(JnrupU Cato ^rlyflnl library r r.A ^««^ Cornell University Library RA 1001.M482 1882 ^^mmmim ''^'"''^ "'® Medico-Legal Soci 3 1924 017 516 349 S B Cornell University WM Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017516349 PAPERS BEAD BEFORE THE MEDICO-LEGAL SOCIETY OF NEW YOEK, FROM ITS ORGANIZATION, SECOND SERIES. REVISED EDmON, NEW YOKE : W. P. VANDEN HOTJTEN. 1882. Entered according to Act of Congress in the year 1882, by TBE MEDICO-LEGAL SOCIETY OF NEW' YORK, in the office of the Librarian of Congress at Washington, D. C. PREFACE. The first series of the papers read before the Medico-Legal Society were pubhshed in November, 1874, under the plan which was submitted by the Publication Committee to the Executive Oomyiittee, and apprWed by the latter in January, 1873. ^ The papers comprising the present volume were collected and prepared at that time and submitted to the Executive Committee of the Society and approved by that Committee, and the second volume was announced as shortly forthcom- ing by Mr. Clark Bell, then the President of the Society, in his third Inaugural Address. A change in publishers being deemed advisable, some de- lays occurred in its issue as announced. On the re-election of Mr. Clark Bell to the Presidency, in 1882, he recommended in his fourth Inaugural Address, that " the Society instruct the Committee who prepared the papers for volume second, to proceed at once with its publication, and to take the necessary steps to provide for the publica- tion of the succeeding volumes of the series." The Society approved of these recommendations, and this volume appears under such action, to be followed by volume three, which will be shortly ready for publication. IV PEEFACE. The death of Dr. Stephen Rogers, late the President of the Society, and formerly a member of the Publication Com- mittee, has led to the insertion of his portrait in the present volume, and it has been also deemed advisable to include some other portraits of officers of the Society and authors of papers read before it. New York, August, 1882. E. S. Guernsey, Chairman, Claek Bell, Wm. a. 'Hammond. PuUicaiion GommiUee, CONTENTS, PAGE. Portrait of Stephen Rogers, M.D Frontispiece. Dr. Rogers' Inaugural Address on assuming the Presidency of the New Yorlf Medico-Legal Society 1 Report of Committee on Criminal Abortion 14 Homicide by Poisoning. By Wooster Beach, M.D 30 Medico-Legal Points in the Case of David Montgomery. By W. A. Ham- • mond, M.D 46 The Influence of Uraemic and Alcohohc Poisoning on Testamentary Ca- pacity. By Stephen Rogers, M.D 62 The Criminal Use of Proprietary or Advertised Nostrums. By Eh Van De Warker, M.D 77 Epilepsy and Its Relation to Insanity. By A. 0. Kellog, M.D 91 The True Object of Medical Legislation. By Stephen Rogers, M.D 105 Inaugural Address of Mr. Clark Bell as President of the Society 131 Portrait of R. S. Guernsey 130 Juries and Physicians on Questions of Insanity. By R. S. Guernsey 130 The ObUgations and Responsibilities of an Administrator of an Anaes- thetic. By Prof. F. D, Weisse 144 Report of the Library Committee 161 Medico-Legal Toxicology. By Eugene Peugnet, M.D 163 Legal Responsibilities in Old Age, based on Researches into the Relation of Age to Work. ByGeorgeM. Beard, M.D 185 Portrait of Mr. David Dudley Field • 236 Emotional Insanity. By David Dudley Field 236 Felonious Homicide : Its Penalty and the Execution Thereof Judicially. By Alonzo Calkins, M.D 354 Legal Responsibility and Accountability. By Simon Sterne, Esq 377 Second Inaugural Address of Mr. Clark Bell as President of the Society. . 233 Medical Jurisprudence of the Stokes Case. By Eugene Peugnet, M.D . . 294 The Writ de Ventre Inspiciendo (Inspection of the Abdomen). By Wm. Henry Arnoux, Esq 334 Experts as Witnesses. By Horace Barnard, Esq 354 CONTENTS. VI The Importance of the Spectroscope in Forensic Cases. (Illustrated.) By S. Watermann, M.D >■ 391 The Eights of the Insane. By Julius Parigot, M.D 416 Morbid Impulse. By Wm. A. Hammond, M.D 437 Discussion on Morbid Impulse 455 " Malleus Maleflcarum "—The Witch's Hammer. By M. Bllinger ....'. 469 Third Inaugural Address of Clark Bell, Esq 482 Hints for Legislative Reform. By John B. Dos Passos, Esq 506 Portrait of J. F. Miller 524 Rape. By J. F. MOlfer, Esq 524 Index 529 -^7^^^^^-^ ^-f^ e>—T/'i^^i'<^ INAUGURAL ADDRESS* ON ASSUMING THE PEESIDENCY OP THE NEW YOEK MEDICO-LEGAL SOCIETY. By Stephen Rogeks, M. D. The New York Medico-Legal Society having selected me to preside over its meetings, and, as executive officer, to watch its interests during the coming year, I take this occasion to return my thanks for the honor thus conferred ; and, if its acquaintance with me renders a further guarantee requisite, to here assure the Society that, whatever my best intentions, aided by the little capacity and industry I may possess, can accomplish for it, may be relied upon. Judging from that which has passed, and in view of this liberal reward for the few and feeble efforts I have heretofore made in its behalf, I am encouraged to expect that whatever I maybe called upon to do' in the future will be regarded as well intended, and re- ceived with the accustomed benevolence of the Society. In assuming the obligations thus thrown upon me, it is meet, as well as in accordance with the acceptable custom of many of our oldest, most influential, and most numerous so- cieties, that I commence by laying before this Society a chart indicating what I may regard as some of its most conspicuous objects and duties, as well as the routes it is to follow in its future fields of investigation and inquiry. Though almost the youngest of the incorporated societies in this metropolis, it is believed the facts will sustain the declaration that, while a few very much older ones count more numbers, our infant has grown to well nigh adult strength, and already ranks high * Delivered Nov. 1871. 1 2 INAUGURAL ADJjEESS ON ASSUMING THE PRESIDENCY among them as regards its public influence and scientific im- portance. The pioneer in this department, it has been followed by a society of the same name in the alleged metropolitan city of the civilized world, and now enjoys the regard and deference of the Paris Medico-Legal Society due from a child toward the parent. Apropos, I may add that it behooves the parent in this instance to be on the alert, or the child will outstrip it in the race for usefulness and fame. The first unostentatious meetings of the New York Medico- Legal Society were held so recently as in 1866. Its first con- stitution bears that date, and announces, among the first of its declarations, that the objects of the Society are, " the advance- wueiit of the science of medical jurisprudence." Although it was not my pleasure and honor to be associat- ed with the founders of the Society, I have, from subsequent knowledge of its workings, learned that their motives in or- ganizing it would perhaps have been more completely ex- pressed, had they declared the objects of the Society to be the advancement of the art and the science of medical jurispru- dence. I venture the assertion of the belief that those veterans will all agree that, while they sought to cultivate a more gen- eral acquaintance with the great principal truths which might become involved in medico-legal inquiries, and to define the relations of these truths to the established laws of jurispru- dence, they also recognized the importance, and even the ne- cessity, of cultivating the art of presenting such truths to courts and juries in an effective way. . This was the artistic part of the objects sought. If I am not in error, therefore, a prominent end they had in view was to utilize material for the instruction and the pre- paration of physicians for medical experts. Very justly con- sidering it of great importance that lawyers, engaged in cases which demand medical expert evidence, be acquainted with at least some of the chief principles of medicine involved in the in- quiries, they sought the fellowship, society , and aid of legal OF THE NEW YORK MEDICO-LEG\L SOCIETY. 3 gentlemen — an element which, I need not say, has clone the Society great credit, enhanced its usefulness, and demon- strated the wisdom of its originators. The mutual education of lawyers and doctors, in subjects liable to become matters of judicial inquiry, and the art of presenting, or making that education available for the practi- cal purposes of those investigations, and thereby secure a pro- ficient body of medico-legal jurists, was, in short, the grand objects in the foundation of this Society. I refrain from commenting upon the progress which may have been made toward the realization of those objects ; but I will venture to remark that there is still a vast field for labor before us. A. just idea of the consummation of this Society then sought, and still wishes, is expressed by one of its distinguished mem- bers : " The immense erudition required to make a skilled witness in medicine, who is to occupy so responsible a posi- tion before courts of justice, makes it indispensably necessary for him to possess the greatest measure of proficiency in those matters about which he is called to testify."* Proficiency is, beyond a question, the key to the secret of all lasting success of medical experts as witnesses. Doctors, it is said, will disagree, and, unfortunately, it is too often seen in courts of justice. By some, this occurrence is attributed to " a want of precision and candor in putting questions."t But it is feared that this want is too often manufactured by the witness himself, as an excuse for a reply suited to a fixed purpose. A truly proficient and honestly scientific medical expert will rarely, very rarely, be entrapped into answers which con- flict with truth, however adroitly the questions be framed. If, therefore, this Society succeed in sufficiently raising the standard of education in the medical experts, whether they testify for the one side or the other, it will have done very much to remove this opprobrium. It is manifest, however, that the first step toward reform will be to establish the al- • Ordronaux, Jnrisprndenee of Medicine. t Op. 4 INAUGURAL AIIDKES8 ON ASSUMING THE PRESIDENCY ways safe, and, in the end, the most politic rule, to first learn the subject before attempting to utter an expert opinion upon it. Two doctors will rarely agree in their testimony upon a scientific matter which neither understands, and the same discrepancy is very liable to occur when one witness does, and the other does not, understand the subject. Our col- leagues, the lawyers, are not unfrequently, however, the in- nocent or intended cause of confusion in the answers of medical witnesses I have repeatedly listened to questions on medical subjects from lawyers, so totally pointless, and so regardless of the best established truths in physiology, sur- gery, or therapeutics, as to defy comprehension. An attempt to answer such questions must necessarily lead to confusion and disagreement. No careful medical witness likes to attempt to answer a question whose import is not fully comprehended by the law- yer putting it. I call upon such as may have had an ex- perience in the matter, to say if I am not correct in stating that the questions of lawyers, who have taken the trouble to inform themselves in the scientific principles involved in those questions, are much more correctly put and more readily and promptly answered ? No more need be said of the part our lawyer members occupy in our programme. A word to the wise is sufficient. We have, with much advantage in time past, and we may no doubt do so in the future, resort to the instruction and discipline which moot-courts furnish as a means of cultivat- ing knowledge and securing proficiency in our members of both professions. I assume the responsibility of speaking for the Society, and announce that we do not intend to neg- lect any means which may tend to advance that proficiency. From the very character of its composition the Society has, from an early period in its existence, been regarded as an ap- propriate tribunal for the decision of questions involving a knowledge of subjects pertaining to medicine, to law, and court rulings Several such questions have already been re- ferred to it, and they will, in all probability, frequently be OF THE NEW YORK MEDICO-LEGAL SOCIETY. 5 received hereafter, if we are careful to maintain, by the means just suggested, the character the Society has hitherto borne and should enjoy. In order, however, not to disappoint the reasonable expectations of the public, the Society must be diligent. It must be kept under continual friction, so that the reflection from its polished shield may be seen from afar, and may serve as a beacon to the inquirer after medico-legal learning ; and, if I rightly comprehend the scope of its func- tions, to lead the public to a source of education in some of the grandest subjects now engaging the serious thoughts of the civilized world. By way of preparing the Society for the labor it has in prospect, if it intend to meet these expectations, it has ap- peared to me proper on this occasion to allude to some sub- jects likely, sooner or later, to be brought before it for dis- cussion. It may be well for us, however, to understand at once that, while we, as a Society, are discussing and informing ourselves in the facts and the principles of these subjects, the community remains unenlightened, and that, as a conse- quence, when we are prepared to indorse a doctrine, the public is not prepared But, as such preparation is simply the fruit of education, we should not despair when we see apparent perversity arrayed against our recommendations, but should forthwith proceed to educate the people by all available means. Among the first of these important subjects which may en- gage our attention wUl, perhaps, be that of the obligations of society to itself in the disposition to be made of such persons as have, on the plea of insanity, escaped the punishment pre- scribed by the law for the gravest of all crimes. Indeed, most of the members are aware that measures have already been inaugurated to bring this important matter before us for discussion, with the view of not only educating ourselves and the public upon it, but through this Society to influence and to secure any required legislation. It will devolve upon this Society to exhibit to the public, and to show to our legislators, the fact, that while there is. 6 INAUGURAL ADDRESS ON ASSUMING THE PRESIDENCY under existiBg laws, as well as in the sentiment of mankind, all the authority and the support needed for the protection of the community against such monsters of insane ferocity as Bufifum, who unprovokedly murdered the highly-esteemed citizen of Newburg while at tea with his family, the world is still in lamentable need of some more stringent and definite law touching the disposition of such criminals as Cole, and many similar ones who might be mentioned. Homicidal in- sanity, under circumstances of provocation, is one of the great crimino-social problems of the day, and one which this So- ciety must investigate, and make such suggestions about as will lead our law-givers to place it where it belongs in the list of crimes, and under such restraint as the case demands. Shall uncurbed passion and nurtured anger be permitted, in the same person, to repeatedly inflict their savage and even fatal manifestations upon society, is the question toward whose solution our efforts must be directed. Influenced by the instruction and guidance, to which we may contribute much, let us hope that public sentiment may ultimately reply to this question in such a manner as shall result in the greater security of the many, though it may at first seem severe upon the few. Next in order, certainly in importance, if not in course, we may well devote our attention to that vast subject which has already engaged this Society, namely, the intellectual status of the methomaniac, and the duty of the public toward him. Should we arrive at the conclusion that appropriate, though in many cases extreme punishment, is an efficient means of protecting the community against the criminal outrages of those victims to the so-called m,orbid impulses, irom homicidal epileptics and hypochondriacs, and from other forms of un- controllable impulse to evil, it is difficult to see how we can consistently evade the application of the same principle to the control and correction of this morbid and really uncontroll- able impulse to be drunk — an impulse, we all know, which results in more evil to society, and finally in more destruction to life, a hundredfold, than all the higher grades of crime OF THE NEW YORK MEDICO-LEGAL SOCIETY. 7 We must sound this enormous abyss of morbid uncontroll- able impulse to crime, whatever the degree of the crime may be. We must carefully analyze these impulses, so as, if pos- sible, to determine if there be any difference, except in the degree of the immediate crime, between the morbid uncon- trollable impulse to murder, to steal, or to become intox- icated. We will, no doubt, find that these impulses just men- tioned are all bad ; that they are all subversive of the well- being of the individual who is the victim of them ; that they are all destructive of family security, and that they are all dangerous to society. If, therefore, there be any valid rea- sons why discreetly-administered punishment should exert a salutary control over one or more of these impulses, and not over them all, it will be our duty to duly consider such rea- sons ; but, if it be true, in any one of them, that the simple understanding that crime committed under the impulse will surely be punished, the subjects of those morbid impulses will be the better able to control them, and we must insist upon knowing why the rule is not of general applicability. Cause must be shown why the principle is not as applica- ble to the morbid impulse to periodic or continuous drunk- enness as it is to a like impulse to suicide or homicide. Assuredly few morbid impulses are more completely beyond the control of reason than are those-to alcoholic and other forms of intoxication. Against them, all considerations of parental obligations are impotent; all ties of family and affection are powerless to restrain ; every motive of self and social respect, and regard for pecuniary and business in- terests, disappears before the imperious demands of this ruling and vicious impulse. Many historical examples might be adduced to illustrate the assertion that, in some instances, no motive on earth, nor any prospect of* bliss or torment hereafter, was of itself sufficient to influence the helpless victim of this terrible impulse to social disgrace, family ruin, and self-destruction. It therefore seems to me that, if this Society indorse the doctrine that uncontrolled morbid impulses which jeopard the rights, interests, and the lives of citizens. 8 INAUGURAL ADDKESS ON ASSUMING THE PBESIDENCY and tend to burden the State, must be controlled, and their consequences punished by the State, it will hardly be able to make the uncontrolled impulse to intoxication, in all forms, an exception. I may appear to dwell unduly upon this theme, but in self-defence you will allow me to say that I regard it as one of very great importance, while I know it is one upon which both this Society and the public need more in- struction than upon almost any other. Whatever may be pubKc sentiment with reference to the management of the impulsive homicide, it is not yet ready to admit that uncon- trollable impulse to intoxication should be treated as an in- sanity. Should this Society succeed in convincing its members that such is the true treatment, it will still have much to do in bringing the public to the same belief. I will here mention that the idea has often occurred to- me that no testimony will be so likely to carry conviction that this is the correct view to take of uncontrolled drunkenness, as that furnished by the victims of the impiilse themselves. They are the ones who appreciate the power of this impulse, and are, therefore, the proper persons, when they, or even their example, can be made available to enlighten society in the matter. Though great difficulties may be met with in the way of placing morbid im- pulses to intoxication in their true and exact light beforei the public, we shall find that the ground is by no means untrod- den. The asylums for inebriates, and the lunatic asylums that have assumed the care of inebriates, have accumulated a fund of evidence which, if utilized, would be of inestimable value to the world. It may be the fortunate mission of the Medico-Legal Soci- ety to bring out of this evidence the fact that the experience of these institutions goes to prove the ungovernable impulse to become intoxicated as much a disease as impulse to homi- cide, or theft, or arson, or suicide, and that it is to be treated in the same manner. I will venture to add that, if they have ever found any of these impulses held in subjection by actual or threatened punishment, that to drunkenness has been one thus controlled. It will, finally, devolve upon us to show that OF THE NEW YOEK METDICO-LEGAL SOCIETY. 9 the State may, with great advantage, take more effective meas- ures for the control, reform, and even punishment, of the mor- bid impulse to drunkenness than it has ever yet done. I would suggest still another department of mental research as one whose singular importance, as well as the comparative popular and even professional ignorance relating to it, renders it eminently worthy the deliberate attention of this Society. I allude to the subject of the moral and criminal responsibility of the totally uneducated deaf-mute. This interesting ques- tion has recently been brought before the public in the case of a deaf-mute who, in one of the neighboring counties, com- mitted the murder of his employer, and under circumstances to make it particularly savage. I should add that, on account of the interest attaching to this subject, steps have already been taken for its thorough presentation to the Society, when- ever it may be acceptable, by one who, from a life-long ex- perience, has become eminently competent to do so in the most attractive manner. It would not be surprising to see the discussion, its intro- duction may give rise to, wander into the domain of the crim- inal responsibility of too many, savages in our midst, who have not received the taming influence of the slightest edu- cation, either secular or religious. It has also occured to my mind that it would not be a fruitless theme for this society to thoroughly investigate and to promulgate the results of such investigation of the medico- legal evidence of death by starvation and neglect as applicable to infants more especially, though not to the exclusion of any age. This subject has, from time to time, been thrown into much prominence, both here and abroad, coming usually through announcements of boards of health, or through the verdicts of coroners' juries, and it appears to be one worthy of our attention. By this thought I am led to the utterance of the idea that the relations of society and of science to coroners' inquests might furnish another subject for, possibly, valuable labor on the part of the Medico-Legal Society. It is supposed by 10 INAUGUBAl ADDKESS ON ASSUMING THE PRESIDENCY many that crime would not be more frequent had we no such an institution as a coroner. By others it is believed that about as much would be known of the causes of sudden and violent death were there no such thing as inquests. By stiU another and more radical party it is declared that, if the whole establishment of the coroner were abolished, the community would be rid of an intolerable nuisance. But, with all war- rantable generosity, I may be allowed to suggest that there are reasonable grounds for believing that this department of our government may be improved. Has this Society any suggestions looking to such improvement ? The fact that there is, and always has been, a most un- pleasant conflict of opinion between medical experts and the courts of so-called justice, relative to the mental condition of persons confined or aboat to be confined in asylums, is well known to most lawyers and physicians. It has occurred to my mind that the Medico-Legal Society of New York might advantageously devote some of its time and thought to devis- ing a plan by which all of this class of cases may be referred not only to an impartial, but to a thoroughly competent tri- bunal, thus securing strict justice to all concerned, and pro- tecting the community.* It has been suggested to me, by one of our distinguished members, that the subject of the value of voluntary or forced * Since this address was delivered, I have been much pleased to learn that Dr. K. L. Parsons, of the New York City Lunatic Asylum, has advocated a measure well calculated to provide for the necessity above alluded to. I take pleasure in referring those, who may feel an interest in the subject, to Dr. Parsons' paper in support of his suggestion, published in The Jouenal or Psychological Medicike for April, 1870, p 336. It will there be seen that before the lunatic, who had been discharged by the judge in due pro- cess of the law applicable to the case, left the court-room, he "commenced an irrelevant " and insane harangue to the very justice who, a moment before, had said, "If this man could be held, under the evidence, in a lunatic asylum, then a large portion of the citizens of this city should be there also." Three days after, the person whom the judge and several med- ical witnesses regarded as sane was recommitted to the asylum as insane and dangerous. OF THE NEW YOEK MEDICO-LEGAL SOCIETY. 11 confession, of having been the perpetrator or having partici- pated in the perpetration of a notorious crime, would be an interesting and useful one for us to place upon the records of our transactions, for the future use of science and society. If it so appear to you, early occasion will be taken to present the subject to you. And, finally, I would suggest that one of the great fields for the labors of the Society lies in the direction of legally and definitely fixing the requirements of those who may presume to consider themselves skilled in human medicine and surgery. With rare exceptions, this subject has, in all countries, and amid all degrees of civilization, occupied quite an anomalous position. In nearly everything else, mankind regard a preparation, by study and practice, necessary to safety and success, and will therefore take especial care to investi- gate one's claims to confidence, but in medicine these precau- tions are continually neglected. In all else they will respect the opinions of competent judges, and in the matter of their diseases and their treatment they are extremely liable to in- sist that they have quite as good a right to an opinion as any one else, and to proceed to the . practice of that opinion, though they are totally ignorant of even the rudiments of the knowledge on which any right to an opinion could be founded. And this leads me to suggest that there is another subject alHed to this, which has as great claims upon the efforts of this Society as, possibly greater than, any hitherto mentioned, viz. : the relations of the advertising columns of the daily, and other papers, to a large part of the so-called social crime in the community. Is there any responsibility resting on the former, for the production and frightful prevalence of the latter ? I distinguish the advertising columns because of the well-known and remarkable circumstances that, while in the other columns we continually meet with accounts of the most terrible crimes against humanity, commented upon in a very sermonizing and highly moral way, if we turn to the adver-- 12 INAUGURAL ADDBESS ON ASSUMING THE PKESIDENCY tisements of the very same paper, we will find published the most adroit and wicked information as to the place, means and manner of committing the identical crime. Can the public regard him, who gives the publicity to an announce- ment that the means of committing a crime may be obtained at certain specified localities, as other than an abettor of the crime ? Have we reason to rank that antiquated enemy of all mankind, late of Chatham Street, but now awaiting his trial for so-called social crime, as more criminal than the newspapers which published his seductive advertisement ? Is there a real distinction in the degrees of the criminality and responsibility of the sinner who kept the house, and the one who advertised it ? Is he, who pastes quack and illicit advertisements on curb-stones and on lamp-posts, more disre- putable or more criminal than he who publishes them by the thousand from iron palaces ? At what point does the liberty of the press, with its benefits to society, become a public pestilence, an abettor of the most heinous social crimes, and the enemy of humanity.? These are questions this Society may well spend some time in answering. I imagine that I hear the exclamation, why add more to this already overwhelming amount of material for this Society to work upon ? I admit the fact that much, and more than enough, has been suggested ; but, it must be obvious, to all who reflect, that the subjects I have mentioned are but a part of all that will probably come before us. Whether we, as a Society, become famous, or sink into insignificance, will de- pend upon the zeal, intelligence, and perseverance, with which we engage in the work of settling these and other questions which may be presented. There is no reason to hope that our road will be unobstructed. We must be prepared to meet shocking disappointments and disheartening opposition, not to say any thing of impenetrable ignorance. We are be- ginners, and are yet small, but let us keep our standard high, our ambition noble, if not great. Let our motto be that so OP THE NEW YORK MEDICO-LEGAL SOCIETY. 13 appropriately and beautifully given by the poet, in nearly the following words : ' ' The lives of great ones all remind us We may make this one sublime, And, departing, leave behind us Foot-prints on the sands of time. Let us then be up and doing, With a heart for any fate ; Still achieving, still pursuing, Learn to labor and to wait." ,T * REPORT ON CRIMINAL ABORTION. A few words are deemed necessary to explain the origin of the following report. Soon after the startling disclosures in connection with the " professional " abortionists, Wolff and Lookup, the New York Academy of Medicine met on the 18th of May, 1871, and unanimously passed the following resolutions : " Whereas, The pervading crime of abortion as a regularly advertised business has, in this city and county, been hither- to opposed by the medical profession without the uniform and efficient co-operation of the State officers and the courts which has been desired and reasonably expected. "Resolved, That the profession hail the advent of any ad- ministration which vsdll secure it such long-desired support as shall enable it to successfully contend against this wide- spread crime, practised in too many instances, by male- factors possessing, or pretending to possess, medical di- plomas. "Resolved, That Judge Gunning S. Bedford, by his manner of conducting the trials of those notorious abortionists and enemies of mankind, Wolff and Thomas Lookup ; by the high moral tone of his addresses to, and by his clear and specific instructions given to the juries ; and finally, by his prompt and just sentences, eminently honored the name he bears, has done infinite service to society, has merited the commendation and shall have the most cordial approval of the New York Academy of Medicine, as he doubtless will of every member of the profession who properly estimates his duty and morality." * Made to the Society, December 14, 1871. 14 REPORT ON CRIMINAL ABORTION. 15 The sentiments thus expressed were loudly echoed in vari- ous parts of the country. Among other influential medical associations, the Medical Society of the County of Berks, Pa., passed a series of resolutions similar to the above, and dis- patched a letter to Judge Bedford highly commendatory of his ' earnest and decided efforts to arrest the unnatural crime of abortion .... now assuming such fearful proportions in our land." Society had scarcely recovered from the shock inflicted upon it by the two criminals above named, when it was again thrown into a state of alarm by the discovery of the fearful " trunk mystery ! " In the midst of the excitement occasioned by this shocking outrage, the New York Academy of Medi- cine met again on the 21st of September, 1871, and adopted a set of resolutions giving expression to its warm apprecia- tion of Judge Bedford's charge, then recently delivered to the grand jury, on the occasion of opening the Court of Gen- eral Sessions, September 6th, and pledging " all its influence and its efforts in support of any legislative or other measures which our law officers may propose as offering a reasonable promise of mitigating, if not removing, the pestilence of crim- inal abortion which is upon our country." The charge of Judge Bedford, referred to in the preamble to these resolutions, was remarkable for its outspoken decla- ration of a pressing need for more stringent legislation on the subject of criminal abortion. Therein he apprises the com- munity that the " authorities have resolved to strive with all their power to exterminate the traffickers in human life," and expresses a hope that the next Legislature will so amend the part of the statute relating to thfe denomination of the crime, as to make it " murder in the first degree." The press took up the subject, and, in several able edito- rials, advocated the passage of a statutory enactment more stringent than the one now in force. Encouraged by so general and unanimous an expression of opinion, the New York Medico-Legal Society espoused a cause so congenial to its well known aims, and seized the op- 16 KISrOET ON CEIMINAL ABORTION. portunity for which it had been waiting, to appoint a com- mittee of legal and medical gentlemen, with power to consider the practical value of the existing statutes on criminal abor- tion, and to report thereon to the Society, together with whatever suggestions of amendment it might deem expedient. The result of the deliberations of this committee is presented in the following report, which was read and unanimously adopted at, the Society's last meeting, held on the 14th inst., at the College of Physicians and Surgeons, in this city. J. J, O'D. New Yobk, December 22, 1871. Report of the committee appointed by the New York Medico-Legal Society, " to take into consideration the sub- ject of the practical value of the existing statutes in this State relating to the prevention of criminal abortion, to report thereon to the Society, and to present such suggestions for further legislation on the subject as the committee may deem expedient." The committee, appointed in pursuance of the above reso- lution, beg leave to submit the following report : Two important influences, law and public opinion, de- serve to be considered in relation to the practice of criminal abortion : I. The history of public opinion on the subject conveys a forcible illustration of the evil results of erroneous teaching. Had popular views regarding the foetus been the opposite of what they were, and even still are, it is not too much to say that millions of lives, some, maybe of priceless worth to so- ciety, would have been spared. In ancient days, they who claimed to instruct the multi- tude in the theory and practice of morals not only looked leniently on foeticide, but, under certain circumstances, openly recommended it. Plato advocates it in a contingency men- tioned in the " Republic " (lib. v.). Aristotle (" Polit.," lib. vii., c. 17) declared that no child should be allowed to be born alive whose mother was more than forty, or father over KErORT ON OEIMINAL ABORTION. 17 fifty vecus old. Lvsias ("Pleadings, ' quoted by Harpocra- tion) mairjtained that forced abortion was not homicide, be- cause a child in ufeiv was not indued with a separate exist- ence. Such being the teachings of some of the great leaders of public opinion in ancient times, first, with respect to the question of the separate life of the /(r/us in ntero; secondly, on the interference that abortion, far from being a crime, was allowable, and in some cases commendable, it is not in the least surprising that it should have become a practice so prev- alent in after-days as to merit the denunciations of Ovid ("Amoor.," lib. ii.), of Seneca (" Consol. ad Helv.," 16), and of Juvenal {Satire vi., 594). The ancient laws indeed, more circumspect than a mis- guided pubhc opinion, are said to have punished artificial abortion with great rigOT (Cicero pro Cluentio. Stroboeus Serm 73). But among the ancient peoples it was largely practised notwithstanding, imder the unfortunate belief that the foetus, not being alive in ufero with a life of its own, had no special claims to humanity, and no rights which they were, morally, at least, bound to respect. The Romans carried this view to so outrageous an extreme as to hold that iliefatus was a mere excresence of the mother, a simple appendage from which she could free herself as innocentl}^ as slie might be rid of a troublesome disorder. Consequently, induced abortion be- came so common in Eome that the greedy quacks who flocked to her from all quarters could barely supply the de- mand for their services and nostrums. More particularly did the evil prevail, as in our own day and city, among the well-to-do — the so-called respectable classes. To this fact Juvenal bears ample testimony {Satire vi., 591-596). After paying a compliment to the exemplary patience with which the inferior class of matrons bore the pains of labor and the fatigues of nursing, he pours out the phials of his irony on the high-born and pampered dames of his day. " You'll scarce hear tell," he writes, "of a lying-in among ladies of quality ; 18 KEPOBT ON t.'ltlMINAL ABOBTION, such is the power of art, such the force of medicineB pre- pared by the midwife to cause barrenness and abortion." " Sed jaoet aurate vix ulla, puerpera lecto. Tantum artes hujus, tantum medioamma possunt, Quas steriles faoit, atque homines in ventre neoandos Oonduoit." * At length Christianity came, to measure swords with the growing evil. For a time the contest was warm. A society corrupted by ill-gotten wealth and sensual gratification would not surrender such convenient doctrine without a determined resistance. The battle waxed fierce, but the already assured triumph of the purifying faith was postponed by a compro- mise (how originated or by whom proposed does not appear) no less disastrous than the pagan theory it supplanted. By this compromise it was agreed to consider the foitus as en- dued with life only from the date of the maternal sensation called '' qvickemng." Abortions forced after "quickening" were branded as berious crimes, but all so caused before this period were suffered to pass unnoticed. Henceforth " quick" became a word of evil omen. It is true the canon law sub- sequently disregarded this compromise, declared the fa4us alive from conception, and condemned its destruction at any period of itfero-gestation as a great and wicked crime. The Christian Church, to its eternal honor be it said, has ever ad- vocated and enforced the principle of the inviolability of foetal life.* But the mischief could not be undone. A doc- trine, only a degree less heartless than its pagan predeces- sor, took a firm hold on society. How effectually it influ- ences the opinion and practice of our own time, how com- pletely it has permeated all, but more particularly the higher * " Omnes, qui abortus seu foetus immatnri, tarn animati quam inanimati, formati vel iuformis, ej ectionem proouraverint, poenas propositus et infliotas tarn divino, quam humano jure, ac tain per canonicas sanctiones et apostolicas constitutiones quam oivilia jura adversus veros, homicidas inourrere, hao nostra perpetuo valitura constitutione statuimus et ordinamus. — {Reiffenstu^, Jus Canonicum Universum, tome iii. I'arls, 1854. Quoted from Storer's "Criminal Abortion," p. 38, note.) liEPllRT OX CRIMINAL ABORTION. 19 ranks of contemporary society, needs not to be insisted upon here. Among those wlio are competent to pronounce on this ques- tion of " quicl-eiiing,'' there is, however, but one opinion, and to it your committee ask the undivided attention of the com- munity : The fa'tnH is alive from conception, ami all irdentional I'illittg of if is murder. The world is free to discuss the trans- cendental problem concerning the stage of development at which the fwtus becomes endowed with a soul. Some may believe, with Plato, that this event is deferred till birth. Others may hold, with Aristotle, that it occurs at the fortieth day for boys and the eightieth for girls ! Only, let such opin- ions have their due place and weight. Whatever may be their value as evidences of intellectual activity, they lia^-e no bearing whatever on the great practical question of child- murder. If there were never such an existence as a soul, if men perished utterly when they died, laws against murder would still hold good, because laws against murder were en- acted not for the soul's sake, but to preserve the peace and even the existence of society. Opinions such as these now indicated are harjnless enough if jealously confined to the field of abstract speculation. It is only when suffered to in- fluence conduct toward the fo'lus that they become delusive and pernicious errors. Too great, unfortunately, has been their power in this respect ; hence the necessity of combating them and of exhibiting them to the pubhc in their true light, as evils which have long waged war against the dearest inter- ests of society. All such speculations cannot be too strictly excluded from the sphere of practical morals ; and further- more, the public should be taught that the significance at- tached to " quicliening" is unfounded, that the Qurrent deduc- tions therefrom, already indicated, are utterly erroneous and immoral, and warned that the community, whose regard for foetal life is influenced by either, is courting a terrible retri- bution. Herein is ample work for the two great educators of a nation, its pulpit and its press. Equally groundless is the opinion, inherited from pagan- 20 KEPoirr on cbiminal abortion. clom, that the faim, because dependent for existence on its connections Avith the mother, has not a separate life, and con- sequently may be willfully destroyed without incurring the guilt of murder. A moment's consideration will suffice to show the absurdity of this view. All human beings (confining ourselves for the sake of apt illustration to this genus) depend for life on the medium of their existence. Change this medium completely, and they must suddenly die. Now, what ought to be thought of a proposal to excuse murder on the ground that human adults are not indued with independent existences? Yet, monstrous though it would seem, it is the very apology offered, and among some accept- ed, for fcfiticide. II. The point of chief interest, in a legal view of the sub- ject under consideration, centres in the history of the word ''quid'." f JF/iarton informs us that, at common law, the destruction of an infant unborn, ij' it had quickened, was murder. (1 Eus- sell on Crimes, 67i; 3 Coke's Inst., 50; 1 Hawkins P. C, ch. 13, § 16; 1 Hale P. C. H, 34; 1 East P. C, 90; 3 Chitty Crim. Law, 798.) The procuring an abortion on a woman, a/'ler "quickening," was a common law misdemeanor, although neither mother nor child perished. If it were procured upon the woman before "quickejiing," the offender could be convicted at com- mon law of assault and battery upon the woman, although, if such abortion was procured with the consent of the woman before the child had quickened, it was not an indictable offence at common law, for the reason that the child was not then supposed to be indued witJi life. (Commonwealth vs. Bangs, 9 Mass. E., 387.) The statutory laws of New York laid- equal stress on the term "quick," making it the basis of a distinction between the degrees of guilt of criminal abortion. Thus, the Eevised Statutes first enacted, which took effect in 1830, provide that " the willful killing of an unborn qidck child by any injury to the mother of such child, which would be murder if it resulted BEPORT ON CRIMINAL ABORTION. 21 in the death of such mother, shall be deemed manslaughter in the first degree." (2 Eev. Stat., 1st ed., p. 661, § 8.) This section is still in force, never having been repealed. Section 9 provides that " every person who shall administer to any woman, pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any in- strument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall be deemed guilty of manslaughter in the second degree." This last section was subsequently repealed by laws of 1845, ch. 260. Without entering into details respecting the amendments to the statutes on this subject, it will be sufficient to say generally that from 1845 to the present day, section one of the statute against criminal abortion, defining the character and degree of the crime, has obtained the obnoxious term quic]{. In 1869 the Legislature (2 Laws of 1869, chap. 631, p. 1,502) repealed section two of the act of 1845, and section one of the act of 1846, and enacted as follows : Section 1. "Anj- person who shall administer to any woman with child, or prescribe for any such woman, or advise or procure her to take any medicine, drug, substance, or thiug whatever, or shall use or employ any instrument or other means whatever, with intent thereby to produce the miscarriage of any such woman, unless the same shall have been necessary to preserve her life, shall, in case the death of such child or of such woman be thereby produced, be guilty of manslaughter in the second degree." This section omitted the word "qvM\" thereby relieving the prosecution from the necessity of proving a fact almost impossible. It further altered the intent to the production of the miscarriage of the woman, instead of to the destruction of the child. Its defects will be subsequently pointed out. Sec. 2. " Whoever shall unlawfully supply or procure any 22 REPORT ON CBIMINA.L ABORTION. medicine, drug, substance, or thing M'hatever, knowing that the same is intended to be unlawfully used or employed, with intent to procure the miscarriage of any woman, whether she be or be not pregnant, shall be deemed guilty of a mis- demeanor, and shall, upon conviction, be punished by im- prisonment in the county jail not less than three months, nor more than one year, or by a fine not exceeding one thou- sand dollars, or by both such fine and imprisonment." Sec. 3. "Every person oifending against either of the pro- visions of this act shall be a competent witness against any other person so offending, and nasij be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons ; but the tes- timony so given shall not be used in any prosecution or pro- ceeding, civil or criminal, against the persons so testifying. To sum up the whole matter, the law in the State of New York at the present time, upon this subject of criminal abor- tion, stands as follows : 1. " The willful killing of 9,11 unborn 5 /(/c/i; child by any in- jury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed man- slaughter in the first degree." (2 Eev. Stat., 1st ed., p. 661, S 8.) 2. "Every woman who shall solicit of any person any medicine, or drug, or substance, or thing whatever, and shall take the same, or shall submit to any operation or other means whatever, with intent thereby to procure a miscar- riage, shall be guilty of a misdemeanor, and shall upon con- viction be punished by imprisonment in the county jail not less than three months, nor more than one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment." (1 Laws of 1845, chap 260, § 3, p. 285.) 3. "Any person who shall administer to any woman with child, or prescribe for any such woman, or advise or procure her to take any medicine, drug, substance, or thing whatever, or shall use or euiploy any instrument or other means what- ever, with intent thereby to produce the miscarriage of any KEPOET ON CRIMINAL ABORTION. 23 such woman, unless the same shall have been necessary to preserve her life, shall, in case the death of such child or of such woman be thereby produced, be guilty of manslaughter in the second degree." (2 Laws of 1869, chap. 631, § 1, p. 1,502.) 4. "Whoever shall unlawfully supply or procure any med- icine, drug, substance, or thing whatever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not pregnant, shall be deemed guilty of a misde- meanor, and shall, upon conviction, be punished by impris- onment in the county jail not less than three months, nor more than one year, or by a fine not exceeding one thousand doUars, or by both such fine and imprisonment." (2 Laws of 1869, chap. 631, § 2, p. 1,502.) 5. " Every person offending against either of the provisions of this act shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons; but the testi- mony so given shall not be used in any prosecution or pro- ceeding, civil or criminal, against the persons so testifying." (2 Laws of 1869, chap. 631, § 3, p. 1,503.) The defects observable in the existing law, more particu- larly in the first section of the act of 1869, above quoted, may now be pointed out : 1. That section does not justify the procurement of a mis- carriage, except when necessary to save the life of the mother. Cases may, however, occur where, in the judgment of an ex- perienced medical man, premature labor should be induced, and be absolutely necessary to save the life of the child. Hence, the statute ought properly to comprehend either con- tingency. 2. As the section now reads, the offence is declared to be " manslaughter in the second degree," which is a statutory felony and punishable as such (3 R. S., 5 ed., p. 941, § 20), 24 BEPOBT ON CRIMINAL ABOETION. by imprisonment in a State prison " for a term not less than four and not more than seveii years." As the proper name for the intentional destruction of the /mtus is unquestionably murder, it is hoped the time will soon arrive for its punishment as such. It has been truly and forcibly said that an induced abortion, if undertaken before the viability of the foetus, necessarily contemplates and in- tends its death. And it may be added, the same is nearly certain to result at a subsequent period, from injuries in- flicted on itself or its mother during the operation. The sub- sequent death of the latter, when, as too often hapjjens, she succumbs to the operation or its consequences, does not change the character of the crime, but rather adds to it the enormity of a double murder. But it is of importance, as fix- ing the true character of the deed in at least its moral aspect, to bear in mind that an abortionist does not intend the death of the mother. Through all his wickedness and ignorant bungling, it is at once his interest and aim to save her life. But he must always and necessarily intend the destruction of ihe foetus, if he attempts of induces an abortion before the period of its viability.- Consequently as already observed, the crime is, in regard to ih.e /(stus, an act of cool, deliberate, unrelenting murder, or attempt at murder, and the mother is often, undoubtedly, particeps criminis. In vipw of the foregoing fact, it has been suggested by some of the most influential jurists of this city that the of- fence specified in the first section of the act of 1869 should be made a capital felony. One of these distinguished gentle- men. Judge Bedford, to whom the committee is indebted for valuable assistance, has since explained that his advocacy of this view was only intended for its effect on " professional" abortionists. However intrinsically just such a view may be, and is in the opinion of your committee, any serious attempt to carry it into practice at the present time would probably result in lessening the chances for a conviction in any case. This is evident from the recent trial of Rosenzweig in the New York General Sessions, when two jurors united in a re- REPORT ON CRIMINAL ABORTION. 25 commendation to mercy, thus showing a disinclination to convict even of a felony, though the prisoner did not attempt to justify his conduct, but rested his defense upon his al- leged innocence of the whole matter. And, under the section of the Eevised Statutes still in force (2 R. S., 1st ed., p. 661, § 8), it is questionable whether, when the facts of the case warrant the indictment as for murder under that statute, a conviction therefor would not be upheld as good. For these and similar considerations your committee have not thought it expedient to advocate any change in the de- nomination of the crime under consideration. They have chosen what they believe to be a more practical course ; one which, if adopted, will, they apprehend, give an eifectual check to the practice of criminal abortion. There can be no question, in a community so grievously shocked as this by the terrible deeds of certain abortionists lately exposed, that some serious defect in the existing sta- tutes, which not even the punishment at present authorized by law to be inflicted can overcome, renders them less effica- cious than they ought to be in checking child-murder. A statutory enactment punishing the crime with death would be the most effectual preventive if it were practicable ; but, while there remains a doubt on this subject, such a change may be substituted in the degree of punishment already awarded as will doubtless prove of almost equal effect. The maximum of p nishment now inflicted is clearly insufficient for this purpose. In the following act it is proposed to make the offense a felony without specific name, and to fix the minimum of punishment at not less than four years, leaving the maximum to be proportioned to the degree of guilt, as shown by the facts in the specific case, at the discretion of the court. Such discretionary power seems requisite to meet certain aggravated cases of criminal abortion. After the jury have found upon the facts of the case and returned a verdict, say of guilty, it is then the privilege of the judge, be- fore passing sentence, to consider the circumstances peculiar to the criminal act. It may be a first offense, or other suffi- 26 KEPOKT ON tiEIMINAL ABORTION. cient reasons may lead him to mitigate the severity of the punishment which he is called upon to inflict. On the other hand, the criminal before him may be a " professional " abor- tionist, a being who recognizes no higher law than his own base interests, whose heart has long ceased to know a humane feeling, whose soul is freighted with abominable crimes, whose hands are stained with the blood of innocent children, victims of his foul lust for gain. The sentiments of our common humanity revolt against so vile a wretch. Shall he be suffered to return to his old haunts and his old evil ways, with appetite whetted for more blood, after a few years spent in prison ? All experience utters a solemn warning against so blind a policy. .3. The first section of the act of 1869, while providing for the punishment of any person who shall advise or procure any woman with child to take any medicine, etc., strangely enough, omits to provide for the punishment of any person wim sJiall advii^e or 23rocu.re the use or employment of any in- strinnent or other means. So that, as the law stands, if the seducer, or person desirous of causing the miscarriage of the woman, intentionally advises or procures her to take any medicine, he is guilty of a felony ; but quite otherwise if he advises or procures iiisfrnments to be used for the same purpose. The passage of the following act will, it is belieted, remedy the defects in the existing law : An Act for the better prevention of the procurement of abor- tions and other like offenses, and to amend the laws rela- tive thereto. The People of the State of New Yorl; represented in Senate aiifl Assembly, do enact as folloius : Section 1. The first section of an act entitled " An act re- lating to the procurement of abbrtions and other like of- fenses," passed May 6, 1869, is hereby amended, and shall read as follows : Section 1. Any person who shall administer to any woman. KEPOET ON CRIMINAL ABORTION. 27 or advise or procure her to take anj- medicine, drug, sub- stance or thing whatever, or shall use or employ, or advise or procure her to submit to the use or employment of any instrument or other means whatever, with intent thereby to produce the miscarriage of any such woman, unless the same shall have been necessary to preserve her life or that of such child, shall, in case the death of such child or of such woman be thereby prodiiced, be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in a State prison for a term not less than four years. Sec. 2. The eighth section of the first article of the second title of the first chapter of the fourth part of the Revised Statutes is hereby repealed. Sec. ?). This act shall take effect immediately. James J. O'Dea, M.D., Cliairman. Elbridge T. Gerry, George F. Sheady, M.D., William Shrady, Stephen Eogebs, M.D., ex-(0cio Member. Gunning S. Bedford, Mevihev by Invitntion. [This Act was subsequently passed in the following form, and is now the law on this subject. — Ed. J LAWS OF NEW YORK.— By Jnfhorify. C<»iniiittee : [Every law, unless a different time shall be prescribed therein, shall com- mence and take effect throughout the State, on and not before the twentieth day after the day of its final pas.sag6, as certified by the Secretary of State. Sec. 12, title 4, chap. 7, part 1, Revised Statutes.] Chapter 181. An Act for the better jjrevention of the procurement of abor- tions and other like offenses, and to amend the laws rela- tive thereto. Parsed April 6, 1872 ; three fifths be present. The People of the Slate of New Yorl; represented in Senate nnd Assembly, do enact asfnllows : Section 1. Any person who shall hereafter willfully admin- 28 REPORT ON CRIMINAL ABORTION. ister to any woman with child, or prescribe for any such woman, or advise or procure her to take any medicine, drug, substance or thing whatever, or shall use or employ, or ad- vise or procure her to submit to the use or employment of any instrument or other means whatever, with intent there- by to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve her life or that of such child, shall, in case the death of such child or such woman be thereby produced, be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in a State prison for a term not less than four years or more than twenty years. § 2. Any woman pregnant with child who shall take any medicine, drug, substance or thing whatever, or shall use or employ, or suffer any other person to use or employ, or submit to the use or employment of any instrument of other means whatever, with the intent thereby to produce the miscarriage of the child of which she is so pregnant, unless the same shall have been necessary to preserve her life or that of such child, shall, in case the death of such child shall be thereby produced, be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the State prison for a term not less than four years or more than ten years. § 3. Every person who shall administer to any pregnant woman, or prescribe for any such woman, or advise or pro- cure any such woman to take any medicine, drug, substance or thing whatever, or manufacture, advertise or sell any such medicine, drug, substance or thing whatever, or shall use or employ any instrument, or other means whatever, with in- tent thereby to procure the miscarriage of any such woman, shall upon conviction be punished by imprisonment in a county jail, or in a State prison, not less than one nor more than three years, in the discretion of the court. § 4. Whosoever shall unlawfully supply or procure any advice, instruction, medicine, drug, substance or thing what- ever, knowing that the same is intended to be unlawfully used or employed, with intent to procure the miscarriage of REPOKT ON CRIMINAL ABORTION. 29 any woman, whether she be or be not pregnant, shall be deemed guilty of a misdemeanor, and shall upon conviction be punished by imprisonment in the county jail not less than three months nor more than one year, or by a fine not ex- ceeding one thousand" dollars, or by both such fine and im- prisonment. § 5. All acts and parts of acts inconsistent with this act, are hereby repealed. S 6. This act shall take effect immediately. State op New York. ) Ofiice of the Secretary of State. [ '" ' I have compared the preceding with the orignal law on file in this office, and do hereby certify that the same is a correct transcript therefrom and of the whole of said origi- nal law. G. Hilton Scribner, Scx-refary of State. HOMICIDE BY POISONING. By Wooster Beach, M. D. * In all civilized communities, the most important object of legislation is the protection of humaia life. The highest crime known in our law is homicide, and it is the only one punishable by death. The growth of civilization appears to go hand in hand with efforts taken to prevent the shedding of human blood. The savage finds his aged parent is unable conveniently to take part in the rovings of his tribe, and he knocks him on the head without compunction of conscience or calling forth a protest from his associates. A little higher up in the scale, the murderer is, perhaps, punished, but life is valued so low that the death penalty is inflicted for comparatively trivial crimes. We reach at last the enlightened nations, where the taking of human life is ranked by law as the greatest of crimes. The history of our own land embraces a time when the death penalty was in use for lower grades of offences than at present. As increased progress in intelligence and morality in society advance the value and importance of life, it seems not unlikely that we may, in time, safely look for the entire abolition of capital punishment. With the increased appreciation of the value of life has come a desire for its prolongation and protection, and for the fulfillment of both these objects society looks to the lawyer and to the physician: the latter, to point out the various dangers tending to shorten or destroy lite, and suggest means * Keftd before the Society, December 14, 1871. 30 HOMIdDE BY I'OISONIKU. 31 to avert them ; and the former, to enact and admuiister laws that shall carry such means into effect. Administration of poison as a means of murder has been common as far back as history extends, and that it is still frequently practised our newspapers almost daily attest. We are all familiar with the Borgias of the sixteenth century ; with the Aqua Tofana, a poison used to a fearful extent in Italy, with which the female whose name it bears confessed to having, by its use, caused the death of six hundred persons. Christison says : " The crime of poisoning, from its nature, must be a secret one. But little apprehension need be enter- tained of the art of secret poispning as understood by Tofana or Brinvilliers, or as it might be improved by a modern imi- tator. It seems to have escaped the attention of those who have written on the subject, that the practice of such an art requires not only the knowledge of a dextrous toxicologist, but also of a skilful physician ; for success must depend on the exact imitation of some natural disease." Notwithstand- ing this assertion, we have reported every few months a repe- tition of the Borgia horror, although not on so large a scale as the original. In the year 1828, Margaretha Gottfried, a woman in affluent circumstances, residing in North Germany, was arrested for murder by poisoning. For over fifteen years she had been practicing her fatal art undetected. The death of fourteen persons had been traced to her, and some twenty others were known to have taken her deadly draughts; but without losing their lives. Arsenic was the poison employed. At about the same period a servant named Zwanziger, a resi- dent of Bavaria, gave arsenic to- some fifteen individuals without exciting suspicion. These cases occurred at the beginning of the present cen- tury, when the study of toxicology was not by any means neglected, the authors then treating of that subject still ranking high as authority, and in a country where the police system is the most perfect in the world, and where all the advantages which science lends to the detection of crime are 32 HOMICfDE BY POISONING. most faithfulh' applied. Within a few montlis a woman in Baltimore was accused of crimes precisely similar to those of Zwanziger and Gottfried, and in Massachusetts at present a woman is about to be tried for causing a number of deaths under like circumstances. As a matter of course, or almost as a matter of course, it is only the last crime committed by the individual that is detected — that murder being brought to light by some accident, or the want of care in the poisoner, the natural effect of his previous success. It is to the consideration of the chances of homicidal poison- ing remaining undetected that this paper is given. It will be its pvirpose to show that there is a strong probability — it may safely be said a certainty — that undetected murder by poison- ing is of frequent occurrence. From an examination of a large number of homicides of this class, I find that, as a rule, suspicion against those com- mitting them has been aroused by some accident, and not through the instrumentality of police regulations, or other means usually employed to discover crime. To illustrate this, as well as some other points further on, I beg leave to call attention to a few cases, the outlines of which are p]'ob- ably familiar to most of my hearers. In 1857, the wife of James L. Stephens died after a short illness. She was attended by two physicians, one succeeding the other in the treatment. They treated her during the attack till the time of her death, when the one in attendance last gave a burial certificate, which followed the usual course prescribed by law, being presented to the City Inspector for a permit, on which Mrs. Stephens was interred, as some others are, without any one being the wiser as to the cause of her death. To be sure, there were some suspicions of foul play in the minds of one or two of the relatives of the deceased ; but the apparent wisdom of the attending physicians, who saw nothing unnatural in the woman's death, allayed them. Subsequent events transpired, however, the effect of which counterbalanced the profound learning of the physicians, and pointed to Stephens as the murderer of his wife, A year HOMICIDE BY POISONING. 33 after her death, the body was disinterred, arsenic was dis- covered in it, and with this and other evidence he was con- victed and executed. Here is a case where the most common of all poisons was given, its effects clearly seen by two physicians, and yet no suspicion of the true cause of her demise was entertained by them. The burial certificate stated that inflammation of the stomach was the cause of her death. George C. Hersey was executed in Massachusetts for the murder of Betsey Frances Tirrel hj administering strychnine to her. She had become pregnant by him, and the conceal- ment of the fact was the apparent motive of the crime. I quote an extract from the opening sketch of the District Attorney, giving a lucid history of the case. After saying that Hersey had been on an errand for the family, he proceeds as follows: "On their arrival at the house, at about eight o'clock in the evening, the defendant, after disposing of the horse and carriage, came into the room in which the family were sitting, and immediately prepared to retire to his room for the night, which was so unusual a thing at that early hour that Mrs. Tirrel asked him if he was going to bed so soon. He replied, ' Yes ; ' giving as a reason that he had a violent headache, and immediately went up to his room. The family then for the first time heard him speak of his headache. Did he then in truth seek his couch for rest and as a cure for bodily ills? Or did there remain some needed preparation for the work that night to be accomplished? Was there a fatal dose to be poured out and made ready for his unsus- pecting victim, so that she might receive it as she passed his door? " I fear that his malady was one for which the couch had no cure, and which drives sleep from the pillow. ******** "It will conclusively appear in evidence that at this time Betsey Frances was advanced three or four months in a state of pregnancy, and we expect to satisfy you that the defendant was the father of the child. 34 HOMICIDE BY POISONING. " It is the theory of the government, authorized and fullj sustained, we think, by the facts in the case, that, having, sur- rendered her virtue and her honor to George 0. Hersey, the defendant, and ha\'ing found that the consequences of her in- discretion were about to bring ruin on herself and shame and disgrace upon her family, she came readily to desire that she might be relieved from her situation by the use of some drug. "To the defendant, the author of her misery, she looked for the help ; and to whom else could she turn for help in such an hour? She knew that he was to prepare for her that night a potion which she, in her confident simplicity, believed would save her from shame and restore her piece of mind, which her own folly had served more to distract than even that dispensation which had bereft her of her sister Mary. Confident in this belief, she was more cheerful and happy that night than she had been weeks before. "Before Betsey Frances lay down upon her bed, upon which also slept the young sister Louisa, she left the room for a moment ; but whither she went or upon what errand, the young, drowsy sister took no note. After some delay in preparation, she finally got into bed beside Louisa, who in- stantly fell into the gentle sleep of childhood. " We know no more until, after a short space of time, not exceeding half an hour, the young sister awoke in alarm, and found Betsey Frances, apparently speechless, trembling and twitching in every limb. The little girl called, 'Mother, Frances is in a fit ! ' The mother heard the cry, and was listening to hear it repeated. In a moment Hersey, who was quick to detect the sound of distress from that room, rushed into the room of Mr. and Mrs. Tirrel, and sommoned them , saying, 'Frances is in a fit or something.' After calling Mr. and Mrs. Tirrel, the defendant led the way into Frances' room, he entering first, the father next, the mother following. In answer to the earnest enquiry of the mother, ' "What is the matter?' Frances answered only, 'I shall die; I shall die ;' and once said, ' Give me some physic ;' and this is all HOMICIDE BY POISONING. 35 which the spasmodic action of the muscular system allowed her lips to xitter. A few mtite spasms of a singular character, the peculiarities of which were carefully noticed and will be minutely described, ended her earthly existence." I extract from the evidence on the trial the testimony of the physician who had attended the family, and who made the autopsy in the case : " Appleton Howe, sworn : I was first called to deceased by Hersey, and, when I arrived where she was, I found her dead. After consultation with her father, I decided to make a post-mortem examination. Mr. Hersey requested to be present, and was allowed to do so." After describing the manner of making the examination, and the appearance of the heart, lungs, and so forth, he pro- ceeded to testify : " The next step was to examine the abdo- men. The question came up whether we should commence the examination at the stomach or at the pelvis, and it being determined that it would be more convenient for the indi- vidual holding the knife to begin at the lower part of the abdomen, the small intestines were raised at the pelvis, and in doing so pregnancy was brought to notice at once. Dr. Tower said, 'Look here,' pointing to the womb. I saw enough to convince me that pregnancy existed. I then turned to Mr. Hersey, who stood a, little to my right and to the back of me, and told him we should be glad to have him leave the room, as we should like to be alone. He immediately left the room, and I did not see him again. " " It was decided to communicate the condition of things to the friends, and it was first communicated to Mr. Tirrel's sister. " I then determined to call (t coronet', and let him investigate the case. Mr. Tirrel directed me to take such measures as I thought best, and I immediately called Coroner Birney." The autopsy was concluded after the coroner arrived. . There had been two sudden deaths in Mr. Tirrel's family, otherwise it is not probable that the post-mortem examina- tion would have been made. Although the moral evidence 36 HOMICIDE BY POISONING. against Hersey was strong, and the symptoms indicating death by strychnine now seen plain, it is evident that the physician who examined the body was not by any means certain that death had resulted from poison. It was not until he discovered that the deceased was preg- nant that his suspicions were sufficiently awakened to call the coroner. Had he not have discovered pregnancy, it is likely that congestion of the lungs or of the brain, or some- thing else as indefinite that may be found in any dead body, would have satisfied him as to the cause of death. The mistakes of the doctors in these cases will by many be ascribed to stupidity, but I believe that similar errors may be made by the majority of physicians. As a rule, very little is known by the profession of toxicology, and death by poison will most naturally be ascribed by the doctor to the disease most resembling the action of the poison. It is a grave affair to assert to a family that one of their members may have been taken off by poisoning, and a medical attend- ant might well hesitate before making such a charge. Christison says : ''Tt is now laid down by every esteemed author in medical jurisprudence that the symptoms, how- ever exquisitely developed, can never justify an opinion in favor of more than high probability " ; and, again, when treat- ing of arsenic : " The present doctrine of toxioologists and medical jurists seems iiniversally to be that symptoms alone can never supply decisive proof of the administration of arsenic. This opinion is certainly quite correct when ap-. plied to what may be called a common case of poisoning with arsenic, the symptoms of which are little else than a burning pain in the stomach and bowels, vomiting and purging, feeble circulation, excessive debility and speedy death All these symptoms may be caused by natural disease, more particu- larly by cholera, and consequently every sound medical jurist will join in condemning unreservedly the practice which prevailed last century, of deciding questions of poisoning in such circumstances from symptoms alone." Cholera moAus, peritonitis, the violent invasion of the HOMICIDE BY POISONING. 37 exanthemata or of fevers generally, may produce rapid death resembling the action of poison by arsenic. Another disorder that, so far as I can learn, has not been mentioned as resembling irritant poisoning, is a violent emesis that frequently proves fatal in a very short time, and occurs to those addicted to the immoderate use of liquor. In my experience in the coroner's department, I meet such cases almost daily. I will not take time to give a full de- scription of the ailment, but merely state that it is marked by persistent and obstinate vomiting, excessive thirst, con- siderable prostration, and usually terminated by a sudden and generally unexpected sinking of the vital powers, fol- lowed very soon by death. I have known the cramps and pain attending hsemorrliage from a ruptured aneurism to have caused suspicion of death by irritant poison, and the like symptoms caused by rupture of the sac in an extra uterine fcBtation have produced a simi- lar impression. The effects of the narcotic poisons closely resemble those from natural disease. Epilepsy, meningitis, compression of the brain, apoplexy, or fatal syncope may cause death in a way not easily distinguishable from that resulting from nar- cotism A case illustrating this point came under my notice a short time ago. A negro, aged 4.5, porter by occupation, was reported to the coroner to have died suddenly. On investigation it was found that he had attended to his business faithfully for a week before his death, apparently in good health, only com- plaining of some headache. At five in the afternoon he left his store on account of his headache becoming more severe. He went home at once, and shortly after arriving there he became slightly, then fully unconscious, fell off in a profound sleep, from which he could not be aroused, and continued in this state till he died at five the next morning. With the exception of the headache, which, if it had not been so speed- ily followed by death, might have been unnoticed, the case 38 HOMICIDE BY POISONING. could have easily passed for one of narcotic poisoning. I confess to some surprise when, on opening the brain, I dis- covered unmistakable signs of acute meningitis. No physi- cian had attended the deceased, and I was obliged to rely upon the statemeut of friends for a description of his symp- toms. I will describe another case of interest where two physi- cians were in attendance. A young girl of about ten had been treated for what appeared to be a slight ailment by an irregular doctor, but, her case becoming more alarming, two physicians, both intelUgent men in good standing, were called in, and she died very soon after they saw her. She had re- ceived a mixture from the first medical attendant, to which her death was attributed by the friends, and their convictions appeared to be shared by the physicians. A druggist who had seen the mixture declared that it contained aconite, and the symptoms preceding death were thought by the physi- cians to have been the effect of that poison. Autopsy re- vealed, in this case, acute meningitis ; and a little more care in a subsequent examination of the suspected mixture indi- cated that it contained lobelia instead of aconite. Now, in this case, suppose the order of things to have been reversed, and death from aconite had actually taken place. Could a physician be accused of special ignorance if he attri- buted the fatal result to meningitis ? Poisoning by strychnine may be mistaken for tetanus, hy- drophobia, or almost any form of disease in which convul- sions occur. To be sure, the violence and character of the convulsions from the poison, together with the rapid fatal termination, ought to distinguish its effects from those of disease ; but it must be remembered with this, as with other kinds of poisoning rapidly fatal, that their actions are rarely seen by the physician, and frequently not by any one, but, when noticed by non-medical persons, it is during a time of great confusion and excitement naturally connected with a violent illness and a death-bed scene. A history gathered from the statements of such observers would make it very HOMICIDE BY POISONING. 39 difficult for ever so intelligent a physicinn to definitely deter- mine the exact mode of death. A young man of about 21, while in the "West, lost the sight of both eyes by the accidental discharge of a gun, the ball passing in close contiguity to the brain He was brought to this city almost immediately afterwards, where efforts were made to recover the use of his eyes, but were abandoned in a few months as hopeless. From the time of the accident he was much depressed in spirits, and seemed to evince ajsuicidal tendency, causing him to be closely watched by his parents. He died suddenly about six months after reaching the city. His mother was with him during the time just preceding death, and she described his symptoms and conduct as follows : The first that she noticed unusual about him was that he complained of slight nausea when he lay down upon a lounge in the room. He remarked that he would die, but did not appear particularly ill. Soon after -he was seized with con- vulsions, which were described as slight. Their character could not be well made out from her description, but from what could be learned they did not appear those of strychnine poisoning. A well-known physician of high standing was called in after death, and, on closely questioning the mother, he decided that some brain trouble produced by the musket- ball had caused death. Suicide by strychnine had been considered, but there seemed to be no possible waj^ in which the deceased could have procured that poison, and the manner of death was thought to argue against it. The case was referred to the coroner. On post-mortem examination, the brain was found normal, as, in fact, were all the other organs. Near the pyloric end of the stomach was discovered a small amount of white crystallized matter, the appearance of which, in spite of evi- dence against death by strychnine, we were compelled to ascribe to that drug. It yet remains a mystery how a totally blind person, carefully watched with the object of preventing 40 HOMICIDE BY POISONING. suicide, should have procured that poison. I should say that I subsequently proved, by testing, the article to be what we had suspected. The effects of cyanide of potassium, although exerting its deadly power almost instantaneously, have sometimes been mistaken for disease of the heart, apoplexy, and other natural diseases causing death. These allusions to the similarity between the action of cer- tain poisons and disease are made with the object of showing that it would not be at all difficult for an individual to die of poisoning, and his death to be ascribed by the physician at- tending him, or one called immediately after his death, to natural causes. It is almost unnecessary to say that, where a motive for murder is strong, and an opportunity occurs for its commis- sion without detection, the crime has been and will be com- mon among us. It is not with the low and ignorant only the offence is to be looked for. History, as well as daily observation, teaches us that the most deeply laid and atrocious murders have been traced to individuals of great intellectual attainments, and occupying high places in society. Most of us know of the killing of Parkman by Professor Webster, the many murders of Wainwright, as described by Dickens, and of the man Palmer, an English case. Within the last few days, the murder of his wife by John Selby Wat- son, has attracted considerable attention, and I take the liberty of quoting entire the leading article of a daily paper in reference to it : "The perpetration of wife murder is not so unusual an occurrence as to excite any very considerable attention on the part of the public, unless the circumstances of the crime are of an extraordinary character. When, however, an edu- cated Episcopalian clergyman, over sixty years of age, mur- ders his wife, who is almost bis equal in years, on his own hearthstone, and then endeavors to conceal the deed by attempting to remove her body in a chest, the case is decid- HOMICIDE BY POISONING. 41 edly interesting. Such are the principal facts in the Stock- well tragedy, the account of which we have already pub- lished. " The Eev. John Selby Watson graduated with high honors at Trinity College, Dublin, thirty-three years ago. One year after taking his degree he was ordained, and became a minis- ter of the Church of England. He did not long officiate as a parochial clergyman, for he was soon elected headmaster of the Stockwell Grammar School in Surrey. This position he had retained for upwards of twenty-five years previous to the 6th of October, 1871, living, with his wife and a female servant, in the neighborhood of the school. He was in com- fortable circumstances, and was, to all appearances, happy in his family relations. After the custom of many teachers, he became an author. Several volumes of translations in Bohn's Classical Library — a series of works with which col- lege students, to whom they are known as ' ponies,' are quite familiar — were written by him. He edited Pope's Homer, and a number of Latin and Greek authors, besides writing a book on 'The Keasoning Power in Animals.' It seemed as if he had more than most men to make his old age content. He could look back upon a career both creditable and satisfac- tory. He was not exposed to the sufferings of extreme poverty. He enjoyed the companionship of his books, and the affectionate regard of his pupils, who, we are told, were wont to seek his assistance and advice when in trouble. "If there seemed a person in the world unlikely to do murder, this was the man. Yet, on the second Sunday of last month, in the evening, while the servant was absent, he killed his wife by crushing her skull with the butt of a pistol. On the servant's return, he informed her that his wife had gone to the country, to remain five or six days. He retired as usual, spent the two following days in arranging his books and papers, and on the succeeding Wednesday took poison, but was not killed by it. On the arrival of the physician summoned by the servant, he handed him a paper, on which were written these words : 42 HOMICIDE BY POISONING. " ' 111 a fit of fury I have killed my wife. Often and often have I endeavored'to restrain myself, but my rage overcame me, and I struck her down. Her body will be found m the little room off the library. I hope that she will be buried as becomes a lady of birth and position. She is an Irish lady, and her name is Anne. The key is in a letter on the table.' " It has often been doubted whether intellectual education tends in any wise to repress crimes against honesty. The life of Bacon is frequently cited as evidence that it does not. Proude, the Bnghsh historian, maintains that our modern education has only increased the relative proportion of rogues in the community. 'I doubt very much indeed,' he says, * whether the honesty of the country has been improved by the substitution so generally of mental education for indus- trial' As to deeper and darker crimes, however, the question is still more important, and far less easy to answer. It is difficult to believe that intellectual culture exerts no influence to prevent the commission of murder and kindred offences. To say that moral education alone can do this, even if the truth of the proposition be admitted, explains nothing ; for the mere fact of intellectual culture must affect the moral faculty, and must affect it in some proportion to. the extent aad thoroughness of such culture. This murder in England is the act of a man of superior mental acquirements. His familiarity with the moral law is of no moment, because the instances of its violation by its mo^t attentive students are sadly numerous in the history of crime. The noteworthy fact is that the most Hberal education, followed by years of literary toil, and consequent increase in intellectual culture, will not suffice to restrain a man from the commission of the highest crimes." In this case, although the note of Watson says that he killed his wife in a fit of fury, it is improbable, from his con- duct afterwards in hiding the body, and other circumstances. The murder was, without doubt, premeditated. Criminal records of all countries shows deliberate murders almost without number by stabbing, shooting, drowning, beat- HOMICIDE BY POISONING. 43 ing, and many other methods, but homicide by poison is com- paratively rarely observed. In this city, for example, we have some fifty homicides a year, but there has been no conviction for murder by poison in several years. Is it probable that none have occurred? In view of the ease with which murder of this kind can be accomplished, of the chances against its detection, of the strong motive in many wicked persons to commit the crime, I do not think I can be accused of a distorted imagination or of great exag- geration when I assert that, for one homicide by poison that comes to light, there are ten that are never known except to the perpetrator and to Him who knoweth all things. The annual number of suicides in this city averages about one hundred. The means employed for self-destruction are various, but quite uniformly one-third of those ending their own existence do so by poison. Is it not a fair inference that, if poison would be thought of by a certain number of individuals as a means of taking their own life, it would enter the minds of an equal number of other individuals as a means of taking the lives of others ? Mur- derers and suicides, though perhaps not to be compared with one another as far as guilt is concerned, would probably be equally well acquainted with poisons and their mode of action, and the one would be as likely as the other to make use of them in carrying out their purpose. The machinery for the administration of justice is not to be depended upon to make the first discovery of a homicide of this class. Accident almost invariably takes the initial step in pointing out the crime ; but, when suspicion is once aroused, the expert detective, the acute lawyer, and the skil- ful chemist combine to unearth it, and mete out justice to the guilty one. Undoubtedly modern science has f^iven valuable aid, and continues every day to add strength to the law in accomplish- ing this object. The wholesome fear to the criminal exerted by the adroitness of the chemist in bringing secret murder to light certainly exerts a strong influence in preventing crime. 4A HOMICIDE BY POISONING. but we need something more for the protection of the com- munity. We want to know with certainty the precise cause of death or of an attack of illness afflicting any one of its mem- bers, and it is only in this way that we can positively know that the poisoner is not at work among us. That this object is not now attained, even in cases where suspicion should have been excited, I think I have shown. Can it be done ? I believe it may, at least to answer the purpose indicated, and it is on the medical profession that the duty of accomplishing it falls. In the first place, jjhj'sicians in general practice should be better versed in medical jurisprudence, and more especially in toxicology. Our colleges now only touch on these subjects, and that mostly with the object of not leaving the student entirely un- acquainted with the duties of a medical witness. Were forensic medicine more thoroughly and universally taught, even in its present rather neglected state, we would have in the physician a guardian of the lives of our citizens in every household, and it would be almost an impossibility for homicide by secret poisoning to occur. With increased attention to the subject, our acquain- tance with it would extend, and more careful study would so perfect the science that much that is now vague and un- certain in it would be replaced by positive and substantial knowledge. Symptoms, especially, upon which the medical attendant must mostly rely for his discovery of illness by poison, would, with greater care in observation and classification, be adequate to reduce to a certainty what now can only be considered a probability. There are many changes in the mode of admin- istering the law that would add to the certainty of detection of secret poisoning, but their consideration would furnish abundant material for another paper. I will here merely al- lude to these changes, without now attempting to show how they could be carried out : HOMICIDE BY POISONING. 45 First. All dead bodies should be viewed by a proper medical officer before burial. Secoud. Post-mortem examinations should be more fre- quently and more thoroughly made. Third. A chemist appointed by government should always stand ready to make analyses when required. Fourth. The bureau that inspects certificates of death and grants permits for burial should use greater circumspection in its operation. Fifth. No body should be interred on a burial certificate granted by an uneducated physician. f MEDICO-LEGAL POINTS IN THE CASE OF DAVID MONTGOMERY. By William A. Hammond, M. D. , P.IOFESSOR otr DISEASES OF THE MIND AND NERVOUS KYSTEM, AND OF CLINICAL MEDICINE I-iTHtt BELLEVUE HOSPITAL MEDieAL COLLEGE, ETC. In the spring of last year I was requested by the District Attorney of Motiroe County, in this State, to read a transcript of certain evidence which had been adduced at a prehminary examination in the case of David Montgomery, indicted for the murder of his wife. Upon a careful consideration of this evidence I gave it as my opinion that epilepsy of itself was not sufficient to destroy responsibility, and that, though the prisoner had probably suffered from occasional epileptic seizures, there was nothing to show that the crime of which he was accused was in any way the result of such a paroxysm.. On the contrary, the circumstances appeared to indicate that the prisoner acted with deliberation and full reason. I, however, stated that I could not give a definite opinion on these latter points with- out examining the accused. A preliminary examination had been made before a jury to determine the mental condition of the prisoner, the law of the State of New York not allowing of the trial of a person not of sound mind. A commission, composed of physicians, examined him, and, though they reported that he was insane, other testimony to the contrary was given, and the jury disa- greed on the question submitted to them. As this result 'Bead .January 11th, 1872. 46 CASE OF DAVID MONTGOMEllY. 47 was equivalent iu law to a declaration of sanity, the trial was ordered to take place. The result was a conviction of murder in the first degree. The medical experts who supported the theory of the prisoner's insanity were Dr. Cook, of the asy- lum at Canandaigua, and Dr. Gray, of the XJtica Asylum ; those who thought differently were Drs. Moore and Mont- gomery, of Eiochester, and myself. Two careful examina- tions of the prisoner left no doubt on my mind of his entire responsibility for the murder. At the same time, there was no question that his intellect was undeveloped, and that he had had occasional paroxysms of epilepsy. There was, how- ever, no mental aberration, and the circumstances of the deed and his subsequent conduct were such as to shut off all idea of unconsciousness. It by no means follows that an individual suffering from epilepsy is not as fully responsible for his actions as healthy persons. Reynolds, who has written the best work on the subject in the English language, states that the disease in question, even when fully pronounced, does not necessarily involve mental change. In thirty-eight per cent, of his cases the mind was unaffected in any way. He further declares that, while considerable intellectual impairment exists in some cases, it is the exception and not the rule. And also that ulterior mental changes are rare. Falret, in his valuable essay on the " Mental State of Epi- leptics " (" L'Etat mental des Epileptiques ") says: " The first question which naturally presents itself to the mind, relative to the medico-legal relations of epilepsy, is this: Should all the epileptics who commit criminal acts be regarded as in- sane, and therefore irresponsible ? Some physicians, laying too much stress on the eccentricities of character and of con- duct observed with the majority of epileptics, even with those who have preserved all the appearances of reason, declare for the affirmative. They contend that the simple proof that an individual is suffering from epilepsy is sufficient to acquit 48 MEDICO-LEGAL POINTS IN THE liim of criminality ; as not having enjoyed mental freedom at the moment of accomplishing the act imputed to him. A doctrine so absolute cannot be accepted without reserve. It extends, to boundless limits, the sphere of irresponsibility, and, if generally adopted by physicians, would greatly lessen their authority in the eyes of magistrates, who will never ad- mit that the sole fact of epilepsy is Sufficient to absolve an accused person. Physicians who only observe the epileptics of insane asylums may be inclined to adopt this absolute opinioni In fact, notwithstanding the essentially intermit- tent character of the intellectual troubles with epileptics, the frequent repetitions of the accessions of delirium leave gen- erally, in the minds of those who experience them, evident and durable traces even in the intervals of the paroxysms. But when we do not restrict our observation to the epileptics who are contained in lunatic asylums, when we extend it to all those who live in society without any one suspecting the existence of this disease, it is impossible not to accord to a certain number of epileptics the privilege of moral responsi- bility, if not during their whole lives, at least during a long period of their existence. " The question, therefore, of the responsibility or irrespon- sibility of epileptics cannot be defined in an absolute manner, since we must consider certain epileptics as guilty of the acts imputed to them; at certain periods of the disease, the appre- ciation of this responsibility becomes extremely delicate in each particular case. " Thus the only practical manner of putting medico-legal questions relative to epilepsy and mental alienation is that which has been hallowed by custom. Was the individual of sane or insane mind when he committed the act for which he was arraigned before the bar of justice? If he was insane, he ought to be considered irresponsible ; if not, he ought to be condemned as guilty." It is very certain, therefore, that the mere fact of the existence of epilepsy in a person accused of crime is not suffi- cient to abrogate responsibility. My own experience abun- CASE OF DAVID MONTGOMERY. 49 dantly supports this view; aud it is well kaown that some of the greatest men who have ever lived and who were remark- able for their intellectual vigor —Julius Caesar and Napoleon Bonaparte, for example — were epileptics. Cases have been under my observation in which the disease had lasted for many years without apparent mental, derangement or failure. It frequently happens that the insane in lunatic asylums are at the same time epileptics. But insanity with epilepsy is a very different thing from the insanity which results from epilepsy. It is for this reason that Falret, in the foregoing quotation, attaches little importance to the views of asylum physicians on this subject. And his opinion is the more valu- able, as lie is himself the superintendent of a large asylum in France. The essential feature of an epileptic paroxysm, whether it is of the grand mal or peilt mal variety, is unconsciousness. And though occasionally in aborted seizures there may be a kind of semi-consciousness present, the other phenomena of the attack are so characteristic as to be perceived by the patient. In all fully-developed paroxysms unconsciousness is the essential feature, and without it there is no epilepsy. The individual attacked has, therefore, no recollection of anything which has taken place during the seizure, and the mere fact of such recollection existing is very certain evidence that there was no paroxysm. There is no case on record of a crime being committed by an epileptic during a paroxysm, and the recollection of it being present. Crimes may be committed by epileptics without responsi- bility under three different conditions, and no others : 1. Either as a consequence of mental imbecility resulting from repeated attacks of- epilepsy. In such a case the condition of the individual would be one of dementia, and he would be incapable of judging of the consequences of his act, and the act itself would be without motive. 2. During the state of high maniacal excitement which sometimes follows an attack. 50 MEDICO-LEGAL POINTS IS THE and in the otherwise insane precedes it, in which case the act would be indeterminate. 3. During the state of unconscious- ness resulting or attending upon the paroxysm. In this case there would be no subsequent recollection. In a paper on " Epilepsy and Homicide," written by Dr. Isaac Eay in special reference to the Winnemore case, and pub- lished in the Journal of Insanity for October, 1867, the author says : " If the deed was committed under the influence of his disease, supposing the charge to have been true, we are neces- sarily led to inquire what particular phase of it was present. No one supposes that his mind was generally so impaired as to be incapable of discerning right from wrong, of knowing that murder is forbidden both by human and divine law, or of controlling the fullest impulses of passion. The act could not have sprung from such a condition as that. Neither is there any ground for the supposition that he was under the domination of that blind fury so frequently exhibited by epi- leptics before or after a fit, or that his mind was overpowered by apprehensions of dangers, or a sense of persecution and outrage from persons, real or imaginary, about him. Neither of these phases of the disease had he ever exhibited ; and, though it is not impossible, perhaps, that the latter occurred on this occasion for the first time, there is not the slightest reason to believe that such was the fact. We then come to the only other epileptic condition in which the act could have happened, that of utter unconsciousness, and, though we have no direct evidence respecting it, neither are we met by any circumstances of the case that would render it impossible. He had been in this state more than once before, and it was one of its incidents that he had no idea whatever of what he thought or did while in them." The case of Fyler, the first time in this country, in which epilepsy was used as a defense, who was tried in Onondaigua County, N. Y., in 1855, for killing his wife, was also one in which there was entire want of recollection of the murder- ous act. In both Winnemore's and Fyler's cases the prison- s were found guilty. In the first, the penalty was in- CASE OF DAYID MONTGOMERY. 51 flieted ; in the latter, a medical commission pronounced the prisoner insane, and he was committed to the lunatic asylum in Utica. In the case of John Reynolds, tried over a year ago in New York for murder, the attempt was made, after conviction, to prove the existence of epilepsy. I examined the prisoner several times before and after the trial, and was satisfied that the crime was not committed through the influence of that disease. He was executed. In the case of Chambers, who shortly afterward committed a murder in Brooklyn, the plea of insanity was set up. I was requested by the district attorney to examine the prisoner. I did so, and found no evidence of epilepsy beyond the state- ments of Chambers himself. On his trial another physician testified to the presence of epilepsy. Through a misadven- ture, I did not get to the court to testify, and the prisoner was acquitted and sent to the lunatic asylum at Utica. He presents no signs, as I have been informed by Dr. Gray, of having any form of mental alienation or epilepsy. The prisoner Montgomery is twenty years of age, has fol- lowed the occupation of a carter, and has never been sus- pected of mental derangement, dementia, or epilepsy, by those who knew him, outside of his own family. Several members of the family, however, testified, in the previous proceedings relative to his sanity, that he had been subject to epilepsy since infancy, but the commissioners could only satisfy themselves that he had three attacks up to the time of the homicide ; therefore it may easily be assumed that, notwithstanding the possible existence of epilepsy, his mind has not in consequence of such disease undergone marked deterioration. At the age of about eighteen he married ; but had lived upon bad terms with his wife, who had been a prostitute, and who insisted upon returning to h,er former occupation. A week before the homicide she left him, taking with her their child, eight months old. On the evening of the day (Satur- day) before the homicide, Montgomery went to her mother's, 52 MEDICO-LEGAL POINTS IN THE where she -was stopping, and persuaded her to return home with him. They arrived at their own home about twelve o'clock at night, and she was killed the next morning between the hours of six and eight. Many of these particulars, as well as the subsequent ones, are derived from the statements of the prisoner. From these statements it appears that they awoke early in the morning and began to talk of their difficulties. He told her that, if she would remain at home and stop going with other men, he would forgive her. She replied that she would not, that she was a prostitute when he married her, and he knew it, and that she had always been one and always would be one. He replied that he had made up his mind that, if she would not live with him, she should not live with any one else. He then got out of bed, partially dressed himself, and went to his father's house, a few rods distant, and took from the back-yard an axe, with which he returned to his own residence. On entering the room where his wife was he found her asleep. He stood by the stove a few minutes, deliberating whether he should kill her or not. Finally he determined to do so, and then struck her on the head, just above the left temple, inflicting a mortal wound, of which she died. He then left the house, and, meeting a younger brother in the street, told him what he had done, and then taking a razor from his pocket attempted to cut his throat. In this effort he was prevented by his father and brother, and was by them persuaded to give himself up to the police. On his way to the jail he stated to the officer that he had at first thought of going to Canada after kilKng his wife, but, con- cluding that he would be caught, he had determined to give himself up. In these particulars there is no one fact indicating insanity, dementia, or epilepsy, besides the fact of voluntary confession and surrender. This, unaccompanied by other evidences of mental aberration, is of little importance, and is materially lessened in its force by the opinion of the prisoner, as ex- CASE OF DAVID MONTGOMEKY. 53 pressed to the policeman, that he tliought he would be caught if he attempted to escape. As regards temporary insanity from morbid impulse, there is no evidence to show that Montgomery had exhibited any indication of mental derangement during the few days pre- ceding the homicide. The facts of the dispute, the repug- nance he entertained to his wife's conduct, the deliberation with which he went to his father's house for the axe, and re- flected, as he stood by the stove, in regard to his purpose, are at direct variance with any such idea. They are equally against the idea of such a condition of dementia or imbecility as to indicate a want of knowledge of his acts and their consequences. As to epilepsy, the circumstances of the affair are abso- lutely irreconcilable with the theory that the homicide was perpetrated during a paroxysm or an accession of epileptic mania Instead of a bhnd fury, there was deUberation ; in- stead of a purposeless act, there were motive and provoca- tion; instead of unconsciousness and subsequent want of recollection, there was complete knowledge of all the circum- stances, even to their minutest details; instead of subsequent confusion of ideas, there was distinct recollection. Admitting that Montgomery has been subject to repeated attacks of both the grand and petit mal, it is verj* evident that these were not sufficient to injure his mind to any ap- preciable extent. The hereditary tendency to insanity would be of impor- tance if the prisoner had himself, in the perpetration of the homicidal act, or before or after, shown sigos of mental de- rangement. In the absence of such signs, it is of little im- portance. The prisoner, as stated, was convicted of murder in the first degree. A motion for a new trial was made by the prisoner's coun- sel, and, among other reasons which he adduced, was the fact that I had been paid a large sum to come to Eochester and testify in the case. The views of Judge E. Darwin Smith, 54 MEDICO-LEGAL PODSTS IN THE before whom the case was originally tried, are so exactly' in accordance with those now held by all the enlightened jurists, relative to compensation to medical experts nnd are so fair to myself and the district attorney, Mr. Davis, that I subjoin them without comment : "The next allegation of irregularity is 'that a medical witness. Dr. Hammond, was produced and gave testimony in the case on the part of the people, by the procurement of the district attorney, under a contract that such witness, not being a poor witness, nor a non-resident of the State, should be paid a consideration of five hundred dollars for attending the court and giving his testimony, and was paid that sum of money, and this without the- knowledge of the prisoner or his counsel until after his testimony in the case was closed.' Upon this statement of facts I cannot perceive upon what ground or principle an allegation of irregularity can be based or sustained ; but it is doubtless due to the importance of the case, the character of the question involved, and to the con- sideration of what is due to the proper administration of jus- tice in respect to public prosecutions, that the facts contained in the affidavits produced should be more fully stated and considered. From the stenographer's notes and our own minutes of the trial, we know that the fact and body of the crime foV which the prisoner was tried was very clearly proved, and was really undoubted and unquestioned, and that the only defence set up and sought to be established at the trial was that of insanity. It appears from the affidavits read on this motion that the case was put over the last February term of this court; upon the allegation that the defendant was insane, and a commission of distinguished physicians was fixed and agreed upon by the attorney-general and the counsel for the prisoner, and assented to and appointed by the court so far as it had power to do so, to ascertain by inspection and otherwise, and report whether the prisoner was or was not insane ; and it also appears and was well known that the case also went over the April term to allow an inquiry to be instituted, and that such inquiry had been instituted by the CAJSE OF DAVID MONTGOMERY. 55 couuty judge, witli a jury, under the statute of 1842, to as- certain whether the prisoner was or was not insane — upon which inquisition the jury were unable to agree. " The case, therefore, was necessarily prepared for and came on for trial at the present adjourned term of the Oyer and Terminer. "The prisoner, to prove and establish his defence of in- sanity, called a number of distinguished physicians, and the people also called several physicians upon that issue, and among others Dr. Hammond. In respect to the attendance of Dr. Hammond, particularly as a witness, the facts stated in the affidavits are in substance as follows : The affidavit of the counsel for the prisoner states that preparatory to such court he ' was induced to write to Dr. Hammond, of the city of New York, and sent a gentleman to see him a few days before the court to inquire (not as to his opinion, but) whether he would come and examine and testify in the case ; * that he received information in reply that he was coming at the re- quest of the district attorney, and would be present ; that the trial began on Wednesday, May 17th, and on the following morning Dr. Hammond arrived in the court-house, as the counsel was opening the case for the defence ; that he saw Dr. Hammond at noon of that day, and was informed by him that he wished to examine the prisoner, and would make an * The purport of the counsel's inquiry will be best judged of by a perusal of his letter to me at the time, and which I subjoin. The sincerity of his •opinion relative to compensation of expert witnesses may probably admit of some question, in view of the contents of this letter. KocHEBTBK, N. Y., May 12, 1871. Deak Dootob : I am to defend David Montgomery, charged with the crime of murder, the trial to commence on Tuesday next, in this city. I wish to examine you as an expert witness. If you will be here on Wednesday morn- ing, I will release you Wednesday night. I send you, through my brother, the testimony and opinions of physi- cians, including Drs. Gray, of Utica, and Cook, of Oanandaigua, taken on an examination to determine whether Montgomery had intelligence enough to be tried. The jury disagreed. I have pressed a trial. I wish the case to be ended. I have not the slightest doubt that the alleged murder -was an insane act. The prisoner struck bis wife a single fatal blow 56 MEDICO-LEGAL POINTS IN THE impartial examination, and he also saw Dr. Hammond the same evening, and had considerable conversation with him about the case and the condition of the prisoner ; that before the prisoner closed his case, he called Dr. Hammond as a witness for the prisoner and examined him at some length, and that the people recalled him in reply when he was fur- ther examined ; that on Tuesday, the 23d of May, while the counsel for the prosecution was summing up the case for the people, he received information that the district attorney had contracted to pay Dr. Hammond five hundred dollars for com- ing to Eochester and testifying in behalf of the people ; that during the recess at noon he inquired into the facts and found that a warrant of the treasurer had been drawn in Dr. Ham- mond's favor and paid, for five hundred dollars ; that Dr. Ham- mond was then a resident of the city of New York, and that his reasonable expenses could not exceed fifty dollars, and that on the coming in of the court after the recess he called the attention of the court to the fact in the presence of the jury, and that such payment had been made as above stated with the sanction of the court, which was admitted by the district attorney and not denied.' " The affidavit of the district attorney on the same subject states in substance that, preparatory to said trial, he took all with an axe while she was asleep, kissed her and proceeded to cut his own throat with a razor, and was arrested in the aet. This was on Sunday, the 13th November last. He made no attempt at escape or con- cealment. Soon after, he stated that it was his temper, he supposed, which led him to kill her; that he loved her, and she was resolved to be a pros- titute. (I think this was true.) Within an hour he stated that he felt com- pelled to kill her. Shortly after noon, he was quite unconscious of the act, and it is my conviction has now no remembrance of it whatever. The evid enoe sent to you shows that he has been subject to occasional fits of epilepsy. Still, he has been a strong young man (now twenty years old), and has labored faithfully and well, the neighbors not knowing generally that he was ailing. His friends are poor, but I shall see that you are fairly compensated. The newsmongers and police want an exciting trial and ex- ecution, and, to my surprise, have created some prejudice against the young man. Hence the necessity of fortifying the case by the opinions of able and humane men. Please telegraph to me to-morrow. Truly yours, J. H. Maktindale. CASE OF DAVID MONTGOMEllY. 7 the testimony which had been taken before the county judge as above stated, and went to the city of New York and laid the same and the whole case before Dr. Hammond, and asked him for his opinion upon it, and, learning from Dr. Hammond that he could not give him a satisfactory opinion without see- ing and examining the prisoner, he inqviired of him upon what terms he could be induced to come to Rochester and make such examination and attend the trial as a witness ; and, learning that he could not be induced to come for any thing less than five hundred dollars, he left him, and consulted the district attorney of the city of New York, and the United States district attorney of the southern district of this State, the late Judge Davis, on the subject of the propriety of en- gaging Dr. Hammond to come to Rochester and attend the trial at the price aforesaid, and was advised by both of said officers that it was customary for district attorneys to em- ploy and pay experts in professional life like Dr. Hammond, and that his charge was reasonable in view of his high repu- tation and extensive practice in his profession ; that deponent then returned home, and consulted the judges of the court of sessions, and several members of the board of supervisors of Monroe County, and also two of the justices of the Supreme Court of this district, on the subject, all of whom advised him that they thought that, as the public prosecutor for the county, he would be justified in making the proposed arrangement to secure the attendance of Dr. Hammond at this court, and ad- vised him to make such arrangement. " The district attorney further states in his affidavit that on Monday before the trial he informed the counsel for the prisoner that Dr. Hammond would be present at the trial as a witness for the people, and that after his arrival General Martindale had frequent interviews and consultations with Dr. Hammond during the, progess of the trial, and took the doctor to his house to spend an evening ; and that after such interviews, intercourse and consultations, the said counsel called Dr. Hammond as a witness for the prisoner, and improved him as such, and that he is informed, and believes. 58 MEDICO-LEGAL POINTS IN THE that it is customary throughout the State for the courts to pay professional witnesses for their time, expenses and ser- vices, as in this case, upon the application of the district at- torney of the county, and that deponent had no other object in calling Dr. Hammond excppt to elicit the truth before the jury- " Upon these facts we do not see that the calling _ of Dr. Hammond as a witness, and the payment to him of a suf- ficient sum to secure his attendance at the court during the trail, was in any respect an irregularity, or did any wrong to the prisoner. It seems to us that the district attorney was acting in the line of his duty as public prosecutor in securing the attendance of a proper medical witness of high repute to meet the distinguished medical experts which he knew the prisoner expected to call on his side. The question at issue in tlie trial was chiefly a medical one, in respect to which the opinions of medical men would be likely to exert a great if not controlling influence. The witnesses who had testifled before the county judge, and those also who had acted on the commission, were among the most distinguished members of their profession upon the particular questions involved ou the trial. Those witnesses the prisoner was expected to call in the trial, and the district attorney would, it seems to us, under the circumstances of the case, have been derelict in his duty to the people of this county if he had not taken the re- quisite steps to secure the attendance of witnesses of equal distinction and consideration in their profession, on the part of the people. The district attorney, it is true, might have required the attendance of Dr. Hammond on subpoena, but that would not sufiice to qualify him to testify as an expert, with clearness and certainity, upon the questions involved. He would have met the requirement of a subpoeria, if he had appeared in court when he was required to testify, and given proper impromptu answers to such questions as might then bave been put to him in behalf of the people. He could not have been required under process of subpoena to examine the case, and to have used his skill and knowledge to enable him CASE OF DAVID MONTGOMERY. 59 to give an opinion upon any points of the case, nor to have attended during the whole trial, and attentively considered and carefully heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony as an expert in respect to the question of the sanity of the prisoner. Professional witnesses, I suppose, are more or less paid for their time, and services, and expenses, when called as experts in important cases in all parts of the country. The question what amount is paid, or agreed to be paid, in such cases, cannot affect the regularity of a trial. It may perhaps properly affect the question of their credit with the jury. In this case it appears that the facts in respect to the employment and payment of Dr. Hammond were fully and publicly stated in the presence of tbe jury before the case was given to them, and were well known to them, and may have, and must have had, such influence with them as they thought proper to give to them under the circumstances of this case. We do not, therefore, think they present any ground for a new trial, as a question of irregularity or other- wise. " The prisoner's counsel also ask for a new trial on the ground of surprise in respect to the testimony of Dr. Ham- mond, and of newly-discovered evidence. " So far as relates to the question of newly-discovered evi- dence, the application is based upon several afiidavits showing that the prisoner has had a fit in the jail since his trial, and it is claimed that this fact tends to show that he did not simulate, on the trial and before, the appearance of an insane person. " On this question the allegation is in substance that the testimony of Dr. Hammond tended to show that the prisoner's appearance of indifference and apparent unconsciousness on the trial was assumed or feigned, and that the proof of the fit had at the jail, since the trial, tends to refute such evidence. This is not new evidence in kind or degree, and is really noth- ing but cumulative testimony on the main issue. Much tes- timony was given on the trial, proving that the prisoner was accustomed to have fits, had numerous fits in his infancy, and 60 MEDICO-LEGAL POINTS IN THE in his earlier years, and a few later in life, and one in the week previous to the homicide ; and this evidence was not ques- tioned or doubted. Proof of another fit occurring after the trial could not affect the question, particularly on another trial. It is not newly-discovered evidence within the rule applicable to such oases, that the newly-discovered evidence to warrant a new trial must be material, and to go to the merits and not be cumulative, collateral, or corroborative, and such as ought to produce on another trial an opposite result on the merits. ( Vide ' American Criminal Law,' section 3,161.) Such we think quite clearly would not be the effect of making proof of this fit at the jail, just as it is presented in the several affidavits read and produced on this motion. " On the point of surprise, the facts above stated, and con- tained in the affidavits of the counsel for the prisoner, and of the district attorney, we think do not show that the prisoner's counsel had any just grounds of complaint or surprise, in a legal sense, in respect to the testimony of Dr. Hammond. The counsel for the prisoner states that he advised his client to submit to examination by Dr. Hammond, antl that he did submit to such examination, and that Dr. Hammond did not fully disclose to him the whole of such examination. The defence of insanity set up for the prisoner necessarily subjected him to the test of medical examination. I do not see how Dr. Hammond, seeking to make an examination of his person to ascertain the state of his system, his health, and the symptoms of mental disease, as a witness and expert, called in behalf of the people, could ])roperly be denied such an opportunity. To have refused to allow it would have been a virtual admis- sion that such defence was unfounded, and that the appearance of the prisoner in his person and conduct, giving color to such defence and relied upon in part to sustain it, was simulated for the purpose of such defence. The counsel for the pris- oner had constant intercourse with Dr. Hammond during the trial, and, fijiaUy, virtually took him away from the prosecu- tion, and appropriated him as a witness for the prisoner, by CASE OF DAVID MONTGOMERY. 61 calling him as such witness and examining him as far as he pleased. Dr. Hammond, so far as we could see, answered all the questions put to him by the counsel, on such examina- tion, with frankness and explicitness ; and we cannot see that it furnishes any ground for the complaint of surprise, that he gave further and fuller testimony afterward when called by the prosecution. The fact stated in the affidavit of the coun- sel, that, when he so called him as a witness, he was ignorant that he had made a contract with the district attorney to ap- pear and testify as a witness, on the part of the prosecution, for the sum of five hundred dollars, cannot, tha.t we see, affect the question of surprise. Certainly the learned coun- sel knew that Dr. Hammond came to Rochester to examine the prisoner, and attend the trial as a witness in behalf of the people, and upon the employment of the district attorney. It could hardly have be§n supposed that he came voluntarily, and spent so much of his time, without some compensation, and such compensation to be paid necessarily from the funds of the county, at the. instance and upon the application of the district attorney. " Within the rule applicable to cases of surprise, in respect to the proceedings of a trial, we do not see any basis of fact upon which the court would be justified in granting a new trial on this specific ground. We cannot see that the pris- oner's case was effected injuriously by any essential surprise in law or fact, or by any accidental or unforseen occurrence, during the trial, to his prejudice. And, upon the whole case, we think the motion for a new trial should therefore be de- nied. Motion denied." I submit these views and opinions of Judge Smith without further comment, though there are several statements made by the prisoner's counsel which are based more on fancy than reality. THE INFLUENCE OF URJIMIC AND ALCOHOLIC POISONING ON TKSTAMENTARY CAPACin* By Stephen Rogers, M . D. i Neab the close of the year 1869, E. I. C. was quietly, if not clandestinely, married to a man whom, report says, her education, religious and secular, would have, in the ordinary course of events, led her to shun, rather than to love. A key to the secret of this untoward occurrence is furnished by accumulated evidence, to the effect that she was an incor- rigible and hopeless inebriate. Though trained, a.nd fairly educated, in one of the best schools for girls, this vice of drunkenness seized her soon after her return home from school, and, as a consequence, she soon became the cause of constant and harassing care to, and her habits were the bane of the last days of her aged and widowed mother, who died about the date above given, leaving this only child a sole heir to a considerable property. About the time of the mother's death, this rich and disso- lute girl was induced to marry, under the circumstances already stated. Eumor attributes the marriage to a necessity arising from antecedent illicit familiarity between the parties, favored by the intemperate habits of the girl. However this may be, there is no question that they were married, and the following unusual history commenced. Not long after her marriage, it appears' in evidence, she became the victim of attacks which, * Read before the Society, April 11, 1872. 62 POISONING ON TESTAMENTARY CAPACITY. 63 from the general description given of them by various wit- nesses, -would appear to have been of an hysterical character, more or less modified by her intemperate habits, for these she continued to practice after her marriage with even less restraint than before. During these attacks she screamed, talked incoherently, and threw herself about so violently as to require control, and she is said to have recovered from them after a few minutes, or at most a few hours, with no perceptible impairment of her intelligence. It also became apparent, not long after her marriage, that she was pregnant, to which fact we may justly attribute a portion of the general and violent nervous pertur- bation which she at this time suffered. This perturbation was manifested, as before stated, in an especial manner by the attacks, or spells, or fits, or paroxysms, as they are vari- ously named by the witnesses, whose principal features I have already mentioned, and, except these, no alarming symptom occurred to her till about eight months after marriage, though the evidence is conclusive that she had, before this date, suf- fered manj' of the aforementioned attacks, and had more than once been on the verge of true delirium tremens. Either from the fear that some of those paroxysms might terminate fatally, or that her uncontrolled intemperance might induce disease which would suddenly terminate her life, or from some other fear or motive, her husband and her father-in-law, who were assooiated in business, went, unknown to her, some months after the marriage, to an attorney and requested him to draw up a will for her, at the same time giving him instruc- tions as to its provisions. The will was accordingly prepared, and in such terms as to be almost exclusively in the interest of the two parties who had ordered it drawn. They took it, carried it home, and laid it away in a trunk, as the evidence shows. There is no evidence furnished to prove that the al- leged testatrix ever read, or heard this paper read, except the declaration of the parties who caused the will to be drawn. It is from them alone that we hear that she even knew of the existence of this paper till almost the hour of her death. 64 THE INFLUENCE OF UE^EMIC AND ALCOHOLIC Her husbtiiad, who, by its terms, was sole heir to her estate, alone says she approved it after reading it, and still months passed, and it was allowed to lie away in his trunk, unexe- cuted and unwitnessed. Thus stood the affairs of this case when, on a Monday, this alleged testatrix exhibited signs of the approach of one of her accustomed ill turns, which, as already said, the evidence all goes to prove were the result of alcoholic excesses on a ner- vous system, rendered more susceptible by the pregnant state. On the following day, Tuesday, she was unusually ill, suffered a number of the paroxyms mentioned, and drank a consid- ably large amount of alcoholic liquor. She was still worse the following day, Wednesday, but apparentlj' not too ill, in her husband's opinion, to render him Incompetent to prescribe for her, though a physician had visited her both Tuesday and Wednesday. On Thursday morning she was so much worse that a second physician was called, who reached her about noon, and found her so seriously ill as to give him great solicitude He foi;ud her suffering nausea and frequent vom- iting, insatiable thirst, and a sense of burning at the stomach, great restlesness, getting out of and into bed, muttering, a,nd often noisy delirium, with hallucinations of sight and hear- ing, though she would obey orders, and reply to simple ques- tions, apparently rationally. Even up to a very few hours before her death, which took jDlace some eighteen hours after the above visit, when spoken to she would respond, and, so far as could be seen, rationally, but in a moment she would again relapse into wandering de- lirium. It also appears that, up to within a short time before her death, she was able to and did rise from her bed and walk about the room, a tendency her physicians say they tried to restrain, knowing that such efforts, in her exhausted condi- tion, might suddenly destroy her life. There is no evidence I can find that she suffered any paroxysm to which the name of convulsion could be properly applied, during the last two or more days of her life. A consultation, attended by three physicians, was had at POISONING OX TESTAMENTARY CAPACITY 65 eiglit o'clock ou Thursday evening, and resulted in the con- clusion that, among the complications of the case, there was urcemia. We are not, however, informed if there were any dropsical swellings, oedema of the lungs, or if there had been any head- ache, or even if the urine had been examined by the physicians in attendance. On the contrary, they state distinctly that they did not examine it, but one of them gave some of the urine to an outside party, who testifies that he examined it and found puijjnrine. It is frankly acknowledged by the attending physicians that, up to the hour of the consultation, they had not arrived at a definite diagnosis of the case, and, even after the diagnosis agreed upon at the consultation, there seems to have been much doubt as to its correctness; for, either to ascer- tain a cause of death, or to corroborate an opinion formed before death, an autopsy was held. In the meagre records of this post- morfem examination given us, nothing is said of any organ till the stomach is reached, and of this it is stated, that it was found somewhat congested, not much changed from health. It is said that the kidneys were both fatty and the liver extremely so. A dead foetus was found in the womb, and one witness ventures so far as to give his opinion that it had been dead about forty-eight hours. This was of course a very hazardous opinion, if we are to judge it in the hght of the fact that there does not occur a particle of evidence that the condition of the foetus was even considered before the death of the mother. The only testimony I can find, which even alludes .to the condi- tion of the foetus before the death of the mother, or to the question of parturient pains, is an equally hazardous statement of one medical witness to the effect that, if the foetus had died three or four days before the mother's death, labor-pains would have come on earlier. - Nothing is better known than the fact that a dead foetus may and often does remain in the womb for long and indefinite periods without the occurrence of labor- pains. It does not appear in evidence that the alleged testa- trix in this case had labor-pains at all. However, the conclu- sion from the autopsy was, that death resulted from uraemia, 66 THE INFLUENCE OF UE.EMIC AND ALCOHOLIC caused by Bright's disease of the kidneys, though no patholog- ical record is offered in support of that posi-mortem diagnosis, except the vague declaration that the kidneys were fatty, a condition often associated with fatty, light-colored livers in habitual drunkards, but not by any means necessarily accom- panied with notable functional derangement of such kidneys- On the other hand, the whole history of the symptoms of the case, as detailed in the evidence, is quite inconsistent with this eleventh-hour post-mortem diagnosis. The medical wit- nesses agree that the condition of the blood known as ursemia, caused b^' disease of the kidnej/s, often produce paroxysms, variable in character, sometimes maniacal con- vulsions, and sometimes, instead, a gradually deepening state of coma. But, to account for the extraordinary and unpre- cedented fact that in this case the alleged urgemic paroxysms did not induce coma and abolish all sane consciousness, not- withstanding the case terminated fatally, one of the principal medical witnesses employs the following notable language applicable to the condition of the patient eight or nine hours before death: "It was concluded that she was suffering from uraemia, and it was a subject of remark that the case was ex- ceptional, inasmuch as her mental operations were so clear; it is quite usual in a case of that kind that the contrary should be the case." As a support to this conclusion, one medical witness is reported as saying that he had seen many cases of Bright's disease of the kidneys, and that he had not found the mind generally affected. It is perhaps too much to expect of a judge, or of lawyers, that they should have deemed it important to ascertain if this witness had a tangi- ble and reliable record of a case of Bright's disease of the kidneys, causing ursemic paroxysms in a woman far advanced in pregnancy, and yet which did not, at eight hours before the fatal termination, affect her mind. I challenge the medical world to produce the record of such a case. If we exclude a few cases in which the pregnant woman, not even suspecting her imminent danger, is suddenly seized with urasmic eclampsia and her life destroyed in a few POISONING ON TESTAMENTAKY CAPACITY. 67 hours, no case of ursemia terminates fatally in the pregnant women without seriously affecting the intellect many hours before death ; in other words, fatal cases of ursemia in preg- nant women always affect, more or less profoundly, the mental power. The history of this case, and the pathological history of ursemic eclampsia gravidarum, fail to furnish the slightest grounds for the opinion that death was caused by ursemia. Had we even the usual local or general oedema attending Bright' s disease, or its fibrine cylinders, and fatty, degenerate renal epithelium in the urine — which we have not — the symp- toms of this case, as set forth in the evidence, would be con- clusively against the theory of fatal ursemia. The evidence certainly shows that, from Tuesday to after twelve o'clock Thursday night of the same week, this woman's condition was one of nervous agitation, insomnia, and finally of busy, muttering, and talkative delirium, from which she could be momentarily aroused by speaking to her — a condi- tion rarely or never seen after the development of fatal ursemic eclampsia, and certainly never within twelve hours of the time of death. Due regard for the well-known intelligence of the physi- cians in attendance and consultation forbids the conclusion that, even at the consultation on Thursday, nine hours before death, there were not very grave doubts as to how much of a part ursemia played in the production of the symptoms. Had there been no such doubts, the line of treatment, approved by the best authority, would have been (what it was not) purely obstetrical, and obstetrical counsel and means would have been resorted to, which was not the case, so far as the evidence goes. Now, as no such measures were taken, and, so far as the evi- dence goes, the uterus did not make the slightest spontaneous effort to expel the foetus, it is simply fair to conclude that the diagnosis of ursemia did not take very deep hold on the physi- cians of the alleged testatrix before her death. Had they adopted that diagnosis, they could hardly expect to be excused for abandoning the patient undelivered — as they did— some 68 THE INFLUENCE OF UREMIC AND ALCOHOLIC five or six hours before lier death. Then the practical failure of three intelligent physicians to decide that ursemic poisoning existed in this case during the fatal illness, as well as the symp- toms attending the "spells" or "paroxysms" suffered during the last year of life, disproves the theory, which has only the support of a most imperfect and unscientific post-mortem ex- amination. Like too many pont-mortem conclusions where toxical agents have destroyed life, this examination, according ; to all the evidence, was totally fruitless of truthful results. It did not demonstrate the cause of death. Having discussed the improbability, if not impossibility, that uraemic poisoning was the cause of death in the case, I will now inquire into the other possible causes of that event. If the testimony is correct — and it is so abundant both on the part of her medical attendants and others, and so corrob- orative one of the other, as to be convincing- — the attacks from which she suffered during most of her married life, called " spells of fainting," or " spasms," by the witnesses, are very accurately described in most essays on hysteria The testi- mony does not inform us whether the alleged testatrix had these paroxysms or fits before she became pregnant. This, however, is not to be regarded as of importance, it being a well-known fact that it is common for women to suffer this, and other forms of nervous attacks, for the first time, after becoming pregnant. There was, however, in this case an especial cause for these nervous attacks, a cause which fortu- nately is not very frequent among our young and recently- married women. I allude to the excessive use of alcohol. It is a fact, well understood by persons conversant with the subject, that habitual inebriety is a fruitful cause of hysterical attacks in women who have no hysteria when sober. On this account, alcoholic hysteria is regarded as distinct a form of this neurosis, as alcohoHc epilepsy. There is, besides, very conclusive evidence in the case, that this woman had often, during her married life, suffered other results of the excessive use of alcohol than fits of hysteria. By his frequent experi- ence with the attacks, or fits, or paroxysms, of alcoholic hys- POISONING ON TESTAMENTARY CAPACITY. 69 teria, if not delirium, suffered bj his wife, it appears the hus- band had found out the vahie of laudanum. It is distinctly declared, by as respectable a witness as the case furnishes, that, by order of the husband, she bought ten cents' worth of laudanum for the deceased on Wednesday before her death. It is not proved that she did not take it, and the attending physician contradicts the husband's statement that it was ordered by the physician. The apothecarj^ who sold this laudanum says that the amount equals twelve doses of opium for the adult, or from twelve to eighteen grains. There is no reliable evidence to disprove that, whatever the physician may have ordered, she took, in addition, this twelve to eighteen grains of opium and an indefinite amount of alcohol during Wednesday and part of Thursday. Now, if the husband had not regarded himself as skilled in the management of the wife's attacks, whatever they mav have been — and nothing but experience or special education could have created that self-confidence — he must be regarded as careless, or daring, or criminal, for having assumed to ad- minister a potent drug on his own responsibility ; for one of the physicians in attendance swears that, on the morning after this laudanum was purchased, and probably given, he and a neighboring physician found the patient in so critical a con- dition as to induce them to seek counsel. Taking the most generous view of the facts, in behalf of the husband, we must suppose that his experience with laudanum in her accustomed attacks had given him so much confidence in its efficacy that he was unprepared to appreciate the graver symptoms of her final attack. He probably was unaware of the immediate danger ; having seen her recover from so many spells, he presumed she would from this one. This is the most liberal interpretation of his behavior. But, returning to her symptoms, we find them enumerated as follows : Much nervous and muscular agitation, restlessness, and insomnia ; vomiting and insatiable thirst, with a burning pain 70 THE INFLUENCE OF UE^MIC AND ALCOHOLIC attlie stomacli: hallucination of siglitand of hearing; mutter- ing and talkative delirium, calling the names of persons ab- sent or dead, and yet replying promptly to questions ; obey- ing the requests of the physicians, and in a moment forget- ting them ; and finally her ability to walk about the room till near the hour of her dissolution. It would appear that few experienced medical men could mistake the significance of that array of symptoms, especially when occuring in a person of the admitted habits of this al- leged testatrix. The following lines from the great master of clinical description. Dr. Thomas Watson, most aptly and fully hit the symptoms presented by this case : " If you question the patient about his disease, he answers quite to the purpose ; describes in an agitated manner his feelings, puts out his tongue, and does whatever you bid him ; but immediately afterward he is wandering from the scenes around him to some other that exists only in his imagination. Generally his thoughts appear to be distressful and anxious ; he is giving orders that relate to his business to persons who are absent, or he is devising plans to escape from some imag- inary enemy ; he fancies that rats, flies, mice, reptiles, or other objects, are running over his bed, or that strangers are in his room. He rises to look suspiciously about the room, or to leave his bed, but is readily induced to lie down again. " Upon inquiring into the history of the patient, in a large majority of instances you will find that he has been an habitual drunkard, and very frequently that from some reason or other this habitual stimulus has been diminished or taken away. Sometimes, however, it comes on in those who are perpetu- ally fuddled, even though they have not intermitted their usual indulgence in drink."— ("Practice of Medicine.") The burning pain at the stomach, vomiting, and thirst, which were so marked symptoms in this case, are often ab- sent in alcoholic delirium. But as relates to the mental phenomena, Dr. Watson's general description of delirium tre- mens comes wonderfully near to meeting every symptom shown by this alleged testatrix during her last illness. POISONING ON TESTAMENTARY CAPACITY. 71 It will be very diiScult, if not impossible, tc account for ber symptoms iipon any other supposition tban that they resulted from alcoholic poisoning. If that cause be admitted, it is yery manifest that she was quite 7ion compus mentis for at least two days preceding her death. All her declarations, expressed wishes, as respected persons and business, after Wednesday morning, were in all probability mere ravings, and totally unreliable. Among those declarations should probably be placed, that her husband had injured her by striking her in the abdomen, causing a black-and-blue stain. Though two female witnesses testify to this declaration, and to having seen the bruised spot, it is not by any means im- probable that they themselves asked her if the bruise had not been made by the husband, to which she answered " Yes." Persons under this state of mental derangement need only the suggestion to charge anybody with any act. The husband denies that the declaration has any founda- tion, and he is, under the circumstances, by far the more rehable. The cautious testimony of the physician, who saw her be- tween eleven and twelve o'clock Thursday night, is in all probability the most favorable representation that could be made of her intellectual condition. He declares, under oath, that she was not, in his opinion, able to fix her mind long enough upon any one subject to dictate any article in writing. It is in evidence, however, that she would reply to ques- tions promptly, and apparently rationally, and would do, so far as she could, anything her physician or friends desired her to. We have seen that such a condition is very far from indicating rationality. In certain states of alcoholic delirium responses to all manner of questions are obtained. Whether asked if they wished to die, or wished a drink, such persons are very liable to give the same reply — " Yes," or " No ; " and the same if asked if they wished to see a priest or physician. It may, hence, be readily comprehended how he subject of such a condition of mind may be brought to 72 THE INliXUENCE OF UB^MIC AND ALCOHOLIC reply " Yes," to any number of questions relative to the dis- tribution of property by will ; or how, if requested to sign a paper, he would at least make an effort to do so, though it might result in a complete bungle. This power to respond, and this readiness to obey com- mands, are terminated sometimes very suddenly by the occur- rence of death after some extra effort. In other cases, both the physical and mental power fail gradually, and life does not become extinct till some hours after response and volition have failed. So far as the testimony instructs us, this impos- sibility of obeying requests, and of intelligent response, was reached in the case of tliis alleged testatrix about 12 o'clock on Thursday night, and she died about five hours after. It appears that, between 11 and 12 o'clock, having been asked if she would sign a will, she said " Yes ;" the arrangements were at once made, she was held in a reclining position, a pen was put into her hand, the place of signature pointed out, and she was requested to sign, which she did in a very imperfect manner. This having been accomplished, it appears in evi- dence that either she, or some other party, conceived the idea of adding a codicil. What conscious part ,she had to do with said codicil may be fairly inferred, from the fact that, after responding to some half-dozen lines, of which it consists, she was too near dead to make it practicable to get her signatui'e to it. She died, so far as can be gathered from the testimony, from four to five hours after this effort with the codicil, and died of asthenia. If it be admitted that she was suffering from alcoholic excesses, and that the cause of her death was even only in part of that character, not only the story of her symptoms, but the whole history of the influence of alcoholic poisoning on the intellect, and the accumulated clinical his- tory of alcoholic delirium, go to confirm the opinion that this alleged testatrix had no conscious appreciation of what she did or said for at least twenty, and probably severity, hours before death. If, however, we admit that there was a uraemic complica- tion, or that uraemia was the chief cause of death, we encounter POISONING ON TESTAMENTAKY (\\PACITY. 73 another unpleasant yet important fact in the case. On Wednesday, the day before the fatal symptoms came on, the ten cents' worth of laudanum was bought and probably ad- ministered. Now, it is a recognized fact that the administra- tion of opiates in uraemia is dangerous practice in ever so skilled a hand ; and hence, if that were her condition, the re- sult of that medication, on the husband's own responsibility, may have been disastrous, and will now, of course, never be known. It is just to the husband, however, to say that the symptoms on the following day, as described by the wit- nesses, all contradict the theory that she suffered from uraemia, or that, if she so suffered, she took laudanum on Wednesday. But it is possible, however unprecedented it may be, for uraemia to be manifested in a rare form in this respect. There are two points in the case about which the medical testimony and the lay testimony are positive : one is, that the deceased was unable to finish her last will and testament; the other is, that she died of some blood-poisoning, either uraemic or alcoholic, or possibly choleric. The only known circum- stance in which the intellect of a person, fatally poisoned with urea, is sound and disposing a few hours before death, occurs, as I have before said, in those cases where uraemic convulsions come on with little antecedent disturbance, and destroy life suddenly. This was not the case with this alleged testatrix, and, therefore, the idea that she died of uraemia, without convulsions, yet was of sound mind five hours before death, is quite untenable. The same law applies to the choleric or bile poison. On the other hand, if we accept the theory that her vitality gave way under the destructive effects of alcohol, she had no intellect, in all reasonable probability, for a day or two before death. In either case we are without the slightest reason that this alleged testa- trix had even an approach to a sound and disposing mind and memory after eight o'clock on the Thursday in question. As this case would lose much of its instructive and practi- 74 THE INFLUENCE OF UE^MIC AND ALCOHOLIC cal features if some of the legal history of it were omitted, we will occupy a little time on it : As has been stated, there is no evidence, except from the principal heir, that the alleged testatrix knew anything about the contents of the proposed will. There is no evidence that it was read to her at the time she made the blundering effort to sign it. On the ©ontrary, it is stated that it was not read. The parties solely interested in it either dictated it or wit- nessed it, or both ; the husband, the father-in-law, and the brother-in-law, doing all these offices, and were all associated iia business. The unsuccessful attempt to add a codicil was a most trifling matter pecuniarily, the whole amount thereby diverted being but a few hundred dollars. The court before whom the case was heard, decided that the decedent was at the time she signed the paper of sound and disposing mind, and gets over the fact that the parties solely benefited by it should have had all to do with its dicta- tion, and even with witnessing it, in the following way: " However indelicate or impolitic it may have been for the proponent to have persons so nearly related to him, as the subscribing witnesses to the will of his wife, yet they were not disqualified, and I can find no reason in law why their testi- mony should be discredited, unless there should be other testi- mony and circumstances than have been presented in this case to weigh against their credibility." Had the testatrix and proponents of this alleged will been, during the last day of her life, isolated from mankind, in the midst of some desert, or on some rock in the sea, there would be some reason for this attempt of the court to present an excuse for the fact, that the parties witnessing it were closely related to the principal heir, and known to have been indirectly largely benefited by it ; but when it is known that these witnesses affixed their signatures to it in the heart of a large city, and at an hour of the day when neighbors, notaries arid lawyers are at their residences, and easily obtained, he will find it difficult to offer any laudable or legitimate reason for that " impolitic " irregularity. POISONING ON TESTAMENTARY CAPACITY. 75 It is often very useful to take different views of pictures as well as courts. The uncertainties of the law are thereby often shown to be quite as great as those said to be proverbial of medicine. The same court which issued the above opinion, also, not very far from the same time, issued and subscribed to the following : " The law is very zealous against straining after probate when the preparation of a will is made by a party interested, to be executed by a person of doubtful capacity, and requires that, to support such probate, there must be strong proof of intention outside of the interested party, who claims to have acted under instructions." " The court must take a cautious view in deciding ques- tions of law and fact. It is an established principle that, where capacity is doubtful at the time of execution, there must be proof of instructions or of reading over. A man in a languid, torpid state may easily acquiesce in signing his name to a will set before him, more especially when he knows that there is something in the paper which he wishes to take effect ; the presumption also is strong against an act done by the agency of the party benefited ; the act is not actually de- feated, as it was by the civil law, provided the intention can he fairly deduced from other circumstances. Though the court will not impute fraud, it will require strong proof of inten- tion. There is no positive or even circumstantial proof that there was any intention on the part of the alleged testatrix to give all her property to her husband. In addition to what has been said in relation to the signing of the alleged will, it may be interesting to further quote from this same court as to the mere signing of a will being an index of the state of soundness of the mind of a testator. In the same opinion above quoted from, it is said : " The power to affix a signature to a will, or even to sign checks, does not prove sanity so far as the law requires to perform such a solemn act as the making of a last will and 76 INFLUENCE OF UKiEMtC AND ALCOHOLIC POISONING. testament They may be merely automatic acts." Such un- questionably was the act of signing the alleged will in this case. The admitting of this will to probate was very clearly a " strain " in violation of all approved rulings, and of previous opinions of the same court. Courts have the power to give opinions, and the people have a right to decide if those opinions are consistent with common sense and previous rulings, and physicians have an occasional right to say if those rulings are sustained by patho- logical facts. THE CEIMINAL USE OF Proprietary or Advertised Nostrums.* By Ely Van de Warker, M. D., STBACUSE, N. y., COBBEapOHDING UEMBBB OF THE MEDIOO-LKOAL SOCIETY OF NEW YOBK ; OF THE GYNECOLOGICAL SOCIETY OF BOSTON, ETO. Me. Pbesident: In compliance with your kind invitation, I have the honor to submit the following paper :* In a series of papers read before the Gynaecological Society of Boston, upon the " Detection of Criminal Abortion," I al- luded briefly to the criminal use of proprietary or advertised nostrums.t In a more extended notice of the criminal use of these nostrums, I endeavored to arrive at facts regarding the sale of these nostrums in the United States.:!: Until I became interested in the study of this branch of legal medicine, I was not aware of the difficulties in the way of collecting figures upon this subject. Such are the difficulties, however, and such the sources of error, that I do not deem the table, published in the monograph referred to, of sufficient authority to transcribe here. The sale of these dangerous preparations is enormous, so far as I am able to form a conclusion. The sale is increas- * Bead before the New York Medico-Legal Society, June 13, 1872. t Journal of the Gyncncologital Society of Boston, December, 1871, p. 350. 1 " Detection of Criminal Abortion and the Study of Foetioidal Drugs,' pp. 41. 8vo. James Campbell, Boston, 1872. 77 78 THE CKIMINAL USE OF PROPKIETAEY ing. Every facility is afforded for the ready sale of these drugs. The daily press accepts the advertisements of the pro- prietors of these articles, and such are the profits arising from the sales that they are able to purchase the most prominent and expensive places in the papers fo» the pernicious notices. It is not uncommon to find their notices published in the ad- vertising department of what are regarded as first-class maga- zines. And, to the shame of the religious community be it written, it is very common to find these advertisements occu- pying prominent places in so-called religious journals. Every school-girl knows the meaning and intent of these advertise- ments. Nor is this the worst : almost every woman believes in the power of advertised pills or drops to accomplish the end for which they are recommended. These wares are un- blushingly exposed for sale on the shelves of drug-stores, and are as boldly asked for. Here is a trade which, without stretching a single existing law, may be called iUegal and illicit, carried on in open day- light, in the full knowledge of this newspaper-reading public. It is almost impossible to say that women make a misappli- cation of the wording of these advertisements. An able and intelhgent editor once said to me that they carefully excluded all advertisements which seemed to be of a criminal nature. As the term "female irregularity" is invariably interpreted, it means that a woman is irregular when her courses fail to appear, no matter what the cause of the interruption ; and thus all "irregularities" being removed, as advertised by these nostrums, these advertisements never fail of being as direct a bid for the attention of the pregnant woman, as those advertisements are which embody a caution for the lady in a " delicate situation " not to use them. Notices con- taining such direct insinuations are not taken now by re- spectable journals, so, at least, editors tell me. The adver- tising departments of a daily paper are never edited. The success of every paper in the land is measured by its adver- tising patronage. Advertising notices are received and pub- lished by men occupying mere clerical positions, and in a OK ADYEKTISED NOSTliUMS. 79 pernicious advertisement is rarely detected until after it is published, and the paper comes under the eyes of a critical reader, or editor-in-chief. I leave it to members of the Society, better qualified to say, whether this class of advertisements are amenable to exist- ing laws or not. It is an axiom among business-men, that advertising is the life of business, and surely advertising is the life of this trade. Take away from the makers of these demoralizing compounds their facilities for reaching the pub- lic notice, and their wares will not be on the shelves of the retail druggist. This prostitution of the great lever of pub- lic education and progress is a sacrilege which demands immediate atonement. Upon the shoulders of the law-makers rest many sins of the law-breakers. If, through want of wholesome laws, or defects in existing statutes, an article which has a malignant influence upon the morals of the com- munity is openly sold, it is sure to find criminal purchasers. In view of the extent of this trade, I am forced to believe that in relation to this crime there exists a moral obliquity in all ranks of native-born society. Now, an ordinance for the suppression or punishment of an offence against society is enacted on the assumption that there exists in every com- munity a certain proportion of law-abiding people. If, in its relation to any given offence, this assumption is false — and in relation to this crime I fear it is — the law is simply an array of words powerless to effect its purpose. In the law which I shall propose for the consideration of the Medico- Legal Society, I shall endeavor to arrest this trade, and vast numbers of criminal abortions, which directly result from it, by the application of the suppressing force of the law to the fountain-head of the evil. The attempt to enforce such a law would test the strength of the law-abiding element in the community, or, in other words, the morality of the people. The question naturally arises, to what extent is the use of the compounds under consideration, followed by abortion, either criminal or innocent. Considering the vast importance 80 THE CRIMCNAL USE OF PEOPRIETAliY of human gestation, there is no other function so entirely at the mercy of circumstances hostile to its completion. The theory, taught by Taylor and other writers on medical juris- prudence, that abortion from medication is rarely successful, and, when it is so, the mother's safety is seriously affected, is, in my opinion, wrong. There seems to be much evidence, however, that an abortion induced medically is more liable to be followed by fatal results than one procured by instrumental interference. This statement may be proved by the current criminal items of the daily newspapers. I have been some time in collecting twenty-one cases of death from criminal abortion from various newspapers. Of this number, ten deaths resulted from abortions from medication, five cases implicated medical men, and in six cases no statement was made of the means used. Rejecting those notices of fatal abortions im- plicating medical men, as very probably induced by means other than the administration of drugs, we have a large majority left in which it was stated drugs were used. The chief source of danger lies not in the abortion, but in the use of drugs, which are of themselves fatal poisons. Savin, tansy, and rue, are examples of drugs which, even when taken with care, are liable to jeopardize the woman's life, without disturbing the contents of the womb. These drugs may also be named as potent abortifacients when their use is perse- vered in with small doses. A large class of women are very confidential with their medical adviser. From these women I have learned of numerous undoubted ovular abortions following the use of advertised nostrums — cases in which, after a menstrual lapse of one or two months, there was a profuse discharge of blood with clots, attended with expulsive pains, and from the woman's description it was presumably an abortion. I know many married women who have gone years with- out the birth of mature children, who resort habitually to some one of the many advertised nostrums with as much confidence of " coming around " as if they repaired to the shop of the professional abortionist. I could detail several OE ADVEETISED NOSTBUMS. 81 cases of this kind, if absolute proof of the dangerous na- ture of these compounds were necessary. I think but few medical men would be inclined to deny any power, as abortifacients, to these mixtures. It must be borne in mind that, when these compounds are used with criminal intent, they are resorted to in a desperate emergency, and with a reckless disregard for personal safety. Under these circumstances, any thoroughly purgative drug might prove an efficient abortifacient ; persistence in the use and excess in the dose being the conditions necessary. I have already reported a case, in that portion of my mono- graph on foeticidal drugs, in which an infusion of "pink and senna " terminated a pregnancy some months advanced. In this case, an excessive use of a mixture not deemed foeticidal gave it criminal potency. In the morbid anxiety for relief from their unpleasant bur- den, many women take enormous doses of these mixtures. One case came to my knowledge, in which a young woman took repeatedly doses of fifteen pills of the kind called " Sir James Clark's," in her desperate anxiety. The only result was hyperoatharsis and extreme prostration, and months after her health was not restored. In this case no pregnancy existed. It is in this tendency to overdose, rather than underdose, that the chief power of these mixtures, as foeticidal agents, lies. Although a great variety of form exists in the manufacture of these compounds, yet they can be conveniently grouped in two classes, the fluid and the solid pill form. This division governs, in a great measure their potency. Many of the po- tent foeticidal agents are not used with advantage in pill-form. The oils of savin, tansy and rue are not available in that form. Aloes, hellebore, powdered savin, ergot, iron, solid extracts of tansy and rue, so far as I am able to form an opinion — and I have studied the subject quite carefully — are the main ingredients in pill form. It will be evident, from this statement, that a great difference exists as to the mode of action, and the extent of danger between the two groups. One specimen of an- extensively-advertised mixture of what is 82 THE CRIMINAL USE OP PBOPEIETAEY known as " periodical drops " was given me by a married lady who liad taken two teaspoonfuls, and was obliged to de- sist because of its irritating effects upon tlie stomach. This sample appeared to be composed of some fluid extract, upon the surface of which floated about three drachms of oil-glob- ules, of a light-orange color, with the odor and taste of savin. The bottle was a thin panel of two ounces and three drachms' capacity. The dose was from three to four teaspoonfuls a day. I deem this mixture highly dangerous. It is evident that, if care was not taken to shake the bottle, an overdose of the powerful oil floating upon the surface of the mixture might easily be taken. Another preparation, also well known, and of which there are extensive sales, is composed mainly of oils dissolved in alcohol, and in which a futile at- tempt is made to mask the odor and color of oil of tansy by wintergreen and coloring-matter. While these two are the most dangerous of the many mixtures I have seen, there are others which are simply inert. These nostrums in the form of pills, when taken by myself in the dose directed in the printed labels, gave no results either upon bowels or circu- lation. How many more of the scores of these nostrums, which have been advertised and sold for the purpose of cor- recting " female irregularities," are pure humbugs, in their composition, it is impossible to say. The term " humbug " here must be used in an extenuating sense ; for the fact that these inert mixtures are sold to those with a criminal intent and are purposely made innocuous, is, strange to say, an evi- dence of honesty not yet wholly destroyed. If the question is asked to what extent the use of these advertised prepara- tions is actually dangerous to life, I must say that, so far as my observation goes, all of them examined by me, with the exception of the two already mentioned, are free from any direct poisonous action upon the human system. But their effects upon the health are most disastrous. Haemorrhoids, nervous prostration, debility, a persistent gastric and intes- tinal irritation, and irritation of the bladder, are results which I believe uniformly follow their criminal use. A crim- OK ADTEETISED NOSTRUMS. 83 inal use implies a persistence in tlie use which inevitably leads to functional derangement. It is important that the physician should become ac- quainted with the appearance and method of putting up for the trade these periodical pills and mixtures. Their appear- ance is characteristic, being the result of an apparent attempt to conceal the nature of the contents of the bottle or bos when in use. Thus they are put up in small and partially- opaque glass bottles, in square or in small cylindrical tin boxes, or in very small thin pasteboard boxes, and quite generally having no label pasted directly upon the box, the natoe and directions being upon a printed wrapper. I have experimented upon myself with eleven varieties of these nostrums, taken in the dose directed upon the wrapper of each. Two of these were the fluid mixtures before men- tioned. The mixture (a) caused an uncomfortable feeling of warmth in the stomach, a fullness in the temporal region, frequent desire to urinate, a feeling of weight and oppression at the stomach, loss of appetite, and a high-colored urine, with a strong savin-odor. When pushed to the maximum dose named upon the printed wrapper, the face flushed pain- ftiUy, the pulse beat with great force, not increased in fre- quency, other symptoms as above detailed. The fact that the rapidity of the heart's action was not increased, not- withstanding the evident presence of an arterial stimulant, led me to suspect the presence of ergot in large amount. The mixture (6) gave the same symptoms, with the addition of pain in the stomach and bowels, and a great amount of flatulence. The urine was voided frequently, and gave a strong aromatic odor resembling that of tansy. The face was not flushed, but there was an uncomfortable feeling ia the head, with the pressure-pain which seems to be com- mon to both the oils of savin and tansy. These symptoms were more persistent than in the experiment with the mixture (a). My reason for regarding both of these mixtures danger- ous I believe to be well founded. Four samples of pills (c), (d), (e), (/), when taken in the 84 THE CRIMINAL USE OF PBOPEIETAEY dose directed in the printed instructions, gave the following result : After one or two doses a marked cathartic action upon the bowels. The evacuations had a marked aloetic odor. The urine became scanty and high-colored. The cathartic effect was persistent. Flatulence and heat in the stomach and along the track of the colon. When used in the maximum dose, as directed in one sample (d), there were tenesmus and a sense of heat at the anus, the feeling of warmth in the track of the colon more marked, and a sense of uneasiness (fullness) of the right side. The aloetic odor not more marked in the evacuations than in samples (e) and (/). Samples of pills (g), (i), (j), in the minimum doses simply induced a lax condition of the bowels, with no marked peculiarity. In the maximum doses the laxative action became more decidedly cathartic. In these three experiments I was unable to detect any difference between them and a mild cathartic pill. Samples (h) and {k), taken in either the minimum or maximum doses, produced no effect whatever, and evidently were perfectly inert. The experiments, briefly detailed above, extended over a period of about six months. The detection of their criminal use would require that the nostrum be used in its largest dose, which must be persevered in for some time before an abortion would be induced. I believe this to be an im- perative condition of their use as successful abortifacients. Samples (g), (t), (,/'), I regard as humbugs, and would not cause an abortion, unless used by women very liable to ex- ternal and mental influences. If the patient were to be examined by a physician as to the condition of the bowels previous to an abortion, it possibly may be said that the patient had a diarrhoea. If the crinjinal use of the nostrum extended over a lengthened period, and the purgative element in the mixture proved to be aloes, she, would fail to have the pale, wan look of the face which attends an active diarrhoea. Another point of great importance, in the detection of the criminal use of these nostrums which contain an aloetic or other cathartic, is a periodical laxity of the bowels, from the OB ADVEETISED NOSTRUMS. constant tendency of the bowels to constipate after the over- stimulation by the purgative, and being spurred into tiction by a repetition of the cathartic dose. This periodicity of the cathartic action would distinguish it from an intended fraud, as chronic diarrhoea. The griping, borborygmus, tenesmus, and, when the use of the nostrum had been long continued in the maximum dose, vomiting also, would intermit the period of the accession of the symptoms corresponding to the renewal of the cathartic dose. When, in the case of a woman in whom we suspect a pregnancy, we have added to the above back-ache, bearing-down, and ovarian pain, show- ing that the pelvic nerves and vessels have become responsive to the persistent irritation of the cathartic, we have marked evidence of the criminal use of a cathartic nostrum. This is well illustrated by the following case, kindly fur- nished by my friend Dr. Frank H. Butler, of this city: Miss Blank, a spare, broken-down woman, aged about thirty- four years, and a confirmed morphine-eater, took one pill of a variety covered by gold foil, contained in a small paper box, the dose being one pill. She first felt a cramping in the stomach, which lasted all night, beginning seven hours after the dose, and lasting until the next day. With this was very active movement of the bowels from noon until the morning of the following day, getting up eight or ten times during the night. The evacuations were watery and of a dark color. There was no tenesmus. There was pain in the back while having the cramps and diarrhoea. I have known these pills to be taken by several women, and each one gave the same history of the effects produced. I regard this preparation, if not positively dangerous to the maternal life, as one which seriously threatens the foetal life. To show the inclination of women to use this nostrum criminally, it is only necesary to say that the sales of these pills are very large. From the severity of their action, and the nausea and vomiting which very often follow their use, I am inclined to believe that the active ingredient is black hellebore. The throat is often dry, and the face has a blanched appearance. The detection 86 THE CRIMINAL USE OF PKOPEIETARY of the use of these nostrums will depend on the nature of the compound. Some one active ingredient generally has a lead- ing place in the mixture. This rule holds good with the fluid as well as the solid mixtures. When iron in some form is added to the nostrum, as it often is, through a mistaken notion of the action of iron as an emmenagogue, it is certainly inert as an abortifacient. The drug most commonly placed in such a combination is aloes, and it is, therefore, important that we understand the peculiar train of symptoms which characterize the use of the drug. Aloes is an anomaly among evacuants. Its action is stimulant to the circulation, rather than depletory. This is indicated by increased heat of surface and quickened pulse. The evidence of this action is also present in the large intestines, as a sensation of heat and fullness along the track of the colon. The urine is scanty and high-colored. The face is inclined to flush, not to blanch and shrink, as in the case of the drastic or hydragogue cathartics. There are often transient shooting-pains and tenderness, with a sensation of heat and fulness over the region of the liver. There is also local evidence of its criminal use. One of the prominent symptoms is the torturing tenesmus. This symptom would imply its persistent use. There are pains in the back, heat and fulness in the rectum and anus. There is sometimes a frequent desire to urinate, seemingly dependent upon reflex strangury. A symptom always present is the marked and peculiar odor of the aloetic dejection. Unless great precautions are taken as regards ventilatiiDn and clean- liness, the strong odor of the stools will linger in an apart- ment many hours. This retention of the aloetic odor is more marked in the case of small bedrooms, whose walls are hung round with wearing apparel, the fabrics holding the efiluvium. Another drug, highly active as an abortifacient, and, I believe, existing in several advertised nostrums, is black helle- bore, and a word as to the peculiar evidences of its adminis- tration may be in place. Small doses would cause increased peristaltic action of the intestines, quite generally followed by OE ADVERTISED NOSTRUMS. 87 heat and a sense of fullness of the pelvic vessels. When used in larger doses, there are repeated painful fluid motions, almost always vomiting, tenesmus, heat through the hips, and bearing down. When any nostrum, composed largely of hellebore, is uSed to excess, such use would be indicated by pain and prick- ing in the tongue, fauces and throat. There may be a painful sense of constriction and strangury of the throat, pain at the epigastrium, and vomiting. The extremities may be cold, and the surface bedewed with a cold, clammy sweat. The pulse is often at fifty, and a case is recorded in which it was as low as thirty beats in a minute. Savin in powder may be present in some of these nostrums in pill-form, but I cannot speak from knowledge. I know, however, that it frequently enters into the composition of the counter- prescriptions of druggists. The oils of savin and tansy are, I am sure, present in the fluid preparations. As the symp- toms attending their criminal use are practically identical, they may be grouped together. The odor of the drugs will be present in the breath and urine. Severe headache, flushed cheeks and nausea, and especially the pressure-like pain in the temporal region, would be a very usual complication of symp- toms, and, as such, ought to direct our attention to the possi- bility of the criminal use of these drugs. If the use of the drug (savin) is pushed to its cathartic action, the pain and flatulence and a peculiar burning pain at the anus, frequent micturition, with or without strangury ; and, if we add to this the presence of the odor of the drug, we have almost posi- tive proof of its use. Tansy adds to the symptoms, common to both the drugs, a train of phenomena which results from its peculiar action on the nervous system. Its nervous power selects the spinal cord as the field of its primary ac- tion. In nervous females small doses may cause convul- sions ; or, if not such a marked impression, numbness, or pricking of the extremities, may be present. Small doses may also dilate the pupils, or render them immobile. Pro- fuse salivation has been noticed as a symptom of its use. It will be unnecessary to say anything about the application of 88 THE CEIMINAL USE OF PROPEIETAEY these symptoms to a case of suspected criminal use of pro- prietary nostrums The fact of a suspected or pending abortion concurrent with the above symptoms ought to lead us to make a careful inquiry. There is yet another class of advertised nostrums which deserve notice. Two samples of pills which I have examined contained, in the printed directions for their use, the instruc- tion that tansy-tea be drunk morning and night. This is surely a very dangerous direction, and the criminal intent of the proprietor is evident. So far as I am able to judge, both the samples were inert, the maker apparently designing to make up for the deficiency in power inseparable from the pill form of these nostrums as a foeticidal agent, by advising the concurrent use of a potent drug In the use of this class of nostrums, it is very probable that the would attribute any abortion which might result, to the use of the pills, as the tansy-tea is given a secondary place in the directions. In one case which came to my knowledge from the woman her- self, she was made very sick from the use of the tansy-tea and was obliged to send for her family physician. The pills caused no Hppreciable effect. The law passed in 1868, to check the sale of obscene pub- lications and prints, relates also to obscene advertisements of patent medicines ; but w mid not prevent the publication of advertisements of nostrums calculated to correct " female irregularities, " as these advertisements are carefully worded, and could in no sense be called obscene. Yet a trade is per- mitted in a class of nostrums the very advertisement of which, no matter how carefully and delicately worded, must have a very injurious effect upon the minds of both sexes. One of the most dangerous of these moral effects is the result of the open manner in which the sale of these nostrums is carried on, and the character of the magazines and news- papers which publish the advertisements. To suppress the advertisement, either in newspapers, or by circulars or hand- bill-^, of any drug or mixture which is claimed to act as an emmenagogue, or to correct menstrual irregularity, of what- OK ADVERTISED NOSTRUMS. 89 ever name or nature, must be as legitimate a matter for cor- rective legislation as the liquor traffic, or any other evil, the suppression of which is deemed for the good of society. In offering, therefore, for the consideration of the Medico- Legal Societv, an amendment to the law of 1868, I do so with great diffidence as to the legal part of the remedy, but not with lessened faith that the enactment of such an amendment and its rigid enforcement, woald be a lasting measure for the correction of public morality. Draft of an Amendment to Chapter 430 of the Laics of 1868. An Act to amend an Act entitled " An Act for the suppres- sion of the trade in and circulation of obscene literature, illustrations, advertisements, and articles of indecent or immoral use, and obscene advertisements of patent medi- cines." Section 1. Section 1 of said Act shall be amended so as to 1 read as follows : If any person shall sell, or offer to sell, or shall give away or offer to give away, any, or have in his or her possession with intent to sell or give away, any obscene and indecent book, pamphlet, paper, drawing, lithograph, engraving, da- guerreotype, photograph, stereoscope, picture, model, cast, instrument, or article of indecent or immoral use, or article or medicine for the prevention of conception or procuring of abortion, or medicine or nostrum of any kind ivhatsoever, knoion as periodical pills, drops, or mixtures of any name or nature, for the regulation of the menstrual function, or female irregularities, or is claimed to aqt as an emmenagogue to 7-elieve suj)pressed, or inierrupfed menses caused by pregnancy or not,* or shall adver- tise the same for sale, or write or cause to be written, or print or cause to be printed, any circular, hand-bill, card, book, pamphlet, advertisement, or notice of any kind, stating when, how, or of whom, or by what means, any of the said indecent and obscene artiisles and things hereinbefore mentioned, * The proposed amendment is in italics, 90 THE CRIMINAL USE OP ADTERTISBD NOSTRUMS. can be purchased or otherwise obtained, or shall manufac- ture, draw, and expose, or draw with intent to sell, or to have sold, or print any such articles, every such person shall, on conviction thereof, be imprisoned in the county jail not more than one year, or be fined not more than one thou- sand dollars, for each offence, one-third of said fine to be paid to the informer upon whose evidence the person so offending shall be convicted, one-third to the school fund of the county in which such offence shall be committed, and the remaining third to the treasurer of the Female Guardian Society in the city and county of New York, if the conviction is in the said city and county, to be by said treasurer applied to the uses and purposes of said society, as set forth in their charter or act of incorporation ; and if the conviction is in any other county of this State, then said remaining third shall be paid to the treasurer of the orphan asylum in said county, if there be one, or in equal portions to all of said asylums, if there be more than one, to be applied to the pur- poses of said asylum or asylums ; and if there be none, to the superintendent of the poor of said county, to be applied to the benefit of the poor of said county. Sec. 2. This Act shall take effect Immediately. It must have great moral force to suppress by legal enact- ment a trade which has been allowed to attain great propor- tions, and which, from force of habit, people have come to re- gard as legitimate. Quetelet, who has generalized with the phenomena of human passion, and has elevated the emotional of our natures to the dignity of an inductive science, embodied in a maxim, that society prepares the crime and the criminal executes it. This crime of the period seems to be a remark- able example of the truth of this. It has its roots in that outgrowth from the purely human in our natures culled society. If the same principle which underlies crime in the aggregate, applies to the crime of abortion, some law, like the proposed amendment, which is purely correctional, but also from the nature of its prohibition contains the elements of moral education, ought to be adopted. Epilepsy and Its Relations to Insanity, AND CASES OF DOUBTFUL EESPONSTBILITY BEFORE JUDICAL TRIBUNALS, ETC.* By a. O. Kellog, M.' D. Theee are no oases of greater interest, either to the. psy- chologist, the medical jurist, or the ordinary philosophical observer, than those obscure, irregular, and often singularly- manifested forms of insanity which complicate or are asso- ciated with epilepsy — none that have given rise to more dis- pute before courts of justice, or lead to more erroneous charges and decisions on the part of judges and juries. Touch- ing the responsibility of many of these obscure cases before the law, there have been and are now, and, until they are bet- ter understood, will continue to be, wide diversities of opinion. So contradictory is sometimes the evidence of medical men and "experts," and so divergent their views touching the same phenomena, indeed, we are sorry to say, so ex parte is sometimes their evidence, leaning manifestly toward the side of those who called and paid them, that we have been ready to blush for the calling to which we belong, and have enter- tained the desire to leave the whole subject, to the learning of the judge and the common-sense of the jmy. A moment's reflection, however, and the recollection of decisions that have been made heretofore, teach us that this would be to render confusion still more confounded ; and, if a correct de- cision is arrived at under such circumstances, it would be * Read September 12, 1872. 91 92 EPILEPSY AND ITS RELATIONS TO INSANITY. more the result of a happy accident than of any logical de- duction from the facts and phenomena educed. The great difficulty and obscurity which surround and complicate such cases have not, we are pained to say, called forth that good-will, that forbearance, and Christian charity which " thinketh no evil," on the part of either of the learned professions concerned in the investigation, which it would be desirable to see, and hence those gladiatorial displays of in- tellectuality sometimes witnessed in courts of justice, repug- nant alike to good taste and kindly feeling, if not subversive of justice. These combatants have sometimes appeared to us like those theologians satirized by Butler in his "Hudi- bras," who sought " to prove their doctrine orthodox by apos- tolic blows and knocks" — with this difference, however, that the "blows and knocks " were in most instances neither apos- tolic nor scientific, witty nor .wise. It has sometimes appeared to us that even if the history of our jurisprudence, during the last decade or more, is well and faithfully written it will look very strange to our succes- sors of iifty or one hundred years hence. That portion of it which relates to the jurisprudence of in- sanity will certainly be rich in the extreme to them, and call up smiles and blushes, if not tears. Our successors will no doubt be moved by the. same feel- ings with which we now regard the trials for witchcraft, and will say of us as we now say of our ancestors, " There were strange men in those days, and strange delusions sought after." There will be this wide difference, however, between us and them, which, to point out even at this time, needs no special prophetic j)ower, viz., that with them, with all their ignorant superstition and'cruel bigotry, there was an element of honesty, and as grim a determination to do justice to offenders as they understood it, as there is with us to undo it. At all events, the length of the prisoner's purse never determined, as some- times with us, the question as to whether he was whipped or unwhipped of justice. Let us look at ourselves in connection •with this subject for a moment, for it may be profitable at EPILEPSY AND ITS RELATIONS TO INSANITY. 93 least to make the attempt to see ourselves/as we ma.j appear when the light of history comes to be cast upon us. As we do this, our minds, like that of the justice in " As You Like It," if not filled with " wise saws," will certainly be with " modern instances " A fearful crime is committed by a poor wretch, and for a time society is shocked and stirred up from its depths. In the heat of popular indignation blood is demanded, and, as the administration of justice by due course of criminal law is too tardy to meet the popular demand, lynch-law is resorted to, and the unfortunate, who may really be an epileptic or a homicidal lunatic, acting upon the impulse of a delusion in- cident to his dreadful disease, is shot down like a dog, or hung up to the first tree or lamp-post, uttering his insane imprecations and enunciating his wild delusions, perhaps with his last breath. Such cases are on record, and we need not go far back in the history of our jurisprudence to find them Let the criminal, on the contrary, belong to what is called the higher walks of society, and have ample means for a complete defence, and what do we see ? Let him be got safely into jail until the first popular outburst has subsided, and his learned counsel and the "experts " will look well to his future interests. These counsellors are not slow to de- termine what is likely to be the most successful line of defence, and epilepsy or insanity is fixed upon, and they at once set about collecting the evidence on which to ground their plea. In the language of Slender, the history of " all his successors that have gone before, and all his ancestors that come after him," is ransacked in order to find if the in- signia of either of these ancient and honorable diseases were ever inscribed upon the family escutcheon, and as a result it is found that a maternal grand-aunt was epileptic, a paternal great-grandmother was actually insane, that his mother had hysteria after he was born, and that the accused himself had sometimes suffered depression of spirits, many times exalta- tion from spirits, amounting to mania in some instances, and 94 EPILEPSY AND ITS EELATIONS TO INSANITY. that once he had an attack of delirium tremens followed by "fits." This is deemed sufficient to commence with, inas- much as there axe many precedents recorded in which this line of defence has been successful on evidence much less positive, touching mental disturbance and irresponsibility, than what is discovered, and is pertinent to the defence of the accused. The court is convened, and the plea is entered in due form. One learned doctor, who has made insanity the specialty of a lifetime, is called for the defence, and another equally eminent for the prosecution. They look askant at each other as they buckle on their learned armor, and prepare for the contest with each other, as well as for the fiery ordeal already being kindled for them by the opposing counsel. Poor men, they are to be pitied ; but they are well paid, and money not only blunts sensibility, but dulls the keen edge of wit and sarcasm. One expert thinks, from the testimony brought forward, that there are undoubted insanity and irresponsibility in the case ; the other, basing his opinion on the same evidence, is positive in the contrary opinion. The judge is puzzled and perplexed, and the jury befogged, by the contradictory opinions of the eminent and distinguished experts, put forward by the opposing counsel, and as a dernier ressort, perhaps, they fall back upon the medical and psychological skill and experience to be drawn from practitioners in the surrounding rural districts. But we need not follow their testimony here, or speak of the enlightenment to judge and jury which follows from it. Is it not all faithfully and fully reported in the columns of the daily press, and preserved carefully for the benefit of posterity in the pages of the Psychological Journal, and records of the Medico-Legal Society. But it is not of medical or expert testimony in the abstract, let it be well understood, that we complain, only of its abuse and misapplication in the hands of selfish, dishon- est, and unscrupulous men, and those learned counsellors who, determined to win at all hazards, and by all means, fair or foul, thus make use of them. We place a proper estima- EPILEPSY ANB ITS BELATIONS TO INSANITY. 95 tion on sound, honest expert testimony, as we trust we shall be able to show, by the eases we propose to bring forward here, and the comments we shall make upon them. The first case we shall call attention to, came under the observation of the writer several years since. A gentleman of good education, fine intelligence, and of great business activity and capacity, had been the subject of epileptic seizures for about ten years. The fits were of a peculiar character, and accompanied by some strange and interesting phenomena, among which a sort of double consciousness was the most curious. When an attack was approaching, he would stop suddenly in his walk in the hall, clinch his fists, and remain in a fixed position, his eyes turned upward, as if gazing steadily at some object on the ceiling, or some elevated point before him. During this fixed, wild stare he would gnash his teeth, and sometimes froth at the mouth for an instant. Ordinarily he did not fall, but at times did so suddenly and heavily, and for a few moments only would be entirely unconcious. At the moment of attack, and while standing motionless like a statue with the fixed gaze spoken of, if any one interfered to prevent him from f all- iag, he would sometimes deal them a severe and stunning blow, or kick with his foot, or seize them and fall upon the floor as if in a struggle for life. In this way several attend- ants were badly injured. One was so severely bruised, and had his thigh so injured by a fall of this kind under the pa- tient, that the effect is still felt at times, after the lapse of several years. So fearful were the attendants of him at these times, that few would approach to support him when likely to fall, but stand at a distance, ready to lend any assistance they could with safety to themselves. In a few moments he would appear to recover completely his consciousness, and would converse rationally and intelligently, as though noth- ing had happened. Aside from unusual excitability, petu- lance, and a desire not to be interfered with in any way, he seemed himself for several days following the fit, but, from curious inquiries made perhaps at the expiration of a week, 96 EPILEPSY AND ITS RELATIONS TO INSANITY. it would seem that, notwithstanding his intelligent conversa- tion, he was not fully conscious of what he was doing or of what was going on about him. At such times he would write many letters, and these letters were every way correct, show- ing no evidence whatever of delusion or any trace of insanity. Basing an opinion on these letters, no one could predicate insanity. Daring this period he would positively refuse all medicine, and become much irritated if it was urged upon him, and, if force was attsmpted, he became furiously violent, and at once ventilated the delusion that we were enemies and assassins, and wished to kill him by poison. We fully believe that he would have killed any one, by any means in his power, who at these times sought to force his medicine upon him. At other times, when this condition had passed, he would take his medicine (bromide of potash) regularly, and would even be disapjDointed, and call for it if his cup had been for once accidentally left off the medicine-tray. When his fits of sul- len obstinacy and refusal had passed, he would ask curiously if he had had one of his paroxysms, had behaved badly, re- fused medicine, or luritten any letters during the past few days ; for the derangement of the usual orderly condition of his writing desk, and the diminution of his supply of stationery and stamps, led him to think he had been writing, though he had no recollection of doing so whatever. One of the most marked and curious illustrations of this apparent double consciousness in the case of the gentleman is the following : Once, when seized with an unusually severe attack, he fell suddenly and heavily to the floor, striking his head and cut- ting it somewhat severely, and at the same time throwing the weight of his body on the palm of his hand, extending it vio- lently back upon the forearm, and fracturing the lower ex- tremity of the radius near the wrist-joint. He appeared to recover his consciousness as usual in a few minutes, but did not seem to suffer any pain, as would be supposed from the violent extension of the wrist-joint and the fracture. He held EPILEPSY AND ITS BELATIONS TO INSANITY. 97 out his arm for the doctors to examine it, did not complain of their manipulations, and even made suggestions as to the application of dressings. He appeared natural, though some- what taciturn aud irritable for several days, carrying his arm in a sling without any complaint of pain, or making any par- ticular remarks about the limb, or what had happened. On the fourth day from the date of the accident, he called the attention of the attendant to the cut on his head and the band- ages on his arm, and asked curiously what had happened — if he had not been in some row and got severely beaten ; and he could scarcely be made to believe that in a fit of his mal- ady he had fallen, bruised his head, and broken his arm, as he declared positively that he had no recollection whatever of what was said to have happened to him during the past few days. He now began to suffer pain in the injured wrist for the first time. During these periods of unconscious forgetfulness, his ap- petite was ravenous, and, notwithstanding his delusion of be- ing poisoned by enemies — which prevented him from taking his medicine — he would, if allowed, indulge in the most in- digestible articles, food, such as dried figs, raisins, candies and maple-sugar in large quantities. At other times he would not touch these things. Such has also been the case with other epileptics, to whom we shall refer as we proceed with our inquiries. At times the patient was very social, interesting in con- versation, and intelligent and gentlemanly in his intercourse with others. At these times he was a general favorite with all with whom he came in contact, from the medical staff down to the last poor patient who had been sent to the hall to complete his convalescence. At these times his society was courted and enjoyed. At other times, for a day or two before or after his fits, he was irritable, morose, petulant, fault-finding, and in many ways disagreeable ; so much so, in fact, that those who before had courted his society, now shunned him as they would 98 EPILEPSY AND ITS EELATIONS TO INSANITY. pestilence or hydrophobia, as all seemed to feel that at such times he was dangerous, and to be left alone. Touching the responsibility of a case like this before the law, the whole matter would hang upon the precise condition of the patient at the time of the act. The fact that he was an epileptic, and even at times insane and unconscious of what . he was doing, should not, we think, impair his responsibility at other times ; for most of the time he was not only rational but fully conscious of his acts and their consequences, and, committing murder at these periods from a motive, and not, as at other times, under the influence of delusions, he should be held responsible for his acts, and suffer the consequences of his crime. We know there are great difficulties to be met here, especially in determining the precise time of transition from the state in which the faculties are controlled by disease and delusion to that which follows, but these difficulties are not wholly insurmountable, if met with honesty and determi-. nation. The existence of epilepsy jser se should not be held as an excuse for crime ; this is a disease quite as independent of insanity as many others. Insanity is indeed very prone to arise in the course of it; it may be engrafted upon it, as up- on phthisis, either as a sequence, symptom, or' concomitant, but it is not the disease itself. Had this patient committed homicide while resisting his medicine under his delusion, he would have been clearly irresponsible ; at other times we see no reason to doubt his complete responsibility. G. W. P., aged forty, was admitted to the Hudson Eiver State Hospital, March, 1872. He had suffered attacks of epilepsy for ten years, attacks coming on once a month regularly. He was single, and lived at home with his mother and a maiden sister, and the relations of the family had always been of the most kindly and affectionate char- acter. Another sister, a widow, lived at a short distance from the homestead. Laboring under the excitement of some law proceedings during the previous week, aggravated by a paroxysm of his disease, he became maniacal. EPILEPSY AND ITS BELATIONS TO INSAMTY. 99 Patient had been quite utiwell for several days, and the widowed sister had remained at honae with the other sister and mother, to assist in the care of the epileptic brother. He occupied a room opening into the sitting-room, on the floor of which the sisters had arranged a bed, in order to be on hand to attend to his wants ; the mother also occupied the same room. About 4 A. M., patient got up and said he was going to stop the clock, as its ticking annoyed him and prevented his sleeping; after stopping the clock he returned to his room, but did not remain there long. He got up again, opened the door of the sitting-room, and fell flat, or threw himself on the floor, with arms extended. The sisters and mother were much alarmed, and, raising him up, carried him to their bed and laid him down. The mother sat on the bed to be ready to attend him, and the sisters went into the patient's room and laid down on his bed. They had not been there long before the patient, who had in the mean time lost his mental balance and was now pos- sessed of the demon of murder, started up from the bed and seizing a fire-shovel went to the room were his sisters were. He shouted out as he approached them, " I'm going ^o kill you both ; the next place I will meet you is at the bar jf God," and commenced striking them on the head with the shovel. Then throwing that down, he seized them by the throat and tried to strangle them. The mother went to their help, but was unable to render much aid, being old and infirm, and she received some injuries in the struggle. The sisters succeeded in making their way out to the sit- ting-room, and here another fearful struggle commenced, the three women shrieking in vain for aid, no house being near, 3nd the maniacal brother loudly uttering his threats of mur- der. In the contest the stove was overturned and the house set on fire. At length the sisters succeeded in breaking away from the murderous grasp of the brother, and fled from him, Miss P. running out at the front-door, and Mrs. C. starting through 100 EPILEPSY AND ITS EELATIONS TO INSANITY. the kitchen to gain a door in the rear of the house. The patient pursued Mrs. C, and, having got a razor out of a bureau drawer, he overtook her just as she had got the door open and was starting to run. Here another horrible struggle took place, the brother trying to cut the sister's throat, and she battling for life. In the eifort to get the razor from him she received two severe cuts, one in the right arm, just missing the main artery, and the other in the hand. He drew the razor across her throat, making a terrible gash, laying bare the trachea and the root of the tongue, and narrowly escaped the main arteries. Had the cut been inflicted an inch lower, the force with which it was given would have severed the arteries and caused almost instant death. A neighbor coming up at this time knocked the brother down, and after another struggle, managed, with the help of his young son and Miss P., to secure the patient. But it took their united strength to hold him, and they feared that Mrs. C. would bleed to death before other help could arrive. At length, however, more of the neighbors came, the patient was tied, and Mrs. C. was cared for. She had made her way into the house after receiving her wounds, and the sister, knowing that the building was on fire, was afraid that her mother and sister would be burned up, but the flames were soon extinguished, and all danger from that source was averted. On admission, patient was noisy and violent, striking attendants severe blows. Said they had murdered his mother, and were now, as he expressed it, " after his poor carcass." Talked loud and in the tone of a ranter ; said God would call his enemies to justice. He continued in this con- dition for ten or twelve days after admission, when he became more quiet, and began to take food, if allowed, in enormous quantities, and would suffer indigestion, with regurgitation, acid eructations, and gastralgia. On the 29th and 30th of May following, he had severe epileptic convulsions ; after EPILEPSY AND ITS EELATIONS TO INSANITY. 101 these he was quiet, sleepy, and taciturn. On the 10th of June he was removed home, contrary to advice, by the sis- ters on whom he made his murderous attack. He recollected nothing of having used the razor, and, when he saw the ac- count of the transaction in an old paper he picked up in the ward, he was much agitatc^d, inquired anxio.usly after the condition of his sisters, and denied all knowledge of the transaction, for which he expressed great and apparently un- feigned sorrow. We are confident that much of the dangerous violence of persons in epileptic mania results from the delusion of fear of injury to themselves, and the necessity of acting vigor- ously in self-defence. Indeed, so common is the delusion that they are being pursued by enemies with intent to kill, that it may be considered almost a characteristic symptom of this form of mania. That peculiar expression of counte- nance, a sort of blending of fear and suspicion, which all who have seen much of this disease must have observed, points, we think, to this delusion. Sometimes the patient, after recovery from the fit, is conscious of having been ani- mated by this suspicion and this fearfulness of injury; but in most instances, according to our observation, this is not recollected, but forms a part of the blank oblivion in which every thing for the time being is shrouded. A. W. v., aged twenty years, was admitted into the Hud- son Eiver State Hospital, June, 1872. For a number of years he had been the subject of epileptic attacks. He would fall and be unconscious for a time, but not convulsed, breathing stertorous. He would continue in this condition of sleepy unconsciousness for several hours before coming to himself. For nine months previous to admission he had not suffered an attack, but a few clays before coming he was beaten se- verely about the head by a person with whom he came in contact The fits then returned, and he became furiously maniacal and violent. He ran naked into the streets, screamiug wildly, as if animated by the fear of some great calamity. He climbed on the porticos and roofs of houses. 102 EPILEPSY AND ITS BELATIONS TO INSANITY. and when the police approached to arrest him became very violent, striking, biting, kicking, and screaming "Murder!" Before his arrest he had made an attempt to hang himself in his suspenders, and was cut down He quieted down, and when brought to the hospital had a stupid, confused, and sus- picious look. He answered questions slowly, but, asida from pointing out spvere pain- of the head, could give little or no account of himself. He had been bruised severely about the head, and said men had been after him to murder him. The day after admission he was more comfortable, com- posed, and reasonable, and took food moderately, which he had refused, probably under the delusion that it was poi- soned. The third day after admission he was sent to the con- valescent ward. He was quiet and gentlemanly, wa.s visited by his wife and friends, and showed no evidence of mental disturbance. On the 29th, twelve days after admission, he left for home witli his wife, apparently in his usual health. Before leaving the office with his wife on the day of his discharge, we questioned both closely respecting the phenomena attend- ant upon the fits, and the sensations and delusions experi- enced, and elicited from them very intelligent, satisfactory, and, we are confident, correct replies. His wife, who had at- tended him through many of his paroxysms, and watched him CMrefuUy, stated that his chief animating delusion at these times was one of fear. He seemed to think that he was pur- sued by ruffians, who wished to murder him. He would watch closely people that approached him, and move away, keeping upon them a keen, penetrating and suspicious look. If she or any one else came too near him, he became furiously vio- lent and dangerous ; this state, she said, would last from a few moments to half an hour, sometimes for an hour, seldom longer. He would emerge from this condition, as he entered it, instantly, and make inquiries how long it had lasted, and what he had done during the time. His wife asserts that she is confident he did not recognize her during these periods and was as likely to make a violent onslaught upon her as upon any one else that came near him. After coming to him- EPILEPSY AND ITS EELATIONS TO INSANITY. 103 self he had no recollection of the delusions of fear that had animated him, at the same time, had a distinct remembrance of certain physical symptoms which preceded and followed the attacks. It appeared, he said, as if a sudden blindness would ■come over him. A mist seemed to hang before his eyes, and his head appeared heavy and as if constricted by an iron "band. He said he felt as if the skull were to small for its ■contents. He also experienced shooting pains about the prsecordia, attended with difficulty of breathing ; on looking for a length of time at an object, he would experience a sensatioQ of gid- •diness, and he did not feel natural in the head sometimes for hours after his attacks. Before these attacks his appetite would become voracioiis, a,nd afterward he would suffer severely from indigestion, acid, eructations, and gastralgia, with at times regurgitation of food.* A patient now in the Hudson Eiver State Hospital was, for some time, the subject of epileptiform seizures ; he was apparently unconscious for ten or fifteen minutes, but there were no spasmodic movements. He described the approach of the fit as being accompanied by dizziness, with a sensation of what he described as '■' rushing of blood to the head." He says at these times the power of motion was denied him, and he was commanded by God to stand still, as Joshua com- manded the sun and moon These attacks sometimes lasted from half an hour to an hour. This patient also experienced at times hallucinations of hearing. At night he said he heard bells ringing, whether asleep or awake, but never heard the sounds by day At times his fits have apparently been supplemented by paroxysms of violence, during which he would strike any one that came in his way. At one of these periods he spoke * Note, January, 1875. We not long since received a letter of enquirey- flpecting this man from a sheriff of a county in one of the Western States, from which it -would appear that be -was under criminal indictment for some act committed no doubt in one of his paroxysms. 104 EPILEPSY AND ITS RELATIONS TO INSANITY. wildly and incoherently, calling himself a king, and demand- ing from those about him the homage he considered due his exalted , position. This patient, not long since, passed through an attack of acute articular rheumatism, -and since his recovery from this he has had no epileptic seizure, but remains quiet, taciturn, and feeble-minded, but otherwise comfortable. He took formerly much bromide of potassium, but for two months or more he had never taken the remedy, so that his freedom from seizures similar to those described above cannot be ascribed to the influence of this useful epileptic palliative. We see no way of dealing with such cases as we have here brought forward, where the question of responsibility comes up before a judicial tribunal, than by a careful, intelligent, honest analysis of all the facts, circumstances and conditions, by one who has made careful studies of many cases, and is fully acquainted with the strange, curious, and apparently contradictory phenomena they present. Such an analysis will, we are confident, bring out the truth touching the re- sponsibility or irresponsibility of most cases. Herein con- sists the importance of honest, careful, and experienced " expert " testimony, the value of which, in the administra- tion of justice in all such doubtful cases, cannot be overesti- mated. Upon it will sometimes depend the life of a fellow- creature, and the safety, not only of his immediate friends and family, as we have seen, but the entire community sur- rounding him. The True Object of Medical Legislation. By Stephen Rogers, M. D. "There's no fool, whate'er the sex or grade. Monk, barber, shrew, comedian or old maid. Soap boiler he, or pompous pharmaeist, Bath-keeper, forger, or vile abortionist, But has his name among wise doctors placed, And thus, through greed, the healing art's disgraced." —Code of Health. Ordronowx's translation, modified to suit the times. The diseases and the injuries of mankind, and their treat- ment, have, from very primitive times, been subjects of great public interest. While the history of the medical art shows that an occasional exalted character has attracted especial pubhe attention and admiration, it also shows that the ag- gregate standard alone gives the popular status of the pro- fession. The father of medicine remarked, that "medicine is, of all the arts, the most noble : but, owing to the ignor- ance of those who practice it, and of those who inconsiderately form a judgment of these, it is, at present, far behind all other arts. Such persons are hke the figures which are in- troduced in tragedies, for, as they have the shape and dress and personal appearance of actors, and are not actors, so also physicians are many in title but few in reality." This quaint remark of Hippocrates, made more than two thousand years ago, is still far too applicable to a large class of the so-called doctors of the present day. Whatever may have been . the extent of the scientific knowledge of the physicians of those early days, as compared with that possessed by the profes- sion to-day, it is a notable and interesting fact for. the public *Eead October, 1872. 105 106 THE TEUE OBJECT OP MEDICAL LEGISLATION. to know, that those early physicians entertained and incul- cated the most high-minded, self-sacrificing," humane and noble sentiments respecting their obligations to the public In witness of this character of their teachings, we have the oath required of the pupils who went forth into the world from the medical classes of Hippocrates : " I do solemly de- clare, that I will honestly, virtuously and chastely conduct myself in the practice of physic and surgery, with the privi- leges of exercising which profession I am now to be invested ; and that I will, with fidelity and honor, do everything in my power for the benefit of the sick committed to my charge." To the credit of the character of the profession be it said, that this oath is still required of the graduates of many of the medical colleges of the present day. The principles of this oath are indeed the leading features of the ethical code of the profession. Half a century ago, the Medical Society of the State of New York adopted, and has since sustained, the following sentiment : " The importance of the medical profession requires that it should be exercised with fidelity to its scientific principles and approved doctrines; with honor to all its members, and with justice- and humanity to the sick. A departure from these principles constitutes quackery." At a more recent period, the representatives of the profession of this whole country, in the American Med- ical Association, adopted the following creed : " A physician should not only be ever ready to obey the calls of the sick, but his mind ought also to be imbued with the greatness of his mission, and the responsibility he habit- ually incurs in its discharge. These obligations are the more deep and enduring, because there is no tribunal other than his own conscience to adjudge penalties for carelessness or neglect. Physicians should, therefore, minister to the sick with due impressions of the importance of their office ; re- flecting that the ease, the health and the lives of those com- mitted to their charge depend on their skill, attention and fidelity." It is a striking fact, and one of public interest, as indicating the sentiments of the profession at large, that this THE TRUE OBJECT OP MEDICAL LEGISIATION. 107 sentiment forms the first section of the first article of the code of ethics of the American Medical Association. In view of these historic facts, we are not infrequently shocked, as the physicians 2,000 years ago were, to see that honest, laborious professional learning is supplanted by superficial and criminal quackery, much to individual and public detriment. These same feelings were often experi- enced by Hippocrates, by Galen, by Harvey, and by Jenner ; and it can hardly be doubted that they will continue to afflict the true physician to the end of time ; because the great mass of mankind are, always have been and probably always will be, unqualified to distinguish between truth and false- hood in mattters pertaining to disease and its treatment. During the last fifty years, the idea has been very prevalent, and has been vehemently advocated by some of the most prominent medical men of this State, that improved educa- tion of the people would correct the liability to imposition by medical impostures. But it must have become apparent to every observing physician that this is a purely Utopian idea. He daily sees the most intelligent occupants of pulpits, the most gifted members of the bar, the leading statesmen of the nation, not to mention the crowds of well educated and opu- lent citizens, exercise even less common sense and judgment, in the matter of selecting medical adviser, tlian the most il- literate laborer. Though our schools, from the lowest up to the most renowned colleges, include, in their course of instruc- tion, lectures in the, so-called, popular anatomy and physiol- ogy, their pupils and graduates are as facile dupes to mounte- banks as were those of a generation ago. It has fallen within the observation of most of us, that the most ardent advocates of, and believers in absurd, preposterous and even dangerous systems of therapeutics, are found among the instructed people. On the other hand, it is generally admitted that the class of our population whose education is so slight as not to have inspired a presumption to know anything about medi- cine, are happiest and healthiest If instructing the people 108 THE TBUE OBJECT OP MEDICAL LEGISLATION. has effected anything in this country, it certainly has demon- strated that, as respects medicine, "a Uttle learning is a dangerous thing." Further, I call upon the profession of the whole country to witness, that a degree of education which may entitle the person to be ranked as learned, is continually met with in the most remunerative patrons of charlatans and impostors. It is, hence, very obvious that the so-called pop- ular education, and even the university education, are far from producing wisdom iu matters of medicine. Therefore, the education of the people, in the American sense of the term, is not shown to have the slightest influence in protecting them from impostures in medicine. There can be little doubt that this fact results from decep- tion. The people resort to charlatans with the idea, and the belief, that they are either learned or inspired. I cannot be- lieve that many people of the present day agree with that ancient quack, Thessalus, and the more modern one, Para- celsus, that education is useless for a phj'sician. Few under- estimate the value of a knowledge of what ate known among physicians as the elementary branches of a medical educa- tion, such as anatomy, physiology, symptomatology, natural history of disease, pathology and therapeutics. Few of even the most superficially educated people would allow one to undertake to treat their diseases, whom they believed to be totally ignorant in these elementary branches of a medical education, or whom they suspected of being imperfectly edu- cated ill subjects relating to human disease and its treatment. In this view of the subject, the obligations of physicians to the public must be based upon the admission that the masses are, by education, disqualified for determining their own med- ical interests and welfare, and have no right to practice, at their own peril, on the opinions they have so crudely formed, of matters in medicine. If this be admitted as a principle, what justification can be offered for the following sentiments written by one of the old and most respectable physicians of this State ? "So long as a large portion of the commuait.v, including many persons of education and skiU in the manage- THE TRUE OBJECT OF MEDICAL LEGISLATION. 109 ment of their affairs, are willing to employ practitioners offer- ing no guarantee of learning or character, it is not the busi- ness of the State to protect them against their own errors of jn.lgment" The law, therefore, properly "leaves them to make their choice of physician, at their own risk, and on their own responsibility." " Each man chooses his doctor as he does his clergyman. Many make a bad choice, but no one to has a right to interfere." A more fallacious simile could hardly be invented. I will not dispute the right of any one to select his church or clergyman, because we have very high authority for the belief that such clergyman may be equally useful, whether learned or ignoranf, in the worldly sense ; but there can be no question of my right or the right of the State to protect a citizen from exposure to robbery, to murder, or to the chances of becoming a victim to false pretenses, whether the pretender or the criminal be an ignorant doctor or an ig- norant lawyer. Too many of us are vainly hoping that the abuses and the calamities resulting from practice upon this general ignorance of medical affairs among the people, will bring their own correction. With as much reason might we hope that the insects of the coming summer will shun the flame, because their progenitors of the last summer were burned. A very primitive mind can understand how murder subverts all social safety, but it requires a long, studious and laborious training to prepare one to judge in matters of the proper treatment of disease, and of what constitutes malprac- tice. I do not apprehend that this conclusion will be gainsaid by one properly educated in matters of medicine. We do not apprehend any considerable opposition on the part of the people to this proposition as a general truth. If, then, noth- ing is to be hoped from popular education, some means to secure competence in those who pretend to treat disease, is clearly the remedy demanded. If the State can control the violent, punish the criminal, and legislate to protect the rights of citizens, it unquestionably is bound to take every possible means to guard the people against the depredation of pre- tended, but totally unqualified, physicians. Is that an axiom ? 110 THE TBUE OBJECT OP MEDICAL LEGISLATION. The right to health and life is certainly far above the trumpery of property. It is said that past legislation has been inef- fective and eminently unsatisfactory, and therefore no legis- lative efforb promises any better result ; which is equivalent to saying that all attainable wisdom was long since reached in this matter. But few statutes were ever enacted of which similar statements have not been, and could not still be made. Laws are mere expressions of the necessities of a people ; and they grow, change form, and extend as those necessities indicate. That the medical laws brought into existence three-quarters of a century ago, have become mummified, obsolete and in- effective, is by no means a valid reason for not attempting to legislate now. With quite as much reason might we insist that the best steamboat ever run on the Hudson was Robert Fulton's. Let it first be decided if there be any public necessity for legislation, and then the course is clear. On that point, the whole medical profession of the State and Country are, as I believe, unanimous. All know that the people, of this State especially, have no guarantee that the word " Doctor " in front of a house does not point to the residence of an ignorant and dangerous pretender, or a first- class criminal. The profession, fully aware of this fact, have a very clear duty to the public to perform. But in the per- formance of this duty, let us not trip against the rock upon which vast numbers of good pr£»fessional efforts have been wrecked during the last thirty or forty years — the rock of therapeutic details and difference. We must sink this matter of therapeutic contention beneath the surface of the great paramount necessity of adequate instruction for all physi- cians, however named. If we desire to rescue the commu- nity from the soulless quacks, who thrive on human ignorance and credulity^ we have no time to lose, no effort to squander in fruitless disputations about medical sects. In the lan- guage of a late distinguished member of this Society, " it is treason to the interests of humanity to permit, when we have the power to prevent, speculation on human suffering; and THE TRUE OBJECT OF MEDICAL LEGISLATION. Ill if there be a reality in the succors which medicine can afford, it is our duty not only to afford them, but to guard against the frauds which would prevent their timely appHca- tion." If we have ever been traitors to humanity, in any possible sense of the word, let us not repeat the sin. Upon the assumption that a properly educated physician will, in some form or other, do what appears to him appropriate in cases of disease and in wounds, let us insist upon the educa- tion, and leave the collateral questions of therapeutical beUef and faith to the conscience of the individual. The time was when the announcement of a belief in some newly dis- covered systems of therapeutics could be safely attributed to studied fraud, or to monomania ; but that time has passed, and it may now be often ascribed to a sincere and firm con- viction, though upon data which we regard as altogether in- sufficient. If these convictions be unfounded they can be corrected by extending the list of facts upon which they are built ; that is, by improving the education. By this means alone can the public value and the safety of physicians be augmented. It is, therefore, clearly in the interest of the people, and not in the interest of the profession, that all physicians be adequately educated. The people have a right to require it. It is well known that much of the grave dis- ease which reaches the learned and skillful physician has be- come so from the improper management and the tampering of ignorant pretenders and druggists. Pecuniarily, there- fore, quackery is advantageous to legitimate medicine ; and it is no uncommon thing to see the families of the charlatan, whose panaceas are advertised in all parts of the world, placed under the medical charge of the educated physician. It must long since have become evident that no effort to secure the required and proper education of physicians could be as generally successful as desired, unless all those whom the public have been taught to regard as competent physicians, be united in the scheme. There is serious reason for the opinion that the acknowledged failure of legislation, and of the efforts of the county. State and national medical 112 THE TRUE OBJECT OF MEDICAL LEGISLATION. associations, to elevate and to place legitimate medicine in its trne light before the community, is attributable, so far as it is true, to two circumstances, viz., their having been directed to the protection of the profession itself; and that those efforts have uniformly ignored the right of the so-called new schools to any voice in the matter. Medical ethics has also been a large paralyzing element in past legislation. Ethics can never fiud any sympathy or support with the people, or from law-makers. Its field, its duties, and all its prerogatives, are found and enjoyed in the societies organized under the laws, and there it must be con- fined. The people of our day have a right to the assurance that those who offer to serve them as physicians are intelligent in that subject, and it is the plain business of the profession to do all possible to provide that certainty. That being secured, the societies still have charge of ethics, have con- trol of the selection of their associates and members, while the State manages all matters pertaining to crime, misde- meanor or mal-practice. I must take this opportunity to say, that history does not justify the sentiment often ex- pressed, adversely to the influence of county medical, and other medical societies, upon the general character of the profession. On the weKare of the people they have also been strikingly salutary. It is by no means impossible that a re- cent remarkable exhibition of depraved morals, in the Senate chamber of this State, may be regarded as an index of the result of abandoning the public to their own inclinations, un- influenced by this salutary effect of the county medical socie- ties upon the community.* Dr. Stearns, the most public-spirited and distinguished physician of his time, writes of this subject as follows: '• Those who witnessed the origin and progressive settlement * Allusion is here made to the oppositiou to the amendments of the law relative to criminal abortion, offered by Senators Lewis, Bowen and Ohatfield, from the Twenty-fourth, Twenty-ninth and Thirty-first Senatorial districts, including seven counties, three of which have no county society. THE TRUE OBJECT OP MEDICAL LEGISLATION. 113 of the northern and western sections of this State after 1790, will remember the mania that infatuated the emigrants from the east, and the ambitious projects formed by those who as- sumed the title of doctors. Many who had never read a Tolume in medicine, were suddenly introduced to an extensive practice, and to a reputation of such imposing authority as to control the opinions of their superiors in science, and to prescribe rules of practice for their government. Consulta- tions were generally distinguished for gross controversies at the bedside of the patient, whose health and life were often immolated to the ignorance, prejudices or discordant theories of the contending physicians." {Trs. St. S., 1836, 1837.) "It is admitted on all hands that, both in town and county, there resulted from the organization of the county medical societies more harmony, courtesy and a much more liberal feeling among medical men ; and, what is more important to the public, a proportionate advancement in education, general and medical, among them." There is abundant evidence to show that from 1806 to 1830, before the acts repealing the original law organizing the county societies commenced, the influence of those societies in the correction of evils was very marked. We, therefore, see nothing in the past history of legislation to discourage us from attempting, in like manner, to remedy evUs which, if not quite like or equal to those of eighty years ago, are infinitely harmful to our people. The causes which led to the repeal and to the destructive modi- fication of those laws, have been subjects of discussion, have served as themes for orations, and have occupied reflective minds for a generation past. Says Dr. James E. Manley, one of the historians of that period, " the organizers of the State and county medical societies would have been shocked at the bare suggestion that, vsdthin a little more than thirty years from the grant of those charters, medical college-making would become a trade, and that the signatures on their dip- lomas would be lithographed, and they would be sold about tfoe county at various prices, like the ware of an itinerant peddler." He adds : " Is it a matter of astonishment, then, 114 THE TRUE OBJECT OF MEDICAL UBGISLATION. that the public have become disgusted and have lost their confidence in the resources of an art which can admit of such abuses ? We are now suffering the results of all these de- vices to defeat the plain intention of the Legislature in the passage of those laws." In the opinion of this author, public confidence was destroyed, and legislative control of the prac- tice of medicine- was discontinued, on account of professional avarice and corruption in connection with medical colleges. This opinion finds too much support in the fact, well re- membered by our older lawyers and public men, that, thirty or forty years ago, there was a very general loss of confidence throughout this State in the medical profession, and a con- sequent sentiment in the Legislature that, as there had been a failure to secure by law what the people desired, the law might as well be repealed. I am not inclined to extend these comments on the sins of our medical colleges of that early day ; but that too many of those of the present time, even those in our metropolitan cities, are active agents in produc- ing professional corruption and debasement, is admitted by the profession generally. The number of diplomas which have been and are continually sold and issued by medical colleges to persons who are known to be of the worst possible morals, and to well-known fraudulent and criminal advertisers, is by no means encouraging to contemplate. It is a picture as bad as any possible facts about our colleges of fifty years ago. It is, however, simple justice to say, that as a rule, the medical colleges have, during the last twenty years, done a great amount of public good by their zealous and scientific teaching. All, however, are aware that there are too many chartered colleges in our country, whose abuse of privilege, whose venal carelessness of the public good, deserve the most emphatic and public reprobation of every true physi- cian. It has long been the opinion among leading members of the profession in this country, that the only hope of se- curing a proper education of practitioners of our art lay in the concerted efforts of medical societies and medical colleges, and, as a result, the legal and practical respectability which to- .THE TRUE OBJECT OP MEDICAL LEGISLATION. 115 day attaches to a medical diploma is by virtue mostly of the es- timation it is held in by the medical societies, who, so far as I know, have never been imposed upon by accepting bogus ones. Dr. Manley advocated the belief that the medical societies of this State were organized for the high-minded, moral and public-spirited object af securing to the people qualified physicians, and for no other purpose. After testing the workings of the laws pertaining to those organizations for thirty years, and finding they had no power to resist the degenerating influence of the colleges, he thus com- mented upon them. The terms of the charters of these societies were thought to be as liberal on the one hand, and as restrictive on the other, as could well consist with the genius of our political institutions ; the presumption being that what it lacked in power to restrain unqualified practi- tioners could easily be supplied through the influence of the personal character of the members of the societies. He grieved over the disappointment of the profession in this cherished and praiseworthy hope. Notwithstanding this disappointment, and the notorious fact that our medical societies had extended their influence little beyond their members, thirty years after Dr. Manley's lamentations, the American Medical Association resolves, "that whatever is done to establish and maintain a just and fair standard of medical education, must be done by the profession itself through its own volunteer organizations. The profession is competent to declare, through its represen- tative in the national, State and local societies, what shall be the standard of attainments for those to be recognized and admitted into its rank, and to establish the boards or agencies by which compliance with such standard shall be ascertained." So long as medical colleges have power to license to > practice, it is very manifest that this resolution does not state the fact. Societies cannot control admissions to the ranks of the profession, though they may to their own ranks. It is equally clear that the volunteer associations and their 116 THE TKUE OBJECT OF MEDICAL LEGISLATION. boards, contemplated by this resolution, can have no legal status, and, therefore, so far as relates to the public, would be useless. I have already shown that the history of the influence of volunteer medical societies, even though organ- ized under State laws, does not warrant us in the hope that they will afford the public the slightest protection against the impositions, abuses and crimes practiced by unlicensed, xm qualified and immoral pretenders to medical knowledge, nor from unscrupulous though educated doctors not belong- ing to such societies. Now, as to medical colleges alope, it must be obvious that, as the law now is, they are equally powerless to protect the public. There is another unfortu- nate circumstance connected with them, which, according to the American Medical Association, has been productive of much evil. With reference to the matter of the dependence to be placed in them alone, in elevating the general charac- ter of professional qualification, the association above men- tioned says, in a preamble, that "the results of all the efforts made during the last twenty-five years to elevate the standard of medical education, through concert of action among the numerous medical colleges of this country, have proved with equal clearness that such concert of action in an efficient manner is unattainable." The accumulated evi- dence, therefore, goes to convince us that neither the acts nor the resolutions of medical societies, nor of medical col- leges, not even their united action, unaided by the strong arm of the law, will ever assure the people that the sign of Doctor on a door, or on a circular or on a card, is a guarantee that his knowledge of medicine justly entitles him to claim public confidence. It is manifest, therefore, that medical societies and medical colleges, however excellent may be the spirit and intention of their acts and resolutions, have no more power to take measures for the protection of the people against impostors and criminals, unless aided by vigorous and appropriate laws, than would a board of bankers to pre- vent forgery and counterfeiting. While medical societies may guard themselves from evil and criminal association, THE TEUE OBJECT OP MEDICAL LEGISLATION. 117 they have, at present, no power by which they can protect the people from this danger and contamination. Society must protect itself in this respect in the same manner it now does against crimes and misdemeanors. Let it first be re- garded as an offense against the public safety to attempt to practice the art of medicine without adequate preparation, and there will follow little difficulty in obtaining the laws needed for the punishment of the offense. As I have before said, the mass of the people are ready to accept this propo- sition. If there be no sectarian discussions, no further wrangling over therapeutical doctrines, which the public will never appreciate, but a united effort upon this grand requisite of education, the public will support it. All intelligent medical men, whatever be their especial creed, must unite upon this elementary basis of proper edu- cation, with the view of guaranteeing to the people that those who pretend to treat disease are worthy of their con- fidence, and the people, it is believed, will be with them. I am convinced that the time is near, if it has not already arrived, for the people to exact this. If we are not the lead- ers we may become the led: a. position the profession has never yet fallen into, and it is hoped never may. No defen- sible argument can be advanced against the profession's availing itself ot all lawful and available means to secure this public good. At all events, the argument that to secure it by the tacit acknowledgment of a legal and popular status, to dissenting sects, would be professional degradation, is no ar- gument, is not a valid objection, is mere effete twaddle. If the dissenting sects pledge themselves to. the principle that the public good is before sectarian doctrine, the profession can hardly find it expedient to dissent from that proposition. All must unite. What reason have we to hope for such a union of effort ? If the sentiments expressed in ethical codes have any significance, if they index any passages expressive of the actual feehng and sentiment of a profession, they are as truthful for one sect as for another. If it, then, be true that one code is as. reliable as another, there is no reason to question the sincere desire of at least two numerous and 118 THE TRUE OBJECT OF MEDICAL LEGISLATION. prominent sects 'to exact a proper medical education of, all wlio pretend to practice. One of these declares as its creed, that " no person can be considered as a physician who has not, by collegiate attendance or otherwise, made himself ac- quainted with at least the practical portion of the depart- ments of anatomy, physiology, surgery, materia medica, theory and practice, obstetrics and chemistry." Another sect declares that " a complete medical education, of which the diploma of a medical college is the formal voucher, fur- nishes the only presumptive evidence of professional acquire- ments and abilities." The American Medical Association code declares that " a regular medical education furnishes the only presumptive evidence of professional abilities and acquirements, and ought to be the only acknowledged right of an individual to the ex- ercise and honors of his profession." How any diversity of opinion can legitimately exist among three sets of people, governed, or professing to be governed, by codes so nearly identical, is to bfe explained in the same manner that the dif- ferences between religious sects are explained, and, like them, the ultimate result with all is the same. I have been to much pains to ascertain how far this theory is in conform- ity with the actually expressed feelings and wishes of the two sects alluded to, and find the theory fully sustained. Upon that discovery, measures were inaugurated, and have been to a considerable extent matured, which, if adopted, will throw them and the profession before the public in such a position as to test their respective merits and their sincerity of pro- fessed interest in the public good. The measure is based upon a united effort on the part of the profession, with the so-called other schools, to secure what all agree upon. By its adoption, it is believed that a most salutary step will be taken towards professional elevation through legislation.* *This plan waa embodied in the Assembly bill, No. 839 (1872), entitled "An act relative to the Medical Laws df the State of New York," which passed both houses of the Legislature, but the Governor declined to sign it. THE TRUE OBJECT OF MEDICAL LEGISLATION. 119 This measure now appeals to the profession for its sup- port. While it does not hope to effect a professional millen- nium, there is, in its provisions, much which leads to the hope that it will effect a great improvement upon the present chaotic state of medicine. The law that we may thus unitedly obtain will, no doubt, require pruning and grafting, as demand presents, and as evasion indicates, but, as a beginning, it is earnestly hoped that the profession of this metropolitan State will not be the last to indorse it If we thereby succeed in securing such laws as will guarantee to the people that the physician's sign points to the residence of one who is ade- quately educated for his duties, that such sign indicates the abode (in the language of a distinguished member of the late Constitutional Convention) of one who is so trained and edu- cated that the ennobling traits of humanity — sympathy, char- ity, conscience and morality — are prominent in his making up, and that rarely, very rarely, is he a development of sordid de- sires, of cultivated avarice, misantrophy and brutality then, we, as a profession, may appropriately say- to them, in the language of the Code of Ethics : " The members of the medi- cal profession, upon whom is enjoined the performance of so many important and arduous duties toward the community, and who are required to make so many sacrifices of comfort, •ease and health for the welfare of thos6 who avail themselves of their services, certainly have a right to expect and require that their patients should entertain a just sense of the duties which they owe to their medical attendants." There can be little doubt that physicians, as a class, enjoy as large a share of the confidence and respect of the public as their services entitle them to ; and it is very much to be feared that it will diminish from year to year, so long as we supinely abandon the community to the mercies of igno- rant and criminal charlatans. " The first duty of a patient," says the Code, "is to select as his medical adviser one who has received a medical education." "We all know that the mass of the communitv, however much disposed to do so, are totally disqualified for such a duty. Medical attendants are, 120 THE TEUE OBJECT OF MEDICAL LEGISLATION. in very many cases, first seen under emergencies ; and though their advice and their treatment may be truly barbarous, de- structive, and even fatal, yet by dint of ignorant assiduity, before people more ignorant than themselves, such attend- ants may create a favorable and enduring impression. The liability of the people to be decived by cunning pretenders is so thoroughly well known by the profession, that it seems almost unnecessary to even aUude to the fact, in order to present an additional and important reason why every true, honest and humane physician should not avoid any oppor- tunity to prevent it. He will be recreant to his trust, and guilty of behavior unbecoming the model physician, if he petulantly abandon the people, in the midst of this danger which besets them, simply because, in the perversity of igno- rance, they seem determined to be victimized by impostors- Let us convince them that physicians are made by education, and not born ready made. INAUGURAL ADDRESS OP CLAEK BELL, Esq., As PRESIDENT of the SOCIETY.* Gentlemen of the Medico-Legal Society : I ACCEPT the trust you have so unexpectedly and so flatter- ingly conferred upon me, with no little reluctance, and with real concern, through a fear which I trust is not an unworthy one, that I shall not be able, in the administration of its duties, to realize for you what you have the right to expect, and what the well-being, and the future, of a society capable of so much usefulness ought reasonably to demand. I feel that it is not a mere question of intentions, for I am full of good ones for your prosperity and well-being ; but I cannot well see my way clear to devote that time, that skill, and that perseverance, to the discharge of its duties, which has distinguished the labors of my predecessor, and made your Society under his skillful leadership a success, and a credit to you all. Medical Jurisprudence was my delight, in earlier studies, and it is a branch of the legal profession full of interest, and one that will repay the student for all the labor he gives it, while to the medical profession it bears a much more im- portant and ihtimate relation. Few lawyers are brought, except rarely, in direct contact with the leading points involved in medico-legal questions, while the successful practitioner of medicine encounters * Delivered November 14th, 1872. 121 122 INAUGURAL ADDEESS OF CLAKK BELL, ESQ., more freqently, and on every hand, the questions which its study raises. This is doubtless one reason why the past history of your Society has been, in so large a measure, the fruit of the labors of medical men among you ; but it is still quite true, that your ISociety opens a rich field for the lawyer and legal student of medical jurisprudence, and has, doubtless, awak- ened in certain circles among you a desire to enlist amon^ us more talent and members from the bar of the city of New York. It has seemed to me that that large class of cases in- volved in the application, and practical workings of Life In- surance, was a subject to which it would be of service to call the more marked attention of our Society, especially of its legal members, and those physicians who have made Life Assurance a specialty, and with this in view, I shall hope to interest new talent to enrich our future meetings upon this most interesting branch of study. The Criminal Jurisprudence of the country is not the only source to which we may laudably look for our most interest- ing cases. The increased and extended principles involved in many questions in our Probate Courts, and in many of our com- mercial cases, even, have reasonably awakened deep interest among lawyers, and I shall deem it my duty, and esteeem it a pleasure and privilege, to endeavor to awaken among lead- ing members of the bar an interest in our Society, in which, I trust, I shall have the co-operation, not only of my legal brethren among you, but also of the medical men who can each and all, without much effort, materially aid such a move- ment by personal effort and intercession. Medical Jurisprudence, as a distinct branch oj the science of the law, is, and has been for years, taught to the critical and analytical law student ; and the lawyer would be es- teemed imperfectly educated in his profession, who had not mastered at least its elementary prin ciples. Indeed few, if any, of our well-read lawyers could be found who had not devoted AS PRESIDENT OF THE SOCIETY. 123 considerable time and study to this important branch of a tho- rough and complete le^al education. Now, while this is a truism among lawyers, is it equally true that the teachers of med- ical knowledge have devoted the space and time in expound- ing the science of medical jurisprudence to medical students, especially in its legal aspects, that the actual necessities of the case have demanded V I have long felt that there was no more reason why the lawyer should be versed in the medical part of medical jurisprudence, than that the physician should be in the legal part of the same study. Am I right in fearing that the physicians of the age, as a class, are left, when they receive their degrees, by their professors, with but a very limited knowledge of those branches of the law with which they are of necessity to come into immediate contact ? Is there any reason why the medical gentleman should not be versed in all the elementary legal principles involved in the questions which he is called upon to investigate ? How much wider and broader is the vision and judgment of the medical expert, who considers the questions of the hour, in their legal as well as medical aspects, as the well trained lawyer does? I would advise the medical expert who proposed to make medical jurisprudence a prominent part of his practice, to study it from its foundations, elemen- tarily, and in its legal as well as its medical phases. I would have him thoroughly versed in all the statute law of the State bearing especially on that large class of cases in which physicians are so frequently called upon to decide and to act, and I am quite certain that a Chair of Medical Jurispru- dence in a medical college, filled by a lawyer of culture and study, would add largely to the acquisitions medical gentle- men need and ought to have who commence, in such a city a,s New York, the practice of a noble profession with a laud- able ambition to win and deserve distinction. "While I do not think it would be proper on such an occasion as the present, to occupy your time, from the more important duties of the evening, with extended remarks, it may not be out of 124 INAUGUEAL ADDRESS OF CLARK BELL, ESQ., place to briefly advert to the origin, mission, and successes of your Society. It is but six years since its inception, and but a little more than four since its incorporation under the laws of the State ; still, this Society has so industriously pursued the purposes of its founders, that I think I may take the liberty of saying in its behalf, that it has already attained distinction, both in our own country and abroad. Prominent among the various purposes for which this Society was organized, beyond the advancement among its members of that skill, knowledge, and preparation which should qualify them to act wisely, usefully, and intelligently as experts in the exciting cases and questions of the day, was, doubtless, the idea of concentrating and crystalizing the highest talent of the land where, under an organization, it might make its influence felt not only upon exciting public trials, but in urging and pressing important reforms in exist- ing laws, and in awakening public sentiment to the public needs, as to such legislation and reforms. The founders of this body were men who thought and felt deeply on the mission of such a society, and of the broad field of usefulness it ought to occupy. It is a source of just pride and pleasure that I can ask you to allow me to call your attention to the very im- portant part taken by this Society in the advocacy and final passage of the law, now upon the statute books of the State, in regard to the punishment of abortion. This praiseworthy and beneficent result is due to the general public sentiment awakened, aroused, and educated upon this most important subject, by the discussions originated by your Society, and conducted to such favorable issues iinder its direct leadership and supervision. That principle, announced with so much force and courage by my predecessor, in relation to the alleged use of chloro- form in cases of robbery, etc., although at first blush it might have seemed to be contrary to the commonly re- ceived opinion of the public, and perhaps of the major part of the professions of both law and medicine, has, AS PBESIDENT OF THE SOCIETY. 125 through the able, scientific, and masterly manner of its examination and discussion by distinguished members of your Society, come to be received as a settled and fixed principle in this country, and, so far as my experience and observation is concerned, is accepted as sach in crim- inal trials. That admirable paper of Professor Peet, which called at- tention to the criminal responsibility and condition of the uneducated deaf mute, was forcibly presented by a cc mmittee of your Society to the Legislature of this State, but at so late a day in the session (after having passed the Assembly), as to fail of final passage in the Senate for mere want^of time ; but notwithstanding this, the public attention was so far awakened to the wants and needs of this hitherto actually unforgotten class of unfortunates, that there is now no manner of doubt that the bill proposed by your Society will become a law during the ensuing winter. Perhaps there is no recent instance that more forcibly il- lustrates the position actually occupied hj this Society to- wards the public, and the broad field of usefulness opened for its labors, than the case of Dr. Paul Shoeppe, of Carlisle, Pa., indicted and convicted of murder in the first degree, on a charge of poisoning Maria M. Stennecke. The published testimony of the first trial awakened a profound interest throughout this country, and even in Europe, especially in medico-legal circles, and the case coming before your Society, was referred to a very able Committee of your number, who gave to the whole subject a most thorough and exhaustive examination. Your Oummittee ultimately made a report which, ia a masterly manner, analyzed both the evidence and the rulings and decisions of the court, and left little doubt among ex- perts everywhere, as to the innocence of the accused. This able report found its way into the public press, first appear- ing in the "Medical Gazette" of this city, in the summer of 1869, and aroused a discussion upon the merits of this case that was by no means confined to this country. Upon the 126 INAUGUEAL ADDKESS OF CLAEK BELL, ESQ. second trial the accused was acquitted, and the justice of that verdict is now substantially acquiesced in by all experts. The influence of your Society in this praiseworthy and benificent result, is perhaps best illustrated by the testimony of one of the leading counsel in that case, who, writing to the President of your Society, near the end of last September, " But 1 must confess that, if it had not been for the thor- ough examination which your Society gave to the evidence in the first trial (rousing, as it did, all the medico-legal soci- eties in this country, and many medical jurists in Germany), the preparation for the second trial would have been vastly more difficult." The presiding judge at that interesting trial has written your President, complimenting this body for what he styles, " the exhaustive report of your Society, upon which I drew so largely in the discharge of my official duties in that case." John J. Reese, Professor of Medical Jurisprudence and Toxicology in the University of Pennsylvania, recently says to our officers in relation to this case, in a most interesting letter, that — " The New York Medico-Legal Society was the first to utter a protest against that outrage. I think we all must feel gratified at the result of the second trial," etc., etc. One of the noblest aims of the Society, outside of its use- fxilness in public fields of duty, and as regards its own mem- bers, is, doubtless, to elevate the standard of careful, thor- ough and analytical study among experts in medico-legal cases. Much of the criticism urged against the apparent conflict of medical testimony in important and exciting criminal trials, has been, perhaps, due to a want of a high standard of education and attainment by the medical witness upon the given case. Before a witness should be called fully competent to tes- tify as an expert in a cause, he should be critically and AS PRESIDENT OF THE SOCIETY. 127 minutely master, in all its details, of the subject upon which he testifies. It is often urged that the apparent irreconcilability of med- ical testimony, is sometimes due to the peculiar course taken by counsel in examining the witness. It is more frequently due, in my experience and judgment, to an actual want of a thorough and complete knowledge on the part of the wit- ness, of the subject under consideration. This Society should strive to so elevate the standard of excellence among experts, as to arrive, in important legal trials, at the results which science demands, with absolute precision, so far as is possible. Too much attention and prominence cannot be given on your part, to the precise, minute and scientific training of medical experts, who shall c»nfessedly be thoroughly and well versed in that careful and practical knowledge, necessary and essential to the in- telligent and reliable examination of the issues presented in a given case. There will be fewer cases wh«n "Doctors disagree," ac- cording to the old adage, if the witnesses are not M. D's. simply, but if they are thorough, profound and fully compe- tent medical experts ; and a long stride wiU be made in the progress of the work of increasing, both the certainty, useful- ness and public confidence in medico-legal testimony in im- portant criminal trials, where the witnesses shall be only those who have most thoroughly mastered the subjects, and are best qualified to be heard upon the question involved. To deal with all existing and arising cases involving scien- tific medico-legal examination or research, is the natural and legitimate mission of this body, and it is the duty, and should be the aim of every member to bring before it every impor- tant case or question, as it arises, which would be confessedly worthy of its examination and attention. In a body contain- ing upon its roll of members so much of decided and pro- nounced talent from both the learned- professions, organized in the chief city and metropolis of this country, we should not be worthy of the great trust committed to us, if we failed 128 INAUGUEAL ADDEESS OF CLAEK BELL, ESQ., to make the result of the labors and deliberations of this or- ganization take front rank among kindred societies, both in this country and in Europe. "We may laudibly, besides these varied fields of labor and usefulness, so essentially and particularly within our proyince, aim to awaken in both professions concerned in our work, increased interest in and attention to the science of medical jurisprudence ; and broaden and widen our field of labor by enlarging the members of our body, thus increasing our strength and ability to accomplish good and enlarge the area of our usefulness upon and among ourselves. It has occurred to me that this Society might lay the foun- dations, the present season, for one of the most complete libraries upon Medical Jurisprudence extant. The promin- ent law libraries of the city are sigularly wanting in what may be said fairly to be necessary and accessible, volumes on this subject. Exclusive of pamphlets, about one thousand volumes, as near as I am able to learn, are now published in this country and in Europe upon this interesting branch, and no gentleman of either of the professions can well afford to give so much space upon his shelves for all these volumes, while those having our larger public libraries in charge seem not disposed to make this branch so complete and compre- hensive as we should all wish to see it. The moderate sum of two thousand five hundred dollars would probably establish such a library upon a firm, perma- nent and enduring basis, if a suitable location could be found for it, and I have no doubt the managers of the Mott Me- morial Library would cheerfully furnish it a home. I shall esteem my connection with the management of your Society peculiarly fortunate if it shall result in perfect- ing the initiatory steps for such a library, and I should feel great pleasure in co-operating with you in so laudable an undertaking. I have great confidence that success would certainly attend a well-directed and strongly urged effort on the part of this Society for this object, if addressed to the foremost men of the two professions most interested in such AS PEESIDENT OF THE SOCIETY. 129 a library, to raise a suitable amount to make its future cer- tain and assured. Indeed, if the Society should adopt a general resolve, by universal consent, to make it the duty of every member each . year to contribute at least one volume to the library, of which the Society had not already a copy, it would be such a begin- ning as would certainly result in the near future in a library that would be the pride and boast, not alone of the So- ciety, but of the city of New York. I cannot feel justified, gentlemen, in trespassing farther upon your time or indulgence on the present occasion. I shall endeavor to bring to the discharge of the duties of this place such talent as I have, and shall strive to increase and widen the influence and usefulness of this Society by all laud- able and honorable means. I shall ask from you that in- dulgence and charity for all my mistakes and shortcomings which my inexperience in such a position make me conscious of needing ; and I trust that we may, as a Society, continue to improve and advance in the future as we have in the past, and that the Medico-Legal of the City of New York may win and deserve that prominence and place which the most san- guine of her founders desired and intended. New York, November, l-ith, 1872. Juries and Physicians on Questions of Insanity.* By R. S. Guernsey, Esq., OF THE NEW YOBK BAB. In relation to trials in courts of law, when the defence of insanity is interposed, the question has been frequently dis- cussed, or we may say urged, by physicians, as to the pTopri- ety and promotion of the ends of justice and humanity of having physicians only to pass upon the question instead of a common jury, as in other cases. In this discussion jurists have taken very little or no part, feeling satisfied, perhaps, that the law, as it now stands in England and America, in regard to such trials, is in a better form to ascertain the truth and carry out the design of oR human laws — the protection of society — justice to all. There is in a late issue of the Journal of Mental Science, by Dr. Henry Maudsley, the well-known author, an article which was re-published in the August, 1872, number of the Popular Science Monthly, that fairly presents the view taken by physicians on this very important subject. He says : " The ground which medical men should firmly and con- sistently take in regard to insanity is, that it is a physical disease; that they cdonJe are competent to decide upon its presence or absence ; and that it is quite as absurd for law- yers or the general public to give their opinion on the sub- * Kead before the Society, Nov. 14, 1872. 130 JURIES AND PHYSICIANS ON QUESTIONS OP INSANITY. 131 ject in a doubtful case as it would be for them to do so in a case oi fever." The reasons for the law as it stands on this question are too little known among all classes of the community. As the law now is, and has been for centuries, it allows and calls in the help of experts to aid in its own due administra- tion. This is required in all questions arising in which there is supposed to be a peculiar knowledge or skill in any par- ticular vocation, in any science, or art or matter requiring superior knowledge. This rale is applied to questions aris- ing in which the medical profession are supposed to have su- perior knowledge, and insanity is one of those questions upon which physicians are allowed to testify as to their opinion of the case under certain circumstances. The prin- ciple of allowing experts to testify as to their opinion estab- lished the maxim that " Every person should be believed in his own art." The opinion of a witness is in no case evidence to be con- sidered by a court or jury, except when the premises upon which he founds his conclusions cannot be understood by the court or jury without a study or knowledge on the special subject, or without the aid of the knowledge of persons whose skill is superior to their own. In order to be compe- tent to testify as an expert, which means qiialified to give an opinion in courts of justice on a statement of facts pre- sented, an extra knowledge of the particular science, skill, trade, or business, or other matters requiring special knowl- edge, must be shown. A witness of this character is not con- fined to the general rule, that he must state facts only, and leave the conclusions to be drawn from these facts to be deter- mined by a court or jury, under oath he can give his opinion. These opinions or conclusions of judgment which make up such opinions of experts are the same in substance as the verdict of a jury or judgment of a court, which is nothing more than the opinion of such jury or court as to what is established by the facts in the case. This conclusion or opinion, as is that of an expert, is given under the sanction 132 JUEIES AND PHYSICIANS of an oath. There is this difference, however, in the two cases ; the court or jury is under oath while they are making up their opinion upon the facts in the case, and these facts upon which the opinion is predicated are also submitted to the minds of the counsel and parties. The facts were also given by the common witness under oath, upon which the jury or court makes up an opinion as to the credibility of the witness as well as of the weight of his statements. A jury- man can have no private opinion, so far as his verdict is con- cerned. The oath he takes is " to try the issues joined be- ■tween the parties and a true verdict give, according to the evidence." All he can do is to apply his general knowledge in weighing and applying the facts or professional opinions as they are presented to him by the several witnesses. The expert, on the other hand, comes to the results constituting his opinion, which is to be received in evidence, from his own private study, observation and reflection, and though the facts upon which his opinion is based may be called for by the counsel, yet from the very nature of the case it is not to be expected that the jury or court will understand them. The opinion of an expert is the private judgment of the witness given under oath. Such testimony is regarded as of great importance, but from its peculiarity and the crude shape under which it may come before the court or jury, it is to be received with great caution. As the same kinds of guards cannot be thrown around the formation of the opinions of an expert as are brought to bear upon a jury, and the opin- ions of experts cannot be subject to the severe scrutiny that other evidence undergoes, this kind of evidence is not of the clear and positive character or of the value of that of facts. The general rule of law, as expounded by the courts, as re- gards the testimony of experts, is plainly expressed in the language of the court in the case of Brehm vs. Great Western Eailroad Company, in N. T. Supreme Court, 34 Barber, page 256, as follows : ; " Great respect should be paid to the opinion of such a " class of witnesses, but they are no more controlling than ON QUESTIONS OP INSANITY. 133 " those of any other body of men \olien speaking upon subjects " ivhich lie ivithin the range of common observation and experi- " ence." In the case of the people vs. Bodiue, in N. Y. Court of Errors, 1 Denio, p. 281, the Court held that the opinion of a physician is not admissible upon a question respecting which unprofessional men can as well draw conclasions. Thus, where a corpse was found partially burned, and certain por- tions of the body covered with loose clothing were not burned, the opinion of a medical man that the person must have been dead before the fire broke out, as otherwise the covering would have been disturbed, was held inadmissible testimony'. In the case of Wilson vs. People, 2 Parker's New York Criminal Eeports, p. 619, the C )urt held that the question whether a wound was caused by a blunt instrument or not is not a question for scientific opinion, and a surgeon could not be allowed to give his opinion on that point. The N. Y. Court of Appeals, in Kennedy vs. People, 5 Ab- bott, N. S., p. 147, held that the opinions of the medical wit- nesses as to the position of the body when struck inferred from the nature of the wound they had examined, were not admissible as evidence. Chief Justice Tindal, in Eamadge vs. Ryan, 9 Bingham, p. g33, said : " "Witnesses skilled in any art or science may be called to say what in their judgment would be the result of certain facts submitted to their consideration, but not to give an opinion on things with which a jury may be supposed to be equally well acquaiuted." According to the rule above stated and illustrated, should the question of sanity or hisanity of a person be passed upon exclusively by physicians ? This question may best be an- swered by inquiring into the standard by which the subject is to be measured. This standard must be the average man, and hence what we call comm.on sense — that is, a due regard to 134 JUEIES AND PHYSICIANS the usual histUutions and liaUts of mankind* It is now undis- puted that the brain is the seat of the mind, and that insanity is regarded as emanating from the brain, and hence may be caused by a physical disease affecting that organ. Insanity being a condition of the mind, it is, of course, oftentimes v-ery difficult to decide in any given case whether any marked pe- culiarity is the result of a very active and one-sided develop- ment of the brain or of actual disease The general principles on which all decisions of this question must be based are : That tuhen any feeling, passion, emotion, or even a special aptitude, becomes absolutely ungovernable^ so as to make its subject regard- less of his own interests or of the well-being of his friends — loheii, as it were, it absorbs the whole being so as to blunl the reason and conHcience, and urges on to a manner of life and to special deeds that are repugnant to the average institxdions of mankind — then we have reason to suspect the existence of insanity. Al- though the average sentiment and experience of mankind may be an indefinite standard by which to test the sanity of an individual, it is the same standard by which physicians are to judge of it, and the same as that by which they judge that any internal organ of the body is diseased. How is it that a physician can ascertain whether his patient is suffer- ing from dyspepsia or not ? Obviously only by comparing the symptoms that the patient exhibits and the feelings of which he complains with the symptoms and feelings experi- enced by the average of persons who are free from dyspepsia. In precisely the sam e way he becomes informed of t he existence of disease in all organs of the body that are hidden from actual inspection or physicial examination. The brain is en- closed by a bony covering, and cannot be inspected during life except in some cases of injury. Diseases affecting the brain can, therefore, only be studied through the general effects, symptoms and comparisons with other persons.f The law presumes eveiy man to know the consequences of * See Keid's "Intellectual Powers of Man." t Dr. Geo. M. Beard in Putnam's Magazine, Vol. 2, N. S., 1868, p. 513 ON QUESTIONS OF INSANITY. 135 his own acts, and is therefore responsible for them Ferris vs. The people, 35 N T., 125 ; Walter vs. The People, 32 N. T., 141 ; People vs. MeCann, 16 N. T., 58 ; Van Pelt vs. McGraw, 4 N. T., 110; People vs. Orcutt, 1 Parker Grim. Eeps., 252 ; Brooks vs. Bamett, 7 Pick., 94 ; 1 Greenleaf Ev. § 42 ; 2 do., § 689 . U. S. vs. McGlue, 1 Curtis C. C, p. 1 ; U.' S. vs. Holmes, 1 Clifford C. C, 98. The questions to be decided in trials where the defence is insanity are : (1.) Was the accused insane at the time of the commission of the offence? (2.) Was the insanity to such a degree as to render the accused irresponsible for the particular act ? * (3.) Is the evidence sufficient upon which to acquit the accused on the ground of insanity ? These questions are so blended that it is impossible for experts to separately answer any of them without taking the case entirely from the juiy. The first one has little or no relevancy apart from the second, and the second stands upon the third, and all are to be measured, whether by physicians or jury, by the same standard — the common seiv^e of and ex- perience among men. In the case of the People vs. Lake, 12 N. Y., 358, in New York Court of Appeals, the court says : " Upon principle it may be doubted whether strictly med- ical witnesses should ever give an opinion upon the general question of the sanity or insanity of a prisoner, as that is a * It appears from the Report of the Capital Punishment Commission made te Parliament in 1866, that at the annual meeting of the Association of Med- ical Officers of Asylums and Hospitals for the Insane, held at the Koyal College of Physicians, July 14, 1864, at which were present fifty- fourmedical officers, it was unanimously "Resolved, That so much of the legal test of the mental condition of an alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact well known to every member of this meeting, that the power of dis- tinguishing between right and wrong exists very frequently among those -who are undoubtedly insane, and is often assooit.ted with dangerous and TinoonlroUable delusions." 1 Edmonds' Select Cases, p. 34. 136 JURIES AND PHYSICIANS question for the jury. It is in a sense testifying to the very poiat the jury must decide — the general merits of the case, especially upon preliminary inquest to try the fact of in- sanity," Jameson vs. Drinkald, 12 Moore, 148; Eex vs. Wright, Euss & Kyr, 456; Norman vs. Wells, 17 Wend., 161;. Mayer -ys. Pentz, 24 Wend., 668; Fish vs. Dodge, 4 Denio, 311. In criminal case?, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his con- tracts. In the trial of Abner Eogers for murder in Massachusetts, Chief Justice Shaw stated the rule to be, that " a man is not to be excused from responsibility if he has capacity and rea- son sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing, a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him — that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act and its con- sequences — if he has a knowledge that it is wrong and crim- inal and a mental power sufficient to apply that knowledge to his own case and to know that if he does the act he will do ' wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved to the satisfaction of the jury that the mind of the accused was in a diseased and unsound state, the question will be whether this disease existed to so high a degree that for the time being it overwhelmed the reason, conscience and judgment, and whether the prisoner in com- mitting the homicide acted upon an irresistible and uncon- trollable impulse ; if so, then the act was not the act of a ON QUESTIONS OF INSANITY. ]c7 voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it." (2 Greenleaf 's Evidence, § 372.) This has been held to be the law in New York State. (Freeman vs. The People, 4 Denio, 9 ; Willis vs. The People, 32 N. Y., 715 ; U. S. vs. McGlue, 1 Curtis C. C, p. 1, and U. S. vs. Holmes, 1 Clifford, 98. See cases referred to in People vs. Montgomery, 13 Abb., N. S., 207, note.) The only insanity that the law, as above stated, recognizes as an excuse for crime has been termed " intellectual insan- ity," (Taylor's Med. Jurisp.) In McNaghten's case (10 Clark & Fin, 210 and 47 Common Law Keps.; also 2 Greenleaf 's Evidence, § 373), the House of Loi"ds, among other questions relating to this subject, pro- pounded to the twelve judges of England in 1843, the fol- lowing question : " Can a medical man, conversant with the disease of in- sanity, who never saw the prisoner previous to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was con- scious, at the time of doing the act, that he was acting con- trary to law, or whether he was laboring under any, and what delusion at the time ? " The question was answered by Chief Justice Tindal, in which all the other judges concurred (Mr. Justice Maule ab- sent), as follows : " We think the medidal man, under the circumstances sup- posed, cannot in strictness be asked his opinion in the terms above stated, because each of these questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere ques- tions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted, or not dis- puted, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in 138 JURIES AND PHYSICIANS that general form, though the same cannot be insisted upon as a matter of right." The rule is and the New York Supreme Court have so held (People vs. Thurston, 2 Parker's Criminal Eeports, p. 49), that " a medical witness may give his opinion on a hypotheti- cal statement of facts, and it will be for the jury to judge whether the supposed facts so stated correspond with the facts as proved." In the case of the People vs. Lake, 12 N. Y., p. 358, the opinion of the court says : "A medical witness, who has been present during the whole trial, and has heard all the evidence, but no knowledge of the prisoner, cannot, if the evidence is objected to, give his opinion as to the state of the prisoner's mind at the time of the commission of the alleged offence. In such a case, before the questions upon matters of science can arise, the witness must determine in his mind upon the truth of the evidence which he has heard, which is not a matter of science, but of fact for the juiy. But he may be asked whether such and such appearances were symptoms of insanity, and whether such a fact, if it existed (and which has been sworn to), is or is not an indication of insanity. Questions of this nature can be answered without blending mere matters of science with those of fact only, upon which the jury are competent and re- quired to pass." McNaghten's case, 10 Clark Toximative]y. The Locrians demanded eye for eye; Solon exacted two eyes for one. Henry III., in case of rape, punished the perpetrator by the destruc- tion of both, with sexual neutralization besides. As to the killing of a beast, money might secure an indemnification^ what the exaction of a life would utterly fail of. 17. " Life (elegantly observes Dr. Watson), rests upon a real Tripod, the Brain, the Lungs, and the Heart ; either of which failing in function, life expires." Death by Syn- cope begins at the brain, by Asphyxia {Apnoea, rather), at the lungs, by Asthenia at the heart. The Apparatus in es- tablished use for the taking of life under legal forms are the Sword, the Axe, and the Guillotine, each of which effects syncope with general paralysis ; the Garrote which produces death triplicated as it were, causing asphyxia simultaneously besides ; and the Galloivs, which may produce asphyxia alone, or paralysis besides, according as strangulation simple follows . or as the spinal-cord is involved. 18. The Sword. This instrument in dexterous hands has not its superior for the main purpose, as the cuirassiers of Napoleon found to their cost on their first charge upon the Mameluke cavalry in Egypt, 1799. The cimetar in the hands of these foeman would take off a man's head (or a horse's either) at one stroke. In the Taeping Kebellion, Commis- sioner Teh being in authority, prisoners were taken to Canton, the Aceldema of the time, and there decapitated in gangs, a hundred perhaps on a morning.' The culprits having been disposed side to side and face down, the executioner, pre- ceded by an assistant to steady the head by seizing the pig- tail, moved along the line, averaging but five seconds at most THE EXECUTION THEREOF JUDICIALLY. 261 to each man, and rarely making a miss. At Constantinople the headsman is known as the Capidji-Bachi, the ofiiciator upon refractory viziers, peculators and murderers. In Swe- den they have substituted the SicTde-sioord, so called. Among the victims bearing a historic name was Cicero, to whom for- cibly applies a line of the great dramatist — " Nothing in his life So well became him as the leaving on t." 19. The Axe and Block Devoted especially to traitors of noble lineage, and in France as well, the Axe takes us back to the reign of the Conqueror. The same is emblematized in the fasces et secures of Rome under the Dictators. Two sons of the first Brutus, for intriguing with the exiled Tar- quin, are said securi percussi (Livy). Under the Plantagenets and the Stuarts, Evisceration was an accompaniment. Thus Sir Everard Digby, implicated with Fawkes in the Gunpow- der-plot, 1606, first had his heart torn out — (so says Anthony a-Wood). The axe is a clumsy instrument at best. The gal- lant Duke of Monmouth, sacrificed to the jealous hate of that dastard, James the Second, had his neck well nigh hashed into chips {v. Macaulay), in 1685. Similar was the disposition of the Count de Chalais at Katisbon, whom Rich- elieu had proscribed. 20. La OuUhtine. — " La Machine, qui simplement nous tuera " — (as satirized by Peltier, a highwayman, and the first trial-victim, in 1792), has a history — (for inventions in this utilitarian day do not start into being perfect in their begin- nings, as when Cadmus sowed dragous'-teeth which forthwith sprang up in full panoply) — appearing in its rudest contri- vance four centuries since as a Broad-axe worked with a mal- let, then as the Planke da deil (Devil's platform) of the Ger- mans, the Mannaia at Genoa, and later, as the Maiden, until finally adopted, in its present improved form, by the Paris Directory. Of earlier victims was Beatrice Cenci, the beau- tiful and illustrious but most unfortunate of her sex, con- demned at Rome, 1599, on the doubtful charge of p irrieide. 262 FELONIOUS HOMICIDE : ITS PENALTY, AND M< rton the Regent was the first to prove his own chosen machine. A familiar designation, suggested from the name of Baron Louis (an examining Commissioner) was, "La Petite Louison ;" another soubriquet was the Coup-Tetes. 21. The essential parts are two upright posts mortised into one end of a platform and grooved on their inner face, the uperef or axe depending from a cross-beam above, and the lunette for steadying the head. The victim having been bound down in the prone position with head projecting, the axe thus far held in place by a ratchet-spring and now liber- ated descends au declic, with a force equal to the pressure of 12,800 kilogrammes (Du Camp), making the section near the root of the neck. The time required from the arrival of the cortege at the scaffold to the tumbling of the head into the pannier is about six minutes In 1793, 21 Girondists were despatched in thirty-one minutes — " 2 L illustrious heads in 30 and 1 minutes," as M. Thiers speaks of the mournful array. rouquier-Thienville made the boast, that he at a later date had disposed of 62 of the same party in 45 minutes. All told, the victims within the Conciergerie at Paris and in other quarters numbered, according to a chronological table of the day, about 7,000. Of the distingues Louis XVI. led the van. 22. Intercurrent Sensation.s. — Between certain of the insect and reptile species on the one part and the mammals and the human family on the other, there is a non-accordance here. Divide the jugum of a wasp, the barb will yet sting for an hour after or more The head of a rattlesnake has been known to strike its fangs into a man's boot several hours after the division An experiment made at Fulton Market, New York, some time in the winter of 1872, upou the head of a snapping-turtle after severing, showed that the vis vitae might survive, energetic in action, for weeks. The turtle of the Gulf, however, assimilates herein to the warm-blooded genera , but the correspondence abruptly fails as we reach the higher forms of animal life. Strike off the head of the barn-yard cock, the upper lid droops, the cornea is dimmed THE EXECUTION THEREOF JUDICIALLY. 263 and the pupil already fixed. Observations made at the abat- toirs coincide. 23. As concerning Human victims (to speak somewhat in paradox), the negative evidence outweighs altogether the positive. Hindreich of Paris declares, that only a half- dreamy consciousness if that survives in any case ; Eoch, operating one time at St. Omer's, caught a head in its fall, but every vestige of life was already gone ; and, indeed, as he remarks — " Le couteau tombe, c'est fini." The blush (or flush) said to have suffused the cheek of Charlotte Oorday, was an invention for a purpose. At Algiers, 1833, there was made by M. Bonnafont what might be reckoned a crucial experiment, conducted upon two Arab victims. Each head having been caught up as it fell, the neck was forthwith dipped in a jar of pulverized gypsum (for stanching the ooz- ing of blood), a lancet made scarifications upon the cheeks, , and their names were shouted in the ear through a trumpet, but ' the countenance relapsed into a fixed immobility, coldly eomplexionless, and impassive in death. The guillo- tine, viewed as a means iq adaptation to its end, may be em- inently pronounced, a chef d'oeuvre. There lie, however, two serious if not insuperable objections against all inventions suited to decapitation ; firstly, that they break the continuity of the body, but secondly, that they (jpen up rivulets and pools of blood. 24 At the last we reach that iiKnwtrum liorrendinn, that ghostliest and ghastliest of all contrivances for the infliction of a death-penalty aver cogitated into being by mortal man, the Qalloivs The essential parts are, a platform with a cen- tral trap-door, and two posts set upright and surmounted by a connecting-beam, from which last depends a cord with its terminating noose On the Kent side of the Thames, and elevated upon a high rock, there long stood, even into the reign of William IV., a Gibbet as known, designed primarily lor use upon pirates. Its peculiarity consisted in a fenes- trated iron crate, with a snspeQdiag-chain,in which the body was left expose 1 to swing and sway hither and thither be- 264 FEijONiOTJS homicide: its penalty, and neath sim or pelting storm, until the natural progress of decay should have left undissipated the bare skeleton only, Kidd, the sea-rover, hanged at Execution Dock, was gibbeted after, 1701, and in 1759 the self -accusing murderer, Eugene- Aram. Camden attests to the case of a victim gibbeted alive and thus left to starve. 25. The Primitive GaUown appears to have been a Tree, familiarly used among the Teutons, as upon traitors and adulteresses (Tacitus) . Ovid has a corresponding reference,, but Virgil (Aen xii) describes the Latian Queen as swaying from a beam. To a ceiha it was that Guatimozin was strung by his cruel persecutor, Cortez. The Scaiidinavians were wont to select a tree rising from so iie tumulus. The forest of Plessis-les -Tours abounded with sights of victims. Heber makes mention of four huge trees quadrangularly placed in front of the Almoral Gate (Calcutta), which, early in the present century, had their daily consignments. In Britain the oak answered for forest-rovers, a yew-sappling supplying the cord, as did the willow in Erin-land. Early in the revolution of 1789 the Lamp-post (la sinistre lanterne) afforded a ready contrivance, as during the bread-riots, suggestive of the screaming cry that rolled along the barricades, "A bas, les eonpables — a la Lanterne !" The Marquis de Fauvas was the first thus singled out, 1789. 26. At Tyhuni a ladder wa>< originally used for the con- demned to mount by, which being pushed away at the proper moment left the body to fall its length ; but by and by an improvement was devised by one Brodie of Edinburgh (himself the first case of illustration), in the provision of a platform, with a trap-door opening downwards. When Andre w;is executed at Tarry town in 1783, a wagon madfr the temporary support. This same year Newgate became the gallows-plaza. 27. The New York Model.— Bj this method the body, in- stead of being allowed a free fall, is hoisted by a counter- poise-weight. The name of the illustrious mechanician who- in this modification has undertaken to invert in a manner a THE EXECUTION THEKEOF .lUDICIALLY. 265 law of dynamics, the trumpet of fame doth not as yet appear to have caught up. As of "Le Medeein Malgre Lui," who, upon the intimation that he had got the heart on the right of the spinal axis instead of the left side, replied : " C'etoit ainsi autrefois, mais nous avons change tout cela" — so of the disarrangement of parts here. Under the use of this counter-balance, there is for a given length of fall a very considerable loss of force, according to the formula (hX2-\- w) 1 I w: i. €., if the body weigh 140 lbs., and the opposing weight = 300, the working force for a constant space is only as 1 : 1"93; if z«;=500, the force is as 1 : 1'56, a loss very considerably reduced. The weight used upon Avery at Hackensack was 280 lbs. only. At the Tombs, N. Y., the weight is about 300. A yet weightier objection lies here, that the power is grad- uated from the minimum velocity, contrarily as by the Drop, thus allowing the neck to accommodate itself to the strain ; and so luxation, as a result, is a fallacious expectation. 28. Hanging af Sea. — The cord having been reeved thx'ough a pulley aloft, a relay of a dozen men take hold and go for- ward on a ran, and the victim is forthwith swinging from the main-yard. Admiral Byng off Portsmouth, 1757, and the Spencer-trio of the Somers, are instances. 29. When or where originated the suspendaur-per-coUum (susper-col) formula, does not distinctly appear. The word Gallous is Anglo-Saxon, having no congener in any ancient tongue. The bas-reliefs of Egypt present no corresponding figure (Rawlinson) ; and as to the " chief of the bakers" (Gen., xl), the language of the Septuagint (Aphelei fen Kephalen Kai Kremasfl epi Xnlon), indicate plainly that death by decapi- tation preceded the suspension and exposure. 30. In the British Museum is preserved a stone slab, an Assyjian relic, one face of which exhibits a beam with trans- verse grooves accommodated to the form of the human chin, and from which several culprits arranged in file are depend- ing. The mode of death as here indicated was strangula- tion certain. 266 FELONIOUS HOMICIDE : ITS PENALTY, ASD 31. The Hebrew Records are devoid of all allusions to a gal- lows proper. Saul's sons were killed on a certain day, and their bodies nailed to the walls of Bethshan,but subsequently (1 Sam. xxxi). The two sons of Ham an were slain (in the general massacre instigated by Esther) on the 13th Adar, and hanged and exposed on the 14th (Esther vii and ix). The presumption regarding Haman himself is of like tenor. Th6 fickle-minded and irascible Xerxes (Ahasuerus), incensed at what he construed as a demonstration upon the queen, makes a sign to his officers, whereupon they seize the audacious favorite, and, having veiled his face, withdraw to a private chamber and there apply the cork to his neck. All this comes to pass at the banquet hour in the evening ; on the morrow the body is elevated and exposed. 32 Death by Strangulation Series of Phenomena. The body precipitated and abandoned, there is usuallv an interval of immobility, lasting a minute perhaps (save in the swing-, ing around once or twice from the tendency of the cord to untwist itself upon a strain), brilliant flashes then flit before the eyes, and ringing sounds not unlike oppressive music fill the ears, the legs feel an unwonted heaviness and drag, the face becomes phlogosed from constriction upon the external jugulars, and the tongue, also eonstested, often protrudes. The brain itself may be anaemic. Consciousness, variable in continuance, may be early interrupted (Tardieu),* and con- vulsions or throes, moderate or intense (though automatic only after the repression of sense), are present in the ma- jority. 33. The Cord. — The progress of strangulation is regulated much by the position and action of the cord. If there is free play through the spiral knot an equable pressure is estab- hshed all around, and but that the internal jugulars as being more deep-seated are less liable to compression than the carotids, a blood-stasis might be established. The Clove- Hitch, as adverted to on the Avery-Cornell trial, is unadapted to the exigency. Laceration of Trachea is very rare ; Dr. * V de De la Pendaison, Annales d'Hjgiene Publique, 1870 THE EXECUTION THEEEOF JUDICIALLY. 267 Plot, who figured somewhat in the reign of Henry VI, de- scribes an escape throngh ossification of the part. 34. The popular notion that constriction is most thorough when the knot is disposed under the ear (i. e., over the carotid of that side), is a misconception. Bring the knot to the sulcus above the pomum Adami, it makes a point d'appui in front, having for its piece de resistance or fulcrum the rigid vertebral column aback. With this arrangement a short fall suffices, as appears from records kept at the Mazas Prison in France. Of 261 deaths from suicide, effected here prior to 1870, most of the bodies when discovered were found touch- ing by the toes or else resting upon the knees ; a few were asquat, some had a foot raised upon a chair. The explan- tion is this : out of .143 cases specified 117 had the knot in the sulcus, 23 opposite the laryngeal box, and three only over trachea below, but below the ear not one. Burke, the dis- secting room caterer, had a wav of seizing the throat by a grip fi-om behind, the thumbs, one over the other, being pressed into this same sulcus. 35. There is another idea afloat, that a Bull-neck makes a slow death. Doubtless the w inertice or, sag of an athletic frame may scarcely in instances overbalance the physical re- silience of the subject, and of consequence violent struggles may supervene. Gibbs, lianged at Bedloe's Is., 1831, suf- fered mightily, as did Payne, one of the four Lincoln-plotters. The negro Hanky Jones, now bej'oml the natural span of life and so of reduced animal st;imiria, with the further ad- vantage of a ten-foot ball, nevertheless likewise suffered as acutely, or yet more so. 36. Svrvivimi SenfiaUoim under Shrinyulallun. — What is the precise qualit}' and what the degree of intensity of the suf- fering during the agony, is conjectural only iu part. Fleiscli- mann in his own case remarked, that following the sliglit un- easiness which was due to the tightening of the cord there was no conscious uneasiness. A woman (Faure), resuscitated after a suspension of 7 minutes, lost all sense whatever the instant after launching off. Montaignac, saved at the inter- 268 FELONIOUS HOMICIDE : ITS PENALTY, AND cession of Turenne (the cord having snapped), declared that all paia vanished in a momeat and that in the acme of the paroxysm a vivid light pervaded his entire body, conveying a transcendant charm. (Congestion of the brain was the proximate cause here.) Provided syncope be pre-established any recurring convulsionary struggles may be mere reflex movements barely, like as when the heart of a fish detached from the body, will yet throb under puncture, hours after. The current saying, " Hanging is too good for him," is thus iterated in Tifcu=3 Androaicu5, where Lucius, the avenger of his hapless si3ter, in disposing of the monster Aaron, makes this utterance : "Bring down the devil ; for he must not die So sweet a death as hangiag, presently — Set him breast-deep in earth and famish him.'' 37. Browning throws some light upon this speculative in- quiry. The physiological processes being very similar (air being excluded ab extra in the one case and air and water to- gether being rejected instinctively in the other), the sensa- tions would supposably correspond. Dr. Binns says, the idea of death, horrible per ne, was speedily effaced by entrancing visions. Adam Clarke's experience was of the rapturous kind, and meanwhile the events of his entire life seemed to glide athwart his eyes as if in a panoramic procession. Tay- lor, Hoffman and others give corroborative narratives. Dr. Lettsom after repeated inquiries could find no testimony favoring an intermediate consciousness ; Alibert, on the contrary, upon questioning many persons who after either jumping or tumbling into the Seine had been dragged out alive, was answered in most of the instances to the effect that the experiences are horrible beyond expression. Who- ever has repeated the experiment of drowning under a hydrant a caged rat, will be but very slowly persuaded that the sensations in hanging are prevailingly of a delectable kind. 38. In the land of the Ottoman the Bow is the favorite re- sort. The condemned being seated upon a divan, two stout t> THE EXECUTION THEREOF JUDICIALLY. 269 clwarf-miites — " misshapen figures, monsters deaf and dumb " — ^bend to an extreme a stout bow, and so making a loop in the cord, dexterously throw it over the head to encircle the neck. Life goes with a few brief struggles. Polo while in Kathay witnessed a method of asphyxiating, by compressing tightly the nostrils and mouth. 39. Analogous to strangulation is Suffocation. The two princes, children of Edward IV., confined in the Tower by the Hunchback, were smothered between bed pillows. The Ehenish tribes (Tacitus) buried adulteresses in peat-bogs. In Algiers Marshal Pelissier once smoked to death a native force that had retreated to a stronghold, a cave of rocks. 40. Into this class falls Enterrenient Vif. Paretta Mauger, voleuse, was earthed up to the neck, by Louis XI. The assas- sins of Count Capo d'Istria were walled up to the chin and starved, 1831. Sach practices were not unheard of as con- cerning the ladies of Baronial halls. 41. The Peine Forte et Dure, consisted in superimpos- ing a heavy weight upon the chest, that should sufiice to reduce the breathing to a gradual minimum. One Johanna Quick, for speahiny dightingly of that very techy ruler Henry VI., was a ease. 42. Luxation, Fracture. If syncope intervene, whether through sudden fright or extreme lassitude incident to a pro- tracted imprisonment, fracture may be expected ; luxation is more likely when the muscles have been thrown into spas- modic tension under the expectancy of the event. The patho- logic condition either way is compression of the Spinal Cord, with laceration complicating perhaps. The diagnosis is determinable from the slight tremor coursing ad own the body and limbs, and the ensuing muscular adynamia, a symp- tomatic paralysis. An illustration is the way a black-and-tan having a rat by the nape, lays him out in one single shake. , Luxation is favored if the knot occupy the sulcus, as was shown in the case of a suicide-prisoner at Mazas, whose fall was so short that the toes reached the floor. 43. Elongation of the Neck, referable to the elasticity of 270 FELONIOUS HOMICIDE : ITS PENALTY, AND the intervertebral discs, is a regular occurrence, as was ap- parent in the suicide of the Prince de Conde, which occurred in 1830, the toes in this case finally resting on the floor. Sam- son (M de Paris), a famous hourrean in 1789 and bef . re, had a way of springing upon the shoulders of his Arictim,* and then giving the body a twist from side to side, so that a lux- ation was certain. A subluxation would be ineffective. A patient. Miss S., having one day got her head set awry on one shoulder, in making a sudden side-turn, went this way for six weeks, when a spontaneous restoration occurred. M. The Dentatus, formerly supposed the yielding part, is a rarity as such (De la Fosse). Devergie, in 52 examinations, detected but one instance of rupture of the supporting liga- ment. Dr. Eve also states, that of 25 bodies first and last taken into the anatomical theatre at Louisville, not one showed this form of deviation. 45. Le Vil Garrote— thus stigmatized by the Transal- pines — is a Moorish legacy through the Goths to Spain. The primitive fashion was a cord, with a staff (garrote) interposed and held in place by a twist or two, to make the required constriction ; an extemporized tourniquet, simply. Tyndale, burnt at the stake by order of Charles V., though holding out steadfastly against a recantation, was prudently thus stran- gled at first — a privilege conceded by the Dominican broth- erhood to such only as would recant in the trying hour. In hke manner, and in the name of religion, was sacrificed by his insatiable persecutor, and with his beloved Cuzco in view, the last of the Incas, Atahualpa. 46. Suppose an arm-chair, with a slab rising from behind three feet or more, a metallic girdle for the throat in front, and connected with this from behind a stiletto-pointed pin, the two working in concert by wheel-leverage, and you have the modern machine. A six-footed negro gives the wheel two or three rapid turns, forcing the pin-point across the trochlea into the cord-substance, while simultaneously the collar is re- tracted so as to crush in the larynx to flatness. Lopez the * Emmet, 1798, was thus assisted in his struggles by a friend at his side. THE EXECUTION THEBEOF JUDICIALLY. 271 fillibuster, thus executed at Havana, 1857, had a speedy as well as an easy death. The chief objection to this machine is, that the collar makes a complication simply superfluous. 47. At the Communipaw abattoirs the butchers sometimes kill their beeves after this same stiletto-fashion, (what is called Pithing), using a lance-pointed knife. A momentary shiver is the one single symptom. At the bull-baitings in Madrid, when the contest has begun to lag, a matador creeps up stealthily from behind and suddenly plunges his stiletto deep in the nape. Thus the poet of the nineteenth century : " Where his vast neck just mingles with the spine, Sheathed in his form the deadly weapon lies; He stops, he starts; disdaining to decline. Without a frown, without a groan, without a struggle, dies," 48. Abstract of 65 Becent Gases, comprised between 1869 and 1873. Average I'ime in 49, 11:15 minutes. Gord — Bight or Malad- justed 5, Deficient in Length 3, in Excess 1, Buptured 8, (repeat- ed rupture 1). Throes and Contortions — Severe and Gontinuous 23, Moderate 14, Feeble and Evanescent 18. Ghest-heavings (indicative of persisting sensation) 8. Fracture or Luxation— Evident 6, Partial 4, Doubtful 7, by the' N. Y. method 0. Fall in Feet — ^Average in 4 of the 6 cases, 7|. Comments. Time. Tardieu makes the medium 10 m. Dogs (Faure) average 15-20 m. Maignant (Dr. Jacquemin) felo-de-se at Mazas, was found dead within 10 minutes. John Brown, executed at Harper's Ferry, 1859, exhibited only a few struggles, but the heart continued to beat for 85 minutes. There would seem in instances indeed a compromise-coven- ant as it were, entered into between Death and the Hangman, there should evolve the maximum of endurance as compatible with an unfailing result. 272 FELONIOUS HOMICIDE : ITS PENALTY, AND 50. Heavinqs of the Chest. RuUoff, gallowged at Bingham- toD, 1872, proceeded to his station, hands in the pockets of his pantaloons. One hand having got loose in the act of surging upward, he fumbled about until he had replaced it as before. In regard to this class of symptoms Tardieu has de- clared that they are in no case altogether absent, a statement too broad, certainly. 51. Such is a serial Gcdlow.i- Tableau, a picture hideously horrific for sure. Even could the end be reckoned as sancti- fyiag the maans, yet ssarcely this when m^ans and end are so glaringly disproportioned. Strangulations v^ere much more decently effected by the garrote of the Moor or the bow of the Turk ; Luxation, (the result aimed at in the suspen- sion-process) occurs only in 11'7 per cent, of the trials ; wherefore then subject to such supervacaneous indignity one of the common brotherhood, a being possessed of attributes and sympathies congenial to our own, a man formed in the divine image, and that image however defaced by sin and crime, yet not effaced altogether and forever? "What a lamentable thing (says Lord Coke), to see so many Christian men and women choked to death upon that cursed tree, the gallows!" Captain Fluellen, if presumably raoie au-fait at ponto and reverso than upon casuistic subtleties, is about on the square in his exclamation hereupon — "Let the gallows gape for a dog, but leave man to go free." When, when shall there cease to tingle in our ears as it reverberates along the grim corridors of yon living Tomb, that hoarse-voiced thud, as it records the desperate throes of another departing soul ! 52. Ignoring s peculation, let us descend to terra-firma fact, as drawn from Biblical archives. You may search the books of both Testaments through, and yet fail to come upon the first instance even of life judicially exacted for a simple homi- cide. Absalom, a prince of the blood, having killed several of his brothers, finds an asylum in Gerar for two or three years, then returns to the palace to enjoy an open immunity. Adonijah, Barzillai, Shimei, are put to a violent death in- deed, but for reasons putatively political. Barabbas, arraign- THE EXECUTION THEREOF JUDICIALLY. 273 ed for complicity in a sedition, rather than for murder (a makeweight charge only in the indictment), even he gets his enlargement at the behest of a mobocracy. 53. The Jewish Methods of taking life for crime, afford in no instance any usage indicative of the hanging-process. Exposure of the body, indeed, for the fowls of the air to pluck at or the beasts of the forest to crunch upon, (and which, according to the Levitical Law, was to terminate on the going down of the sun), was a treatment not uncommon, but then either the sword or the cord had preceded. Joshua (c, x) "smote and slew, and hanged on five trees," Adoni- bezek of Ai and his four confederates. Abimelech was killed by a rapier-thrusf, for certain (Judg. ix). as was Joab prob- ably, at the hands of Benaiah {Aneile is the word, I K. ii). The 70 sons of Ahab, slain by Jehu in Samaria, were be- headed fll K. viii). 54. Can we,' if only in the prudent view. Abolish capital punishment altogether? Here is a miscreant, who, in the perpetration of a series of diabolic acts, has recklessly thrust himself beyond the pale of human sympathies, one whom " Vengeance (a righteously retributive vindictiveness) suf- fereth not to live ; " allow such a further lease of life, and what shall restrain a populace worked up to furious mood and recalcitrant at mere legal interpositions ? Like as now on our S. W. frontiers, we should see inaugurated Vigilance Committees in permanence ; and as in Tarboro the jack-oak, so in the streets of New York the gas-post would offer the facile resort. " That would be worse." 55. Substitutes for the Galloius. In the "Characteristics," the Earl of Shaftesbury somewhere animadverts upon inno- vators in the terms following : " Many persons have suc- ceeded marvellously in pulling down, yet have miserably failed in building up again." To the test. 56. For the taking of life judicially, various agents and de- vises have first or last been suggested. The Electric Battery is not altogether reliable — Ghlorofm-m has been consecrated to the preservation of human life rather than to its extinction 274 FELONIOUS HOMICIDE : ITS PENALTY, AND — an atmosphere of Oarhonic Add Gas would make a pain- less death, but for an acceptable substitute we must fain search beyond these. 57. In 1855, Prof. Fleming of Cork, in a series of experi- ments, himself being the subject, verified an observation once made by Surgeon Cooper at Guy's while lighting one of the common carotids, viz., that pressure being made in the lacunae back of the angle of the inferior maxillar bone, the two thumbs being so disposed as to embrace transversely the carotids with the jugulars, would establish an absolute Syn- cope within a very few seconds. Wei e a mechanical appliauc sought for, this would commend itself before all others ; and indeed (so says Dr. Cheevers) it has been long since made available, as being facile, speedy and certain in operation, by the Thugs of India. 58. An Alternative, transcending all these perhaps, is what may be denominated the Chemical, Prusxic Acid. — an agent in the Materia Medica now relegated to the class of Toxics. Devergie placed 1 drop on the tongue of a dog, whereupon the animal made 3 respirations, and then dropped dead. Orfila had a female domestic, who fell insensible as in an apoplectic-fit, after swallowing a medicated spirit-draught. Hufeland, Hanke, Taylor and others, have recorded illustra- tive cases. One nearer home, that of Pomeroy of Herkimer, is among the most notable. The dose — 100 drops of Squibb's, and the equivalent of 2 drops of the anhydrous — did its work in 20 minutes In five minutes the patient already mori- bund was discovered in the supine posture and unconscious, the arms being folded composedly across the chest. The pulse, now intermittent, had fallen to 50, and the respiratory acts, scarcely repeated once to the minute, grew feeble and obscure, the pupils were dilated, a coldness had crept over the Kvid surface, until perfect Asthenia or heart-death, the pathologic finale, was established. 59. Adopt either of these two resorts as specified, there would be secured in the conducting of our capital executions these Four Prerequisites: Cer/a/hity in Result, Celerity in THE EXECUTION THEKEOli' JUDICIALLY. 275 Action, Paiiilcssiiess in (he Endurance, and the 3faiiifeiuiiice of a decorous SnIemiiiJi/. 60. 21)e Spedacidar Deiioiiernenf. The Moral Im^refis rea- sonably to be expected from our capital executions as they are, is in large measure neutralized if not perverted. The presence of numbers throws over the scene a false glamour, a pompn mortis (as Seneca calls it), inspiring in the victim a factitious enthusiasm, a forced bravadoism, as if he were en- joying an apotheosis by anticipation ; or again a stolid or a churlish make-face with ribald slang interspersed, may give complexion to the demeanor. The hand-shaking just before the crisis between prisoner and sheriff is only an arrant burlesque. 61. All murderers are wont at the last moment, and, of course, to express the certain assurance of God's pardoning grace vouchsafed them, with a mendacious presumption a good deal proportioned to the atrocities for which they are now paying an inadequate penalty; just as if the crimson , stain upon hands steeped in blood-guiltiness constituted a •passe-partout even to the very gates of Paradise ! The author of " Old-Bailey Experience " shows on the reverse a very different shading, declaring that out of every 20 professed converts 19 are shams 62. The force of Example — which here operates by contra- ries — is most depraving. In the crowd of 20,000 that Strang of Albany drew together, was one Kelly, who having got home again a day's journey after, could think of nothing, talk of nothing, but the one theme ; until having fallen into an altercation with a hired man three weeks after, he shot the man, in the way Strang had behaved before. In the jail at Lancaster where Lechler was hanged in 1822, a prisoner who could see the gallows from his cell, the very night after murdered a fellow-convict, and next morning had fastened to his own wrists the identical manacles that had fallen from the other. What shall we think of a mock-hanging scene, as when a company of boys, at Baltimore rigged up an efl&gy to 276 FELONIOCS HOMICIDE AND ITS PENALIY. be put through a mock parade, in the very hour Palmer was enacting the reality. 63. As concerniBg cases of Moral Insanity, the existing laws are palpably loose, and more especially when the delira- tion is paroxysmal and of momentary culmination only. Can we afford to risk an unrestricted enlargement of this sus- picious class, and especially when their achievements may peradventure be reproduced in a second edition? 64. We need an Official Ea-ectdioner, educated for his duties in the acquisition of a certain amount of anatomical and physiological, and mechanical knowledge somewhat, in whose ' temper is combined the suaviter with the fortiter, as was Ketch, installed 1664, concerning whom the very classical dame observed, that " Only her husband had the secret of making a gentleman go off genteelly." The proffered douceur however — rated in 1647 at " eleven pence ha'penny," had its influence. The Oalcraft, now functus officio, was in manner as rough as if he were hanging a dog only — so testifies ex-Sher- iff Nissen.* 65. We want a further Court of Pardons, that shall exempt the Executive from liability to the charge of indifference, undue haste, or what is worse, accessibility to the corrupt- ing influence of money. A third ordinance, conditioned in behalf of science, might be annexed — the subjection of the criminal's body to a mortui-sectio examination, as that of Earl Ferrers was disposed of at Surgeons' Hall, 1740. Fiat Ji/stitia — or to give the idea a qualified shape, " Eaisons le bieu, advienne qui pourra." * Vid-- Pari. Reports, 866, vol. xxi, Crime Legal Rksponsibility axd AccouNTABrLiTY * By Simon Sterne, Esq. American law, both in its criminal and civil branches, is unsatisfactory in its methods of dealing with those subjects which are quasi of a metaphysical character. The penalty that we perhaps pay for the intensely practical nature of our Anglo-Saxon mind, and the great material achievements which are its resultant, is, that when we come to deal with intricate and dehcate questions, we lack the subtlety and patience necessary for their mastery, and hence fail to or- ganize a body of laws upon such subjects in conformity to what their natures require. I use the words " responsibility " and " accountability " with the object of drawing attention to a distinction not etymologically inlierent in the words themselves, but one which exists in fact ; and I, therefore, during the course of my remarks, shall give to these words an arbitrary meaning, for the purpose of elucidating my ideas. Eesponsibility, in this essay, shall mean a man's answerableness for his acts to society at large, i. e., amenability to criminal law; and "ac- countability," his answerableness to individuals arising from his obligations, expressed or implied, either under contract or from his status in society, such as husband, son, servant, trustee. Every man of mature years is properly held both respon- sible and accountable for his acts, upon grounds both of public safety and private weal. The basis of penal law is the substitution of punishment by the public for private vengeance. Society is inconceiva- * Read Nov. 26th, 1873. 277 278 LEGAL RESPONSIBILITY AND ACCOUNTABILITY, ble to US without the element of authority or coiuuuiud. Even in so simple a form as the cinid' or a single family, au- thority is its basis. Kesponsibility is coupled with the right to issue commands, and exacting, on pain of punishment, obedience thereto. In the primitive ages of humanity these punishments were uncertain and capricious. Founded, however, upon an imperative need of society, they followed the manners, the customs, the jDrejudices of the institutions they were called upon to protect. But everywhere the idea which was at the bottom was the substitution of public for private vengeance, and this substitution did not, until modern times, take abso- lute control of the whole field of crime, as is indicated by feuds, vendettas and reprisals, which have reached down to recent times, and indeed in some parts of the world .still exist. I myself witnessed in Dalmatia a scene which showed that there the right of the vendetta was recognized even until recent years A circle was formed wherein the elders of the village took seats ; the younger ones stood around with heads bared in respectful silence. A crime had been committed : the member of one family murdered the member of another family, and the elder member of the family from which a member had been torn by the murder was permitted to draw some blood from the murderer in expiation. The first change probably came through the priesthood ; the men who committed murder or pillage made expiatory sacrifice to appease the vengeance of the gods, and the priests were consulted as to reprisals, recapture and restitution. A custom thus grew up, of which government availed itself of forms and modes of restitution ; the l&wlex talionifi was proba- bly oi iginally but a rude form of vengeance. The eye for an eye, the tooth for a tooth, was probably but the mere f ornmlization by government of a natural instinct of revenge. Even Greek and Roman law recognize this hx talionis, and have made it a part of their penal law. The many fines for crimes was the first substitution for this rude form of the law of reprisal, and this was carried by the Germans of Tacitus to the ut- LEGAL KESPONSIBILITY AND ACCOUNTABILITY. 279 most extreme — they had a sum to represent ahuost every species of crime as damage to the injured party. The development among each people of each nation of a central authority created a tendency for the substitution of public for private vengeance. This authority, whatever it was, owed protection and re- dress to the offending party, and revenged him. Of course, in the event of these respective mulcts or fines not being paid, personal penalties were inflicted, which varied fi-om absolute slavery to years of servitude for the benefit of the injured party. When you take into consideration that originally the state avenged the individual wronged, that only by revenging him could it induce that individual to refrain- from reprisal by his own hands, it will explain the cruelty of all penal codes down to the present day. The limit to the pain, governments would accordingly in- flict, is but the limit which men, in their savage state, would recoil from inflicting upon their personal enemies. At Athens stoning to death, crucifixion, burning alive, were penalties inflicted not only for a murder, but for treason, cowardice in face of the enemy, some kinds of theft, profana- tion of mysteries or sacrilege. At Rome the condemned were precipitated from the Tarpeian Rock, sewn in a sack and thrown into the Tiber or the sea, burned alive, crucified, thrown to wild, ferocious beasts ; the tonojues of criminals were torn out, and they were frequently castrated. In the middle ages it seems as though all the ingenuity which, at a subsequent period, was used to invent machinery to supply man's wants, was then applied to the discovery of human torture In France al )ne there were one hundred an 1 fifteen differ- ent crimes punishable with death, and many fornas of inflict- ing the death penalty. Burnings to death, horrible mutila- tions were numerous, splitting open of lips, cutting off of noses, ears, hands, feet, and castration, were common penal- ties. 280 LEGAL RESPONSIBILITY A-ND ACCOUNTABILITY. I It was not until the eighteenth century that some change- came, and tfiat simultaneously with the discussion of the- rights of man, although Locke, and Hobbes, and Yattel had written against the system. It was not until Beccaria pub- lished his pamphlet on crimes and their punishment in 1766 that this old system received its death blow. Beccaria,. while denying the right of vengeance, still insisted that the repression of crime was the main justification of the State to act. A modern school — which makes it the duty of the State to enforce the divine or moral law, and to punish as an all-wise Creator is supposed to punish ; which seeks the justification , of punishment in some fancied social contract, and is careful to look into motives — has grown up, and with its fanciful theories, its weak humanitarianism and exaggerated senti- mentality, has well nigh made the repression of crime im- possible. If you will constantly bear in ' mind that the historical basis of all criminal law is the substitution of public ven- geance for the private vendetta, what will follow will appear less harsh than it otherwise might sound. I admit that we should constantly bear in mind the pos- sible improvement of the malefactor, also the efi'ect which cruel and unusual punishments have upon the moral sense of the c immunity ; yet these are but subsidiary considera- tions ; the main idea must always be that certainty of pun- ishment which on the one hand will repress the crime, and on the othei prevent the relapse into the state of the private exercise of the lex lalionis. Having said this much for the basis of criminal law, I shall n(3w proceed to apply the principles historically derived,, to the consideration of some of the questions of the day. Men are to be held as responsible to the public for crimes to person-i as they would be to the persons themselves, or their friends, were there no public or penal law. Motives are- properly of primary importance as matter of moral law and LEGAL EESPONSIBILITY AND ACCOUNTABILITY. 281 moral codes, but are subsidiary considerations in matters relating to criminal law when the act is intended. In all organized society, large classes of exceptions have been made from this general • accountability and responsibil- ity. The king, in monarchial governments, being the foun- tain and source of aU law, is above it, and is therefore neither responsible nor accountable, in the ordinary sense of those terms. Strangely enough, in our own country, the exemp- tion of Government from suits has its origin in the same principle. Persons acting under compulsion, when that com- pulsion is sufficientlj' powerful, have been held not to be accountable, and their responsibility under such circumstan- ces is very much limited. Persons who cannot properly be said to have any wills at all, to wit, idiots are not accountable, and scarcely responsi- ble. Persons of perverted wills, arising from mental diseases, or diseases which affect nerve centres to the extent of bring- ing the will under the control of something other than reason are generally held to be neither accountable nor responsible. It is of the latter class — the insane — that I wish to treat more especially this evening. As wide as is the range aud breadth of diseases which affect the mental organization, and hence the will power, and as various as the forms that dementia may take, should be the dif- ferent degrees of responsibility and accountability to' which that class of members of society should be held. \nd it is herein that the statute laws are glaringly defective — defects which have not by any means been supplemented by the wisdom or scientific attainments of the judges who apply them. There is scarcely amy material difference be- tween the class of evidence which is admissible to prove in- sanity on the part of a testator, and that which is listened to in a criminal court to prove insanity on the part of a mur- derer ; and yet the mental defect which might and should affect the testamentary power of a citizen, ought not in the slightest degree to affect his responsibility as a criminal. It is the unconscious perception of this fact on the part of the 282 LEGAL RESPONSIBILITY HND ACCOUNTABILITY. commmiity which causes its members to regard with so much suspicion aud contempt the, under proper restrictions, per- fectly justifiable plea of insanity, when it is interposed in our criminal courts. Even as to the question of responsibility, various degrees might be established, corresponding to diiferent degrees of crime, holding those excusable only, for the most heinous of offences, who are absolutely insane, and who were unconscious of the act that they were doing, so as to make the act an ac- cidental event, a ad, strictly speaking, not an act at all.- Such a classification would necessarily and in itself exclude a vast mass of testimony which is now taken in our criminal courts upon the subject of insanity, and in future cause the inquiry to be confined to the one question, not whether the man was insane, but whether he had that degree of insanity which would render him incompetent to know the nature of the act with the committing of which he stands charged. It is thus, and thus only, that the law, in its administrative part, can take cognizance of, and keep pace with, the progressive ad- vancement of medical science upon the subject of insanity. It does not follow that that, which the physician, for pur- poses of his own, and for medical treatment, would call in- sanity, should be so classed by the law, except in instances where the man, for the performance of the highest trust with which society can charge him, should be in the full and free possession of all his faculties. That nervous excitability and m-ntal derangement, slight as it may be, which leads men to risk their all in desperate ventures — an excitabilitj^ which even physicians would con- sider a very mild form of insanity — tlie law should take note of, if the person thus affliBted is a guardian of important trusts, and remove him from such trusts, so that his mental peculiarity should not affect the safety of others ; and yet it would be manifestly absurd to say, that such trustee should be permitted to use the same kind of evidence, as an ex- cuse for the murder of his ward, which the person desiring to remove him from the trust of guardian would adduce in LEGAL HESPONISIBILITY AM) ACCOUIvTABILlTY. 283 support of liis petition. Extreme as this case is, it illus- trates my idea of the necessity of a proper classification of the law upon the subject of insanity. Society has been at work, since it exists as such, to repress certain anti-social evils, of which robbery and murder are the rudest forms. To say that the insane should be exempted from the influences of these repressive tendencies, is to im- pliedly assert that the insane are not subject to the influ- ences of fear, or hope of reward ; and no one who has had much experience with them, and who has had their treat- ment in charge, but knows that they are — to a more limited extent, of course, than i-ational persons, still to a very con- siderable extent — influenced by fear of punishment and the hope of reward. To remove the fear of the punishment of the law from their ijnacrinatibn has, in itself, a tendency to increase outward manifestations of insanity, because one of the main motives to correct action is withheld from them. Few insane persons injure themselves with cutting instru- ments, because they have consciousness enough to know that the instrument will inflict a wound if misused, without the slightest regard to the mental (tonditiou of him who uses it. Criminal law should, with very rare exceptions, be quite as inexorable. The straage revolution that takes place in the feelings towards friends and rc-latives on the part of persons suffering from some forms of mental disease, which causes them to regard with enmity and hatred those wliom they should love and cherish, which causes them to disinherit the very people for whom they have laboriously accumulated fortunes, should cause a court to set aside a will made by such a person, on the ground that thus the injury done by the insane person can be set right, and the knowledge of that fact deter others similarly suffering from making such wills. But, for the selfsame reasoo, a criminal judge should sen- tence to the gallows him who, under such a delusion, poisons some dear friend. The knowledge of that fact would have a deterring influence even upon some other one. suffering from the same delusion, from the committing of the like crime. 284 LEGAL EESPONSIBILITY AND ACCOUNTABILITY. Under certain barbarous forms of society it is almost a matter of course that you will kill your enemy, and that your enemy, with equal opportunity, will kill you. It is only in process of years and by slow stages that society has reached the point of overcoming the bai-barians in its midst, and pre- venting its members from gratifying passion or seeking re- venge by such a method. The insane person is upon that point a barbarian. He imagines his friend to be his enemy. But his insanity goes no farther. If permitted by the law to kill his enemy, he will do so. If deterred from it by the fear of punishment, by the knowledge that in killing his enemy he endangers his own life, many lives would be, or in any event may be saved. Anything that involves a 'fian on the part of the insane person which embraces the calculation of . probable events sufficient to enable the criminal also to take into consideration the probable event that he himself will be hung, should be punished precisely as though the person were sane. A crime, however, committed hj one unconscious of tlie act itself cannot in any sense be considered a crime ; it is a mere accident, and the person who unconsciously commits it is blameless. The man who in a fit strangles an- other, without being conscious of the fact that he is strangling is blameless. The man who in a paroxysm kills another without the intent of doing the other any injury, and there being no ill-will between them of any kind which would justi- fy the presumption of any such intent, is blameless. Mary Lamb, who killed her mother, committed no crime. At the time of the act she did not know that it was her mother. She did not know that she was killing. She did not even know that she was injuring her. It was a curious, and, though a natural, certainly a mistaken teadency, which until very recently had taken possession of the medico-legal mind, to suppose that the refinements of physicians upon the sub- ject of mental diseases should necessarily be taken cogni- zance of by the criminal courts ; and many a judge refrained from rigorously excluding testimony which was improperly offered, from the motive, doubtless, that he feared that he LEGAL RESPONSIBILITY AND ACCOUNTABILITY, 285 might be suspected by scientists to be behind the age. There is but little justification, I apprehend, for the complacency and self-satisfaction with which our pseudo-enlightened medical legal jurists look upon the rigorous common law with its simple test of insanity in criminal cases, viz. : whether the man was laboring under such an hallucination that he was unconscious of the conseqviences of his acts. A statutory enactment regarding the grades of insanity, which shall or shall not leave men accountable for their acts, as between man and man, and responsible for their acts to the communit}', would lead to a classification of insanity by its effects upon acts for purposes of the law, in addition to a medical classification hj groups of symptoms for pathologi- cal investigation, and for curative purposes. The objection that would be raised by medical men is, that such classifica- tion would not be scientific, but that objection is just to this extent illogical, that it assumes that there is no scientific classification other than that which is adopted for medical scientific treatment. Jurisprudence is a science, having for its objects the preservation of society, the substantiation of human rights, the redress of wrongs, and the enforcement of the social law of status, and if, for its purposes, it adopts a classification based upon acts, instead of forms of disease, and groups together widely different and diverse objects, from the medical standpoint, it deals scientifically from a juridical point of view, quite as much so as when it deduces rights and remedies from the relation of husband and wife, and parent and child, without regard to the differences physiolo- gically and psychologically, of the people of the community who enter into or find themselves in such relations. I have before observed that wherever a motive exists, however slight it might appear to the judge before whom the ease is tried, or the jury who are to give a verdict, the law should act rig- orously and inexorably. No uncontrollable frenzy causes people to dash out their brains, because of some slight self- reproach, by beating their heads against a stone wall, if they do not intend to commit suicide ; and that arises simply from 286 LEGAL RESPONSIBILITY AND ACCOUNTABILITY. the knowledge of all men, however rude their instincts, that natural inanimate objects pay no regard, in their effects, to the frame of mind in which the man may be. It is just the savagery which such mental conditions exemplify, that society has been striving for centuries to overcome, and members of society who are seized by such frenzies should be put out of it. It would be amazing to anyone were the history of some rude, savage people ever written, how innumerable the in- stances that we would then have recorded of desperate atro- cities from what would seem to us very trivial causes by peo- ple who are not insane. The classification upon the matter of accountability and responsibility would be about as follows : The first class should be composed of such persons who should be removed from trusts, and comprise all who suffer from idiosyncrasies so marked that they border upon insanity. Under the second class — persons who are not fully accountable — may be com- prised those who suffer from melancholy, hysterics, incipient monomania, and all such as suffer from intermittent attacks of nervous diseases, also all epileptics and drunkards who, although they can frequently tell beforehand when they -are liable to their fits of epilepsy or drunkenness, are nevertheless placed in frames of mind during their freedom from attacks which makes them in part non-accountable. As part of the in- terdiction to enter into contracts, there should be an absolute prohibition to those who suffer from hereditary or transmis- sible diseases to enter the marriage state. When we consider the vast misery inflicted upon subsequent generations, the deterioration of the race, and the lowering of its average of strength and wholesomeness by the adoption of the laisse /aire principle upon that point by Government, very grave doubt may be entertained whether Government has not neg- lected an obvious duty in this regard, "without a compensating advantage ; and all of this class should be incapacitated from making executory ccmtracts, except with the consent of a guardian — but all of this class should be held strictly re- sponsible. LEGAL KESPONSIBILITY AND ACCOUNTABILITY. 287 Tlie third class would be comprised of such who suffer from insipient stages of softening of brain, lunacy, and mono- mania of a virulent type, also all cases of chronic, progres- sive and incurable intermittent nervous disorders. With the members of this class tlieir whole accountability should cease, and their responsibility be limited to felonies only. The fourth class includes idiots, incurable lunatics, those who suffer from dementia senilis, apoplectica, and dementia paralytica In such cases Ijoth accountability and responsi- bility should be presumed to cea-se; a presumption rebuttable, however, in the case of felonies committed, by proof the making of a plan indicating calculation of probable events. This classification, insufficient and tentative as it is, is nev- ertheless, to my mind, an indicator of the true method of the future progress of juridical reform in dealing with the ques- tion of accountability and responsibility. SECOND INAUGURAL ADDRESS OF CLAKK BELTJ, Esq.* GenfJemen of the 3Iedico- Legal Sixiely : In assuming again the duties of the office of President of 3'our Society, through your kind preference and partiality, I suppose you will not consider it amiss in m(! to call your at- tention to the labors of this body for the past year, as well as to look forward to the field which should be its mission in the coming one. I take it, gentlemen, as a good omen, that we have received into our membership, for the year closing at the Annual Meeting, ].48 new members, 102 of whom were chosen from the Bar of this city, and 46 from the medical profession. This is no small growth for so young a society, and one of which I think you may well and justly feel proud. I think I may fairly claim for this Society that it has not deterior- ated nor gone backward in the year that has passed ; but that, on the contrary, its increase in usefulness in the path and line of its mission, has kept step and pace with the in- crease of its members. The discussions in this body have ranged over a wide field of subjects within the realm of medical jurisprudence, and the contributions made to the world through the medium of this society have not ,only enriched the current literature upon these topics, but have frequently been the theme of popular discussion by the public press — not alone of our own country, but of lands beyond the sea. * Delivered November 26tb, inya. 288 SECOND INAUGURAL ADDBESS OF CLARK BELL, ESQ. 289 It may not be improper on such an occasion as the present to call your attention to the radical change wrought in our criminal statutes, in relation to the trial of homicides and their punishment, mainly through the instrumentality of a Tery distinguished member of this society, Mr. Henry L. Clinton, which has passed into the settled law of the State, ihe progress of which you have watched, discussed and en- couraged at your sessions, and the wisdom of which seems now generally conceded on all hands. Your Society, gentlemen, has also been the means of awakening interest and discussion on the questions involved in investigating criminal trials where the defence of insanity is interposed. You have seen and felt the great importance of this inter- esting subject, and noted the scandals that have been oc- casioned by their frequent improper interpretation, and the introduction of illegal evidence in important criminal cases, as well as the great public need of a therough enlightenment of bench, bar and medical experts upon it ; and I venture to say, that the discussion and action of your body in the con- troversies of the past year, and those that are now pencjing, have awakened a profound interest in the elucidation of questions so important to the proper and complete admin- istration of justice in criminal courts, not confined to your body, but which the great mass of the thinking men of both professions are now considering. It should, I think, be one of the objects of this Society to extend itself more and farther ; and to foster and encourage a movement, which, under such auspices, cannot only unite the two professions of law and medicine in nearer and closer bonds, but can be useful in bringing into near and more in- timate social relations in this great city two classes of men who, intent upon their several avocations, and proverbially the hardest worked of all others, can find in this society the means of pleasant, social intercourse, and of elevating and extending this important science into new fields with benefi- cent results. 290 SECOND INAUGURAL ADDBESS OF CLARK BELL, ESQ: It was decided, gentlemen, during the past year, to prepare for publication a collection of the various papers and contri- butions that had been made to this Society down to the close of the year 1872, and to include all that, in the judgment; of the Executive Committee, were entitled to a place in such a Avork; which will be issued, bound in the usual style and form of a law volume, and will, as we believe, mate a valua- ble contribution to the current literature of the world upon th,e subject of medical jurisprudence. • I have great pleasure in announcing that the publication of this volume is in progress, and that it will now shortly, as I trust, be issued under arrangements by which members of the Society will be entitled to receive it at the wholesale price from the publishers. It is proposed to follow the publication j of this work eaph year by a volume which shall embrace not, only the transac- tions of this Society, but which shall also contain all the valuable contributions made to it during the yeai;. The management of the Society during the past season inaugurated an annual dinner, which was given with great success, as so many of you will remember "v^ho were present and participated in the festivities of that happy and jolly occasion. And I doubt not,, it will hardly need a recommen- dation from me to induce joxl again the coming winter to renew, on a similar occasion, the friendly intercourse of the two professions around the festive board. . , I shall not, gentlemen, on the present occasion, speak of those topics that have engrossed our attention in our pub^lie discussions, and which are still before us — at least to give my own views upon them, as I may have done on a former occasion, when first entering upon the duties incident to this chair — but I cannot consistently, with my views of my duty, forbear to call your attention to a subject in which I take a deep interest, feel a great pride, and which I think I may now say is destined to be prominently connected with the destiny and near future of this Society. I allude to the subject of a Library of Medical Jurispru- SECO;^D INAUGURAL 4.DDBESS OF CLARK gELL, ESQ. 291 dence, founded here linder the auspices of your Society, which shall be an honor and a credit to its founders through all time, and long after each and every of us have passed away. I took the occasion to remark, when I accepted this chair last season, as follows : '' It has occurred to me that this society might lay the fovmdations the present season for one of the most complete hbraries 'upon ^MedicalJurisprudence extant. The prominent law libraries of the city are singularly wanting in what may be said fairly to be necessary and accessible volumes on this subject. Exclusive of pamphlets, about one thousand vol- umes, as near as lam able to leaJrn, are now published in this country and in Europe upon tliis interesting branch, and no gentlemen of , either of the professions can well afford to give so miich space tiponliis shelves for all these volumes, while those having our larger public libraries in charge seem not disposed to make this branch so complete and comprehen- sive as we should all wish to see. " The moderate sum of two thousand five hundred dollars would probably establish such a library upon a firm, perma- nent and enduring basis, if a suitable location could be found for it ; and I have no doubtthe managers of the Mott Memo- rial Library would cheerfully furnish it a home.' " I shall esteem my connection with the management of your society peculiarly fortunate if it shall result in perfect- iiig the initiatory steps for such a library, and I should feel great pleasure in co-operating with you in so laudable an undertaking. I have great confidence that success would certainly attend a well-directed and strongly urged effort on the part of this society for this object, if addressed to the foremost men of the two professions most interested in such a library, to raise a, suitable amount to make its future cer- tain and assured. "Indeed, if the society should adopt a general resolve, by universal isdhsent, to make it the duty of every member each year to contribute at least one volume to the library, of which 292 SECOND INAUGUBAIi ADDEE8S OF OLAEK BELL, ESQ. the society had not already a copy, it would be such a begin- ning as would certainly result, in the near future, in a library that would be the pride and boast, not alone of the socie^ty, but of the city of New York." The society was so kind as to second and adopt those recommendations ; and such a general resolution was unani- mously adopted, making it the duty of every member of this society to contribute one bound volume upon medical juris- prudence each year to the society. A committee, embracing some of your most honored and lustrous names, made a report recommending this project to your favorable notice, and dwelt upon its want and its im- portance ;, and the movement thus started has been, it may well be said, successfully inaugurated, and the future success of the library assured. , , i append, herewith, the action of the society— the report of the Library Committee, and the names of the volumes already contributed to the library, and their donors, together with a complete list of the members of this society, and the papers contributed during the past year. I have also started a subscription for this library, which I propose to call shortly to the attention. of members, which will, I have little doubt, enable us to finish our work — con- sidering how small a sum is needed to complete and enrich our collection with all works upon this subject now pub- lished. I trust that every member of this Society, who has failed during the year that has just closed to comply with the terms of the resolution of the Society — to donate a bound volume each year — will at ouce make suitable amends, by making such a contribution both for the past and the ensu- ing year. I i-hall not dismiss this subject without many thanks to the great liberality of some of the donors, for very valuable contributions indeed, nor fail thus pttblicly to thank Mr. David Dudley Field for a subscription of $100 to the library fund ; Mr. John H. Watson for a like subscription of |50 ; SECOND INAUGUEAL ADDRESS OF CLARK BELL, ESQ. 293 Messrs. Yeaman, Winterton Eiddle, and Dr. J. E. Jamison of $10 each, besides an annual subscription by our worthy Corresponding Member, E. S. F. Arnold, M. D., now of New- port, Rhode Island, of $10 each year. Thanking you, gentlemen, for the high honor of being again selected to preside over your deliberations, desiring for the Society a prolonged career of usefulness in the ac- complishment of its high mission, I shall hope to receiye that encouragement and aid from you all in the future which has rendered my past labors in this chair a delight and a pleasure. MEDICAL JURISPRUDENCE OF THE STOKES CASE.* By Eugene Peugnet, M. D. PAET I. HISTOKY OF THE CASE OF JAMES FISK, JK. This history is drawn up from the transcript of the notes of the court stenographer, and from the report of the inquest made by the coroner. James Fisk, Jr., 37 years of age, in the prime of life, and of comparatively abstemious habits, received two pistol-shot wounds at about four o'clock on the afternoon of the 6th of January, 1872. The following is extracted from his ante- mortem statement : " I came through the outer door, and was going up-stairs, and had gone up about two steps, when look- ing up I saw Edward S. Stokes at the head of the stairs. As soon as I saw him I noticed he had something in his hand, and a second afterwards, I saw the flash, heard the report, and felt the ball ,enter my right side ; a second shot was fired immediately afterward, which struck my left arm. When I received the first shot, I staggered and ran towards the door, but noticing a crowd in front, I ran back on the stairs again ; was then assisted up-stairs and into this room " 4:20 p. M. — Dr. T. H. Tripler found him standing with his coat off. The Doctor first observed the wound in the left arm, but from his position thinking that there was some- thing wroDg, asked him if he was hurt anywhere else. He replied. "Yes," pointing to his abdomen. His pulse was * Bead December 26(h, 1873. 294 Please paste in facing page 294. ERRATA. Insert "either " after "evidence is," 19th line, p. 164. At p. 179, insert "solid portion" before last sentence on page. " Expert," p. 184, should read " Exparte," gth line. " Period after services " As " should be the beginning of a new sentence. " As," and to 4th line, " the," should be connected with preceding sentence. P. 182, 2d hue. " Traits" for " notes," p. 200, 2d line from bottom. Page 206, middle of page, after " i," should read, "The faculty of reason has been made subordinate to to the faculty of reverence." 75 instead of 45, 13th Une, page 297. The words, "The general appearance of the body was blanched," omitted after the word " marked," 6th line, p. 300. Insert " in " before "Direct," 3d line from bottom, p. 302. After " apparently " insert " deemed," i6th line, p. 304. After "had they," 24th line, p. 304, insert "then." " At a quarter of eleven another half a grain of the morphine administered hypo- dermically," omitted, should be inserted end of 2d line, p. 306. Insert " dis " before " continue," 13th line, p. 306. Change letter t to letter s, gth hne from top, p. 308. Should read " sighs." Insert " no " before " evidence," p. 308, nth Une. Insert " Clinical " before "History," p. 310, Une 10. Insert " curative " before " effort," p. 310, Une 6 from bottom Insert "not" before "Uraemia." p. 313, line 19. " 120," instead of " 112," loth line, p. 315. Insert " 20 " instead of "30," Sth line from bottom, p. 316. "20" instead of " 18," 4th Une, p. 318. " Points raised by the," insert before "defense," 6th Une from bottom, p. 321. Insert " Charles" before "A. Leale," 24th line, p. 325. Insert " exact " before " amount," p. 327, Une 7. MEDICAL JURISPBUDENCE OF THE STOKES CASE. ' 295 then imperceptible, respiration estimated about 20, pupils of €yes dilated, the lids drooped over the globe, and there was a dark circle under the eyes. The Doctor rolled a bandage around the wounded arm, gave him two ounces of brandy, and led him to the bed, then proceeded to make an examina- tion of the wound in the abdomen. It was situated about five (5) inches above the umbilicus (navel), and two inches to the right of the median line. The wound was circular, and about half an inch in diameter. On passing in a probe about three and a half (3^) inches, it was found that the wound had an oblique direction downwards, slightly backwards, and from right to left. 4:50. — Pulse, 76, weak and irregular ; resp., 26 He re- cognized Dr. Fisher, who had just come in, and gave him his hand. Two ounces of brandy were administered by the mouth, and a cold compress applied to the abdominal wound. 5. — Said that " he felt more comfortable, but had some pain in the bowels." 5:15. — Pulse, 74 ; resp., 24, and more regular. More com- posed; complained of pain, and appeared to be restless. A few swallows of water were given to him. He was lying on his back, with the left arm resting on a pillow. Counte- nance agitated and pallid. Skin cool and moist. Pupils dilated. 5:45. — Pulse, 74; resp., 24. He was pale; skin cool, and covered with perspiration. Half a drachm of chloroform was then administered, as an anaesthetic, by inhalation, and at his own request. Whilst partially under the influence of it. Dr. James E. Wood carefully introduced a Nelaton probe about four (4) inches into the abdominal wound, but failed to find any evidence of the ball. Dr. J. P. P. White, before the withdrawal of the probe, felt a resisting substance, the ten- don or muscular fibres of the rectus muscle. Dr. Fisher then examined, and also failed to find the ball. Dr. Wood found, after he came out from under the influence of the chloroform, that his pulse was more full than usual in cases of nervous shock. He was anxious, restless, and his eye 296 MEDICAL JXJBISPEUDENCE OF THE STOKES CASE. growing dim. His extremities were cold, the lower ones quite so. Two ounces more of brandy were then administered. Drs. Wood, White, Th. Steele, ^F. W. Fisher, and Tripler present. 6:45. — Appeared uneasy and complained of pain in his bowels. The extremities were cold, but hot flat-irons were applied to them, which he said " made him feel more com- fortable." Drs. Fisher and Tripler in attendancf\ 7:10. — After having given directions for making his will, duly executed it. 7:30, or thereabouts — One quarter (^) of a grain of mor- phine in solution was administered by the mouth. Dr. Tripler. 7:45. — Pulse, 74 ; resp., 26. Complained of pain, and asked Dr. Fisher "If he had ever eaten green apples in the coun- try?" Said "it felt like an old-fashioned country green- apple bellyache," and asked for a stronger dose of medicine, saying that " He was as strong as an ox, and that it required four times as much to affect him as any ordinary person, as he had found that last week he had to take a very, strong dose of medicine to move his bowels." One quarter (|) of a grain more of morphine in solution was then administered to him by the mouth. 8:15. — Pulse, 72 ; resp., 30. Has been quiet at times, but mostly rest' ess and uneasy. Complains of pain. Some eructation of wind, but no nausea. He said, " Give me more medicine ;" and was then given ten (10) drops of Magendie's solution of morphine (equal to one half (J) of a grain of the salt*). Shortly after he said to Dr. Fisher: " Do you think that there is an even chance of my recovery ?" 8:30. — Pu^se, 73; resp., 35. Remarked that "he did not wish to be left alone." Asked for a drink of water, and it was given to him. 9. — Pulse, 73; resp., 35. "Complained of green-apple * When Magendie's solution is dropped from a narrow-mouthed ounce ■vial, it will only avirage forty (40) drops to the draeUm; therefore twentjr (20) drops contain one (1) grain of the salt. MEDICAL JUEISPEUDENCE OF THE STOKES CASE. 297 bellyache, and if lie could only get rid of the pain he would be all right." Dr. Sayre says that "his pulse was good, steady, and regular, at 74 or 76. He was exceedingly pale, unusually white, but perfectly cool and collected in his mind. There was a paralysis of the entire surface of the body, the capillary circulation of the surface had stopped." Drs. L. A. Sayre, White, and Fisher present. 9:35. — Pulse, 72; resp., 32. His skin was warm and moist. Pupils contructed. Complaining of great pain in his bowels. Twenty (20) drops of Magendie's solution of morphine (equal to one (1) grain more of the salt) were then administered by the mouth. Drs. Fisher and Tripler. 9:45. — Pulse, 45 ; resp., 36. Was somewhat easier ; atthis time he was perfectly conscious and composed. He was giyen a few swallows of water ; took it and drank it himself. 9:55. — Pulse, 80 ; resp., 34. Still complaining of griping pains in the bowels. A hypodermic injection of fifteen (15) drops of Magendie's solution was then inserted under the skin of the left arm (equal to three-quarters (5) of a grain more of the sulphate of morphine). In a few minutes he asked for some water, and made some other casual remarks. 10:45. — " Still complaining of great pain and distress in the abdomen, and then asked for another injection of mor- phine." One more of 15 drops of Magendie's solution (equal to three-quarters of a grain) was inserted into the arm. 11. — Pulse, 90; resp., 32. Skin cool and moist. Dr. Wood says : " I found Mr. Fisk in a better condition than I expect- ed to find him. It was recommended that the treatment should be discontinued. He conversed with me, and told me that he hoped everything would be done that could be ; that he was worth saving. He was more or less affected by the remedies that had been used." Dr. Steele : " I think in a measure he had rallied. The temperature of his skin was better. He was perfectly rational."— Dr. Tripler: "About 11 o'clock the pupils were slightly contracted, but sensible to light." — Dr. Fisher: "Was sleeping, but easily roused, and drank some water."— Dr. Sayre (at about half-past 11): " He was asleep. 298 MEDICAL JURISPBUDENCE OF THJfi STOKES CASE. quite profoundly asleep, but easily aroused." Dr. White was also present. , 12 M — Pulse, 100 ; resp., 26. Asleep, iQoved a little. Drs. Fisher and Tripler. Jan. 7th, 1 A. M. — Pulse, 132; resp., 22. Patient awoke voluntarily and asked for a drink of water. Said that " he felt perfectly easy." His skin was warm. Pupils contracted and reacted to light. A cold compress was applied to the abdomen. Two ounces of brandy and water were given him. 1:30 ^Sleeping quietly. Dr. Fisher alone. 2. — Pulse, 126; resp., 20. Whilsthis face was being sponged off with water, he awoke' and remarked that " He felt first rate." Two ounces of brandy and water were then given to him, and he soon fell asleep. 8. — Pulse, 124 ; resp., 22. Four ounces of urine drawn off with a catheter. Abdomen somewhat swollen. Two ounces of brandy and water were then given to him. 4:15. — Dr. White came in, and whilst conversing with Dr. Fisher, Mr. Fisk awoke. On inquiry he said that " He felt easy, ashed for a drink of water, took it in his right hand and drank it, raising his head somewhat, and fell asleep again." — Dr. White : "At four o'clock his pupils were pretty well con- tracted, but reacted by moving the candle. Pulse, 128; resp., 22." 5. — Was sleeping soundly. Dr.. Fisher spoke to him, but he made no answer. 5.20. — Pulse, 135 ; resp., 20, and irregular. Dr. Fisher : " I spoke and evdeavorfd to arovse him, but was unsuccessful. I rubbed his extremities with ammonia, and applied the same to the nostrils ; it seemed to produce no effect. I endeavored to force his mouth open to give some brandy and water." But the Doctor did not succeed. 6.30.— Dr. Fisher : " Pulse, 130, and weak ; resp., 20, and rather easier. Still unconscious. Pupils still sensible to light. I rubbed his arms and Umbs with ammonia. Could not arouse him." — Dr. Tripler: "I sponged his surface all over with aqua ammonia, also administered an injection of four MEDICAL JUBIbPEUDENCE OF THE STOKES CASE. 299 ounces of brandy and milk. At the same time applied mus- tard paste to the pit of the stomach and abdomen, and rubbed his feet with a similar paste." — Dr. Sayre : " At 6 or 7 o'clock, it was very early, I think about six o'clock. His pulse was very feeble, and more rapid ; his respiration was very feeble ; he was simply sinking and dying." — Question : Labored and stertorous breathing ? Answer : No. His respiration at that time was, I think, about fourteen, twelve or fourteen slower than it ivcis the evening previous ; his pulse was much more rapid, I think over a hundred. 7.15. — Dr. Fisher : " Mrs. Fisk arrived and appealed to her husband for recognition. He was still unconscious and evidently sinking." 8. — Pulse, 130 ; resp., 18. Pupils contracted but sensible to light. A consultation was then held. — Dr. Wood : ' I found Mr. Fisk insensible and breathing heavily, he was dying." — Dr. White : " About half-past eight he was gradually dying— perhaps that is a strong expression — he was M/icom- scioMs and in a state of coma." Question: Was he breathing heavily ? Answer : Yes, sir. Question : Stertorous breathing, as you call it ? Answer : Yes, sir. — Dr. Steele : " I saw nothing to convince me but that the man would die." Ques- tion : What convinced you of that ? Answer : His labored respiration, the peculiar pallor of the skin, and the inability of Dr. Sayre, with his immense 'strength, to arouse him. He could not be aroused by any ordinary means. Question : He was insensible to the touch ? Answer : Yes, sir. 10. — Dr. Fisher: "Pulse, 130, and weaker; resp., 17, and irregular. Still asleep." " From that time forward there was a gradual diminution of the regularity of the pulse and respiration until he 'ceased to live, at ten minutes to eleven." Question : When was it that the patient's respiration became stertorous ? Answer : A feio hours previous to his death. By the Court : About how long before his death ? Answer : About an hour and a half or two hours before his death. He died at fifty minutes past 10 a. m. 300 MEDICAL JUKISPKUDENCE OP THE STOKES CASE. Post-mortem. — On the 7th of January, 1872, at No. 313 West 23d Street, at 9.15 p. m., assisted by Dr. E. G. Jane- way, I made a post-mortem examination of the body of James Eisk, Jr. The post-mortem was made about ten ]iours and a half after death. The body was well nourished. Rigor mortis well marked. Post-mortem discoloration about neck and posterior surfaces of the body. The pupils of both eyes were normal. On the right side of the abdomen six (6) inches below the right nipple, and one and a half (1^) inches to the right of the median line of the body, six (6) inches above the umbilicus, and eleven (11) inches from the upper border of the sternum, was a wound, circular in appearance and half an inch in diameter. There was a wound, oval in shape, half an inch in length by a quarter of an inch in width, on the anterior surface of the left arm, one inch above the bend of the elbow. A probe introduced into this wound passed upwards, back- wards, and inwards through the tissues of the arm, and passing out of an opening on the posterior surface of the arm, five (6) inches above the olecranon process. On introduing a probe into the abdominal wound a quan- tity of gas emitting a, f meal odor escaped. An abdominal sec- tion being made, the wound was found to extend through the abdominal walls, passing obliquely downwards and to the left The adipose tissue of the walls of the abdomen was two inches in thickness. Several small clots were found on the omentum. The folds of the small intestines were found agglvtinated by recent inflammatory exudation. Rag- ged openings with bloody edges were found in the omentum, close to the attachment of the transverse colon, and in the two knuckles of the upjxr portion of the ileum. The small intestines were empty, the large contained faecal matter. A ragged opening was found in the mesentery and in the sig- moid flexure of the colon. An opening was found in the peritoneum at a point midway between the anterior superior spinous process of the ilium and the pubes below the muscu- lar fascicule of the psoas magnus, and terminating three and ME I ICAL JUEISPEUDENCE OF THE STOKES CASE. . 301 a half (3J) inches below the pubes in the thigh, close to the insertion of the psoas magnus, at which point a conical leaden bullet was found imbedded. It weighed two drachms and fifteen grains, i here was half a pint of bloody fluid in the abdominal cavity. The kidneys and spleen were healthy. The liver was slightly fatty. The gall bladder contained a calculus the size of a hazel-nut. The heart weighed sixteen (16) ounces, right side filled with coagula, the left side empty. Structure of the walls of the heart was healthy, as were also its valves. Both lungs were free from disease. Keflecting the scalp, it was found bloodless. Removing the calvarium, the brain was taken out and found to weigh fifty-eight (58) ounces ; cerebrum, 51 ounces ; cerebellum, 7 ounces, with pons varolii, which weighed one ounce. The brain was healthy. Death, in our opinion, was due to shock and peritonitis from a pistol-shot wound in the abdomen. There were present at the post-mortem examination : Drs. James E. Wood, Lewis A. Sayre, John Carnochan, Marion Sims, Charles Phelps, T. 0. Finnell, F. W. Fisher, Alfred Beach, and others. (Signed) E. S. S. Marsh, M. D. Sworn to, before me, this 8th ) day of January, 1872. f Coroner. Such is the history of the case as presented by the prose- cution's own witnesses, collated from the above-mentioned sources, carefully excluding, when possible, mere expressions of opinion, which of course had no direct bearings on the facts of the case. As the description of the abdominal wound, in the post- mortem report, is neither clear nor concise, I will state that, according to the collective sworn evidence, the bullet, on en- tering the abdominal cavity, catised the first perforation of the peritoneum; then passing through the omentum, causing four more perforations of the peritoneum ; thence through 302 JIEDICAL JUKISPEUDENCE OF THE STOKES CASE,; two knuckles (eonvplutions) of the ileum. (small iniestiaes),, four more perforations of the peritoneum, and four of the small intestines ; thence through the mesentery, two more peritoneal perforations ; thence through the sigmoid flexure of the colon — whether it was the ascending or descending portion I know not— with two more perforations of the peri- toneum, a final perforation of ihe latter on its pelvic reflec- tion over the psoas magnus muscle. There were, therefore, ipur (4) holes or perforations of the small intestines!, jiwo. (2) of the large, and fourteen (14) perforations or distinct wounds of the peritoneum. The missile then passed b,elow the mus- cular fascicule of the psoas magnus, and following the course of that muscle over the arch of the piibes, without causing any injury whatsoever to the innominata or hauhch- bone, lodged near the trochanter minor of the femur or thigh-bone. PART II. THE MEDICAL JUBISPBUDENCB OF THE STOKES CASE. Ex errore citias emergit Veritas qaam ex confusione. — Bacon. The medical evidence in the repeated trials of this catuse celebre has given rise to so much comment, and there has been such a diversity of opinion in regard to it, that a criti- cal analysis of its medical jurisprudence, as presented both by the prosecution and the defence, may render much that is apparently obscure clear, also further the interests of science, and in the future those of a proper administration of justice. It is evident, that the juries in the first aiid third trials were not directly influenced by the medical testimony— it is even doubtful if they took any nptice of it. But, neverthe- less, it may have had, that direct influence, so frequently made use of by our most successful criminal lawyers, of di- verting the attention from the merits of the case. In this MEDICAL JUKISPEtlDENCE OF THE STOKES CASE. 303 instance it may only have served as a wedge to cast a doubt in the minds of the juroi's ; for a wedge once well driven in will split the stoutest oak: Guneus cuneum trudit. If the medical evidence failed to have any weight in the trials of this case, it was entirely due to the want of a proper appre- ciation of its strength on the part of the prosecution. This can only be explained either by a complete ignorance of the first principles of medical jurisprudence, or else by a most profound contempt for it. Ever since the regular introduction of medical evidence in criminal trials, coaching has assumed ]a prordinent position. In Europe^especially in France and Germaiiy-^tliis coach- ing, or medical prompting, is never hegliected, and through it the science of medical jurisprudence has there attained a proud and enviable distinction. But in this country the neig- lect of it— rather than the want of a proper appreciation of its merits — ^has served to bring it, as well as medical Expert- ism, into contem{)t. Our criminal annals overflow with sucli cases. Why, just think of it ! We have had in the last few years, not even a decade, the Schoeppe-Steinecke, Wharton- Ketchum, Wharton-Vanness, Heggi-Seigfreid, Stokes-Fisk, and the remarkable de luriatico-inquirendo Train case, and se- quence. In the first of these the Medico-Legal Society of the City of New York, whilst yet in its infancy, achieved an imperishable renown by obtaining a new trial for the ac- cused, and preventing, in the words of the learned Justice who presided at the last trial, A legal muedeb. Aiiy of these cases would have been suitable for my theme, but the Stokes-Fisk case probably affords the best and most varied illustration of it. This case, either for the prosecution or the defence, thus presents two points for consideration i 1. As to the cause of death ; and 2. As to the beariiig the direction of the two wounds had on the relative positions of the aggressor and his victim at the time of the homicide. 804 MEDICAL JUBISPKUDENCE OF THE STOKES ^ASE. t^"' EIEST TEIAL. h ANALYSIS OP THE CASE FOB 'THE PROSECUTION. •1 1.1" The learned District Attorney, in calling on to the stand his legion of medical witnesses to prove the death of James , Fisk, Jr., evidently relied on cumulative proof, but in this overreached the mark. Had he simply rested this part of his ease with the evidence of the Deputy Coroner in refer- ence to the autopsy, he would have evinced a sound knowl- edge of medical jurisprudence. For a careful examination of his case — which could and should have been made as clear to him by his coach as it is in the preceding part of this hrocliure — would.have shown him that there were dangerous shoals on which, unless avoided by exclusion, he might run aground if not wreck himself. But no ! There had been rumors as to the probable cause of death bruited about. It WHS apparently absolutely necessary to bring in overwhelm- ing evidence, and in consequence thereof proved the theory of the defence. The first witness was Dr. Wood In his evidence, frankly yet cautiously given, the Doctor admitted the fact that the deceased was at one tiuie under the influence of the narcotic. If the defence Lad then dared to exhibit their hand, he would have been compelled to make some dainagin-j; admissions as regards the clinical hist ^ry of the case. Had they done so, the prosecution would probably have seen their aim, and en- deavored to defeat it by exclusion. The damaging admissions of Drs. White, Sayre, and Steele, compelled the prosecution to call I>rs. Tiipler and Fisher, with the minutes of the case, which only made mat- ters woi'se. iAccording to the tes'imony of these gentlemen there were slight evidences of shock at twenty minutes past 4 p. M., an iniperceptible pulse, a drooping of the upper eyelids, dilata- titra of the pupils, and a daik circle under the ev e. The pa- tient had not then found it necessary to lie down. At ten MEDICAL JUKISPEUDENCE OP THE STOKES CASE. 305 minutes of five, pulse 76 and regular, resp. 24; took two ounces of brandy ; at a quarter past five, pulse 74, resp. 24 regular, countenance pale and agitated, pupils dilated, skin cool and covered with perspiration. Dr. Wood found the pulse more full than usual in cases of nervous shock, the ex- tremities cold, especially the lower ones, and the eyes were growing dim. At a quarter of seven, extremities still cold ; at half-past seven, after the execution of his wiU, a quarter of a grain of morphine was administered by the mouth ; at a quarter of eight, pulse 74, resp. 24, and complains of a green- apple bellyache, another quarter of a grain of morphine by the mouth ; at a quarter past eight, pulse 72, resp. 30, quiet at times, but mostly restless — a third of a grain of morphine by the mouth ; at nine, pulse 73, resp. 35, com- plained of green-apple bellyache. Dr. Sayre says : " His pulse was good, steady and regular, 74 or 76 ; he was exceed- ingly pale, unusually white, but perfectly cool and collected in his mind. There was a paralysis of the entire surface of the body, and the capillary circulation of the surface had stopped." Up to this time there were undoubted evidences of shock, but no such symptoms as would indicate a /atcd termination, save two of those described by Dr. Sayre, which even in themselves do not necessarily predicate a fatal result. Moreover, his evidence does not correspond with that of the other gentlemen, who were enabled to refresh their memory from the minutes, and it cannot be expected that a physi- cian whose professional engagements are so extensive can carry every case in his mind. All evidence of shock then terminated, and reaction clearly and unmistakably began to manifest itself. At twenty-five minutes of ten, pulse 72, resp. 32, pupils now contracted, skin warm and moist, and complained of pain in his bowels — two-thirds of a grain of morphine given by the mouth ; at a quarter of ten, pulse 74, resp. 26, perfectly conscious, took some water and drank it unassisted ; at five minutes of ten, 306 MEDICAL JUEISPEUDiftJCE OF THE STOKES CASE. pulse 80, resp. 26, pain in bowels, and half a grain of the^ morphine administered hypodermically. The physiological action of morphine on the respiration,, as indicated by its corresponding ratio to the frequency of the pulse began to manifest itself at eleven. Up to ten the ratio had been from S^V, ^H, 2f , 2|, 2^, 2|, 2^^, to 2^ ; at 11,211; 12 m., SU; 1a.m., 5^^ ; 2, 6^; 3, 5^; 4,5^;. 5.20, 6|; 6.30, 6^; 8, 7f; and at 10, ^^. Its first physi- ological effect on the pupil was also observed at eleven o'clock in the evening. At 11 P. M., pulse 90 ; resp. 32. Dr. Tripler says : " The pupils were slightly contracted, but sensible to light." Dr. Wood : " It was recommended that the treatment be contra- ued. He was more or less affected by the remedies that had been wecZ." It is evident from the above, that the first decided narcotic- effect observed was at 11 p. M. The rise in the pulse, from 74 at a quarter of ten, to 90 at 11, an increase of 16, shows that it was the morphine inserted in the arm which acted, and tha't the grain and a half administered between half-past seven and twenty-five minutes to ten, by the mouth, had no effect. This was owing to its non-absorption by endosmose. At 12 M., pulse 100, resp. 26, he moved a little ; at 4.15 A. M., pulse 128, resp. 22 ; pupils pretty well contracted, but reacted to the candle. Patient awakes spontaneously, takes a cup in his hand, raises his head somewhat, and falls asleep again. Up to this time there were no evidences of pronounced narcotism. The physiological action of morphine on the pupU, which was first observed at eleven, was now more marked. The increasing ratio between the respiration and pulse, which had been steadily progressing, was at this time- one in five and four-sixteenths. From this time forward we have undoubted evidences of the aumulative action of the morphine, for it is evident that the grain and a half in the stomach had not been absorbed until after one or two o'clock, for the symptoms, which began MEDICAL JUEISPBUDENCE OE THE STOKES CASE. 307 to make themselyea manifest after five in the morning, would have declared themselves earlier. This absorption by endos- mose could not take place until the equilibrium of the nerve- centres controlUng the action Of the stomach had been re- stored by complete reaction. Dr. Hammond, rebutting wit- ness for the prosecution, recognized the possibility of the arrest of absorption in certain cases. Thus at twenty minutes past five, with a respiration of nearly one to seven of the pulse. Dr. Fisher could not arouse him. This coma continued to increase progressively until eight. When the respiration was, one to seven and two- ninths, the pupils contracted, but still reacted to light. The respiration, according to Dr. White, stertorous; and Dr. Steele says it was impossible for Dr. Sayre, with his im- mense strength, to arouse him. At 10, Dr. Fisher : pulse 130, resp. 17 ; a ratio of one of the latter to seven and eleven-seventeenths of the former. From this time forward there has a gradual diminution of the regularity of the ^jwfee and respiration, until he ceased to live at ten minutes to 11. Moreover, according to Dr. Fisher, the stertor began io man- ifest itself a few hours before death. It cannot be denied that the evidence of Drs. White, Steele, and Fisher, affords irrefragable proof of the most profound narcotism at 8 o'clock ; whilst, according to Dr. Fisher, it was marked as early as twenty minutes past five, and kept on increasing without intermission until the fatal termination at ten minutes to eleven. This within twelve hours subsequent to the administration of the last dose of morphine, and sixteen hours after the first dose. The only symptom wanting is as regards the condition of the pupil between eight and ten minutes to eleven o'clock ; whether it became perfectly contracted and insensible to light, or finally dilated, we know not, for there is no legal record of the condi- tion of the pupils having been made after eight o'clock. Most assuredly this evidence indicates death by coma, or death beginning at the head. For if the patient had died instantameously from shock it would have been by 308 MEDICAL JUEISPKUDENCE OF THE STOKES CASE. syncope, owing to the immediate paralysis of the lieart's action ; or if the fatal result proceeding from shock had been delayed several hours, and tad been progressive or gradual, it would have been death by asthenia, or from a progressive paralysis of the heart's action; whilst the stertorotis or labored respiration was unequivocal, and positive proof of the absolute recovery of the patient from shock. Moreover, in shock, before the inception of reaction, the respiration is even " wanting the rdief of sight." Autopsy. — ^According to the testimony of all the witnesses there was evidence of death either from shock or haemor- rhage ; there were sHght evidpnces of adhesive peritonitis, but not sufficient to cause death ; whilst the right ventricle and auricle of the heart, that is, the right heart was filled with coagula, and the left side empty. The condition of the heart militated against attributing death to shock. The lungs were reported healthy, and it is to be presumed that there was no evidence of hypostatic congestion, which, if it did exist, would have been of import- ance in connection with the state in which the heart was found. However, hypostatic congestion is not always made note of in post-mortem reports, as this condition in itself does not indicate any lesion of the lungs. CASE FOB THE DEFENCE. It was evident from the cross-examination of the witnesses for the prosecution, that the defence desired to establish the theory of opium-poisoning, and to prove that the patient did not die either from shock, peritonitis, or both combined. The prosecution, unwittingly, I presume, assisted them — for too much evidence is sometimes dangerous. The defence having by Iheir skilful cross-examination laid the groundwork of their case, it was only necessary for them to establish that : I. This wound was not inevitably fatal ; II. The indications in favor of possible recovery, as shown by the antecedents, clinical history, and post-mortem of the de- • MEDICAL JUEISPEUDENCE OF THE STOKES CASE. 309 peased; and III. To prove by experts that the cause of death was not from the immediate effects of the wound, but in consequence of the treatment thereof. I. That this Wound was not inevitably Fatal. — Dr. Wood, in his direct examination, for there was no cross, said : " I felt that this wound was a dangerous wound, al- though patients do recover from an injury of the intestines, and there are some wonderful instances of this kind on record. I knew, and said, although he may be wounded in his intestines, yet patients do get well." When asked to predicate his opinion on the post-mortem, he said : " Well, sir, I felt that the wound in the intestines would produce death ; still, as I have stated before, they do not always." Dr. White, on his re-direct, when asked if he had known of a case in which the small intestines were shot through'and through twice, and the large intestines once, answered : " No; let me explain, there is no means of hnovnng the extent of the injury after recovery." The Doctor then stated, in answer to further questions, that " there was a case reported by Inspector-General Taylor." Then, in the re-cross, coun- sel for the defence read several cases from the Surgeon-Gen- eral's circular. No. 6, and asked the witness : " Would that be evidence that the smaller intestines would be wounded? " Answer : " Yes, I think so." In consequence of this evidence, furnished by the prose- cution, it was only necessary for the defence to call on Dr. Carnochan to corroborate it. The following question was then made : " Would you have thought that the case of Mr. risk was better or worse than the average, from the appear- ances after death and from what you saw of him during hfe ? " Answer : " Well, there was nothing special to de- crease the chances of his recovery, and there were some things favorable for his recovery. In the first place there was no extravasation of feculent material, and the extrava- sation of blood must have been 'very small. Those are the sources of death in the case where the ball entered the cavity of the abdomen. Patients die generally from extrava- 310 MEDICAL JUEISPEUDENCE OF THE STOKES CASE. sation or from internal bleeding, if they recover from shock, aind if they live long enough, from peritonitis ; those are the ,four sources of death." The learned counsel for the prosecution endeavored to break down this forcible direct evidence by a severe cross-examina- tion, but 'utterly failed as long as he based it on the merits of the case. II. The Indications in Favoe of possible Eecoveey, as SHOWN BY THE ANTECEDENTS, HiSTOEY, AND POST-MOETEM OP THE Deceased. — 1. Ttw antecedents of the deceased: — The robust health, vigor of the constitution, and comparatively abstemious habits, had been proved by the evidence of the prosecution ; but the defence, by their cross-examination, might have brought this out in bolder relief. 2. The clinifxxl history of the prosecution showed that the patient had clearly and unmistakably recovered iiomsJwcJc and its ejects. It also demonstrated that durpig life there' was not the slightest reason, beyond the situation of the wound, to sus- pect that any of the intestines or vicera had been wounded. This was confirmed by the evidence of Dr. Carnochan for the defence. The expert evidence of Drs. Jacobi and- Mc- Cready, for the defence, in answer to the hypothetical ques- tion, proved that : All evidences of shook had subsided, and that it was even doubtful if there were any present. 3. The post-mortem of the deceased iadicated that there had not been any haemorrhage, and no danger was to be apprehended from secondary haemorrhage ; there had been no extravasa-- tion'of feculent matter; the, small intestines were empty,, whilst the danger of the escape of faeces from the large in- testines was very remote. Moreover, the peritonitis was of the adhesive form ; it had agglutinated the small intestines, and was the effort of nature, and could, in all probability, have been controlled. Further, there was no foreign sub- stance, such as cloth or wadding, or even a leaden ball, within the peritoneal cavity. The defence did not enter as fully into this as they might have done. But they proved by Dr. Carnochan that : " He MEilCAL JURISPEUDENCE OF THE STOKES CASE. 311 (Fisk) was under circumstances that would have admitted of -cure ; that is, there was no extravasation of feculent matter ; there was not peritonitis enough to kill him, and there was no internal haemorrhage ;" so the matter narrowed itself 'down to the effect of the wound. " So far as ike wound was concerned, there was a struggle between the amount of vitaUty that was in the man, and the treatment he received, and the other correlatives surrounding him." in. To PROVE BY Experts that the Cause of Death was NOT FROM THE IMMEDIATE EFFECTS OF THE WoUND, BUT IN CONSEQUENCE OF THE TREATMENT THEREOF. — Had the defence ■carefully digested the clinical history so lucidly presented by the evidence for the prosecution, and which their coach had had ample time to collate, as described in the first chapter ■of this monograph, they would have drawn up a hypotheti- cal question, first giving the essential facts up to the time of recovery from shock, including the treatment ; then from eleven o'clock in the evening until five the next mornifig ; again, from thence, until death closed the scene ; finally, the whole case, including the post-mortem appearances, which would have made out a much stronger case than that ob- tained by their exceedingly clumsy hypothetical question as- suming the existence of certain facts that, in the majority of cases, will only serve to confuse the expert, compel him to ask for explanations, and finally give the cross-examiner an opportunity to practically nullify the influence of the direct examination on the minds of the jury. This is the great error frequently committed by counsel in the examination of ex- perts. Almost regardless of what the answer may be, they draw up a question which they believe will influence the jury. 'Thfs form may and does commonly apply to vulgar evidence, but in examining an expert the object should be to get a direct categorical answer, and thus produce the desired effect. This is the question as given to Dr. Jacobi, the second medical witness of the defence : "A man in the prime of Kfe, in unusual sound health, drinks moderately, receives a severe injury of a pistol-shot wound ; the first shock was npticed 312 MEDICAL JUEISPBUDENCE OF THE STOKES CASE. about 4 o'clock in the afternoon ; about half-past 4 the puls& was very low ; at half-past 7 the. pulse was 78, the respiration 24; his intelligence undisturbed, his answers prompt. Would you expect any further danger from shock?" Answer: " There is one question I did not understand : ' the pulse was- low.' What does that mean ?" Question : " That means it was scarcely perceptible." An- swer : " Was it quick or slow, and how long was it scarcely perceptible ?" Question : " There is no doubt but what he had a shock,, but afterwards had recovered from the shock, and his pulse was 76, and the respiration 24." Answer: "Evidently that was no shock." Question : " A reaction had occurred ?" Answer : " You have not read any of the symptoms of shock as yet." Question : " There is no doubt that "after the injury there was shock; take that as a basis; his pulse was 76, respira- tion 24, his intelligence undisturbed, his answers prompt. Woidd you apprehend any further danger from shock?" Answer : " No, sir." Question : " If, in such a case, at half-past 10 o'clock, or from 10 to half-past, the pulse and respiration were normal,, his color simply pale, and at 11 p. m., reaction was further estabUshed, the condition of the patient has improved, and you find he becomes sleepy, but is rational, perfectly so, as long as he can be roused ; that this sleepiness lapses into- coma, with noisy respiration ; the pulse runs up to 130, the respiration remains at 18, and in the morning from 8 o'clock till 10 and three-quarters he cannot be roused. What would, you then suspect from that condition?" Answer: "^One of two things, either morphine-poisoning or death from urcemia. This naturally led to a long discussion, rather than an ex-^ aminatioD, as to uraemia, which is a poisoning of the blood due to a non-elimination of the urea from it by the kidneys.. Finally, the discussion ended by the witness stating that the- man died from opium-poisoning. MEDICAL JDBISPBUDENCE OP THE STOKES CASE. 313 This examination- gave an opportunity to the learned coun- sel for the prosecution to practically nullify the force of the direct evidence of the expert, although he failed in the at- tempt to break it down. For the answers were the only cor- rect ones which au educated physician could make, who had no previous knowledge of the case. This occurrence compelled the defence to call on Dr. Mc- Cready, which they should not have done, as he was obliged to admit that he had acted as their coach, and in conse- quence had a pronounced bias on the opium theory. The same question was given him, but leaving out " the pulse was low." Dr. McCready qualified his answer : " Ina previously healthy man, I should have no doubt but that the man was laboring under the influence of narcotic poisoning." Finally said: "From the hypothetical question, I have no doubt the cause of death was directly from the opium or fee morphjne. It was not shock, it was not peritonitis, it was uraemia. He being a healthy man, urcemia and brain- disease were excluded. It was opium, and nothing else." This question had been previously given to Dr. Camochan in a somewhat modified form, as it included his observa- tions at the bedside and autopsy, therefore based on a pre- vious knowledge of the case. To ihe first 'portion oi the question Dr. Carnochan answered in substance, that there was no further danger to be appre- hended from shock. To the second portion : " Well, I should ask somewhat in regard to the treatment." This also led to a discussion, until the learned counsel finally framed the fol- lowing question : " From the statement I have given you in regard to the quantity of opium used, and the form in which it was administered, his condition at the time you saw him, and his condition at the time of ' the examination, what is yemr opinion as to its effect upon the patient after you saw him ? " Answer : " That amount of opium or morphine would tend to produce a narcotism. The stertorous breath- 314 MEDICAL JUEISPltUDENCE OF THE STOKES CASE. ing caxi be explained by the opium, and it required something of that kind to explain the stertorous breathing." As to the quantity of morphine administered. — The prosecu- tion had 'Shown that besides the first half (^) a grain of mor- phine administered in solution, there were ten (10) drops of Magendie's solution administered at one time, twenty (20) drops at another, then fifteen (15) drops, and finally another fifteen (15) drops, which would make sixty (60) drops. The de- fence endeavored, to prove by the evidence of Dr. McOready that these sixty (60) drops represented ninety (90) minims or a drachm and a half, therefore three (3) grains of the mor- phine instead of two. The doctor testified that there were only forty (40) drops of the solution to the measured drachm. True ! But as some pharmacists prepare Magendie's solu- tion by weighing the distilled water as well as the morphine^ which is the only correct method, whilst the majority prepare it by measurement, according to the rules laid down in the United States Pharmacopoeia in the preparation of similar solutions — for this is not an officinal one — and is manifestly uvreliahle, as to carry out its requirements would necessitate an equable temperature- of the graduated measure and of the distilled water, also an exact level, it may well be imagined what reliability can be placed on this method. This evi- dence is by itself without value, but would have been of great importance if they had proved by Mr. Farwell, the pharma- cist, the method he had made use of in preparing the solu- tion, and if done by measurement, whether the graduate had been tested, its temperature and that of the water noted, and was the level exact. Dr. McOready also testified that the drop is a variable quantity. There is no doubt about the accuracy of that evidencei; but as Dr. Tripler and Mr. Far- well both testified that the solution was obtained in an ounce vial, either that one or another one like it should have been placed in evidence, as the drop varies with the length, thick- ness and diameter of the nozzle. This evidence was therefore worthless, because the defence failed to corroborate it by that of Mr. Farwell and of the vial. Yet the whole was of great MEDICAL JURISPRUDENCE OF THE STOKES CASE. 315 importance, for it would have conclusively eatablished the fact that Fisk had actually taken, or been administered, three and a half (3J) grains of morphine, instead of two and a half (2 1) or the equiyalent of twenty-one (21) grains of opium instead of fifteen (15) grains, as sworn to by the wit- nesses for the prosecution. It is surprising that the defence should have overlooked this point, for it would have deler- mined beyond cavil the fact of opium-poisoning, and would have had much more weight than the reported bar-room con- versation as to the administration of 110 or 112 ndnims of Ma- gendie's solution. , EVIDENCE IN REBUTTAL FOR THE PROSECUTION. The defence having so well sustained their theory of re- covery from shock, and death from opium-poisoning, it be- came obsolutely necessary for the prosecution to rebut, but the preceding evidence, as well as that offered by the prose- cution itself, rendered it somewhat more than a herculean task ; and if the defence had displayed the same ability in cross-examining the witnesses in rebuttal that it did with the direct, it would have most effectually removed the last prop sustainipg tbe elaborate medical structure of the prosecu- tion. The latter, alleging that it was their purpose " to show that the treatment was good," first placed Dr. Gurdon Buck on the stand. The District Attornej"^ very skilfully examined this witness, and proved by him that opium was one of the primary indications in the treatment of severe gunshot wounds of this nature ; and that the proportion of the dose, and the frequency of its administration, necessarily varied with the peculiarities of each individual case. The prosecu- tion, however, committed a grave error in the opening of the examination, as follows : Question : " In a case where a man is wounded by a pistol- ball passing into the abdomen, passing through and through two smaller intestines, through, into, and out again of the 316 MEDICAL JUEISPEUbENCE OF THE STOKES CASE. large intestines, and then lodging in the neighborhood of tfee thigh-bone, would you consider it good treatment to give opium in case of great pain ? " Answer : " Yes, sir." Question : "Is it good treatment to give morphine in case of great pain ? " Answer : " Yes, sir ; but rather as a pallia- tive. From the wound you describe, I should infer, almost necessarily, a fatal result, and the patient is entitled to all the relief that can be afforded from his sufferings during the time he survived." This gave the defence a fine, opportunity, in their cross- examination, to break dpwn this evidence, but they failed to avail themselves of it. For there were no means by which the exact nature of this wound could be deteimined during life. If the clinical history of the case from twenty minutes pasj; four o'clock in the afternoon, or from the receipt of the wound until eleven o'clock in the evening, had been given in the form of a hypothetical question, and the doctor asked : If he would then only have given morphine as a palliative, with a view to render the last moments easy? his ansiver would no doubt have been rather different. Then this : Question : Would you give to a patient whose peculiar idiosyncracies were unknown to you, suffering from a pene- trating gunshot wound of the abdomen, who, three hours after the receipt of this wound, say at " a quarter before seven, appeared to be uneasy and complained of pain in his bowels," at half-past seven one-quarter (j) of a grain of mor- phine oy the mouth ; at a quarter before eight, his pulse 74, respiration 26, still complaining of pain, another quarter (5) of a grain of morphine by the mouth ; at a quarter past eight, " his pulse 72, respiration 30, has been quiet at times, but mostly restless and uneasy, pain persistent, 10 drops of Magendie's solution" (half (J) grain of the salt); at twenty- five minutes of ten, " pulse 72, respiration 32, skin warm and moist, pupils contracted, complaining of great pain in the bowels," 20 drops of Magendie's solution (one (1) grain of the salt) by the mouth ; at five minutes before ten, " pulse 80, respiration 34, still complaining of pain," 15 drops of Magen- MEDICAL JURISPRUDENCE OF THE STOKES CASE. Sll die's solution (three-quai*ters (|) of a grain of the salt) by hypodermic injection ; at a quarter before eleven, still com- plaining of great pain and distress in the abdomen, then in- sert another 15 drops of the solution in the arm (three- quarters (I) of a grain of the salt), which would make in all {according to the sworn evidence, but not in fact, for the exact amount was three and a half (SJ) grains), two and a half (2^) grains of morphine, in less than three hours and fifteen min- utes, one grain and a half {two grains in fact) by the mouth, and the last grain {one grain and a half) by hypodermic injec- tion ? Answer : If in the affirmative. Question : Is there not more or less shock in wounds of this kind, does it not temporarily paralyze the action of the stomach, and would this not interfere with the absorption of morphine ? Answer : It might in a measure. Question : Then is there not danger, when that quantity of morphine is administered at such short intervals, that the grain and a half in the stomach might not be absorbed until 'after the administration of the one grain injected under the arm, and before the physiological action of the latter had passed off, thu^* causing the cumulative action of the equiva- lent of 15 grains (21 grains) of opium ? Answer : Possibly. Question : If at 11 p. m. the patient's pulse was 90, respira- tion 32, was more or less affected by the remedies that had been used, his pupil contracted, but sensible to light ; at 12 M., pulse 100, respiration 26, asleep ; at 2 a. m., pulse 126, respiration 20, he awoke and remarked that " he felt first rate." Two ounces of brandy and water were given him, and he soon fell asleep ; at a quarter past 4, whilst a conver- sation was going on in the room, he awakes and says that " He felt easy, and asked for a drink of .water, took it in his hand and drank it, raising his head somewhat, and fell asleep again." His pupils pretty well contracted, but reacted to a candle, his pulse 128, and respiration 22. Would it not be an indication of partial norcotism ? Answer : Possibly it might be so. 'Question : Now, sir ! if at 5 A. M. the patient was sleeping 318 MEDICAL JUBISPEUDENCE OF THE STOKES CASE. soundly, and did not answer when spoken to ; at 20 minutes past 5, his pulse 135, respiration 20 and irregular, an effort was made to rouse him and failed ; at half -past 6, pulse 130 and weak, respiration 18, pupils still sensible to light, could not be aroused ; at 8, pulse 130, respiration 18, pupils con- tracted but sensible to light, unconscious in a state of coma, breathing heavily or stertorously, and could not be aroused by any ordinary means ; at 10, pulse 130, respiration 17, and from that time forward there was a gradual diminution in the regularity of the pulse and respiration, the latter labored or stertorous until he ceased to live at 10 minutes, before 11 A. M.,-^would that indicate death from shock, that is, death beginning at the heart either by syncope or asthenia ? An- swer : (It would be safe to assume that it would be an em- phatic) No, sir. Question : Would it indicate death beginning at the head or by coma ? Answer : Yes, sir. Question : Now, sir ! taking the whole case into considera- tion, the fact that no observation was made as to the condition of the pupils after 8 o'clock, so that it is not known whether they became firmly contracted and insensible to light, or finally dilated ; and there were no evidences of uraemia or of disease of the brain, not forgetting the administration of two and a half grains {three and a, half) of morphine in an inter- val of three hours and a half, what would, in your opinion, have caused the death by coma ? Answer : The morphine or opium. If this hypothetical question had been given to Drs. Car- nochan and Jacobi it would have- compelled them to answer categorically, and would have embraced the whole case pre- sented by the witnesses for the prosecution ; thereby prevent- ing a confusing cross-examination. Then it would, in the cross-examination of Drs. Buck and Hammond, have com- pletely nullified the force of their direct evidence. Dr. Hammond, in his direct evidence, cautiously given, said that " The proper treatment for wounds involving the intes- tines is to keep the bowels as quiet as possible^ and that is MEDICAL JURISPEUDBNCE OF THE STOKES CASE. 319 accomplished by administering large doses of opium." "I would give a sufficient quantity of 'opium in the first place to prevent any operation, any action of the bowels, and in the next to mitigate any pain that might be present, and also with a view to prevention of shock. I have given as much as three (3) grains of opium {half of a grain of mor-phine), every ttco or three hours in cases of wound and in cases of shock." " I think it would be safe to give as much as ten (10) minims of Magendie's solution (one-third of a grain of morphine), every three or four hours, or probably more if he were a strong man." " I could scarcely fix the limit,! would give enough to subdue the symptoms^as long as uncon- sciousness is not produced there is no danger." Question : " Suppose the respiration kept at 16, 17, or 18?" Answer: "I have seen one case in which there was respiration to that extent, in opium-poisoning, in which the patient died, but I have not seen anything of the kind be- fore or since." " A very exceptional case." It is' evident that this testimony was rather in favor of the defence, and it is the strongest part of the Doctor's evi- dence. The remainder could have been completely nullified by critical cross-examination, as the direct in its questions presented the facts to suit its theory, and not as they ap- peared in evidence. The defence began its cross-examination of the witness with its long hypothetical question, not making any allusion either to coma or stertorous breathing, and leaving the Doc- tor under the impression ,that the morphine had been en- tirely administered by hypodermic injection, which very naturally brought out the following ansiver : " Well, I think he died of shock, and my reasons for it are these : If he died of morphine, and I may state that is sufficient mor- phine to kill a man under some circumstances, and in an or- dinary condition probably, he would have become uncon- scious very soon after the administration of the drug, and that unconsciousness would have gone on increasing, and he 320 MEDICAL JUKI8PBUDENCE OV THE STOKES CASE. would have died unconscious, his respiration would have be- come slow. The fact of his rousing six (6) hours after hav- ing taken the last dose of morphine is, to my mind, utterly; iricompatible -with his haring died oi morphine." This answer was necessarily fatal to the theory of the de- fence, and it became very important to neutralize and destroy its effect. For that purpose the defence floundered about, and taking as a basis the previously mentioned " bar-room conversation," propounded the following question : " Sup- posing he had received in the course of the night, between half-past 11 and 4 o'clock in the morning, one hundred and ten (110) minims of Magendie's* solution hypodermically ad- ministered, together with one-third of a grain of morphine administered by the mouth." This amount was certainly sufficient to have killed. It was corrected by the Court's stating that "there was none taken afterwards" (after 11 p. M.). This gave the defence time to collect itself, and, falling , back on Taylor's work on poisons, read the following extract as a question, " A man swallowed an ounce and a half- of laudanum, in an hour and a half he laid down in bed, and some excitement was followed with numbness of the extrem- ities ; but he continued sensible and lively for seven hours and a half after, so that the medical man did not believe his statement, and it was not until eighteen hours that stupor • commenced, and in two hours the symptoms of poisoning by opium were of an aggravated kind? " Answer: ''That is a different case entirely, the drug was taken into the stomach, and something might have interfered with the absorption of the drug, .so that it did not get into the system, but here it is put under bhe skin, and gets into the system at once. I can well understand how a man taking a large quantity of laudanum on a full stomach, that the stomach might not absorb it, and it would be as much out of the system as if it loere in a tin cup." Here was the opportunity for the defence to correct its palpable error. 1. One grain and a half of morphine had been administered by the stomach ; and 2, the shock by tern- KEpiCAL JUBISPBTOENCE OF THE, STOKES CASE, 321 powily p§.ra,l^zmg tt^ acjtion ojf the ^^o^aacli had delayed the absorptipnol the drug uAtil its final, absorption cav^sed the cumulative action of the \v;h61e amount .administeriB^. But .it was not inade'use of, and some immaterial questions asjiecl. This enabled tie District Attorney in his re-direct to impress more fully oni the minds of i the jury ihe witn^s's answer to the elaborate hypothetical question of the de- fence; ergo the man died of shock, not of , morphine. Dr. Sayre was recalled in rebuttal ; the most saUent point of his evidence was brought out by the Court. Question : "You stated in your direct examination that the great. sym- pathetic nerve had been injured by the ball ? " Answer : "Yes, sir." Question: "Did that have any effect upon the death?" Answer : " It would produce inevitable death pretty much in the manner of prostration that this did take pla,ce. The centre of the sympathetic •nerve was injured, which was the cause of this great prostration." This evidence was certainly damaging to the defence, at least might have been in the minds of the jurors ; but it could have been effectually refuted by a skillful cross-exam- ination compelling tbe witness to give direct answers, show- ing that the wound described was a hypothetical one, and that it was impossible for the solar plexus, which is the aib- dominal centre of the sympathetic, to have been wounded,, as it is situated behind the stomach, whilst the bullet passed down towards the anm. EVIDENCE AS TO THE PEOBING. It. is not my purpose to discuss this question, for most of the defence was simply absurd. The direct evidence showed that the probe had not been introduced more than three and a half to four inches, whilst the oblique course of the wound and the thickness of th« abdominal walls proved that it had not .been carelessly done. Moreover, Dr. Oarnochan, prin- cipal witness for the defence, admitted that " he would have 322 MEDICAL JUBISPEUDENCE OF THE STOKES CASE. done it himself, and that if the protse did not penetrate intQ the cavity of the abdomen it could have done no harm." As regards the use of a broken or partially disjointed probe, it was shown to have been broken subsequent to the death of the victim. The learned counsel no doubt thought that it might influence the jury, but that is not medical juris- prudence. '■-'■ The learned counsel for the defehce also " made much ado about nothing," as regards a caucus held by the doctors appear- ing for the prosecution, or, as he styled it, " Bemarkable gath- erings." Counsel who would go into a case withou|; first as- certaining what his witnesses were going to testify to, would neglect his duty and the interests of his client If the pros- ecution failed to do it in this case, or to take due advantage' of it, they are responsible for a great oversight on their part. The learned counsel for the prosecution, in his cross-exam- ination of the witnesses, had at times a fine opportunity, but seemed to confine himself entirely to the effort to demon- strate to the jury that there was a personal feeling of one of the leading witnesses for the defence against one for the prosecution ; also a spirit of antagonism and rivalry between the regular practitioners of medicine, or so-called allopaths — who are always called on in prefeirence as experts in science — and the homoeopaths ; further, that one of the ex- perts had received a fee, and that another expected one. As the law recognizes the right of an expert to a fee, this was uncalled for. Moreover, it was not conducting the prosecution on the merits of the case, and ivas an evidence of weakness. In this country and ia Eagland license and custom permit counsel to conduct his examination in that manner. But this is not treating members of a kindred profession with the courtesy due them when called upon as experts. The de-, fence might with equal propriety have endeavored to prove that the learned counsel assisted in conducting the, prosecu- tion through motives of personal malice towards the pris- oner at the bar. For neither of these are pertinent to th« merits of the case. MEDICAL JURISPRUDENCE OF THE STOKES CASE. 323 This practically closes the medical jurisprudence of the first trial. The second point, as to the bearing the direction of the two wounds had on the relative positions of the ag- gressor and his victim, was only brought prominently for- ward in the third trial, and I will therefore discuss it in con- nection with the evidence of that trial. SECOND TRIAL. The jury having disagreed in the first trial, a second one became necessary. The prosecution only called upon the deputy coroner to testify as to the post-mortem evidences. The defence admitted the killing, and relied exclusively on the theory of self-defence and justifiable homicide, which resulted in a conviction of murder in the first degree. THIRD TRIAL. The proseciition Again called the deputy coroner to the stand. Had the report of the post-mortem been more lucid and exhaustiye, even his evidence could have been dispensed with. In drawing up the report for a post-mortem examina- tion in which there is even the faintest suspicion of a crime having been committed, not a single item should be omitted. For instance, in this one no mention is made as to the con- dition of the edges of the wound on the anterior surface of the arm, or those of the one on its posterior surface. There is only an opinion as to the points of entrance and exit of the ball expressed. This is not sufficient, for mere expres- sion of opinion, unless called upon as an expert, is not evi- dence ; and if the deputy coroner had simply described the exact condition of this wound, his report would have been of more value than any subsequent oral evidence. For an expert could then — by taking it into consideration with the deceased's ante-mortem; and the prisoner's own evidence, and if the coroner had conducted a more searching investiga- tion as regards the topography of the st^-cases, the precise 334 MEDICAL JUBI8PBUDENCE OP THE STOKES CASE. poiii|; ^t whicji the ball was found, if thcire were any mari^ on tie south-side wall, as to the lioles in tne cloafe and cloth- ing^ — haye shown whether the prisoner's sta,tpment aa to the position in which healleflred his victim's hands were in, was ■"■ •-•J(l* '.I'll ' I f ■ ■ ' .*-■['■ ''^"1 '■ " ' - I '■',> 1 ^ ■ ' ^~±< 'i - ■ ' ' ■ ■ ' , ^,..■J•■^ true or not. This was the pivot upon which the^ case for the, prosecution rested ihrowgh thref trials, and yet they failed to see. it. This, however, is not the only error of omission: for the lateral and antero-posterior angles of direction of the ball through the abdomen are not stated ; and this was of vital importfince, for it wquld have sho\!ra the degree of elevati]Qtn and , obliquity a;t which Stokes stood as compared to the po- sition of Fisk. The cqhdition of tie membranes covering the briain is overlooked. To say th.e, brain is healthy only in- cludes its meninges by implication, and the law ou questions of foci implies nothing. Then' to say the lungs were free from disease, does not imply absence ot so-called hypostatic congestion. These errors of omission led one of the experts in the first trial to decline basing an opinion on that report. In the third trial it led to the defence's endeavpring to prove by two witnesses that there was a serious effusion in the brain and its meninges, which I do not believe they would have at- tempted if the report had been complete in all its details. The defence called on Drs. McOready, W. H. Thompson, A. Leale, Carnochan, Shine, and Ksher. The latter gave the clinical history of, the case, and in his cross-examinatioii strongly defended the judiciousness of the treatment. Dr. Carnochan's evidence was a repetition of his previous testimony, if anything more concise and to the point. The defence brought out what they considered an important fact ; it was that " when the brain was weighed the towel in which it was placed became saturated with serum," that is, quite wet by the fli;iid exuding from tie brain. i)r. Shine corroborated this point of Dr. Carnochan's by stating that k^ observed " an effusion of serum beneath the meninges (or membranes) covering the brain." Dr. McCready's evidence was gubstantially the same as on the, first trial. MEDICAL JUEISPRUDENCE OF THE ' STOKES ' CA^Ie. 325 Dr. W. H. "THomipsoii in Ms iestiteonj suljstantiafed the vieyS of Brs. McCreiady and Cambchan as to recovery from snooli, apd death froin opium-pmsoning! Dr. Chas. A. Leale was essentially called iipoh' to demon- strate by his own experience, as wen as iiy the Surgeoin-^en- eral's report, that there were a number of remarkable cases of recovery from gunshot woiinds of the abdomen, with le- sions of the intestines. The defence in this trial held the prosecution at great vantage. Tliey cotuld mould the evidence to suit their theory of opiiim-poisoning, and present th« case in its most concise form ; also compel, by exclusion, the prosecution to call on witnesses whicli woilld injure its side of the question, and sustain the theory of opium-poisoning. The prosecution, in rebuttal, called on i)rs. James E Wood, G'urdon Buck, Alpheus B. Crosby, and l^arsh. The learned District Attorney committed a grave error by placing Dr. Wood on the stand ; and if he had carefully read the evidence given on the first trial, he would halve seen that the Doctor was a dangerous witness. For if, as before men- tioned, the defence had dared to show their hand in the first trial, his evidence would have been just as strong in favor of the opium-poisoning theory as in this one. It was in this that the defence showed capital discrimination by com'pel- tiiig the prosecution either to practically admit the opium- poisoning theory or to refute it. For this it was absolutely necessary to call upon at least one of the physicians a,nd sur- geons who atiended the deceased in his last illness. Moreover, the Doctor was obliged to admit, " that in view vf our present knowledge and experience, the wound of the deceased coidd not be considered as necessarily unavoidably fatal." l)r. Buck.in his direct examination, in answer to the hypo- thetical question, based on the post-mortem examination of the wound, s representations made by the widow were proven to be true, then the other writs followed as ;i matter of cdurse. The first writ was re- turnable to the Court of Commoa Pleas ; the second writ, di- recting the Sheriff to remove her to a castle, where he was to safely keej? her until she was delivered, issued out of the Court of Common Pleas (Willoughby's Case, Cr. Eliz., 566 ; exparte Aiscough; 2 P. Wm., 591). The provision in the writ that the Sheriff should not permit any pregnant woman to visit the widow was undoubtedly made to guard against two contingencies— one, that a fraud might be perpetrated in case of any accident to the child in venire sa mere ; the other, which was probably more feared, that the heir might be a fe- male child, and a substitution made of a male child, to take the inheritance under the English laws of primogeniture. This writ has been vigorously denounced as " an ancient and barbarous writ," one that, " if strictly executed, would be an intolerable grievance," an " old and disgustingly inde- THE WRIT DE ^TENTKE INSPICIENBO. lUl cent writ," and these denunciations have been most ompiiatic from the medical pi-ofession, [16 Lord, Med. Oazellc, 697J. It is not, therefore, surprising that there is uo case on record wherein the writ has issued in all the barbai-ism of the course and practice of the ciimmon law, althcjugh it may have been in two eases, which will be hereafter cited, of which the reports do not contain sufficient to enable us to speak positively ; but the endeavor of both courts and coun- sel ever has been to soften its rigors, and to clothe its de- formity. The fact that the writ appears in the Eegister is not con- clusive HAddenee that it has ever been issued, for Sir. O'Conor recently informed us that he had found in that volume a writ — tissued on the petition of a wife, commanding her husband to appear at the next Term of the Court of Chancery to an- swer to her charge of assault, and in the meantime enjoining him to refrain from all personal chastisement of his wife, except such moderate chastisement as the common law per- mits^that be had thought to be so preposterous, in view of the manners and customs of that age and of the terms of the writ itself, that he sent to England, and had a search made through the records of the Court of Chancerj'^ to the earliest date of its existence, and that no single instance of the issu- ing of such a writ could be found ; and he was therefore forced to the conclusion that the form emanated from the brain of some witty clerk, who was unwilling that any high- born dame who came complaining to him of her husband's cruelty, should find the law insufficient to meet her case, and at the same time she would refuse to accept a writ that, lyy implication, gave her husband " license to lick her " as he de- sired, provided he did not lay it on too hard. No one has instituted a similar search in respect to this writ, so far as the reported cases show, and it may be possible that its bar- barity was likewise only the words of an irresponsible clerk. THE USES OF THE WEIT. The earliest reported case appears in the Black Letter 342 THE WEIT DE VENTRE INSPICIENDO. Folio Eeport of Moore, in tile barbarous Norman French in which the ancient law reports were published ; and also in Cooke's Elizabeth. Before the thirty-ninth year of the reign of Queen Eliza- beth, Sir Francis Willoughby died seized of a great inherit- ance, leaving no son, a widow and five daughters, whereof the eldest was married to Peieival Willoughby. At the time of his death the widow represented [pretended, in report] her- self to be with child by Sir Francis, which, if it were a son, would deprive his sisters of their inheritance. Willoughby and wife thereupon prayed for this writ, which was duly issued : whereupon the Sheriff accordingly caused her to be searched, and returned that she was twenty weeks gone with child, and that within twenty ^ffeeksfuif; paiitura ; whereupon another writ issued out of the Common Pleas, commanding the Sheriff to keep her in such a house, and that the doors should be well guarded; and that every day he should cause her to be viewed by some of the women named in the writ (wherein ten were named), and when she should be de- livered that some of them should be with her to view the birth, whether it be male or female, to the intent that there should not be any falsity. And upon this writ the Sheriff re- tiu'ned that accordingly he had caused her to be kept, etc., and that on such a day she was delivered of a daughter. The next case was in 1623, and was as follows (2 Cro. Jac, 686). William Theaker died on the I5th day of February, without issue born at the time of his decease, leaving his^eou- sin Alphonsus Theaker, his heir-at-law, and also leaving, him surviving, his widow, Mary, who was supposed to be eineiente by him, and who was married again, to one John Duncombi within a week after the death of her husband. Alphonsus Theaker thereupon procured, out of Chancery, a writ di- rected to the Sheriff of London, to cause the said Mary to be searched whether she were with child by the said William Theaker et quando fuH paritura (no mention being made of her second marriage); and this writ was according to the pre- cedent of the case in Cro. Eliz. of the like writ against Lady THE WRIT DE VENTRE INSPICIENDO. 343 Willoughby. The Sheriff returned the inquisition that, by such persons, he caused her to be searched, and found her to be encienie ei quodfuit paritura within twenty weeks. Wherefore he now prayed a second writ to be directed to the Sheriff of Sun-ey, because she was removed, with her husband, to that county, that the Sheriff might take her into custody :and keep her until she were delivered of her child, that there might not appear to be any false or supposititious birth; and that in the interim he should cause her to be viewed every day by certain matrons, named by the Court in the writ, and that some of them should be at the birth of the child, accord- ing to the said precedent of Lady Willoughby's case. But, because in that case the lady was a widow and so such a course might well be observed, but here she is a femme covert, who ought to cohabit with her husband, they would not take such a course with her, but left her with her husband. He -entered into a recognizance that she should not remove from the house wherein they then inhabited, and that one or two of the women returned by the Sheriff should see her every day^ and that two or three of them should be present at her tra- vail ; for it was said that this issue might well be said to be the child of her first husband and should inherit his land, so as if there were any false or supposititiotxs heir, the cousin and heir might be disinherited. Wherefore a writ was accordingly awarded to the Sheriff of Surrey, to cause her to be seen, every day until her deliv- eiy, by two at least of said women returned by him, and that three of them, or more, should be at her birth. This writ appears to have remained in abeyance from that time until about 1725, when the case of the Attorney General V. La Eoche came before the Court. (Not reported, cited 2 P. Wms. 591.) A testator devised an estate to A, with remainder to A's •children, and in default of such issue an ultimate remainder to a charity. A married a woman of ill-fame, and dying soon :after, his wife pretended to be with child, whereupon the At- torney General, to protect the charity, filed this bill in equity, 344 THE WEIT DE VENlTiE INSriOlENDd. and the Master of Eolls decreed that two midwdves should re- sort to the widow, search her and see whether she was with child or no, and attend at the birth. The widow, perceiving that the matter would Ik; discovered,, voluntarily declared that she was not with child. This case is interesting as presenting the only instance of proceeding by bill instead of petition, and as being the only instance where- in an attempted fraud has been frustrated by this writ. The next case was Ex-parte Aiseougher (1 Mosely, 391) or Aiscough (2 Peere Wms., 591) in 163i, where a petition was presented to Lord Chancellor King, setting forth that Sir John Ohaplyn, or Chaplin, Baronet, a young geritleman of the age of nineteen, seized of a great real estate in Lincolnshire, was drawn in by one Morris, a bailiff, to marry his daughter, about sixteen years old ; had made a will giving his persona! estate to his wife, and had died within two months after the maiTiage, leaving three sisters who were his heirs at law in< default of issue, and who filed the petition. Therein they prayed that whereas the widow was now at her late husband's seat in Lincolnshire, this might be as her castle as laid' down in Coke's Institute, wherein she should be confined and continue until the time of her delivery, and that some woman might be always resident with her both before and at the birth. The Chancellor held that as the condition ut the record of the interested opinions of experts, shocking tlie sentiment of the community from which they have been drawn. The frequent recurrence of such results, following the ad- mission of expert opinions as testimony, would seem to point to the propriety of either remodelliog our System of" trying disputed questions of scientific fact, or the exclusion of ex- pert opinions from the jury. The advocates of this latter measure, daily growing more numerous, are met by the as- EXPERTS AS WITNESSES. 359 ■sertion that there is a necessity for their admission — that otherwise there would often be a total failure of proof. With- out adopting either side, or. admitting that opinions can be called proof in any sense, let us inquire a little into this ex- cuse for their admission. As it will not be contended that merely theoretical opinions should be admitted, we^have only to deal with those which are founded on fact (and' medical books being excluded as €A'idence, in that direction at least)— on facts ascertained by personal observation and study. When, therefore, under the present system an opinion is admitted, it is either preceded by proof of qualification as expert, or tested to that extent by •cros^-examination, by either of which the facts are brought out on which it is founded. The opinion is reduced, there- fore, by analysis to a result of an exertion of the memory, ■comparison, and reasoning powers of the expert witness. In regard to this, the highest court in our State (in Newell vs. Doty, 33 N. Q., 94) has decided that a question calling for «uch an exertion is not allowable. Apart, however, from the " authority " cited, why could not the witness have testified to these facts ? If the witness was confined to a simple nar- ration of his knowledge, the counsel qualified to ask the question could, doubtless, as well exert his reasoning powers in a fair, open argument, the soundness of which could be maintained or* overthrown by his opponent. Surely, there- fore, in the interest of fairness, it will not be contended that the witnesses should be allowed to argue the case by way of testimony under plea of necessity, and an argaihent on facts is all that a well founded opinion amounts to. In the case of Carter vs. Bohn the suit had been brought to recover certain insurances on a trading fort in the East Indies, and was defended on the ground of concealment of material facts from the insurers, contained in two letters of (the assured. On this point— of the effect which those letters would have produced— the defence offered the- testimony of the broker as an expert, "that in his opinion those letters •ought to have been shown or the contents disclosed, and if 360 EXPERTS AS WITNESSES. they had been the policy would not have been underwritten."" On this Lord Mansfield says : " Great stress was laid upon the opinion of the broker, but we all think the jury ought not to pay the least regard to it. It is the mere opinion — which is not evidence. It is an opinion after an event. It is opin- ion without the least foundation from any previous prece- dent or usage. It is an opinion which, if rightly formed, could only be drawn from the same premises from which th& Court and jury were to determine the caiise, and therefore it is improper and irrelevant in the mouth of a witness." This case was one relating to insurance law, which, as it involves in the formation of the bargain for insurance the calculation and estimation of future risks, would see/n to afford proper ground for the operation of expert opiuions. We have, nevertheless, seen it excluded by such a leader in the law that no man may hesitate to follow in his footsteps. - That it is still admitted is true, but that there is any neces- sity therefor I, am bound to deny. Let us look at a few in- stances without discussion : 1. An expert machinist can opine that a machine is not made in a workmanlike manner .(Curtiss vs. Guno, 26 N. Y., 246) ; that the principle of two machines is the same (Bar- rett vs. Hall, 1 Mass., 470). Manner of building a bridge (16 K Y., 158). 2. A medical man may give his opinion as to Jthe perma- nency of injuries (Buell vs. N. Y. 0. E. R, 31 v. Y., 314). 3. Attesting witnesses as to the testator's mental condition at the time of the execution of his will (Delafield vs. Parish,. 25 N. Y., 9-97). The opinions of the medical experts — not under oath in this case — were regarded by the Court as " valuable disqui- sitions," instructive to the Court, but not evidence. That they are precluded from forming their decision, by law, from anything but facts sworn to in a legal manner. Judge Sel- den, however^ in his dissenting opinion, holds that " when a physician, from personal observation or an authentic de- .Bcription of the symptoms of a case has arrived," etc., his EXPERTS AS WITNESSES. , 361 opinion is received in evidence. As far as the opinions bear upon the medical symptoms of the case, they are to be re- garded as the opinions of experts ; but as far as they rest upon testimony as to mere want of intellect, they are no bet- ter than the opinions of ordinary witnesses. 4. A medical man conversant with the disease of insanity, having had prior observation of the habits, conduct and ap- pearance of the prisoner, 'may give his opinion as to the sanity or insanity of the prisoner (People vs. Lake, 12 N. T., 363) ; though it is doubted, on principle, whether, he can after only hearing the testimony ; he may be asked, under cover of the hypothetical case, the same question in the main — he certainly cannot on a part of the testimony (see post, Sanchez vs. People, 22 N. Y., 164.) Omitting the thousand others, these are enough to show that the expression of the opinion can be obviated by nar- rating experience, and that the real reason for their admis- sion at all is the supposition that labor is saved thereby. If therefore, we cannot find a sufficient basis for the plea of ne- cessity in introducing well founded opinions, it is not likely that we will find sufficiently good grounds in the relief which it brings to the Court afe a seat of judgment. As now intro- duced the experts who give opinions are produced by one side or the other, and the jury, who listen to the final charge,, cannot help perceiving, that it is often dictated by the wit- nesses. Such cases so decided are not, and ought not to be satisfactory. In one shape or another they ris-^ until they, reach their final rest in the Court of last resort, or the utter exhaustion of the suitors. In that class of causes which relate to inventions, the duties of the expert are so clearly defined in the theory, at least, of the law, that they would seem to be, at last, in their proper position as aids to the Court, in patent causes, to determine what is intended to be patented, the certainty of the specifi- cation, so as to entitle the invention described to patent, and, in short, to decide what the patent is for and whether it is valid. The Court is to instruct the jury as to the meaning 362 EXPERTS AS WITNESSES. of the specification and the legal construction of the patent ; bat when there are terms of art in either which need explana- tion, or other surrounding circumstances which affect the meaning of the specification, these form a qualification in the instruction which calls for the assistance of experts. They are, from their experience, to explain the terms of art and surrounding circumstances. The statutes require that a specification should so describe an invention that^ those skilled in the art, etc., may be able to use the same. Consequently, experts may, very properly, explain these terms, and show , whether the invention is practical^ useful. Of Course, if the Court possessed the requisite skill, this aid would be both unnecessary and improper ; but until that hope of inventors — ^ proper tribunal for the trial of patent causes — is organ- ized, we must be content with what we have. From this short sketch of the duties of the Court and the experts, one would scarcely expect that there could be more than one opinion, in a patent cause — that of the Judge, given to the jury. Let us glance at the facts. Inventors are nu^ merous, courts few and time precious ; hence, a class of men has arisen who have become professional experts in patent suits, and who command a rate of compensation which may well excite the envy of less fortunate men. It may be, there- fore, only envy which inspires the suspicion that the nature and manner of their employment — not to mention the pay — tend to warp their judgment. Whatever thei reason, the fa,ct is well known that there is scarce a patent cause brought into court which is not prosecuted and defended by means of expert opinions on both sides. I cannot better illustrate this curious fact than by repeating, as nearly as possible, the words uttered by one of our most distinguished advocates in open court. Referring to the immense heap of expert testi- mony introduced into the cause, and then piled up before his antagonist, he said, " That he would not have the slightest difficulty in furnishing an amount equal in bulk and quality which should contradict it flatly. I know," said he, " two brothers, experts by profession, of high reputation and ao- EXPERTS AS WITNESSES. 363' "tnowledged skill, one of whom I have examined on the di- rect and the otlier on the cross-examination, in the same, suit on the same matter, and in relation to the same state of facts, and I have received from them diametrically opposite -opinions therein." The gentleman whom I have quoted is a man of great ability but also of equal charity. Doubt- less, therefore, he would join his professional brothers in the Tegret that the laws of mechanics, and what are called the -exact sciences, are so unsettled as to produce such diverse opinions. These opinions, such as they are, are submitted under a very wide construction of the statutes already referred to- They are given under oath, and being ordinarily taken in form •of depositions, are subject to the close scrutiny of prolonged •cross-examination. If sound, this develops the facts on which they are founded, and, at the same time, would seem ■to take away all reason for their admission — since, , as has been stated, the Court is bound to pass only on facts, and the formation of the effective ruling- opinion is the province •of the Judge and jury. The allowance of them on one side begets a necessity for the prodiiction of counter opinions on the other ; and the manner in which this is at present eon- ducted inflicts a wrong upon the public. Few inventors are rich enough to afford one of these expensive contests. Either, therefore, their inventions are abandoned, or they pass for a trifle into the hands of some powerful combination, which is thereby enabled to inflict all the mischiefs of a .monopoly rapon the people. This cursory glance at the confusion which often arises in suits involving the application of mere mechanical principles from the contradictory testimony of costly experts as wit- nesses, is enough to satisfy a reflecting mind of the danger which attends their unrestrained use in cases less capable of exact demonstration. If great wrong and injustice can be done in matters capable of material -proof, what may not happen in cases involving the mysteries of sciences not yet fully explored, and which are professed by different and con- 364 EXPERTS AS WITNESSES. flicting schools ? The testimony of the former class, known' to have been paid for by the party producing it, may be weakened, if not destroyed, by making manifest its partisan and disingenuous character ; but how will we meet the testi- mony of experts belonging to an honorable profession, and deserving, by their private virtues, of the respect of all ? It is not to be supposed that such men, under the restraining influence of their own honorable character, and esp'ecially when under oath, will deliver opinions in which their own faith can be shaken — and it is not for the purpose of re- straining such experts from the utterance of intentional false- hood that the strictest rules of evidence should be invoked j but when we recall the lessons of experience, and bear in mind the diversity of opinion which has always existed, the conflicts of the schools, the proverbial disagreement of doctors, and the imperfect and unsettled condition of the science of medicine itself, does it not seem a little hazardous to admit (see People vs. Lake, supra) the opinion of a medi- cal expert as testimony in cases involving life and death? Did our system admit of the rendering of Scotch verdicts of "not proven," one objection to their admission might be re- moved by the instruction of the Judge to the jury to limit their verdicts in that manner, where their decision depended, , in "ony degree, on the opinions of experts. But with the ne- cessity of deciding positively one way or the other, it would seem much better to cling to the well established rule of re- quiring facts, and to reject every opinion which cross-exami- nation could or could not reduce to a concise narration of experience. It is cerbainly the safer rule, and more accor- dant to the spirit of our institutions. The principle of our criminal law that the prisoner should have the benefit of the doubt, and that it is better for the community, in sustaining their respect for law, that ten guilty persons should escape rather than that one innocent person should be punished, would seem to demand the exclusion of all testimony, which, like opinions — even of experts — failed in the element of certainty. With us the fate of the accused EXPERTS AS WITNESSES. 365 is. to be decided by tbe testimony of credible witnesses to positive facts — and it is for the jury alone to form an opinion from them wben so proven, and yet the books are full of cases in which this testimony has been allowed. In that of the People vs. Lake, physicians, as experts in in- sanity, were in the first instance allowed to give their opinion on the sanity of the prisoner after only a partial hearing of the testimony, and the accused was convicted and sentenced. Reversed as this sentence was by the Court of Appeals, al- though the Coux-t doubted whether medical witnesses ever should be allowed to give a general opinion on the insanity of a prisoner, it yet holds that such opinions may be evidence when the expert has had opportunity for observation, and is ■conversant with the disease. In the case of the People vs. Montgomery, (13 Abbott's Reports, N. S., p. 207), tried first in 1870, the accused was •convicted and sentenced for the murder of his wife, mainly, if we may judge from the report, on the testimony of physi- cians, that he was sane at the time. " The question at issue on the trial (says the Court) was chiefly a medical one, in re- spect to which the opinions of medical men would be likely to exert a great if not controlling influence. " In examining this case for the purposes of this paper, at the suggestion of Mr. K. S. Guernsey, I discover such a wealth of illustration that I am tempted to make larger extracts. While differing from him as to the right of a juryman to have a private opinion, for reasons given in the Golden Rules cited, I cannot but pay the highest compliment to Mr. Guernsey for the learning and research shown in his note appended, and which forms a portion of an article which I have not had the good fortune of reading. It is true that the admission of these opinions is subject to the after charge of the presiding Judge; but even where, as in Cole's case, the jury are told by such a Judge as the late Judge Hogeboom that they must estimate their value— that they are the ultimate judges on this point, or they are as fully discussed as in Montgomery's case— the jury are not always 366 EXPERTS AS WITNESSES. able to emancipate themselves from the thraldom which the supposed superior wisdom of the expert imposes. And this again furnishes a serious objection to the admission of the expert as a witness, aparb from all interested motives ; and if the sciences professed were reduced to the perfection of cer- tainty, instead of being for the most part imperfect, he would still be objectionable as a witness ; but with the present state of uncertainty in medical, chemical and related sciences, the very reputation of the man intensifies the objection. The jury are not competent to criticise him, and the higher his position the more they will be inflaenced by his opinion. If, therefore, the school in which he has obtained his instruction and subsequent success should happen to be incorrect in its tenets, and he clings thereto, as we know he will, what dan- ger do we not incur when we permit him to leave the narra- tion of the facts of observations and utter the opinions of his sect ! How shall we disabuse the jury, and confine them to their duty, unless by calling in another expert, equally learn- ed, of the opposing school, and by their conflict seek to de- termine the law and the facts? See Montgomery's case. Fortunately for courts and community such conflicts are rare, and even when they do occur the juries recollect that they too have a right to an opinion. They may listen patiently to learned disquisitions which they do not comprehend, but often the verdict proves that the eifort has been labor lost. Need I do more than refer to that somewhat recent death by a pistol shot, which called forth such able essays on the deadly effect of soporifics and the lethal consequences of shock. Wliile reading the record, one is tempted to' believe that the jury alone renembered that there was a shot wound in the bowels.. In the early days of the West, there were model juries, who decided that every man lound with a round hole through his head had died by drop fever, or visitation of God, but when a bullet was found in the head gave it the credit of the death. The case to which allusion has been made would seem to have been one in which the scientific testimony would have EXPERTS AS WITNESSES. 36T taten the simplest shape, and that beyond the evidence of the surgeons none other conhl have been admitted ; yet, un- der the relaxation of the rules of cividence, we have seen how great a c'oud of witnesses were allowed to ventilate their theories in its connection. The result, if it has manifested anything, has shown the wisdom of greater strictness of their exclusion, if only for the sake of economy .- In cases of death by poisoning there is an apparent neces- sity for scientific testimony. Let us see if they afford any better reason for the relaxation of the rules of evidence. Sup- pose, then, that all the preliminary investigations by chemists and surgeons are completed and the case on trial — what ought to be the testimony of the expert called ? Certainly nothing more than the description of the processes employed,, a positive averment of the chemical result, and possibly an assertion of the absence of other causes of death. But here he should stop. By right should either chemist or surgeon say that, in his opinion, the poison foiind was the cause of death ? If an undoubtedly deadly poison be found in suffi- cient quantities to produce death, doubtless he can say just that fact — this will be enough to enable the jury to do their duty — and here his office ends. Allow him to say more, even in a case free from doubt, and a precedent will be formed for use in cases where the facts are not so clear. Kemember that assertion may hi shaken on cross-examination, but opinion,, even when producing conviction, gives no good hold. To show how carefully even such testimony as is based on scientific experiment, the result of which rises from opinion to the evidence of a fact demonstrated, should be criticised before admission, let us refer to one or two recent cases : In the first — that of Dr. Schoeppe — there was every apparent reason for charging him with the crime for which he was brought to bar, and yet, as the result has proved, there was the greatest necessity for even something more than the strict application of the rules of evidence to secure him a fair trial. Of foreign birth and manner, he labored under the weight of popular dislike and prejudice. His engagement to marry Miss 368 EXPEKTS AS WITNESSES. Steinecke, a woman so much older than himself, the conse- quent will in his favor, his constant attendance upon her, furnished the apparent motive and opportunity for the commission of the crime. Her sudden death completed the chain of suspicious circumstances. It is evident that the facts in the case had already made their impression upon Dr. Aiken, the expert called by the State, before he began his investigation, and that he had already formed his opinion before he had ascertained the facts. His own convictions blinded him to the truth that his duty compelled an exhaus- tive search for facts, and not for the means of supporting his own opinions. The circumstances already mentioned lead us to take the most charitable view of his actions, and to give him credit for an invincible conviction of the guilt of the ac- cused ; nothing less than this will excuse his manner of per- forming his scientific duties, as subsequently shown. Were it possible in this paper to comment at lar^e on all the pro- cessc'i employed by him to produce the result attained, it is not to be doubted but that it could be shown that at each step he took something for granted — that every one of his experiments was founded on a false assumption, and the re- sult a mere expression of opinion. Fortunately it is not ne- cessary. We all know the effect produced by his ex 'parte, testimony on the jury, and to whom belongs the credit of saving the victim of this " opinion " and public prejudice from the gallows. Had Dr. Sehoeppe been less intelligent than he was, or less able to appeal to the assistance of his fellow professionals, he would undoubtedly have added another name to the list of the victims of what is called circumstan- tial evidence — in reality the admission of mistaken expert opinions as evidence. This result of the final trial, obtained by such unheard of exertions by a class of men second to none in influence, due to character and reputation, made manifest not merely that the chemical investigation of Dr. Aiken was conducted on a mistaken basis and in a faulty manner, but that a system which permitted an opinion, as I may call the ex parte investigation, to be offered in evidence. EXPERTS AS ^VITNESSES. 369 -vvas ill itself faulty. Nor is it to be doubted that the Court Tvhich, on a verdict rendered on the strength of such testi- mony, sentenced an innocent man to be hanged, and brought him so near that fate as to be measured for his coffin to the sound of the carpenters building his scaffold, will for the future require strict proof of the facts of every process, and retain for itself and the jury the expression of opinions thereon. If it should be said that the case of Dr. Schoeppe is an ex- 'ceptional on^, and that such another would not occur again, in a century, it should be answered that such startling ex- 'ceptions show us the necessity of clinging more closely to the rule of evidence, and that some provision should be made whereby, in similar cases, all danger of the expression of «uch mistaken opinions might be averted This would seem to be an easy task, and one which could be performed in manner similar and on the same principles which now regu- late the prosecution of criminals by the State. Every one knows that a criminal can obtain not merely a statement of the crime with which he is charged, but a list of the witnesses by whose testimony the charge is to be substajitiated, and Sthat all ex-parfe testimony is excluded. What is there to prevent a similar communication to be made whenever a post mottem examination is to be or has been made ? Why should not the accused be informed of the intentional process, or of the processes already had, so that by employing experts to attend on his own behalf the possibility of error miglit either be wholly averted or the chances thereof greatly diminished ? The State cannot stoop to surprise a criminal, much less an accused citizen,' not yet proven, through conviction of guilt, to have forfeited his right to protection. The investigation necessary is to be used, not for the purpose of conviction but for the manifestation of truth. This is the end of all evi- dence, the object of all legal and proper processes of trial ; and surely such an investigation as the chemical analysis of human remains, the contents of the stomach and viscera of a person dying under suspicious circumstances, which can 370 EXPERTS AS WITNESSES. scarcely be repeated, should be so conducted as not to rest: for belief in its fairness on the opinion, character,, or reprita- tion of witnesses summoned, for one side only. How much better that such investigation be made under the jealous- scrutiny and criticism of a chemist or analyst employed for the defence, who should thereby prevent anything from being taken for granted, and, 'pari passu, with the process, mark the- doubts and demonstrate the facts. It is no more to be sup- posed that this course would be attended with any more danger to the State than the very common practice of assign- ing counsel to defend an accused who "has no lawyer ;" and it would seem that, on the same principle of securing him a fair trial, that he is entitled to this aid to his defence. Is it; not evident that if this course had been pursued in the case of Dr. Schoeppo, he would never have been tried at all, and that both the State and the accused would have been spared the immense expense and suffering caused by Dr. Aiken's- error of mistaking the product of his own process for the pro- ducing cause of death ? It would seem, therefore, as if an enlightened economy would dictate the adoption of this course, especially, where, in cases of life and death, the hu- manity of the law compels the production (and explanation)i of the best evidence before the juty. Without this provision,, as long as such testimony from experts is admitted, the ac-- cused, when poor and friendless, is exposed to the danger of having apparent proof exhibited against him, prepared before- hand and testified to by an expert in every way disposed to maintain his own testimony. Trained it may be in a faulty school, the tenets of which he has adopted, his professional pride binds hind to make good the apparent results of his theoretical experiments, and, as long as he is enabled to tes.- tify to his opinions, he is freed from the necessity of deter- mining any doubts that may have arisen. If an obstinate,, conceited, or prejudiced man — all of which are perfectly com- patible with a high popular skill and character — how will it be possible to permit such an expert to testify to his opinion , without incurring the gravest risks ? EXPERTS AS WITNESSES. 371 Again, the idea that opinions should be admitted, because otherwise there would be a failure of all evidence, is wrong, not only because with sufficient care the facts on which opin- ions are based can be themselves testified to, but also because, when in any case the facts could not be testified to, the opin- ion would, of necessity, be mere conjecture or inference, and,, as has been shown, utterly out of place in the mouth of a witness: If an opinion based on facts, then it is an usurpa- tion of the functions both of Judge and jury ; if a conjectural one, based on theory, it is certainly not evidence. The ad- mission of such testimony at all would rather seem to be the result of a belief that trials were instituted for the purpose- of conviction. With most people the fact that there is an ac- cusation is proof sufficient of guilt, and they deem it but the duty of the State's attorney to adopt every means of develop- ing a criminal out of the accused. To effect this, in the opin- ion of such persons, any means not absolutely dishonorable, should be employed. Such, however, is not the spirit of our laiws and institutions, but is an idea borrowed, with fashions of dress and manner, from the French. With that nation the pubHc prosecutor, aaid even the Judge before whom the ac- cused is examined, is allowed aadjjraised for practices which, with us, would create a popular uprising. With us, as has been said, the prisoner is assm'ed the benefit of the doubt, the only qualification being that the doubt should be founded in reason. How is it consistent with this principle of our public law to allow the introduction of opinions ? If we are told that otherwise professional men would refuse to testify at all if they were compelled to swear absolutely, is not that a confession that there is so much doubt on many points whereon experts are usually called for the opinions, such di- vision among leading authorities, that such testimony ought to be wholly excluded ? Until the divisions of the doctors, proverbially so difficult to heal, shall be brought to happy accord by established fact and demonstration, let us bear in mind that provision which declares that a man shall only be 372 EXPEETS AS WITNESSES. deprived of life, liberty, or property by due process of law, and cling the more closely to the strict rule of evidence. It is scarcely necessary to refer to the recent cases of Mrs. Wharton, of Maryland, or that of Heggi, in our own State. The adoption of the provision of conducting the chemical Analysis under the eye of - a professional analyst as counsel, ; -as has been suggested, for the defence, would have saved Dv. Aiken from being a second time brought to open shame— the prosecution would have discovered the lack of foundation for -the accusation, or it may be, the improbability of obtaining ■ a conviction, and would not have been under the necessity of ^tur^ling the Court room into a laboratory in the discharge of its duty. These cases have, however, demonstrated anewthe fact that one cannot always rely on experts, as used at pres- ent, for thorough impartiality, and that if they are to be per- mitted to express their opinions as witnesses, it is absolutely necessary that both Judge an(;l jury be thoroughly well read on both sides of the question. When this is the fact, it is •evident that the true office of the expert would be destroyed, and that there would be no room for that instruction in^ the science involved which, it is maintained, is the only good rea- son for his introduction. Thus far I have confined my cita- iiion of illustrations of the uses of expert testimon}- to those 'Cases which involve j)oints of mechanical, scientific or chem- ical knowledge and experience, and, however imperfectlj' or cursorily, have, I trust, said enough to show that in all the material or exact sciences there is no necessity for the ad- mission of opinions as evidence. In the criminal cases to ' -which reference has been made, however exceptional they may have been in their circumstances, enough, top, has been said to justify their exclusion, under the merciful provisions and spirit of our public law. But leaving all that great variety of cases which derive their complexity and difiiculty from the insufficient explora- tion of the fields of material science, we are brought face to face with those which seem to pass beyond the doma^in of matter and involve us in the mystery of the human mind. In EXPERTS AS WITNESSES. STii these cases, strange to say, tlie position of the expert is re- versed. He is no longer a danger to the accused, threatening life or liberty with the faulty products of ill founded theory but he is a peril to society itself. Interposing between the guilty and the sword of public justice, he^staj's the execution of sentence for crime committed, and so, by rendering punish- ment uncertain, he weakens that sense of accountability which is the security of civilized society. How to exclude his testimony, or so to admit it as to prevent the utteraB"© of mere conjecture as true opinion,- and 3-et not offend the mer- ciful learnings of the law itself, is a problem not yet satisfac- torily solved by the courts. How to brace up juries to resist their own tenderheartedness, and apply the test of reason to the doubts he suggests, so as to find their verdicts in accord- ance with strict law and justice, is a task for the prosecution which he renders more and more difficult. Both the statute Jaw and reason itself decide that no man should be held criminally responsible for acts committed when insane; but it is evidently necessary that this im- munity should not deprive the communit}' of the power of protecting itself; that in thus creating a city of refuge, to which all criminals might flee, it should at least have the privilege of criticising their right to admission, ;ind of so guarding its gates as to prevent their return to active mischief. Unfortunately for the community, the subject is itself but imperfectly understood, even by those who claim to have devoted their lives to its investigation. How, then, can one apply a test, when as yet there has been no un- failing touchstone found ? How require proof oi facts where everything is guesswork and conjecture ? The popular pre- disposition to believe in pleas of insanity is shown in the saying ' That there were more lunatics outside of than in the asylums " Every man can recall to himself some instance of sudden, unexpected mental aberration, often without ap- parent or sufficient cause. How then can an easy going, it may be sympathetic, jury be compelled to do theii- duty to society, if an expert can only be found to opine that the ac- 374 EXPERTS AS WITNESSES. cused was, is, or ought to be insane ? The law itself, which gives the prisoner the benefit of the doubt, would seem suffi- ciently lenient, but when there is added thereto the aversion of all men to inflict severe penalties, the fact of punishment inflicted becomes so rare as to be almost phenomenal. Nor is this power of pai-alyzing the arm pf the law confined to capital cases only. The efficacy has led to its being ex- ploited in so many directions, that already the right' to inflict any punishment at all has been denied, on the ground that the commission of crime is in itself evidence of insanity. The credit perhaps, of first application of this system of philosophy to practice is due to the late James T. Brady, who, reduced to invention for a plea for Huntington, the forger, gravely urged in his behalf the defence of rhoral in-r sanity. Unfortunately for his client, the jury remembered that the hearts of all men were equally desperately wickedi and that being the normal condition, his client was found guilty of the exceptional enormity of sanity and forgery com- ■ 'bined. Despite this unfortunate result the defence has found, as has been hinted, great favor in the eyes of all the de- fenders of the accused, and they have applied their talents with such unflagging z6al to its elaboration, that at the pres- ent day there is no unrestrained act of anger, lust or avarice, which has not been classified and passed upon as " a peculiar • species of emotional insanity. Fortunately, neither my duty nor inclination coinpel me to offer what would be necessarily inexpert observations on the nature of the various forms of amentia, dementia or mania. It is enough to comment upon the manner in which it is introduced, the appeal to the sym- pathies, coupled with the usual disquisitions on the infirmi- ties of human nature. If ?o unfortunate as to have had a known grandfather, the foibles of people long dead and gone are resurrected, with which, and the conduct of the accusedj to make up a hypothetical case for the deci&ion of the expert* The kleptomaniac and the murderer both have shared the benefits of the defence, — the one to return to the bosom of EXPEETS AS WITNESSES. B75 lii,s disgusted relatives, the other to become a leader in the "land. In Macfar land's trial we have an illustration of the "hypo- thetical case " carried to its highest perfection, and of its -eminent success in the conduct of a desperate defence — when addressed to experts competent to give an opinion. In the -Judge's charge you will find the following : " Experts have been called in this case. They are to be considered rather .as mirrors with which merely to reflect upon you their -opinions, but you remain the sole judges whether those re- flections are accurate. Sometimes the expert is an enthusi- ast, sometimes he is a clever charlatan — hence the useful- ness of the jury as an umpire." The Recorder nevertheless allowed these experts to hear a narration of the same facts presented to the jury, and declare thereon the opinion that the accused was insane (see Vance and Hammond) ; where- upon, after a decent hesitation, the jury sheltered them- selves behind the opinions of the expert and acquitted, the prisoner. Unfortunately there is no adequate remedy for morbid sensibilitj', partisanship, or lax regard for the obligations of an oath. For these causes of the failure of justice and de- feat of law we must look to the morals of the community ; and if we wish to insure fidelity to duty, as prescribed by Phillips to the tenants of the jury box, we must, in some de- :gree at least, reform society. If dereliction from duty was visited with the penalty of social ostracism, the courts would be idle. In the absence of this restraint we can, however, hope to ■effect the desired object by removing excuses, behind which the fault when committed can be sheltered. If we remove the temptations of this kind, falsehoods in the verdicts, of juries will become less frequent. When, therefore, we shall find Judges on the bench who shall remorselessly exclude all testimony which, tinder the strict rules of evjclence, does not bear, upon the main fact, we will find juries much leps 376 EXPEBTS AS WITNESSES. frequently shutting out, as it were, the facts from their- Yerdiets. In cases in which insanity is the chief defence, it .would, seem, at the first glance, harsh to insist upon the strict ap- plication of this rule. The disease exists in so many forms-' — it is so often unsuspected even by those in constant con- tact with the sufferer, that one may well ask how it is to be detected or proved if not by experts^and how can it be proved by them, if not by admitting their opinions ? If it were the fact that it can only be proved in this way, that should be sufficient to exclude this kind of proof from trials- at law, as this view substitutes theory for that certainty which is the mainstay of society and law ; but as the proper- expert duty is to describe and explain symptoms of genuine- attacks, so that the jury may form a correct opinion, one can: hardly see how the charge of, harshness could be justified. It. would, of course, be bad for the.,aQcused if the facts were not strong enough, but it would not be a reason for complaint on the part of the community. Why should an expert be allowed to express an opinion as a witness ? If he is called as an observer, or living re- cord of the symptoms of others, he is not properly a witness? but an addition to the body of the law on this subject. His office is that of a commentator, and his utterances should be- used like those on an}- other of the law. The duty of the ivUne^s, it is to be remembered, is to tes- tify to the facts of the particular case. If he is both a wit- ness of the daily condition and acts of the person at the bar,, and an expert beside, of course he will be on that account the better able to speak with certainty,' leaving to the cross-ex- amination the task of exposing his falsehood or ignorance. If, "however, such a witness, so amply fitted, by position and skill, should only be willing to testify to his opinion, would one not at once conclude that he doubted the truth of his own observation ? Ought it not be properly excluded, or, if admitted, destroy his evidence ? If, then, it would not be proper to admit his testimony in the shape of an opinion that EXPERTS AS WITNESSES. ' 377 tlie acts observed were insane, why should an expert be al- lowed to give an opinion on a hypothetical case, which is propounded to him as a witness ? Hypothetical cases pre- suppose the existence of actual precedents. If, therefore, the expert is the embodiment of a knowledge of these, is it not sufficient that he should narrate his experience, describ- ing cases parallel in character and symptoms with their re- sults ? Doing this he would supply to the Court the lack of what in law we call ■" reports " on this particular science, and en- able it to perform its duty to both the State and the accused. He would, and should, in fact, act not as a. witness in the case, called by the side which employs and pays him, but as a wit- ness to his science, and not be allowed to act as a willing re- spondent to the hypothetical oases put to him by a partisan employer. Precedents and descriptions of precedents he might well recite and verify, but their parallelism and rele- vancy should not be allowed to be shown by him in an opin- ion, but should be reserved as matter of argument for the advocate and charge by the Judge, to be passed upon by the jury. If, in addition to his experience, he has a knowledge of the recorded experience of others, he might also identify and au- thenticate such records, giving, as he may be well fitted to do,, the proper share of weight and authority to each. We must remember that the rules of evidence, which would seem so to limit his scope, have been adopted as the best means of arriving at the truth. Harsh, therefore, as the ex- clusion of anything of material importance— at least to the attainment of justice. The innocently accused would not re- quire such aid; nor can history supply us with many — I have not been able to find any — instances in which they have suf- fered for want of such assistance ; while, on the other hand,, books both of history and law, from that recording the crucifix- ion of our Savior, in whom was found no wrong, down to the suicide of Iktrs. Waters in England the other day, are full of instances of innocents who have suiferedfrom the admission of •378 . EXPERTS AS WITNESSES. ■opinions to the witness stand. We must not forget that the utter exclusion of eyerything like these opinions from testi- mony as not being lawful evidence, is by no means to de- prive either party of its use — it is simply to apply to all ex- perts themselves. These certainly, though experts in their profession, would think it a strange procedure in a trial of a case to manufacture invented and suppositious cases to pro- pound to another lawyer on the witness stand, in the hope and expectation of thereby deriving opinions which should influnece the judgment of the court and the verdict of the jury. Doubtless the absurdity of the thing would strike others with equal force ; but it does not seem to occur to men in general that the ordinary use of experts amounts to the same thing. In the case of the lawyer, with hiS hypo- thetical cases of law, it -would imply ignorance of law on the part of the Court. Surely, it implies nothing else in the cases involving scientific inquiry. If, therefore, the implica- tion is a just one (and as mankind has but, a short life and art is long, it is no reproach), the proper position of the ex- pert, when admitted at all, is as an instructor in the facts of his science, and the laws relating to the same. The opinion which he is forbidden to deliver is that which the jury is to form, under the direction of the enlightened judge, who sits for the purpose of instructing them "in the law, after, they have heard the presentation of all sorts of cases, hypothetical and other, in the argument of counsel. The exclusion would therefore, deprive the parties, plaintiff or defendant, of noth- ing, but would simply put that part of the performance in the hands of the proper actors. It would, indeed, do more than this ; but all that it qould do would be in the way of a more certain and speedy administration of public justice. It would remove from the practice of the law certain reproaches which now cling to that honorable profession. It would pre- vent the office of experts from being invaded by those who have but the slightest claim to the honors of the professions . they do so much to bring in doubt, while it would bring into deserved honor and reputation the men of real learning an3 EXPERTS AB WITNESSES. o79 iriie merit. As the expert is now used and allowed to testify, it is but seldom that men of ,real eminencfe are in demand. The person now desired is that one who has the " greatest facility of communicating " his opinion to the jury, who will so deliver it as to favor the side fdr which he may be called, and by no means that man whose patient research and laborious study has made him the master of his mystery. The latter would, doubtless, make permanent additions to the law and the sum of human knowledge; but he would be a most unlikely personage to depend on for the sug- gestion of a useful fiction. The probability of this, and the need of some such shelter for the criminal without just defence, has called the other class of experts into being, and the admission of opinions has furnished the means of operation. An oath, and the penalties for falsehood at- tached, may prevent the manufacture of facts ; but opinion is intangible. It is subject to no rules — is pronounced, as it were, on honor, and the proof of utter want of foundation af- fords no gi-ound for a prosecution for perjuiy. That this means of escape has been used to the utmost ; that, thereby, the sword of justice has been blunted and her arm paralyzed, ■there is no need of the citation of cases to prove to any citi- zen of New York. We have already alluded to the manner in which it has been used in proving insanity in the defence of criminals of all grades, from that of murder to embezzlement, .and we are justified in the assertion that the scope thus given to the use of expert testimony is dangerous to society. Evils of this kind, fortunately, like any other bad laws, work their 'own cure. From a serious obstacle to the prosecution it is becoming a laughing stock. Juries are being educated up to the point of having opinions of their own, and now and then startle us with verdicts in accordance with the facts. Soon the revulsion will reach that much to be desired point when the opinion out of place will destroy rather than raise the , ' doubt. If the revulsion would only stop here one might well be 380 EXPERTS AS WITNESSES. satisfied witli the effect, without too nice questions of tbe uaocTe of its production; but, unfortunately, this very mode of cure brings evils in its train almo-t equal to the original trouble. If juries can be allowed to disregard what is ad- mitted by the Court as evidence, because the popular senti- ment is aroused against it, there is an end to all fixed rules- and established law. There wiU be nothing left to curb" the course of that popular opinion which is as utterly out of place in the jury box as it has been shown, or at least attempted, it is in the mouth of the witness. The remedy on which I would much rather rel}' will be found in the return to the more- stringent application of the rules of evidence, with penalties, for disregarding them, whereby a salutary check can be 'effi- ciently ]3ut to the progress of this evil.* In the foregoing pages I have endeavored to show that it is in no way necessary, either to the cause of justice or the elim- ination of tiuth, that an expert should be allowed to give an. opinion upon the witness stand. In so doing I have avoided going into the technicalities of the law of evidence, but have given what I may call popular reasons. As an illustration of the completeness with which an expert will combine in one opinion all the functions of witness, advocate. Judge aad jury, permit me to quote rather liberally from one now lying before me. In justice to the eminent author, I wish most distinctly to state that I do so without the slightest idea of imputing any improper motive to him whatsoever. I use it as an illustration, fortunately in print, of the extent to wliicli an expert can go, and the many characters that he feels called upon to assume, not' doubting but that the memory of my auditors will recall instances of oral testimony on kindred subjects, which, if not so full and comprehensive, were of similar character. I find in the preface to this, the second edition, the following : " The finding of the jury was adverse to the contestants ; but it will be seen that the Judge sustains all the legal and scientific points upon which I have insisted in my view of the case." While, therefore, the " finding of the jury " will relieve us of any suspicion of criticising it from any connection with a case EXPERTS AS ■WITNESSES. 381 lost by its means, the fact of its "legal and scientific points " Jiaving been sustained by the Judge, shows that as a contri- bution to law on the subject it was regarded justly as of great weight. That in this light it might be proper, and a grateful amelioration of the labors of the Court, there would be no shadow of doubt, did not the perusal of the whole production prove it to be the issue, not of a calm, impartial instructor, but of an interested and partisan advocate. Admirable and rich as it is in stores of learning on the subject of insanity in general, and monomania in particular, it is more like a biief Jor an advocate retained to prove one James C. Johnson des- titute of testamentary capacity than anything else. Retaining the form of an opinion, it opens with .an intro- duction of the testator, continues with a sketch of his manner ■of Hfe, antecedents and siirroundings, as viewed from the con- testant's point, and then, with the certainty of conviction, pro- nouiices him incapable of making 9. will because of mental •derangement. After this, however, he weakens the force of his own dictum by acknowledging the extreme difficulty of giving such a meaning to the word "insanity" as will "cover all pos- sible cases of deficiency or abeixation in the mental faculties, and yet not include those instances of cerebral disease which ■cannot properly be classed under this head," and filling the next five pages with the citation of varying and clashing au- thorities The author, however, passes tliem by, and confines himself to the one available form of insanity, which in this case he claims was monomania. This, with the utmost distinct- ness he declares, was the matter with the. testator. Sane on all -other points but the one of disliking his own nephew ; his dislike for him was proof of a monomania that prevented in law his leaving his property to whom he liked. Eight pages of the opinion are therefore devoted to an essay on the sub- ject of monomania, after which, lest there should linger with ' the jury some prejudice in favor of granting some rights to a monomaniac, he proceeds to afflict him with paroxysmal mania. As, unfortunately, paroxysms imply cessations or lucid inter- vals, in one of which a will might be made, it becomes neces- 382 EXPEBTS AS WITNESSES. sary to dispose of this difficulty. "Naturally," he says "the next point to be considered is the legal relations of mono- nania and lucid intervals." Na.turally, a lawyer would say, this part of the case belongs t'< the Judge ; but the author of the opinion rises to the height of the emergency, and takes the matter into his own hands. To this end he cites numer- ous reported cases and decisions, which enable him to pro- nounce authoritatively that lucid intervals are a delusion and a snare — and, in fact, that there is no such thing. This estab- lished, it follows, of course, that the testator could not have had any, and, if the logic may be completed, he was at all times crazy, if not always a maniac. After this rather partisan ar- gument Kesays: " This concludes what I have to say relative to the law and science of monomania, as the same are acted ' upon and understood in Germany, France, England and the United States at the present day." "This is aK /^at?e to say," says this expert, renowned for his knowledge, and with his great reputation, to infliience the verdict of a jury. But this is by no means the position whicln an expert should be allowed to occupy. If it is a?Z that can be said, there is no fault to be found ; but if it is not, then it is at least reprehensible. The very reputation of such an ex- pert for knowledge and skill in observation would add such' weight to such a-stafcement as to make an ordinary jury be- lieve that it, was all — that the "law" of the case had been fully and fairly stated. The obligations of honor are binding upon the expert to do this— for his only right to give an opinion, or to testify at all, is derived from the belief that he is a min- ister of the truths of science. In any other view the citation of authorities scarce to be comprehended, and hardly to be refuted by lawyers in a court of law, can be only made for the purpose of darkening counsel and confusing the jury. As an opinion -by an expert, written with full opportunity for reflec- tion, and therefore much less liable to be swayed and distort- ed from the most perfect impartiality than when delivered in court diiring the heat of a contest, it will be useful, to con- EXPERTS AS WITNESSES. 383: sider closely the one now under examination. If it fails in this respect, what may we reasonably expect from the other? In the first portion of it the author uses the foUowiug ex- pression, inadmissible under all the decisions: "I am entirely satisfied, after a full consideration of such evidence, docu- ments and statements as have been submitted for my exami- nation, that the testator was not of sound and disposing mind," etc. The judicial character of this declaration, which,, however, legally destroys the opinion, can hardly fail to be noted. The ordinary inference is that the testimony on both sides had been submitted to him ; if not, it is not possible to believe in the impartiality, or attach any value whatsoever to the declaration made. Remembering, however, that this dec- laration is not made by an ordinary witness, but by one lifted above the common herd — by one selected as an expert — does it not show the danger of giving the power of such utterance to those who may be so unmindful of the ordinary obligations of fairness among men ? The author does not, however, through all his long opinion, give us the slighbest proof that he has "seen the testimony in behalf of the testator's sanity. Everything of that kind de- pends on unsupported inference ; and yet, in the quiet of his study, he deems he has a right to prepare for utterance the most decided declarations.. Let me quote from the second part of his opinion : " The testator had been insane for fifteen years prior to the execution of this will, and his sister was similarly affected. His attacks of delirium were paroxysmal in their character, and in the intervals he would be of appa- rently sound and healthy mind. Over these attacks of de- lirium he had, as is common in iivsanity of this form, a certain amount of control. When persons before whom he wished to appear to advantage would approach him, he would suppress his ravings, but would again break out in them when left alone, or with those whose presence had become familiar to him. At times, too, after becoming thoroughly exiiausted with his delirium, he would regain his calmness, .beg pardon of; 384 EXPEETS AS WITNESSES. those wlio had been with him, admit the existence of his in- sanity, and state that he ought to be carried to an asylum." Kow, not to state that, according even to this rather strong statement, the unfortunate Johnston exhibited an unusuali power of will and self-knowledge, ought it not have occurred to the expert that he was himself " piling the agony " upon a monomaniac — possibly from one-sided statements by interests ed persons ? The context seeming to bear out the idea that this testimony and evidence was so furnished, ought he not rather to have uttifrly refused to have given any opinion at all unless furnished with the fullest evidence on both sides ? Of this fact, the opinion, as it is professedly a- judgment on the law and fact on insanity applied to the case in hand, should" have contained abundant and convincing; proof. Up to the point which I have now reached in this "opinion" there has been maintained some slight semblance of judicial tone and style — enough to make one suppose it was intended for a one-sided charge to the jury. From this point, however,, it abandons it entirely, and becomes an open partisan argu- ment. That it is an able one, and perfectly allowable to an advocate .avowedly' retained by 6ne side, ban be admitted, though it may well be doubted whether any Court would per- mit, or any counsel dare to impute motives and feelings so recklessly and positively on so slender a foundation of proof. Not only is this done on slender proof, but the poor man is accused of sentiments of which there is no proof whatever, and which must have been locked up in his own bosom. That he did not act in accordance with such imputed motives and feelings is adduced as proof of his insanity. It seems that the testator had supported a nephew and his wife for many years, but that an opportunity occurring to break up his es- tablishment, he sent both adrift for reasons expressed in a letter which is cited This act the " opinion " terms the " coii- summation of a plan which, with all the cunning of a mono- maniac, the testator had kept long confined in his own bosom." If the line of argument anfl logic is correct, it will EXPERTS AS ■WITNESSES. :-585 be eminently dangerous for any one to bear patiently with a household grievance until the day of delivery arrives. After a continued preparation for his final effect, in the same strain, the author introduces the will and the directions to the executors in i-.riciifio. These he pronounces such as no sane person would write. Odd they are, doubtless, bnt with- out disparaging the author's judgment and opportunities for forming a judgment, it may well have occurred to him to re- flect that there is no source of lit igation so fruitful as the testamentary dispositions of ignorant or ill-tempered dece- dents. A moment's thought would, perhaps, have shown him that there were two sides to the (inestion so positively decided. Large as is the space which I ha ve demoted to the criticism of this opinion, I cannot dismiss it without referring to the conclusion which is contained in " seven points." Of these the first four relate to the disease of mononiania. ,|The fifth repeats the charge that the testator was a monomaniac, and incapable of making such a will as he would have made if sane. The sixth affirms that " there could not possibly have been a lucid interval when the will was written, signed, ac- knowledged and reaffirmed, because all these acts show a con- tinuance of the delusions under which the testator labored,'' and the seventh decides "that therefore he was not possessed of testamentary capacity, and that, consequently, the paper dated the tenth of April, 1863, and reaffirmed the thirteenth of September of the same year, is not his last will and testa- ment." Annexed to the opinion is the charge of the Judge, which, however, does not verify the statement in the preface that I have quoted, inasmuch as in offering to the jury the usual choice of alternatives, he very far fails from sustaining the expert in the last of his "legal and scientific points." This fact, and the verdict of the jury in opposition to the direc- tions and conclusions of this " opinion," tend to confirm me in my expressed suspicion that there was some testi- 386 EXFEETS AS WITNESSES. ;.-" :"'■■■ -■' '*^; ' mony or proof on the other side to which the author gave no attention. * While confessing that I am puzzled to assign the particu- lar office which this production was intended to perform, I am by no means in doubt as to the lesson which it serves to enforce. If a gentleman of high standing in the community, of large and (extensive practice and great acquired knowledge in his profession, Avill, in the quiet of his study, prepare such an " opinion " for use in a cause involving the mere right to property, in a distant State, what can you reasonably expect of an expert on the stand, where his feelings are enlisted and excited, and the game is one of life and death ? How can you expect the impartiality of the [pure scientist when the expert is allowed to be summoned as a witness for one side ? That he should be allowed to furnish a onersided brief seems equally out of rule. If I have thus far — in directing your attention to the re- laxation of the rules of evidence in admitting the opinions of experts as testimony, as the cause of evil to society, inasmuch as it introduces an element of uncertainty — seemed to have treated the subject too much from the lawyer's point of view, it is because that point of view ought to embrace all sides. It certainly does not entirely leave out of sight that one which reflects the obligation which the expert owes, not only to society but to those other honorable men, his professional associates, who also devote their lives to the pursuit of scien- tific truth. As a lawyer, I would exclude his opinions from testimony only to raise them to the dignity of law ; I would remove him from the arena of strife as an advocate, and ex- clude him fi'om the witness stand, that I might raise him to the position of an amicus curia, owing no' allegiance to either party, and only bound to declare the established and demon- strated truths of science for the enlightenment of all. I would elevate the man, and through him the science he pro- fesses, by putting him beyond all suspicion of interest, all thought of partisanship, and I well believe the strict appli- EXPERTS AS WITNESSES, 387 cation of the rules of evidence would efl'ect this in a great measure by removing temptations which now too strongly appeal to the weaknesses of human nature. As an Authoritative recognition that this is the proper posi- tion of tlib expert, at least on the question of insanity, recur for a moment to the statutory provisions of our State there- on, and see if there is any reason, in principle, why this de- fence, when pleaded, should not be passed upon by the Court, aided by experts summoned by itself, hf/ore as well as after the verdict of the jury. In itself a statutory defence, its re- gulation by other statutory provisions could scarcely be ob- vious to the constitutional inhibition. A trial so regulated would be as much due process of law as any other, and the jury would receive the law of the case on this subject, as well as on the public law, from an enlightened Court, instead of being, as now, compelled to reconcile the opinions of diverg- ing, because partisan, expert witnesses. Let me recall to your memory the recent case of George Francis Train as an illustration. ^ His verdict of acquittal having been rendered on the ground of insanity, and the Court having been certi- fied by the jury, or otheriuise (for so says the statute as it stands), of that fact, the Court was bound to carefully inquire and ascertain whether his insanity in any degree continued. The Court did so inquire and ascertain, by means, we must suppose, of impartial experts, and did further, as the statute provides, order him into safe custody. Whether he went to the asylum, and if not, why not, Mr. Bell can give us full in- formation. The point is, that in cases of the successful use of this plea, the Court now has a right to retry the accused with the proper assistance of experts, and that on their de- cision, as the law now stands, depends the liberty of the citi- zen. As the statute seems to take from the petty jury the right of deciding upon the present insanity of the prisoner, then and there under their personal observation, it becomes matter of wonder that they should be allowed to pass upon that question at all. If they cannot tell whether he is insane 388 EXPERTS AS WITNESSBS. now, how can tliey tell that he lom at the time of the commis- sion of the act charged as a crime? The plea being a con-.i fession and avoidance, it would seem eminently, proper that the avoidance, when statiitory and depending for recognition on scientific knowledge and skill, should be passed upon in the first instance by the same court which, as we have seen, ' has the power of passing upon it in the second. If it is objected that in practice the criminal is not bound - to declare his special defence until the last moment, the ob- jection can be obviated by compelling him to ptit in his special and especially statutory defences before trial; and as a correlative duty oblige the State to call the necessary ad- juncts to the ordinary Judge to fit him to pass upon this plea. It must be remembered that in theory the plea is always supposed to be interposed in good faith. There can- not, therefore, be any reasonable objection to a course which would speedily verify and sustain it. Even now the statute book shows a further approach to a recognition of the propriety of this course, for it is provided, that if any person in confinement, uncler hiflirhnetif or sen- tence, or under any than civil process, " sIkHI appciXr to he insaw," the first Judge of the county, or his substitute, as therein mentioned, " shall institute a careful investigation, call two respectable physicians and other credible witnesses, i invite the district attorney to aid in the examination, and; if he deem it necessary, call a jury," with powei- to compel their attendance ; and if the insanity is satisfactorily proven,, . the prisoner shall be discharged from prison and be removed to the asylum, where he shall be retained until restored to his right mind, when, if the Judge shall have so directed, the convalescent shall be returned to prison to be tried, serve out his sentence or be discharged. In all these cases ihs provision of the statute applies to insanity proved at the time, evident at the time of the act, or developed in oonfinei- ment ; but there is no apparent reason why the same pro- vision should not be made to apply to the trial in chief before EXPERTS AS WITNESSES. 889 the ordinary petty jui'y. As far as it cpncerus tlie accused it would seem to be preferable to the present course, though it may be that justice and truth are not always what . he desires. At all events, it would be equitable to him and prabtically beneficial to society, while to the expert — really deserving of the narae in restoring him to his true position of scientific interpreter^— it would be a rescue from past re- proach and constant suspicion. A popular idea concerning trials at law is that they are all, civil and criminal, simply trials of skill between trained tricksters ; that the merits of a cause have much less to do with the decision than the skill of the attorney in preparing his side of the case for presentation to and the power of the advocate in enforcing it upon the jury ; that in such cases, as in love and war, all tricks are allowable, and, when they assure success, laudable. As experience has afforded many seepiing instances of proof, and as success uniformly brings ' l9.rge profits to the successful practitioner, it is not strange that all expedients conducive to that end have been adopted. This — of the use of expert testimony — has been by no means the least popular. But while I recognize the strong induce- ments on the part of the ambitious and unscrupulous lawyer for its use, I confess that it strikes me with no little aston- ishment that members of equally learned, if less ambitious professions, should so readily yield themselves to his service. Nor is my surprise diminished by the knowledge that while nearly every learned profession in the land has at least some sort of organization, no one of them has taken any pubMc step to check the extravagance of those professional experts who play the charlatan in the courts. It is an act which they owe to their own dignity and self-respect, and which cannot be long delayed without the diminution of both the loss of popular esteem and veneration. This, as I have tried to show, the courts may assist them in doing, by excluding opinions and confining these representatives of the learned professions to their demonstrate! facts and disco\t.rie8 ; but 390 BXPB8T8 AS WITNE88E8. the organized bodies of these professions can do morei,. by making the law of pi'ofessional honoi; bear with greater atringency.i^aiust, those who offend against its tenets. Whejp the two shall work together ^nd attain this end, law and justice will be much more closely approached, and the popu- lar regaird for them greatly enhanced. &E3 ^ a Oh ^^ rt ZJ> < o Eh as ■ ^ cs "Si PC ■ o ■■ fH£ IMPORTANCE OF THE SPECTRO- SCOPE w FORENSIC mm: By S. Waterman, M.II, NK.W YORK. Mr. President and Geni-lemen : No sooner Vere the bril- liant discoveriea, by the kid of the spectro^ope, in cheiiiS- try and astronoiiiy made khowfl, than the attention of acien- tiJSc and professional men was directed to the inquiiy, Whether the marvellous analytical powers of this instru- nlent could ndt also be entiplbyed in the service of medicine ? This inquiry, upon whose solution some of the best minds of the contibent were elnploj'ed, has given a liighly satisfactory and afflriiiative answer, and its adaptation to physiological research will furnish us the material for this evening's con- sidei-ation. By means of spectrum analysis we have become acquainted with the laws governing vital processes. By it we have been enabled to lift the curtain, beyond which, since eternity, those mysterious processes were cariied on, which man sought continually to understand, upon which the most siraiige and conflicting theories prevailed, and which he er- roneously thought could never be unraveled. Spectrum anJalysis has carried us far beyoiid our former conceptions of ' the laws of life, health, and defath, and forefnsic medicind comes in for a fair share of the ihfonHation and benefits thns accumulated from the advance of this science. A. few years ago it would have been possible to tell you all that the spec- trdscope could do in forensic niedicine in the space of half * Re»d befofaths Jledico-Legftl Socsty . April 2S, 1874. 391 .392 THE IMPORTANCE OF THE SPECTKOSOOPE an hour ; at this present day, the material that has been ac- cumulated could not be exhaustively laid before you in a. dozen lectures. Spectral analysis applicable to forensic medicine has become a science by itself, compact, reliable, well-founded, and far-reaching, capable', of solviiig* ijpost im-:j portant legal questions,; its application is simple, and it re- sponds to the minutest amount of- material. Indeed, it is the extraordinary delicacy and sensitiveness of the spectral test which gives to its application so great a value, and so extensive a scope. It responds distinctly and immediately where the highest magnifying powers of the best microscopes can no longer give us any information ; it gives us a valua- ble reaction for every alteration which blood undergoes when acted upon by physical or chemical agencies ; it ana- lyzes the Haines of gases, and those of mineral and metal poisons, and unravels the secrets of crime with wonderful alacrity and unimpeachable certainty. , By spectral analysis we understa^d a scientific process in which light, solar or artificial, is made use of to analyze and? to demonstrate substances both organic and inorganic. The' instrument employed consists of a system of prisms and lenses, by means of which r;i,ys of light are broken up into a series of colored tints, called a spectrum, and which offers to the eye all tlie colors of the rainbow with great beauty and brilliaucy. The instrunient thus employed is called a spectroscope, or, if connected with a microscope, a micro- spectroscope. It is well known what a prism is, and the changes which white light undergoes when passing through it. In the first place the rays, as they patss through a prism, are bent out of their course ; they spread fanlike to the right and to the left they disperse, and this we call the refraction of rays. But we witness another and more inter- esting phenomenon. The white rays in passing through the prism are^decomposed, broken up in a number of beautiful tints, arranged in never-changing order, presenting red, orange, yeUow, green, blue, and violet. This prismatic band we call M spectrum. We distinguish between an interrupted IN TOBENSIC OASES. 393 and a continued spectrum. When artificial light is passed through a prism, the colored band is not traversed by any lines, and the spectrum is therefore a continued one. When, however, sun, moon, or star light is used, the spectrum is found to be traversed by ma ay lines, and this is therefore called an interrupted or solar spectrum. In order to see these lines well, we adoait the rays through a narrow slit in a shutter leading to a darkened i-oom. In the spectroscope such a slit is attached to one of the tubes. Newton, although he examined this subject in all its bear- ings, never saw the sua liaes, because he obtaiudd his spec- trum by a round hole in a shutter, and the rays that entered overlapped each other and gave him a diifused spectrum. Wollaston described these lines in 1802, but did not uuder- stand their importance. Frauenhofer, a learned optician at Munich, used them first for purposes of measurement in 1814. He designated the most i)i-omineut of these lines by the let- ters of the alphabet, from A to H, and they have since been khoWn as the Frauenhofer lines. Kirohhof left us a map of solar lines, a masterpiece of correctness and skill, coiitaiaing many hundreds of sun lines, and our distinguished Ruther- ford has photographed them right ffom the sun himself. The exactness of these two mappings, when compared, is ttuly wonderful. Angstvoem has given us also a most won- derfully correct map of these lines. The orbs receiving their light from the sun have all these lines in the exact position of the spectrum. Fixed stars, like the resplendent Sirius and others, give quite difi^erent arrangement of sun lines, and some of the comets give only one or two bright lilies, amino black lines at all. Professor Draper, of this city, whose merits in this direction are gratefully acknowledged, has given us a map containing a great number of sun lines, in- visible under ordinary circumstances, but which can be made visible under certain favorable conditions ; these additional hnes can be made visible at both the red and violet part of the spectrum. The Fruenhofi^r lines are of the greatest importance in 394 THE IKPOBIANCE OF TBTE 8PECTB08COPE spectral analysis. Through them we can register any cha,ngfi« we observe in the spectrum, and measure tjie, breadth a^^: tiie distance of absoiption bands from each other. We ^npyr now that these lines; are produced by various metals in an incandescent condition in the sun, and tUey can be pro- duced artificially by burning these metals ai^d minerals a^d coinparing the spectra of these vapors. Thus iron, which • bas a very great number olUpes in the sun spectriim, h,as its most prominent line at E. C, F, and G are pecjuliar , to burn- ing hydrogen. Magnesium yields the C line and the H lines,; according to Angstroem, are peculiar tio calcium'. The D Une has a historical significance. Burning sodium yields thjia line. All the progres,s in spectroscopy is connected with this line. It is the source from which all the wonderful dis- coveries in solar and terrestrial chemistry had their origin. This line D, called also the sodium line, can be resolved into two or even more lines by the aid of strong hght and the combination of several good, prisms, the nickel line lies right between them. The coincidence of the D line with that of burning sodium attracted the attention of Professor Kirch- hof , of Heidelberg. There was one thing in this coincidence that he could not at first explain. The sun line, as you see here, is a black line ; the line of burning sodium is a bright , yellow line, as you see here ; yet both occupy precisely the same position in the spectrum. One day, whili^t exaihining a flame of burning sodiuna, he caused the siin rays to pass through the sodium vapor,' said lo! he obtained a black lii^e instead of the bright yellow one. He had found the solu- tion of his query. He at once reasoned that there must ^e burning sodium in the sun, and that there muf|t, be a vaporous envelope which absorbed the yellow line and converted it into a, black line. Thus, by a most logical and ingenious mode of reasoning, and by a lucky accident, he demonstr^ited that these lines had a com- mon origin, and that therefore any sun or stars that; gave this D line had sodium in an incandescent con- dition as one of their constituents. Since then all other IN >ORENSIC CASES. 396 ■ . ,■ ■ V i .,.■■■ sun Unes have been reversed by various scientists. Thus was the foundation laid fur the greatest discoveries ot the age, and a new and almost infinite vista was opened into, the nature and composition of worlds, of which, a quarter of a century ago, we had not the least presentiment. Leaving the historical part necessary to our subject, let me say.^* few words as to the manner of making examinations by the spectroscope. The solids must be brought to a state of incandescence by heat. We employ for this purpose, where no very great tem- perature is necessary, a Bunsen burner ; where greater heat is necessary we resort to the electric arc, which is capable of fusing every metal known. When metals are thus heated up to an incandescent state, they emit rays of all degrees of refrangibility. If we exam- ine then the evaporating substance spectroscopically, we find peculiarites in the spectrum enabling us to diagnosticate its nature. Fluids are placed before the slit of the spectroscope in suitable glass vessels with piano-parallel wallsj or. we may use suitable glass tubes. When a ray of light is made to pass through these fluids, ere it impinges upon the prism, we observe an absorption of light in various parts of the spec- trum, varying, of course, with the fluid employed ; they are called absorption bands. Some colored fluids have one or more bands, changing in position, depth of shading, distinct- ness of bufJine, breadth and manuer of appea^'ance, funush- ing landmarks so distinct and permanent *that a recognition of a particular, spectrum is made easy, even to the man who is not accustomed to use the spectroscope. As sources of light to examine fluids, we use petroleum or oil flames, and where a maximum light is necessary we may employ the oxygen lime-light, the oxygen spirit-light, and at times, with great advantage, the magnesium light. Gases are examined by means of electric indnction sparks. Usually the gases re- sist the passage of these sparks in their natural state of density. We therefore exhaust a part of the gas with the air-pump. We use thin-bored thermometer tubes, with a 396 THE IMPOBTANOE OF THE SPECTROSCOPE bulb on each extremity, into- wliich electrodes of platinum or aluminum are fixed. All other metals would oxidize in the extreme heat generated. The tubes ar-e filled with th6 gas- we desire to examine ; the air-pump is then' apjjlied untilthe era to -3,5 partof the ordinary atinospheric pressure is left. In this state (if attenuation the gas offers but slight resist- ance to the passage of the spark, intense heat is generated', and brilliant and beautiful light is emitted, of various color^, changing, of course, with the different gases einployed.' Thus no known substance can defy the analytical powers of the spectroscope. Every known gas, metfel, alkali, or alkaline earth, when thus acted upon l)y sufficient heat, gives out light peculiar to itself, 1 )roducing a spectrum differing from the spectrum of any other known substance Soine substances absorb all the colors of the spectrum, with the exception of a single bright band, of which sodium and thallium give an example ; others are readily I'ecognized - by a spectrum of many bnght lines dispersed all over the prismatic field.- Of this, barium, oiBsium, and rubidium give an example. It is true that the degree ol heat employed often modifies the spectra— not indeed as to the position of the characteristic lines and bands of each substance, but as to their number and brilliancy. Tlius thallium, for example!, gives one green band when evaporated by the heat of a Bunsen Ijurner ; but w'hen it is volatilized by the far higher heat of an electric induction spark, we see, in addition; sev- several bright lines in the violet. ■ The same is true of lithium, Ciilcium, &.nd others. But all these modifications are known, and are as much signs of recognition as every other modification can be. And now let us consider the extraordinary delicacy or sen- sitiveness of this spectnim test, which by far surpasses any other test previously known to the analytical chemist. Suppose we divide one pound of our common table salt, the chloride of sodium, into 500,000 equal parts ; one of these parts, or rriinute atoms, we call a milligramme. In order to weigh out such a milligramme it is necessary to em- IN FORENSIC CASES. B97 ploy the most delicately constructed scales; the weigher him- self must possess ii high degree of dexterity, and he must proceed with the greatest possible care. But with this per- formance he has pretty nearly arrived at tlie limit of possi- bilities. But what if we should require of this experienced chemist to take one of these milligrammes and divide it again for us into 3,000,000 equal parts? Gould he perform this feat ? Certainly not. The human mind cannot conceive the minuteness of such an atom of matter. The spetcroscope, however, does not recoil from that supernatural task. It de- monstrates the presence of such an inconceivable atom with the utmost precision and certainty. The dusting of a book in the remotest part of this . hall will set afloat a current charged with sodium chloride, which is present everywhere, and cause a flash in every flame that lights this room, nnd this yellow flash will yield the sodium spectrum , and thus reveal the presence of this metal. This sensitiveness of jeaction is not coniined to the sodium chloride alone. The y/,,-^, milligramme of barium chloride gives a very distinct reaction. Lithium reacts with the great- est promptness to the -,jnrifo"oTT P^i'^ of a milligi'amme, sb-on- tium to the ttttoo ito o^ ^ milligramme, csesium to the -jo-wwo part of a milligramme. Thallium, a powerful poison, as well as arsenicum, plumbum, antimonium and nickel, and many others, responds to very minute quantities of material also. This sensitiveness led to the discovery of five new metals, two of which were discovered by Bunsen. He obtained from forty-four tons of the waters from the spring at Turkheim 200 grains of a mixed salt, which the spectroscope showed to be csBsium and rubidium. Interesting as this subject unquestionably is, I must leave its consideration for another more favorable occasion. THE SPECTROSCOPICAL ANALYSIS OF THE BLOOD. In the past, and before the spectroscope had entered into the service of medical jurisprudence, the microscope was to a 398 THE IMPORTANCE OF THE 8PECTB08COPE great extent relied upon to demonstrate the presence of Blood; at the same time the chemical arsenal was ransacked to furnish reactions for the detection of traces of blood. Whoever ponders over the painfully tedious and oftentimes faiilty pfioceedings devised and carried out for this purpose, will not fail to hail and appreciate the modern methods of investigation. Chemical analysis is difficult,- and often im- possible with very minute traces of blood. The microscope can demonstrate blood only within comparatively narrow limits. So long as the blood corpuscle can be obtained, and if it is a solitary one only, if well defined, the presence of blood can be made out ; but when, by some chemical or other means, the cell form of the blood corpuscle has been destroyed, when, by a process of disintegration» every trace of its outline has disappeared, when it has lost its characteristics as blood, and is only presented to us in extremely minute proportions as an amorphous substance, as a coagulated, physiologically altered pig- ment, the highest magnifying powers of the microscope become perfectly useless ; it has arrived at the limits of its demonstrating power, and it delivers, without hesitation, the farther solution of inquiries into the hands of the spectro- scope ; and it it is here that its wonderful analytical powers prove of the greatest advantage, and their greatest useful- ness in forensic medicine. In order to fully appreciate these powers we must before- hand know what possible changes may be produced upon blood by chemical means, and in what manner the spectro- scope responds to each particular change ; and of these I am compelled to speak in the briefest possible manner. Nothing is easier than to detect blood by the spectral ana- lytical process ; and the i Au P^^'^t of a grain of the coloring matter of the blood is sufficient to give distinct prismatic re- actions. Gorup Besonez says, whenever the peculiar blood bands appear, the presence' of blood is unquestionably de-^ cided. The coloring pigment of the blood has been pro- duced in crystallin*. form, and is known as cruorine, h«enjog- IN POBENSIC CASES. 399 lobine, and haemato-ciystaline. Tliis substance or these crystals possess all the optic properties of blood. Every change that blood undergoes, these crystals undergo like- wise ; and every modification of the spectrain, which is pro- duced upon blood by chemical means affecting the integrity of the blood, is as faithfully reproduced in solutions of this haemato-crystalline. Tliese crystals are the true factors in a man's life. Through them the respiratory, the oxidizing pro- cesses within the economy, become possible. They are the sole element of the blood capable to absorb and attract oxy- gen fi'om the air ; they bind it loosely, and are at all times ready to part with it and to give it up to oxidizable tissues ; and in exchange they greedily absorb carbonic acid, which they meet in the capillaries, as resultants from oxidation, and carry it back to the lungs, to be exhaled as effete material. Freed from carbonic acid, they again absorb all oxygen they meet in the lungs, and by the heart's action this vital gas is carried to every recess of the economy. These crystals are indestructible, preserving their crystalline structure and other peculiarities almost forever ; and whenever, in the animal economy, their quantity is diminished, or their integrity as- sailed, there is corresponding reduction in the capacity for life and health. No putrefactive process canjinnihilate their integrity, and they can be demonstrated, it is said, in the mummy entombed thousands of years ago. They are double refractors, and possess the highest atomic weight known. Their stability and indestructibility admirably fit them to sustain the functions subserving animal life. We will find that these qualities of haemato-crystalline are of the greatest importance in medico-legal cases. When the outer form and integrity of the blood-corpuscles have been destroyed by the various means which the criminal may find within his reach, and when the microscope sends our ques- tions back unanswered, it is yet perfectly practicable to pro- duce the crystals, and the spectral analytic test furnishes us tb,e much-coveted information in full amplitude. Let.me'say here a few words regarding the inquiry whether 400 THE IMPOKTANCE OF THE SPECTROSCOPE we are able to tell in a giveu case wliether tbe blood is human or not. We cannot with our present knowledge and means decide the question in a direct manner. The blood of all animals gives the same spectral appearances ; they all have crystalline materials in their blood; even the lowly rain-worm yields hsemato-crystalline which proud human- ity has claimed as an exclusive inheritance. But we are not so helpless in this respect as we formerly M'ere. We may at times, by exclusion, give a negative answer. The microscope can tell us, where the size and form of the corpuscles differ from those of man, and whether such blood belongs to infe- rior animals ; for example, the frog's blood ; it can also in- form tis bv the peculiar mode of crystallization what it is not. We kuow that human blood, and that of many carniverous animals, ci ystallizes in prisms ; the blood of the guinea-pig, of the rat, the mouse, and other rodents, crystallizes in tetra- heders ; the blood of the Squirrel forms liexagonal tablets ; hamster blood crystallizes in rhomboheders ; and fish blood in fine prismatic needles. We can also obtain a vast deal of information, in forensic cases from our knowledge that the blood of various animals differs in solubility. Human blood solves very readily ; the blood of the monkey, the hedgehpg and others, solves equally easily. The blood of the guinea- pig, the squirrel, the rat, and other rodents, on the contrary, solves with great diflicultj-. There is also a great differenqe in the sinking capacity of the corpuscles ; horse blood, for ex- ample, possesses the greatest sinking power, forming rapidly a layer of blood-corpuscles in the serum when collected in a glass vessel. Some blood crystallizes readily, others with far greater difficulty. These facts assist us to some extent in in- quiries, when we have to pass an opinion on the identity of human blood. OPTIC KELATIONS OF BLOOD AND ITS CRYSTALS. When undiluted blood is spectroscopioally examined, we observe a dark spectral field, relieved only by a tiny red line at the extremity of the red part of the spectrum. When the IN FORENSIC CASES. 401 blood is diluted with water, several parts of the spectral field are cleared up in a well-known and regular manner, until, at a certain degree of dilution two absorption bands become visible, arising out of the darkness at the orange and green part of the spectrum, between the Frauenhofer lines D and E. These are the bands given by oxidized or arterial blood. Examine them well. The first band, near D is narrower than its mate, and darker ; it is very distinct also in its out- lines. The second band is broader, but less dark in color, and its outlines are blurred. When the process of dilution is carried further, these bands become paler, contract some- what, and finally disappear. Oxidized or arterial blood has this two-banded spectrum from beginning to end, and pre- sents no other modification; nor is there any substance known that will present the same spectral phenomena. When the blood is deprived of its loosely bound oxygen, , which can be done mechanically by the exhausting pump, or chemically by reducing agents, as we call them, such, for ex- ample, as ammonium sulphid., tin oxydul and others, we im- mediately witness a change in the aspect of the spectrum. "A change comes over the spirit of its dream." The two ox- ygen blood bands disappear and make room for a broad dark band, occupying the space between D and E. This band is called the reduction band or band of Stokes, who first saw and described it. Blood deprived of its oxygen is called re- duced or deoxidized blood. It corresponds to the venous blood in the animal economy. We must, however, not sup- '. pose that reduced blood is tantamount to altered blood, for aUthatisnecesary to restore its two oxygen bands is to shake the blood or the hsemato-crystallihe solution up with air, or add some substance that wiU give up its oxygen to the blood. This process can be repeated many times with the same results. Ee- , member these facts, for they are of the highest importance in the analysis of blood. ' Suppose we were called upon to • analyze a specimen of blood, and we find it cannot be reduced by these means, would you not at once perceive that such blood must have been acted upon by some powerful agent, 402 THE IMPORTANCE OP THE SPECTROSCOPE destructive to its functional integrity ? Such an eiFect will be produced upon blood by carbonic oxide, by nitrous oxide, prussic acid, and other irrespirable gases. If a questioii should arise, whether a person died from asphyxia, I think we can satisfactorily answer the question by aid of the spec- troscope. Where there are not any external signs of violence, the question is reduced to this : Is asphyxia the result of poisoning with irrespirable gases or not? Formerly, and> even now, where experts are not fully up to the progress of spectral analytical processes, great stress was laid upon the dark color of the blood, engorgements in the lungs, arteries, and veins, and other like symptoms. We have learned by experience that these symptoms are far from being conclu- sive or characteristic, and they ought never to have any undue weight in a court of justice or in criminal proceedings for we find the dark, sticky, or black fluid blood, and en- gorgements in lung, liver, spleen, veins, and arteries, in many diseases, as pathological results, such as in narcotic or alco- holic poisoning, in cholera, in yellow fever, and septic dis- eases. Often, indeed, the phenomena of suffocation during' life offer no specific marks, whatever may have been the me- chanical causes producing it ; and we find also often no characteristic post-mortem changes in the organs, because of the short duration of the violence employed, admitting of no demonstrable anatomical change to take place ; in the blood, however, can be found the record of the characteristic changes peculiar to death from suffocation. When we find the blood of a person that died from asphyxia responding to the action of oxygen, and to the reduction test, we can safely, say that he has not been poisoned by irrespirable gases. But when the reduction cannot be effected, consequently the blood is no longer in a state of integrity, it is also perfectly safe to say that the asphyxia is due to the action of some of " the irrespirable gases, or some oftier poison, and we shall by and by show that the spectral test enables us to decide what particular gas or poison has been the cause of the asphyxia in a given forensic case. IN FQKENSIC CASES. 403 When blood or a hsemato-crystalline solution is acted upon by any acid, except prussic acid, or by an alkali, or by alcohol, chloroform, and some other agents, it is split up, or chemo- lized, as we term it, into albuminous substances and a color- ing matter which contains all the iron that is contained in the blood, but none of the sulphur of the original compound. This is hsematine. It is important to remember this fact, for, as you here see, .hsematine is the product of decomposi- tion or chemolysis, yet many text-books still repeat the error of the past, which called the undecomposed coloring matter of the blood hsematine. ' Hsematine and its compounds can be crystallized. If a hsematine solution is placed before the spectroscope we ob- tain a band peculiar to this sulastance, and quite distinct from the oxide blood spectra. There are a number of hsemantine spectra ; the modification depends upon the agent that has been employed to separate hfemantine from the original com- pound. We here present some of the modifications. Hsemantine has strong affinities for oxygen, also for carbonic acid. It can subserve, therefore, the processes of life to some extent, far less energetic, however, than hsemato-crystalline. It can likewise be reduced by re- ducing agents. The spectral bands of reduced hsematine, as you can readily see for yourself, offer great differ- ences from those of Stokes' band of hsemato-crystalline. Hsematine is found in the human economy in disease only, especially in Addison's disease, in which the suprarenal cap- sules are affected. When it is therefore found, we know at once that it is the result of pathological conditions in the blood. The one-banded hsematine spectrum, resembling somewhat the band of Stokes, is produced by the action of potassium alcohol upon the blood. A comparison wiU show that this band is situated so as to have the D line for its centre, it is less broad than Stokes' reduction band, which stretches from DtoE. There is a five-banded hsematine spectrum resulting from 404 THE IMPORTANCE OP THE SPECTBOHCOPE the action of acidulated alcohol upon blood. Here is a four- banded spectrum, produced by the action of sodium sulphate neutralized by acidified alcohol given by Dr. Thudioum. A new'substance has also been obtained by Dr. Thudicum, from blood, called cruentine. It has also quite a number of spectra. Oruentine can also exist in a double state of oxida- tion, that is to say, it can be oxidized and deoxidized at pleas- ure. A few of these spectra may be seen on the diagram. Be pleased to compare now all of these spectra, and you will find that they differ from each other quite Sufficiently to make a mistake nearly impossible. In very doubtful cases we may resort to actual measurement; means to this end are provid- ed for in all good spectroscopes. You will agree with me, that the harvest which the spectroscope has gathered in the analysis of blood is very abundant, and of the highest im- portance in forensic medicine. The man'who is called upon to act as an expert in medico- legal cases must be familiar not only with the chemical or microscopic test, but ought to possess a thorough knowledge of the various spectra of blood, and no blood analysis ought to be considered perfect and beyond assailability, which ignores or is not verified by the revelations of the spec- troscope. Having placed before you the most interesting optic changes to which blood can be brought by chemical as well as physical means, we are now well prepared to un- derstand how this analysis can be utilized in the detection of crime. The " man of blood," after he has committed his deed of darkness and death, what is he most likely to do ? The his- tory of medical, jurisprudence is full of information on this head. He will iaturally try to efface the traces of blood, the , terrible "tell-tale drops." For this purpose he will use almost anything at hand ; water, soap, alcohol, acids, alkalies, ,' oils, and others. But science can foil him in his efforts to evade the consequences of his crime. The indestructibility IN P0KEN8IC OASES. 405 • of the hsemato-crystalline leaves traces and landmarks per- fectly intelligible. We can call down as witnesses and as judges the fiery mes- sengers of heaven to lay bare his deeds of blood, and as the genial trembling sun ray filters brightly through the analyz- ing prism, it reveals to us the presence of blood, it tells us even of the means he has employed to efface his crime. Light and science are the terrible avengers from which he can never, never escape ;' they follow him with never-tiring step, until they grasp him in their toils and give him over to justice and retribution. When the blood itself is found, even in very minuto quantities, upon the floor, the wall, the clothing, the instrument of death, its demonstration by the spec- tral analytical method is perfectly easy and reliable. We scrape the wood, the wall, the weapon in order to collect all the traces we can, then we dissolve it care- fully in a few drops of water, perhaps add a trace -of ammonia, and submitting it to a micro-spectroscopic ex- amination we will get a definite optical reaction. If macera- tion has been used, we still often obtain sufficient blood for spectroscopic analysis to establish our case. Where boiling has been used, the hsemato-crystalline has been coagulated, for it is simply a crystallizable albuminoid, and in this state it will not give any longer the two blood bands at D and E. We must then act upon the coagulum with acids, and try to obtain the hsematine spectrum. Where acids, alkalies, soap, alcohol, and other agents have been employed, we may obtain the hsematine of the cruentine spectra, and thus demonstrate blood. This has been done successfully ia several very in- teresting medico-legal cases on the continent. In these ex- aminations the spectroscope renders us the highest possible service, whilst the microscope is unable to give us any re- sponse whatever. Butwith these services its usefulness in this direction is by no means at an end. When blood is acted upon by heat and acetic acid, minute crystals, table-shaped, are obtained, THE IMPOKTANCE OF THE SPECTROSCOPE known as hsBiniiie. They can be obtained from hsematin* also. The crystals have frequently demonstrated blood from very scanty traces. Here the microscope again becomes useful. It does not, however, at all times crystallize readily. Under the spectroscope hsemine gives a band far out on the red part of the spectrum, where we meet also one of the bands of chlorophyl ; it lies at G. Another substance found in old extravasation of blood within the economy was described by Virchow and named by him hsematoidine. It is probably modified hsemato- crystalline ; its peculiar and characteristic spectrum has been given by Preyer. It is of value in forensic medicine to determine whether an extravasation of blood, found at post-mortem, is of recent date, or has been there for some time. The spectrum of hsematoidine is here shown ; it is a chloroform solution of hsematoidine ; its bands are found in the blue and violet part of the spectrum, one well- marked band between C and F, and another between F and G. They require the maximum illuminating power, magnesium light or that of oxycalcium light. Spectral analysis will also assist us to determine in forensic cases whether blood spots found upon wood, stone, furniture, clothing, weapons, plaster-of-paris, walls, are of recent date or old. This inquiry has come up re- cently in Boston, in the well-known case of Alley, who stood before a jury charged with murder. The State med- ical expert stated in his direct medical examination that old blood spots could not be distinguished from blood spots of recent date. I have published my views in Dr. Brown-Sequard's Archives of Scientific and Practical Med- icine, No. 5, and I think I have proved that the expert fell short in his testimony, and placed himself at variance with the accepted and exact results of spectral analysis. When a solution of old dried blood is prepared and prop- erly concentrated and speotroscopically examined, we behold one black band coincident and overlapping the C line. The IN FORENSIC CASES. 407 rest of the spectrum is all dark. I have shown you, this is not the case when fresh blood is examined ; then you find amply a red band near C. This absorption band at C ia characteristic of old blood. Having seen and examined this band, and dUuted our solution with about fifty per cent, of water, the spectrum clears up and gives us in addition to the band at C our two cheerful bands, so well known and so often alluded to, but yet beyond these three bands the spectrum is still overcast. Let us set our solution aside for twenty-four hours and then examine it again, and note the remarkable and characteristic change that has taken place. At first, when only one band in red was visible, and all the rest of the spectral space covered with darkness, it seemed as if the hsBmato-crystalline had lost its power to absorb oxygen from the air; it seemed as if by age a complete necrosis or death of the blood had ensued ; but now, behold ! the two cheerful bands betoken a resurrection from death, typical and beauti- ful to behold. A further dilution brings out these bands in all their old, bold outlines ; but the band at C disappears gradually and is seen no more. Set your solution aside for another twenty-four hours in a closed vessel, and then exam- ine spectroscopically. You wUl find the three bands have disappeared, and you now behold the broad reduction band between D and E. What has caused this change? I will tiell you. Your solution has entered a putrefaction process, evolving sulphureted hydrogen and other gases of decompo- sition, which in their turn, have consumed all oxygen. You have indeed a fair specimen of reduced oxyhsemato-crystal- line before you. To show you that this is precisely the case, take your so- lution and shake it well up with air. On spectroscopic ex- amination you will find that the reduction band has disap- peared, and our old welcome oxygen bands have reappeared between D and E. They look as beautiful and as well de- fined as ever. What has now taken place ? Simply this : your blood solution hag again exercised its life function of uniting with the oxygen of th6 air, the deoxidized blood ban 408 THE IMPORTANCE OE THE SPECTEOSCOPE become oxidized, it has saturated itself with the state of life, showing that after long years of death apparent, the haemato-crystalline has preserved its integrity and its capa- city to renew its vital mission when brought again in proper condition. We have now seen how, by the aid of the spectro-analyti- oal process, we can demonstrate blood, when altered in al- most any possible way and manner, and that we have the ad- vantage over the criminal in his efforts to hide his c^me. But how, if he has resorted to fire to burn up his victim ? Can the spectroscope help us then ? It can, gentlemen. I present you here this beautiful spectrum of many light and dark bands. It is the spectrum of ash from human remains. To see this spectrum weU the ash is moistened with a little diluted chloric acid and then exposed to the heat of a Bun- sen's burner, or acted upon- by an electric induction spark. A very ingenious apparatus has been invented by Mitscherr lich. In a narrow glass tube, closed at one end, and the other end bent to a right angle, is placed the substance in a fluid condition which is to be analyzed. The open end ia^ filled up with a bundle of fine platina wires, properly secured. By means of capillary attraction the fluid in the inverted tube is sucked up, and is consumed rapidly, heat being sup- plied by a Bunsen's burner or other means. As the metallic or mineral solution is thus consumed, their spectra can be- quickly and enduringly observed and studied. There is an- other very ingenious apparatus, invented by Becquerel, which I shall describe presently, and another, a very beautiful ap- paratus, invented by our countryman, Dr. Morton. The spectrum from the ash of human remains is one of the most beautiful we can behold. It is not, however, a simple spectrum, but a combination of several specti'a. This ' also is of great practical value in spectral analysis. In the present case the spectrum is made up of six different spectra, which are readily pointed out. They belong to so many elements found in the human system, to wit, sodium, potas- sium, lithium, csBsium, rubidium, and calcium. IN POBENSIC CASES. 409 We learn, then, from the ash of human remains, that there are six metals in its composition ; iron and magnesium do not appear in this spectrum. POISONS. All poisons, except a few vegetable narcotic poisons, and their alkaloids can be discovered by the spectral analytical method. The spectral relations of a number of vegetable poisons and their alkaloids have been studied, but those of many others are stUl awaiting investigation. Spectral anal- ysis is but a decennium old, is therefore yet in its infancy, and it has not therefore accomplished all, within the range of forensic medicine, that it may accomplish in the future. When called upon to analyze a metal or mineral poison, we must bring it to a high state of incandescence by a Bun- sen burner or by the electric arc. You have all heard of the manufacture of Bessemer steel ; by this process several tons of cast-iron are converted into cast-steel in less than twenty minutes. In this process oxygen is employed in order to burn out all the carbon and all the silicon of the cast-iron, and the heated gases issue forth in a flame of the furnace. This flame varies in appearance, as the carbon and silicon disappear, and it is of the utmost importance to know the exact moment when all the carbon and silicon is burned out, otherwise the entire cast is lost. The spectroscope will point out when this exact moment is reached, by a peculiar spec- trum from the flame, when the access of oxygen to the mass must be cut oflf. Our procedure is similar. The spectro- scope analyzes the flame of each metal and mineral, and gives us the peculiar and characteristic spectrum of each. Good chemists know these spectra well ; the spectroscope has become an indispensable aid to them to determine the nature of metallic ores and substances, and in every well- arranged chemical laboratory you can find charts containing the spectra of the various metals and minerals. The salts of metals, too often used for poisoning purposes 410 THE IMPORTANCE OF THE SPECTKOSCOPE are gifen or taken in fluid form, such as arsenious acid, corro- sive sublimate, antimony, lead, copper, ,and others, and we are called upon to demonstrate them from the organs and tissues of the human economy. Here we must proceed in a different way. A considerable number of these salts may be recognized at once, according to Thudicum, by holding a small piece of the tissue into the colorless flame of a Bunsen burner ; the flame is analyzed by the spectroscope ; or we may place the fluid in Mitscherlich's apparatus ; or, still better, we may employ the apparatus devised by Becquerel, consisting of a series of glass tubes into which the positive and negative electrodes of a powerful electric battery are introduced. The electric discharge passes through the liquid we desire to analyze, and as the induction spark passes from pole to pole, the substances are evaporated which are present in soluble form in the solution. The effect of the inductors can be so regulated that the interruption of the current, and consequently the electric sparks follow in such rapid sucpes- sion that the spectrum becomes quiet and almost stationary, the apparatus works uninterruptedly for hours like a heating apparatus ; foV, during all this time, with the substance we desire to analyze under these favorable conditions, we can quietly observe the steady spectrum, and ascertain by it the nature of the substance to be analyzed. The time allotted to me precludes the possibility to go into a more extended detail. Becquerel's apparatus is well described by Becquerel himself and by H. Schellin in his work on spectral analysis. Viewing, then, the progress we have made in this direction it is to be regretted that in the Wharton trial the analytical powers of the spectroscope were not brought in requisi- tion. This trial has shown us the wonderful mystiflcation of the old analytical methods. The contradictions were dis- heartening and humiliating to the medical profession. There could not have been an assailable point to the answer which the spectroscope would have given to the question whether the substance found was arsenicum, antimony, or gelsemi- IN FOBENSIC CASES. 411 num. The possibility to work with minute quantities would have made it convenient to observe the spectrum for many hours, and would have given an opportunity to many to verify and observe the revelations of spectral analysis. ' POISONOUS GASES. I regret that time enough is not at my disposal, and that, therefore, I can bestow but a brief consideration upon the usefulness of the spectral test in cases of poisoning with ir- respirable gases. Of these, poisoning with carbonic oxide or charcoal gas happens most frequently. "Whether in a given case this gas has destroyed life, or whether suffocation from other causes has taken place, will often be a question for the medical jurist to decide. The facility with which it is gener- ated ; the certainty with which it acts its fatal results upon the animal economy ; the gradual and gentle manner with which it creeps over its victim, producing effects upon the brain, rather agreeable than otherwise, until the entire blood mass is saturated with its treacherous vapors, and the sleep of dreams passes inseiisibly into the sleep of death ; the facility with which traces of this gas can be removed by simply admitting fresh air into the chamber of death ; the absence of disturbing influences upon the corpse, all these circumstances admonish us, that to detect poisoning with this gas we must avail ourselves of science's most advanced resources. The post-mortem appearances of persons de- stroyed by this gas are by no means characteristic. We find the blood of a purple-black color, engorgement of arteries and veins, clots m the heart, and other changes in the lungs, liver, and other organs ; but these are found in many other diseased conditions also, and are by no means peculiar to poisoning with carbonic oxide alone, and every intelhgent jury would hesitate to render upon such feeble testimony, a verdict of death. Carbonic oxide gas, as well as all other irrespirable gases, exerts its destructive force upon the blood specifically ; it alters it in a manner that it becomes' uiifit to 412 THE IMPOKTANCE OP THE SPi^CTKOSCOPE carry on the vital -processes, and it is therefore but logical ta suppose that we must find in the blood the traces of this poison. And so it is indeed. We have spoken of the crystalline material of the blood, of its being so eminently adapted to the purposes of life, we have admired its many wonderful qualifications and its beautiful spectrum ; but this substance ' has its weak points also. It has the most fickle disposition imaginable. Oxygen is its natural companion, so also is car- bonic acid ; but it runs away with many of the irrespirable gases like a fickle woman With a preferred lover, without re- morse or compunction. It, unites with peculiar energy with these poisonous gases, and forms combinations and imnatural alliances with tpiem so firmly and tenaciously that a subse- quent separation becomes almost a matter of impossibility. So firm is this unnatural union, that they go together even through the crystallizing process, and we are able to procure crystals of all these combinations. No wonder, then, that we hail with satisfaction the performance of the spectral analytical test, by whose aid we are able to determine and detect the agent that causes asphyxia. In the case of carbonic oxide two bands, very much re- sembling the two oxygen blood bands between D and E, ar& seen. On exact measurement, however, we find differences in position. But when blood saturated with carbonic oxide is acted upon by reducing agents, it is found that . they have no power of reducing it. The broad Stokes band cannot be produced. This irreducibility is by Gamgee considered de- cisive in forensic medicine, showing, that death h^s taken place from the inhalation of carbonic acid gas. But we have no other means to show this irreducibility fhan by the spec- tral analytical process. PRUSSIC ACID. Hsemato-crystalline has the same fatal affinity for prussic acid. We find the blood of a brown color, and the peach^ IN FOEENSIC CASES. 413 ' blossom smell is so decided, especially immediately after death, that we may conclude without spectroscopic examina- tion that death has resulted from prussic acid. It is, how- ever, a singular fact that this subtle poison does not decom- pose hsemato-crystalHne into hsematine. We possess ample means and optical phenomena to decide the question of poi- soning by this gas by the spectral analytical test. It is an interesting chapter indeed, but its details must be passed over this evening. SULPHURETTED HYDBOGEN. Concentrated sulph. hydrogen gas, when inhaled, is a rapidly destroying poison to animal life. It has been used for homicidal purpose . If a stream of this gas is passed '. through a blood solution, it rapidly causes the hue of the blood to change into a dark brown color. Experiments made by Hoppe Seyler upon dogs and rabbits show the ter- ribly destructive effects of this gas ; even when mixed with twice its volume of oxygen it produces fatal consequences. The rehearsal of the symptoms is painful to listen to. The dyspnoea and convulsions are fearful in character, the glar- ing, protruded eyes, the distortion and paralysis are rapidly produced. This gas is around us ; it is generated whenever animal or vegetable matter undergoes putrefactive transmu- tation ; it reaches us from our defective closets and ill-con- ditioned sewerage. If long inhaled, even in smaller quanti- ties, it creates zymotic disease, favors septic processes. The latest investigations claim that the sulphur is separated in the economy, favoring coagulation and the formation of em- bolic material. The action of sulphuretted hydrogen upon the blood can- not be definitely and absolutely proved by chemical means, and in forensic cases its action can only be fully and satis- factorily substantiated by the spectro-analytical test. Blood saturated with this gas has its definite spectrum. It is the band in red, of which we have- already spoken as being pe- 414 THE IMPORTANCE OF THE SPECTEOSCOPE culiar to old blood stains, and it is possibly the action of tHs gas, wbich is evolved during the process of drying up, to which this band owes its presence, and which betrays its evanescent character when such blood is brought to a state of watery solution, and then exposed to the vivifying effects of oxygen. But how is it possible to introduce this offensive gas into the system for criminal purposes ? It may be injected into the rectum and intestines, where its action would be as deadly as if inhaled by the lungs, and yet we would not ,find any direct evidence of this gas in this organ. PHOSPHURETTED HYDEOGEN. Like the foregoing gases this gas is also highly poisonous ; animals exposed for a very brief period die, even if they afterwards have been exposed to fresh air and oxygen. Its presence can be readily detected by chemical means, through the breath of the animal. A paper moistened with a solu- tion of nitrate of silver held before the mouth of an animal thus poisoned will show the formation of silver phosphate. It acts equally poisonous when injected into the rectum. The prismatic test shows the presence of this gas by peculiar and characteristic modification of the spectrum, aided by cer- tain chemical reactions, and this test may be employed whenever the chemical tests are doubtful or unattainable. I have to pass over the action of anaesthetics and their peculiar action upon the blood, and also the resume of what progress has been made to detect by spectral analytical methods the presence, of alkaloids, such as strychnine, mor- phine, veratrine, atropine, and many others. It would re- quire far more time than we have this evening. Perhaps I shall have an opportunity to speak to you on these subjects at a future occasion. I have thus laid before you an outline of the utility and importance of spectroscopic analysis in forensic cases. I hope I have in some measure justified the interest you IN FOEENSIC CASES. ,415 have taken in the subject. 'I hope also to have been able to impress you with the great responsibility resting upon the medical expert who is called to decide in cases of life or death. There is no doubt in my mind that many a life has been sacrificed by medical testimony, lacking the breadth and depth and the foundation of true science. I have still less doubt that many a hardened criminal has escaped conviction and well-merited punishment, from a deplorable ignorance of scientific facts, which now are happily at our command. It is evident, and held so by the best physicists abroad, that no blood examination is perfect and unassailable that is not verified by spectral analysis, and that no conscientious ver- dict should be given, and judgment of death pronounced in cases of poisoning, without the positive proofs attainable from the same source. If I mistake not, the aim of your Society is improvement of medico-legal knowledge, in con- formity with the spirit of scientific progress, and I have no doubt you will see to it that the exceedingly important in- formation, which in an imperfect sketch I had the honor to lay before you this evening, shall not be discarded in the courts of justice where your influence extends, alike impor- tant to the accused as to society and the State. If I have by my discourse thrown any light on the modern mode of investigation, and stimulated you to renewed efforts, I shall be amply repaid for my labors. THE RIGHTS OF THE INSANE. By Julius Parigot, M. D. Two very important questions, one of fact and the other of law, are brought into connection with the forced seclusion of insane patients in so-called hospitals or asylums where no medical treatment is employed. In this brief paper it will be attempted to prove that the rights of the insane are in such cases violated, and that the remedy to such an evil lies in the proper amending of the law in order that a legally au- thentic record would prove the necessity of appropriate med- ical treatment for each patient. No one denies at the present time that many vital ques- tions of justice, legislation, social economy and finance, are involved in the treatment of lunacy. Still, many persons are not aware of the moral obligation devolving upon elvery citi- zen to guard the operation of the law under which the seclu- sion of persons who are insane, and of those who are sup- posed to be so, takes place, in order to avoid any possible false accusation about the legality of such an act; also to see how the provisions for their care are prepared by boards of trustees or governors ; and, finally, to vindicate the rights of those who cannot defend themselves. What seems to be positively overlooked is the importance and value of medical treatment, as well here in the whole of America as in England and elsewhere. Now, we may read in The Journal of Mental Science the following remarks, showing what is going on in England : These reports (blue books) show that, on the whole, there is an immense * Read April 23, 1874. 416 THE BIGHTS OF THE INSANE. 417 amount of thought, and care, and effort, exercised in the treatment of the insane by all who have to do with them. Year by year the efforts toward a more perfect system of treating and managing them seem steadily to in- crease in all but one direction. That spasmodic and individual efforts are made in this direction is true, but on the whole the medid^l treatment o the diseases which are comprised under the term insanity stands still, as compared with the asylum building, general managing, etc. * • » « Three booiss about a disease with nothing medical in them ! Everything that concerns the treatment of those laboring under this disease professedly gone into, and not a word about medicines ! Talk of modern skepticism—the reports ot the commissioners and reporters in lunacy are the finest examples of medical skepticism extant; for they don't deny, deride, or damn with faint praise — they simply ignore the whole science and its professors. It may be that this will be better in the long run for the medical treatment of insanity, but it is hard to see it if its practical effect is to encourage asylum: doctors to ignore the medical aspects of patients, and sink into a state of lethargic indifference to the unsolved problems in brain pathology, diag- nosis and therapeutics, that daily come before them. The editor, Dr. Maudsley, does not pretend that no scien- tific progress is attempted or made in public or private asy- lums. It is admitted that in America we possess many asy- lums in which men of great merit open and follow new roads to scientific progress. Many institutions might be mentioned in which such efl^orts are made, and we of the medical pro- fession may congratulate ourselves over the spirit which ani- mates these scientific pioneers. But if we consider only the individual interest of each patient who is immured in an asylum where a positive medical treatment is impossible, and if, with Dr. Maudsley, we sum up the results of a non-thera- peutical practice (brought on by the medical skepticism of administrative boards), then we may see the need of amend- ment of our laws on this subject. Evidently there is a con- fusion in the given powers and qualifications to serve the people in this matter. No by-laws should exist in opposition to State laws ; and if that were so, medical responsibility would have fair play to show what it might do when supplied with everything necessary for its scope and'our benefit — the recovery of the patients.* - * State or chartered institutions should have no more privileges before the law than other institutions for the insane; all should be positively submitted 418 THE RIGHTS OP THE INSANE. Not the custody, but the cure of the insane should be the sole object. Such reform of the law, if I am not mistaken, is the res vestra agitur of such an association of lawyers and physicians as this. Common efforts would bring at last an immense benefit — namely, that insane patients must be cured, and not be considered, prima fade, as beings to be put in custody for their lifetime. Certainly such necessity over- shadows all secondary questions of housekeeping details and comfort, though important they are. , In general economy principles must be adopted which infaUibly must lead to practical results, as in commercial affairs or in industry. Is it not established that a sufficient capital must be embarked to obtain profitable products ? It is the same in our case ; an adequate, well-paid staff of physicians would take care of patients, employ all their skill and ingenuity to empty those immense reservoirs of human miseries, and free us of that ' constantly increasing number of insane, and of the enormous expense we are obliged to bear. How is it possible that two, three, or even four physicians can take proper care of, and study the particular cases of four himdred, six hundred, or sometimes one thousand pa- tients, shut up in one asylum ? We believe that a physician having charge of fifty patients has as many as he can prop- erly take care of, with the view to cure them. to inspections, either of Commissioners in Lunacy or members of the State Boards of Charities. And any interested party should have free access to the records. In order to give an idea of what is considered the best general plan of an asylum, we refer to the Medical Register of New York, 1873-74, page 138, in which will be found the so called advantages of a new Sfaie Asylum. Among numerous apmiments will be noticed the Steward's and the Matron's, with offices, reception and store rooms; but there will be found no physical and chemical laboratory— no lecture room— no clinical wards — no place for ana- tomical and pathological researches — no rooms for scientific collections — no private apartments for the physician — no private study. The programme boasts of a better opportunity for classification— " by separating more com- pletely the various classes from the quiet to the most disturbed." Here, again clinical instruction is positively denied, or, at least, positively ignored, by both trustees and physicians ! THE RIGHTS OF THE INSANE. 419 Far from such rational and practical method, what do we see in almost every country ? Honorable Boards, meaning well in their own and the generally adopted views, intrusted with legal and administrative powers to do with the in- sane what they think best, without control. Now, the most moderate and respectful criticism has shown the ineflScacy of the means the Boards put in the hands of their physicians ; nay, sometimes such Boards think they must diminish the number of medical officers, lower tljeir dignity, or even not ^ve them any remuneration. It may easily be understood that in such general circumstances, physicians must do their best to please the narrow views of those in whose dependence they are placed; eventually they will even defend that system, and neglect their duties, as The Jmirml of Mental Science has shown to be the case. We need in this country something higher and more independent. We want a law which every- body must obey and by which the medical profession shall become responsible for its acts. Unfortunately we have a legal mechanism unfit to serve the interest of the people , Even the latest law and the recent act concerning the State Board of Charities and the Commissioner in Lunacy, are full of errors, contradictions and embarrassments that prevent the aim being reached. If our asylums are made for the cure, and not for the per- petual custody of patients, why should a law not say so ? Why should administrative functions surpass the legal and medical ones ? A responsible head physician, having for principal object science and the medical treatment, ought to have a sufficient and competent staff around him — a staff furnished with the necessary instruments, material and moral, to cure the pa- tients. Anatomical and chemical laboratories and lecture- rooms should be provided and well furnished. We should have less of balls, billiards, and magic-lantern exhibitions as necessary to cut the monotony of asylum life. This chief physician ought also to be intrusted with the power of admit- ting or rejecting affidavits concerning the mental state of a so- 420 THE BIGHTS OF THE INSANE. called insane persop ; and be free (nay, the law ought to com- mand it) to discharge a patient when cured, or sufficiently compos mentis to have a trial to resume his position in society. No intervention, either administrative or judiciary, appears here necessary. The responsible physician must be the con- scientious expert and judge of such cases, and possess the power to fulfil his mission. If a too-absolute power could be feared, let, then, the superintendent have such jurisdiction only when in council with his medical assistants or his con- sulting physicians. Such a measure might also serve to curb too free a use of administrative authority on the part of head physicians. When we consider the important relation of the subjects un- der consideration, we may wonder that superintendents of asy- lums are not made (dejure) members of the Board of Health of their county. They would complete that Board whose functions embrace as well the conditions of mental as bodily welfare. The Hon. Dorman B. Eaton explained lately at the ,New York Convention of the American Public Health Asso- ciation, why a Board of Health determines its own sphere of action, makes the bills by which its own action is legalized, issues summons, sits in judgment, and uses its own officers to carry its decisions into effect. Evidently the sanction of such power must be the immediate benefit felt by the public at large. If we inquire into the laws and customs relating to the in- sane in past and present times, it is very curious to find that, on account of, and in order to prevent, accidents caused by " furiosi," maniacs, etc., measures are taken against them, but that not a single word is to be found in favor of their right& as citizens of a civilized community. Nothing but the oblivion of human rights, or the fear, contempt, and possibly the deg- radation of the poor patients, can explain such fact. Even in the country of the celebrated Pinel, a curious instance of public neglect of hiunan dignity is found in the text of a law (Aug. 24, 1790) which assimilates the insane to dangerous wild, rambling animals. It is against that want of feeling. THE EIGHTS OF THE INSANE. 421 against the absence of principles of justice, that we should urge reform. Let us ask why a law should not protect the life and dignity of the insane ? why it should notpunish those who violate their rights ?* Let us consider the result of an obligatory legal compul- sion for treating the insane medically. A law on the obliga- tioiy medical treatment of insane persons confined in public or private asylums, has for its objective basis an inviolable right and a social duty, out of which we may expect, first, the almost certain cure of every patient ; secondly, the positive diminution of an evil which attacks principally the moral and educated classes of society ; and thirdly, the benefit of the better health (moral and physical) of the community. It is very easy to show why the insane are entitled to the best med- ical treatment when secluded from their friends. If, in the interest of society, the insane may be temporarily deprived of their liberty,itisbut a preventive measure, just and acceptable in certain conditions, out of which a positive right must be acknowledged, namely, that the law which forcibly iso- lates or secludes a patient from his friends and family assumes, ipsofadofiie responsibility of a real and scientific medical treat- ment. A public convenience or a public fight can never include the violation of an individual one, or the non-accomplishment of a duty, such as must be the case if an insane person is seclud- ed in an asylum, unprovided with what is necessary for his or her recovery — in an institution where the number of physicians is quite inadquate to the work to be done. Even were there sufficient medical attendance for ordinary emergencies, we must allow for the pecuhar interference of State officers, as *ETidentlya civil law, protecting the insane, does not mean an inter- ference with the feelings of love and duty in the family circle. Families are free to go beyond the law, but not to the extent of proscribing the general law, which insures to everyone in his right mind the use of his own prop- erty. Such law means the consecration of individual liberty and autonomy, in consequence of which she takes upon herself to care and provide for the patient when himself oi his family cannot do it. In one word, the law rep- lesents a social obligation which does not prevent, but rather encourages, ■the moral law of family ties and"support. 422 THE BIGHTS OF THE INSANE. the Governor, the Attorney-General, Courts, etc., which, at times, prevents asylum physicians from performing the duties they are paid for, since they are often employed on outside commissions, legal or scientific. The remedy for this evil is obvious ; the law should prohibit any judge or law- yer to subpoena an asylum officer to outside cases. Of course^ when thus employed, the observation of a patient and his individual treatment are stopped at once, and in such case the remaining officers, having their usual duties also, must neglect the one or the other. Trustees consent to, or are obliged to permit, such irregularities, and the poor aban- doned patient (outside of th® reach and influence of his- friends) is thus deprived of his unquestionable right to treat- ment which may save him from an incurable issue of his malady.* An individual treatment so desirable for the patient, sub- stituted to a sort of wholesale enterprise of keeping, would even be profitable to our public charities. The mistake of these economic Boards is patent. Certainly, nowadays, as far as general treatment' goes and material cares are concerned, the insane are better treated than heretofore. They are taken to beautiful institutions, where however, unhappily, economical laws are supreme, and, we might presume to say, irrationally applied, since the * The Annales d' Hygiene PuUigue et de Medecine Zigale (page 159 — 1859) make the fullest confefsion of such fact in France Unhappily it is the same everywhere. Patients are crammed into large asylums and become in- curable because of the fact that they are not individually attended to, in spite ot Article XIL , Chapter 2, of the French law of the 6th of July, 1838, which says: ' Case books shall be kept, in which, once in the month, phy- sicians will note the change effected in the state of each patient." But this article of the law cannot be obeyed. How could a physician, having some- times 700 patients, do such work every month. Marce says in his TraAU des Maladies Meniales (page 656) : Patients are crammed, without intelligence or morality, in large asylum, and become incur- able for the only rea'ion that they are not treated. Glrard de Cailleux says in his celebrated work, Etudes praiiqufs sur Us Ma- ladies Nerveuses et Meniales, that those who dispose forcibly of the person of an insane are bound to furnish them with the means of a cure. THE EIGHTS OP THE INSANE. 423 only real profit lies in the cure and not the keeping of an in- mate. In spite of the desire of many asylum medical officers, no regular individual clinic has yet been established, and, in actual circumstances, it cannot be. In a practical mode of expression of facts, could not a cure have some relation and reason accounted for as in financial ledgers under the head of credit and debt? If so, the suc- cess of treatment could be traced to a scientific disburse- ment, the conditions of which ought to be prepared and ac- counted for in really good hospitals. The final question would then be merely as to cost of cures. But what are the • results which can reasonably be expected? Calculations have been made and published in the United States upon these questions, in which the pecuniary advantage is not only shown by what it spares by a shorter residence in the hospital, but by the value of the work done during a mean period of active life, compared with that of the same duration as a chronic insane person in a public institution. The proposed scheme is simple, would apparently cost more, but the result would pay. The proposed system consists, for recent and acute cases, in a daily annotation of the symptoms, and the pre- scriptions either moral, hygienic, or pharmaceutic. For chronic cases, such annotations should be made every week; the whole, being transferred on case-books, would bear the signature of the attending physician, and be certified by that of the medical superintendent. What a change would such a law bring in our asylums ! Their reputation benefited, and the patients asking for admittance instead of avoiding them; this fact is of the utmost importance. There is another side of the question, relating to the neces- sity of such law. An officially recorded clinic would be the complementary measure of any improvement of a law con- cerning the legality of an obligatory confinement. First, such mode of legal treatment would be incompatible with any scientific error or a so-called false imprisonment. Now, supposing that reporters of the press could get admission in- to an asylum, is it not evident that a daily clinic concerning 424 THE EIGHTS OF THE INSANE. diagnosis and prognosis of a stimrilated disease would soon establish the truth ? Such medical records would contain the whole history of a case. Nothing could escape the inves- tigation of any public officer or that of a friend of patients. Secondly, there would be guarantee for physicians against false accusations or intrigues often made by diastrephics and maniacs. Thirdly, such records would, from themselves, show the merit and assiduity of the medical staff. The re- sume of all these therapeutical cases would be one of the best means for the advancement of science. With such con- ditions legally established, the experiment for cure might take place as well in an asylum as in free air institutions called GJieds. Under the actual law, appropriate care and treatment are often delayed, to the great injury of the patient. Some per- sons, disbelieving the urgency that a patient be put immedi- ately in some institution, employ all means to conceal the infirmity of a friend or patient. In other cases, especially, those in which there is a perversion of the instincts or of vo- lition, terrible accidents may and do happen on account of delays which the new law would not permit. It has been questioned publicly, to whom, for instance, the privilege of interference is to be intrusted, and by what solemnities the deprivation of Mberty is to be accompanied and recorded'. ' The new law would have nothing to do with these so-called difficulties. What is wanted is that the patient be cured, in order that he may become again a member of society. ' Any- body may honorably assist tq that effect. There is no shame in having a friend insane, and it is a duty to render him the service pointed out by the law. Besides, there is no greater solemnity in making a circumstantial and scientific affidavit ; the effect on the position of the individual is only felt when the judge makes an order of confinement. Publicity would not be required or feared in such a preliminary pro- ceeding. In spite of some very rare exceptions, we must say that isolation among relatives is objectionable for all parties con- THE EIGHTS OF THE INSANE. 425 cemed. The obligatory medical treatment has other advan- tages, which cannot be well shown without referring to the actual system. In every free country the deprivation of one's . liberty is the greatest restriction which can be placed on a citizen. To some minds, this restrictive measure conveys the idea of personal degradation. It has been inquired if restrictive measures could not be enforced privately in one's own house. There are grave objections to private or secret isolation. First, how will the patient bear it in his own house ? It might become a cause of incurability. Secondly, it might be resorted to imnecessarily, and the physician's opinion might not be preponderant. We have the experience of many families whose fireside, although well governed, was the worst place for the patient to be medically treated. Generally, relative^ are the worst custo- dians ; for this reason, that they are unable to trace a moral symptom to its real cause. Constant efforts are made to educe, by reasoning, their friend out of his delusions. With the best views and intentions, they aggravate the disease. Besides, there is also a danger for the family. The patient is a point of contamination, especially if the slightest hereditary predis- position exists. For patients who must be kept in isolation, their liberty and the respect of their rights cannot fall within the range of domestic affairs. If one of the members of a family disappears, has the State or community not the duty of inquiring what has befallen one of its members ? The law might admit that, under the supervision of medical officers appointed by judges, such isolation might take place, but the pubHc would soon find out that special institutions are pref- erable. Again, the interference of the law is as necessary for the interests of the family as it is useful for the patient. On one side, it settles many questions of false delicacy which may injure the patient, and leaves to the family the power to go beyond, but never to fall short of what belongs to the pa- tient. On the other side, the family is not directly responsi- ble ; the recovered patient can never be dissatisfied with the 426 THE BIGHTS OF THE INSANE. proceedings employed for his treatment ; he has had the benefit of a really protective law. Another point of great importance is, as to what such laws should require about the making of medical affidavits or cer- tificates concerning insanity. These legal instruments are of extreme importance. After they establish the probable insan- ity of a person, and serve to obtain a judicial order for ad- mission into an asylum, thbir efficacy ceases, and their value must be controlled, admitted, or rejected, by the administra- tive and medical chief of the asylum — the superintendent.; These affidavits, although introductory instruments, should contain all the data of which the asylum officers are abso- lutely in need. Thus they ought to contain not only the gen- eral outlines and a history of the case, with all possible de- tails concerning the patient and his circumstances, but de- scribe the observed indications and symptoms, both moral and physiological. The latter especially must be minutely described, because they are the medical test of the value of such documents. These data are indispensable for the defini- tive diagnosis made in the asylum. It is easily understood that an individual might simulate with more or less success the moral symptoms, but he could not produce the pathologi- cal ones. Medical experts consider generally the coexistence of appreciable signs of a b'odily infirmity in co-relation with mental derangement as unequivocal proof. Insanity, like any other disease, has definite forms, recurring through different well-known stages. In conclusion, I have not the presumption to offer to the Society a perfect scheme. It is simply an idea of what ap- pears to me ought to be discussed, and ultimately perfected. I have no doubt that the above-mentioned evils will be erad- icated when a suflicient medical staff, headed by a physician whose responsibility and action should be complete and free, wiU keep authenticated records of their work and devotion. MORBID impulse; By William A. Hammond, M. D. It is relatedt of the Prince de Talleyrand that upon one occasion this great statesman told the following circumstance of his eventful life. " I can never forget," said the prince^ " that I was once gifted for a moment with an extraordinary and inexplicable prescience, which was the means of saving my life. Without that sudden and mysterious inspiration I should not be here to recoimt these curious details. I was intimately acquainted with my countryman Mr. B. We had always lived on the best terms, and in those stormy times something more than friendship was required to unite persons when the expres- sion of friendship demanded almost a divine courage. I had no cause to doubt his affection ; on the contrary, he had on several occasions given me the most devoted proofs of his at- tachment to my person and interests. We had together quitted France to take refuge in New York, and had hitherto lived in perfect harmony. Wishing to increase our little capital, I had freighted a ship, half shares with him, to try our fortune in the Indies. We were ready for our departure, but waited for a favorable wind with the greatest impatience. This state of uncertainty appeared to sour poor B. in a most extraordinary degree. Incapable of remaining quiet, he roamed the city with a feverish anxiety, which for the mo- ment excited my surprise, for he was always remarkable for — — • — • Read May 28, 1874. t Hallucinations on Histoi*e raisonne des Apparitions, etc. Par A. Briere de Boismant. Paris, 1852. 427 428 MOEBID IMPULSE. his calmness and placidity. One day he entered the room, ap- parently under great excitement, although he used great ef- forts to restrain himself. I was writing letters to Europe. Leaning over my shoulder, he said with a forced gayety : ' Why do you lose time in writing these letters ? They will never reach their destination. Come with me, and let us make the round of the Battery. The wind may become favorable ; perhaps we are nearer our departure than we think !' "The day was magnificent, although the wind was high. I allowed myself to be persuaded. B., as I afterwards recol- lected, showed extraordinary alacrity in closing my desk, ar- ranging my papers, and offering- my hat and cane, which I attributed to the nefd of incessant activity, with which he had appeared overwhelmed ever since our forced departure- We threaded the well-peopled streets and reached the Bat- tery. He had offered me his arm, and hurried as if he were in haste to reach it. When we were in the grand esplanade B. hastened still more, until we reached the edge. He spoke loudly and rapidly, and admired in energetic terms the beau- ties of the scene. Suddenly he stopped in the midst of his incoherent talk. I had disengaged my arm from his and stood firmly before him. I fixed my eyes upon him, he moved aside as if intimidated and ashamed. 'B.,' said I, ^ your intention is to kill me ; you mean to throw me from this height into the sea. Deny it, monster, if you dare !' The insane man looked at me intently with his haggard eyes for & moment, but I was careful not to remove my looks from him, and his eyes fell. He muttered some incoherent words and endeavored to pass me ; but I spread my arms and pre- vented him. Casting a wild look around, he threW himself on my neck and bust into tears. ' It is true, it is true, my friend ! The thought has tormented me day and night like an kifemal flame. It was for that I brought you here. See. you are not a foot from the precipice. Another instant the deed would have been done.' The demon had abandoned him ; his eyes were void of expression ; a white foam covered MORBID IMPULSE. 429 his parched lips ; the crisis had passed. I conducted him home. Some days of rest, bleeding and dieting entirely ciired him ; and what is the most singular circumstance of all, we never referred to the occurrence." Barbara Brkhow, a Eussian peasant woman, twenty years old, was delivered of a son a year after her marriage. Two weeks subsequently her husband went to a neighboring vil- lage, leaving his wife at home with his mother. While Bar- bara was nursing the infant, the mother-in-law made a fire in the stove, and soon afterwards left the room. In an instant Barbara seized her child and threw him into the stove. She then lay down on a bed which was in the chamber. Almost immediately afterwards her mother-in-law re-entered the room, saw the infant in the fire, and snatched it from the flames. The child died in her arms. Barbara could not ex- plain her conduct otherwise than by declaring that she was suddenly seized with the impulse to throw her infant into the stove, and that she had done it without thought or cause.* These cases are sufficient to show what constitutes morbid impulse. It may be defined as a condition in which the af- fected individual is impelled consciously to commit an act which is contrary to his natural reason and against his nor- mal inclinations. It is necessary not to confound this state with others, which in some respects it resembles, but which are, nevertheless, quite distinct from it. Thus the person who under the in- fluence of a delusion commits an act of violence against an- other, or himself, is not the subject of morbid impulse, for he acts in accordance with his reason, perverted though it may be. A man, for instance, acquires the idea that some one of his relatives or friends is seeking an opportunity to poison him. The delusion grows with ev^ry moment of his life, and ere long dominates over his mind with terrible power. He * Dagonet, Des Impulsions dans la Folie et de la Folie impulsive. An- nales Medico-Psychologiques, Sept., 1870, p. 238. 430 MOBBID IMPXJLSE. lies in wait for his supposed enemy, and murders him. Such an act is not what is understood as being the result of morbid impulse. It is a deed growing out of intellectual processes logical in character but based upon false premises. Or a person may imagine that invisible devils are endeav- oring to destroy him, and to escape from his tormentors he commits suicide. In such a case he reasons from his sup- posed state of facts, and chooses an alternative which, under the circumstances, he believes to be preferable to continued existence. Neither are the unconscious acts of certain epileptics the result of morbid impulse, though in some respects they bear a great degree of resemblance to those which are dictated by the condition in question. The element of unconsciousness is su'fficient to distinguish them. Marc* relates the following case : A shoemaker, aged 35, an industrious and sober man, rose early one morning and resumed his work. Shortly afterwards his wife noticed that his speech was irrational and incoherent, and suddenly the unfortunate man seized his knife and rushed furiously upon her in order to kill her. His face was red, and his whole aspect was that of a maniac. Gradually he became quiet, but his pulse was full and frequent, his tdngue dry, and the surface of his body covered with perspiration. In a few hours he was calm and asleep, and in the evening was per- fectly rational. He had no recollection* whatever of the events of the morning; A Swabian peasant, who had for eighteen years been sub- ject to epileptic paroxysms, experienced a change in the type of his disease, the fits being replaced by attacks of homicidal fury. The impulses to kill were preceded by somnolence and lassitude. When he felt them coming on he would beg to be restrained, and would implore his mother and others to get out of his reach. He had no subsequent recollection of his acts. * De la Folie consideree dans les Rapports avec less questions Medieo- Judlciaires, ii. p. 510. MORBID IMPULSE. 431 Many similar cases are cited by authors, and several very interesting ones are given by Trousseau.* A number of in- stances of like character have come under my own immedi- ate observation. Two of these are referred to in another publication.t but the following is of more recent occurrence. I was consulted in the case of a young lady, an inmate of a fashionable school in this city, who immediately be- fore each menstrual period was attacked with paroxysms of great and uncontrollable excitement, during which she attempted to destroy every object within her reach. In one of these, which had occurred just before I saw her, she had broken a large drawing-room mirror, a mantel-clock, and several valuable vases and ornaments be- fore she could be restrained. One morning she entered my consulting-room with the governess, and almost be- fore I could speak to her the fit seized her. Her face and neck became red, her eyes sparkled, she trembled from head to foot, and ere I was able to prevent her, she grasped a bronze, dagger-like paper-knife that lay on my table, and at- tempted to plunge into her breast. Fortunately it struck in the steel support of her corsets, and before she could repeat the act, I caught her arm and took the weapon from her. In a few moments she was calm, and had no recollection of what she had done. The attack was clearly epileptic in char- acter, and shortly afterwards her seizures assumed the regu- lar form of the grand mat. In true morbid impulse the individual who is its subject is perfectly aware of the incongruous act he is about to commit, but perpetrates it because he is compelled thereto by a force which he feels himself powerless to resist. He acts calmly and deliberately very often, but again manifests agitation and excitement. He does not for a moment lose consciousness, and when his impulse has been acted upon, or his purpose ' Clinique Medicale. Art., Congestion Apopleofciforme Cerebrale. t A treatise on Diseases of the Nervous System. New York. Fourth edi- tion, 1873. 432 MOBBID IMPULSE. changed by any for the instant more powerful cause, he recol- lects distinctly all the circumstances of the occasion. It frequently happens that the patient struggles success- fully against these impulses which he experiences even when on the very point of yielding, or he takes such measures of prevention as are sufficient for the purpose, or the impulse disappears apparently spontaneously or as a consequence of appropriate medical treatment. Georget* relates the case of a woman, the wife of a shoe- maker, who felt herself impelled to murder her four childi-en. She sought medical advice for a disease which, as she said, was driving her to despair. She had the appearance of health, slept well, was regular in her menstrual function, had no pain and no disturbance of the circulation. But she complained of being subject to a morbid impulse to kill her children, al- though she declared that she loved them better than she did herself. When the paroxysm was at its highest her face be- came red and she trembled violently. She was cured by the use of baths, valerian, and a blister applied between the shoulders. The same author quotes from Michu the following case : t "A countrywoman, twenty-four years old, having simple manners and good habits, but rather taciturn, was safely de- livered of her first child ten days' previously, when she sud- denly, while looking at it intently, experienced a desire to strangle it. The idea of such a thing made her shudder with horror. She placed the infant in its cradle and rushed out of the house, hoping to divert herself from her fatal impulse- Eetuming home to nurse her child, she again experienced the sensation of being forced to kill it. Again she left the house, and, going to the church, prayed to be delivered from the sin of murder. Soon afterward she met the priest, who, being a sensible man, advised her to consult a physician, and in the meantime promised to watch her. Michu was consulted. He * Discussion Medico-Legale sur la Folie, etc. Paris, 1826. tOp. cit.,p. 50. MOBBID IMPULSE. 433 observed nothing abnormal in the appearance of the woman. When asked if she loved her baby, she replied : ' I know well that a mother ought to love her child ; if I do not love mine it is not my fault.' Michn very wisely insisted on removing the child from her, and in the course of a few days the im- pulse disappeared." Very slight causes are often sufficient to destroy or over- come the morbid impulse. Marc* cites the case of M. R., a distinguished chemist and an amiable man, who feeling him- self compelled to commit murder, and fearing his inability to resist, voluntarily placed himself in a maison de sante of the faubourg St. Antoine. Tormented by the desire to kill, he often prostrated himself before the altar and implored the , Almighty to deliver him from his atrocious impulse, the origin of which he could not explain. When he felt that his will was yielding, he went to the superintendent of the asylum, and had him tie his, thumbs together with a ribbon. This weak band was sufficient to calm the unfortunate man for a time ; but eventually he attempted to kiU one of his keepers, and finally died in a paroxysm of acute mania. Again, aU the efforts of the affected individual are apparently unsuccessful, and the fatal deed is committed. I say apparent- ly, because we never can be sure that the patient has exercised all his will power. When he effectually resists there are not wanting those who will declare that the case is not one of mor- bid impulse ; while, when he yields, at once or eventually, these same persons will just as strongly affirm that the im- pulse was irresistible. Several cases have come under my obsei-vation in which patients have confessed to me that they have had impulses to commit various kinds of crimes, which they have been barely able to resist. These people have passed through life attending faithfully to their several duties, and entirely unsuspected of contending with them- selves in so terrible a manner. A few weeks ago a young man consulted me for symptoms * Oontultation Medico-Legal pour Henriette Cornier, etc. 434 MOKBID IMPULSE. indicating cerebral congestion. He had pain in Ms head, dizziness, and was unable to sleep. He informed me that he had been for several months constantly ■ troubled by a force, which was inexplicable to him, to kill a friend, who was employed in the same office with him. Upon one occa- sion* he had gone so far as to secretly put strychnia into a, mug of ale, which he had invited the young man to drink ; but, just as the intended victim was raising the vessel to his lips, he had, as if by accident, knocked it out of his hand. Every morning he awoke with the impulse so strong upon him that he felt certain he would carry it out before the day closed ; but he had always been able to overcome it. This young man reasoned perfectly well, in regard to his impulse, and very candidly admitted, and I entirely agreed with him, that if he had yielded and committed the murder, he ought to have been punished to the full extent of the law. The following extract from a letter which I recently re- ceived is likewise to the point : " In the New York Sun of the 30th inst. I noticed the pro- ceedings of the Medico-Legal Society, in the College of Phy- sicians- and Surgeons, on emotional insanity, etc., and I was impressed particularly with your remarks on ' Morbid Im- pulse.' Some two weeks since I was at work in my garden with a spade, and one of my little girl children, just three years old, came in where I was, and I was suddenly seized with an impulse to kill the child with the spade that I was at work with, and in order to prevent my doing so I had to make her leave the garden. Now, I love this child better than I do the apple of my eye, and why I was seized with that impulse I can't say. Since that time I have been feel- ing strange, and I am afraid to trust myself with my own family, though I know perfectly well what I am doing, and only feel actuated by these impulses. I have consulted a physician, and he laughed at me. If you can suggest any remedy for these strange impulses, I will pay you what you charge, and will consider that you have done me a favor that MORBID IMPULSE. 435 ■will cause me to bless your- name forever. I don't consider that I am in any danger of murdering any one just yet ; but the idea of such a thing is horrible, and I fear it may grow on me unless remedied." In my reply I called his attention to the admitted fact that he had his impulse under control ; that he was able to reason calmly and intelligently in regard to it ; that he had applied to me for advice, and that I urged him, without delay, to place himself under the restraint of an asylum. I further told him, that if he disregarded this advice, and fina yielded to his impulse, he would be fully as guilty of murder as if he had killed through deliberate malice, and that he ought to be just as surely executed as any other murderer. It not infrequently happens that so far from the individu attempting to combat his morbid impulses, he takes positive pleasure in obeying them, and in perpetrating crimes remark- able for their cruelty and for their apparently motiveless character. He may thus, in the gratification he experiences, entirely lose sight of the original excitation. As Bay* says : "The sentiments of truth, honor, honesty, benevolence, purity, have given place to mendacity, dishonesty, obscenity, and selfishness, and all sense of shame and self-content has disappeared, while the intellect has lost none of its usual power to argue, convince, please, or charm. I once asked a patient who was constantly saying or doing something to annoy or disturb others, while his intellect was apparently as free from delusion or any other impairment as ever, whether in committing his aggressive acts he felt constrained by an irresistible influence, contrary to his convictions of right, or was not aware at the moment that he was doing wrong. His reply should sink deep into the hearts of those who legislate for, or sit in judgment on, the insane. ' I nei- ther acted' from an irresistible impulse, nor upon the belief that I was doing right. I knew perfectly well I was doing wrong, and I might have refrained if I had pleased. I did * A Treatise on the Medical Jurisprudence of Insanity. Fifth Edition. Boston, 1871. p. 223. 436 MOEBID IMPULSE. thus, and so, because I loved to do it. It gave me an inde- scribable pleasure to do wrong.' Tet this man, when weU, is tind and benevolent, and in his whole walk and conversa- tion a model of propriety." A few years ago a young man was arrested in this city for assaulting a young lady in the street. He was identified as a person who had committed many previous offences of a like- character. His plan was to rush up to a lady, seize her, throw her down, and take off her shoes, which he carried away with him. He did not attempt otherwise to injure her, or to take away any other article from her. Oh searching his trunks and drawers, they were found full of women's shoes. He said he had no use for them, and was actuated by an ir- resistible impulse which it was pleasant for him to gratify. Dr. Dickson states* the case of the son of a gentleman, in a high position, who was sent away from school because he stole. Among the things which he confessed to have stolen were blankets and sheets, which he took off his own and other boys' bed-clothing, and a variety of articles, among which were two pairs of plated nut-crackers, which he sold for. a shilling a pair. On asking him if he wanted the money, he saM no, that he had plenty of money ; but that he felt some- thing he could not describe enjoining him to take the things. He was greatly distressed, but he declared that he could not control himself, so irresistible was the impulse ; and he then admitted that the day before Dr. Dickson saw him he had stolen some jewelry from his father, although, when first charged with the theft, he had stoutly denied it. His im- pulse was simply to take ; after he had possessed himself of many of the things he did not know what to do with them, and attached no value to them. The jewelry he stole he simply treated as toys. Some of the articles he stole at school he hid in a garden, and others he sold. It appeared that he disposed of them merely to rid himself of their en- * The Science and Practice of Medicine in Relation to Mind, etc . London,. 1874, p. 433. MORBID IMPULSE. 437 -cumbrance. He felt that the things had been stolen, and must be got rid of some way, and the readiest way was that of selling them. In 1828 Papavoine killed, in the forest of Vinoennes, two little boys, who were there on a holiday with their mother. He had never seen these children before, and when seized with the impulse to kill them, went and bought a knife for the purpose ; returning, he murdered them, before their mother's eyes, and made his escape. On being arrested and identifiied, he at first denied the charge, but subsequently admitted its truth. Confined in prison, he set fire to his bed and at- iempted to murder a fellow-prisoner. When interrogated during his trial, he declared that at the time of the double murder he was in bad health, had been unable to sleep, and was nervous. He asserted that he had no motive whatever to kill the two children. Inquiry into his antecedents showed that, though he had been quiet and taciturn in his habits, he lad never exhibited any indications of insanity, but had dis- charged with fidelity the duties of an office he held under the government, and had retired with a pension. The plea of in- sanity was put forward by his counsel, but it was disregarded by the jury, and he was found guilty and executed. This case is similar in several respects to that of Waltz, re- cently executed at Caiskill, in this State, for the miu:der of Holden. This man had probably been guilty of a previous murder, and while in prison killed without cause one of the keepers of the jail. Undoubtedly the force of habit, of which I shall have oc- casion to speak further on, has much to do with the repeti- tion of a crime, which at first is simply impulsive. This was evidently the case with Helene Jegado, who in France, in the period between the years 1833 and 1851, killed twenty-eight persons with poison, besides making eight unsuccessful at- tempts. In none of her murders was any cause alleged or ■discovered. Her victims were her masters and mistresses, her fellow-servants, her friends, for whom, in their dying mo- ments, she displayed the utmost tenderness and care. The 438 MOEBID IMPULSE. plea of monomania was setup in her defence ; but no evi- dence of insanity was brought forward by her counsel save the want of motive for her crimes. She was found guilty by the jury, after a short deliberation, and was in due time exe- cuted. Her last words on the scaffold were directed to ac- cusing a woman as her instigator and accomplice, whose name was not even mentioned during the trial, and who, upon inquiry, was found to be an old paralytic, whose life had been of the most exemplary character. The case of Dumollard — likewise drawn from the jurispru- dence of France, though other countries are not deficient in similar instances — also illustrates the force of habit. This man, a peasant of a low order of intellect, had a 'penchant for murdering servant girls, whom he prfet^nded to hire, and then conducting them to unfrequented places, put them to death. Six thus disappeared, and nine others barely escaped. Indeed, it is probable that many more than these were mur- dered, for on searching his premises twelve hundred and fifty articles of woman's apparel were found, of which only fifty were identified. As some one said at the time, Dumollard ought' to have had a cemetery of his own. And yet there ' was no such motive for his crimes as would adequately account for them. He did not sell the clothing and other things of little value which he obtained from his victims. Indeed, it was shown that he had burned and otherwise de- stroyed many of them, and the rest were, as I have said,, hidden in out-of-the-way places about his dwelling. There was no evidence to show that he had outraged any of those whom he had murdered, and he was found not guilty of the accusation to this effect. He appears to have been whoUy actuated by morbid impulse and the force of habit — a habit which had become a portion of his physical being, and which it afforded him pleasure to indulge. Insanity was urged in his defence, but he was found guilty and was exe- cuted. Many other cases might be brought forward, some of them, of recent occurrence, and belonging to this country ; bnt I MOEBID IMPULSE. 439 must close this part of my memoir with a reference to but one other, that of Jesse Pomeroy, the boy murderer of a few days ago. As many here to-night will call to mind, about two years since there was great excitement in Chelsea, near Boston, over a number of horrible instances of cruelty perpetrated on little children. The victims were tortured in various _ ways, sometimes by being cut with knives in various parts of their bodies ; again by being tied to beams and beaten with ropes and sticks tiU. their bones were broken or their teeth knocked out ; and again by having pins and needles run into sensitive parts of their bodies, upon which salt water was afterwards poured. Pomeroy, a boy about fourteen years old, and the son of a respectable widow woman, was ascer- tained to be the perpetrator, after about a hundred other boys had been arrested on suspicion. When arraigned he admitted his guilt, and could only plead in his defence that he "could not help it." He was convicted and sent to the House of Refuge. " After remaining there a year and five months, he was, at the earnest request of his mother, and furthermore, in view of his good conduct while in confine- ment, pardoned, and on the 6th of February of the present year he returned home. On the 22d of April, a little fellow named Horace Mullen, and the son of a poor cabinetmaker, was found dead in the Dorchester marshes. The body was horribly mutilated, the head was nearly severed from the trunk, and about thirty stabs were found in different parts of the body. Jesse Pomeroy was at once suspected as the murderer. On examination a knife spotted with blood was found on his person, another spot on the breast of his shirt, and his boots were covered with mud like that found in the marshes. Upon repairing to the place where the body was found, the officers discovered footprints which corresponded with those made by Pomeroy's boots. When confronted with the body of the murdered child, Pomeroy trembled all over and turned away his head. 440 MOKBID IMPULSE. "Did you know that little boy?" inquired the officer. " Yes, sir ; but I don't want to look at him any more." "Did you kill him?" " I suppose I did." " How did you get the blood off the knife ? Did you wash it?" " No, sir ; I stuck it in the mud." He further said that if he did the deed he was sorry for, it,, and hoped his mother would not know of it. When asked by the officer what he thought ought to be done with him, he replied, and his answer ought to sink deeply into the hearts ot all judges, jurymen, and lawmakers, " Pui somewhere, so I can't do such things." These cases are sufficient to show the nature of morbid impulse. There are hundreds of others which I might have brought forward, with many of which you are doubtless familiar; but I preferred to cite a few striking instances which are not commonly quoted. A few additional points relative to morbid impulse, and especially in regard to its ■psychical cause, require some notice. The first of these is suggestion. The action of this principle is well shown in the following case : A young man, a member of a highly respectable family, consulted me for what he called insanity. It appeared that a few weeks previously, while walking down Broadway, he had been struck with the appearance of a lady in front of him, who wore a very rich black silk dress. Suddenly the impulse seized him to ruin this dress by throwing sulphuric acid on it. He therefore stopped at an apothecary's shop, and purchased a small vial of oil of vitriol. Hastening his pace, he soon overtook the lady, and walking by her side he managed in the crowd to empty his vial over her dress with- out being perceived. He derived so much satisfaction from this act that he resolved to repeat it at once. He therefore purchased another supply of vitriol, and singling out a lady better dressed than others around her, poured the contents of the vial over her dress, and again escaped detection. He MOBBID IMPULSE. 441 then went home, and reflecting upon what he had done, determined to persevere in the practice ; but a night's rest put him in a healthier frame of mind, and he concluded to abandon the idea. Indeed, he was so distressed by what he had already done, that he wrote out an advertisement for the newspapers, in which he requested the ladies whose dfesses he had spoiled, to reply through the same channel, giving their residences, so that he might recompense them for the loss he had caused them to sustain. But on his way to the newspaper offices he again felt the impulse at sight of a handsome dress to throw vitriol on it, and again he pur- chased a supply and repeated the act of the day before. He now began to consider more fully than he had yet done the nature and consequences of his conduct, and the next morning came to me for advice. He stated very frankly his entire conviction that his acts were in the highest degree immoral and degrading, but expressed to me his utter ina- bility to refrain. " A handsome dress," he said, "acts upon me very much as I suppose a piece of red cloth does on an infuriated bull ; I must attack it. The bull uses his horns, while I use vitriol. I do not know why the idea ever came into my head. I cer- tainly should never have conceived of such a thing if I had been blind. I was altogether excited by the sight of that handsome black silk dress the first day, and it was impossi- ble for me to resist it after it once had a lodging in my mind. But I have often seen fully as handsome dresses in the street before, but never previously was the sight followed by such an impulse." Upon the most careful examination I could discover no evidence of disease anywhere, except in the one point of wakefulness, with which he had suffered more or less for several months past. I therefore prescribed bromide of cal- cium for him, and insisted on his removing himself from further temptation by taking a sea voyage in a sailing vessel upon which there were no women passengers. He at once expressed his acquiescence in my views. He went to sea in 442 MOEBIB IMPULSE. a fishing schooner, and returned in three or four months per^ fectly free from his morbid impulse. A gentleman who came about once a week to consult me for cerebral congestion, the result of excessive application to business, and who lived in a neighboring town, informed me that during his journeys by rail he invariably experienced an impulse to throw himself from the train. Finally he was so strongly impelled that he stated the case to an acquaint- ance in the cars, and begged him to sit near him, and re- S.train\ him, if he made any such attempt. After that he never came without bringing a friend with him, who had instructions not to lose sight of him for an instant. In tell-^ ing me of his impulse he described it as almost overwhelm- ing, and that it seemed to be excited by the rapid motion, and by the fact that he had heard of people throwing them- selves from railway trains. It is well known that persons standing on great heights often experience an impulse to jump of. So many individ- uals committed suicide by leaping from the Colonne Venddme and Arc de Triomphe in Paris, and from the Duke of York's Monument in London, that precautions had to be taken to prevent further acts of the kind. Marc relates the case of a nurse who felt the impulse to murder the infant she took care of, whenever she saw its naked skin. She threw herself . on her knees before her mis- tress, and begged to be discharged, declaring that the white- ness of the child's skin excited her to murder it, and that she could no longer resist the impulse. Several years since, I had a lady under my charge 'who whenever she saw the naked shoulders of a young child felt an impulse, which she declared she could not resist, to bite the skin. She had thus inflicted very disagreeable wounds on the children of her friends, and was finally arrested on the charge of assault, but the matter was hushed up on her promise to abstain, and she kept her promise. Morbid impulses are often excited by the sight of a suit- able weapon with which an act of violence may be committed. MOBBID IMPULSE. 443 Persons have hanged themselves on the suggestion of seeing a rope ; others have committed murder or suicide from see- ing knives, pistols, etc. Even a word spoken in jest may h& sufficient. Dr. Oppenheim, of Hamburg, having received for dissection the body of a man who had committed suicide by cutting his throat, but who had done this in such a manner that his death did not take place until after an interval of great suffering, jokingly remarked to his attendant, "If you have any fancy to cut, your throat, don't do it in such a bung- ling way as this ; a little more to the left here, and you will cut the carotid artery." The individual to whom this danger- ous advice was given was a sober, steady man, with a family and a comfortable subsistence. He had never manifested the shghtest tendency to suicide, and, had no motive to commit it. Tet, strange to say, the sight of the corpse and the ob- servation made by Dr. Oppenheim suggested to his mind the idea of self-destruction and this took such firm hold on him that he carried it into execution, fortunately, however, with- out profiting, by the anatomical instruction he had received, for he did not cut the carotid artery. Closely allied to suggestion, and probably a more powerful cause of morbid impulse, is imitation. Thus many crimes have been committed by persons who have had this impulse excited by reading accounts of the trials of other persons, or the detailed recitals of all the particulars of offenses which the age requires the public press to contain. Epidemics of murder, suicide, arson, and other crimes are thus produced. " Some years ago," says Dr. Forbes Winslow,* " a man hung himself on the threshold of one of the doors at the Hotel des Invalides. No suicide had occurred at the establishment for two years previously ; but in the succeeding fortnight five in- vaHds hung themselves on the cross-bar, and the governor was obliged to shut up the passage." Epidemics of suicide spread, according to Plutarch, among the women of Miletus, and, as is well known, in later days among the young women of Marseilles. * Tbe Anatomy of Suicide. London, 1840, p. 120. 444 MOKBID IMPULSE. A careful attention to the cases of suicide recorded in the dailj newspapers of a large city shows that they are largely influenced in character by the principle of imitation. A case of suicide by Paris green is published, and straightway half a dozen others due to this poison are the result. Or a man or woman jumps from a ferry-boat while it is crossing the river, and then this mode becomes the fashion for a while, to be followed in its turn by some other method. When I was a medical student of the University of New York, a young gentleman from Georgia was on one occasion dissecting the same body that I was. He had drawn one of the lower extremities as his part of the subject, and he was assiduous and careful in his duties. So far as my observa- tion of him extended, he did not differ essentially from other medical students. He was cheerful in disposition, and gave no evidence whatever of mental derangement, or even of ex- citement or depression of mind. Que morning we were told that he had been found dead on the floor of his bedroom, and examination showed that he had divided his femoral artery, and had died from hemorrhage. It was then ascertained that he had, the evening before, received a letter which had ap- parently caused him much unhappiness. Now, suicide from division of the femoral artery is cer- tainly a very unusual mode of self-destruction. I doubt if any case of the kind had previously occurred in New York. Yet within a week there were two others, of which was Horace Wells, the alleged discoverer of the anaesthetic properties of sulphuric ether. Here we have the principle of suggestion acting on the first victim, and then that of imitation on the others. Imitation is .of more force when the intellect is less fully developed. Even in the normal condition we find it more strongly exercised in children and women than in adult men. In the former the influence may be so powerful that actual disease is acquired. Thus a child imitates the movements of another affected with chorea or with stammering, and imme- MOBBIB IMPULSE. 4A5 diately acquires the disorder. Even squinting has been con- tracted in this manner. A lady had received such a vivid impression at seeing her maid throw herself down a well, that she never passed a well without feeling a strong impulse to throw herself into it.* An idiot, after having killed a pig, felt impelled to kill a man, and obeyed the impulse on the first one he met. A melancholic person was present at the execution of a criminal, and was immediately seized with an impulse, of which he was fully conscious, and could scarcely resist, to murder some one. A child six years old strangled its younger brother. The father and mother entering the room at the moment the act was in process of accomplishment, demanded the cause. The child threw itself, weeping, into their arms, rand answered that it was imitating the devil, whom it had seen strangle puncMnello. Such cases as these are at lea.st of value if they cause us to recognize the force of the principle of imitation, and to ren- der less public than they are now the execution of criminals and the slaughter of animals. In the month of February, 1846, three hundred and fifty French soldiers were encamped together in Algiers, when one of them wounded himsfelf in the wrist. Within twenty days thereafter, thirteen others had injured themselves in precisely the same manner. The commandant, frightened at this series of mutilations, removed his camp to a distance of eight leagues ; but what was his astonishment to find that within a week eight others had voluntarily wounded themselves in the same way. As is well known, Henriette Cornier had an impulse to kiU a child of which she had the care. She obeyed the impulse, and after the publication of the trial six cases, as Esquirol informed Prichard, of homicidal impulse were directly traced * Gall. PoDctions tin cervean et de ohaoune de ses parties. T. x., p, 199. 446 MOEBID IMPULSE. to that one act. In his work on insanity he tefers to two others of similar origin. The well-known tendency of many women to become af- fected with hysteria at the sight of another suffering from a paroxysm of the disease, and the similar fact of the extension of epidemics of demonomania, trance, ecstasy, the impulse to mew like a cat or to bleat like a sheep, and, it may be added, crusading, both of mediaeval and of more recent times, may also be cited as illustrations in point. The influence of JiMt in fostering a morbid impulse which has once been felt or yielded to, is exceedingly powerful, and has already been incidentally mentioned in the present memoir. When a living being performs an act under the operation of certain impressions which are received, there is a tendency to the performance of a similar act if like influences are brought to bear on the organism. Every time the, act is per- formed, the disposition to repeat it becomes stronger, until , at last the habit is so firmly established and the act is ac- complished without the reception of impressions similar to those which originally gave rise to it, but solely through the force of the newly organized power. This disposition to rep- etition is not limited to physical acts, it prevails in regard- to almost every function of the body and mind, to trains and modes of thought, and forms, often, an important element in the production of disease. Habit, therefore, is periodicity, and may be defined as the disposition which the organism acquires from the frequent performance of certain acts to repeat these acts until some more powerful force intervenes. Some persons are more under the influence of habit than others. They acquire a habit more quickly, and lose it with less facility. So strong are the unpleasant feelings excited by any interruption in the regular course of their habits, that they wiU endure the greatest inconveniences in order to in- dulge in them. I knew a gentleman whose custom it was to touch a certain tree on the road from his house to the rail- MOEBID IMPULSE. 447 way station, a distance of about five miles, as he daily went to his place of business. On one occasion, through absence of mind, he neglected this action, and rode several hundred yards before he discovered his omission. ' Though feeling an- noyed, he continued his journey ; but the uncomfortable sen- sation became too strong for him to endui'e it longer, and after having ridden two miles past the tree, at the risk of missing the train he galloped back and touched it as usual. There can be no^doubt that morbid impulse is often con- tinued, from the force of habit, long after the original excita- tion has been forgotten. I have adduced cases which, so far as could be ascertained, were instances of the kind, and I could readUy cite, both from m.^ own experience and that of others, many additional ones to the same effect. But the following must suffice : A lady came under my observation who was subject to no delusion, and who had never given any evidence of mental alienation except in exhibiting an impulse, which she de- clared she could not control, to throw valuable articles into the fire. At first, as she said in her confession to me, the impulse was excited by the satisfaction she derived from see- ing an old pair of slippers curl up in fantastic shapes after she had thrown them into a blazing wood fire. She repeated the act the following day, but not having a pair of old shoes to burn, she used instead a felt hat which was no longer fashionable. But this did not undergo contortions like the shoes, and therefore she had no pleasurable sensations like those of the day before, and thus, as far as any satisfaction was concerned, the experiment was a failure. On the ensut- ing day, however, she, to her great surprise, ffelt it would be a pleasant thing to burn something. She was very clear thai; this pleasure consisted solely in the fulfillment of an impulse which, to a certain extent, had become habitual. She there- fore seized a handsomely bound prayer-book which lay on the table, and throwing it into the fire, turned away her face and walked to another part of the room. It was very certain, 448 MOBBID IMPULSE. therefore, that she was no longer gratified by the sight of the burning articles. She went on repeating this act with her own things, and even with those which did not belong to her^ until she became a nuisance to herself and all those with whom she had any relations. Her destructive propensities stopped at nothing which was capable of being consumed ; books, bonnets, shawls, laces, handkerchiefs, and even table- covers and bed-linen helped to swell the list of her sacrifices. As soon as she had thrown the articles into the fire the impulse was satisfied. She did not care to see theUi burn : on the contrary; the sight was rather disagreeable to her than other- wise. But the force which affected her in the way it did, she represented as being imperative, and if not immediately al- lowed to act, giving rise to the most irritable and unpleasant sensations, which she could not describe otherwise than by saying that she felt as if she would have to fly, or to jump, or run, and that there was a feeling under the skin all over the body as if the flesh were in motion. As soon as she had yielded to the impulse these sensations disappeared. She was entirely cured, not by placing her in an asylum, but by subjecting her to such physical restraint as could readily be enforced within the precincts of her own home, and by the use of such medical remedies as were calculated to lesson the irritability of her nervous system. In most of the different forms in which morbid impulse manifests itself, the influence of habit is equally well shown. It is especially powerful in the species of mental aberration known as kleptomania. Another influence in the causation of morbid influence not to be disregarded is hereditary tendency. It is well known that many affections of the nervous system are the result of this force ; not that such diseases necessarily predispose to the transmission of similar disorders, but that they do tend to the propagation of some affection of the nervous organiza- tion. It is not surprising, therefore, to find that the subjects of morbid impulse often have ancestors who have suffered MOKBID IMPULSE. 449 from well-marked insanity, epilepsy, neuralgia, or other dis- ease, the result of nervous derangement. But it is not uncommon to find a particular morbid impulse transmitted in kind. This is especially true of the impulse to commit murder and suicide, and above all of the latter. Thus Gazauvieilli,* of eighty-one suicides, the cases of which form the basis of his work, found that there was hereditary tendency in thirteen. The impulse to the abuse of alcoholic liquors is also often hereditary in kind, as many here to-night can testify from their own knowledge. Relative to the cure of persons affected with morbid im- pulse, it is scarcely proper in a Society such as this to touch upon the medical treatment ; but a few words relative to the moral management may not be out of place. It is certainly true that in many eases impressions stronger in their influ- ence than the morbid impulse can be made upon the minds of the affected individuals, and that thus the impulse is sub- dued. Plutarch, in his " Morals," relates that the Milesian women, whose impulse to suicide has been already cited, and who were so strongly impelled to kill themselves that " neither the tears of father nor mother, nor reasons nor remonstrances nor the comfortable speeches of their friends were of any avail," but who were effectually restrained by the passage of a law, that if any one thereafter should hang herself, her naked body should be dragged through the market-place in view of the whole city, and he adds that the fear of dishonor, shame, .and ignominy is of greater power than the fear of death, even though the disgrace takes place after life is extinct. This law was made use of by the authorities of Marseilles to check the disposition manifested among the young women of that city to self-destruction, and with equally "beneficial results. The first Napoleon, whose knowledge of human nature has * Du Suicide, etc. Paris, 1840, Tab. 1, p. 18. 450 MOEBID IMPUI.se. rarely been excelled, arrested an epidemic of suicide in his army by appealing to the ennobling emotions of the mind. A grenadier killed himself. This suicide was followed by an- other, and it was feared that, as in previous instances, the impulse would extend. Bonaparte at once appreciated the necessity for prompt action, and accordingly issued the fol- lowing general order : " The grenadier Groblin has committed suicide from a dis- appointment in love. He was in other respects a worthy man. This is the second event of this kind that has hap- pened in this corps within a month. The first consul directs that it shall be notified in the order of the day of the guard, that a soldier ought to know how to overcome the grief and melancholy of his passions; that there is as much true cour- age in bearing mental affliction manfully as remaining un- moved under the fii-e of a battery. To abandon one's self to grief, without resisting, and to kill one's self in order to es- cape from it, is like abandoning the field of battle before be- ing conquered." The effect of this appeal was truly magical, and the dispo- sition to suicide was at once checked.* The morbid impulse to injure others in property or person can be often restrained by the efforts of the individual who experiences the impulse. Many instance^ of the kind have come under my observation, and they are frequently over- come b}' that wholesome fear of the law and the influence of judicious discipline, which even the insane, especially those whose only manifestation of mental aberration consists in morbid impulses, are generally capable of appreciating. Dr. Carpenter quotes from the report of the Morningdale Lunatic Asylum for 1850 a case which is so apposite in the present connection that I.,give it entire :t " The cSse was that of a female who was not affected with any disorder of her intellectual powers, and who labored • Dr. Forbes Winslow's Anatomy of Suicide. London, 1840, p 177. f Principles of Mental Philosophy, etc. London, 1874, jj. 6G4. MORBID IMPULSE. 451 under no delusions or hallucinations, but who was tormented by a simple abstract desire to kill, or rather— ^for it took a specific form — to strangle. She made repeated atteinpts to effect her pvirpose, attacking all and severally even her own nieces and other relatives ; indeed it seemed to be a matter of indifference to' her whom she strangled so that she sue. ceeded in killing some one. She recovered under strict dis- cipline so much self-control as to be permitted to work in the washing house or laundry ; but she still continued to as- sert that she ' must do it ; ' that she was ' certain she would do it some day ; ' ' that she could not help it ; ' that ' surely no one had ever suffered as she had done ; ' was not hers ' an awful case ; ' and approaching any one she would gently bring her hand near their throat, and say mildly and per- suasively, ' I would just like to do it.' She frequently ex- pressed the wish that all the men and women in the world had only one neck, that she might strangle it. Yet this fe- male had a kind and amiable disposition, was beloved by her fellow-patients, so much so that one of them insisted on deeping with her, although she herself declared that she was 'afraid she would not be able to resist the impulse to get up during the night and strangle her. She had been a very pious woman, exemplary in her conduct, very fond of attend- ing pjayer-meeting, and of visiting the sick, praying with them and' reading the scriptures, or repeating to them the services she had heard. It was the second attack of it sanity. During the former she had attempted suicide. The disease was hereditary, and it may be believed that she was strongly predisposed to morbid impulses of this character, when it was stated that her sister and mother had both committed suicide. There can be no doubt as to the sincerity of her morbid desires. She was brought to the institution under very severe restraint, and the parties who had brought her were under very great alarm upon the restraint being re- moved. After its removal she made repeated and very de- termined attacks upon the other patients, the attendants, and the officers of the asylum, and was only taught to exercise 452 MORBID IMPULSE. sufficient self-control by a system of rigid discipline. This female was perfectly aware that her impulses were wrong, and that if she had committed any crime of violence under their influence she would have been exposed to punishment. She deplored in piteous terms the horrible propensity un^er which she labored. In the report of the same institution for 1853, it is mentioned that this female had been readmitted after nearly succeeding in strangling her sister's child, under the prompting of her homicidal impulse. She displays no delusion or perversion pf ideas, but is urged on by an ab- stract and uncontrollable impulse to do what she knows to be wrong and deeply deplores." I have quoted this case for the purpose of showing by the testimony of a superintendent of a lunatic asylum, that even when the morbid impulse is overwhelmingly strong, the sub- 'ject of it is controlled by discipline, and that, therefore, there are means of subduing the tendency to crime which such people manifest. A- morbid inlpulse may occasionally be overcome by turn- ing the attention to some analogous but harmless occupation in which the impulse expends itself. Georgeit * cites the fol- lowing case, on the authority of Worbe : "At midnight a man presented himself at the country-seat of the celebrated Antoine Petit, and begged him to cure him of an invincible propensity to kill his master, whom he had served for fifteen years. He added that he had also a strong impulse to kill himself. The idea had come to him very suddenly, and he could not overcome it. Petit received the man kindly, made him sit down, quieted his agitation, and gave him a glass of good wine. At early dawn, under the pretext of getting some remedies for him, he took him to Paris, and, conductiiag him to a slaughter-house, made him cut the throats of several sheep. The man showed great de- light at the proceeding, but at the seventh victim he sudden- ly turned pale and fell fainting to the ground. This man as- sumed the trade of a butcher, and on the first day of every *0p. cit, p. 68. MORBID IMPULSE. 453 year came to thank Petit for having saved him from the scaffold." I once overcame a strong impulse to steal whatever she could lay her hands on, vthlch a wealthy lady exhibited, by directing her mind to the subject of botany, and inducing her to make coUectipns of plants. She gradually became so in- fatuated with the new pursuit that she lost all kleptomaniacal symptoms. It is often the case that in women morbid impulses are pure- ly hysterical. They are then to be managed accordingly. The legal relations of morbid impulse are of vast importance to society. My own opinion in regard to the manner in which the law should deal with individuals thus affected will easily be ascertained from the incidental remarks already made in the course of this essay, but it may be well to state them more emphatically than has yet been done. 1st. A person aware of the existence of an impulse to com- mit crime, and which he fears he may not be able to resist, is bound to do everything in his power to render the accomplish- ment of his propensity impossible. It is his duty to immedi- ately place himself under restraint. If he does not, he is morally and legally in no better position than a ruffian who feels an impulse to acquire other people's property and ac- cordingly murders the man most convenient for his purpose. 2d. The individual who is clearly shown to have yielded to &pyeviously utifelt impulse to commit crime, and who according- ly perpetrates an otherwise motiveless offence, or one which in his norma? condition would evidently not have been com- mitted, is too dangerous to soci-ty to be allowed to go at large He ought to be placed under permanent restraint. I saj permanent , because experience shows that this form of men- tal aberration is exceeding apt to recur. Several of the cases I have cited are illustrations of crimes committed after the discharge from confinement, and there are hundreds of simi- lar instances on record. 3d. Those morbidly constituted individuals who commit crimes because it is pleasant for them to do so, such aS Helene 454 MORBID IMPULSE. Jegado, DumoUard, Pomeroy, and others whose caS'es I have cited, should be treated exactj.y hke other offenders against the laws. The absence of motivg is apparent only. The "fa ct that the criminal experiences pleasijre, from the committal of the act is as strong a motive as any other that can be alleged , and is entitled to no more extenuating force than the pleasure of revenge, or acquisitiveness, or other passions. "Lord, how I do love thieving !" said a London vagabond. ' " If I had all the riches of the world, I would still be a thief." 4th. The fact that a murder has baen committed, in order that the pepetrator might secure his own execution, is not a palliating circumstance. Those who contend that it is — and I am sorry to find Dr. Maudsley among them — seem to be actu- ated by the erroneous idea that suicide is necessarily the act of an insane person. The desire to be executed may be evi- dence of a morbi^ mind, but not necessarily of an insane one; and if we are going to excuse every crime commit^ted by jaun- diced and hypochondriacal and notoriety-loving people, we might as well close our courts at' once. 5th. A morbid impulse to crime, experienced by an insane person — and by insane person I mestn one who exhibits other evidences of insanity besides the morbid impulse, and who would be considered by competent judges to bp insane even if no such impulse existed— demands continued sequestration. 6th. But the plea, " / could not help it," is one which every member of the (jriminai classes can urge with as much, force, as the subject of morbid impulse, and when it stands alone in an otherwise sane individual, should be absolutely disregard- ed by juries and judges. DISCUSSION ON MORBID IMPULSE* At a regular stated meeting of the New York Medico- Legal Society, held at the College of Physicians and Sur- geons, corner Twenty-third Street and Fourth Avenue, on the above date, Prof. William A. Hammond, M.D., read a paper entitled "Morbid Impulse," after which the following discussion ensued : The President, after congratulating the speaker upon the admirable ' manner in which the theme had been treated, thus placing- the matter before the public, through the New York Medico-Legal Society, hopecl that a subject of so much importance would draw from both members and others an expression of sentiment worthy of the occasion. He saw before him men who had thoroughly studied morbid impulse, and whose minds were consequently richly imbued with ideas relating to th* question ; men who had performed no small part in affairs pertaining to insanity, whose opinions had been listehed to in courts of justice and elsewhere with that deference to which matured judgment entitled them, whose experience was worthy of consideration and respect. In view of these facts, and also because the plea of morbid impulse had been set up as a strong point ia the defense of , malefactors, both in this and foreign countries, it ought to receive a full and free discussion. He would therefore call upon Dr. Parsons to open the debate. Dr. R. L. Paksons — I was not fortunate enough to hear the beginning of the paper just read by Dr. Hammond, but suppose that I have heard the greater portion. The natural history of morbid impulses, as given in the paper, accords, as .far as I was able to notice, with that given by most writers on the subject, so that little remains to be said on that point. * Jun- 2.5tb, 1874. 455 456 DISCUSSION ON MOKBID IMPULSE. There are some points, however, that seem to merit fur- ther discussion, one of which is the great difference that exists between different individuals in regard to suscepti- bility to morbid impulses. "While the mental organization of some persons is such that whatever impulses they may feel are always entirely within their control, the mental equilibrium of others is so Unstable, or their power of self- coptrol is so deficient, that their actions are easily deter- mined by their impulses In other word^, their impulses are liable to become morbid. Of those who show other evidences of insanity nothing need be said. Their general condition is usually such that morbid impulses are to be expected and excused. Morbid impulses are especially liable to occur in epileptics, whether there have been otlier mani- festations of insanity or not. Of this important fact no mention was made in the paper read by Dr. Hammond. De. Hammond — Yes, there was. I referred particularly to that. Dr. Parsons — This must have been before I arrived. There is nothing more tl»en to say on that point, save to corroborarte Dr. Hammond's views. » Dn. Hammond — I distinctlj^ excluded cases occurring in epileptics and restricted my cases to those in which there are no other evidences of insanity but morbid impulse, De. Paesons — In those cases in which morbid impulses are the (mly evidences of insanity, it should be noted that the insane temperament usually exists ; that there is a pro- disposition to insanity, either hereditary, congenital, or ac- quired. With a predisposition to have morbid iitpulses there co-exists a diminution of the normal power of self- control. All men have at times an impulse to do things which they ought iiot to do, but the great major .ty have the power to resist the impulse. They have the normal power of self-control. Their impulses cannot be considered as morbid. If through the influence of disease or of a defect in organization a person have an increased liability to act impulsively, with diminished power of self-control, his mor- DISCUSSION ON MORBID IMPULSE. 457 bid impulses may be excusable, either wholly, or in part. His impulses may be such as of themselves to furnish veiy strong evidences of the existence of insanity. There is another point to which I will refer ; that is, the responsibility of a person who has had morbid impulses, and who has subsequently committed an illegal act under the iufluence of a' similar impulse. Tf I understand Dr. Hammond correctly, he expresses the opinion that if such person did not take proper measures to prevent the commis- sion of the act to which he was impelled, he would in the event of its commission be equally culpable, both morally and legally, as though there had been no morbid impulse. From what I have already said regarding the nature of mor- bid impulse, I think it will be evident that my own opinion does not quite coincide with that expressed by Dr. Ham- mond. Since the existence of a morbid impnlse is in itself an evidence of mental defect, acts committed under such an impulse must be less culpable than similar acts committed without the influence of a morbid impulse. The fact that the diseased party knew of his impulse to do wrong, would not restore the full measure of his responsibility, for it must be remembered that the existence of morbid impulses implies a diminution of the normal power of self-control of the gov- erning power. If the governing power be diminished the ability to take the preventive measures required must be diminished also. This diminution in ability should be taken into account in the administration of the law in such cases. Reference was made by Dr. Hammond to the influence of habit in rendering normal impulses morbid in character. In this also he is undoubtedly correct. The frequent recur- rence of an emotional state may produce such profound and persistent cerebral changes as to cause a well-marked attack of insanity. It should not be inferred, however, that ii per- son who thus becomes insane is fully irresponsible for his insane acts, because he might have controlled his passions or his impulses at a former period, and thus have prevented the final result. 458 DISCUSSION ON MOEBID IMPULSE. De. Mekedith Clymee — ^As Dr. Parsons has remarked, there is little to add in the way of fact or illustration to Dr. Ham- mond's essay. The subject of morbid impulse covers a wide field ;, but as I understand the purpose of the essay, and of this discus- sion, it is to consider and determine the responsibility of an individual possessed of a dominant depraved idea This, question is a very nice as well as a very important one. It may be said that a great proportion of crime, or at least of vicious acts, is the effect of morbid impulse. That is, there is a condition present in which a strong and dominating desire is felt to do an absurd or unlawful act, and a pleasur- able sensatioi* is experienced in doing it, or on its accom- plishment. This state may prompt an insignificant or absurd peccadillo, an eccentricity, as well as the highest crimes. It is of moment, therefore, in the aspect which I assume we are looking at the question this evening, that the term mor- bid impulse should be accurately defined, that wie should have a clear notion of what we mean by it, and that it should be discussed strictly within the limits of that definition. • There are, I suspect, few present who at some period or another of their lives have not been under the influence of some dominating idea, which reason forbade, and which it was very difficult to get rid of, or not to put in action. Of this sort is the sudden desire to jump off a height, or to throw one's self into a faist-runuing stream, or before a com- ing rail-train, and of like kind is the sudden prompting to say or do something absurd or wrong. Dr. H. E. Bigelow, of the Retreat at Hartford, Conn., in a recent article on " Morbid Impulses." has mentioned an instance of this kind personal to himself. At the funeral of a relative some ludi- crous idea excited in him a desire to laugh ; he tried for some time to resist it bjr attempting to call up thoughts ap- propriate to the occasion. He sat, he says, for a while on a rack of unrest, the perspiration hanging in drops upon his forehead ; but all in vain. Laugh he must or go ma,d ; and laugh he did, jiist as the corpse was raised by the body- DISCtTSSIOX ON JrORBID IMPULSE. 459 bearers ; nor did the impulse seem in any way lessened in power by the horror-stricken faces around him. I recollect some years ago being at the opera with a musical friend. I noticed that during the performance he took no interest in what was going on; he seemed absent-minded and absorbed in himself. He answered any remark I made to him shortly, and did not seem to wish to be disturbed- His whole behavior was odd, and entirely different from his common conduct at such times. Later in the evening I asked him what was the cause of his singular behavior. In reply, he said, " Did you see the bald-headed man in a seat a few rows in front of us?" I answered that I did. "Well," said my friend, "do you know, from the moment my eyes lighted on that head, that I had an irresistible impulse to smasli an egg upon it? I did my be^t to listen to the music -r-to get up another train of thought. I would look at the audience, try to foUow the music, but to no purpose ; my eyes would go back to that ba'd, shining pate, and the desire to smash an egg upon it was the dominating thought. I could not get-rid of it. I am sure if I had had an egg that I should have done the deed." I might mention many other instances of like kind, either within my o^n experience, or which have been published. You may all remembdr the case of the cler- gyman who had to repeat the Lord's prayer in the church service, and who, after the sentence, " Our Father who art in Heaven," could not go on until he had said, " and let him stay there " But we find a class in ^hich the impulse is of a more seri- ous nature ; and which incites to the commission of various criminal acts, including self-destruction and homicide. It is claimed for such that they have lost the power of self-control, and are, therefore, legally irresponsible for their acts. And there lies the gist of this question. The point to be settled is, whether in any such case there is total loss of self-control ; and, if admitting that there may be, to ascertain when it happens ; when it can be considered as a proper plea in abatement of responsibility. If I understood Dr. Hammond 460 , DISCISSION ON MORBID IMPULSE. rightly, he excludes from legal responsibility lunatics and ep- ileptics. And yet the general tenor of his essay, it seems to me, is in the contrary direction. While I largely agree with him as to the ability of many, perhaps most persons, to re- strain their criminal impulses, and consequently admit their responsibility, still it strikes me that Dr. Hammond's propo- sition is too general, and its application too unreserved. Dr. Parson thinks that the degree of punishment should be grad- ed to the degree of ability of the individual to control his acts; thus implying different degrees of the power of controlling im- pulse. Dr. Hammond would exclude from the benefit of at least mitigating circumstances those who, as Dr. Parson said, were unquestionably suffering from lessened will-power,- and who were, at least at some time, unable to exert a sufficient degree of will to resist an impulse which they knew to be * criminal, and which with this knowledge they may, at another , time, have successfully combated. Dr. Hammond says that he would except from accounta- bility such as were acknowledged to be insane. Now, sir. as to such as are acknowledged to be insane — will the lawyer here always agree to call a person insane whom the practical alienist would unhesitatingly recognize as of unsound mind ? There is, it seems to me, an irreconcilable difference between the two professions on fundamental points regarding this sub- ject. Shall we accept the definition of what constitutes in- sanity, as given by the English judgps after the McNaughten case, and which now is the law in England? This authorita- tive exposition of the rule of law wlpch is to be applied when . the plea of insanity is interposed by the defence in criminal cases, is now the law of this State bv a recent decision of the Court of Appeals, in the Flanagan case, reported in 52, New York. Our judges are bound by it. Should we be governed by such an ill-founded, and unscientific-, and contracted standard, great injustice would be often done Many persons suffering from a diseased mind will be held accountable for their acts, and punished for them ; for in these therp may be no delusion present ; and they may have full consciousness MSCUSSION ON MORBID IMPULSK. 461 of tlie act clone, and knowledge of its quality ; and yet they have been forced to commit it by, as they believed and felt, a fatal necessity. Au individual in such a condition may talk understandingly about the deed before its committal, reason upon, and dread the doing of it, have a horror of it, be aware fullj' of the consequences, and desire to avoid it, have strug- gled long, and for awhile successfully, against its committal, and yet finally have the will-power overwhelmed by the im- pulse, and bfe driven irresistibly to do the act he would avoid if he could. Dr. Hammond does not seem to believe that any impulse is irresistible, even in those of unsound mind ; that in every case there is a way to strive against the impulse. In this view he will, I think, find practical alienists to agree ^'ith him. Yet he qualifies the impulse he treats of as mor- bid ; and as it is a mental act, its existeiice, the acknowledg- ment of such a mental state, concedes the fact of disease. Now, sir, the law as it now stands in this State as applied to the defense of insanity in criminal cases, will hold persons, as I have just stated, to accountability for their acts, and, as I believe, in many cases, most unwarrantably so, and in direct violation of our statute. We know that epileptics are espe- cially liable to commit acts of violenee,-of criminal violence, under the effect of sudden, and often, perhaps, irresistible im- pulse. The same may happen in the puerperal state. "While Dr. Hammond, as a physician, might recognize the mental unsoundness in those cases, the law of the Court of Appeals in many instances might and would not. If there should be no delusion present, if there was consciousness that the act was wrong, then the judge is obliged to tell the jury that the ac- cused is responsible, and cannot avail himself of the protec- tion of the statute, though every practical alienist would de- clare him to be suffering from mental disease. Such is the effect of the adoption of the stupid tests of insanity as laid down by the English judges. I agree with Dr. Hammond that in many, very many in- stances, it is within the ability of the individual possessed with a dominant dfepraved idea to control it, or recognizing it. 462 DISCUSSION ON jrORBID IMPULSE. that he, should place 'himself where he will be unable to .give it effect. It is an eYidence of disease, like any other abnor- mal symptom, and Dr. Hammond by -using the prefix "mor- bid " admits this. But if, failing from ignorance or negligence to do this, the impulse should become absolutely irresistible, I do not see why he should be punished. In such a state he would unquestionably be of unsound mind, the impulse would be an insane one, and such a person in such a state is unquestionably entitled to the protection which the statute gives him when he is a victim of mental disease. De. Abeaham Jaoobi. — I am not a member of this society, neither am I an expert in these matters, and certainly did not expect to speak upon this subject. But if you will per- mit me to make a few remarks, Mr. President, the first woul4 be that I hardly know what point ^o discuss. There ap- peared to me to be, from what I heard of Dr. Hammond's es- say, two distinct parts : 1st, the natural history and a com- plete expose of morbid impulse, and 2d, morbid impulse in •connection with the law. If I understand the law correctly, it weighs out a certain amount of punishment for a certain amount of damage done to public morals or to th« safety of human society. But in dealing out the law it is understood that the same justice should be considered, the same princi- ple should apply, as in commercial enterprises, in which a certain sum of money is paid for a certain amount of merchandise purchased. I may be incorrect in this, but it has always struck me as justice. If this is true, if the law deals out a certain amount of punishment for certain amount or degree of crime, there must arise a ques- tion, and that question is. Whether there is a justification of a ciiminal act in the existence of impulse, normal or abnor- mal ? When I heard Dr. Hammond's paper it appeared to me that he would arrive at a different conclusion from that at which he did arrive. It appeared to me a paper as of the humanitarian ; as a paper of a physiologist it would appeal not so much to the so-called justice as to the greatest possi- ble amount of leniency for aM those who have the great mis-. DISCUSSION ON MOKBID IMPULSE 463 fortune to be subject to a morbid impulse. It appeared to me as if the doctor wanted to explain and bj- explanation to excuse. Now tbe point of view from which I consider this question is in my opinion a correct humanitarian point of view. I am of the opinion that there will be a time in the future when a|l] these' things will be taken into consideration, and when our laws will be very different from what they are now. The law of the future wiU be governed not so much by the prin- > ciple of the jurist, as of the physician. As far as the question of morbid impulses goes, we ought to compare them with normal, healthy impulses, in order that we may see inwhat they differ, or how far they agree. Take, for this purpose, the case of a little child ; you place in its hands a doll-baby ; he plays with it, examines it, and after examining it a Jong time externally, he thinks he would like to see what is inside. He takes off the dress, he pulls out its eyes, and after awhile he takes off its head, and thus he pro- ceeds until the doll is destroyed. Now what is this ? It is a morbid impuse, with a certain injury done, not to society in this case, but to its own object of amusement. This is the beginning of a morbid impulse. It is the formation of or de- velopment of a morbid habit, and operates to a great extent as a teaching of that habit ; and whatever takes place in the young individual takes place in the grown person afterwards. When we speak of the fvmetions of character or of the brain or intellect, or if we speak of psychical functions, we meet with two kinds. Intellectual functions on the one hand, and em'otional functions on the other. When the intellectual functions are not very well developed we have simply idiocy or stupidity, ignorance, etc?. When a person is ignorant, stu- pid, and does harm to himself, he is responsible to himself only, and bears the consequences. When he does harm by his ignorance to society at large, he is made responsible. Now take the same insufficiency of development, on the other side of the question, of the emotional functions. If he does harm to himself he is responsible to himself, that is, he must shoul- 464 DISCUSSION ON MORBID IMPULSE. der the consequences of his doings. If he does harm by rea- son of insufficiency in his emotional functions, the responsi- bility is his as long as he harms anybody else. He is mor- bidly emotional. We know that the more brain there is in an individual the Ipss morbid impulse there should, be. Physi- ologically speaking, the less brain the more reflesx action. When we remove the brain of an animal and irritate the sur- face, the reflex action, the involuntary movements will be more powerful than they are in health ; also, the less the brain is developed the more reflex action on the emotional side. The explanation generally given, that the emotional side is better developed, is more practised. I should include not the insane alone, whom- Dr. Hammond would hold responsible, but I should also include those so- called emotionally insane, the kleptomaniacs and kindred classes of monomania, unless they can be shgwn distinctly not to be responsible, that is, as having the symptoms of some form of genuine insanity. I have never for a moment been able to believe in temporary insanity. Whenever there is an act committed which is shown to be an insane act, that insane condition must have been encroaching upon the vic- tim as a disease for some time. I do not deny that there are now and then cases of insanity which only exhibit themselves in what are considered to be morbid impulses. These mis- takes in diagnosis will sometimes be made ; but mistakes are made every day. But I believe it would be much safer to make such a mistake now and then, than to run the risks which are occurring every day. Therefore, I believe the chap- ter on insanity and morbid impulse in the books, should be modified to a certain extent. Db. Hammond — I am glad to see that my friend Dr. Jacobi has taken an impulse to join in the sentiments held by myself in this respect, that this morbid impulse occurring in Individ- ' uals, is liable to spread by suggestive imitation in a very epidemic sort of way. Most of the examples that I have cited went to show that this could be resisted. If we go to work and punish these people, we do a great service to other DISCUSSION OS MORBID IMPULSE. , 465 people. We should not only look at the persons who have morbid impulses, but we should also look to society. I be- lieve in dispensing the greatest good to the greatest number. I would not hesitate at all to hang a man, if he is proved to have committed a murder. If he was fully conscious of an impulse in that direction, and if he had struggled a reasonable length of time against that impulse,, he would have conqvvered. A man who pleads an impulse for the first time, who kills in- stantaneously, I would not hang, but put under permanent restraint. If not, he may kill others. Now take this case of the man from Arkansas who wrote to me, (and which I refer to in my paper), if he had yielded to that impulse, and killed the child, I would put him under restraint for the rest of his life. And if he had disregarded my advice, and killed his child, I would have gone to Arkansas to help to' hang him. This man wrote to me in consequence of having read a re- port of a debate on insanity, published in the N. Y. Sun. He knows full well to what he is subject ; he knows that he has an impulse to kill his child. If he does it, he ought to be punished to the full extent. He is not insane. Would you plead moral insanity in his case, and let him go ? No ! So- ciety has some rights as well as these people with morbid impulses. We know full well the force of example. Every man who commits a crime has an impulse ; if he has not, he would not do it ; and many have impulses and resist them. That should have no more extenuating force with a jury, than the excuse of the man who could not help appropriating an- other's money. If for self-gratification he commits a crime, he ought to be punished for it. I think there is a great deal of sentimentality displayed in regard to the punishment of people who are of no kind of use to society. I would not hang them all, but would put them out of the way. I am not prepared to say that I am in favor of hanging people. I would put them in charge of Dr. Parsons, and hold them in reserve in the Penitentiary or asylums built for such persons. As a judge remarked in England, to a poor devil who stole 466 DISCUSSION ON MORBID IMPULSE. sheep, I am not going to have you hanged for stealing sheep, but that other people may not steal sheep. Dr. Paesons — It didn't have the desired effect. Clakk Bell, Esq.— The paper of Dr. Hammond is a very able paper, and as suggested by Dr. Jacobi, it discusses the subject in a terse and admirable manner. Now when a man goes.into court and is put upon trial by a jury, upon an indictment, the question of responsibility arises, which Dr. Hammond evidently invites discussion up- on : What can be done with him, what measure of responsi- bility should be attached to a case of morbid impulse ? Every man who commits a crime must have had to some extent an impulse, morbid or otherwise, controlling his action. He must have a temptation to induce him to commit the act. Is there a case in this world, or will there ever be any case, where a man conceded not to be insane, conceded to have perfectly healthj' actions of mind, capable of understanding and controlling his actions in every respect, kiiowing the right and wrong of every act, ha^dng a full knowledge that he is doing wrong, where such a person should not be held respon- sible? I think not, for these things are questions of law. That is to say, as I understand it, it has been held by the judges of England, and by our own courts, that when the perSon: was fully conscious of the wrongful character of- his act, knew that it was wrong, was of normal condition, so as to enable him to correctly understand and distinguish be- tween right and wrong, and had a perfect a,nd free will, if he had chosen to exercise it, but who yielded to a morbid im- pulse, he' should be held responsible. This question of re- sponsibility is the one to which your attention is called. Now, in the various discussions here on kindred questions, physicians are apt to arrange themselves on one side, with the same difficulties as present themselves here — rather feel- ing a regret that the existing law inight be too severe, and that the paper may not be humanitarian in its char-' acter. If a man has a morbid impulse upon him, so strong that DISCUSSION ON MORBID IMPULSE. 467 lie cannot resist it, there is a question. If a man has an emotion or irresistible impulse to commit a crime against another that he cannot resist, that is a question which I think will stagger the judges, as it did those upon th^ Eng- lish Bench. But in the ordinary cases that are pl;^sented to the Courts, there is very little que.stion of the guilt of the accused. Db. Olymer :^Dr. Hammond has given us several instances within his own experience where, in one at least, there had been previous unsound mind and confinement in au asylum, where the unnatural impulse had been conquered. I would ask him if he would, in a case I will now relate, have em- ployed the same procedure — A young married woman had exhibited symptoms of insanity for several days, with a strong tendency to self-destruction by throwing herself from a window. One afternoon, sitting with her hushand, who had just returned to town, in the absence of the nurse, she com- plained of the heat of the room, and requested her husband to raise a window at the other end of the room. The window had been fastened down, and while he was fruitlessly trying to raise the sash, she quickly threw open the window nearest her, and flung herself out, and was instantly killed. I would further ask him, if in Dr. Skae's case, mentioned by Dr. Car- penter in his recent work on " Mental Physiology," as a type- case of the homicidal form of impulsive insanity, and which Dr. H. has quoted, whether he would hold such a person re- sponsible ? There was no delusion or hallucination ; there was a simple abstract idea to kill, taking a specific form, by strangling ; there was perfect knowledge of the quality of the act. There was no perversion of ideas, but only an impulse to do what the individual knew to be wrong. If Dr. Ham- mond should hold her not accountable, the present law of this State would. The practical alienist, in daily intercourse with the insane, meets with such cases constantly, who are as much the victims of mental disease as the most furi- ous maniac, and as little able to control their impulses or their actions. 468 DISCUSSION ON MORBID IMPULSE. I do not wish to be understood as advocating the irrespon- sibihty of all such as may have a dominant, depraved or crim- inal idea. But I think that we should have some clear notion on the subject, and have some rule, or test of responsibility. I cannot* understand yet what class Dr. Hammond would exempt from the consequences of their acts. He has just said'he would send such to his friend, Dr. Parsons, to be taken care of, or to some institution proper for their treat- ment ; and that he would hang such, or help to hang them. By the first statement he admits them to be of unsound mind, and by the second, criminal and responsible. As I have said this evening, I largely agree with him in my belief that many cases of morbid impulse can, by proper treatment and dis- cipline, get rid of their depraved ideas, and that in many the dread of certain punishment will hinder its indulgence. These criminal impulses are often due to imitation. The deterrent effect of a degrading punishment has been most happily shown by the stop which has been put to attempted assaults with firearms on the Queen of Great Britain, since the passage of the flogging act. Since the offence was made a disgraceful one, punishable by whipping, there has been no attempt properly referable to depraved impulse. In a paper I had the honor to read before this Society several years ago, on "The Legal Kesponsibility of Epileptics," I related d case then under my observation, in which the abilityj in an epileptic boy, to control the morbid impulse was well shown. Where the impulse is unquestionably the offspring of a dis^ eased mind, which prevented the exercise of due volitional power, and where there was strictly no criminal intent^ such should be accounted irresponsible. It is, after all, the power to do or to forbear. I own it is a difficult point, often, to decide, but the fact of the difficulty should not compromise a principle or a right, if the latter is properly available. Each case must be decided on its merits, and each should be closely scrutinized. After a few general remarks by Dr. Hammond, the meeting adjourned. " MALLFXTS MaLEF1CARUM.",-THE WITCH'S Hammer* By M. Ellinger, Esq. It is,. I believe, one of the main objects of medical juris- prudence to determine the degrees of responsibility and ac- countability of the individual to society. Only persons of sound mind are held amenable for their actions ; it is yet one of the unsolved problems how far the mind of the individual is influenced by the spirit that walks abroad, by the notions that suffuse the common atmosphere. Is mental disease to be recognized before the judicial forum, then, only when the result of a recognized diseased organ of the body, or also when the product of moral training, by which the h^man will becomes equally the powerless slave of habit, of encrusted prejudices, and of misconceptions, adopted by the masses as dogmatically established truths ? Every man is subject to some sort of superstition in a greater or less degree. With some superstition becomes the controlling element of their life, the motive of all actions that require a higher impulse. The tiny phantom that enters man's fancy in his youth, becomes often a huge monster, or a spirit of benign influence, according to the surroundings which furnish the material for nursing the shadowy form. With the child brought up in the society of an ignorant com- munity, the phantom grows into the distinct and well-defined forms of the devil and his myrmidons. With children brought up in enlightened circles, the superstitious awe and fear as- Eead June 25, 1874. 469 470 " MALLEUS MALEFICAEUM." — THE WITCH's HAMMER. sume other forms, sometimes so slender and indistinct as to be almost unrecognizable, but the germ is there, and its in- fluence will be felt in some way or another. Even John Stuart Mill, one of the greatest of all modern thinkers, an in- tellect that penetrated the utmost limits of thought,' was not free from a certain degree of superstition. In fact, the his- tory of the human race reveals to us side by side with the wonderful achievements of the human mind and genius, such foibles and weaknesses as to offer the most complicated prob- lem to the student of psychology. The same law that governs the life and conduct of individ- uals governs that of nations. Theyiare the subjects of preju- dices and superstitions, often entirely in their power. These superstitions partake, as it were, of the character of contagi- ous diseases, they are transferred from one nation to another, have their regular periods of rise and decline, and at times sweep with irresistible power over continents, carrying every- thing before them, engulfing for ages the whole human race in the maelstrom of helpless ignorance and destructive idio- syncrasy. Moral and mental epidemics differ very little in their na- ture from physical epidemics. They are the children of the peculiarities that characterize the times in which they, origi- nate and grow up ; certain conditions are necessary for their propagation ; when these disappear the disease also vanishes. Such epidemics are found at all epochs, but none of them has borne such a distinct type of mental hallucination and aberration, none of them has taken such a decisive hold up - on society, has held sway for so long a period, and was so destructive in its effects as the witch-mania. It received the stamp of judicial authority, was made the subject of statu- tory enactments in Germany, France, England, Spain, and even crossed the ocean to prosper for a time in New England. The most remarkable monument of human folly, judicial fal- libility, and mental extravagance, is the code composed and published by Jacob Sprenger, in accordance with a mandate received from Pope Innocen tins VIII., for the trial of witches, '■ MALLEUS MALEFIOARUM."— THE \YITC?l's HAMEEE. 471 determining the mode of obtaining and sifting evidence, and the punishment to be inflicted. The " Malleus Maleficarum," as the book is called, was the most terrible weapon in the hands of the fanatic, the deluded, and the bigot ; under its authority, and according to the rules prescribed therein, a holocaust of victims was sacrificed to the Moloch of ignor- ance and superstition. If there were a devil, the period of the witch-mania would have been worthy of the Prince of Evil-doers, and certainly the inquisitors who tried, the judges who condemned, the authorities who executed with a hellish lust the judgment rendered, were the ready tools in the hands of his Satanic majesty. But before I proceed to give a detailed description of this remarkable phenomenon of ignorance and superstition in the history of jurisprudence, I will endeavor to present a rapid sketch of the history of belief in a devil and the mania arising therefrom, the belief in witches and witchcraft. The worship of a divine Being was preceded by a worship of the being who was looked upon as the originator of the natural forces, that wrought disaster and destruction, that caused desolation and death. The dual forces, apparently manifest in nature, were ascribed by our simple-minded an- cestors to two distinct beings, one of which they feared and stood in terrible awe of. He wielded those forces against which human strength proved helpless ; he had to be appeased and reconciled, and was therefore the recipient of all gifts and sacrifices. This dispenser of evil is represented in all pagan dispensations and religious systems, and he has not disap- peared from our churches to-day yet, where he figures promi- nently under the name of the devil. The idea of a personal prince of evil is purely pagan, and its occurrence in the Jewish and Christian religious systems is due to a transfer thereto from pagan sources. The God of the Old Testament confers himself the blessings and inflicts the punishments; the same divine Being who appears to Abraham and selects him as the father of a great nation, de- crees the destruction of Sodom and Gomorrah ; the God who 472 "malleus maleficaeum." — the witch's hammer. sends Moses on his mission as the deliverer of a nation from the yoke of slavery, sends the plagues on the stubborn Egyptians. In fact, the sole foundation of the Mosaic dis- pensation is the doctrine of One God, as the dispenser of good and evil, who holds in the hollow of His hand the fate of nations. It was generally assumed that the Jews, during tlieir so- journ in Babylon, became so intimately acquainted with the Zoroastrian system, that they adopted the foreign Satan with his entire household, which' of course includes the belief in evil spirits, in the power of a fallen angel, and the possibility of man to form connections with these spirits. The Ahriman of the Persian became the Satan of the Jews, and subse- quently the Devil of the Christians. The belief, however, in a devil, in evil spirits, in magic and witchcraft, could never obtain a lasting foothold amongst the Jews. The Bible al- ready says, " There is no evil presentiment in Jacob, no sor- cery in Israel," and the Jewish philosophers declaimed with great earnestness against such a belief as a folly and absurd- ity. They were in the habit of applying tlie strictest logic in their metaphysical speculations. I may quote here as a re- markable evidence of the assertion which I made, a passage from one of the greatest Jewish thinkers and philosophers, whose works are still the admiration of the scholar. Mai- monides, in his treatise on Idolatry, chap, xi., remarks as follows : " These things (witchcraft, belief in demons, inter- course with evil spirits) are all palpable lies, witli which the worshipers of idols induced the masses to follow their lead. Jews must not believe in them ; they are too wise to indulge in such follies. They must not think that there is some sub- stance in it because the subject is mentioned in. the Scrip- tures, ' There is no presentiment in Jacob and no sorcery in Israel.' Those that believe in it and similar things, as some- thing essential and possible of accomplishment because the Scripture includes them in its prohibitory enactments, are fools whose minds are unsound. Wise men know by unmis- takable proofs that these prohibitions refer only to a prev a "malleus maleficarum." — THE witoh's hammee. 473 lent folly, and the Torah warns against them." These are the words of a Jewish thinker who lived as early as the twelfth century. In the Christian dispensation the devil became an impor- tant personage, and those that permitted themselves to fall in the meshes of the archfiend of human perfection were doomed to perdition. However, the belief in the efficiency of witchcraft and the injurious power of witches is of later growth. This mania could only assume such gigantic dimen- sions in an age in which the germs of mediaeval ignorance budded forth with all the luxuriance which a soil could offer that was fertilized by the supernaturalism and miracle-wor- ship of an ignorant and corrupt priesthood. The belief in witchcraft is already indicated by St. Augustine, who in one of his works said : " The sorcerers live in a certain com- munion with demons, and, as it were, have a covenant with them." Simultaneously with the growing cultivation of saint and relic worship in the eighth, ninth, and tenth centuries, the be- lief in witchcraft became more general. The first instance in which females were accused of witchcraft, occurred in the twelfth century. The crowning of Richard Oceur de Lion was preceded by a proclamation forbidding the presence of Jews and women, the latter, because they were suspected of practis- ing witchcraft. In the works of Geuvasius Hilberiensis, and of Gsesarius Heisterbacensis,* who wrote in the beginning of the thirteenth century, the growing belief in witchcraft is distint- ly reflected ; the former speaks of impure devils, of female and male demons who incite boys and girls to commit acts of indecency. In one place he says : " I know women in my neighborhood, who confidently asserted that at night, when their husbands were asleep, in the assembly of witches they soared in rapid flight over the sea and passed over the world. Those who pronounced the name of Christ, no matter at what 'Gervasii in Hilheriens's Otia imperialiam Leibnitz Scripfoi,£™«stiif, torn. i.— CoBsaris Seisterbacensis Libri XII., de miracvlis et visionibus siio iempora in ffermaniafactia in Betrandi Tissier bibliotheca patrum cisterciensum. 474 "MALLEUS MALEFICAEU.M." — ^I'HE WITOH's HAMMElt place, however great the danger, tumble down. I have seen a woman in the kingdom of Arelat, a native of Beaucaire, who fell into the water of the Bhone, from a like cause ; she came home at midnight, her body soaked through, without fatal ef- fect, hxit much depressed with fear." The evil became greater, the malady increased as soon as heresy and sorcery were con- founded with each other. A number of old women were burned in Treves between the years ,1230—1240, charged with having visited the scorpion. At that time the belief arose that the devil assumed the Ishape and form of certain animals, in which he appeared to his falithful devotees. The cat has been very unfortunate, as being notably suspected of serving the devil and li'S servants as a convenient disguise, and there are thousands and thousands of people to-day, yet, who look upon a black cat with superstitious awe. In the fourteenth cen- tury the mania became alreiady so strong as to find a place in the judicial proceedings ; witches and sorcerers were hamied over to the jurisdiction of the court, and ecclesiastics as well ■ as worldly potentates made the utmost use of it, if they de- sired to rid themselves of linpleasant and troublesome per- sonages. The most celebrated procedure was that Against the Knight Templars, an order which had rendered great, ser- vices to the church militant. Their members had the repu- tation of leading a life of singular purity. Philip the Beau- tiful conceived a prejudice against the order ; he feared their influence and coveted their wealth, and he resolved to sup- press them. Their oflicers were charged with having repudi- ated God and Christ; with having served the devil and prac- tised sorcery. They were put to the rack, and while under torture confessed having committed the crime ; only their Grand Master, James de Molay, and Gui, remained firm to the last. Fifty-nine of them were .put to death in one day, by being roasted alive at a slow fire. The trial lasted from 1309-1 313. Another illustrious victim of this mania was the renowned heroine of Orleans. She was burned in 1431, at Kouen, having been condemned as a witch The sentence against that noble woman, who had rendered such signal ser- "MALLEUS MALEFIC.VEUM."— THE WITCH'S HAJIJVIEE. 475 vices to her country, was pronounced by the Theological Fac- ulty of Paris, who at that time were the leaders of thought and morality. Time does not permit me to dwell longer on the period pre- ceding that of the introduction of the " witch's hammer." The belief in the power of witches, in witchcraft, demons, were-wolves, vampires, and all the various shades of a dis- eased imagination, was the growth of many centuries. But it was in 1484 that the seal of ecclesiastical authority was stamped upon it, in the celebrated bull issued by Innocen- tius VIII. This pope, a man without culture and of dissi- pated habits, was induced to publish that edict at the request of German inquisitors, who, on the part of the bishops and civil authorities, met with difficulties in their examination and condemnation of persons, suspected of witchcraft. "There are persons," the bull reads, "who want to know more than would be necessary, who even have the audacity to maintain that people dare not be punished for such crimes." This bull, which fbrmally establishes the proced- ure against witches, says : " We have lately been informed, not without great sorrow, that in some portions of Upper Germany, in the provinces and parishes of Mayence, Col- ogne, Treves, Salzburg, and Bremen, in towns and villages, are found persons of both sexes who, unmindful of their own salvation, have fallen away Jrom the true faith ; they cohabit with demoniac incubea and succubes ; they injure and ruin, choke and destroy by magic means and witli the assistance of the devil, new-born infants, the young of ani- mals, the fruits of the earth, the grapes of the vineyards, the fruits of trees, yea, men, domestic and other animals, vineyards, orchards, meadows, places of pasturage, seeds, cereals, and other produce of the soil; they torture men, women and cattle with violent, interior and exterior pains, make men impotent, and hinder women in bringing forth, and prevent both in the perfotmance of their connubial obh- gations." Power and authority is then given to three monks, Henty Institor, Jacob Sprenger, and John Gremper, to spy 476 "malleus malehcaeum." — the witch's hammer. out the crimes of sorcery, to punish and exterminate it wherever found. Bishop Albrecht, of Strassburg, is com- manded to give protection to the inquisitors, and to punish each and all that might seek to lay an impediment in their way, that would contjadict pr oppose them, whatever their office, dignity, position, nobility, or station might be. This papal instrument was the most terrible weapon in the hands o| the fanatical and bloodthirsty inquisitors ; there is no better evidence of the fiendish cruelty with which they used the power conferred upon them than the Malleus Mule- ficarum, a code" of laws according to which those suspected of witchcraft were to be adjudged. The first edition of that remarkable book was published in Cologne in 1489, five years after the publication of the papal bull. A second edition followed thereafter in 1494. Pour more editions were pub- lished, of which the last was printed in Frankfort, in 1580. The " Witch's Hammer " is divided into three parts. The first part disposes of eighteen questions relating to witch- craft in general ; of the effects produced by the devil through the medium of witches ; of children that are the offspring of demons ; of witches and the manner in which they injure the people ; of the sexual intercourse ; of the metamorphosis into animal forms; of witchcraft-practicing midwives, who in- jure the fruit in the womb, procure premature births, and consecrate the infants to the devil. Sprenger was evidently no friend of the female sex. The sixth question of the first part of the book contains an elaborate treatise on the pre- dominant inclination of females toward the practice of witch- craft. He displays all his erudition and logic in order to establish his assertion ; ' he quotes from pagan writers, from Scripture, and the fathers, in proof of the vices and weak- nesses of women. Three things, he says, are incapable of practicing moderation : the tongue, the priest, and woman Speaking of divorce, he says : " It is not advisable to maiTy ; because what else is woman but the enemy of friendship, an tmavoidable punishment, a necessary evil, a natural temp- tation, a desirable evil, a domestic danger, an enjoyable "MALLEUS MALEFICARUM." — THE WITCH'S HAMMER. 477 injury, an evil of nature covered with beautiful colors. " Af- ter such an introduction, and remarking en passant that there are exceptions to the rule, he gives his argument why women are given more readily to the practice of witchcraft than men. Women are more credulous, he says ; they are consti- tuted of less tough material, in consequence of which they can more easily be imposed upon ; they have a slippery tongue, are hasty in their conclusions, quarrelsome, and envioiis. In the second part of the " Hammer " he treats of the means of guarding one's self against the different snares and effects of the witches. This fills sixteen chapters, and the questions how the spell of witchcraft can be broken, solved, and nullified, occupy eight chapters. The third part of the "Hammer" forms the procedure proper. This part is divided into thirty-five chapters or questions. They are the more important because they were the basis of all future regulations in the treatment of witches. The first question is, how the prosecution is to be instituted. The judge may, without any formal complaint, without in- formation, on the mere rumor that witches live in such and such a place, institute puoceedings ex qffldo. Regarding the number of witnesses required, the rule is laid down that in the mouth of two or three witnesses the truth may be found. The judges, however, are exhorted to practice caution. The third question, whether a judge may summon witnesses, compel them to make oath as to the truth of their testi- mony, whether he may subject them repeatedly to give testi- mony, is answered in the affirmative. The fourth , question is, What must be the character of the witnesses ? There may be admitted as witnesses, people under the ban of ex- communication, accomplices, persons having committed an infamous crime, runaway, good-for-nothing servants, even -heretics aga,inst heretics, witch against witch, wife against husband, children against parents, sisters and brothers against sisters and brothers. According to the fifth ques- tion, it is established that enemies who were proven to have ,478 "malleus malefigarum." — the -witch's- hammer. sought the life of the accused, are not admissible as com- plainants or witnesses, but if the enmity is not of a deathly intensity, the testimonj- may be admitted as of semi-validity j but if in corroboration of the testimony of another' witness, it is of full import. Among the questions to be submitted to the witnesses and the accused occur the following : Whether she knew that people considered her a witch ? Why she showed herself in the stable or in the field ? Why she touched the piece of cattle or one of the children ? How it happened that immediately thereafter they were struck with disease ? What business she had in the field when the thunderstorm arose ? How it happened that her cow gave more milk than four or six cows of other people taken to- gether ? Also the following questions : Whether she set houses on fire by means of conjuration? Whether she dared to bring on thunder, hail, and stormwind? Whether she had the audacity to poison the air, the water, and the pasturage? Whether she did not produce impotency and prevented women from bringing forth? Whether she did not ride into the cellar with her companions and spill and spoil the wine ? Who the persons were that she instructed in witchcraft and sorcery? In what manner she rode to her nocturnal meet- ings with the demons ? The seventh question treats of the subject, whether the accused is to be adjudged a witch, and what evidence was required to declare her a convicted witch. JTo the eighth question, — how the witch is to be brought into arrest, — the advice is given to lift her from the ground as soon as you obtain a hold of her, that her heels do not touch the ground, by which means she might secure her liberty. In section nine it is decided that it is left to the discretion of the judge whether to give to the accused the names of the witnesses to be brought forward or not. From the answer given to the tenth question : How the defence is to be regulated, and whether an advocate is to be admitted, we ascertain the dan- ger that attended those who undertook the defence of a *' MALLEUS MALEKICAEUM." — THE WITCH's HAMMER. 479 witch. If the advocate defended his cHent accused of heresy •with greater vigor than was judged proper, he himself was subject to an indictment? The eleventh section provides, in case the names of the witnesses are withheld, how the advocate is to conduct the defence. The twelfth question is : How a mortal enmity is to be ascertained ? The judges are admonished not to hesitate in resorting to any trick or subterfuge in order to embarrass the culprit and to confuse her ; they are told that in the interest of religion everything is permitted. I mention yet the following head- ings of ^the questions treated : How the judge is to act before the process of torture is actually begun ; how far it is to be proceeded with on the first day, and whether the promise of life may be held out to her, in order to induce her to make a voluntary confession. The next chapter is on the continuation of torture, by what signs and marks the judge may recognize the witch ; what precautions are required against the influence of the witch under torture ; and how her silence, the effect of witch- craft, may be broken. Another chapter treats of the time and the mode of proced- ure on the second trial. Speaking of the means of purifica- tion of which a witch may make use, the fire test is advised against, because the devil is a thorough adept in the science of herbs, and he may give her some decoction of herbs that protects against the effect of fire. I will not tire you with a further description of the various subjects treated of ; enough has been gi-v'en to show that there is no more humiliating evidence in history of the deep fall of human intellect, if it abdicates its throne in favor of an idea or a conception on the authority of mortal man alone. This code, written in blood, was the legal instrument under the authority of which thousands of human beings were sacrificed to the idol of superstition and ecclesiastical fanaticism. It demanded its victims in every civilized country : even in the age of Shakes- peare, under the -rule of so enlightened a ruler as Queen 480 "malleus maleficabum." — the witch's hammer. Elizabeth, the tribunal for the trial of witches was kept in full blast under the legal protection of the government. The mania of witchcraft had such full possession of soci- ety, that the best and most enlightened of the race were under its ban. It was held in such horror and dread, that the crime of witchcraft was deprived of those privileges which the law granted to the worst criminals. Judges and inquisitors not only deemed it permissible, but mandatory, to disregard the usual forms of judicial procedure, and to treat the unfortunate victims of a deluded society with inhu- man cruelty. Old women, idiats, lunatics, were in the great- est danger of becoming the subjects of fear, and of being de- nounced as witches. Nor was it advisable to express a free thought ; a heretic was equivalent to a sorcerer. Once de- nounced and on the black list, the victim could only escape by a miracle. The zeal of the witch-hunters had no bounds. The bigots had the sympathies of the people, and an auto-da-fe was one of the greatest amusements and diversions of the period. It is almost incredible to what an extent the poison of moral disease may spread and affect a whole community. The dis- ease has not died out yet. It is only a few years since a Catholic priest in Bohemia wrote a work on exorcism, and the baptismal ritual in many a religious sect contains the formula of exorcism. If the information is correct, witches were burned in Mexico a few weeks ago, and it is impossible to say that at some future period some deceived fanatic may not infect a whole community, and induce them to revive temporarily the horrors of the old belief in witchcraft, de- mons, spirits and the like. These moral epidemics spread with an inconceivable ra- pidity and affect communities otherwise not given to credulity. Did we not witness in this country the persecution of a "class of people, the Freemasons, by the whole community, because some persons spread the report that they were dangerous to society in general ? Do not thousands of people pilgrim to out-of-the-way places because a foolish girl with an unusually " MALLEUS JIAIJEFICABUM." — THE WITCH's HAMMER. 481 fervid imagination claims to have seen or been in communi- cation with heavenly beings ? Is not miracle worship recog- nized yet as a religious worship compatible with our age, our ideas, our advanced civilization ? Hygienic measures, quarantine regulations cannot stop the sources of these diseases ; they can only be eradicated by clearing the soil in which they alone can prosper, that of credulity and ignorance; education and knowledge are the only agents that can purify the atmosphere in which such abnor- mal appearances are possible. If I am permitted, I will at some future time give a sketch of the history of the period" of the persecution of witches, the character of the various delu- sions under which the various communities seemed to labor; and of the pseudo-sciences that for a long time figured in the annals of culture as a real knowledge, such as alchemy, magic, kabbalah, and others. It requires a cooler tempera- ture to dive elaborately into subjects that exhaust the pa- tience of the audience as well as of the lecturer. THIRD INAUGURAL ADDRESS . OF CLARK BELL, Esq.* Gentlemen : — It would be impossible for me to conceal from you my high appreciation of the very great honor and distinction which has been conferred upon me by the Med- ico-Legal Society of New York, in calling me again, for the third time, into its chief seat, and of that kindness which has marked this act on your part with such unanimity that it will always be remembered and cherished by me with the liveliest gratification and gratitude. In assuming again the responsibilities and duties of your presiding officer, I cannot forbear to thank you all for that great and uniform encouragement and support which has everywhere and on all hands among you been extended to me ; which has invested my duties and efforts on your behalf with such a charm, that it has lightened and lessened the labors of my office, and on many occasions rendered them a delight and a pleasure. Membeks. I congratulate you, gentlemen of the society, on the acces- sions that have been made to the roll of your membership during the year that has just closed. The present roll of resident or active members of this society now contains 348 names. The death of Alfred Vogel, of the University of Russia, •leaves fourteen names on the roll of your honorary members, with six vacancies ; in fiUing these great care should be ob- * Delivered November 27th, 1874. 482 THIRD IXAtJUUKAL ADDRESS OF CLARK BELL, ESC,). 483 served by this society, as it should be made a position of great distinction and worth. Your roll of corresponding members now numbers twenty- nine. I take great pleasure in recommending for honorary mem- bership, MM. Guerard, member of the Academy of Medicine of Paris, France, who was elected president of the Societe de Medecine Legale de Paris, in December, 1872, and who was one of the original founders of that Society, which was organized in February, 1868. MM. Guerard has always been an active and conspicuous member of that body for years before his election to the presidency, a member of its permanent commission, and a physician of distinction in the city of Paris, who has devoted no little of his time to the study and solution of questions involved in the science of medical jurisprudence. Labors op the Year. During the past year this society has accomplished no lit- tle work. The discussions that have occurred at your ses- sions, and the varied and useful labors in which you have been engaged, have been such as to maintain the high stand- ard you have hitherto established. One of its most important labors has been the compilation- and publication in a' bound volume of some of the earlier papers read before this society, with a historical statement of its origin, rise and progress. This interesting and valuable result has been accomplished under the care, supervision, and labors of a committee of your body, and is -just published by J. R. McDivitt, Esq;, one of the most enterprising of the law publishers of New York, who furnishes it to members at the wholesale price, under an arrangement originally made with him by this society. The present volume, which wUl well repay your purchase and preservation, and which confessedly must enrich the 484 THIRD INAUGURAL ADDKESK OF CLABK BELL, ESQ. literature of medical jurisprudence, will be followed during the coming year by another and similar one of a like char- acter, which will bring out the papers read before the society that have passed the committee on publication down to about the present time. I esteem this work an important and not- able part of the labors of this society, of very great value upon medico-legal questions, thus made accessible to the world, and I particularly commend it to every member of the society, as meriting his countenance, support and encour- agement, so that these publications may become a permanent and established feature in the future of this organization. The thanks, as well as the inaterial support, of members are eminently and properly due to the enterprising publisher, and I can not dismiss this subject from your consideration without also publicly thanking in your name our worthy member, R. S. Guernsey, Esq., who has devoted great pains, time and labor to the successful accomplishment of this very important result. Library. I owe you all apologies for great neglect of my duty in not presenting more forcibly and persistently the cause and the merits of your library, which has been duly organized and started upon a successful basis, since I first had the honor of assuming the chair of this society. The contributions from members in money and volumes have continued in a way that assures us of the ultimate suc- cess of the effort, but are not equal to nor commensurate with the hopes or desires of your president, nor the impor- tance and merits of the enterprise itself. When gentlemen reflect that so small a sum of money as $5,000 would immediately, and probably within the present year, enable us to purchase nearly every work on these sub- jects, and aggregate the best library of medical jurisprudence that could be found anywhere, I am obliged by what I con- sider my duty to call upon you, gentlemen of the society, to THIRD INAUGUKAL ADDRESS OF CLARK BELL, ESQ. 485 again take into consideration the propriety of raising this sum, either at once or speedily. If it is thought advisable for any reason not to attempt it all now, let one-half be raised the present, the residue the ensuing year. There are certainly men enough now among our own numbers who, if they could be induced to make the effort, would at once raise this sum, without an appeal to the two professions outside of our membership. But so grave is the imperative and immediate necessity for a complete and comprehensive library in this city, which should embrace every known work on medical jurisprudence or its kindred topics, particularly in the English, French and German tongues, that this society cannot be true to itself or its duties if it neglects to secure the early accom- plishment of this very desirable result. If this society should feel justified in permitting the gen- eral public to co-operate with its members in this work, under some arrangement by which every contributor of a bound volume accepted by the society should be entitled to the use of and access to the library, it would probably add a considerable number of works each year to the shelves of the library, if it did not immediately accomplish the desired purpose. The general resolution originally adopted at the time the library was founded, making it the duty of every member to contribute annually at least one bound volume thereto, has been of very great value and importance in adding to its cat- alogue. Quite a considerable number of our members have, with great care and punctuality, attended to the discharge of this duty, whose contributions have been acknowledged from time to time, but your president regrets that he is compelled to report that a large number of members are delinquent in this very important respect. Allow me, in closing this part of my remarks, to remind members that if this duty was promp'tly and annually dis- charged by- every member of this society, a few years would 486 THIRD INAUGURAL ADDRESS OF CLARK BEIi, ESQ. give US a library on medical jurisprudence alone, second to none in the world, even though no immediate steps were taken at once to secure these volumes by an appeal extraor- dinary, as at first suggested. Let -every member, then, who has neglected to send the volumes, attend to it at once, and add to a library which has already become quite valuable, and is probably now the best in this country for reference on these subjects. I append a list of contributions of voltimes and money contributed since my last announcement, with the names of the contributors. Legislation. The changes that have been made in the laws of this State, during the past year, are of the very gravest character concerning the custody, care and treatment of the insane, and the trials of insane persons, especially where the defense of insanity is interposed. The prominence that has been given to the discussion of these varied questions in this society has ha,d a large influ- ence upon this legislation, while the labors of a very distin- guished gentleman, aliejiist, and an honorary member of this' society, have propably been more immediately instrumental in securing these changes than aU other causes combined. The codification of the statutes of the State, upon this subject, as this legislation was styled, for which we are so much indebted to the services of Professor John Ordronaux, embrace radical and fundamental changes in the whole sys- tem, and revolutionized from beginning to end the whole theory and practice in such cases. The evils that had been charged upon the old system, of the commitment of persons alleged to be lunatics to an asy- lum, and the wide spread conviction that under the former system gross abuses might have been and were sometimes practiced, were probably causes for an excited public opinion that demanded a change and inclined to one that should THIBD INAU(iUBAI< ADDKESh OF OLAKK BELL, ESQ. 487 throw greater safeguards around the liberty of the citizen, and make it more difficult if not practically impossible to cause the incarceration improperly of any person as an al- leged lunatic, who was really of sound mind. While the practical working of the new law is at first criti- cised severely by medical men and practitioners, as being al- most impracticable and unnecessarily difficult, and doubtful in cases of insanity, where prompt action is necessary, it may weU be claimed that a fair trial of the new plan should be made, with patience, with care and without feeling, before we condemn it finally and demand its revision or its repeal. Passing all the multifarious detail of the many, changes made by this important statute, it may be well to allude briefly to the radical one in relation to the plea of insanity by or in behalf of persons charged with crime in the criminal courts. It was a matter of grave concern, in the administration of justice in the courts, for the punishment of offences, whether the defence of insanity,, so often interposed as a plea in de- fence or justification of alleged crimes, was not undermining public confidence in the administration of justice, by its well known abuses, and by its being used improperly for the es- cape and acquittal of well-known criminals, of acknowledged or generally accredited guilt. The very great uncertainty that immediately surrounded a capital case, when this de- fence was interposed and insisted upon, was well known, and had resulted in a gradual withdrawal of public confidence in the then existing laws upon this subject. The change made in the new statute strikes at the root of the whole evU. It practically does away with the defence of insanity, if formally pleaded as a defence to the indict- ment, or attempts to do so completely. To guard against the conviction and punishment of insane persons, the old statute is re-enacted and perfected so as to have an investigation into the sanity or insanity of the ac- cused, as a. separate and independent proceeding from the trial of the indictment ; and thus leave the question of the 488 THIRD INAUGURAL ADDRESS OF CLARK BELL, ESQ. guilt or innocence of the accused to be tried by itself, if the indictment ever comes to be tried, which in the case of an alleged lunatic must always follow such a preliminary inves- tigation. I regard it my duty merely to advert to this comprehensive and remarkable change in the law of this State, which is thus put upon trial before the eye of the whole nation. If the workings ojE this law shall upon trial be on the whole fairly decided to be an improvement upon the old and previously existing systems, it cannot fail to have a verj' prominent and beneficent effect in initiating similar changes in the laws of other States. But gentlemen should not be in too great haste, nor im- patient of a little delay before arriving at positive opinions, particularly if against the change now inaugurated, until a fair trial and test of its workings can be had. It is not impropable that before a definite and decisive solution' of the question involved can be safely reached, some miuor changes, suggested by trial and experience, may be necessary, and the aid of the Legislature invoked to give the proposed plan a perfectly fair trial. That the impox'tant step has been taken, that the new sys- tem is now really upon its trial, no matter how much of in- quiry or criticism it niay excite and awaken, cannot but be a source of congratulation to the Medico-Legal Society of New York, nor to the thoughtful men of this society, who have been interested and engaged in the discussions and questions therein involved, and who have taken part in the passage of the new statutes. Other Societies. We have received, during the past year, the publications of "La Societe Medico-Legale de Paris," with whom this society is proud and happy to continue on terms of most friendly intercourse, and in correspondence. The volume, of .some 500 pages, issued by our sister society THIRD INAUGURAL ADDRESS OF CLARK BELL, ESQ. 489 of Paris, being Bulletin, Tome 2, contains records of the years 1870-1872, commencing with the address pronounced by M. Devergie, at the February session of that society in 1870 on the occasion of his retiring from the Presidency, and the Inauguration Address of his successor, M. Beheir, on the occasion of his accession to that office. The volume, closing with the election of M. Guerard to the presidency, in December, 1872, may be called the record of the notable transactions of that society, during the two years of the presidency of M. Beheir, one of the most dis- tinguished of its members, and an honorary member of this society. This volume, the fruit of its labors, is most valua- ble, and reflects the very highest credit upon that body. It is a most notable and briUia.nt monument of the value and importance of that society in the French capital, and to the progress of scientific investigation upon medico-legal ques- tions abroad. As this work is not yet translated into English, and I am not aware that any other copy has come to our members save the one sent to this society and now in my hands, I trust you will bear with me, while I allude briefly to the general character and work of our sister society in Paris for the period since December, 1872. The Medico-Legal Society of Paris has investigated on various occasions, through a committee of its members duly appointed by the society or its president, interesting ques- tions upon very many subjects, as they have arisen from time to time, in France, either in the civil or criminal courts, or from their own correspondents ; some of the most inter- esting cases of poisoning, of infanticide, of medico-legal discoveries concerning blood, of tattooing, upon the question of identity on a mutilated dead body, many of which have been discussed with great skill and ability, and are therein chronicled. The work also contains most valuable and interesting pa- pers, reports upon the French law of insanity, and reviews of legal proceedings where medico-legal questions were raised and discussed. 490 'rHIli]) INAU*ion. The 30th section of article second of this law provides that " Wheoever any person in confinement under indictment for the cryne of murder, etc., desires to offer the plea of insanity, as a general traverse, and his whole defence to such an indict- ment, he shall present such plea at the time of his arraign- ment, and at no other stage of the trial but this shall such plea or defence be received or entertained by the court ; and the court before whom such trial is pending shall have power, with the concurrence of the presiding judge thereof, to ap- point a commission to examine such person, and to inquire and report to the court aforesaid upon the fact of his mental sanity AT THE DATE OF THE OFFENCE With whicli he stands charged. The commission aforesaid shall institute a careful investiga- tion, call such witnesses as may be necessary, and for that pur- pose is fully empowered to compd the attendance of witnesses." 518 HINTS FOK LEGISLATIVE EEFOBM. " Upon the report of said commission, if the court before whom such indictment is pending shall find that such person was insane and irresponsible at the date of the offence with which he stands charged, the court aforesaid shall order his re- moval to some State lunatic asylum, there to remain for obser- vation and treatment until such time as. in the opinion of a justice of the Supreme Court, it is safe, legal, aud right to dis- charge him." Now my objection to this section is, that it palpably infringes the constitution of this State, and of the United States, by interfering with, and depriving an accused person of, that venerable and sacred institution, as it is called, of a trial by jury ; and that it is therefore entirely il- legal and void It says in substance that when an accused person tenders the defence of insanity, which he must do at the time of his arraignment, the court shall appoint q commission to examine such person, and to report to the court whether he was sane at the time of committing the offence. If the commission finds that he was insane at that lime, the court shall order his removal to some State lunatic asylum, there to remain until, in the opinion of a justice of the Supreme Court, it is safe, legal, and right to discharge him I say this provision is palpably unconstitutional and void, because it substitutes a commission for a jury of twelve men. , It is true that under the common law the courts have claimed aud exercised the power of dieievmining preliminarily by commission as to whether a prisoner was insane and ubfit to be tried, and o^t of the same humane and benign spirit they have also examined by the same means into the same question after judgment, because the law would never execute its decrees upon an insane man, on the familiar pre- sumption that although convicted he might still have some- thing to say why judgment should not be pronounced and carried into effect. But this law of 1874 substitutes a commission for a jury up- on the principal and main trial, and places it in the power of HINTS FOR LEGISLATIVE BEFOKM. 519 that body, whose number and character are alike indefinite and uncertain, not merely to inquire whether the accused is insane in prcesenti, so as to be unfit to be tried, or sentenced, etc., but it empowers the commission to determine his condi- tion at the time the offence icas committed. Now, " insanity " is as good, and as well recognized a de- fence to an indictment as any other known to the law ; it is based upon the ivant of ivill; without which no crime can be committed. It has its origin and source out of the same gen- eral fountain-head from which all criminal pleas flow— in- fancy, self-defence — in all of which cases, from different rea- sons, the will does not join with the act. And it follows, therefore, that the legislature has as much power to say that when a person interposes the defence of an ahbi or infancy, it should be referred to a commission, as it has to say that insanity should be so treated. Then the commission is authorized to examine the accused. If this means an interrogation — and such an expression doubt- less includes such an idea — it is unconstitutional for the ad- ditional reason that that instrument declares that a criminal can never be forced to testify in his own case. Accusare nemo debet se nisi coram Deo. It is no answer to these objections to say that a judge who appoints a commission will always nominate twelve men, for by the statute he has the power to appoint less — no number being mentioned — it invests him with an arbitrary discretion which he would be justified in following. Besides, the law conbemplates a jury selected in the proper way — not by a judge — daly drd,wn for that purpose — it gives the right of challenge — it says that the accused must be pres- ent, and judged by well-settled rules of evidence — all of which barriers are swept away before the power of a star-chamber, inquisition-like, commission. Then suppose the accused is found to have been sane at the time of the commission of the offence ? The statute does not provide for such an occurrence. What will prevent the de- fendant from insisting that the determination and conclusion 520 HINTS FOB LEGISLATIVE BEFOEM. of the commission are erroneous and trying the whole ques- tion over again ? It is a well-settled rule of law that the report of a commis- sion of lunacy can always be shown to be erroneous, and un- founded. No, gentlemen, like Hamlet's offences, " there are more ob- jections to this law than I have thoughts to put them in or imagination to give them scope " — objections as fatal to this legislation as strychnine is to the human system. Convict a man under such a law, and the judgment, when it comes to be examined by a cool, contemplative, unbiassed court of re- view, will be as worthless as the paper which it soils. And yet the people constantly cry out that the machinery of justice works slowly and produces uVireliable, unsatisfac- tory and uncertain results. Do they piuse to inquire where the fault is? Do they know that hasty, reckless, ignorant legislation is the true cause of all the trouble ? That it is not in the administration of the law, with its forms and processes nicely and exquisitely adapted to ascertain and mete out justice to its subjects, that the fault is to be found, but that the blame should be traced to the men who seek to handle subjects which they do not understand, and who are called legislators. Nor is there any just reason, — returning again to the sub- ject, — why there should be any different system and form adopted in cases where insafiity is presented as a legal barrier to conviction than any other known and accepted defence. Has this defence been perverted and misused ? Has it been used as a cloak by which criminals have escaped, so that it is sickening and nauseating in the sight of the people ? That would be no reason. Look at the defence of an " alibi " — to prove which perjuries have been heaped upon perjuries, mountain high, and yet no language can be found sufficiently deep with meaning to express the injustice and inhumanity which would prompt the people to deprive a man of the privilege of showing that he was not present at a time HINTS FOR LEGISLATIVE REFOEM. 521 alleged, and could not have committed the offence alleged against him. Where, again, is the fault to be ascribed which has brought this defence of insanity into disrepute ? Does it not originate out of a class of cases where a strange sentiment of honor prompts a husband, a brother, a father to shoot down the seducer of his wife, or sister, or child ? And do not the men who cry out against the defence of in- sanity go into the jury-box and acquit that class of criminals, who are perfectly sane and clear-headed, in deference to this sentiment ? Charge not, then, upon the forms and administrations of the . law defects which the makers of the law — the people — them- selves occasion. And change not the machinery of the law, which is adapted to all conditions and phases of society, because the people cry out against the evils of which they are the authors. One more suggestion and I am done. It is, that the legis- lature should confer upon the courts the power to grant new trials on the merits in criminal cases. ^ As the law now stands, the courts are powerless to grant new trials, no matter how contrary to the evidence, truth and justice the verdict may be. And this rule is grounded upon a supposed assimilation of our criminal courts with the crim- inal courts in England, which, in my estimation, is entirely false and unfounded. The courts now only have power to grant new trials in crim- inal cases where an error of law has been committed by the judge ; but for the errors, mistakes, or ignorance of juries there is no redress or appeal. In a civil case involving any question of property, no matter how insignificant, the courts have the power to grant new trials on the merits ; but in an issue involving a human life, or the happiness, good name, or liberty of a citizen, they are powerless to interfere. This presents a spectacle at once inconsistent and anoma- lous, utterly indefensible, and calls for prompt redress. 522 HINTS FOK LEGISLATIVE EEFOEM. Only a few years ago a man might be convicted, and there was no power to grant new trials, even though an error of law might have been, committed. That was remedied, how- ever, and a bill of exceptions was introduced — to this day unknown in England in a criminal case — and a defendant was allowed to present his case to be reviewed upon questions of law. All that is wanting now to make the law harmonious is to confer upon the courts the power to set- aside verdicts when contrary to the facts. It is not enough that the Governor has the power to prevent very great injustice by the exercise of the pardon- ing power. In the case of Foster, Governor Dix refused to interfere, although the jurors, in recommending the pris* oner to mercy, swore that they would not have consented to have rendered any verdict which would deprive the man of his life. A citizen who is innocent has a fundamental right to be de- clared so by the proper legal tribunal, and he should not be thrown upon the mercy of an executive to beg for that to which he is entitled as a matter of right. The judicial records contain many cases where the courts have interfered to set aside verdicts of juries in civil cases, rendered against the evidence, under the pressure of strong prejudice and excitement. How much more strong the reason for conferring this power upon them in criminal cases, about the details of which the community is generally roused to the highest pitch of inter- est, and where there is so much danger — especially in these times when men are allowed to sit as jurors who have previ- ously formed and expressed opinions — of juries being led astray by prejudice and passion ? We want some competent and impartial tribunal to stand as a barrier between an accused person and an excited and indignant populace, with power to set aside as for naught, re- sults which are manifestly unjust and erroneous. You have it in civil suits. I say abolish the unjust dis- HINTS FOB LEGISLATIVE EEFOEM. 523 crimination and confer it in criminal cases ; for as long as human life is of as much importance as inanimate things, and personal liberty is of equal value with money, the discrim- ination is untenable and cruel. The statistics are unusually interesting and forcible upon these subjects— it would seem irresistible. There are forty criminal cases reported iu ten of the last volumes of our Court of Appeals Eeports, the highest appellate tribunal known to the law. Of this number the court reversed nineteen, and affirmed twenty-one, thus show- ing that nearly a moiety of these convicti( ns were erroneous and invalid. If this number were reversed for legal errors, is it not prob- able — nay, almost certain — that many persons are convicted upon insufficient evidence, and that the law is powerless to relieve them ? Some years ago, in a report of one of the British Commis- sioners appointed to investigate the subject, Sir Frederick Pollock states, that in a particular nine months, six persons convicted of capital crimes at the Old Bailey were, upon in- vestigation of their cases, after they had been convicted, found to be innocent The inference drawn by the commissioners fpom this inves- tigation showed that the frightful number of ten executions a year of innocent men, in the city of London, might have been prevented, if the court before whona the conviction was ob- tained could have gone into a careful examination of the grounds for a new trial. Examples are numerous here where convictions have been wrested from juries by popular excitement ; but I need not weary you with their recital. I submit, gentlemen, these suggestions, hastily put together, for your consideration. If they commend themselves to your approval, I shall feel amply compensated for the slight trouble of placing them before you. THE LAW OF RAPE/ By Jacob F. Miller, _ Esq. Rape, from raptus malierum, signifies the carnal knowledge of a woman, forcibly and agaiust her will. This crime has justly been regarded of an aggravated nature, and been visited with severe punishment. By the Jewish law it was punished with death in case the damsel was betrothed to another man; if she was not so betrothed, then a heavy fine of fifty shekels was to be paid to her father, and she was to be the wife of the ravisher all the days of his life, without the power of di- vorce. " Because he hath humbled her he may not put her away all his days." The Roman law punished the crime of rape with death and confiscation of goods Stealing away a woman from her parents or guardians, and debauching her, was equally penal whether she consented or was forced. The Roman law enter- tained such an exalted idea of the sex, that it never supposed a woman to go astray without the arts and seductions of the other sex, and therefore by punishing so severely the solici- tations of the men, it thought to secure the honor and chasti- ty of the women. The English law, with less gallantry, but with more justice and good sense, refused to punish one of the transgressors for what might have been a mutual fault, and hence' made it an essential element in the crime of rape that it must be against the woman's will. * Read at meeting of October 8, 1868. This paper was prepared by the request of many physicians who were members of the Society, and is worthy of note as being the first paper read before the Society by a lawyer and the first active part which any lawyer took in its proceedings. 524 ^a^ 3(, ^^^-^^^ THE LAW OP RAPE. 525 Rape was punished by the Saxon laws with death. This was afterwards thought too severe, and in the time of William the Conqueror, the penalty was changed to castration and loss of the eyes. In the Third Edward I, the punishment was much mitigated, and the crime was regarded simply as a tres- pass, if not prosecuted by appeal within forty days, and sub- jecting the offender to .two years' imprisonment, and a tine at the king's will. In the Thirteenth Edward I, the commission of this crime was made a felony, it being fouud that this len- ity produced such disastrous consequences. Three things are necessary to constitute the crime of rape : 1. There must be carnal knowledge ; 2. It must be done forci- bly ; 3. It must be done without the woman's consent. By the common law, to constitute carnal knowledge there fnust be not only penetration of the body of the female, but also emission of seed. But offenders so frequently escaped punishment on account of the difficulty of proving the emis- sion of seed, that it was enacted in the ninth year of the reign of George IV., that the carnal knowledge should be deemed complete on proof of penetration only ; and any penetration, even the slightest, should be deemed sufficient, even though not of such depth as to rupture the. hymen. And even though the jury negative the emission, or. the cir- cumstances proved to have been such that no emission did or could take place, carnal knowledge is complete on proof jof penetration. The amount of force required depends upon the circum- stances of the case. It is not necessary that the female should put forth all the strength of which she might be capable on other occasions, as her fears may be aroused, she may think that her life is endangered, injury may be threatened, and so, through fear, she may be easily overcome. The act must be committed aganist the woman's consent. Children under ten years of age cannot legally consent, as they are incapable of judgment and discretion. In an Eng- lish case (Euss & By. C.C. 489) it was held that if a woman be beguiled into her consent by artful means, it will not be 526 THE LAW OP BAPE. rape ; and having carnal knowledge of a married woman, under circumstances which induced her to believe it was her husband, was held by a majority of judges not to be a rape. In this case, the woman supposed her husband to be in bed with her, having fallen asleep with him in bed. She discovered by the breathing of the prisoner that it was not her husband, and immediately threw him from her. She then went and hanged herself, and was saved from death by th« skUl of her surgeon. It is difficult to see how her con- duct can be tortured into consent. Fraud vitiates every- thing in which it enters. It may form the basis of a claim against the. perpetrator of it, but never in his favor. More- over, had the woman known the prisoner was there instead of her husband, he would not have accomplished his purpose. He should not be allowed to take advantage of his own wrong. Several of the judges intimated, however, that if such a case again occurred, they would direct the jury to find f\j special verdict, with the view, no doubt, of examining the aw more carefully. The crime is not mitigated by showing that the woman at last yielded to violence, if she consented through duress or violence, or threats of murder ; nor will any subsequent acquiescence on her part remove the guilt of the ravisher. Nor is it a defence to show that the female was taken at first with her own consent, if she was afterwards forced against her will, as she has a right at any time to withhold her consent. The Roman law seems to have supposed that a prostitute could not be capable of injuries of this character. The rea- son was that, as she had no regard for her chastity, there was no crime in violating it. The common law, however, does not allow the forcing of a prostitute. It admits the possibility of her reformation, and gives her the power to withhold her consent. She has a right to her person and her liberty so long as she does not interfere with the rights of others. Formerly it was held not to be rape for a man to have forci- THE LAW OF RAPE. 527 ble connection with his concubine. This is so no longer. A man cannot be guilty of rape on his wife, for the matrimonial consent cannot be withdrawn so as to make the act criminal; but he may be indicted and punished as an abettor. All who are present, of both sexes, aiding and abetting in the perpe- tration of the crime, are principals in the second degree. When several persons are engaged, though some of them only reaUy commit the act, in the eye of the law they have all participated, and all are guilty. On a trial for rape, the prosecutrix is a competent witness. In the case of a child of tender years, her whole story which she has previously told should be receive'd, in order to test the accuracy of her recollection. The fact that a female made a complaint shortly after the crime was committed can be proved ; but not the particulars of the statement. Indeed it is important to inquire respecting the time which elapsed be- fore she made her complaint, the state of her dress, the marks of AQolence upon her person, whether she called for assist- ance, if there was a probability that any one was near enough to render it. But delay to make her complaint will not pre- judice her cause if she was under the control of the ravisher, or afraid of him. As the charge of rape is easily made and hard to defend, and the prosecutrix is the main and frequently the only wit- ness, the law allows her character and chastity to be im- peached. She may be asked whether she has not had previ- ous connection with the prisoner or with other men, and in this case she is not privileged from answering. Generally witnesses are excused from answering questions when the an- swers would degrade them, but the necessities of the case here form the ground 'of the exception. She may be shown to be a common prostitute. For while a rape may be com- mitted upon a prostitute as well as upon a virgin, yet the proof is quite different. It is easy to believe that a woman having frequently submitted to the lewd embraces of an- other, will readily repeat the act. There is a wide differ- ence between " a tenant of the stew," and the chaste female 528 THE LAW OF EAPE. who instinctively shudders at the mere thought of pollution. It is much easier to continue a course of vice, than to com- mence it. The character of the female, and the circumstances under which the act was committed, are important, as bearing upon the question of consent. The punishment for having carnal knowledge of a child under ten years of age, or a female over that age, if forced, is imprisonment in the State prison for a term of not less than ten years. The having carnal knowledge of a woman above ten years of age, without her consent, by administering any substance or liquid producing stupor or imbecility of mind or weakness of body, so as to prevent effectual resistance, is punished by imprisonment for a terin not exceeding five years. This crime is justly regarded as heinous, and deserv- ing of severe punishment. INDEX. PAGS. AbortioD, Bepoit of Gomnjittee b; Bedford. Gnnniiig S. Gerry, Elbrldge T. O'De&f James J., M. B. Bogere, Stephen, M . D. Shrady. George F., M.D. Slirady, William 30 ^Alcoholic aod (Jr£emic Poisoning and Testamentary Capacity, Paper on by Stephen Rogers. U. D 62 fAnffi&thetics.ife&ponsibillty ofadmiois- I tration of, taper on by 1 rof. F. D. ' Weisse 1<4 Amoux Wm. Henry, la er by on The Writ de Ventre In- Bpiciendo 334 Barnard, Horace, Paper by un Experts as Witnesses. . . . 354 Beach, Dr Wooster, Paper by on Homicide by Poisoning.. 4ti Beard, Dr. George M., Paper by on Belation of Age to Work 186 Bedford, Gnoning H., Beport on Criminal Abortion 30 Bell, Clartr, First Inaugural Address... 121 Second •■ •• 288 Ihird " " 482 Discussiun on Morbid Impulse 455 Calkins, Dr. Alonzo, Paper by on Penalty of Felonious Homicide 264 Ulynier, Mrreditli, M.D.. Discussion by on Morbid Impulse .. 466 Criminal Use of Proprietary or Adver- tised Nostrums, Paper on by Ely Van de Warker M.D 77 De Ventre Inspiciendo. The writ of, by Wxn. Henry Arnoux 334 Dos PasBos, John B , Paper by on Hints for Legislative Re- form 606 Kllinger, Morris, Paper by on the Witch's Hammer. . . 469 EmotioDal Insanity, Paper on by David Dudley Field 236 Epilepsy and its Belstion to Inennity, Paper on by A. O.'Kellog, MD 91 Experts as Witneses, Paper on by Horace Barnard 364 Field, David Dudley, Beport of Library Committee Ifil Paper by on Emotional Insanity 236 Portrait of 236 Gerry, Eibridge T., Beport on Crimiual Abortion 30 Guernsey, B. 8., Paper by on Juries an(J Physicians on Questions of Insanity 1^0 E'port of Library Committee 161 Letter on Age and its B>-lation to Work 211 Portrait of 180 Hammond, Dr. Wm. A , Paper by on Case of David Mont- gomery r- » 46 Bepi rt of Library Committee ....... 161 Paper on Morbid Impulse 427 Discussion by. 466 Homicide. Penalty of Felonious, Paper on by Alonzo Calkins, M.D'. 264» Insaner^ the Bights ofi Paper on by Julius Pnrigot ....«»' 416 Insanity aod Epilepsy. Paper on by A. O. Kellog, MD 91 Insanity, Juries and Physicians on Questions of, Paper on by B. S. Gnernsey 130 (See Testamentary Capacity, Epilepsy). Jacobi. Abraham, M.D. Discussion by on Morbid Impulse. . . 456 Juries and Physicians on Questions of Insanity, Paper on by B S. Guern- sey 130 Kellog. Pr, A. O., Paper by on Epilepsy and its Relation to Insanity 91 Legal Besponsibility and Accountabil- ity, Paper on by Simon Sterne .... 27 7 INBEX. PAOE. LegislatlTeBeforms, Hints for* Paper on by John B. Dos Passos 606 library Oommittee. Beport of 161 by Field, David Dudley. Guernsey. B. S. Hammond, Wm. A., M.D. Peters, John C, M.D. Bogers, Stephen, M.D. Teaman, Oeorge H . •• Malleus Vlaleficarum" (Witch's Ham- mer), Paper on by Morris BlUager. 409 Medical Legislation, Objects of. Paper oa i)y Stephen Rogers, M.D 105 Miller. Jacob J., Paper by on Rape 624 Portrait of 624 Montgomery Case, Paper on by \^ m A. Hammond, M.D. 46 Morbid Impulse .' 456 Discussion by Parsons, Dr B. L. Clymer, Dr Meredith Jacobl, Dr Abraham Bl'U, Olark Hammond, Dr. ^m. A. O'Dea, James J., M.D. Bf port ou Criminal Abortion 30 Pari^ot, Dr. Julius. Paper by on Bights of the Insaae.... 416 Parsons, Balph L., M D. Diacussian by oa Morbid Impulse. . . 465 Poisoning, Homicide by, Piiper on by Dr. Wooscer Beach 46 Peugnet, Dr. Bagene, Paper by on Medico-Legal toxicoiogy 163 Paper by on Medical Jurisprudence of the Stoles case :i94 Poisoning, Alcoholic Ursemiaand Tes- tamentary capacity, Papbr ou^y Dr. Stephen Bogers. 62' Bape, Paper on by Jacob F. Miller 524 Relation of Age to Work, Paper on by &eo. M. Beard, M.D 186 Letter on by B. S Ouernsey 211 Bogers, Dr. Stephen. Portrait of Fron tpiece In augur al.Address 1 Beport on Criminal Abortion SO Paper by on Ursemic and Alcoholic Poisoning and Testamentary Ca- pacity 62 Paper by on The Tine Object of Med- ical Legislation 105 Beport of Library Committee. 161 Shrady. Geo. F , M.D. Beport on Criminal Abortion 80 Shrady, William. Beport on Criminal Abortion 30 Spectroscope in Forensic Cases. Paper on by 8. Waterman, M.D 39 Sterne, Simon. Paper by on T egal Besponsibillty and Accountability. 277 Stobes Case, Medical Juri" prudence of. Paper ou by Eugene Peugnet. M.D.. 294 Testamentary rapacity, Uremic and Alcuhnlic Poisooing affecting Paper on by Stephen Bogers. M. D 62 Toxicology, Medico Legal, Paper on by Eugene Peugnet. M. D 163 UrEemic and Alcohslic Poisoning as af- fecting Testamentary Capacity. Paper on by Stephen Bogers. M.D. 6J Van de Warker, Dr. Ely, P&per by on Criminal use of Proprietary or Ad- vertised 'Nostr;ums 77 Waterman, Dr. S. Paper by on Spectroscope in Forensic cases 391 Weisse, Prof. P. D. faper by on Besponsibillty of an Ad- mlnistratnr of an AnsBsl-hetic 144 > Witch's Hammer, ("Malleus. Maleflca- rum "), I'aper on by Morris Ellinger 469 Teaman, Geo. H. Beport of Library Committee 161