client is in his hands, who has not mastered this department, and what are his chances of success against opponents learned in every branch and technical part of these questions? How is the lawyer competent to cross examine the medical or chemical expert, who, in a crowded practice, has to read books at night on the details of chemical questions and the field of mental medicine, matched against men who have mastered every detail of the science; and how immeasurably superior is the advocate for his work who has studied all the elementary principles before he took the case at all? The questions arising in surrogates' courts and in a large class of actions in the civil courts in life insurance, malpractice of physicians and surgeons, and analogous questions in the active practice of the busy lawyer-make it amazing that the student is not more thoroughly fitted for this portion of his duties by his preliminary education and training, and the fault is wholly that of the bar and our system, and not of the students of the law. THE JUDICIARY. But it is upon the bench that ignorance of the principles of this department of the law in its administration, and in the tribunals of justice, both civil and criminal, becomes, or is, most deplorable and reflects greatest discredit upon our system of legal education. It is a truism, and we need only state the proposition, that a judge who is to administer the law should be versed in its principles. That judge should be learned in all the learning of Medical Jurisprudence who is the expounder of the principles under which offences against the law are to be tried, investigated, and punished, and the importance of a proper elementary education in Forensic Medicine in the judges who preside over the administration of public justice is of the highest consequence to the successful administration of our judicial system in the discharge of its great duty, to punish real offenders, defend the innocent unjustly accused, and protect the rights and liberties of the citizen. I do not mean to say that a lawyer who has been elevated to the bench should decline the office because he never opened a volume that treated on Medical Jurisprudence, but he has before him the imperative and immediate duty of commencing de novo a study that should have been taught him as a student, with Blackstone and Kent, or as a part of that wider realm of the philosophy and ethics of the law, to enable him to be at all capable to sit in judgment upon questions and principles of which he was ignorant when he donned the ermine. The American judiciary have presented, in the recent past, the most conspicuous examples of distinguished ability in grappling with the questions constantly presented to public notice in medico-legal cases requiring judicial interpretation. In the twenty years to which I have alluded there has been great judicial advance and evolution, and the light that has come from. the bench has outshone and been more luminous than that from the bar. Take for example the question of the true test of responsibility in cases of homicides. committed by the insane,-the absurd and false "Right and Wrong Test" that was given at the convocation of the English judges as the sequella of the McNaughton case, which has been made the rule in England for half a century. We took it in the American States, not by inheritance, but by force of habit, notwithstanding it. was not a judicial opinion pronounced in a case pending in any court of law; no because it was the obiter dictum of one but of many judges on abstract propositions; not because of any of the circumstances in English society life and conditions, which no doubt largely influenced the English judges to agree upon such a test, which, it is quite safe to say, had not before that ever been the law of England; but because it was easy and popular and fashionable to accept a doctrine that our English cousins had agreed to accept, and so for nearly half a century this absurd doctrine has stood for the law in English-speaking countries, and insane men by the score have gone to the scaffold in England and in American States, convicted by juries under this false and erroneous test as charged by judges who followed this obiter dictum as if it were an authority. The emancipation of judicial thought from this error has been due almost wholly to the bench, and with almost a single exception to the American bench. The man who more than all is entitled to the greatest credit for this bloodless revolution is Mr. Chief-Justice Doe, of New Hampshire. His splendid opinion, which more than twenty years ago reversed the right and wrong test and commenced this emancipation of the American bench, placed New Hampshire in the vanguard of the American States on the right side of this question. I have space in this paper to name only three causes and but two or three of the men who have been most influential in this great judicial revolution. 1. The medical profession from an early day have endorsed the unanswerable logic of Chief-Justice Doe's opinion in the New Hampshire cases. may be said of his conduct in the celebrated poisoning case tried at Liverpool, which created such a sensation at home and abroad) had attracted the attention of jurists throughout the world by his masterly statement of the falsity of the right and wrong theory as then accepted in England, in his remarkable and incomparable book upon the History of the Criminal Law of England, a work which doubtless led (with his other writings) to his elevation to the English bench-this man more than any Englishman has played a most conspicuous part in this change of judicial ideas. Sir James Fitz-James Stephen may have made mistakes in the Maybrick case, but the value and brilliancy of his life and writings upon this question should lead lawyers and judges to deal leniently with his errors, if such are claimed to have been committed on that trial. 3. There is, perhaps, no more scholarly and splendid argument among all the judicial utterances regarding this absurd doctrine than the opinion of the Supreme Court of Alabama, written by Judge Henderson M. Somerville, in the cases of Parsons vs. the State, which summarizes the progress and growth of this silent evolution of judicial opinion in the intervening years since Judge Doe laid his axe at the root of the tree destined to fall under the sturdy logic of his blows, and while these results have not yet been adopted or concurred in by the judges of all the American States, nor as yet by the English judiciary as a whole, the end has come of the "Right and Wrong Test" in cases of insanity in Great Britain, and, I think, nearly so in America. In England the law officers of the crown now conduct an inquiry on their own motion in every case of doubt, with skilled 2. An English judge, who (whatever experts of the first rank, like Dr. William Orange, selected by the prosecution, frequently before the trial, and it is quite safe to say that from this day onward no insane man will ever again be executed in England. In the recent case of Duncan, who was acquitted, Mr. Justice Lawrence charged the jury in England in the line of Mr. Justice Doe's opinion, for Duncan well knew the difference between right and wrong. He well knew the nature, character, and consequences of the act he committed, but these would not weigh if he was acting under an insane delusion which dominated his action and which he was powerless to resist or overcome. The end of the present century will beyond doubt see the end of this doctrine in criminal trials in every American State, and this is due almost wholly to the bench, and to the American bench. It is to the bench we must look for that growth, that evolution of the principles and application of the law to the corresponding growth in knowledge, and this applies to science, the arts, commerce, and all that marvellous development of our resources that marks out for the race which are to Occupy the continent of North America for the next half century, a future best appreciated by Mr. W. E. Gladstone in his estimate of the growth and development of this continent, and its population for only the first half of the century on which we are so soon to enter. The progress of Medical Jurisprudence in this country in the last twenty years would, if correctly described, fill a paper much larger than the present one. During the past ten years it has been very great, and I may say that within five years last past it has been something prodigious. This is as true of Italy, France, Spain, Germany, and of continental Europe as of the American States. A new impulse has been given to the study of Medico-Legal Science, quickening and widening the labors of the students of law, and the approaching International Medico-Legal Congress of 1893 (which I hope will be held in Chicago) will doubtless add still greater lustre and éclat to these studies, as did the work of the International Medico-Legal Congress of 1889, held in the city of New York, the influence of which has been felt throughout all the nations of the civilized globe. It is the duty of the bar association of this and every American State, and of the nation, to co-operate with the resolution adopted at that congress, in hastening the day when every school of either law or medicine within the limits of the American Union should not only have a chair of Medical Jurisprudence, but require that the students of each profession should be able to pass an examination before graduation in this branch of science of such moment to the honor of both the professions of law and of medicine. COLUMBIA LAW TIMES. but it should lay the foundation of the A MAGAZINE OF LAW AND POLITICAL SCIENCE. FOUNDED BY PAUL K. AMES AND T. GOLD FROST. PUBLISHED MONTHLY DURING THE COLLEGIATE YEAR Subscription, $2.50 per year. Single Number 35 cents. D. GILBERT BARNETT, Į Editors and WALTER S. BEADLES, Managers. ASSOCIATE EDITORS. JOSEPH G. DEane, '93. ROBERT VAN Idekstine, '94. FRANK A. ACER, '93. T. LUDLOW CHRYSTIE, '94. CORRESPONDENTS. CHARLES P. HOWLAND, JAMES GORE KING, WIILLIAM M. McQUAID, HARVARD. J. WILLIAM JOHNSON YALE. HUBERT L. WHITE, Cornell, FREDERICK A. HENRY, ANN ARBOR, J. FRANCIS TUCKER, NEW YORK UNiversity, JOHN B. MINOR, Jr., UNIVERSITY OF VIRGINIA, ELDON J. CASSIDY, UNIVERSITY OF WISCONSIN, JAMES A. HYNDS, VANDerbilt University, GEORGE S. ADAMS, CINCINNATI LAW SCHOOL, GEORGE C. HITCHCOCK, ST. LOUIS LAW SCHOOL, HENRY H. FERRELL, HOWARD UNIVERSITY, WILLIAM D. NIPER, NEW YORK LAW SCHOOL, RICHARD BELCHER, HAstings College of Law. WILLIAM B. HENDERSON, WASH'TON AND LEE UNIV. F. A. HOPKINS, GEORGETOwn College Law School. ROLAND A. RUSSELL, BLOOMINGTON LAW SCHOOL. EDITORIAL. THE functions of our appellate courts are most ably discussed by Hon. William B. Hornblower in his address which appears in this number. The speaker does not, nor can he, insist too strongly on the necessity of one, and one only, court of last resort. It is imperatively demanded in order to insure and preserve the uniformity of our decisions, the stability and unity of our system of jurisprudence. The province of this court cannot be to hear and decide every case which the contestants have the financial ability to carry up to it, legal policy to be followed in the State; it should decide questions involving fundamental principles and not dollars; it should be a tribunal respected for the uniformity and wisdom of its decisions. Courts of last resort are universally overburdened with routine work. Much of their time is frittered away on frivolous details, and nearly all the rest taken up in affirming decisions of the lower courts. The delays incurred in obtaining their opinion are due not to the judges but to the system under which they labor. The right of almost every litigant to have the Court of Appeals pass on his case is practically nothing but sentiment. It gains him no advantage, and, on the other hand, delays and often defeats justice, and materially weakens the strength of, and lessens our reverence for, the court of last resort. In alluding to the present proposed amendment before the New York Legislature, Mr. Hornblower very happily characterized it as rendering decisions "in blocks of five." In such a court there would be no end of conflicting decisions; no settled policy or system of law. We agree with the writer that the court should be composed of one body, not too large in number, whose jurisdiction is limited, whose decisions are consistent, and for whose opinion there is all admiration and respect. THE April number of the LAW TIMES will contain articles on the "Physician of the Witness Stand," by Austin Abbott, LL.D., and on the "Liability of Directors of a Corporation or Stock Company," by William Benham, of the senior class in Columbia Law School. WE yield part of our space in this issue to the alumni catalogue. The names are those whose addresses are unknown, and any one who can give such address will confer a great favor on the committee and the College by sending the same at once to the committee. The work of issuing this catalogue is something enormous, and the expense not inconsiderable, but the committee hope to have their labors finished before the close of the current College year. EVERY student of law will feel a thrill of patriotism when he reads these words of Ex-President Cleveland, contained in his address to the students of law at Ann Arbor. "I have always thought the influences surrounding the practice and study of the law should especially induce a patriotic feeling. The business of the profession is related to the enforcement and operation of the laws which govern our people; and its members, more often than those engaged in other occupations, are called to a participation in making these laws. Besides they are constantly brought to the study of the fundamental law of the land and a familiarity with its history. Such a study. and familiarity should be sufficient of themselves to increase a man's love of country, and they certainly cannot fail to arouse his veneration for the men who laid the foundations of our nation sure and steadfast in a written Constitution, which has been declared by the greatest living English statesman to be 'the most wonder ful work ever struck off at a given time by the brain and purpose of man.'" THE Michigan Law Journal, citing Story, Choate, Ingersoll, and Conkling, says: "A consensus of the opinions of great and liberal minds would show that, judging by experience, a law student can learn more law by studying law six hours per day and other subjects the remainder of the time, than to study law ten hours per day. Too constant application enervates the mind, rendering it incapable of consecutive thought, but a change of work is a rest." The Albany Law Journal, which always has an opinion of its own, commenting on the above, says: "We believe the student will learn more law in three hours of daily study than in six, and there are very few men whose minds are not dulled by eight or ten hours daily study." However valuable either of those opinions may be, neither will do for the student at Columbia who undertakes to read all the cases decided from the Magna Charta down to the Tilden will case. THE Senior class election of officers, held March 7th and roth, was unusually spirited. Ralph S. Rounds was elected. president; Benj. F. Harris, Jr., vice-president; Henry E. Holridge, secretary; Edward T. Horwill, treasurer; executive committee, Messrs. Patterson, May, Baker, Sherman, and Speer. |