INTRODUCTION.

MEDICAL jurisprudence, or legal medicine, may be defined as the science which applies the principles and practice of the different branches of medicine to the elucidation, in judicial proceedings, and subject to legal rules and forms, of questions relating to the cause or time of death, conception and birth, or the cause or effect upon the legal status of individuals of mental or physical disease or injuries.

The questions which are included in this definition have been divided into five classes, the first of which includes inquiries arising out of the relations of sex, as impotence and sterility, pregnancy, legitimacy, and rape; the second, injuries inflicted on the living organism, as infanticide, wounds, poison, injuries, and death from violence; the third, questions arising out of disqualifying diseases, as the different forms of mental alienation; the fourth, those arising out of deceptive practices, as feigned diseases; fifth, questions of a miscellaneous nature, as age, identity, presumption of seniority, and life assurance.

Of course the means or instrumentalities by which the principles and practice of medicine are applied to the elucidation of questions of law are the utterances of persons skilled in medicine, to wit, of physicians, surgeons, and chemists. These utterances, whether oral or written, are made use of in courts of justice, subject to certain rules which have been adopted as best calculated to correct or assist the infirmities of the human character, mind, and memory.

In a general way the evidence given by medical and chemical experts has been classed as "opinion" evidence that is to say, as evidence which consists in the expert giving the conclusions which he, as a scientific man, draws from certain facts which have been, or are supposed to have been, proved. But owing to the progress of the science of medicine, and as the result of the modern scientific methods of investigation with accurate results, medicine and chemistry have become more worthy to be classed as exact sciences, and much of the testimony of physicians which formerly might rightly have been classed as pure matter of opinion is now as much a statement of matter of fact as a statement of the law of gravity, or the fact that the earth moves around the sun. And while it is to a large extent still true-as was laid down in a case in New York which established the proposition that the law does not recognize any particular class or school of practitioners as qualified experts to the exclusion of other classes or schools-that medicine is not an exact science in which truths have become established and fixed, but that, on the contrary, it has been characterized in a greater degree by fluctuation of opinion as to its principles and the mode of practice than perhaps any

other pursuit, and has been distinguished by the constant promulgation and explosion of theories, and that the popular axiom that doctors differ is as true now as it ever was, still, on the other hand, there has been, ever since the discovery of the circulation of the blood, a steady progression in medicine toward the establishment of an increasing collection of fundamental and precise scientific facts, which are almost as reliable, as premises, as any of the facts in nature of which courts have for many years taken judicial notice without proof. This is especially true of that division of medicine which is known as pathology as distinguished from therapeutics, and in which the modern scientific school of medicine has made such wonderful discoveries, by means of methods of demonstration and proof which have raised the results out of the domain of controversy.

Nor is the complaint which Bacon made in the seventeenth century— that the science of medicine had departed from the true path trod by Hippocrates, who used to set down a narrative of the special cases of his patients, and how they proceeded, and how they were judged by recovery or death-any longer applicable; for to-day a large part of the science of medicine consists, like the profession of the law, in studying and reporting new cases and decisions for the direction of future judgments. It is his learning and experience, drawn from the "myriad of single instances," which qualify the medical expert and gives his opinion, in the specific instance in issue, gravity and weight. In the actual practice of medicine it is still true, as of old, that the physician is judged to a great degree by the recovery or not of his patient, either of which results may be due to a hundred causes other than the skill or ability or incompetence of the physician; but in forensic medicine the expert is judged by the knowledge and learning evinced in his testimony, and not by the result of the trial. And in these days of criticism and belittling of expert testimony on the grounds that it consists of bought opinion, it is well to bear in mind the remark of that prince of practical philosophers, Dr. Johnson, who, when Sir James Johnston said that he paid no attention to arguments of counsel at the bar of the House of Commons because they were paid for speaking, replied: "Nay, sir, argument is argument. You cannot help paying regard to their arguments if they are good." And so in the case of expert testimony, if the opinion or argument of the expert appears sound and weighty, and to be based on sound premises, it is no answer to the impression it may make upon the minds of the hearers that the expert was paid for testifying.

Although the principles of medical science were applied to the determination of certain legal questions by the Greeks and Romans, there is nowhere any authoritative mention of such a procedure in actual trials. There is some doubt whether in Roman criminal trials the accused was himself allowed to call any witnesses in his own behalf except as to his general character. Mr. Trollope, in his Life of Cicero, says that he was not. There does not seem to be any allusion either in the Digest or the Theodosian Code to insanity, or any form of mental alienation, as a defense to prosecution for crime; but we know that the subject was fully recognized under the system of Roman jurisprudence, and that insane persons were regarded as having no intelligent will, and as therefore being incapable of having rights or responsibilities, and that their persons and property were placed, after due investigation by magistrates,

under the custody of curators. It is very probable that in such proceedings expert testimony was relied upon to some extent at least. In Rome, under both the republic and empire, and elsewhere in Europe during the middle ages, human suffering produced by physical torture was relied upon in criminal procedure to extort confessions or other evidence which might be used against the prisoner, and during all these dark ages of the criminal law we hear but little of medicine as an adjunct to, or a mitigator of, its enforcement. Torture played a prominent part in Roman criminal procedure, particularly in the preliminary investigation after the arrest of the accused. Slaves were tortured when their masters were suspected of offenses, and the accused himself might be tortured repeatedly when the evidence against him was particularly strong. It is worthy of note here that the Roman law was especially severe upon the crime of poisoning, and extended its provisions to every one, "qui venemum necandi hominis causa fecerit, vel vendiderit," and that the crime of rape was specially provided for, and was not included under the "Lex Julia de Adulteriis," which apparently was intended to cover every other sort and description of sexual crime. But the crime of murder or attempted murder by poison has always been regarded with special abhorrence in ancient systems of law. By the Statute 22 Hen. VIII. it was provided that willful poisoners should be boiled to death; and in the trial of Richard Watson for poisoning in 1615 Lord Coke declared that "of all felonies murder is the most horrible; of all murders, poisoning the most detestable; and of all poisoning, the lingering poisoning." (State Trials, vol. ii., p. 91.)

The idea of preliminary torture of the accused with a view to extracting from him a confession, or evidence that can be used against him, is preserved, although of course in a very much modified and milder form, in the French system of criminal procedure. In France the juge d'instruction, who in some respects corresponds to our committing magistrate, may put the prisoner in solitary confinement for an indefinite time, and during the time question him in secret as often as he desires. This secret interrogation may be carried on without giving the accused any information as to the nature of the evidence against him, and every art of verbal torture-in addition to the solitary confinement-calculated to extort from him a confession may be used against the unfortunate prisoner.

The system of trial by ordeal which existed, particularly in England, in the middle ages, and even up to the sixteenth century, may have suf ficient interest to the student of legal medicine to deserve a passing mention. In England, under this system, if an accused person could not get a sufficient number of satisfactory "compurgators," or persons who would swear to their belief in his innocence, he was put to the ordeal. This ordeal might be of various descriptions. It sometimes consisted in compelling the accused to handle red-hot irons, or plunge parts of his body into boiling water, and if the skin showed any mark of burn or scalding, he was guilty. Another form of the ordeal was to throw the accused into water, and if he sank he was innocent, and if he floated he was guilty. These ordeals, whatever might be their nature, were simply tests of human endurance of such a kind that only a reversal of some law of nature could enable the victim to successfully support them.

The real beginning of the science of forensic medicine is generally ascribed to the publication in 1553, by the Emperor Charles V. of Ger

many, of the Constituo Criminalis Carolina, or Caroline Code, in which it was directed that the opinion of medical men should be taken in cases where death was alleged to have occurred by violence, and suspicion existed of a criminal agency. But it was not until the seventeenth century that we began to have authentic recorded instances of the employment of forensic medicine in England, and in some of the English state trials of that time we find cases in which medical men were called upon to testify in criminal trials; but in a large class of inquiries which are to-day the subject of medical examination and testimony, medical men were not consulted. For instance, we know that in applications for postponement of the sentence of death on account of pregnancy, in prosecutions for rape, and in applications for a decree of nullity on the ground of incapacity to consummate the marriage contract, it was the practice to impanel a jury of matrons to examine and report to the court. In the trial for murder of Jane Norkott, in 1628, there is a curious instance of the disinterment of a body for a second inquest thirty days after the first inquest had been held. At the first inquest the coroner's jury rendered a verdict of suicide. It was shown upon the trial that when the body of Jane Norkott was disinterred for the second inquest, one of the persons accused of her murder touched the dead body, "whereupon the brow of the dead, which before was of a livid and carrion color, began to have a dew or gentle sweat arise on it, which increased by degrees till the sweat ran down in drops on the face, the brow turned to a lively and fresh color, and the deceased opened one of her eyes and shut it again; and this opening the eye was done three several times; she likewise thrust out the ring or marriage finger three times and pulled it in again, and the finger dropped blood on the grave." (14 State Trials, 1342.)

In 1665 occurred the trial of the Suffolk witches, Rose Cullender and Amy Duny, on a charge of bewitching children, in which we find one of the most enlightened and distinguished physicians of the time, Sir Thomas Browne, author of the Religio Medici, testifying to his belief in witchcraft, and it was largely upon his testimony that the unfortunate women were convicted and hung. As an illustration of the value of the best medical testimony in England in that day, it is worth while to quote Dr. Browne's testimony in court, delivered after an examination of the two accused women and the aunt of the children alleged to have been bewitched. It seemed that Rose Cullender and Amy Duny had quarreled with the parents of the children; that the children subsequently had fits and threw up crooked pins and a twopenny nail with a broad head, and that thereupon a bee brought the nail and forced it into the child's mouth; and the two children declared that the prisoners were tormenting them, and that they saw their apparitions. There was other evidence, but the foregoing was the most weighty. After hearing the evidence and making his examination, Dr. Browne, having been called on for his opinion, stated to the court that "he was clearly of opinion that the persons were bewitched, and said that in Denmark there had been lately a great discovery of witches, who used the very same way of afflicting persons by conveying pins into them, and crooked as these pins were, with needles and nails. And his opinion was that the devil in such cases did work upon the bodies of men and women upon a natural foundation (that is) to stir up and excite such humours superabounding in