their bodies to a great extent, whereby he did in an extraordinary manner afflict them with such distempers as their bodies were most subject to, as particularly appeared in these children; for he conceived that these swooning fits were natural, and nothing else but that they call the mother, but only heightened to a great excess by the subtlety of the devil coöperating with the malice of those we term witches, at whose instance he doth these villainies."

In his Religio Medici (part i., sec. 30) Dr. Browne emphatically affirms his belief in witches, and describes those who do not believe in them as "a sort not of Infidels, but Atheists." In charging the jury in the case just alluded to, Chief-Justice Hale said "that there were such creatures as witches he had no doubt at all."

In the early part of the eighteenth century we have what is probably the first recorded instance of a criminal trial in which the result depended largely upon the conflicting evidence of medical experts. The case was that of Spencer Cowper, an Englishman of high position, who was accused of the murder of a Quakeress, Sarah Stout by name. Miss Stout's body was found one morning in a mill stream. There was evidence to show that the last person who had been with her on the night before was Cowper. He was tried for her murder, and a considerable number of physicians were called by the prosecution and defense to establish or controvert, among others, this proposition: that "it is contrary to nature that any persons that drown themselves should float upon the water; we have sufficient evidence that it is a thing that never was; if persons come alive into the water, then they sink; if dead, then they swim." Witnesses were also called to prove the proposition that water must be found in the stomach of a person who died of drowning, and that its absence was inconsistent with death so caused. The case was prosecuted and defended with great energy and vigor, and resulted in Cowper's acquittal. Baron Hatsell, who presided at the trial, made some remarks upon medical testimony in the course of his charge to the jury, which have a decided resemblance to some of the reflections which are made to-day by judges charging the jury upon the merits of the same kind of evidence. Baron Hatsell said: "You have heard also what the doctors and surgeons said on the one side and the other concerning the swimming and sinking of dead bodies in the water; but I can find no certainty in it, and I leave it to your consideration. The doctors and surgeons have talked a great deal to this purpose, and of the water going into the lungs or the thorax; but unless you have more skill in anatomy than I, you will not be much edified by it." (13 State Trials, 1188.)

In another criminal trial somewhat later we find a very curious result of the denial to the prisoner of the assistance of counsel in trials for felony. At the trial of Lord Ferrars, the prisoner set up the defense of insanity, and was obliged himself to examine the witnesses whom he called to support this plea.

In the nineteenth century the development of the science of forensic medicine has been rapid and important, and a quantity of literature has appeared upon the subject. Some of the best known names of contributors to the science are those of Orfila and Tardieu in France, Casper in Germany, Christison, Taylor, Guy, and Ogston in England, and Beck, Reese, Wharton and Stille, and Wormley in the United States. The increasing complexity of modern life resulting as it has in a marked in

crease in the quantity and variety of litigation, the rapid strides in the direction of accurate knowledge and means of scientific investigation which have been made in medicine, surgery, and chemistry, and the tendency to a relaxation of the strictness of the old common-law rules of evidence, have all contributed to activity in the domain of forensic medicine and to the enlargement of the field of its application.

Recurring to the definition of medical jurisprudence which has been given, it is obvious in the first place that a wide field of science may be covered by the terms "principles and practice of medicine." Anatomy, physiology, medicine, surgery, chemistry, and physics, all come to a greater or less extent within the province of the science of medicine, and they are all constantly called upon to contribute to the elucidation of legal questions affecting life, liberty, and property. It may be said that the progress which has been made in the application of the sciences of toxicology and pathology in courts of law has greatly increased the difficulty of successfully concealing the crime of death by poisoning.

Nor is the category of the kind of judicial proceedings in which the assistance of the trained medical witness is invoked less varied than the nature of the subjects covered by the science of medical jurisprudence. The determination of the capacity of testators to make wills, of contracting parties to contract, and in the marriage relation to consummate the contract, the decision of property rights depending upon questions of legitimacy, survivorship, age, and identity, mental capacity to take and hold property, are all familiar instances on the civil side of the law of the daily application of the science of medical jurisprudence to assist courts and juries in arriving at just conclusions in regard to property rights; while in the criminal branch of the law, the increasing frequency with which mental alienation is interposed as a defense to prosecution for crimes of violence, the necessity of the ascertainment of the causes, and probable means or instrument, of death or injury, and the duration and effect of such injuries, and questions arising out of what is known as hypnotism, which has already more than once been interposed in France as a defense to criminal prosecutions-all furnish a class of cases in which the testimony of the medical expert is indispensable. It is to be noted, however, that the statute law of many of the States has interposed a wise and salutary check upon possible forms of abuse of the confidential relation which must of necessity exist between physician and patient, by prohibiting the disclosure by a physician of communications made by, or information received from, the patient while in attendance upon him in a professional capacity. This topic will be fully treated in a subsequent article. It is an instance of a class of cases in which expert testimony is limited or excluded on the same well-founded grounds of public policy which has caused the enactment of laws prohibiting the disclosure of confidential communications made by clients to their attorneys, and persons to their spiritual advisers.

Under the systems of legal procedure which obtain in England and the United States, the contesting parties to the proceeding select their own experts and pay them. That this system has in some cases led to abuse, and that it has, particularly in the last few years, had a tendency to throw discredit upon all medical expert testimony, cannot be doubted. The spectacle which is now constantly witnessed in our courts, of equally qualified experts called on different sides of a case flatly contradict

ing each other, must of necessity cast doubt either upon the reliability of medical opinion, or else upon the standing of medicine as an exact science. But as the real object of all judicial proceedings is the ascertainment of truth and the doing of justice, the important question is whether our system conduces to these ends to a greater or less extent than the system in vogue elsewhere. As regards this question there is much room for discussion and difference of opinion. But that there is a growing restiveness on the part of judges, juries, and experts themselves under the faults and defects of our system, and a casting about for some better solution of the problem, is undoubted. A very brief statement of how it is managed in France and Germany, where the English and American system of common law procedure does not exist, may be not without interest.

In France the court may order an investigation and report (expertise) by experts whenever it deems it advisable. If the parties cannot agree upon the experts the court appoints them. They are at least three in number, and are generally, though not necessarily, selected from a list of specialists termed experts assermentés. The order directing the investigation contains a statement of its precise object, and appoints a referee, or juge commissaire. Barristers, or avocats, are not allowed to appear before the experts, but the parties are represented before them by solicitors (avoués), and sometimes by persons specially skilled in the matter of the investigation. The report must be signed by all three of the experts; and if there be a dissent, the dissenting opinion and the reasons for it are set forth in the body of the report. The judges, however, are not at all bound by the report if it is opposed to their convictions. ("Si leur conviction s'y oppose." Code de Procédure Civile, titre quatorzième.)

In Germany since 1870, under the Code of Civil Procedure for the German Empire, after the issues are framed upon which expert testimony is sought, the parties may agree upon the experts, and the court appoints those agreed upon, but it may confine the parties to a given number of experts. Sometimes the court submits to the parties the names of a number of experts, and allows each side to object to a certain number of them, and then appoints those remaining. There exists in Germany a class of officially appointed experts on certain subjects, and in trials which concern these subjects such experts have the preference in appointment, unless there exists some special reason why they should not be appointed. In Prussia, for instance, it is said to have been the custom to appoint as experts a physician and surgeon for every county. In addition there was a medical college in each province to which an appeal lay if the experts disagreed or the parties desired it. In addition to this there was an appellate medical commission for the whole kingdom. (Rogers, Expert Testimony, § 41.) But in Germany, as in France, the court is not constrained to follow the expert opinions, and if it is not satisfied with them it may order a new expert opinion from the same or from other experts.

The plans for reform in the American system of calling expert witnesses have generally been in the direction of establishing a class of official experts; and the trouble with most of the plans is that they contravene one or all of the three fundamental ideas of our system of criminal trial, to wit, that the judge alone is to be the judge of the law, that the jury alone are to pass on the facts, and that the accused shall be

allowed to produce any relevant and competent evidence in his own behalf. The plan suggested by Sir James Fitzjames Stephen at the end of the first volume of his History of the Criminal Law of England, would seem to meet the situation, although it is one which requires a very high standard of medical honor and knowledge. It seems that under this plan, which has been for some time in operation at Leeds in England, medical men refuse to testify unless before doing so they can meet in conference with the expert witnesses to be called on the other side of the case, and have an interchange of views. And it is stated that the result is that at Leeds medical witnesses are hardly ever cross-examined at all, and it is by no means uncommon to have them called on one side only. If such a system could be adopted by the profession in America it would be of immense service in raising the standard of expert testimony, and increasing the reliance placed upon it by the courts and juries.

The adoption by the medical profession of some such plan as this, is, in the opinion of the writer of this brief and inadequate introduction to the great science which is treated in the following pages, the proper solution of the difficulty. And not its least merit lies in the fact that it may thus be brought about by the members of the profession taking the matter into their own hands, and dealing with it upon the lofty and disinterested plane upon which the medical profession should be moving on to the great future which, as an instrumentality for the attainment of righteousness and justice, as well as the retarder of death and the alleviator of human suffering, is surely before it.

LAWRENCE GODKIN.

MEDICO-LEGAL INSPECTIONS AND POST-MORTEM

EXAMINATIONS.

BY

A. T. BRISTOW, A.B., M.D.

A POST-MORTEM examination as ordinarily undertaken is made for the purpose of determining the cause of death where this is the result of disease, to observe the resulting pathological changes, their nature, and extent, together with the organs implicated.

The inquiry concerns the physician himself. The friends of the deceased are disposed to accept the results of the examination without question, and with the signing of the death certificate the function and responsibility of the examiner cease. In the case of a medico-legal inspection the responsibility of the examiner is much increased. On his report and testimony may depend the issue of a civil damage suit, or, more important still, the arrest of a freeman, his prolonged imprisonment, indictment, and trial. The liberty of the citizen and the vindication of the law alike demand that the examiner should proceed with the utmost circumspection, to the end that the guilty may not escape nor the innocent suffer. It is to be remembered that when prosecution follows as a result of the inspection the examiner must expect that his methods will be subjected to the minutest scrutiny, and bear the test of hostile criticism from the acutest minds the defense can summon. Loose and inaccurate methods, hasty observations, deductions rashly drawn, may bring confusion on the medical witness and involve in ruin a righteous prosecution. On the other hand, it is to be observed that although the prosecuting officer may demand a victim, justice calls for the criminal. Not seldom it may be the duty of the medical witness to stand between the unfortunate and an ambitious or too zealous prosecutor, carried away by the ardor of battle, the hope of future gain or preferment. In such a case too often the prosecution is degraded into an intellectual contest between the counsel for the defendant and the prosecuting officer, becoming a sort of prize-fight, in which the stake fought for is a conviction, a victory for the prosecution which may lead to professional distinction, possibly political preferment. When such motives prevail, it is not strange if the medical witness, especially when retained by the prosecution, enters upon his investigations with a biased mind. Such an attitude is not conducive to that judicial spirit which the task of a medical examiner requires. It may be objected that it is the function of the examiner simply to determine certain facts and report accordingly, it being for the