REPORT OF 
Chairman of the Section 
ON 
MEDICAL JURISPRUDENCE, 
Read before N. C. Medical Society, at 
New Bern, May 21, 1886. Reprint from the N. C. Medical Journal, 
September and October, 1886. 
Report of the Chairman of the Section on Medical 
Jurisprudence. 
By J. D. Roberts, M.D., Goldsborough, N. C. 
(Read before the North Carolina Medical Society, at New Bern, 
May 21, 1886.) 
Mr. President and Gentlemen of the N. C. /State Medical Society : 
As this is the first report to this Society from the Section of 
Medical Jurisprudence, I have thought it better to lay before you 
some general thoughts on the question, together with facts in regard 
to the relation of the physician to our State laws, rather than give 
the advances made in this sp cial department during the past year, 
as it is done wiih die other sections. 
Medical jurisprudence, or its synonymous terms, forensic medi- 
cine and legal medicine, is a broad term and covers much ground. 
It can properly be made to include all and every occasion or circum- 
stance where the doctor, in his professional capacity, comes in con- 
tact with the laws of the country. Recourse has been made to the 
physician for help in the interpretation and solution of phenomena 
in his special department since the dark ages ; and, as we come 
down through the course of time, we find him growing of more 
and more importance to the courts as civilization advances and 
chaos is reduced to order, until, within the past century, medical 
jurisprudence has assumed the position of a science. 
Composed of two great professions, it rarely receives the amount 
of attention its importance merits, from the members of either, and 
it is for this reason that Dr. McDuffie, in his presidential address 
last year, urged the necessity of forming this new section in our 
State Society. 
For want of time and space, in a paper of this character, I shall 
not attempt to cover, even partially, the ground occupied, and shall 
leave the whole matter of State medicine and public hygiene to the 
Board of Medical Examiners and State Board of Health, each of 
which has been doing such excellent work in its special department 
during the last few years. 4 
MEDICAL JURISPRUDENCE. 
Confining myself to forensic medicine in North Carolina, as I 
propose to do, to a great extent, the subject of malpractice suits, so 
much dreaded in some sections, can be dismissed with but a remark, 
as I do not find a single statute or Supreme Court decision bearing 
on the question. This I consider quite a compliment to the profes- 
sion, as it shows that there is no need of such a law, or one would 
have been enacted. 
The question of most interest to us as physicians, in relation to 
the law, is perhaps our prerogatives as witnesses on medical ques- 
tions, and how such testimony is received. That the medical wit- 
ness is placed at a disadvantage in the courts, no one acquainted 
with the facts will deny. He is out of his chosen element—is to 
testify of matters but little understood by the court and less by the 
jury, and, though reading and thinking in a technical manner, is 
expected to testify in a different vernacular. As little as our legal 
brother may understand what we say, it is always to the interest of 
one side to distort what is said, and to effect his purpose he will 
cross-question, badger and trj' in every way to confuse the witness. 
Knowing beforehand what it is he wishes to prove by the physician, 
or what facts he would like to suppress, he takes advantage of his 
position to shape his questions in such a manner as to gain his pur- 
pose, even at the expense of a seeming error on the part of the 
expert. 
There is often a disposition to distrust the professional witness, 
especially the paid expert. Dr. Henry F. Cambell, in his address 
as president of the American Medical Association, 18t?5, relates an 
incident in the experience of a medical witness where this was ex- 
emplified, and where scientific investigation was ridiculed, as 
follows : “ A woman was on trial for the murder of her husband 
by poisoning with arsenic, and a learned professor of chemistry and 
pharmacy in a medical college was the expert, who confirmed the 
other witnesses by finding arsenic in the stomach of the dead man. 
The defendant’s attorney, an able lawyer, asked him a few questions, 
on cross-examination, all leading to this : ‘ Had he, as an analytical 
chemist, ever failed to find arsenic for the courts in suspected cases?’ 
To which the doctor answered that it had so happened that his 
analysis had always established the fact of arsenic in cases where 
its existence had been circumstantially made out. In his argument 
to the jury the medical expert was alluded to as the arsenic-hunter MEDICAL JURISPRUDENCE. 
5 
for his college, and a good one, too, since he always found it—that 
the credit of his college would suffer if he failed to find it, etc. 
The woman was not convicted.” An analogous case occurred in 
this State a few years since, and was related to me by a friend of 
the legal profession, who was thoroughly conversant with the facts : 
“ A man was on trial for murder by poisoning with strychnia. He 
was seen to give the deceased, a half-witted creature, a drink into 
which he had just put a white substance from a bottle. Almost 
immediately he was attacked with convulsions, and soon died with 
all the symptoms of strychnia-poisoning. Prof. Redd, at that time 
by law the expert for analyzing suspected poisons, testified that he 
had found strychnia in the stomach of the boy, and showed in 
court the salts of strychnia in a vial, which he testified to having 
reduced from the contents of the stomach. The jury rendered a ver- 
dict of not guilty, and the most intelligent man on the jury told his 
fellows that, ‘ when that chemist said he got that salt out of the 
dead man’s belly he believed he swore to a lie.: ” 
We here see how the results of scientific investigations are treated 
in our courts. I regret to say that the treatment received by the 
physician on the witness-stand is often caused, either by himself or 
his professional brother. If the doctor shows himself a partizan, 
if he uses his professional knowledge and position for selfish ends, 
or if he testifies simply because he was paid to give evidence that 
way, he cannot expect to command the respect due an honorable 
profession. The members of our profession, too, so often show 
such culpable ignorance on the stand ! The mistakes, the igno- 
rance, the fanaticism, the bombast, etc., of one of the profession 
reflects, to a certain extent, on the whole. It is the duty of every 
physician going upon the stand to so prepare himself, and show such 
perfect knowledge of the subject under consideration as to com- 
mand the respect of all parties. Much often hangs upon the expert 
testimony. The life of a fellow-being is in jeopardy, the orphan’s 
inheritance is hazarded, the innocent are to be shielded from the 
oppressor, the guilty are to be punished for crimes, or the freedom 
of the party is involved. To labor against the popular prejudices 
of the day, to combat the errors and stem the tide of fanaticism, or 
to assail perverted opinion, is no easy task ; but when duty calls 
and truth demands it, when our labors and investigations as scien- 
tists show us where the right and justice lie, there is no neutral ground 6 
Medical jurisprudence. 
for us, nor should we hesitate at the clamors of those around us, but 
as true physicians hold the scales of scientific inquiry with an even 
hand, and show our labors to be impartial, let it strike where it will. 
By a straight-forward, honest course of this kind, we can do much to 
remove the blame that is now attached to experts. 
One of the principal reasons of the distrust shown experts is that 
the legal man has not kept pace with his medical brother in the 
advances made in knowledge. Law is a science of dry facts, founded 
on precedent, and does not claim to be progressive. A question pre- 
sents itself here as to how much responsibility rests on the courts for 
much of the poor medical testimony given. Under our laws any 
man writing himself M.D. after his name is entitled to the appellation 
of expert on any medical question, subject only to the discretion of the 
presiding judge, who is poorly qualified to pass on a question of which 
he knows almost nothing himself. Though the matter Under consid- 
eration may be connected with some specialty, in the knowledge of 
which he is very deficient, he is called, and in many cases even forced, 
to testify. 
Dr. Thomas J. Turner, Medical Director U. S. N., recently read a 
paper on medical evidence before the American Academy of Medicine 
in New York City, from a resume of which I make the following 
extracts: 
“The boundary line where ordinary testimony ends and expert tes- 
timony begins, is not always well defined. * * * “As regard 
opinions on medical questions, anyone at present may be permitted to 
testify, the question as to the special amount of knowledge being left 
to the jury to determine. It follows from this theory that there is no 
evidence which varies so immensely as so-called expert evidence. It 
has been decided that a medical opinion may be received as evidence, 
if it is based upon study without practice, or upon practice without 
study, and it has been ruled that it is not absolutely necessary that 
one should have studied or practiced medicine. * * * The test of 
the admissibility of opinion-evidence (which term Dr. T. prefers to 
expert testimony) seemed to the writer to be this: Has the expert 
witness any peculiar knowledge or experience upon the subject matter 
under inquiry of value to the court in determining the truth of the 
matters at issue ? The degree of credence given to opinion-evidence 
should be founded upon the professional skill, the quickness of percep- 
tion, the powers of discernment, the aptitude, the’acquirements and MEDICAL JURISPRUDENCE. 
7 
the education, as well as the experience and observation of the expert 
in the matters upon which his special expert knowledge arises.” 
Consider how many departments of the science of medicine are 
tasked for the purpose of elucidating questions before the courts. 
The chemist, with his crucible, reagents, tests, microscope, etc., the 
anatomist, the pathologist, surgeon, obstetrician, each department 
itself a specialty requiring all a man’s time and talents for years to 
master—all these and many others have been and will be again 
needed to furnish knowledge in its special line for the use of the 
courts in arriving at the truth of matters before them. And yet our 
courts accept the testimony, and even demand it, of the young physi- 
cian in any or all of these departments, though the ink on his diploma 
is hardly dry, or from the physician who has shown no aptitude or 
paid no particular attention to the specialty on which expert knowledge 
is desired. Before the courts the ignoramus, with his purchased 
diploma, the egotist, anxious fo show himself or parade his learning, 
the miscreant, prostituting scientific knowledge by offering it to the 
highest bidder, and the painstaking, laborious searcher after truth, 
with his various accomplishments and years of study, are all classed 
alike as experts. Is it any wonder that the physician’s testimony 
does not receive that credence which is due it ? 
Let our courts insist on having as experts those who are competent, 
by education, experience and observation to testify on the subject 
under inquiry, and better testimony, more reliable in every way, will 
be obtained, and the odium of the present state of medical testimony 
will be removed. Dr. H. C. Wood says he has “never personally 
known a serious divergence of opinion in medical jurisprudence which 
did not grow out of the ignorance or incompetency of one of the two 
sets of experts. 
By insisting on the above rule, the humiliating spectacle of scientific 
men professing to gain their knowledge from the same course, swearing 
to different results, as is sometimes now seen in our courts, will be 
avoided. 
An examination of the Supreme Court decisions of our State on the 
subject will show the principles governing expert testimony, some few of 
the more prominent ones of which I propose to discuss. Throughout the 
decisions we find the scientific attainments of the physician recognized, 
and while these decisions have not kept pace in all respects with the 
rapid strides made in medical progress, they show an appreciation of 
our labors far in advance of decisions in other States and countries. 8 
MEDICAL JURISPRUDENCE. 
As regards the fees of experts, Section 3,756 of the Code, last clause, 
reads as follows: “ That experts, when compelled to attend and testify, 
shall be allowed such compensation and mileage as the court may, in 
its discretion, order.” There is one Supreme Court decision on this 
question in which it is held that “one summoned as an expert in a 
criminal action is entitled to an extra compensation under the act of 
1870-71, chapter 139, section 133.” (Code as above.) The fees 
being oftrn quite a desideratum, especially when put to much expense 
in attending court, most writers on jurisprudence advise that this 
matter be arranged before going on the stand. So far as my experi- 
ence goes the judges of this State are not parsimonious in allowing 
fees. 
The physician’s attainments are recognized in diseases other than the 
human family, one decision holding that his testimony is admissible in 
diseases of animals, “ when he swears that he is enabled to form an 
opinion from his reading, observation, etc., of the disease in question, 
though he has not made diseases of stock a special study.” How far 
the analogy between diseases of man and the lower animals extends, 
or how great the similarity, I will not stop to discuss. Under the 
above quoted decision it is left with the witness as to his willingness to 
swear to the diagnosis, and of his competency and the degree of credi- 
bility to be given his testimony, under any circumstances, is a question 
for the jury. In State vs. Clark, Chief Justice Iluffin rendering the 
decision, says that “the effect of the evidence is, of course, to be 
decided by the jury.” In the same decision the following language is 
used in regard to expert testimony: “Authorities need not be 
adduced to show that it is an established rule in the law of evidence 
that, in matters of art and science, the opinions of experts are evidence 
touching questions in that particular art or science. The rule is 
founded in necessity, because persons of ordinary avocations, including 
jurors and judges, are not generally capable of judging correctly upon 
many questions which must be determined in order to guide the 
decision of a legal controversy, and which depend on scientific know- 
ledge or skill in art. * * * At all events, when professors of the 
science swear they can thus distinguish, it would be taking too much 
on themselves for persons who, like judges, are not adepts, to say the 
witness cannot thus distinguish, and on that ground refuse to hear his 
opinion at all. By such a course the judge would undertake, of his 
own sufficiency, to determine how far a particular science not possessed MEDICAL JURISPRUDENCE. 
9 
by him can carry human knowledge, and to determine it in opposition 
to professors of that science. That course would subvert the principle 
on which the rule of evidence is founded, and exclude the evidence in 
all cases, since in truth its utility depends on having the aid of men of 
science at that point at which it is necessary to supply the deficiency 
in the knowledge of those who are not experts.” 
Before pursuing the subject further, it might be well to define what 
the law means by an expert, and for this purpose I copy from Chief 
Justice Smith in Flynt vs. Bodenhamer: “An expert is defined by 
Worcester, following Burrill, as ‘a person having skill, experience or 
peculiar knowledge on certain subjects or in certain professions ’; and 
by Bouvier as ‘ one instructed by experience.’ The court must decide 
whether the witness has had the necessary experience to enable him to 
testify as an expert. But the value of his opinion when, admissible, 
must be determined by the jury alone, and depends upon the opportu- 
nities he has had for acquiring skill and knowledge, and the use he 
has made of those opportunities. * * * But the opinion of a 
well instructed and experienced medical man upon a matter within the 
scope of his profession and based on personal knowledge, is, and ought 
to be, carefully considered and weighed by the jury in rendering their 
verdict.” 
In the syllabus of this case it is held that a physician of thirty 
years practice is an expert. The first impression received here is that 
this is true. Certaiuly thirty years study and observation of any 
subject should qualify a man to speak with authority on matters con- 
nected with such subject. Yet the principal element or factor in form- 
ing the expert is lost sight of. Thirty years in the practice of medicine 
does not, and will not of itself, make an expert in insanity trials. 
From the very nature of the case it is possible to reduce his qualifica- 
tions to a term of years. His -opportunities for observation, aptitude 
for learning, powers of discernment, etc., must all be considered in 
summing up what it takes to make an expert. 
Hearsay evidence is not admissible under any circumstances, and 
opinions based on the truthfulness of another witness’ testimony is not 
allowed as expert evidence. The opini ns must be founded either 
upon facts within the personal knowledge or observation of the report, 
or upon the supposition or hypothesis that the jury will accept the 
testimony of witnesses as to facts as true. 
It is this principle of law that requires the use of hypothetical 10 
MEDTCAL JURISPRUDENCE. 
questions. As much as this form of examination is abused, and as 
many objections as there are to it, it must still be used for the want of 
something better. Chief Justice Smith, commenting on expert evidence, 
says: “The opinion of those who are skilled in any department of 
art or science resting upon undisputed facts and within the scope of 
their special calling, are not only competent to be heard by the jury, 
‘but often greatly assist in the formation of a correct judgment upon 
matters they are called on to investigate. The superior knowledge of 
the expert is frequently required in the conduct of judicial examina- 
tion of subjects beyond the reach of common observation. But this 
evidence has its restrictions, and must never be allowed to invade the 
rightful and exclusive province of the jury in drawing their own con- 
clusions from the testimony, of the credibility of which they alone 
must judge. It is their duty to hear and pass upon the evidence, and 
the expert’s opinion is admitted only to aid in performing that duty.” 
In this connection the rule for the examination of experts as to the 
proper form is laid down, and is hypothetical, before alluded to, the 
general form of which is as follows: If the jury find certain facts 
deposed to by witnesses to be true, what is the expert’s opinion of those 
facts? Many decisions sustaining tNis form of examination from other 
States are cited and approved. 
In the department of psychology the law is farther behind medicine 
than in perhaps any other specialty of the profession. It has long 
been considered a difficult, if not almost impossible, matter to har- 
monize the two professions on the subject of insanity. O dinarily the 
opinion of the physician on subjects connected with his profession is 
accepted by the courts, but on the subject of insanity acknowledged 
as one of the most difficult branches of medicine, requiring for its 
study a high order of intelligence and intellect and long years of close 
application, anyone is allowed to testify, and the opinion is accepted, 
though the witness may have never seen a case of insanity. 
In insanity trials our courts have certainly made haste slowly. No 
one deprecates the wrong done to law and order, to society and to our 
own profession by the “ insanity dodge ” more than I. That it has 
worked injury in some States cannot be denied, and I would not advo- 
cate the plea to the extent that it is carried by some psychologists. 
The great difficulty is how to define insanity. The law attempts to 
make a cast-iron rule and require every case to fit it. Precedent has 
more weight than the facte in the case, and if the facts do not tally MEDICAL JURISDRUDEXCE. 
11 
with the musty decisions of by-gone days, they are not recognized 
as carrying any weight. The jurist and the physician look at the 
matter from two stand-points almost diametrically opposed to each 
other. Medicine is a progressive science, broad and catholic in its 
base. The law does not claim to be progressive, but is largely 
made up of precedents. 
On this subject, Mr. Justice Doe, of New Hampshire, says : 
“ When the authorities of the common law began to deal with the 
subject of insanity, they adopted the prevailing medical theories. 
* * * Without and conscious or material partition between law 
and fact, without a plain demarcation between a circumscribed 
province of the couit and an independent province of the jury, the 
judges gave to juries on questions of insanity the best opinions 
which the times afforded. In this manner opinions purely medical 
and pathological in character, relating entirely to questions of fact, 
and full of error as medical experts now testify, passed into books 
of law and acquired the force of judicial decisions. Defective 
medical theories usurped the position of common law principles. 
Tlie usurpation, when detected, should cease. The manifest impos- 
ture of an extinct medical theory, pretending to be legal authority, 
cannot appeal for support to our reason, or even to our sympathy.” 
Legal insanity in this State, in a charge by a superior court judge 
(Green), and endorsed and commended to the other judges by the 
Supreme Court, is thus defined : “That if the prisoner, at the time 
he committed the homicide, was in a state to comprehend his rela- 
tions to other persons, the nature of the act and its criminal 
character, or, in other words, if he was conscious of doing wrong at 
the time he committed the homicide, he is respodsible. But if, on 
the contrary, the prisoner was under the visitation of God, and 
could not distinguish between good and evil, and did not know 
what he did, he is not guilty of any offence against the law, for 
guilt arises from the mind and wicked will.” Following precedent 
and the established order of things for generation after generation, 
because, perhaps, this way was good enough for our great-grand- 
fathers, it must be all right for us, our courts thus cling to the 
knowledge test for responsibility, after it has been showm, time and 
again, to be erroneous, by the advances of psychological medicines. 
This test has been variously modified according to the views of the 
different judges rendering decisions on the question, since the ‘ wild 12 
MEDICAL JURISPRUDENCE. 
beast ’ test of Mr. Justice Tracy, in 1723, while still holding to the 
cast-iron rule of knowledge as the criterion of responsibility. It 
was affirmed in 1S43 by the English judges, in answer to questions 
by the House of Lords, in these words: “* * * That before a 
plea of insanity should be allowed, undoubted evidence ought to be 
adduced that the accused was of diseased mind, and that at the 
time he committed the act he was not conscious of right or wrong.” 
In 1868 Judge Brewster held that the true test was in the word 
power ; had the accused the power of distinguishing between right 
and wrong, and the power to adhere to the right and avoid the 
wrong? Lord Brougham says if he knew what he was doing was 
contrary to law, that should be the test of his sanity, and Lord 
Lyndhurst uses these words : “ The question was, did he know it 
was an offence against God and nature?” Chief Justice Tracy 
restricted the test to the particular act in question, and Parke 
modified it by the knowledge and character of the deed, and 
knowledge of doing wrong in so acting, and the whole position is 
condemned by Justice Ladd. 
A short extract from Justice Doe’s opinion in the case of State 
vs. Pike, already quoted from, is applicable here : “It is common 
practice for experts, under the oath of a witness, to inform the jury, 
in substance, that knoweldge is not the test, and for the judge, not 
under the oath of a witness, that knowledge is the test. And the 
situation is still more impressive when the judge is forced, by an 
impulse of humanity, as he often is, to substantially advise the 
jury to acquit the accused on the testimony of the experts, in vio- 
lation of the test asserted by himself. * * * If tests of insan- 
ity are matters of fact, the judge siiould no longer testify without 
being sworn as a witness and showing himself qualified as an 
expert.” 
The jurist is disposed to look at this subject in a stern, matter of 
fact way, hard in all its bearings, regardless of human infirmities 
and frailties, while the physician is lenient, recognizing “the ills 
that flesh is heir to,” and merciful to an unfortunate fellow-creature. 
It is charged against him that it is this feeling of tenderness and 
forbearance that prompts him to expose the cause of this class 
before the courts, but the loyal physician, ever faithful to the trust 
imposed upon him, will always follow the way of truth and justice, 
and it is justice for the insane, when scientific knowledge or inves- MEDICAL JURISPRUDENCE. 
13 
tigations show him the truth of the insanity, that leads him to 
advocate his cause. The jurist is confessedly out of his domain 
in treating of the subject. He may be well suited to cope with 
the callous, hardened criminal, but what can he be expected to 
know of the delicate mechanism of the human brain or the influ- 
ence of disease upon its physiological action ? As physicians, we 
are willing to grant him all the authority or power desired in his 
own profession, but it is time to resent his interference in matters 
belonging exclusively to the medical profession. Time was, when 
the insane was considered as being possessed with a devil, that 
there was perhaps an excuse for bringing the acute faculties of his 
mind to bear on a question confessedly difficult to solve, but in the 
enlightenment of the nineteent.i century, when insanity is univer- 
sally recognized as a disease, there is no excuse for his interference, 
unless he will consent to keep pace with the anvanees in psychology 
in his decisions. Another quotation from Judge Doe shows that 
the fact is recognized by the judges, too : “The legal profession, in 
profound ignorance of mental disease, has assailed the superin- 
tendents of insane asylums, who knew all that was known on the 
subject, and to whom the world owes an incalculable debt, as 
visionary theorists and sentimental philosophers, attempting to over- 
turn settled principles of law, when, as in fact, the legal profession 
was invading the province of medicine and attempting to instill old, 
exploded theories in the place of facts established in the progress 
of scientific knowledge. The invading party will escape from a false 
position, when it withdraws into its own territory, and the administra- 
tion of justice will avoid discredit when the controversy is thus brought 
to an end.” 
This state of affairs is somewhat condoned in one Supreme Court 
decision in this State, where the judge uses the following language in 
rendering his decision : “ This test (the knowledge of right and wrong) 
has long been resorted to as a general criterion for deciding upon legal 
accountability, and, with a restricted application to the act then about 
to be committed, is approved by the highest authorities. But we do 
not attempt to lay down any rule of universal application. It seems 
chimerical to attempt to do so, from the very nature of things, for 
insanity is a disease, and, as is the case with all other diseases, the 
fact of its existence is not established by a single symptom, but by a 
body of symptoms, no particular one of which is present in every case. 14 
MEDICAL JURISPRUDENCE. 
Imperfect as the rule may be, it covers a great variety of cases, and 
may aid the tribunals of the country in judging of this most difficult 
subject.” 
Dr. Charles E. Johnson, in writing of this test, asks : “Who is 
to be the judge of what is right and what is wrong?” All men’s 
judgments are not the same on this or any other question. What 
the judge, with his learning, would denounce as an iniquity, the 
jury, perhaps less informed, might view very leniently as a mero 
peccadillo, and the prisoner in the box, with none of the advantages 
of education, usages of polite society or Christian influences, would 
look upon as no wrong at all. 
Physicians who have given any consideration to the matter, know 
that this test is impracticable ; that the symptoms by which insanity 
is recognized are as variable almost as the number of cases. To 
claim that because a man has a knowledge of right and wrong he 
is sane in all cases, is erroneous, or even that because he has the 
power to resist the wrong and keep to the right, he is sane, is not 
true. It is within the province of the law to say that this shall be 
a test of responsibility, perhaps, but when the question of insanity 
arises, the jurist, knowing nothing of the disease, should leave it to 
the physician to diagnose. If insanity is to be the test of responsi- 
bility, then the knowledge of right and wrong as a criterion is an 
error bequeathed to us as another instance of “ that jealous affection 
and filial reverence, which have converted our (legal) code into a 
species of museum of antiquities and legal curiosities,” along with 
the right of trial by evager of law or by ordeal. Dr. C. II. Hughes, 
in an editorial (“The Judicial Psychology of the Guiteau Trial”), 
writes thus of the subject : “And even when the learned judiciary, 
whose province it is to interpret rather than make pathological laws, 
as it is likewise his province to determine what municipal laws are, 
and not to make them, forms a judicial psychololgy not sustained 
in the laws of morbid mental movement, sound psychiatry may be 
thereby set back a quarter of a century or so before courts; but the 
truths of psychiatry remain the same as though no judicial fiat had 
sought to make them what they are not, and they will ultimately 
appear uppermost, despite judicial decision that they are what they 
are not. 
“Tq ignore motives and resistless impulses of mind deranged, 
does not, and will not, obliterate them as facts from the phenomena 
of mental disease.” MEEICAL JURISPRUDENCE. 
15 
I cannot better close this special feature of the question than by 
quoting from one of the legal profession, who, in speaking of the 
medical and legal professions, says this of the jurist: “He con- 
tributes little or nothing to the stock of human knowledge. lie 
has given himself to the study and application of a science—if 
indeed it be a science—which as often deals with artificial princi- 
ples and dogmas as with great abiding truths. In grasping at the 
philosophy of jurisprudence he is fettered, even in this day and 
generation, by precedents of scholastic absurdity, w'hich date back 
before the Wars of the Roses, and by statutes, the very records of 
which were lost before the Reformation. The scientific aim and 
effort of his professional life is to show that ‘ thus it is written.’ 
The legacy which he is able to leave behind him to society is there- 
fore rarely better, in its best estate, than a tradition of high facul- 
ties fearlessly and honestly dedicated to justice and duty.” 
This decision, or rather test, of accountability in alleged insanity 
before the courts, is probably founded on the belief that the will of 
man is preeminent, controls all mental faculties, and acts indepen- 
dently of them. Volition is not an abstract quality of the mind, 
with a definite nervous centre, but is dependent for its action on 
many contingencies in connection with the other functions of the 
brain. Volition can be exercised only after deliberation, which wre 
generally call reason or the reasoning powers of the individual ; 
this is but the recognition of certain ideas or experiences of a 
painful or pleasant character consciously recalled by an act of 
memory. Thus to produce the best results as to man’s power of 
exercising his will there must be complete harmony of action with 
all the brain functions, and he who best harmonizes these functions 
by judicious exercise, will approach the nearest to perfect power 
over those ganglionic cells which are the associated centers of ideas 
which control that faculty called volition.” 
Should there be such a state as to impair the utility of these cells 
in the brain there will be a want of harmony in the performance 
of function, the connecting links will be severed, and the action 
resulting will not be the same as in a healthy organism. Indeed, 
wo see daily the effects of such action in that we have better control 
of our feelings, desires, etc., at one time than another. How often 
do we find our whole mental faculties given over to the considera- 
tion of some subject most probably faithful, in spite of any will 16 
MEDICAL JURISPRUDENCE. 
power we may exert, keeping us awake through the long hours of 
the night, and forcing itself into our dreams should we doze. And 
yet the man whose brain is diseased, whose thoughts are conse- 
quently morbid, in whom this healthy power of the will is lost by 
reason of inharmonious action, this man, who has lost all control of 
himself by reason of disease, is expected by the stern edict of the 
jurist to exert more will power, and put away an unpleasant thought 
or refrain from an action, than the man in full possession of his 
powers of mind. 
Every alienist can recall numbers of cases where the insanity was 
beyond doubt, still having a kriowdedge of right and wrong, but 
where irresponsibility was evident. No cast-iron rule to fit all cases 
can be made, nor can any single test be applied that will be just 
and equitable. The question in cases of alleged insanity should be, 
Was the action the result of a brain diseased in such a manner as 
to interfere with function? Or, as it has been stated, Ilow has 
disease distorted the normal relationship of the man to the crime 
and surroundings”? 
Time and again has this question been discussed in all its bear- 
ings, from both legal and medical points of view, with always a like 
result—each claiming the victory in the contest, and each pursuing 
the same course as before : the jurist still clinging to his cast-iron 
rule, and the physician holding to the faith he has in scientific 
studies and psychological medicine. 
Another principle in the execution of our laws in relation to in- 
sanity to which I would take exception, is found in the Supreme 
Court decision requiring that “ Hereditary insanity can only be 
shown where it is of the same kind as the prisoner’s.” 
Chief Justice Pearson, in rendering this decision, speaks thus of 
hereditary insanity : “It is a lamentable fact, admitted by every- 
one, that such maladies are hereditary ; and it would seem that the 
proof of the fact, that members of the family so related as to have 
the same blood, are, or have been, afflicted with a like malady, is 
admissil le as a circumstance, when aided by other circumstances, 
and would go to show the insanity of the prisoner, although, of 
course, evidence of such hereditary taint in the blood, would only 
be one link in the chain, and would not per se establish the fact; 
but the question as to the policy or expediency of admitting such 
evidence in legal investigations, presents many and very great MEDICAL JURISPDUDENCE. 
17 
difficulties ; it is wrong to exclude what may lead to truth, and yet 
such evidence would in numberless cases lead to falsehood, and 
screen the guilty in defiance of truth. On the other hand, we find 
it in some degree an open question in the legal authorities. Thus 
far the way seems to be clear : in order to render it admissible the 
species of insanity alleged, and that offered to be proved in respect 
to members of the family, must be of the same character ; and the 
instances to be proven must have been notorious, so as to be capable 
of being established by general reputation, and not left to depend 
upon particular facts and proofs, but about which witnesses may 
differ, and the consequence of which would be to run off into num- 
berless and endless collateral issues; so that in trying the question 
of the insanity of one, the supposed insanity of a half dozen would 
be drawn in.” 
If I understand the decision, it means that a case of mania pro- 
duces mania in the offspring, should the insanity be transmitted. 
In other words, it does not recognize a transformation of type in 
the inheritance of this malady. 
This decision is, I judge, founded upon the acknowledged difficul- 
ties in the way of admitting testimony as to heredity, following, 
perhaps, the Scotch law partially, which does not admit testimony 
of this character. That injustice would often be done by following 
this entirely, a compromise is effected by conforming to Esquirol, 
one of the first systematic writers on the subject of insanity, who 
wrote over a half century since. He says : “ Hereditary mania 
manifests itself among the patients and children often at the same 
period of life. It is provoked by the same causes and assumes the 
same character.” Granting that Esquirol was right, it is by no 
means proven that this is the rule, for in fact it might be said to be 
an exception, for alienists of the present day, after longer study 
and more experience, differ from him on this point. 
An inherited tendency to insanity is dependent on so many con- 
tingencies for its development, that it is impossible to tell what 
form it will assume, even if insanity should supervene. By sur- 
rounding the person wilh the necessary safeguards in the way of 
mental hygiene, avoidance of troubles, excitement, etc., the ten- 
dency may not culminate in an outbreak of insanity at all. The 
character or form of the insanity is influenced, in a large measure, 
by the exciting cause, whatever, it may be. It may be the death of 18 
MEDICAL JURISPRUDENCE. 
a friend, a reverse of fortune, the excitement of politics, religious 
fervor, or many other occurrences in daily life. 
Spitzka alludes to the frequent intensification of the malady in 
the progeny, and this can be verified in almost any neighborhood, 
certainly in any county, can be found families degenerating as to 
the various nervous affections. This degeneration and intensifica- 
tion of the transmitted neurotic diseases is admitted by most of the 
writers of the present day. But we go even farther than this, and 
assert the transformation of type in the progeny. Owing to the 
difficulty in obtaining the history of cases of hereditary insanity, I 
have not prepared any statistics on the subject. My own observa- 
tions coincide with the views quoted here. 
Stearns says : “It is not the case, however, that definite forms of 
insanity always repeat themselves, but, on the contrary, change, so 
that a case of mania may appear in the second generation as a case 
ot melancholia or acute dementia, and vice versa, melancholia may 
appear as dementia. * * * It is not necessary that the tendency 
towards unstable mental action should be fully developed in the 
parent, in order that it may so appear in the child. * * * Great 
singularity of conduct habitually displayed, periods of depression, 
irritableness and nervousness, when crossed with similar character- 
istics in the other parent, or other unusual ones, not infrequently 
develop into actual insanity in succeeding generations.” 
Hereditary action is held by Maudsley “ to be rather of the nature 
of a complex chemical combination whereby compounds, not resem- 
bling in properties their constituents, are oftentimes produced, and not 
of the nature of a more mechanical copy.” Again, he says: “Any- 
one who will may make the observation that when two persons of 
narrow and intense temperament, having great self-feeling and dis- 
trustful of others, and prone themselves to cunning ways and hypo- 
critical dealings, mean in spirits as in habits, perhaps deceiving them- 
selves all the while by an intense affectation of religious zeal, of evan- 
gelical, ritualistic or other extreme type, unite in marriage and have 
children, they lay the foundations of insanity in offspring more surely 
often than an actually insane parent does.” 
Grisenger says on the subject of heredity : “At present we can 
claim for tuberculosis alone an influence of hereditary circumstances 
in some degree equal to that exhibited by mental diseases.” “ Some- 
times hereditary mental disorders present essentially the same charac- MEDICAL JURISPRUDENCE. 
19 
ters in parents and children, and occasionally also in a whole line of 
brothers and sisters, appearing at the same age and terminating in the 
same manner, as, for example, suicide. Frequently, however, this is 
not the case; the psychical disorder manifests itself in different ways, 
partly dependent on external circumstances.” 
Bucknell and Tuke, in their work on “ Psychological Medicine,” 
say: “But while the same form or type of mental disorder may 
descend from one generation to another, it is also certain that not only 
may one form be succeeded by one of a very different character, but 
by other neuroses, as epilepsy or chorea. * * * Gaussail held 
that nothing is transmitted but the aptitude for some form or other of 
nervous disorder, and that this is wholly determined by causes subse- 
quent to birth. Lucas shows that, as in an individual any nervous 
affection may be transformed into another, and thus prove the con- 
sanguinity of those disorders, so may the like transformation take 
place in parents and children.” 
In writing of heredity as a cause of insanity Dr. Mann says: 
“ Insanity also may appear in the same form in succeeding generations, 
or it may assume an entirely different form, or even assume another 
form of nervous disease. Thus, it is common to see cases in which 
the patient, suffering from mania, the offspring may develop symptoms 
of epilepsy or chorea.” 
Chief Justice Gibson, of Pennsylvania, in admitting evidence tend- 
ing to show hereditary transmission of insanity, reviews the dicta of 
Chitty and Shelferd as to its being an established rule of law that 
such evidence shall not be admitted, and says the only case where it 
was brought up the question was avowedly dodged, and the decision 
arrived at on another point of law, and says the authority of a ques- 
tion appealed from and left in dubio cannot be very great.” “ What 
if the point had been ruled by the chancellor and law judges in the 
House of Lords? Professedly learned in the maxims of the law, they 
were profoundly ignorant of the lights of physiology; yet free from 
the presumptuousness of which ignorance is the foster-father, they 
refused to rush on the decision of a question to which they felt them- 
selves incompetent.” 
That the question of the admission of testimony bearing on 
heredity presents many difficulties is evident ; it is also evident that 
in the light of the better knowledge of the present day, and the 
teachings of pscychologists, that the decision now under discussion 20 
Medical jurisprudence. 
should be modified. If testimony as to heredity is to be admitted at 
all, let it be in accordance with the whole truth, and not by suppressing 
the part which may be of most use to the prisoner on trial. Many 
more references as to the transformation of the type, or, as the 
Supreme Court decision has it, “species or character” of insanity 
inherited from the parent, might be given, but these are deemed 
sufficient, especially as we can verify the position taken within our 
own experiences. 
Non-expert testimony is allowed in insanity trials ; that is, per- 
sons not physicians are allowed to testify, giving an opinion as to 
the sanity or insanity of the individual, but with this difference : 
while the expert bases his opinion on the testimony of others, and 
not necessarily from observation exclusively, the non-expert can 
give his opinion only upon his personal observation. Judge Gaston, 
in rendering a decision on this question, uses the following language : 
“But judgment founded on actual observation of the capacity, dis- 
position, temper, peculiarities of habit, form, features or hand 
writing of others, is more than mere opinion. It approaches know- 
ledge, and is knoviledye, so far as the imperfection of human nature 
will permit knowledge of these things to be acquired, and the 
result thus acquired should be communicated to the jury, because 
they have not had the opportunities of personal observation, and 
because they can in no other way have the observation of others.” 
I have already discussed the subject of what an expert is, but 
wish to add a few lines here. In investigations before the courts, 
many matters other than medical questions, demand testimony of a 
peculiar character from persons so situated by profession, study or 
observation, as to be enabled to come nearer the truth than others 
not enjoying the same advantages. A rickety bridge over a stream 
on the public road, may be pronounced unsafe by the whole neigh- 
borhood, because it has gone so far in its decay as to be evidently 
so to all. An immeme iron structure spanning a river may seem 
the very embodiment of strength and durability to the general 
observer, yet pronounced unsafe by the engineer. Because the 
general observer was competent to judge of the condition of the 
first bridge, would or should his opinion be taken against the 
experts in a court of law as touching the second ? A severe wound 
may be recognized as dangerous by any observer, while a stab, 
with little or no bleeding, may not seem dangerous; whose evidence 21 
MEDICAL JURISPRUDENCE. 
is better than the surgeon’s on this point ? The insanity of the 
raving maniac is recognized immediately by all with whom he comes 
in contact, but who is to judge of the phases of insanity where the 
outward show is slight? 
Under a decision already quoted, and I believe under the common 
law, the question of insanity is a question of fact for the jury. In 
other words, the jury is to judge of the insanity of the prisoner at 
the bar from the evidence presented. Even though they may have 
never seen a case of insanity, have never studied the subject, or 
even read a line in regard to insanity, it is their duty to pass 
judgment upon a matter that has taxed the brain and consumed the 
time of giants in intellect, without arriving at a satisfactory conclu- 
sion. For assistance they have as witnesses men on a par with 
themselves as to real knowledge of the subject—the attorney, who 
has gained his knowledge of a medical question from a legal text- 
book, and the judge, who delivers a charge on what is insanity, 
with the musty decisions of by-gone days as his guides. Is it any 
wonder that the insane man is often convicted, or that the culprit 
often escapes punishment on the plea of insanity under such a state 
of affairs? 
While non-expert testimony is competent and is often used in 
insanity trials, it is held that the testimony of the physician in 
regard to the mental state of a person is of more importance than 
that of a non-professional witness, and the following charge was 
delivered to the jury : “ * * * That it was the business of a 
physician to understand the disease of the mind as well as of the 
body, and that his opinion for that reason was entitled to higher 
consideration than ordinary witnesses.” The Supreme Court, in 
reviewing this charge, uses the following language: “ It may be 
said of the physician that he is, by the nature of his studies and 
pursuits, particularly skilled in the mental as well as in the physical 
diseases of men, and with respect to the parties upon whom he is in 
constant attendance, he must be supposed, as well from his 
superior knowledge, as from his better opportunities of observation, 
to be particularly well-informed as to their state of mind. 
What, therefore, the judge thought proper to say upon the subject 
of the witnesses mentioned, we do not think liable to any just 
exceptions.” 
Did time permit, there are other decisions on matters relating to 22 
MEDICAL JURISPRUDENCE. 
insanity that might be profitably reviewed, but as I fear I have 
trespassed already too long, I will here simply refer to them, and 
may perhaps enlarge on them in the future. The subjects of moral 
insanity and moral debasement are treated of in the cases of Mayo 
vs. Jones, 78 N. C. R., 402, and State vs. Brandon, 8th Jones, 463, 
noither of which is recognized. A subject of much interest, and 
one which should be thoroughly studied by the expert on insanity, 
is what evidence can be introduced as to insanity, or to show in- 
sanity. We have Supreme Court decisions on it in the famous 
Johnson will case, Wood vs. Sawyer, Philips’ Reports, 251 ; State 
vs. Cunningham, 72 N. C. R., 469; Barker vs. Pope, 91, N. C. R., 164. 
I have tried to show some of the objections to the existing state 
of facts as regards the law and the doctor, and wish that I might 
suggest a remedy that would be accepted. Our hands are, in a 
measure, tied. We can point out these errors, and give our reasons 
for the necessity of a change, but as tho courts have all the author- 
ity, we can do nothing more than urge the truth and justice of our 
position. Dr. W. C. McDuffie recognizes this evil in a recent 
article, and suggests that the decision of the whole matter, so far 
as the insanity is concerned, should be left to the doctor. 
Dr. Buckham, in his little work, urges that the superintendents 
and first assistant physicians of our asylums of a number of 
years experience should have as part of their official duties tho 
giving of testimony on insanity whenever required by proper 
authority, and without compensation. He makes several sugges- 
tions in the way of safeguards to be thrown around such experts. 
To have a commission composed of doctors alone, or perhaps doc- 
tors and lawyers, to judge of these cases, or to leave it entirely 
to an expert, and the court be governed by such decision, is open to 
objections, for we are met on the very threshold with a constitu- 
tional enactment granting to every citizen that great bulwark of 
liberty, the right of trial by jury. All reforms, to be permanent, 
should be gradual, and there is much need of care in dealing with 
this subject. Let us as physicians go forward fearlessly, honestly 
and conscientiously doing our whole duty—more we cannot do. 
Authorities Quoted in the Foregoing Article.—Journal of American 
Medical Association, Vol. 4, No. 18, May 2, 1885; Journal of the American 
Medical Association, Vol. 5, No. 20, Nov. 14, 1885; The Polyclinic (Philadel- 
phia), Vol. 2, No. 7, p. 105; State vs. Dollar, 66 N. C. R., 626; Ilorton vs. MEDICAL JURISPRUDENCE. 
23 
Green, 64 N. C. R., 64; State vs. Clark, 12 Iredell, N. C. R., 151 ; State vs. 
Clark, as above; Flynt vs. Bodenhamer, 80 N. C. R., 205; Barker vs. Pope, 91 
N. C. R., 165, and State vs. Bowman, 78 N. C. R., 509 ; Clairy vs. Clairy, 2 Ire- 
dell, N. C. R., 78; State vs, Pike, 49 N. H. R., 399, also American Reports, 
Vol. 6, p. 533. From Dissenting Opinion of Judge Doe, 579; State vs. Hay- 
wood, Philips, 376. (“ It is not every kind of frantic humor or something unac- 
countable in a man’s actions that points him out to be such a man as is exempted 
from punishment; it must be a man that is totally deprived of his understand- 
ing and memory, and doth not know what he is doing, no more than an infant, 
than a brute or wild beast; such a one is never the object of punishment.”)— 
Maudtey’s Responsibility, p. 90. Wharton and Stillee Medical Jurisprudence, 
Sec. 159 ; Buckham’s Insanity in its Medico-Legal Relations—Appendix, p. 221, 
where the different opinions of judges are given in groups; American Reports, 
Yol. 6, 584; American Reports, Vol. 6, 581; State vs. Brandon, 8th Jones, 
N. C. R., 468 ; Insanity in its Medico-Legal Relations, 133 ; Insanity in its 
Medico-Legal Relations, 181; Alienist and Neurologist, Vol. 4, No. 1 (Jan., 1883), 
141; Insanity in its Medico-Legal Relations, 242; Maudsley’s Physiology of 
Mind, Chap, on Volition; Alienist and Neurologist, Vol. 4, No. 1 (Jan., 1883), 
143; State vs. Christmas, 6 Jones, N. C. R., 471; Esquirol’s Treatise on Insanity 
(1845), 49; Insanity. Its Classification, Diagnosis and Treatment, by E. C. 
Spitzka, 86 (edition of 1883) ; Insanity: Its Cause and Prevention, by Henry 
Putnam Stearns, 129 ; Maudsley’s Pathology of Mind, 92; Maudsley’s Pathology 
of Mind, 95; Mental Pathology and Therapeutics, by Grissenger (Wm. Wood & 
Co’s edition, 1882), 106-109; Psychological Medicine, by Bucknell and Tuke, 
63-64; Psychological Medicine and Allied Nervous Disorders, by E. C. Mann, 
55; Clary vs. Clary, 2 Iredell, N. C. R., 78-83; Cornelius vs. Cornelius, 7 Jones, 
593; North Carolina Medical Journal, October, 1885; Insanity in its Medico- 
Legal Relations, by T. R. Buckham, 172. 
Note.—I wish to acknowledge my indebtedness to Hon. Walter Clark, Judge 
Fourth District, for valuable aid rendered in the preparation of this paper, and 
to the members of the Goldsborough bar for the use of books from their libra- 
ries, and for other favors shown. J. D. Roberts, 
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