar tissues.” 
The ordinary mind might be surprised to learn, that this 
evidence was designed to throw light upon the black and blue 
spots on a man who had been knocked over by- a chair. 
Doubtless that gentleman expressed with technical accuracy 
what he meant to convey. The difficulty was, that he put 
it into phraseology which conveyed no idea at all to the triers, 
and which was almost certain to expose him to ridicule. 
And now while I have the reporter’s paper before me, let 
me go back a moment to the subject of clearness of diction, 
and as I have read something at the expense of the medical 
profession, let me read at the expense of my own, a specimen of 
the style of speech highly desirable to be avoided. A learned 
counsel, according to the reporter, once delivered himself as 
follows: 
“I take 4.8b feet, the highest measurement they have giv- 
en us, as the height of the floor above mean low tide, and then 
the width of the beams, 3x10 inches—the cross-joists, as they 
all told about—and the centre timbers, 12 inches square—tak- 
ing all the testimony together, 12 inches for the beams—al- 
though they did not all know about that—yet there was room 
enough to allow a man to crawl under—8 or 10 inches—but I 
am content to call it 0 inches—and I contend nobody would 
allow less that—and adding 2 inches for the double floor— 
about 2 inches, I suppose, as they usually use inch boards— 
which would make 20 inches—but I am content to take it at 
one foot and a half, so as to be sure I am right—taking these 
highest measurements and the lowest estimate given by any 
gentleman, what will be the level of the ground compared with 
the citv base or mean low water.” MEDICAL JURISPRUDENCE. 
If I were to announce to you that a demurrer to the 
rebutter puts in issue the sufficiency of the sur-rejoinder, I 
should probably fail to convey any very useful or accurate 
idea ; and yet I have in those Avords stated Avith entire pre- 
cision a legal proposition, as a laAvyer would state it, and in 
the language lawyers and judges would understand. But you 
would feel that you had a right to require, if it was necessary 
that you who are not lawyers should understand the point, 
that if I possessed a clear idea of it myself, and Avas not too 
anxious to display my technical knoAvledge, I should furnish 
myself Avith language that would enable you to comprehend it. 
And so when you go into a court of laAv, to enunciate those 
propositions belonging to your science, it is your duty and 
your necessity to turn the subject over in your mind, until 
you can make it understood by those to whom medical tech- 
nology is unknown ; until you are able to make the fracture 
of a bone, the dislocation of a joint, and the surgical remedy 
to be applied, as clear to the common mind, as you would the 
fracture and repair of the axle of a wagon. Abu can do it if 
you try. I know it can be done, because I have seen it done 
with such excellent success. 
There is one more rule I desire to impress, and that is, to 
bear in mind that clause of the oath always administered to 
witnesses, which requires them to tell, not only the truth, but 
the whole truth. See to it that you go far enough in your 
testimony to be fairly, as well as distinctly understood. Such 
is your right. Although you are required to answer the ques- 
tions which are put to you, when you have finished your an- 
swers the court will always allow you to add any further ex- 
planations you may deem necessary. So that if you have 
been inquired of in the sharp way that has precluded you 
from saying all that ought to be said in the first place, the 
time comes, before you leave the stand, when you have an op- 
portunity and a right to say it. The examination may some 
times be ingeniously devised, and inquiries artfully put, MEDiCAL EVIDENCE. 
21 
with the view of drawing out just so much and no more of 
the physician’s knowledge. Some things which the witness 
will state are wanted; other things which he will state, if he 
has a chance, are not wanted. It may be desired, for instance, 
to prove that a man had a certain disease which he did not 
have, and which the doctor will not swear he had. 
‘•Doctor, did the man have such a symptom?” 
“Yes.” 
“Does that symptom accompany this disease ?” 
“Yes.” 
“Did he have such another symptom ?” 
“He had.” 
“Is that symptom found in this disease ?” 
“It is.” 
“Did he have such a third symptom ?” 
“Yes.” 
“Does that belong to this disease ?” 
“Yes, it does.” 
“Now, doctor, when you find a patient with all these 
symptoms, does not it lead you to suspect the presence of this 
disease, and does not that subject immediately engage your 
attention ?” 
“Yes.” 
The examination terminates, the doctor comes off the 
stand, and after the trial says to the opposing counsel, “Why 
did not you ask me if the man had a certain other symptom 
which was the decisive one, and which he did not have ? The 
symptoms named always accompany that disease, it is true, 
but they are likewise seen in other diseases; there is one 
symptom which is decisive; and the absence of that proves 
that he did not have the disease.” “Why, then, did you not 
say so?” “Oh, I was waiting to be asked.” Two excellent 
reasons may have existed for not asking the question. The 
counsel may not have known enough of medicine to know that 
it ought to be asked; or if he did, he feared to ask it of an 22 
MEDICAL JURISPRUDENCE. 
adverse witness, with whom he had not conversed, and where he 
knew not what the answer might be. For all he knows, the 
question may have been inadvertently omitted on the other 
side, and the answer would be more damaging than all the 
doctor had said before. So the evidence is used, and perhaps 
successfully, as establishing the probability of the existence of 
the disease, or at least a reasonable doubt whether it did not 
exist. 
While, as I have said, the medical expert is not charged 
with the conduct of the cause, in any way, he is charged with 
the duty of testifying, if he testifies at all, fairly enough, and 
fully enough, so that his testimony shall not be misunderstood, 
and above all that it shall not be so perverted, as to be used 
before a jury to establish the very fact he knows is not true. 
Now, gentlemen, it is not given to many of us to be 
great; it is not given to many physicians to be great. It is 
enough for most of us. if we can be useful and respectable in our 
place and according to our measure, and discharge with fidelity 
those duties, perhaps modest and humble duties, we are brought 
face to face with in life. I have spoken of medical witnesses 
whom I have seen, men of great and rare power and 
felicity, in presenting to the mind, and especially to the un- 
scientific mind, scientific truth. I should hardly hope that the 
profession generally could in this respect, more than in any 
other, be all brought up to its highest standard. But I 
undertake to say this: that any physician of respectable abil- 
ity and respectable attainments, such attainments as are nec- 
essary in order to graduate from an institution like ours, can 
come into a court of justice as a witness on a subject he un- 
derstands, and which he has considered until his ideas are 
clarified, and if he will observe these rules I have tried to 
make plain, will always acquit himself creditably and usefully. 
He never will be the subject of successful ridicule; and not 
often of attempts at ridicule. His testimony will never be MEDICAL EVIDENCE. 
23 
misunderstood, and he never will suffer the mortification and 
regret, of having in fact contributed to a result which was 
very far from his intention. 
Much is often said about cross-examination ; and people 
not familiar with courts think it a sort of rack or thumb screw 
proceeding, that witnesses have a great deal to fear from. 
There is no intelligent child that needs to be afraid of any 
cross-examination he will encounter in the court room, if he 
tells the truth and the whole truth, in an unaffected way. 
You may possibly meet a blackguard at the bar—not many, I 
am happy to say—you may perhaps come across such a char- 
acter, who would be glad to insult or brow-beat you, if he 
thought he could make anything out it. But he will generally 
be wise enough to know whether he is likely to make anything 
out of it or not. And a fair, impartial man, talking about what 
he clearly understands, taking no side, using simple pliraseol 
ogy, careful to comprehend accurately what is asked of him, 
and then careful that his replies shall be definite and complete, 
has nothing whatever to fear from examination or cross-exam- 
ination ; especially if he adds to those qualifications, entire 
coolness and perfect courtesy, remembering always, that by 
his profession, if not otherwise, he is a gentleman, whatever 
those may be with whom he is brought in contact. 
This brings me to the end of what I have to say on a 
subject, the importance of which, I repeat, is not sufficiently 
estimated by the profession upon which you are entering. 
Aside from its more general and public importance, it is im- 
portant to the physician himself. It is a distinction, a great 
distinction, and, I may add, a lucrative distinction, as well as 
a very useful one, to become accomplished in the art of giving 
scientific testimony. Men of much calibre trouble themselves 
very little with the pursuit of reputation. The reputation that 
is good for anything is that which follows, not that which is 
run after. He who pursues with success the straightforward 
course of professional duty, may be surprised some day to find 24 
MEDICAL JURISPRUDENCE. 
himself the subject of a reputation he had neither sought nor 
been conscious of. But those paths of duty, nevertheless, 
which lead to the reputation that forms the basis of profes 
sional prosperity, are not to be neglected or overlooked. And 
I commend, even on this score alone, to your consideration, 
the importance of becoming master hands in the discharge of 
this special duty, which more or less all through vour lives, and 
more and more as you evince a capacity for it, and often in a 
very conspicuous situation, you will be invited to perform. LECTURE III. 
INSANITY. 
There are only a few out of the many topics, gentlemen, 
which might be usefully discussed in connection with the gen- 
eral subject of medical jurisprudence, to which I shall be able 
to ask your attention, in the brief course allotted to me. The 
subject of to-day’s lecture is one of the most important of those 
topics—insanity. Of all the diseases and afflictions that beset 
humanity, and with which it is unhappily necessary for the phy- 
sician to become familar, there is not one that is more subtle 
in its character, more diverse in its manifestations, more mel- 
ancholy in its aspects, than that of mental derangement. The 
great poet has expressed in the most touching language, the 
appeal which those unfortunates often make to your profes- 
sion, for a relief you can but rarely afford : 
“Canst thou not minister to a mind diseased? 
Pluck from the memory the rooted sorrow, 
Raze out the written troubles of the brain, 
And with some sweet oblivious antidote, 
Cleanse the stuffed bqsom of the perilous stuff 
That weighs upon the heart ?” 
And when the inquirer finds his appeal in vain, he rejects 
altogether the art that fails in this supreme emergency : 
“Throw physic to the dogs, 
I’ll none of it.” 
But it is only with the legal and judicial consequences of 
insanity that I have to deal—an important, but at the same 
time but a very partial branch of the subject ; a subject that 26 
MEDICAL JURISPRUDENCE. 
in this age, when rest and quiet are apparently so fast becom- 
ing obsolete terms, and mental disorder is so greatly increas- 
ing, must more and more attract the attention and study both 
of your profession, and of philanthropists. 
The subject of insanity finds its way into courts of justice 
in three connections. First, as a defence to criminal prose- 
cutions; next, in its effect upon civil contracts; and third, as a 
foundation for the judicial power of placing a person under 
guardianship, and taking from him the control to which he 
would be otherwise entitled, over his own property and his 
own affairs. There is another subject in which insanity is 
sometimes involved in judicial inquiry, and that is the power 
to dispose of property by will: but I shall consider that 
in another connection, and confine myself at present to 
the three particulars I have stated. And the first and most 
important in its public and its private application to judicial 
proceedings, is the effect of insanity as creating an exemption 
from criminal responsibility. 
Insanity under our modern law—which is of comparatively 
recent growth for the most part—is a defence against all crim- 
inal charges, where it exists in the degree which the law rec- 
ognizes as sufficient. It applies to all offences, small as well 
as great; a criminal motive being requisite always to make out 
a crime; and the man who is incapable of motive, that is to say 
incapable of rational motive, is consequently incapable of being 
guilty of a criminal offence. One would suppose from what 
he finds in the public press, that insanity was the special de- 
fence of the crime of murder, because we so rarely hear of it 
in courts of justice in connection with any other charge. There 
is no defence that, when it is well founded, appeals with more 
force to humanity, as well as to justice, than that. It is not 
only a legal defence, but it is one that excites the sympathy of 
all who are capable of that emotion. On the other hand, there 
is no defence that ever has been so much abused; until it has 
come to be a scandal and a reproach in this country, above all INSANITY. 
27 
other "countrieswliere law prevails. Many a man is walking 
about to-day, as sane as we are, who has been acquitted of some 
foul assassination, on the score of an insanity that had its 
beginning, its end and its proof, in the crime it was held to 
justify—nothing ever heard of it before, nothing ever heard of 
it since. It is, I sa}r, an infinite scandal and disgrace—the use 
that has been made of a defence, which, when true, is so mer- 
itorious and so necessary ; and I lay at the door of the medical 
profession, or a part of it, almost all the mischief that has 
ensued, and the injustice that has taken place, from the abuse 
of the defence of insanity. Not because all the evidence in 
cases of insanity, as in most other cases that involve scientific 
or medical questions, comes from your profession. I remarked 
the other day that you had a monopoly of the sources of evi- 
dence that were available to a court of justice on such subjects. 
But this disease is to some extent an exception, because it has 
such obvious manifestations, often not at all requiring a scien- 
tific or medical man to detect, that other evidence to prove it 
is admissible and useful, besides that of physicians. But I 
attribute the result I have spoken of to the physicians, because 
no doubtful case, probably, ever was tried involving that issue, 
in which the medical testimony was not substantially decisive 
one way or the other. So much is conceded to the better 
skill, the better judgment, and the closer power of observation 
of those trained as physicians, that their testimony on that 
subject has a controlling weight. No man could succeed for 
an hour in a court of justice upon the claim that he was in- 
sane, unless he could substantiate that claim by some respect- 
able medical evidence. Of course I do not allude to cases of 
complete or general imbecility or mania, in which no serious 
question could arise. I am speaking of those cases in which 
the fact of insanity might fairly be the subject of dispute. 
The answer to such a claim by the triers would be conclusive. 
“If insanity exists, physicians can detect and measure it. Com- 
mon humanity, if there were no other reason, would place the MEDICAL JURISPRUDENCE. 
whole faculty at your disposal to furnish any evidence in such 
a case that is true. It is a duty no man would wish to avoid. 
Where, then, is the physician who has examined this case ? 
Where is the expert in insanity that has tested it ? If you 
can produce no such witness, you cannot expect to satisfy us.” 
You see, therefore, the veyy great weight, the indispensable 
importance of medical testimony on the subject of insanity ; 
and if the defence has been abused, if any man has been ac- 
quitted on that score, who ought not to have been acquitted, 
while opprobrium is cast upon the jury who found the verdict, 
and sometimes upon the judge who presided over the trial, 
and perhaps with more justice upon the counsel who set up 
a defence they ought to have known to be without foundation 
in truth, the real responsibility rests upon those men who 
come into court to state upon oath that impartial scientific 
truth, which they ought to be and generally are better judges 
of, than any one else. 
Insanity is a term it is almost impossible to define with 
accuracy. Wliat do you mean by saying, that a man is insane ? 
That is to say, how much must he be outside of a normal men- 
tal condition, to be called insane? If you set up a perfect 
mental standard, there are perhaps few of us that are not 
more or less insane. A perfectly sound mind would be as 
rare as an absolutely symmetrical body. What do you mean 
by saying a man is symmetrical, and free from physical de- 
formity? Do you mean that he has the perfect symmetry of 
the Apollo Belvidere? That he has complete bodily perfec- 
tion? What definition could you give to the term “sick”? 
When may a man be properly said to be sick? No physician 
can answer such a question, until you give him some criterion 
to go by. You must define what you mean by being “sick,- 
before the physician could tell you whether the patient came 
up to that standard or not. INSANITY. 
29 
Insanity lias been thus divided: 
I. Congenital affection of the mind. 
II. That which occurs from a subsequent cause, after 
the development of the mental faculties has once taken place. 
Congenital insanity, or mental imbecility, which is the 
same thing, may be again divided into 1, total imbecility, as 
seen in persons commonly called idiots, and where there is 
substantially an absence of all or most of the mental faculties . 
* * 
and 2, partial imbecility, a partial defect of the mental 
capacity, born with the subject. Then the class of mental 
derangement that occurs after sound faculties have once 
existed and have been developed, may be again divided into: 
1, Mania, and 2, Dementia: the first signifying a derange- 
ment and disease of existing faculties; and the other signify- 
ing the absence of mental faculties in whole or in part, that is 
to say, the loss of faculties, that have once existed. It may be 
total or may be partial, and may be the result either of dis- 
ease, of injury, or simply of old age. And mania, or the per- 
version or derangement of existing faculties, may be total, 
involving the whole organization of the mind, or it may be 
partial, limited in its effect, and often only monomania, that is, 
mania on one subject alone, in a man who is sane enough, to 
all appearance, upon all others. This division has seemed to 
me to cover the outlines of the subject of mental affection, as 
accurately as verbal definition can. 
You will readily see, that as to several of these divisions no 
serious question can arise; and that they never could be the 
subject of judicial dispute. Idiocy, for instance, is plain 
enough in its manifestations. Of dementia, also, where a 
person has lost his mental faculties either in whole or in great 
part, the symptoms and the evidence are so plain and obvious, 
so different from those involved in the intricate and difficult 
task of tracing the mere perversion or derangement of faculties 
that are in themselves vigorous, that controversy in regard to 
it is not likely to arise. Dementia, then, like idiocy, may be 30 
MEDICAL JURISPRUDENCE. 
dismissed as a form of insanity not likely to occasion any 
serious question or dispute; that is to say, after it lias pro- 
gressed far enough to have serious consequences. It is some- 
times insidious in its beginning and in its earlier stages, but 
rarely has a tendency to excite to crime even then. So mania, 
where it is complete or general, where the patient is what would 
ordinarily be called a maniac, or a lunatic; a man really desti 
tute of mental motive, and acted upon by insane, uncontroll- 
able impulses, that cannot be assigned to any operation of the 
mind ; requiring to be confined, to keep him from destroying 
his own life, or some other man’s life or property; with no real 
consciousness of what he is doing; not aware that he is killing 
a man, or what he is killing him for;—that form of mania is 
also too plain .to be the subject of question. The two remain- 
ing branches of the classification I have given you, will there- 
fore comprehend all questions in respect to which medical 
testimony is ever likely to be invoked in courts of law. 
That is, cases of partial imbecility, where the defect is congen 
ital, and yet where it is not so complete, so full, as to place 
beyond doubt just how much there is of it and what it amounts 
to; and cases of partial mania, resulting from disease, from 
injury, from any cause adequate to produce it, and sometimes 
applicable only to certain subjects, perhaps to a single subject. 
Those are the cases in which the disputes arise. 
Now, the field of speculation on this topic is unlimited 
and inexhaustible. The psychological subtleties and the meta 
physical theories connected with it are endless. The discus- 
sion of the question, what should and what should not be 
regarded as insanity, has never terminated, and is likely to be 
perpetual; and every man is quite at liberty to set up his own 
standard, and to maintain it in his own way, and with as much 
pertinacity as he pleases. But what you and I have to do 
with the matter in its present connection, is simply to ascertain 
the rule of law on the subject, and the true limits and manner 
of its application; a rule that we did not establish, that we 31 
INSANITY. 
could not change if we thought it wrong: and one which like 
most rules of the common law, will be found upon reflection 
to be right; so that it has a double claim to regard, not only 
as being the law, which should be enough, while it remains so, 
for all right-minded men, but likewise because it ought to be, 
and probably always will be, the law. When you have that 
criterion distinctly in mind, which you will perceive is as neces- 
sary to be understood by the physician as by the lawyer, by 
the witness as by the advocate, you will be prepared to apply 
the proper test to any given case. To ask you, as I before 
said, whether a man is insane, is to ask a question that cannot 
be intelligibly answered, except in those plain cases that do 
not admit of dispute , until you are in possession of the cri- 
terion, the test, the standard applicable to the case in hand- 
You will be called upon many times, probably, if you follow the 
practice of your profession, to examine men who are claimed 
to be, or thought to be, insane. Sometimes they may be so, 
and sometimes not. Sometimes there will be more or less foun_ 
dation for the claim, and yet after all no sufficient foundation; 
sometimes there is none at all; sometimes enough. The only 
guide is the rule of law; and rather than attempt to state that 
in my own words, I have taken the pains to transcribe from 
some of the many cases which might be produced, because 
this is a subject which has been widely discussed in many 
courts, two or three statements of the legal definition of such 
insanity, as exempts a man from responsibility for crime. 
Chief Justice Shaw of Massachusetts, one of the ablest 
jurists this country ever produced, in an important and much- 
discussed case, stated the law,. and it seems to me with great 
perspicuity and accuracy, in the following language: “ The 
ordinary presumption is, that a person is of sound mind until 
the contrary appears : and in order to shield one from criminal 
responsibility, the presumption must be rebutted by proof 
of the contrary, satisfactory to the jury. 32 
MEDICAL JURISPRUDENCE. 
“ In order to constitute a crime, a person must have intel- 
ligence and capacity enough to have a criminal intent and 
purpose ; and if his reason and mental powers are either so 
deficient that he has no will, no conscience or controlling men- 
tal powers, or if through the overwhelming violence of mental 
disease his intellectual power is for the time obliterated, he is 
not a responsible agent, and is not punishable for criminal 
acts. 
“The difficulty lies between those extremes, in the cases of 
partial insanity, where the mind may be clouded or weakened, 
but not incapable of remembering, reasoning and judging, or 
so prevented by insane delusion as to act under false impres- 
sions and inferences. In these cases the rule of law is this: 
a man is not to be excused from responsibility, if he has capa- 
city and reason sufficient to enable him to distinguish be- 
tween right and wrong as to the particular act he is then 
doing ; a knowledge and consciousness that the act he is do- 
ing is wrong and criminal, and will subject him to punishment. 
“ On the contrary, although he may be laboring under par- 
tial insanity, if he still understands the nature and character 
of his act, and its consequences; if he has a knowledge that it 
is wrong and criminal, and a mental power sufficient to apply 
that knowledge to his own act, and to know that if lie does 
the act he will do wrong and receive punishment, such partial 
insanity is not sufficient to exempt him from responsibility for 
criminal acts. * * * 
“ Monomania may operate as an excuse for a criminal act 
in one of Wo modes. 1. Either the delusion is such that the 
person under its influence has a real and firm belief in some 
fact, not true in itself, but which if it were true would excuse 
his act. 2. Or this state of delusion indicates to an expe- 
rienced- person, that the mind is in a diseased state : that the 
known tendency of that diseased state of the mind is to break 
out into sudden paroxysms of violence towards friend or foe 
indiscriminately; so that the act was the result of the disease INSANITY. 
33 
and not of a mind capable of choosing : in short, that it was 
the result of uncontrollable impulse, and-not the act of a per- 
son acted upon by motives, and governed by the will.” 
(Com. v. Rogers, 7 Met. 501.) 
An eminent judge in New York, in the highest court of 
that state, has likewise given a definition which seems to me 
worth reading : 
“ The insanity must be such as to deprive the party 
charged with crime, of the use of reason in regard to the 
act done. He may be deranged on other subjects, but if cajia- 
ble of distinguishing between right and wrong in the particu- 
lar act done by him, he is justly liable to be punished as. a 
criminal. 
“ Partial insanity is not necessarily an excuse for crime, 
and can only be so where it deprives the party of his reason 
in the act charged to be criminal.” (Freeman v. The People, 
4 Den. 29.) 
And a judge of the highest court of Pennsylvania, has in a 
very condensed way stated the point thus : k* The true test in 
all cases lies in the word power. Has the defendant in a 
criminal case the power to distinguish right from wrong, and 
the power to adhere to the right and avoid the wrong.” 
(Com. v. Haskell, 3 Brews. 401.) 
Now if I were to read you the judgment of many other 
courts of high authority on this subject, which might be ad 
duced, I should probably add nothing to the presentation of 
the rule of law, as given in these extracts. And you will de- 
duce from these, first, that the inquiry starts with the pre- 
sumption that every man is sane until the contrary is proved. 
And next, that where the insanity is so far partial and limited 
as to fairly raise the question whether it ought to be a defence 
against a prosecution for an otherwise criminal act, the test is : 
did it extend far enough over the faculties of the mind to take 
away from the man that sense or consciousness of right or 
wrong which rational beings possess 1 So that if he did know 34 
MEDICAL JURISPRUDENCE. 
when he was setting the torch to the building, or drawing the 
weapon against his brother's life, that he was setting the fire 
or that he was taking life, he thought he was doing right, and 
was incapable of perceiving that he was doing wrong. 
As I said a little while ago, even this exemption has grown 
up in the common law, as the whole knowledge, learning and 
treatment of insanity have grown up, within a comparatively 
recent period. In 1812, as you will doubtless remember, the 
Prime Minister of England, Mr. Spencer Percival, was shot 
dead in the lobby of the House of Commons, as he was going- 
in to attend a session of Parliament, by a man named Belling- 
ham. Of course the act produced a profound sensation, and 
Bellingham was not only hanged but dissected, within eight 
days after the murder. Justice or injustice, whichever it was, 
had in his case a speedy course. Now that man was unques- 
tionably insane. It is conceded now, it was measurably con 
ceded then, that he was insane to the extent that would at 
the present day have acquitted him. He was under the delu 
sion that the British government owed him a very large sum 
of money. All his efforts to get attention to his claim were 
disregarded. He got into the state of mind that it seemed to 
him that murder was his legal redress. He could not sue the 
government of Great Britain. He thought the way to get 
justice was to kill the Prime Minister, and then in the inquiry 
that would naturally follow, it tvould come out that he was in 
the right—that this great claim was justly due him, and that 
he could get no attention to it in any other way. It was, in 
his delusion, the legal way to get justice. He was going to 
plead the claim in offset to the murder. Yet as great a law- 
yer as Sir Samuel Bomillv. one of the most philosophical of 
English jurists, said in connection with that case, at the 
time of it: “No person can have heard what the conduct and 
demeanor of this man have been since he committed the crime, 
or can have read his defence, without being satisfied that he 
is mad. But it is a species of madness which probably for INSANITY. 
the security of mankind ought not to exempt a man from be- 
ing answerable for his actions.” And Lord Eldon, then at 
the head of the judicial department of the British government, 
assumed that statement to be, as it probably was at that time, 
the law of Great Britain; and that in order to exempt a man 
from criminal responsibility for his acts, he must be such a 
total and complete maniac, as to have no knowledge or con- 
sciousness at all of what he was doing. You will see how the 
law has progressed towards the side of humanity and mercy. 
You see the difference between the law as stated by Sir Sam- 
uel Romilly, and the law as stated by Chief Justice Shaw. 
But when you look over the field of judicial proceedings on 
this subject since those dates, and perceive how terribly the 
modern and humane rule has been abused and misapplied : 
what a shelter it has proved for assassins ; how many innocent 
lives it has cost to save the guilty lives of the murderers : you 
will see, also, that much is to be said after all in favor of the 
idea that prevailed at the beginning of the present century. 
It is by no means a question that has but one side ; and only 
that the weight of that humanity and mercy, that temper the 
law more and more as civilization goes on, is cast into the scale, 
the strength of the argument might be on the other side. 
Leaving the assassin himself out of the question, and looking 
only as Romilly did, to the interests of society, it might not be 
difficult to reach the conclusion, that when a man is sane 
enough to set deliberately about the consummation of an as- 
sassination, it is better that he should pass into another world} 
where he will do less harm, and experience greater charity. 
The question then is, in all cases of insanity, does the 
delusion which always accompanies it, and which indeed con- 
stitutes insanity, extend far enough to involve the whole ope- 
ration of the mind ? If not, does it extend far enough to 
destroy the consciousness of right and wrong, or the power to 
discriminate between them, in the particular transaction in 
question. And you will perceive that one of the learned judges 36 
MEDICAL JURISPRUDENCE. 
from whom I have read, lays stress upon the consideration, 
whether or not an existing delusion connects itself with the 
act. A man may be somewhat deranged on certain topics : 
he may have certain ideas that are delusions, and that cannot be 
accounted for except on the ground of mental disease, al- 
though upon other topics he is rational. He goes and kills a 
pers m for his money, under circumstances totally disconnected 
with the subject of his delusion. Now that man is partially 
insane, no doubt. Shall he be acquitted ? Very plainly not. If 
his delusion is a monomania, or if it is a partial insanity only, 
it must connect itself with the transaction, whatever it is, that 
is in question, far enough to disable or destroy the conscious- 
ness of right and wrong, and the power of resistance in that 
particular case. 
I have thus tried to place before you the true rule, the 
clear, simple, safe, salutary, intelligible rule of the law ; the 
rule that ought to prevail, and, whether it ought or not. does 
prevail in courts of justice, when justice is done. I shall call 
your attention hereafter to what may be called the sham in- 
sanities, that have produced the scandalous results I have 
referred to. The real insanity, which is my subject to-day 
the insanity that does exempt and ought to exempt from crim- 
inal responsibility and to which the aid of every man, physician 
or layman, should be cheerfully extended when it is necessary, 
is that insanity which takes away the moral sense and conscious- 
ness which the Almighty has given us to keep us out of crime, 
as long as we have possession of our faculties, and retain the 
capacity to know that the thing is wrong, and that it has ulte- 
rior consequences. And the last remark I have to make to-day, 
is that the defence of insanity, which is all that unfortunate 
class has to rely upon, and constitutes their sole appeal to 
the mercy and justice of their fellow beings when they have 
committed some offence for which they are not really respon- 
sible, is brought into ridicule and contempt, and very largely 
destroyed, by those who may be said to steal the livery of 37 
INSANITY. 
insanity to serve the devil in. Such men are not only robbing 
public justice, they are robbing the really innocent. More 
than one case has occurred, where men have been prosecuted 
for offences for which by reason of insanity they should not 
have been convicted. To their defence a jury have replied : 
“We have heard enough of insanity ; it comes up too often, it 
acquits too many murderers ; we do not believe in it.” And if 
there were no better reason to be given, why every man, and 
above all every physician, should set his face against any and 
every attempt to abuse that plea, it should be found in the 
consideration due to those who may be entitled to rely upon 
it, and who have no other resort. LECTURE IV, 
INSANITY. 
{Continued.) 
1 continue to-day, gentlemen, the subject commenced on 
Friday last, of insanity as constituting a defence in prosecu- 
tion, for criminal offences. I had gone so far as to try to 
point out with such distinctness as I hope may enable you to 
comprehend and remember it, the legal definition of insanity. 
Whether or not it is a correct medical definition, it is the 
standard to which all evidence in courts must be addressed. 
And I endeavored to make it clear, that the test in any given 
case, on the que stion whether a man was so insane at the time 
he committed an offence that otherwise would be criminal in 
its character, as to be exempt from responsibility, was wheth- 
er at that time he was capable of distinguishing the right 
from the wrong in respect to that particular transaction—to 
know that what he was doing was wrong, and would subject 
him to punishment. And I re state the point in order to add 
what perhaps I did not bring out with sufficient clearness, a dis- 
tinction that some writers dwell upon, but which upon reflection 
will be perceived to be a distinction without a difference, that 
a criminal act, as a homicide or an assault, may be committed un- 
der such sudden and uncontrollable—physically uncontrollable 
—impulse, that there is no special consciousness on the subject 
at the time by the party, though generally lie may be quite able INSANITY. 
to distinguish right from wrong. Insanity sometimes shows 
itself in those sudden paroxysms, that might cause a man to 
throw himself upon his friend without any motive,—without any 
reason,—simply because he stands in the way; just as a simi- 
lar uncontrollable impulse might cause one who had no desire 
to commit suicide, to throw himself out of a window, or into a 
body of water. But you will see, that is after all, stating the 
same thing in other words. The test is the consciousness of 
right and wrong at the time of the act, and in respect to the 
act; and although the man may be in such a condition that 
ordinarily he perfectly comprehends the character and conse- 
quences of it. still he may be attacked with such a paroxysm, 
that he will commit the offence without at the time being con 
scious of either, acted upon, not by a mental motive, but by 
an irresistible physical impulse. It is probable that this form of 
insanity is very rare ; it is altogether too rare to be likely to 
occur for the first time on the occasion of committing the par- 
ticular crime. Still it is a possible form, and it is a form that, 
as you may remember, Chief Justice Shaw referred to, in the 
opinion I read from. 
Now, I want to call your attention to tlie different forms 
of spurious insanity that are brought forward in courts of law 
as an e xcuse for crime; generally, though not always, the crime 
of murder; the forms of what may be called the insanity of the 
assassin, invented for the purposes of his defence. If you give 
attention to cases of that sort, you will find that they gener- 
ally resolve themselves into two classes. There are two theo- 
ries of what may be called spurious insanity. One is what is 
termed “partial moral insanity,” affecting the conduct of the 
criminal not merely in respect to the particular act with which 
he is charged, but with respect to other acts of the same 
character. It is not claimed that he was insane only when 
he committed that particular murder or that particular 
larceny. The theory, is that he was afflicted with such moral 
perversion, propensity or proclivity, that he was uucontrolla- 40 
medical jurisprudence. 
bly impelled toward the commission of that offence, not in that 
instance merely, but habitually. The other theory, which I 
believe belongs exclusively to the crime of murder, and, sin 
gularly enough, manifests itself in no other way, is what is 
called “emotional insanity,” a sudden insanity that attacks a 
man and induces him to commit a particular offence, lasts 
just long enough for him to commit it, and is caused by the in- 
tense desire or strong motive he has to do it. I have a few 
words to say in respect to both of those classes of pretended 
insanity, and I think you will perceive upon very little refiec 
tion, that neither of them can survive a clear statement of the 
theory upon which it rests; and that they are just as much 
opposed to common sense, and common justice, and medical 
truth, as I shall try to show you they are to the true law of the 
land. One might well be surprised that any time should be 
taken in refuting what in the abstract seems so little to need 
refutation, if these theories had not been set up often enough, 
and sometimes with sufficient success, to become a reproach to 
public justice, and a danger to human life. Elaborate treatises 
claiming the weight of authority, respectable, at least, in the 
source from which they come, have been put forth in behalf of 
them, not as being the law of the land, but as being what 
ought to be the law of the land : and claiming, therefore, that 
the law should be strained and twisted as far as possible, 
so as to make it in its application to actual cases, what it is 
claimed it ought to be. 
The theory upon which the defence of this modern notion 
of moral insanity proceeds, is that it is not a perversion of the 
intellect, of the mental faculties, the perceptions, the reason 
ing powers, or the memory. Its friends concede that the 
subject may have as clear an intellectual or mental perception 
of right or wrong in respect to the offence and its legal conse 
quences, and moral consequences, as any one else of his grade ; 
that he may be able to understand, and even discuss, the ques 
tion fairly. But he is affected from birth with such a deficiency INSANITY. 
41 
of moral power, that when the time comes for the application 
of the idea of right or wrong to the case, he is unable to resist 
doing what he knows to be wrong, and to be punishable. A 
man steals a watch. His defence is : "I am insane ; I can not 
help stealing ; when I see property before me that is desirable 
I can not resist the propensity to take it. In proof of that, 1 
can show you that this is not my first offence ; I have stolen 
many times before, so that you see I intended no particular 
injustice or wrong to the owner of this property : I treat him 
as I do everybody else, when I have the chance ; I am entitled 
to be acquitted, and, of course, when I go out I shall con 
tinue my career—a legally licensed thief, not amenable to the 
laAV.” 
The great mass of mankind in civilized and enlightened 
communities, whatever vices and faults they may be guilty of, 
are not criminals ; they do no commit the class of offences 
known to the law as crime. Those who commit crimes are 
the exception to the general rule. Why do not people gener- 
ally commit these offences ? For two reasons : in the first 
place, their conscience, their sense of abstract right and wrong, 
and duty, and their feeling of the degradation of crime are such, 
that right-minded men would be kept from it if they could be 
positively assured that no consequences would follow, and that 
they never would be detected ; and in the next place, a man of 
sound judgment, and who can discriminate between what is 
good policy and what is bad, knows that crime would be the 
most foolish and dangerous thing he could engage in, even if 
he had no moral scruples about it. Both conscience and 
judgment are therefore a restraint, in the ordinary man, 
against the commission of crime. No man ever deliberately 
committed a crime unless the motive to do it was strong 
enough to surmount both these forces ; till the anxiety for the 
money, or to be revenged for an injury, or to re- 
move somebody who stood in his way, became too strong 
for his conscience, and too strong for his sound judgment. 42 
MEDICAL JURISPRUDENCE. 
Then, it may be safely enough said, that no man ever com- 
mitted a deliberate crime, unless he had to a certain extent a 
diseased moral sense, or a will not strong enough to resist 
temptation to do wliat he knew to be both wrong and unwise. 
Men of sound, well-balanced, healthy minds do not commit 
crime. If they were the only persons amenable to justice and 
responsibility for crime, then# the criminal courts might be 
shut up. It is plain, therefore, that when a man comes before 
you whose body is well enough, and whose mind is well 
enough, but who seeks immunity on the score of diseased 
moral propensity to commit any kind of offence, he is simply 
only multiplying in his own case by repeated instances, what 
must be equally true of any intelligent person who was ever 
drawn into the commission of deliberate crime. 
The truth is, and I venture to submit this proposition 
to the criticism of my medical brethren, as well as to that of 
lawyers, insanity is not a psychological affection; it is a 
pathological one. It is disease, and cannot be separated from 
disease. I do not believe that there ever was an unsound mind 
in a perfectly sound body ; where insanity exists, it is the re 
suit of disease or injury in some form or other. It is said that 
insanity may be brought on by mental trouble, solicitude, anx 
iety, excitement, great flight, etc. But how many other dis- 
eases are produced, especially in the case of a system pre- 
pared for their reception, in the same way ? How many bodily 
ailments that you are called to treat, may be traced to the 
original cause of mental trouble and solicitude ? That does not 
prove that insanity is the direct result of the phenomena of 
mental consciousness. It only shows that such cause may 
act upon the body till it produces a disease of the brain, and 
the disease then affects the mind. Where there is a disease 
of the brain it is ordinarily accompanied with physical symp- 
toms that you can perceive, though, perhaps, not always. 
Often the brain, I doubt not, on dissection would exhibit the 
disease; sometimes, I presume, it might not. Still, it must exist 43 
INSANITY. 
there, when insanity exists. But even were this not true, and 
if insanity can exist in the mind, without bodily affection, it 
could not exist in the moral character, while the intellect re- 
mains intact. I reject altogether, therefore, and believe that 
your subsequent experience will lead you to agree with me, this 
theory of moral insanity, as having no foundation in medical 
science nor in moral science, and as being directly opposed to 
the law of the land, under which alone society can be protected. 
And any theory to the contrary amounts to this: that the crimi 
nal may go at large and continue his offences, if he can only 
show to the satisfaction of the jury, that his propensity to do 
so is unusually strong. 
1 am quite aware, and this is the last observation I have 
to make upon this branch of the subject, I am quite aware 
that paupers and criminals beget paupers and criminals. I 
know very well how much early education, association, ex- 
ample, training and care have to do in protecting men from 
crime, or drawing them into it. I know that men may, so to 
speak, be born to crime, nurtured in crime, and so brutalized 
by crime as to have apparently no moral sense, no adequate 
power of resistance to temptation, and no sufficient control 
over their passions. Crime with these unfortunates becomes 
habitual, and almost a second nature. The subject may well 
engage the consideration and the efforts of the humanitarian, 
the philanthropist, and the law maker. I would go as far as 
any one in efforts to let light into the dark places, and ventila- 
tion into the dung-hills of society, and in sympathy for their 
unhappy and unfortunate denizens. 
That subject stands by itself. When we come to the 
question of the administration of criminal justice, which deals 
rather with the interests of society than with the criminal, 
these palliating considerations cannot be entered upon. How 
much the Almighty Beneficence may condone in the conduct 
of the criminal, in view of his disadvantages, it is not for us to 
say; nor even what allowance we might ourselves make if we 44 
MEDICAL .TURISI’RUDEXCE. 
were sitting only in moral judgment upon him. Legal judg- 
ment is a different thing: and that must be brought to the arbi 
trary, the relentless, but after all the salutary and clear standard 
of the law, that distinguishes between the man who commits 
crime with a criminal motive, knowing better than to do it, and 
the poor victim of mania who is drawn into it under a delusion 
that makes it seem to him to be right, or under an uncontrol 
lable physical impulse that he cannot And to argue 
that a man whose mental powers are unimpaired, may still be 
exempt from punishment for crime because he inherits a moral 
proclivity to commit it, is to my mind as absurd as to claim 
that a pauper must necessarily be maintained in idleness, be- 
cause he inherits an irresistible propensity to avoid labor, and 
to be supported by the town. 
Now a few words as to the other form of spurious insa- 
nity, which I hope may some time be driven out of courts of 
justice, “ sudden temporary emotional insanity,” arising only 
in cases of murder. A man could not steal a horse under the 
influence of that species of insanity, and expect that his defence 
would be received with much respect. It is only in cases of 
murder that it is available. The theory of “emotional insanity” 
is precisely this ; aud when it is stated, very little can be add 
ed bv way of refutation ; it carries its own refutation with it: 
that a man who never was insane in his life, aud has no bodily 
disease or mental perversion, may suddenly become insane for 
the purpose of killing a particular personal enemy : the cause 
of his insanity is his intense desire and strong motive to kill 
him : the duration of it is just the time it takes to strike the 
blow ; its only manifestation is the murder ; it comes suddenly, 
it goes as suddenly ; it has no antecedent, it has no conse- 
quence, it has no accompaniment: it never returns. That is 
emotional or paroxysmal insanity. A man becomes intensely 
enraged against his neighbor. He has sustained, or believes 
he has sustained a very great injury from him. He is anxious 
to kill him. He goes about it with coolness and deliberation? INSANITY. 
and does kill him. And the theory is. that having made all his 
preparations and sought out his victim, just before he struck 
the fatal blow he became insane for the first time in his life, and 
the moment after it was done he returned to permanent sanity. 
Iii the miracles of the New Testament, relied upon to show 
the supernatural and divine power of their Author, we find 
some precedents of that sort, where the sick were enabled sud- 
denly to rise up and walk, where the devil of insanity departed 
from a man suddenly, and as suddenly invaded some other 
body. Those are miracles, and when their truth is established, 
they are accepted as proof of miraculous power. Disease does 
not invade the human frame in that way, and it does not leave 
it in that way. You are not able to say to your patients, “rise 
up and walk,” but only “ rise up in due time, after taking pro- 
per means.” Nobody believes in this form of insanity in 
the abstract. It is not even believed in the concrete, when it 
is applied to the particular case. The physicians who permit 
themselves to say what little they can say with truth in favor 
of it, and the very jurymen who adopt it, do not believe it. 
They accept it as an excuse for justifying what the law does 
not justify. It has been very commonly applied to cases of 
seduction, where husbands or brothers go deliberately and 
coolly, seek out the offender, and kill him. The law does not 
justify such redress, and when the homicide is prosecuted, he 
must bring forward some other defence than the mere provo- 
cation, however great. Perhaps the case is one that evokes 
personal sympathy. Then makes its appearance this theory of 
“emotional insanity,” that never occurs unless wanted for that 
purpose. Now, if it is desired to make it the law of the land 
that such offences shall be redressed by homicide, let it be 
made so by statute. That is not the question with which we 
are at present concerned. But the result never should be 
reached, by means that cast reproach and disgrace upon the 
public law of the land, as well as upon medical science. MEDICAL JURISPRUDENCE. 
This form of insanity was first invented in the celebrated 
Sickles case, tried in Washington, many years since.—one 
of the most cold-blooded of assassinations, and as utterly desti 
tute even of those circumstances that sometimes palliate liomi 
cide, as any murder that ever occurred. The assassin was ac 
quitted on the score of insanity ; an insanity of momentary 
duration. There was a case in Kentucky, a little while ago, in 
which a man dissatisfied with the decision that the Supreme 
Court of that State had rendered in a case in which he was 
interested, took his gun and shot the judge as he came off the 
bench ; and he has been acquitted on the score of “emotional 
temporary insanity.” There have been a number of cases of 
that kind : and I challenge the production of one, in which 
the defence has not been subsequently seen and conceded by 
all men, to have been a pretence and a lie. 
The duty of the medical profession in respect to cases of 
that sort, to discriminate properly, and to stand bv their dis 
crimination, seems to me to be plain and to be important. You 
may talk about mental trouble inducing insanity by acting upon 
the brain until it produces disease. That is a tenable ground. 
Domestic troubles may as well be the origin of such disease, 
as any other mental troubles. But the distinction still remains 
plain and clear between the man who commits a murder from 
the intensity of the motive, and the man who commits it because 
he is past the influence of a rational motive, or is incapable of 
having any motive at all. In these cases the criminal not only 
has a motive, a deliberate one, a rational one, but acts under 
the influence of it, and that motive is all there is of his insanity. 
You may probably be called upon when such emergencies 
occur, to back up to a greater or less extent this theory. If you 
should ever be brought to that conclusion, and should state in 
reply to the usual preliminary enquiry, that you obtained your 
education at the University of Vermont, I beg you will do the 
University the justice to add, that what you are about to state 
is hi direct opposition to what you were there taught. Insanity. 
47 
Now a few words by way of recapitulation is all I have to 
add/to-day. The whole legal doctrine of the subject may be 
stated to be this. Insanity is a defence against the charge of 
any crime. A man is presumed, when he commits a crime, to 
be sane, until the contrary is shown. If he never had any fac 
ulties, like the idiot or the imbecile, or if he has lost them, as 
in the case of dementia, or if he is the victim of general mania, 
or wdiat may be called total insanity, or if he is the subject of 
acute mania which from physical causes renders his conduct 
for the time being physically uncontrollable, in those cases it 
is very plain that he is entitled to exemption from responsibiilty. 
No particular medical skill is required to deal with them. They 
are patent to the common observer. Then when partial imbe- 
cility, or partial insanity is set up, the test that you have to 
/ apply is exactly this, and it is so clear that the common mind 
can understand it as well as the judge on the bench. In the 
first place, was the act committed under the influence of an 
uncontrollable physical impulse ; not an uncontrollable motive, 
which is a very different thing ; the uncontrollable impulse 
that throws a man upon his friend, or upon any other person, 
without volition. Or if not, and the act was the result of delib- 
erate, preconcerted, perhaps ingenious plan, of which lunatics 
sometimes are quite capable, in which the mind of the man, such 
as it was, operated, and which he considered, planned, remem_ 
bered, and understood, then was his mind so diseased, was 
he in other words under such mental delusion, that he did not 
know when he committed the offence, that in doing so he was 
doing wrong, and was amenable to punishment. Or was he 
at the time under a state of honest though deluded belief that 
he wras doing right, as men have been who have sacrificed their 
children, believing they had a command from the Almighty to 
do so. Had the man at the time and in reference to the act, 
the pow er of distinguishing between right and wrong; that is 
the legal test. It is upon this point your attention is to be 
concentrated. What definition you choose to give to insanity 48 
MEDICAL JURISPRUDENCE. 
in the abstract, aside from its judicial aspect, may be a totally 
different matter. You may sav that a man is insane when lie 
lias a cold in bis head, which to a certain extent benumbs his 
faculties, if you think that is sound pathology, or correct 
psychology. But the law has established a criterion for the 
purposes of justice, that cannot be misunderstood, and ought 
not to be disregarded. LECTURE V. 
INSANITY. 
(Continued.) 
Continuing, gentlemen, the subject of insanity, I have one 
further observation to add to what I said yesterday, in respect 
to criminal cases. Physicians are called upon to examine per- 
sons charged with crime, not only for the purpose of deter- 
mining, or affording evidence by which the proper tribunal 
can determine, whether such person was insane at the time the 
offence was committed, but also sometimes, in order to ascer- 
tain whether he is sufficiently sane to be put upon his trial, 
which may be a very different question. In such cases ex- 
perts are usually appointed by the court, and upon their re- 
port the question is decided by the court. In other cases, as 
I have said to you, they are selected and brought forward by 
the party who desires to use them. When a person is about 
to be put on trial, whether it is claimed that he was insane 
when the offence was committed or not, if it is claimed that he 
is then insane, the court directs an inquiry upon the subject, 
usually by the aid of medical experts, to settle that question 
preliminary to the trial; and the test to apply on such inquiry, 
is whether at that time, however he may have been before, 
which is of no consequence, except so far as it throws light up- 
on his then condition, whether he is at that time mentally ca- 
pable of comprehending the proceedings, and taking that in- 50 
MEDICAL JURISPRUDENCE. 
telligent part in them, which is necessary to his defence ; and 
as you will see, the inqui ry is a good deal easier and simpler 
than when it is applied to a transaction that has passed by. 
perhaps for a good while, and has been the subject of much 
subsequent dispute. 
Coming now to the second branch which I mentioned, of the 
judicial aspect of insanity, I ask your attention for a few mo- 
ments to the effect of insanity upon civil contracts, or private 
contracts between individuals. Although of less frequency of oc- 
currence, it is a very important topic, and sometimes attended 
with considerable difficulty. 
A person of unsound mind, within the definition I shall try 
to give you, a person whom the law recognizes as being of un 
sound mind, will generally be discharged by the courts, and 
relieved from a certain class of contracts, called by lawyers exe 
cutory contracts, that is, contracts to be performed in the 
future, and that have not been consummated. While I do not 
go into nice distinctions that would not be useful to you, the 
general rule is, that the court will relieve the person of unsound 
mind, from the consequences of such executory contracts. Then 
as to contracts that have been performed, as a sale, for instance, 
where the property has been delivered, the law will relieve 
against such a contract under certain circumstances; where the 
person is found to have been of unsound mind at the time of 
the contract, and where the party with whom he dealt, either 
knew, or in the exercise of reasonable attention and discretion 
ought to have known, that the man was not in a mental condi 
tion that rendered him capable of contracting. It has been 
generally said that contracts of a simple and ordinary character 
for necessaries, such as •would be sustained against a minor, and 
where it is obvious that no advantage has been taken of the 
party, will be supported. Of course, this enquiry much depends 
upon the nature and character of the contract itself, because 
notice to the other side of the unsound condition of the mind 
may be derived from the character of the contract. If it is INSANITY. 
51 
extravagant, unreasonable, unusual, or very unfair, that alone 
should put a man of ordinary sagacity upon inquiry, whether 
there is not something wrong in the mental condition of a 
man who proposes such a contract. 
Now, the rule which courts apply in respect to the capacity 
to contract, and which in examinations for that purpose you 
should understand, is this: the unsoundness of mind, in order 
to affect a contract that is otherwise right, must be such as to 
deprive the party of the power of exercising ordinary and 
rational judgment in the transaction: either in comprehending 
the contract in its bearings, its consequences, or its relations, 
or in exercising in regard to those consequences and relations, 
the ordinary judgment of mankind. When that is found to 
exist, then arises, in the case of executed contracts, the further 
question, on which the medical expert may often be able to 
throw light, whether the other party knew or had good reason 
to know of this mental defect; and while, as I have said, it may 
be inferred in whole or in part from the character of the con- 
tract itself, if it was an unreasonable one, it may also be impor- 
tant to know whether the party making the contract afforded 
that external evidence in his own person, in his manner, speech 
or deportment, that ought to have indicated to a person of ordi- 
nary understanding, that there was unsoundness of mind. So 
both these questions may be presented to you : In the first 
place, was the person of sound mind within the legal defini- 
tion; and if he was, did that insanity or imbecility manifest it- 
self in such a manner, that it should have put the opposite 
party on his guard. 
Of course those who have much to do with the insane, 
learn that while sometimes the manifestations of insanity are 
very obvious, and cannot be overlooked, on the other hand 
they are sometimes extremely subtle, so that a long, patient 
and skilful examination may be necessary to detect them. 
There is a story told of a lunatic who was examined in an 
English court, in an action where the lunatic was exceedingly 52 
MEDICAL JURISPRUDENCE. 
anxious, and very cunning in his anxiety, to avoid being 
found insane. It was a trial of intellect and of wits between 
him and the eminent counsel who examined him over a period 
of a day or two, upon all conceivable subjects, and the 
counsel was about giving it up in despair, unable to bring out 
a single trace of mental weakness. The lunatic was a man of 
education and ability, and on all subjects the counsel had start 
ed, he had elicited not only rational but often most interesting 
replies. After a while a person in the audience passed to the 
counsel a slip of paper on which was written "Try him on Eze 
kiel.” The counsel proceeded to introduce the subject of the 
writings of the prophet Ezekiel, and to express his own opinion 
in regard to them. “Why,* said the man, "I am very glad to 
hear you say that. / am Ezekiel /” That was his delusion ; 
a delusion pervading the whole constitution of his mind; a 
monomania, that might as well have been a total mania, for all 
practical purposes, and yet during several days he had eluded 
all effort of a skilful examination, to induce him to say a word 
that would raise the suspicion of insanity. 
One other remark on the subject of contracts, as affected 
by mental condition ; where a person is not of unsound mind 
according to the criterion I have stated, and is quite capable of 
doing ordinary business, but still is m entally impaired or 
weakened, so as not to stand on a par with men of ordinary 
judgment, and not to be a match for a sharp or unscrupulous 
man in making a bargain, the contract of such a person will 
often be set aside by a court of equity, when it appears that it 
was an unfair and plainly unrighteous contract, and that an 
unjust advantage had been taken of flic mental condition of 
the person entering into it. Here, then, another inquiry 
arises; not whether a person is of unsound mind, or incapable 
of doing business, but whether his mind was so far enfeebled 
or affected, as to place him on a disparity with the man who 
dealt with him in an important matter, and who took advantage 
of this disparity. That, as you see, raises a much easier question. INSANITY. 
53 
because it is altogether easier to determine whether the mind 
is somewhat impaired, than it is to determine whether the 
degree of that affection comes up to the standard which the 
rule of law requires. 
The third topic in this connection, is the effect of insanity 
upon guardianship proceedings: the duty of the judicial 
authority, at the instance of a party in interest, of placing a 
person under guardianship, because he is insane. And that, as 
you will see, involves two very important rights. One is the 
taking from him the custody and control of his own property, 
and the other is investing the guardian, as the law does in such 
cases, with the power of confining in an asylum the person 
who is adjudged insane. It involves, therefore, both property 
and liberty ; and there is no subject which gives rise to more 
bitter controversies in courts of law than this. When the in- 
sane person has recovered, or has partially recovered, he may 
apply to discharge the guardianship proceedings, and to exempt 
himself from further restraint. And not infrequently, actions 
for damages are brought by such a person, against those who 
have been concerned in confining him in an asylum. 
Let me advise you, in the first place, in the course of your 
medical experience, never to have anything to do in a profes- 
sional capacity, or in any other capacity for that matter, with 
depriving a man of his liberty on the ground of insanity, if he 
is of full age, without the safeguard of proper legal proceed 
ings, and the appointment of a guardian over him. That 
proceeding, if it is sustained by the court, and a guardian 
appointed, protects those who act under it. You are protected 
in advising that a man should be sent to an asylum, or that 
he should be kept there and not discharged, and that the con 
trol of his property should be taken away from him, when the 
proper court of the country has appointed a guardian, and 
proceedings are taken by the guardian under his official 
responsibility; assuming, of course, always, that such proceed- 
ings are in good faith. 54 
MEDICAL JURISPRUDENCE. 
When the question is presented to a medical witness as 
to the propriety of a guardianship, a different criterion of insa- 
nity from those that I have tried to point out as applicable to 
criminal cases and to contracts, arises : and that is, whether 
the man in general, not in respect to a particular contract or 
transaction, or a particular crime, but generally, is or is not 
capable of transacting ordinary business with ordinary judg 
ment ; whether he had in the beginning faculties enough, 
and if he had, whether they have been so impaired by any in- 
tervening cause, as to deprive him of that capacity. When this 
question arises as to particular contracts, the contract itself 
may be the guide. If it is a simple and easy one, it may not re 
quire much capacity. If it is difficult and important, with many 
bearings, a much higher standard is requisite. But in respect to 
guardianship proceedings, a broader and more general test 
must be applied, involving in its scope all the ordinary busi 
ness of life. 
Ill respect to the propriety of advising confinement in ail 
asylum, which is sometimes a difficult and delicate question, 
and ought always to be approached with caution, three consi- 
derations are to be principally observed. First,, the restraint 
of the patient, if his insanity renders him dangerous. Con- 
finement in such a case is a necessity. /Second, his cure, if he 
is not past cure, as recent cases, at least, rarely are. Whether 
this can be better accomplished in an asylum, may depend 
largely on the circumstances of the patient, and his means of 
commanding adequate private attendance at home. Third, 
the finding of a proper home for him, though incurable, and 
not dangerous, if, as in many cases, especially among the 
poorer classes, it can be obtained in no other proper way. 
It is only upon one or more of these three grounds, that 
the confinement of the insane is morally justifiable, or ought 
ever to be resorted to. If but slightly insane, and not danger- 
ous, even though incurable, or if entitled to homes where 
they can be safe, and have proper curative treatment and care, 55 
INSANITY. 
they should no more be consigned to asylums to get rid of 
them, than young children should be sent to the poor house or 
the baby-farm, to save the trouble or expense of their care. 
Great and dangerous abuses have attended this subject, espe 
daily in the detention of persons not insane, or who having 
been insane, have recovered their reason. The responsibility 
of advising in doubtful cases of that sort is grave, and may 
not always be free from danger of liability. 
I add nothing further on the subject of guardian- 
ship, except to say that in other cases, always in criminal 
cases, often in cases of contract, the person supposed to be 
insane, and standing upon the doubtful ground which leaves 
room for discussion whether he is insane or not, is in favor of 
establishing the insanity. If there is any pretence or simula 
tion, it is in that direction. And on the other hand, when the 
proposition is to deprive him of his property, or to shut him 
up in an asylum, if he is not too insane to comprehend the 
effect of the proceeding, he is on the other side. He is as anx 
ions then to escape insanity, as in the other case to establish it. 
Y ou will thus encounter exactly opposite conditions in the two 
cases. 
Now, in regal’d to testing insanity, for all purposes for 
whicli you may be called upon to test it, I may add some 
suggestions that you may perhaps find useful. With the path- 
ology of the disease I have nothing to do. I cannot instruct 
you in that. I have tried to point out the different criteria, 
the tests and standards which the law applies. I do not think 
it necessarily true, that physicians are the best judges, as they 
certainly are not the sole judges, of the existence or degree of 
insanity. I mean physicians who have not made that subject a 
particular study, nor had in it a special experience. The physi 
cian more than another is called on in such cases, for two rea- 
sons, perhaps three. In the first place, the visible physical 
symptoms that almost always attend insanity, are of great im- 
portance in determining whether it exists ; and a physician, of 56 
MEDICAL .JURISPRUDENCE. 
course, can discover and estimate those symptoms as no one 
else can. Another reason is the power, or perhaps, rather the 
habit than the power, of close, critical, personal observation, 
which the physician cultivates and acquires, as few other men 
do. The third is, that the physician may often have been the 
family or attending physician of the subject, able to compare 
him with himself, and to contrast his present physical and 
mental condition with his former condition ; and familiar with 
the history of his health, and with those predisposing causes 
which may bear upon the inquiry. But after all, these are 
only helps. You have to come down at last to dealing with 
the mental phenomena, because those are what the question 
finally turns on, in doubtful cases. What is the condition of 
the mind '? That can only be ascertained successfully, in diffi 
cult and subtle cases, by very careful and repeated and saga 
cious examination, by one taught to watch and weigh the 
operations of the faculties of the mind. He has to contend in 
some cases with the effort to seem to be insane, in another 
class of cases with the effort to seem not to be insane, and in 
a third class with a subject from whom little can be extracted, 
who cares not whether he is pronounced insane or not, and is a 
mere passive subject in the examiner’s hands. Delusion, of 
course, is sought for. What kind of delusion do you find ? 
On what subject ? How far does it go ? Is it important ? 
Docs it invade the structure of the mind, or is it a mere sur- 
face eccentricity ? 
Men have often, marked peculiarities of disposition, and 
strange idiosyncracies of character. They are habitually 
moody, ill tempered, morose, flighty, quick tempered, suspici 
ous, secretive, very talkative, very reticent, disagrcjfble in vari 
ous ways. They are what common people call “queer sped 
mens,” “crooked sticks,” or, “a little cracked.” These peculiarities 
are easily magnified by interested or eager witnesses, and are 
made to appear of more consequence in the telling than in 
the observing. But this is not insanity in any legal sense of INSANITY. 
57 
the term, though sometimes indicating a tendency toward 
insanity, hereditary or otherwise. But whether you think 
proper to term it a mild or slight species of insanity or not, 
does not change its legal effect. 
I may venture to say, that in the estimate and criticism of 
the purely mental phenomena of insanity, aside from its phy- 
sical symptoms, the experienced lawyer is likely to aid you as 
much in determining that question, as you from your stand- 
point, can aid him. 
There are certain tests of insanity that are worth consid- 
eration in doubtful cases, and especially in cases where you 
have reason to suspect that it is simulated. You are called to 
a man who may or may not be insane. The first thing to 
attend to, is whether he has an interest to be insane, or not to 
be. Which side of the case is he on, if on either ? Does he 
want to be insane, or does he insist that he is not insane ? 
Then ascertain, if possible, what his hereditary tendencies are 
in that way. There is probably no affection or disease more 
likely to be hereditary, than insanity. I do not say certainly 
hereditary, but likely to be. It does not prove that a man is in- 
sane because his ancestors are. Often he may never be insane; 
and he may be insane in a very different way, or in a very differ- 
ent degree. But this is a very important step in the inquiry, when 
it can be settled one way or the other. Generally it requires 
an immediate disposing cause to bring it out. Sometimes, 
however, an hereditary insanity will manifest itself, where there 
is no direct apparent cause, or none that can be seen or 
learned. But a much slighter cause will develop hereditary 
insanity, than is necessary to produce it originally. The rule 
is the same that applies to many other diseases, which will 
attack certain constitutions and temperaments much more 
readily and easily, and upon much slighter cause, than others. 
When it is ascertained whether there is or is not the heredi- 
tary tendency, then you should address yourself to the physi- 
cal symptoms. And the cases of insanity are exceedingly rare, in 58 
medical jurisprudence. 
which a physician will not find the disease accompanied by 
perceptible bodily symptoms, that are not otherwise easy to 
account for. Those cannot be easily simulated, and therefore 
they are the more important. It belongs to another branch 
of your medical education to teach you to trace them, and 
follow them out. 
Another preliminary inqury: has there been any imme- 
diate or disposing cause that is adequate to produce the effect ? 
Especially if no hereditary tendency exists ; if it has appeared 
in the patient in the first instance, it must be the result of some 
adequate case. Has he been hurt ? Has he had a sickness 
that might affect his brain? Has he been intemperate, or 
under such mental anxiety, solicitude, agitation, or excitement, as 
might account for the appearance of insanity ? It is obvious 
that where you find a man with no hereditary tendency towards 
insanity, and no known immediate cause for it, and none of 
the physical symptoms that usually attend cases of insanity, 
you narrow the inquiry down to a very suspicious limit, and 
especially if it is a case where it is an object for the man to be 
thought insane. A strong circumstantial case is made out 
against the existence of the disease to start with, and yet one 
that is by no means necessarily conclusive. Insanity, though 
improbable, may still exist. The mental manifestations are 
then to be considered, which after all must be the ultimate 
test of a diseased mind. 
Simulated mania almost always over-acts. Ignorant 
people wlio set out to appear insane, usually begin to be vio 
lent, and turbulent, and noisy; they shout, sing, jump, and con 
duct themselves in an extravagant manner. General mania 
often does exhibit itself in such uncontrollable, unaccountable, 
spasmodic violent conduct. The question then is, whether this 
is real mania? Whether the noise and disturbance is made in 
good faith, or whether it is manufactured for the occasion. 
Now there are two tests that in that class of mania very rarely 
fail. One is, that however it may be in the milder and partial INSANITY. 
59 
forms of insanity, it is always the case in these instances of 
general mania, that the various physical symptoms are pro- 
nounced and unmistakable. When a man is a maniac, a 
lunatic, in the common acceptation of the term, it is obvious in 
his person, his pulse, his temperature, his eye, his skin, his 
sleeplessness, his unnatural appetite, his want of appetite. All 
of the physical functions will be more or less deranged, and 
abnormal. 
The other test is found in watching the patient when he 
is not aware that he is seen. The acting he has been carrying 
on, is then suspended, the violence subsides. Indeed it could 
not be long kept up without some interval of rest. By these 
means simulated general mania is usually easily detected. 
The more troublesome cases arise, when the subject is 
cunning enough to set up a partial mania, or, on the other hand, 
where he has a partial mania, and is cunning enough to try to 
conceal it. Where a partial mania is pretended, and the man 
goes to work to manufacture it, it is almost always over-done, 
unless he is very skilful on the subject of insanity. It is al 
most always over-acted. He is too anxious to appear to be 
insane. You see in the demeanor of the man, that he wants 
you to perceive his delusion; he is not trying to conceal it, but 
makes it as prominent as possible: he is inconsistent, and un- 
certain in his delusions, and does not stick to his text. In 
ordinary cases of monomania, or partial mania, you will find the 
patients are consistent and even logical in their delusions, and 
the delusion is generally the same, at least for a consi- 
derable time, and excludes inconsistent delusions. You trace, 
therefore, in simulated insanity, usually, the evidence of its 
manufacture. 
There is another indication, and I never saw a person 
under the influence of partial mania, where it did not seem to 
me I could detect it, and that is an indescribable look in the 
eye, that conveys to you the idea, that the insane person, while 
he adheres to his delusion, has still a lingering notion in his 60 
MEDICAL JURISPRUDENCE. 
mind that you do not believe it : a look, sometimes most 
pathetic and appealing, indicating a sort of undercurrent 
of thought unconsciously going on, as undercurrents some- 
times go on in the human mind, that his delusion, so real to 
him, is not real to the spectator. This is something no one 
can simulate. The man who is anxious to make himself out 
insane, shows you the opposite. If he has any anxiety, it is an 
anxiety to see whether he has created an impression, whether 
he has made his point. The real lunatic only, seems to say 
mentally, in a sort of sad, mournful undertone, “Do you believe 
this ? Do you see anything wrong in me ? Do you think I am 
mistaken?” And I think one of the very best tests of insanity, is 
that look, which once seen by a thoughtful observer, will be re- 
membered, and which can be a great deal better remembered 
than described. 
No good, in my judgment, comes from theorizing on the 
legal or judicial aspect of insanity. Little benefit is derived 
either, from rehearsing the many cases, interesting, melancholy, 
or amusing, that the lunatic hospitals abound with, because 
every man’s case has to be determined by itself. Physical 
symptoms, of course, as in other diseases, may be similar. 
Certain fixed principles, like that of the hereditary taint, can be 
recognized; but when you come to deal at last, with the pheno- 
mena of the mind, it has pleased the Almighty to provide, that 
every man’s mind shall have its own qualities and characteris- 
tics, as it has its own joys and sorrows : that it shall stand or 
fall in its own way, and be judged of here, as hereafter, on its 
own merits and its own consciousness. LECTURE VI. 
WILLS. 
I shall ask your attention to-day, gentlemen, to the sub- 
ject of the disposition of property by will, so far as physicians 
may be expected to have anything to do with it; and it is a 
business with which physicians are likely to have a good deal 
to do, in several ways. In the first place, when the question 
arises as to the capacity of a person to make a will, who is 
suffering with illness, enfeebled by old age, or, perhaps, 
thought to be affected to some extent by insanity, the enquiry 
is often addressed to a physician, and especially to an at- 
tending physician, who has been watching the case, whether 
or not there is the mental capacity that justifies the attempt. 
He is very likely, also, to be called on to be a witness to the 
will. For some strange reason, the duty of making a will, 
which ought always to be discharged in the vigor of life, is 
very commonly postponed until the party is in extremis. 
Men seem to think that making a will somehow accelerates 
death, and is like ordering the coffin. Many wills are there- 
fore executed from the sick and dyingJbed, and sometimes in 
extreme old age. Of course the attending physician in such a 
case, being on the spot, and being one of those with whom the 
patient is familiar, and by whose presence he is not agitated, 
and frequently being a friend of the family, is very naturally 
called upon to act as a witness. And if the case is one where MEDICAL .JURISPRUDENCE. 
although real capacity exists, any question could ever arise about 
the validity of the instrument, it is extremely proper that the 
attending physician, who, in addition to his general knowledge 
of the subject, understands the patient’s condition, should be- 
come one of the witnesses. Then, when the will has been 
executed, and is challenged in a court of justice, and sought 
to be broken, as the common phrase is, or set aside, on account 
of the incapacity of the testator, the testimony of the physi- 
cian becomes very important, whether he is a subscriber to 
the will or not: especially important if he is a subscriber ; 
and still more, perhaps, if he has been, also, the attending 
physician. You will see, then, that this topic is one you will 
be likely to encounter in your professional life, in more ways 
than one. It is, therefore, necessary, or at least desirable, that 
physicians should approach the subject with some general 
knowledge of what the law requires, to enable a person 
to make a valid will, and how it is to be executed. And I may 
digress here far enough to say, that if some elementary in- 
struction on those general subjects of the common law, that are 
involved all the time in the ordinary business of life, was more 
common to all classes of students, they would find it extreme- 
ly useful. It is like hygiene in the science of medicine, 
not at all the exclusive property of the professional man. 
Every person who has arrived at years of discretion, is 
entitled by the law of our country to make a will, disposing of 
his property; and in making it, he can dispose of any and all 
property he lias, and he may dispose of it just as he pleases, 
without regard to the claims of family, affection or propriety. 
The subject is altogether in his own hands, as to any property 
that will be left after »the payment of his just debts, with the 
single exception of the claims of his wife, if lie has one. Her 
legal share, given her by the law, in the deceased husband’s 
property, cannot be taken away by him. And, therefore, if he 
makes a will, and either does not provide for her, or makes a 
provision that she is dissatisfied with, she has a right to have WILLS. 
her share taken out of the estate, before the will takes effect; 
to that extent, and to that extent, only, the law imposes a res- 
triction upon the absolute power of evei'y person owning pro- 
perty, to dispose of it by will. In the state of Louisiana alone, 
in this country, so far as I know, as in the countries of Europe, 
where the civil law prevails, it is otherwise. There, children 
have certain rights in property by descent, which cannot be 
taken away by will. 
Now to the validity of a will, there are four requisites. 
In the first place, the person that makes it, called the testator, 
or testatrix, must be of sound disposing mind and memory. 
That is the language in which the law conveys the idea of a 
sufficient mental capacity for this purpose. Secondly, the will 
must be written ; and expressed with such clearness, that the 
court can find out from it what disposition of the property is 
really intended. They will go as far as possible in the con 
struction of a will, to carry out the intention of a testator, and 
no particular form of words is usually necessary; if with 
reasonable certainty they can ascertain from its language what 
the testator meant, they will carry the will into effect. The 
third requisite is, that the will must be signed bv the testator 
or testatrix, and signed with the knowledge and intention that 
it is to operate as a will. That is to say, not under any mis- 
take or imposition, but with full knowledge and assent, that 
the document is, and is to be, the will. And of course that 
implies, also, that it must be freely signed, in the exercise of 
the personal volition of the testator, and not under fear, com 
pulsion, or coercion ; he must neither be cheated nor forced into 
signing it. 
And the last requisite is, the requirement of the 
statute in this state, which is substantially the same in most of 
the states, although on this point the particular rules in 
different states vary somewhat—that the will must be at- 
tested by the signature of three witnesses, who sign it in the 
presence of the testator and of each other, and who have seen MEDICAL JURISPRUDENCE. 
the testator sign ; so that the four parties to the will, the 
maker and the three witnesses, shall all see each other sign, 
the whole business being done on one occasion, when all are 
present. And all must understand that the object of attesting 
the document is to establish it as a will. I do not use the 
word “ see” in its literal sense, because a blind person can 
make a will. It is only necessary that the testator who is 
blind shall be made aware that his signature, or whatever passes 
for it, is taking place in the presence of the witnesses, and that 
their signatures are being appended in his presence as an at- 
testation of his will. And by signature, I mean such a signa 
ture as the party is able to make ; a person who cannot write, 
may make his mark between the words of his name written by 
some other person ; and so a person in extreme debility from 
illness or old age, may have his hand guided bv some other 
person, and make such signature as he can in that way, if it is 
only understood and intended by him that it is the signature 
he would make by his own act, if he only had the physical ca 
pacity. 
Nothing is more commonly misunderstood, and some 
times even in the legal profession, than the duty of the 
witness to a will. He is very generally regarded as being a 
mere witness to the signature, who, having seen the party 
sign, or having heard him say he has signed, adds his own 
name, because the law requires a witness, as a matter of form. 
This is a grave mistake. When the witnesses put their sig- 
natures to the will, the law which has placed them there, re- 
quires them to discharge a double and most important duty. 
First, to see that the signature of the testator is his genuine 
signature, and that he signs understanding the document to 
be a will, and not under any imposition, mistake, coercion or 
fear; and next, to satisfy themselves, as far as they reason- 
ably can with the means and the opportunity they have, that 
the testator is at the time, of sufficient mental capacity. Until 
the witness is satisfied of that fact, he should not append his WILLS. 
name ; because in legal effect, although it is not written out 
(probably it would be better if it were), he is certifying, not 
only that the signature of the testator is free, voluntary and 
intelligent, but, also, that when he made it he was of sufficient 
mental capacity. I have seen physicians in some instances, by 
not understanding the effect of their attestation, placed in a 
very unfavorable position, and a very disagreeable one. 
', A physician was once called into court as a witness on 
the contest of a will, where the question was, whether the 
testator had capacity enough to make it, understandingly. 
The physician was one of the subscribing witnesses to the 
will, and testified that in his opinion the testator had not suf- 
ficient capacity. He was at once confronted with the inquiry, 
“ Why then did you attest it ? Why did you sign a will and 
help to make it, if you were then to come here and testify that 
the maker had not proper capacity?” The truth was, the 
witness had never thought of that; he put his name 
to the will because he was asked to ; he had his own opinion all 
the time as to the capacity of the testator; and when he was 
asked to state his opinion in court, he did so. But his testimony 
provoked such criticism that it actually turned the case the 
other way ; the jury deriving the idea, that his original opinion 
must have been such as to warrant him in the signing of the 
will, and that by some reason or other, he had been induced to 
alter it. And that is not the only instance I have seen of a sub- 
scribing witness -placed hi the same dilemma. In these cases 
the physicians were upright in intention, and intelligent in 
j udgment, but were drawn into a false position, by not under- 
standing in the outset, that when they put their names to the 
will, they were certifying, so far as they had the means of know- 
ing, to the mental capacity of the testator. 
When, therefore, you are called upon, as you will be, 
probably, many times, not only to determine the sometimes 
perplexing question of the capacity of a party to make a will, 
but to become a subscribing witness to it, bear in mind that medical jurisprudence. 
you are deciding not only an important inquiry, but one on 
which you may very likely be required to back up your 
opinion in a court of justice. So that if you have any serious 
doubt as to the capacity of the person to make the will, ex- 
press that doubt frankly, and decline to put your name to the in 
strument. You may not be able, at the time, to institute such 
a thorough examination as would enable you to determine 
the question to your own satisfaction. But if there is any se- 
rious doubt upon the subject, which you are not able to solve, 
or which there are not time and means of removing, it is better 
to keep out of the transaction, in view of its ultimate conse- 
quences ; because the law requires the subscribing witnesses 
always to be called, if living, when the will is offered for pro- 
bate. If, notwithstanding your opinion, parties choose to go 
on and have the will made, it ceases to be any affair of yours. 
You are not the guardian of the testator, or required to see 
that a will is executed, or that it is not executed. You have 
nothing to do with it until you are invited to take part; but 
if you are invited,—if your opinion is asked,—it should be so 
expressed, that if you are afterwards called to repeat it in a 
court of law, you will not be encountered by any incon- 
sistency between what you say there, and what you have said 
before. 
The rule of law in respect to the measure of 
mental capacity, m this as in the other cases to which I have 
had occasion to call your attention, establishes a clear and de 
finite criterion ; that is to say, just as clear and definite as a 
measure of the capacity of the human mind can be, when 
stated in words. And substantially it is this. The 
testator must have mind enough, perception, memory, 
reasoning power enough, to be able of himself, without any 
help, to call into his mind those who have natural claims upon 
him, and those who should be remembered and considered 
when he is making a will; to call up also in his memory the 
property he has, what it is, where it is, and to determine by 67 
WILLS. 
volition of his own, wliat he wishes to do with it. So that the 
disposition made, is the result of his own choice, rationally 
exercised, dealing with property and claimants, the knowledge 
of which is correctly recalled by his own memory. If he can 
do thus much, of himself, the instrument will stand, however 
failing or feeble the powers of mind or body may be. The 
standard, as you readily perceive, is not a high one. It re- 
quires no very powerful exercise of the mental faculties. It 
does not even require so much vigor of intellect as would be 
necessary to the making of an ordinary contract, where an 
opposite contracting party has to be encountered. 
It is not necessary that the disposition should be the 
wisest or the best. The question addressed to the triers, is 
not whether that is the will they would have made, if they 
had been in his situation, or would have advised him to make, 
if their opinion had been asked. If he had mind enough to 
make it of his own accord, his own volition, and his own 
adequate memory, the will is valid, and will be established. 
Of course I do not mean to be understood that it makes 
no difference upon such an inquiry, what Hjort of will a man 
makes. That makes no difference after the instrument is once 
ascertained to be his will, rationally and voluntarily executed. 
The disposition of the property may be most objectionable, 
and unjust, and still be sustained, if legally made, in the ex- 
ercise of such moderate capacity and volition as the law re- 
quires. But very important and even decisive light is often 
thrown upon this question of capacity, by the character of the 
will itself. Is it reasonable ? Is it probable ? Is it consis 
tent with the affections, the wishes, the known previous 
intentions of the testator ? Or is it, on the other hand, strange, 
inconsistent, unaccountable, as well as wrong? The answer 
to these inquiries- may in itself sometimes turn the scale, and 
be sufficient to determine the question, whether or not the 
will was the result of mental capacity or incapacity, of sound- 
ness or unsoundness of mind. But it is decisive only as far 68 
MEDICAL JURISPRUDENCE. 
as it reaches and affects the cardinal point, the actual con 
dition of the mind. 
The law favors the disposition of property by will; it 
goes as far as it can in support of it. without crossing the con- 
fines that separate justice from injustice. The presumption 
is therefore in favor of capacity. When a will is presented, it 
is not necessary to prove that the maker was sane and compe- 
tent; that is presumed until he is proved to have been incom 
petent. And a will legally executed, is valid until success- 
fully impeached by proof. 
Mental incapacity to make a will, may arise in three ways. 
First, from some of the forms of insanity ; and you will re- 
member that I forebore, in discussing the subject of insanity, 
generally, to speak of its effect upon the making of wills, 
because it may be considered with more propriety in this con- 
nection. It is a much easier task, usually, to determine doubt- 
ful questions of insanity as they affect the validity of wills, 
than' in many other cases where they are involved, and 
especially where the physician has the opportunity to see the 
party at and before the time when the will is executed. The 
case is relieved in the first place, of all effort on the part of 
the testator to appear to be insane, or to appear not to be 
insane. He is usually acting calmly and thoughtfully, sur- 
rounded by his friends, doing what he has a right to do, and 
what no one has a right to prevent. Thus all theories of 
moral insanity, emotional insanity, and other spurious or im- 
aginary forms of mental disease are out of the question, as 
these never attack a person who is engaged in a lawful act- 
Criminality, as we have before seen, is absolutely necessary to 
their existence. And finally, the judgment of the physician 
is formed at the time of the transaction in question, and not 
long afterwards, when it has perhaps become the subject of 
heated controversy, and wide diversity of statement as well 
as of opinion, 69 
WILLS. 
When a doubt arises as to the validity of a will, or the coni 
petency to make a will, on the ground of possible insanity, the 
question is, first, does any delusion that is found to exist, 
involve the whole structure and operation of the mind, so that 
the man is really insane upon all subjects, and incapable of 
natural mental action. Or if not, and there is found to be only 
a delusion on one subject—a monomania—-does that delusion or 
mania in any way connect itself with the business of the dis- 
position of property, or with any of the individuals who ought 
to be taken into consideration, or naturally would be taken 
into consideration, in making it, such as wife or children. A 
man may take up the delusion that his best friend is his worst 
enemy: that this enemy is pursuing him by day and by night, 
that he is seeking his life, that he is plotting against his hap- 
piness and his success in whatever he undertakes, and the 
delusion may reach the degree of monomania, having no 
foundation in fact, and no foundation in probability. While he 
has no good reason to think so, yet he is tortured and tor 
mented with the imaginary idea, that every where he encoun- 
ters the opposition of this enemy. So that he might even 
meet that man under circumstances in which if he were to kill 
him, he would be entitled to be acquitted on the ground of insani- 
ty. He would have done it in imaginary self-defence, in order 
to protect himself against the fancied and imminent danger that 
was menacing him. Such a person is of course insane—a mon- 
omaniac—and yet may perhaps be able to make a will that is 
valid ; perhaps not. In his relations with his family, his wife, 
his children, his connections, in the transaction of his ordi- 
nary pecuniary business, in knowing what his property is, what 
becomes of it, and in having correct ideas as to what ought 
to become of it, he may be sane and natural. So that the 
will of that insane man—insane enough under a supposable 
case to be acquitted in a court of justice if he committed a 
homicide—might still be valid. But suppose, on the other 
hand, that the person against whom this insane, morbid pre- 70 
MEDICAL JURISPRUDENCE. 
jndice has arisen, were the wife, the son, the daughter of the 
testator. When he makes a will his first and foremost idea is 
naturally to exclude that wife or child from sharing in his 
property—the child that has become his enemy, the wife who 
is alienated from him. The delusion then touches the very 
point in question, and that will cannot stand. 
When the delusion is not so general as to involve the 
whole mind, and to exclude the idea of natural mental action 
on any subject, the question is, how far, if at all, does it reach 
or attach to the matter of property, its situation, amount or 
disposal, or the persons naturally or reasonably to be thought 
of hi making a will. And it is these cases of partial insanity or 
monomania, sometimes very near the line, that give rise to the 
most serious debate, and the greatest doubt, and that need to 
be most intelligently considered. 
Incapacity may also arise where there is no insanity, and 
never has been, from the mere effects of acute disease. The 
stupor of typhus, the delirium and excitement that attend 
nervous diseases, and many other forms of illness, may place 
the party where, for the time being, he is not capable of mak- 
ing a rational will of his own volition, although he has never 
been afflicted with any mental disease. Those affections, 
those sources of incapacity, are peculiarly and almost entirely 
within the province of the physician. While the lawyer or the 
intelligent layman may judge on the question of insanity 
sometimes as well as the physician, or nearly so, if he has the 
means of knowledge, when it comes to the distraction that 
is born of immediate acute disease, the whole subject is 
within the domain of the physician. 
Mental incapacity may arise also from old age ; because 
the will is made too late; after nature lias begun to shut up 
the windows and the doors, and to put out the lights, in the 
tenement which the soul is about to abandon. It may arise 
from that cause alone; where there is no particular illness, or 
disease, and where there never lias been anything like insani 71 
WILLS. 
ty. So two or more of these causes may combine. A man 
may be insane in mind, and be also under the influence of 
acute disease; he may be of extremely advanced years, and 
likewise affected by illness; and he may possibly have all 
three of these disabilities at the same time, to a greater or less 
degree, and mental incapacity may come from a combination of 
them all. 
Of course, as I had occasion to say in discussing the gen- 
eral subject of insanity, every case stands by itself. It must 
be judged by itself, and by its own peculiar manifestations. 
And the power of judging correctly must be acquired by ex 
perience and reflection. It will be best exercised always, when 
you can compare the man with himself; what he is, with what 
he has been. 
There is another rule of law applicable to the disposi- 
tion of property by will, that should be understood and borne 
in mind by those having to do with such transactions. Where 
a man is capable of making a will, according to the test that I 
have stated, where he comes up in capacity to the legal requi 
site that I have tried to explain, so that his will, if it was his 
own will, without any undue interference, would stand, that 
will may still fail. If he was so far impaired by disease, by 
old age, by any partial mental unsoundness ; if his faculties 
are for any reason so far weakened that he is easily accessible 
to the improper influence of others, and cannot stand up in 
defence of his own wish and intentions as ordinary men do : 
then if what is known in the law as undue influence is brought 
to bear upon him, and a will is thus obtained that he would not 
have made if he were let alone, that will will be set aside. Not 
because he had not capacity to make any will, but because he 
had not capacity to do it when subjected to an improper, 
crowding and overpowering influence. I do not mean to say 
that no one has a right to interfere with the making of a will. 
A man has a legal right, whether delicate and judicious or not, 
to try to obtain by reasonable suggestions and persuasions, a 72 
MEDICAL JURISPRUDENCE. 
will to be made in a particular way. He may ask a person 
who is about to make a will, to remember him, or to provide 
for another, and however indelicate it may be, there is nothing 
illegal about it. But when that pressure is carried beyond 
suggestions and fair request, to the degree which the law 
characterizes as undue influence; when it becomes a pressure, 
a force sufficient with a weak man to over balance what he 
would have done, or what he wanted to do ; where without 
strength to resist the importunity, he does what the by-stand- 
er desires, and not what he desires himself, that disposition 
will be set aside. 
You are called upon, let me suppose, to express an opin- 
ion, or to participate as a witness in making tlie will of a man 
of whom you are satisfied, that if he was only let alone, he 
has capacity enough to make a will. He is weak, lie is feeble, 
but he could make a will if let alone; liis mental powers 
come up to the legal standard, which, as you have seen, is not 
a high one. But he is surrounded by people who are capable 
of subjecting him to the sort of pressure that.I have described. 
How far they have done it, you do not know. It has not been 
done in your presence. It is just one of those cases, where 
assuming that the man has been fairly treated, the will would 
be well enough, but assuming that he lias been pressed and 
crowded, it ought not to stand, and if that fact appears, it will 
not stand. Now it seems to me the duty of the medical man in 
such a case as that, to assent, if lie pleases, to act as a wit- 
ness to the will, protecting his assent, however, with a state- 
ment at the time of it, that he assumes the capacity to make 
the will because he assumes there has been no undue influence 
or interference. That leaves his position a consistent one, if 
he should be called afterwards as a witness to the will, and it 
should turn out that this sort of pressure had been 
going on to such an extent, as to operate upon the 
weak mind of the testator. By his signature attesting the will, 
he has asserted nothing more than his belief in the capacity WILLS. 
73 
of the maker of the will, under fair treatment. And it is not at 
all inconsistent with his afterwards expressing an opinion of 
what might be the result upon the testator, of undue and im- 
proper interference. 
I do not know that I can add anything further, usefully, 
upon this subject. You will see upon reflection how impor- 
tant to yourselves as well as to others your connection with 
it may become, and how carefully it should be approached. 
Wills, as you know, give rise often to violent contests, to dis 
ruption of families, to bitter personal feelings, to great con 
trarietv of opinion, and conflict of evidence. They may dis- 
pose of a great deal of property, in a very short time, by a very 
simple act; they may work great wrongs, they may work great 
good. And every witness, therefore, who is invited to partici- 
pate in such a transaction, and above all the medical witness, 
and still more the medical witness who is attending the case, 
should bear these considerations in mind, and have a clear, 
distinct and definite idea of what he is about, and the light 
and the wrong of it, before any dispute arises, and before his 
opinion or motives can be laid open to criticism. LECTURE VII. 
FICTITIOUS INJUEIES. 
I have but little more than an apology for a lecture to offer 
you to-day, because I am compelled to treat the subject of it in 
a very imperfect manner. But what I have to say will at least 
have the merit that should belong to apologies, that of being 
brief. I wish to say something about what may be called fic- 
titious injuries, and simulated, pretended diseases, claimed to 
have grown out of fictitious injuries. The difficulty of treat- 
ing it from the legal stand point is, that I can do little more 
than point out what you ought to learn, without doing much 
towards giving you the required instruction. I can but point 
the way. And I have been led by a sense of the deficient man- 
ner in which I am obliged to treat this and other subjects, 
strongly toward the conclusion, that lectures in this depart- 
ment ought to be, as I hope some day they will be. alternated 
between the lawyer and the physician, thus presenting both 
sides of a subject, which, as I pointed out to you before, has 
two distinct sides, the medical and the legal. 
Probably the large majority of cases in which physicians 
are called in court to testify, are cases of personal injury, 
arising from some cause for which the law gives redress in 
the way of damages; from an assault, or from some one of an 
infinite variety of accidents, for which somebody is responsi- 
ble, because somebody is to blame, actually or constructively. 75 
FICTITIOUS injukies. 
Of course many of these cases, perhaps I should say most of 
them, are genuine claims—real injuries, and entitled to their 
suitable redress. That redress is altogether within the pro- 
vince of a jury. When a cause of action is once established 
in behalf of a person who has been injured, against another 
who is to blame for it, the amount that he shall recover is 
entirely in the hands of the jury. And this has become a 
very fruitful source, and I am sorry to say a rapidly increas- 
ing source, of fictitious claims, pretended or grossly exaggera- 
ted claims of injury, for the purpose of obtaining damages. 
And as insurance companies long ago found out that there is 
nothing so combustible as over-insurance, so lawyers have 
learned, that there is nothing so aggravating to personal in- 
juries sustained by accident, or otherwise, as an existing 
claim for damages. It is astonishing how many cases of per- 
manent injury arise, altogether and absolutely incurable, and 
it is astonishing how fast these cases recover their health, after 
they have first recovered adequate damages. The detection of 
this sort of claim has therefore become a very important duty, 
and it is of necessity wholly in the hands of physicians and 
surgeons. It may be called, perhaps, detective medicine, or 
the diagnosis of disease that does not exist; and as you see, 
nearly the whole business of such detection becomes the sub- 
ject of medical and and not of legal science. 
These claims have increased so much of late years, that 
they have begun to attract very great attention. Actions 
against towns, for injuries sustained by defects in the high- 
ways, which have always been given by our law hitherto, 
have recently been abolished in this state, and likewise in 
other states, on account of their abuse. Because the great- 
est good of the greatest number, which is the basis upon 
which laws are made, or ought to be, has come to require, that 
those entitled to compensation for such injuries should be 
deprived of it, rather than that the towns should be subjected 
to the exorbitant and- outrageous claims that are so often MEDICAL JURISPRUDENCE. 
made, and sometimes sustained. Railroad companies have 
also suffered very severely in cases of claims for injuries, that 
have been absolutely fictitious. Very large damages have 
been recovered, too, in some cases against individuals, upon 
causes of action that have been equally unjust. The success 
of these speculations has brought reproach upon the courts, 
because so many cases of pretended permanent injuries get 
well when the suit is ended. And the ultimate result of the 
proceeding, presents the court in the aspect of a tribunal to 
execute injustice instead of justice. 
Nothing has contributed so much to the advance of this 
system of deception, as one or two modern theories of injury, 
and of disease resulting from injury, that have found their 
way of late years into courts. The trouble with fictitious 
cases had formerly been, that there was nothing of the alleged 
injuries to be seen. When a man who pretended to be hurt 
went to his physician, there was no external indication of it, 
there was no fracture, no bruise, no deformity, no discolora- 
tion, no swelling, nothing. Of course it is very difficult upon 
such a case as that, to predicate a serious or permanent injury, 
that ought to be redressed by large damages. I do not know 
which profession is entitled to the merit of the invention, but 
the idea was started not very many years ago, and within 1113' 
own recollection, of putting these cases upon the ground of an 
injury to the spine, sufficient to produce a paralysis of the 
lower limbs, without any external appearance at all. 
The theory of the injury, as it started out in the first place, 
was what they called a “partial concussion of the spinal mar 
row.” A man meets with a small accident; nobody would 
suppose that he could be much hurt. Bye and bye, in the 
course of a few months, he begins to be paralyzed. It is a 
case of “partial concussion of the spinal marrow,” devel- 
oped long after the injury that caused it. I had the pleas- 
ure, in a case tried in this city a number of years ago, of hear 
ing that theory so completely demolished by Dr. Darling, FICTITIOUS INJURIES. 
77 
your professor of anatomy, and one or two other eminent phy- 
sicians, that it has not been heard of much, in this vicinity, 
since. It was made to my unscientific comprehension very 
plain, that if you knock a man down, he would be likely to fall 
at once, and not come gradually to the ground about six 
months afterwards. Still, I ought to say, that some respecta- 
ble medical authority was found in its favor. It did not 
stand entirely without scientific support. 
More recently that theory has taken another form ; one 
that is very ingenious and sometimes very successful. It 
is that the injury claimed may have been sustained by the 
nerves themselves, the vertebral nerves, which supply the 
lower limbs, so that in course of time a paralysis takes place 
of the leg, greater or less, in consequence of an injury that 
cannot be seen at all. Now the advantage of this theory is, 
that it may be true. That very thing may happen in a given 
case. It was maintained by the best medical authorities, that 
the other mode of injury could not happen in any such way 
as was claimed. But there may be just such an injury as 
the recent theory describes, and it may result hi just such a 
disease—a paralysis. This ground of action has had such 
a run in England, that there has been a book written about 
it by Dr. Erickson, who calls the disease “Railway Spine, ’ 
because it so constantly attends railroad accidents, and is 
so rarely seen disconnected with a suit for damages. 
Dr. Erickson has shown by those statistics that are so 
formidable when enough of them are brought together, that 
while great numbers of passengers present at railway acci- 
dents, get the paralysis that comes from the injury to the 
vertebral nerves, it almost never, perhaps never, attacks the 
employees of railroads, the poor fellows who have no action 
for damages, if they get hurt. The brakeman, the fireman, 
the conductor, get hurt often enough, because they are very 
much exposed. They never have that form of disease. But 
you catch a passenger of the right sort, who is present at the 78 
MEDICAL JURISPRUDENCE. 
time of an accident, and,you may reckon on paralysis, to a 
dead certainty. 
Now it is easy to see how physicians, and very respect- 
able physicians, are drawn into giving support to theories of 
this kind, that in the abstract, and in the light of statistics, 
certainly appear absurd. No physician is called upon by 
a man who proposes that he should help commit a fraud. 
The proposition would be an insult. The physician: is sent 
for to attend the case medically, and nothing is said about 
damages. The patient is very much afflicted; he is in 
pain; he is incapacitated; he wants help. It does not 
occur to the doctor that the man is shutting himself up, and 
paying surgeons’ bills, for the sake of pretending to be hurt. 
He believes the symptoms that are detailed to him bv his 
patient, and of course looks for the cause that has brought him 
into this situation. So he traces back, and starts the best 
theory he can to account for the existing result, that must 
have had some cause. The patient conveniently develops 
symptoms that he finds the doctor is looking for. The phy- 
sician gets interested in the case. Bye and bye there is a 
lawsuit. The physician’s theory is attacked on the other side. 
Other medical men are brought in, who examine the patient 
from a different stand point, and with the suspicion that the 
claim is a fraud. The doctor who attended the case, and who 
started the theory, becomes naturally excited by the sugges- 
tion that he has been cheated, and some of his friends are 
called in; perceive the same symptoms that he did, hear 
his statement, and naturally take his side; the other side is 
reinforced by new physicians; the respective counsel get very 
much in earnest; in short, it becomes “a very pretty quarrel as 
it stands.” And the jury, who know nothing at all about the 
subject of such an injury—twelve honest men, selected because 
they have no education that enables them to know anything 
about it, have finally to decide the case the best way they can, 
upon the conflicting medical evidence, and generally dispose 79 
FICTITIOUS INJURIES. 
of it in favor of the most popular party, or the most ingenious 
or eloquent advocate. 
Counsel are quite as liable to be deceived in such cases as 
physicians are. I remember being concerned in a cause where 
a woman who had met with an accident on the highway, and 
had been thrown out of a wagon, had a miscarriage immedi- 
ately afterwards, and was reduced to the point of death. She 
recovered, and brought an action against the town, hi which 
her husband joined. They were all strangers to me, the 
transaction having occurred in a distant county, but had the 
appearance of being respectable people, and I became much 
interested in her case. It seemed to me a very hard one, 
and especially as the town set up the defence that the claim 
was a deception and a fraud. She recovered a considerable 
judgment; and afterward it came out, as the fact was, that at 
the time of the accident she was driving home from an opera- 
tion that had been performed upon her, for the purpose of 
producing an abortion. She met with this accident on the 
way home, by a defect of the road, but the subsequent mis- 
carriage, which was the principal foundation for the claim for 
damages, was, of course, the consequence of the operation 
and not of the accident. The counsel were taken in, the phy_ 
sicians were taken in, great injustice was done, and yet I do 
not know that either physicians or counsel on the side of the 
woman, could be blamed for the result. 
The ingenuity and persistence with which deceptions of 
this sort are often maintained, is surprising. And very close 
and sometimes extended observation on the part of the pliysT 
cian, and a resort to many expedients that only scientific 
knowledge could suggest, are necessary to expose the fraud. 
I can offer only a suggestion or two on tlie subject. 
Careful attention ought to be given in the first place, in doubt- 
ful cases, to the manner in which, or the means by which the 
alleged injury is claimed to have been sustained; and will 
sometimes be sufficient to demonstrate that it could not have 80 
MEDICAL JURISPRUDENCE. 
been inflicted in that way; that the means were not adequate 
to the end; or else, that if it had been produced in that way, 
other and external consequences, plain to be seen, must have 
accompanied it. I once saw a fictitious injury very clearly 
exposed in court, by a medical expert. The case was one in 
which injury to the vertebral nerves, resulting in partial par 
alysis, was claimed to have been occasioned by the party hav- 
ing been pushed violently against the side of a door. The 
physician had a living subject brought in, and undressed 
before the jury, and proceeded to point out the situation and 
protection of these nerves, and what sort of blow and by what 
sort of an instrument would be necessary to reach them, with 
out breaking through the protection in such manner as to 
leave unmistakable and severe external injuries. No external 
indications of violence were or had been apparent. And con- 
trasting the means by which it was alleged the nerves had been 
wounded, with those that would be necessary to effect it with- 
out leaving visible exterior results, the physician was able to 
demonstrate to the satisfaction of the jury, that the man could 
not have been hurt in the Avay he claimed. 
Critical examination may, also, in some of these cases, dis- 
close that the injury complained of, even if actually sustained 
Avould not produce the resulting disease that is claimed to 
exist. 
A physician told me a very amusing instance of a case in 
which he was summoned from a considerable distance, as a 
witness, where a person had been assaulted by another, and 
had commenced a suit for damages. ‘ Some medical gentle- 
men had examined him, and had decided that the claim he 
set up was correct: that he had become paralyzed in his leg, 
in consequence of an injury to certain nerves, sustained in the 
affray. In the consultation they had in regard to the case, 
these physicians pointed out what nerves were injured, and 
how the result claimed had come to pass. “Why,” gentlemen, 
said the witness, “ are you aware that the nerves you suppose FICTITIOUS INJURIES. 
81 
to be injured do not supply the leg ?” No, they had not been 
aware of that. He sent for a chart of anatomy, and succeeded 
in making it plain to them, that injury to those nerves would 
not occasion paralysis of the leg, and the result was, the case 
went off’, and I do not know what became of it afterwards. 
But, I said, “ Doctor, how could you spoil so good a thing ? 
Why did not you let them testify'?” “Well,” he replied, 
“they obtained their education at the school where I was pro- 
fessor of anatomy.” 
A third subject of inquiry in cases where deception is 
suspected, is the exact correspondence of the symptoms that 
are manifested, with those that belong to the disease which is 
claimed to exist. It is very difficult for an ordinary patient 
to counterfeit symptoms with sufficient accuracy to escape the 
detection of a thoroughly informed and closely observant phy- 
sician, who has reason to be on his guard. 
I remember a very interesting piece of testimony from a 
distinguished physician, in a railway accident case. The plain- 
tiff came into court apparently suffering from partial paralysis, 
and very lame. He was obviously in a bad way altogether. 
The disease had even begun to invade the brain, and he had 
to have water poured on his head while he was testifying. 
The case looked promising for very serious damages. The 
physician who had been sent for as a witness, and had ex- 
amined the party, testified before the jury that there was 
nothing whatever the matter with the man, and that he had not 
been hurt at all. This conclusion was quite in harmony with the 
circumstances of the accident, which was very slight, and not very 
likely to produce such serious results. Nor had the resulting 
disease made its appearance until a considerable time after- 
wards. But there had been an accident, and a railroad com- 
pany was responsible, or would have been responsible if the 
plaintiff had been hurt. On cross-examination the doctor was 
asked if the man was not very lame. “ He certainly walked 
very lame,” was the reply. “Could you discover any other 82 
MEDICAL JURISPRUDENCE. * 
cause for his lameness except the injury to which he attri- 
buted it ?” “No, sir, I could not.” “ Well, if he had sustained 
the injury that he said he had, would it not have pro- 
duced lameness “Most certainly." “Then, how are you 
enabled to state with so much confidence, that the man did 
not sustain the injury?" “I will tell you,” said the doctor ; 
“ he claimed to have paralysis of the muscles of the right 
thigh. Now if the muscles of the fore part of the thigh had 
been paralyzed, he would have walked in ths way, [illustra- 
ting it] ; the toes would have dropped first. If the paralysis 
had been behind, he would have walked thus, [illustrating]; the 
heel would have have dropped first; and if it had involved 
the muscles on both sides of the limb, before and behind, the 
whole leg would have given way in the attempt to step, like 
this, [illustrating]. “ Now,” he continued, “ this is the way the 
man was lame, [illustrating] which indicated only that one leg 
was shorter than the other. He did not claim that such 
was the case, and I measured his limbs and found it was not 
the case. It became certain, therefore, that he was not suf- 
fering from paralysis, and that his lameness was fictitious. 
And this was confirmed by the manner in which he walked 
when he thought no one was looking at him, when he 
showed no lameness at all.” 
Now if this rascal's physician, who had been drawn 
along by ingenious management into believing in this case, and 
into assisting to sustain it in court, had at the outset perceived 
that his patient was not too good to avail himself of an oppor- 
tunity, and had borne in mind that he was dealing with a 
man capable of that sort of deception, he might have been led 
to test the case as he went along, when the patient was not 
aware that he was testing it; and he might probably have ar 
rived at a very different conclusion in regard to its character. 
An excellent rule was stated to me by Dr. Holton, one of 
your professors, as having been adopted by him in cases of that 
sort. It was to require a patient to state to him with pre- FICTITIOUS INJURIES. 
83 
cision every symptom that he had, every Jmin or sensation, 
and exactly to locate it, and then carefully to write them 
down, just as stated by the patient, and at the time they were 
stated. In this way he was enabled at each successive inter- 
view, to preserve an unmistakable record of precisely what 
symptoms were from time to time claimed to exist, and to 
compare them with each other, as well as to preclude any dis- 
pute about the various statements made in regard to them. 
Such a course is very likely to detect spurious and inconsis- 
tent symptoms, and to prevent a party from changing his 
ground, as the emergency of his case might require. 
He mentioned one case which he had occasion to examine, 
where, as the result of an accident, serious internal injury was 
claimed. The man complained of a severe pain in his kidneys, 
and of an affection of those organs consequent upon the hurt 
he had sustained. On being desired to point out the location 
of the pain, he placed it in a part of his back a good way from 
where the kidneys are usually found. On a subsequent visit, 
he still complained of the pain in those organs, and on being 
again requested to indicate the place, located it correctly; very 
naively remarking, I have found out where the kidneys are 
situated, since you were here before.” 
Another very useful means of detection in these, as indeed, 
in all other cases of feigned disease or injury, is to watch the 
subject carefully, when he is not aware that he is seen. Few 
deceptions are so elaborately and perfectly carried out, as to 
be kept up while the patient is alone, and not exposed to ob- 
servation, though even such instances have been known. 
Paralysis, lameness and deformity will often disappear when 
the mask is thrown off, which it might be very difficult to de- 
tect when the mask is on. -Just as the manifestations of a fic- 
titious insanity will subside, when there is no further occasion 
for their display. 
But after all, as I have said before, the business of detective 
medicine, its means, its tests, its expedients, belong to medical 84 
MEDICAL JURISPRUDENCE. 
science and must be acquired by medical education. It is all 
I can do, and all I seek to do, to draw your attention to the 
importance of the subject, the frequency of its occurrence, 
and the certainty of your being more or less concerned in it. 
You must qualify yourselves by other instruction than mine, 
to be equal to the requirements of the occasions that will 
arise. 
Of course you will not infer from what I have said in re- 
gard to these fictitious injuries, that there is not a very large 
number of cases that are genuine, where to charge a decep- 
tion would be literally to add insult to injury. The majority 
of mankind, let us be glad in believing, are not capable of de- 
ceptions of that sort. Their frequency is absolute, not relative: 
The detective in medicine, as well as in police, is concerned 
with the few, not with the many ; and the numerous meritorious 
and genuine claims for judicial redress for such injuries, that 
unhappily arise, should not be prejudiced by the prevalence of 
fradulent claims of the same kind- It is only necessary that 
care should be taken, and sound, sagacious judgment employed, 
in discriminating between the two ; and in trying to do that, 
the physician like the lawyer, should become a judge of char- 
acter. The first and most important inquiry of all, is whether 
the man is one from whom deception may be expected, when 
opportunity offers, and temptation is strong. “The proper 
study of mankind is man.” 
It is neither pleasant nor salutary to cultivate that sus 
picious temper, that judges the motives and conduct of men 
through glasses of the wrong color. The charitable and kind- 
ly spirit is far better. Nevertheless, in dealing with this 
world, the fact must be recognized and remembered, that there 
are those who are not beyond the reach of temptation, and 
who when exposed to it will bear watching. To know how to 
discriminate between this class and a better one, is a great 
point to be gained, as well in the practice of medicine as 
elsewhere. LECTURE VIII. 
RIGHTS AND LIABILITIES OF PHYSICIANS. 
My subject, to-day, will be the rights and liabilities of 
physicians. 
I remarked to you in a former lecture, that you have in 
most states of the Union, no monopoly of the practice of medi- 
cine or surgery. The tendency—unfortunately, as I think— 
of most legislation, has been to throw open the practice of the 
profession to whoever thinks proper to engage in it, and can 
obtain any patients to treat. In some of the states, however, 
the law still remains as it used to be almost everywhere, that 
either a license from a board constituted by the public author- 
ities, or else a diploma from a recognized medical college, is 
necessary to entitle a physician to practice. I regret that such 
is not the law universally. 
On the subject of the compensation of physicians for 
their services, the law can be stated in a very few words. 
The physician is entitled to, and can, if necessary, always 
maintain an action for, a reasonable compensation for his pro- 
fessional services; and what is a reasonable compensation, 
must be determined in view of all the circumstances, the na- 
ture of the engagement, the amount of time and attention 
bestowed, the responsibility and difficulty of the case. It is 
largely taken into consideration, also, in determining the 
amount, what have come to be the usual charges for similar 
services in the profession. 86 
MEDICAL JURISPRUDENCE. 
In England, where the learned professions are placed on 
a somewhat different basis as to compensation, from that 
which prevails in this country, the physician can maintain no 
action for his fees. They are regarded as an honorarium 
merely, and not as the subject of a legal contract. The fee is, 
therefore, always paid to him when he makes the visit, and the 
subject of money is never named between him and his patient. 
He receives the usual fee quite as a matter of course, except 
in special cases outside of the ordinary course of practice. 
I will add one or two further suggestions in respect to 
liability for physicians’ fees, not always understood by gentle 
men in your profession. Your legal claim is always against 
the person who employs you. Yet, as is very often the case, 
you may be called upon by some one other than the patient. 
Whether you can hold that person for your compensation, in 
cases where the patient is not a member of his family, depends 
upon the question whethc r he employs the physician on his 
own responsibility, or upon the responsibility of the patient. 
In other words, with whom is the contract, as actually under 
stood between the parties ? And where the patient is not one for 
whom the person calling in the physician is legally or morally 
bound to provide, such person will not be liable for fees, unless 
he. in some way assumes the responsibility, and so gives the 
physician to understand ; so that, as both parties understand, 
the services are rendered, not on the credit of the patient, but 
on that of the person by whom they were invited. 
It sometimes occurs, also, that where attendance is given 
upon the credit of the patient himself, some third person as- 
sumes to guarantee the responsibility of the patient, or agrees 
to pay if the patient does not, or, in common phrase, to see 
the physician paid. Such an undertaking is not legally bind- 
ing, unless expressed in writing. The distinction is between 
the case in which the services are afforded on the original 
responsibility of the person undertaking to pay, and are 
charged to him in the first instance, and that hi which the ser- RIGHTS AND LIABILITIES OP PHYSICIANS. 
vices are charged to the patient, and the other person becomes 
collaterally bound that they shall be paid for. In the latter 
case, such contract must be in writing. 
I need hardly add, that the right of a physician to main- 
tain an action, does not extend to cases of attendance on a pa- 
tient, however protracted, where the value of the services has 
been logt to the patient, through want of ordinary care and at 
tention, or of ordinary skill on the physician's part. In such case 
he has no right of action, and certainly ought to have none. 
The measure of recovery for services of any description, where 
no special agreement as to price exists, is what they are reason 
ably worth; and where by the fault of the party rendering 
them they are reasonably worth nothing, he has no legal claim. 
This whole subject of professional compensation, in the 
medical as in all other professions, however, is to the high 
minded man, only a secondary consideration. It is an important 
one ; it is a very proper one. He that ministers at the altar, 
must live by the altar. It is due to yourselves—it is due to 
your profession—that justice should be done you in this par- 
ticular. But it is after all a consideration that in the mind of 
a man who justly appreciates his profession, is far subordinate 
both to the calls of duty, and to the love he cherishes for his 
science and his art. A professional man, greedy of money, or 
who makes that the primary or principal object, will never attain 
eminence, and will usually fail to obtain even the money. All 
controversy and discussion on that subject, and lawsuits espec- 
ially, should be avoided, unless in the extreme and rare case, 
where gross imposition upon the physician is attempted. The 
realizing of an adequate remuneration is rather a matter of tact 
and judicious attention, than one of law. Prompt and early 
settlements are not only for your own interest, but will be 
usually found agreeable to your patients. The good physician 
will rarely find any trouble on that score, where the patient 
has the ability ; and if he does, it is better generally to be rid 88 
Medical Jurisprudence. 
of the patient, and to pocket the loss, than to have any quarrel 
about it. 
I add one further practical suggestion on the subject of 
fees, not as a matter of law, but drawn from my own observa- 
tion. It has seemed to me that your profession do not dis- 
criminate sufficiently in the matter of charges, between small 
cases and great ones ; between easy and ordinary services, and 
those involving higher skill, greater responsibility, and more 
serious consequences. I think it is too much their custom to 
charge by the visit, without just distinction between the visit 
to tell the patient there is nothing the matter with him, and 
that which, perhaps, saves his life in a critical emergency. 
This discrimination is made, I believe, in surgery, as it certainly 
is in the legal profession ; and I see not why it should not be 
extended to the general practice of medicine. 
I pointed out to you in a former lecture, that the physi- 
cian is entitled to a reasonable compensation, when required to 
attend as an expert witness. But as some inquiry has been 
made on that point, I recur to it again. There is no doubt, in 
the first place, that a physician may decline to obey a sub- 
poena where it is made known to him that he is only required 
to testify as an expert, and not to facts, and where proper 
compensation is refused. That would undoubtedly be accept- 
ed by the court, as a reasonable excuse. The cases would be 
rare, however, in which it would be judicious to take that 
course ; and it should very clearly appear that the physician is 
summoned purely as an expert, and that compensation is dis- 
tinctly refused. But when the witness attends in obedience to 
the subpoena, he may still decline to testify as an expert merely, 
on the ground that proper compensation is refused him. Such 
was the express decision of the court in England, in the case 
of Webb v. Page, (1 Carr. Kir. 23); and the right to 
such compensation was also recognized by the same court, in 
the case of Willis v. Peck-ham, (1 Brod. tfe. Bing. 515). Be- 
sides, as I have before stated, irrespective of the question of 89 
RIGHTS AND LIABILITIES OF PHYSICIANS. 
compensation, a witness may always decline to express opin- 
ions as an expert, if he pleases, and could thus protect his just 
rights in the premises, if there were no other way. Practical- 
ly, however, this question will rarely be found attended with 
difficulty, as in proper cases suitable compensation is always 
paid, and will not be likely to be refused. 
A physician is under no legal obligation to obey any call 
to attend a patient, and may always decline to do so. He may 
also cease his attendance at will, in any case where he has at- 
tended, provided he does not exercise this right so abruptly, 
or in such an emergency, that harm conies to the patient there- 
by ; and a patient may at any time dismiss his physician at his 
own pleasure, whether he has paid him or not. 
As to the liabilities of physicians, and first as to their lia- 
bility criminally: there are various cases in which physicians 
may be criminally liable for their professional conduct. 
First, there is in most states, a series of what may be 
called police or sanitary regulations, on the subject of the pub- 
lic health, registration, burials, etc., for a breach of which, 
physicians are liable to prosecution and line. Of those it is 
only necessary to <nay, that all such provisions should receive 
the scrupulous observance of physicians, because they are 
generally wise regulations, and important to the public welfare. 
But if, in your judgment, they in any particular instance are 
not wise, and sometimes they are not, interest yourselves, if 
you please, in correcting them; such a movement comes very 
properly from your profession. But while they remain the 
law, observe them; set the example of always obeying the law 
of the land, scrupulously; if it is wrong, get it amended, if you 
can. It is a bad example, and a pernicious one, for gentle- 
men of a learned profession to set to humbler classes in soci- 
ety, ever to permit yourselves to disregard any statute law, 
however useless or unwise it may seem to be. 
A physician may be made liable for manslaughter in his 
treatment of a case. It is to be regretted, in my judgment, 90 
MEDICAL JURISPRUDENCE. 
that this principle of the law is not more generally understood, 
and more frequently enforced; I do not mean against regular 
physicians—I have never seen any case of that kind, or heard 
of one,—but against those who take advantage of the liberality 
of the law that I have referred to, to practice medicine with 
out adequate qualification. There is a limit to the right of a 
man to deal with and experiment upon human life, even when 
he does not mean to destroy it. 
A person may be liable for manslaughter by treating a 
patient, when death ensues from the treatment, in three cases: 
In the first place, where he is guilty of gross ignorance; where 
he attempts to deal medically or surgically with a case, in 
respect to the important elements of which he is grossly igno 
rant. It is not very easy, in words, to explain the distinction 
between what may be called ignorance, and gross ignorance. 
By gross ignorance is meant, as well as I can state it, extreme 
ignorance, that amounts to recklessness. It may perhaps be 
defined in this way: where the party is not only ignorant, but 
knows that he is ignorant. If I were to undertake, for 
instance, to amputate a limb; I am not sufficiently acquainted 
with the position of the arteries, and the manner of dealing 
with them, to do it with any reasonable pfrispect of success. 
I know that I am not sufficiently acquainted. It is not a mis- 
take of judgment on my part, in a matter where I have reason 
to suppose I am properly informed; I know that I am not 
sufficiently instructed to be able to cut off a man’s leg. The 
patient bleeds to death, simply from my want of the requisite 
knowledge; that is manslaughter, whatever efforts I may have 
made to save his life. On the other hand, having been fairly 
instructed in legal science, I might suppose that I had a 
correct view of a doubtful question of law, and have some rea- 
sonable ground to think so. It turns out I am entirely mis- 
taken, and a better lawyer might perceive that I was plainly 
mistaken; that, whatever mischief might come of it, and though 
it might be ignorance, would not be gross ignorance of the EIGHTS AND LIABILITIES OF PHYSICIANS. 
91 
law; while it would be a mistake—perhaps an unfortunate 
mistake—it would not be one which I should be legally liable 
for the consequences of. In that case, I did not know that I 
was ignorant. I thought and had reason to suppose, that I 
understood the point correctly. In the other case that I sup- 
posed, I know, to start with, that I am uninstructed, and that 
I ought not to touch a matter of that sort, that may involve 
human life. 
I need not dwell upon this subject. The rule of law 
founded oil it, applies principally to quacks and impostors. It 
will have no application to any gentleman who proposes to 
graduate from an institution like this, or from any respectable 
medical college, before entering upon practice, because gross 
ignorance can not be predicated of a mind as well informed as 
yours must be, to obtain a diploma in the regular way. 
There have been cases—I should say in stating the law- 
on the subject of manslaughter, as I have done—there have 
been cases in which it has been held, that a person was not 
liable for a death occasioned by medical treatment, if the treat- 
ment was in good faith, however ignorant the practitioner. 
That if I were to undertake,. without medical education, to 
prescribe for a sick man, and should administer to him a tea- 
spoonful of arsenic, and he should die, it would be justifiable, 
legally, because I did not want, nor intend to kill him, but 
desired to cure him; and really I did not know that arsenic is 
a poison, or that a teaspoonful is a sufficient dose to destroy 
life. I have only to say that I am very sorry, and will try and 
remember not to do it again. That is not the law, as estab- 
lished by the best and highest authorities; it is not the law 
that is consistent with reason and justice. To destroy human 
life by attempting to tamper with it, when grossly and con- 
sciously ignorant of the disease and the remedy, is manslaugh- 
ter in the eye of the law. 
Then a physician may be liable for manslaughter in the 
treatment of a patient, though sufficiently informed, where he 92 
MEDICAL JURISPRUDENCE. 
is guilty of gross negligence. He knows enough to have 
avoided the fatal treatment, but he is grossly negligent in the 
care of the case. As I said just now, in respect to gross 
ignorance, it is not very easy to define in language, even to 
lawyers, the various legal degrees of negligence, slight, ordi- 
nary and gross. It is a subject which has been very much 
discussed, and it is difficult to state with precision, the 
distinction between what is called the want of ordinary 
care, which I shall have occasion to allude to presently, as the 
foundation for a civil action, and gross negligence, which ren- 
ders the party liable criminally. I can only say that the latter 
is that neglect that is plain, obvious, and indefensible; the 
sort of neglect that no one would attempt to justify, or to 
esteem as any degree of care. A man may prescribe when he 
is drunk, and in several states—quite unnecessarily—that is 
made, by special statute, manslaughter, if death ensues from 
it. If a prescription is given in a state of intoxication by a 
physician, and it occasions death, it would be manslaughter, 
without any such statute. So, gross carelessness in writing a 
prescription, in writing down one thing when you meant to 
have written down another, and what you have written is 
poisonous, and death ensues, that is gross negligence. So, if 
you were writing a prescription, and you put down a large 
quantity when you intended a small one, and in the large 
quantity the substance is a fatal poison, and you kill the pa- 
tient. So, if in dealing out medicines by one who is dispensing • 
them, by mere carelessness he gives the poisonous one instead, 
of the beneficial, or the plainly fatal quantity instead of the 
curative one, and death is caused. Because the degree of care 
must be proportioned to the importance of the occasion; and 
negligence that in a small matter might not be regarded as 
gross, becomes so when it involves human life. 
These are but illustrations. Of course ordinary mistakes, 
errors in judgment, errors in treatment, in diagnosis, in skill, 
which few physicians are so fortunate as to go through life 93 
RIGHTS AND LIABILITIES OF PHYSICIANS. 
without making, do not constitute gross negligence. Some- 
times the result may be very unfortunate. You may actually 
kill your patient, by an error in judgment as to what is the 
matter with him, or as to the remedy that ought to be applied. 
But the law, in its criminal application, takes a merciful view 
of human error, in that respect, as long as you bring to bear 
even a very moderate measure of skill and care; I mean so 
long as you are not guilty of gross ignorance, or gross, inde- 
fensible negligence. You may destroy your unhappy patients 
until you entitle yourself to such an epitaph as was once inscri- 
bed on the tombstone of a physician in a country cliurch-yard; 
U/Si monumentum queer is, circumspice /” “If you seek my 
monument, behold the graves by which I am surrounded!” 
You may do all that, without being liable criminally. Negli 
gence such as entails that consequence—gross negligence, is 
such as evinces a wanton disregard for human life. On the 
same principle that an engineer of a train is held guilty of 
manslaughter, for destroying the lives of the passengers by 
running without looking at the signals which would show 
him that the switch was wrong, or by recklessly running 
on the known time of another train, liable to be encountered. 
There is a third way in which physicians may be guilty, in 
the treatment of patients, of the crime of manslaughter, and 
that is by performing operations to produce abortion, or 
miscarriage, upon a woman; because such operations are ex- 
pressly forbidden by law, and are made felonious—that is to 
say, state’s prison offences, even when death does not ensue. 
If death does ensue from such an operation prohibited by law, 
that is manslaughter, and a high degree of manslaughter; 
much higher than those cases which arise under the circum- 
stances I have tried to point out, by means of gross negli- 
gence, or gross ignorance. In those, there is at least the ab- 
sence of a positive intent to commit crime. But where the 
act engaged in is in itself criminal, whatever the result may 94 
MEDICAL JURISPRUDENCE. 
be, if it happens to occasion death, the offence is little short 
of murder. 
As I have said, even if death does not ensue, such an 
operation is a state’s prison offence, and always ought to be: 
this destruction of unborn life. And the attention of physi- 
cians cannot be too earnestly called to the great importance of 
the observance of the statute on that subject, whatever the 
temptation, and whatever the importunity. It is a law that it 
is doubly unsafe to disregard, because public opinion backs 
it up, as you are aware, with great force, and it is punished 
with great severity. And it is a wise and humane law, that 
never ought to be disregarded, even if it could be done with 
impunity. I except, of course, from these remarks, those 
cases where such operations becom necessary to save life. 
Coming now to the subject of the civil liability of phy- 
sicians for their profe ssional conduct, that is to say, their lia- 
bility to respond in damages to those who have suffered by 
it, we reach one of the most troublesome pieces of business a 
practitioner of medicine is ever likely to be involved in : ac- 
tions for malpractice, as they are commonly called. It is easy 
enough for a competent and careful physician to escape any 
such legal liability; to escape, I mean, making himself right- 
fully amenable to an action of that sort. But it is by no 
means easy, always, to escape from unjust and unfounded 
claims of that character. The rule of law that regulates that 
liability, is very simple. And you will readily perceive when 
it is stated, that no man who assumes to practice as a physi- 
cian, and who thus invites the confidence of many who are not 
able to judge of his qualifications, if he cannot, or does not 
come up to that requirement, is entitled to much sympathy. 
The rule is this: the physician or surgeon must bring to the 
discharge of his professional duty, ordinary skill, and ordinary 
care. If he does that, he is not legally responsible for the BIGHTS AND LIABILITIES OP PHYSICIANS. 
95 
result, be it what it may, even though it could be plainly 
shown that it arose from his mistake or defective judgment. 
Ordinary skill cannot be better defined, so far as I know, 
than to say it is what would be regarded as the average skill 
of the average physician. It is not a high requirement; no 
man who respects himself, or has any love for his profession, 
would ever care to rest satisfied with the attainment of only 
ordinary skill. Preliminary education, which you have to get 
through with before you commence the practice of your pro- 
fession, is one thing; the real education goes on afterwards as 
long as you live. But the requirement of the law is moderate, 
and ordinary skill is all that you are legally compelled to bring 
to the service of your patients ; the ordinary skill of the or- 
dinary physician. Is the treatment in question such as the 
generality of common physicians would approve"? If it is, 
however mistaken in its application to that particular case, 
however plain it may be that you might have done better, 
there is no legal responsibility, medically or surgically. 
The same rule defines the degree of care ; it is ordinary 
care; not the best care, not unusual care, or desirable care, 
or the care that often saves life in doubtful cases ; common 
care, such as the common average of physicians would use; 
such, at least, as the pauper in the poor-house receives from 
•the hireling, to whom his life or death is a matter of no con 
sequence. So much and no more, the law demands. 
Claims of malpractice are usually made in surgical cases ; 
not because they could not as well be predicated upon medi- 
cal malpractice, but because it is so difficult to trace the con 
sequences of erroneous treatment in the medical case, where, 
with the best of treatment, the patient will often die, and with 
the worst of treatment he will sometimes happily recover; it is 
so difficult to trace the cause and effect, and to be able to show, 
by legal evidence, that the death of the person, or his ill health 
was a consequence of the treatment, except in the rare cases 
where some great impropriety of treatment has occurred, that 96 
Medical jurisprudence. 
it is not often attempted. I have known such cases, but they 
are very rare. These claims ordinarily occur in surgery, where 
a man fails to recover entirely from an injury which has been 
surgically treated, and remains more or less a cripple, or de- 
formed, afterwards. Those are usually the cases in which 
actions for malpractice arise. 
As you all know, there is a certain class of cases, inju 
ries, fractures, dislocations, etc., where the patient may obtain 
a perfect cure, and he may not. It may depend upon the 
constitution, habits, or age of the patient, it may depend upon 
the daily care he receives, it may depend upon various cir- 
cumstances, and of course it depends very much upon the 
treatment. In some such case the patient fails to get well; 
he has had a hard time of it; it is easy for him to think that 
the physician has not done right, that he might have done bet- 
ter, that if he had been dealing with a rich and influential 
party whose business he was anxious to obtain, he would have 
been more careful. Perhaps the patient finds some other phy- 
sician, who tells him the course pursued was not the best. It 
is so much easier to point out an error afterwards, than to an- 
ticipate it. Such are the cases that arise, and unfortunately 
for the profession, they have to be determined by juries, who 
are the most incompetent judges possible, of such questions. 
I hope to see the time when all cases of personal inju- 
ry, or alleged personal injury, made the foundation of 
actions for damages, will be referred by the court, at the 
instance of either party to the cause, to a competent 
body of medical experts, disinterested and disconnected 
with the case, who shall have power to hear the parties, and 
the story of the attending physicians, to call to their aid any 
medical evidence they may think desirable, to examine the 
patient as much as they please, to take their own time, and 
finally to determine whether the man is hurt, how much he is 
hurt, whether he is likely to get well, and when, and all that 
can be determined by medical skill. And so in case of mal- 97 
RIGHTS AND LIABILITIES OF PHYSICIANS. 
practice, if the injury remain, to determine whether or not it 
is the result of mistreatment on the part of the physician, 
through the want of ordinary skill or ordinary care ; and then 
let that fact so settled enter into the record, and form the 
basis of such damages as the proper tribunal may award, in 
case the liability of the party is made out. But as the law 
stands at present, a man commences an action for malpractice 
against his physician, brings him before a jury, and upon such 
medical evidence as can be had upon one side and the other, 
often conflicting, the jury come to a conclusion which is a 
good deal more likely to be wrong than right. But the legal 
test on which turns the question whether the physician 
ought to be charged or not, depends, after all, upon the rule of 
law that I have stated, did he exercise in the business, ordi 
nary care, and ordinary skill. 
One further suggestion. Even if the physician is want- 
ing in ordinary care or ordinary skill, if the resulting injury is 
in any part the consequence of the negligence of the party him- 
self, in that case he is not entitled to recover. The law does 
not measure the proportion of mutual misconduct; if the re- 
sult is the fault of both sides, if the surgeon has mistreated 
the case, and the patient by his carelessness, negligence, or im- 
proper conduct has contributed to the result, that exonerates 
the physician from legal liability. 
Malpractice cases against physicians are very much like 
epidemic diseases; when they are prevalent in a community, 
then it is necessary to look out tor them. It is curious, but it 
is nevertheless true, how such things are propagated through 
newspaper and telegraphic reports; just as suicides—suicides 
in a certain way, perhaps a very strange way—will get started, 
and run through the country like an epidemic. Particular 
forms of murder or assassination run in the same way, like 
the case of a man’s murdering a woman because she will not 
marry him, and then killing himself. Some poor wretch com- 
mits such an act, it is published everywhere, and the conta- 98 
MEDICAL JURISPRUDENCE. 
gion of it spreads all over the country. So with certain actions 
at law, not of very common occurrence, when they get started, 
they will have a run until checked by repeated defeat. Quite 
a number of years ago, there was an epidemic of malpractice 
cases in this state. A considerable number of them were 
pending at the same time. They were all, so far as I know, with- 
out just foundation, and it is creditable to the courts, that they 
were all ultimately defeated. There was some temporary 
success, but the final result was in favor of the physicians. 
That quelled the epidemic. Since then, so far as I am in 
formed, there has not been such a cause in the state. 
Physicians should be very careful how they encourage 
such claims against other physicians, bv their opinion or their 
evidence. Of course, when a case of actual malpractice arises, 
when a party has a legal right to redress against a physician, 
and your evidence is called for, you have to state the truth. 
But physicians should be very careful how they encourage 
such actions by their opinion or their testimony, until they are 
very clear that the claims are well founded. It is not enough 
to be clear that the physician was wrong, not enough to be 
clear, even, that some permanent injury was the fault of the 
physician; but you should be clear that he was so far wrong, 
that lie can be legally and properly convicted of the want 
either of ordinary care, or of ordinary skill. Aside from the 
injustice done, it is a poor and shabby way of striking a blow 
at a rival, from which an honorable man would shrink. And 
curses of that kind generally come home to roost. 
One or two practical suggestions, in conclusion, that may 
be useful to you in keeping clear of this unfortunate class of 
litigation. In dealing with doubtful surgical cases, and with 
people of doubtful character, where that sort of man is 
afflicted with that sort of an injury, leave him, if you can, to 
be treated by a more courageous surgeon. But if you are 
compelled to treat such a case, and in which a perfect cure 
may be doubtful, after you have done your best, make that RIGHTS AND LIABILITIES OF PHYSICIANS. 
99 
plain at the starting point, to the man and his friends. Let 
them understand that the result is going, in your estimation, to 
be doubtful. If they prefer to avail themselves of the skill of 
some more confident man, let them relieve you; but if not, let 
your prognosis be distinctly understood in the outset. Do not 
leave it in their power to turn about in the end, and to charge 
you with having promised a cure, or a satisfactory result- 
Place it the other way, so that you will be able to say, and 
to prove, if the end is unfortunate, that you never have 
promised any thing different, and that the result has only veri- 
fied your expressed fears. 
Then if you are treating such a case, and dealing with per 
sons not incapable of prosecuting you afterwards, unjustly, 
avail yourself, as you go along, of the best medical counsel and 
assistance. Do not stand alone. So that if you should ever 
be called upon in such a suit, it will not appear that you have 
assumed the whole responsibility, but on the other hand, that 
you have brought to your aid the best assistance that was 
available. And you have the very important benelit of the 
evidence of such an associate : not merely the evidence of his 
subsequent opinion, but of an opinion formed during the pro- 
gress of the case, and in respect to the treatment that had his 
sanction, and was conducted under his advice. 
Yet, if, in spite of all precautions, you still get involved 
in a controversy of that sort, where you are on the right side 
of it, and where it becomes your duty to yourself and your 
profession to vindicate your conduct, I can only advise you 
in that event, to engage wise and judicious counsel, put him 
fully in possession of all the facts of the case, follow his in- 
structions, and above all things hold your tongue. Parties do 
themselves great injury, sometimes, by talking about their 
cases; forgetting that what they say is evidence against them, 
and is very likely to be misrepresented or misunderstood. 
Litigation is always more or less uncertain, especially 
when it depends on the verdicts of juries. Physicians have 100 
MEDICAL JURISPRUDENCE. 
been made liable unjustly, sometimes, in spite of all exertions 
in their behalf. They have, perhaps, sometimes, though more 
rarely, been acquitted when they ought to have been made 
liable. It is not necessarily an imputation upon a physician 
to be defeated in such an action: nor is it always a justifica- 
tion to obtain a verdict in his favor. 
This concludes wliat I am able to say to you, on the sub- 
ject of medical jurisprudence. Of course you will not infer, 
that I have by any means covered the whole ground, in these 
very few lectures. Many topics I have been compelled to omit 
altogether, and those I have dealt with, I have had no time 
to discuss thoroughly or completely. I have tried to be plain 
and useful, rather than learned or philosophical. And I have 
accomplished all that I attempted, if I have succeeded in fur 
nishing you with such practical suggestions on the various 
points, as you may be able to remember, and to make service- 
able in your future professional life. UNIVERSITY OF VERMONT 
MEDICAL DEPARTMENT. 
BURLINGTON, VERMONT. 
TWENTY-NINTH SESSION, 1882. 
FACULTY OF MEDICINE. 
MATTHEW HENRY BUCKHAM, A. M„ D. D„ Burlington, 
Vt., President. 
SAMUEL WHITE THAYER, M. D., LL. D„ Burlington, VL, 
Emeritus Professor of General and Special Anatomy, Professor of 
Hygiene and State Medicine, consulting Surgeon to Mary Fletcher 
Hospital. 
♦WALTER CARPENTER, M. D., Burlington, Vt., Professor 
of Theory and Practice of Medicine, consulting Physician to Mary 
Fletcher Hospital. 
JOHN ORDRONAUX, M. D„ LL. D., New York City, Emeri- 
tus Professor of Medical Jurisprudence. 
A. F. A. KING, M. D., Washington, D. C., Professor of Obstetrics 
and the Diseases of Women, consulting Physician to Mary Fletcher 
Hospital. 
WILLIAM DARLING, A. M., F. R. C. S., LL. D., New York 
City, Professor of General and Special Anatomy. 
HENRY D. HOLTON, A. M., M. D„ Brattleboro, Vt., Profes- 
sor of Materia Medica and General Pathology, consulting Surgeon to 
Mary Fletcher Hospital. ' 
JAMES L. LITTLE, M. D., New York City, Professor of the 
Principles and Practice of Surgery, consulting Surgeon to Mary Fletcher 
Hospital, 
A. P. GRINNELL, M.D., Burlington,Vt., Professor of Physiology 
and Microscopic Anatomy, attending Physician to Mary Fletcher Hospital. 
RUDOLPH A. WITTHAUS, A. M., M, D.i New York City, 
Professor of Chemistry and Toxicology. 
PROFESSORS OF SPECIAL SUBJECTS. 
ROBERT W. TAYLOR, M. D„ New York City, Professor of 
Diseases of the Skin. 
A. T. WOODWARD, M. D., Brandon, Vt., Professor of the Sur- 
gical Diseases of Women, consulting Physician to Mary Fletcher Hospi- 
tal. 
D. B. ST. JOHN ROOSA, A. M,, M. D., New York City, Pro- 
fessor of the Diseases of the Eye and Ear. 
*The resignation of Professor CARPENTER, which takes effect at the end of 
the present session, will create a vacancy in this Chair, which will be filled at the 
next annual meeting in June, 1881. STEPHEN M. ROBERTS, A. M„ M. D„ New York City, 
Professor of Diseases of Children. 
GEORGE M. GARLAND, A. M., M. D., Boston, Mass., Profes- 
sor of Thoracic Diseases. 
WM. J. MORTON, A. M„ M. D„ New York City, Professor of 
the Diseases of the Mind and Nervous System. 
CLINTON WAGNER, M. D„ New York City, Professor of 
Diseases of the Throat. 
SAMUEL WHITE THAYER, M. D., LL. D., Professor of 
Hygiene and State Medicine. 
EDWARD J. PHELPS,Esq., Professor of Medical Jurisprudence. 
Demonstrator of Anatomy. 
HOSPITAL AuXTTA^O-h:. —The Mary Fletcher Hospital, with 
its commodious ampitheatre, is open for clinical instruction during the session. 
The Medical and Surgical Clinics of the College will be held in the amphitheatre 
attached to the Hospital. In addition to these regular clinics of the College, 
instructions will be given at the bedside by the •Professors of the Medical Depart- 
ment of the University. 
LECTUEES OLT SPECIAL SUBJECTS.—These Lectures 
by gentlemen well known as authorities, recognized in their particular depart- 
ments, will be delivered during the regular session, without extra expense. 
CXjILTICS.—Besides these Lectures, there will be Clinics held as follows: 
SURGICAL CLINIC, by Professor Little, every Saturday from 9 to 12, during 
the last half of the session. 
MEDICAL CLINIC, by Professor Carpenter or Professor Grinnell, on 
Wednesday morning during the first half of the term, and by Professor King dur- 
ing the last half of the term. 
CLINIC FOR DISEASES OF NERVOUS SYSTEM, by Professor Morton, 
during his course. 
CLINIC FOR DISEASES OF EYE AND EAR, by Professor ROOSA, during 
his course of Lectures. 
CLINIC FOR DISEASES OF SKIN, by Professor Taylor, during his course. 
CLINIC FOR DISEASES OF CHILDREN, by Professor Roberts. 
CLINIC FOR DISEASES OF THROAT, by Professor Clinton Wagner. 
CLINIC FOR THORACIC DISEASES, by Professor George M. Garland, 
THE TlEXS.XvX, consisting of a course of 
Lectures and Recitations in the various branches of Medicine and Surgery, will 
begin on the First Thursday ok November, 1881, and continue until March 1st, 
1882. Fee, $30. 
THE XSH!G!-nrij-A.xa ■WXLTTlEXe SESSIOIT will commence on 
the First Thursday of March, 1882, and continue Sixteen Weeks. This course 
will consist of from five to six Lectures daily in the various departments of Medi- 
cine and Surgery. 
FEES FOR THE REGULAR SESSION : 
MATRICULATION FEE, payable each term, - - $ 5 00 
FEES for the full course of Lectures by all the Professors, 70 00 
GRADUATION FEE, - - - - - - 25 00 
Material for dissection will be furnished at cost. The tickets are to be taken 
out at the beginning of the session. 
Students who have already attended two full courses of Lectures in other reg- 
ular Schools are admitted on paying the matriculation fee and $25. Students who 
have attended two full courses in this College, or who having attended one full 
course in some regularly established Medical School, and one full course in this 
College, are admitted to a third course of Lectures on paying the matriculation fee 
only. Graduates of this School are admitted without fee. Graduates of other 
regular schools and theological students are admitted on general ticket by 
paying the matriculation fee. Good board can be obtained at reasonable rates. 
For further particulars and Circulars apply to the Secretary, 
Prof. A. P. GRINNELL, M.D, 
BURLINGTON.