INTRODUCTION.
Medical Jurisprudence[1]may be defined, a science by which medicine, and its collateral branches, are made subservient to the construction, elucidation, and administration of the laws; and to the preservation of the public health.
It accordingly resolves itself into two great divisions—intoForensic Medicine, comprehending the evidence and opinions necessary to be delivered in courts of justice; and intoMedical Police, embracingthe consideration of the policy and efficiency of legal enactments for the purpose of preserving the general health, and physical welfare of the community.
Under no circumstances does medical science assume so imposing and dignified an attitude, as when regarded as a branch of legislation. Disentangled from the web with which worldly caprice, credulity, and empiricism, are ever seeking to embarrass the more ordinary path of her labours, she at once displays her pride and strength in the number and variety of her resources, and in the extent and importance of their applications; while the professor of our art is thus enabled to support additional claims upon the respect of the learned, the confidence of the oppressed, and the gratitude of the public. In the active exercise of his duties as a medical jurist, how exalted and honourable is the occupation of the physician!—there is scarcely a circle of natural science, upon the boundaries of which he does not impinge in some point or other, of his extensive orbit. Trace his progress, for instance, through the subject of poisons, and we shall soon perceive that it involves within its range the departments of anatomy, physiology, botany, mineralogy, zoology, and chemistry. If, again, we follow his steps through the deviating and perplexing course of homicide, in how many new and interesting forms will the principles of physiology present themselves; how frequently shall we find ourselves engaged in the solution of problems connected with the knowledge of pneumatics, hydrostatics, and mechanics? If we attend him in the investigation of nuisances, as affecting the health and comfort of the surrounding inhabitants, we shall perceive that an acquaintance with the variousbranches of natural philosophy, can alone enable him to appreciate the nature and extent of the evil, or the value of the different plans that may be proposed for its removal. While the intricate and perplexing subjects of quarantine and plague police, will require for their elucidation, the energies of a peculiarly constructed and well disciplined mind, to concentrate the genuine lights into a focus, and to dissipate the many specious, but false appearances, with which the question of contagion has been distorted.
The institution of medicine and jurisprudence, necessarily arose as the consequence of the physical and moral infirmities of our nature, and must, therefore, have been nearly coeval with the origin of society. In the earlier periods, however, of the world, the connection between these sciences could only have been slight, and scarcely, perhaps, perceptible; although we are strongly inclined to believe thatMedical Jurisprudencehas an origin far more ancient, and an influence far more extensive, than modern writers have been willing to concede; an opinion which we are prepared to support by the authorities of profane as well as sacred writers, and by the history of civilized as well as barbarous communities. It must be admitted, that no inconsiderable a part of the institutions of the great law-giver of Israel, was a wise system of medical police, well adapted for the preservation of the health, and the amelioration of those evils to which the inhabitants of a tropical climate must have been exposed; and we read, that Moses was skilled in all the learning of the Egyptians. In Leviticus,[2]commands are given to the priests to visit the houses infected with the plague of leprosy, or with any contagious disease; toexamine the inhabitants; to establish quarantine; to scrape and white-wash the houses; to shut them up, and, in bad cases, to pull them down. If we descend into later times, we shall discover the same policy of associating the institutions of medical police with religious ceremonials; by which the performance of duties, essential to the preservation of the health, was more effectually enforced. The author has observed, in the historical introduction of his “Pharmacologia,” that bathing, which at one period of the world was essentially necessary to prevent the diffusion of leprosy, and other infectious diseases, was wisely converted into an act of religion, and the priests persuaded the people that they could only obtain absolution by washing away their sins by frequent ablution;[3]but, since the use of linen shirts has become general, and every one has provided for the cleanliness of his own person, the frequent bath ceases to be so essential; and, therefore, no evil has arisen from the change of religious belief respecting its connection with the welfare and purity of the soul. Among the religious impurities, and rules of purification of the Hindus, we shall be able to discern the same principle, although distorted by superstition.[4]So, again, it is easy to perceive, that the dangers consequent upon vinous inebriation in a hot climate, suggested the Mahometan prohibition of wine. The religious ceremonial observed by the ancients, whenever they proposed to build a town, or to pitch a camp, was evidently an act of legislation, founded on a just principle of physiology; they offered a sacrificeto the gods, when the Soothsayer declared,from the appearance of the entrails, whether they were propitious or not to the design. What was such an inspection but a philosophical inquiry into the salubrity of the district, and the purity of the waters by which it was supplied?—for it is well known that in unwholesome situations, especially if swampy, the viscera of the cattle will universally present an appearance of disease, which an eye experienced in such dissections, would easily distinguish.
But, in order to shew the universality, as well as the antiquity, of the policy which we are endeavouring to establish, we propose to furnish the reader with an illustration, afforded by the superstitions of an uncivilized race of modern times. The pearl-diver in the East-Indian fisheries is constantly exposed, during his dangerous occupation, to the attack of theGround-Shark, a common and terrible inhabitant of all the seas in those latitudes. In order to avoid falling in with this foe, the adventurous Indian seeks for safety in supernatural means. Before he begins diving, the priest, or conjurer, or, as he is termed in the Malabar language, thePillal Karras, orBinder of Sharks, is always consulted, whose directions upon these occasions are received with confidence, and followed with the most implicit obedience. The advice which is given them, under the imposing weight of a religiousordinance, has, for its sole object, the maintenance of the health of the diver, and the adaptation of his body for the arduous occupation in which he is engaged; and it is not a little curious to observe that in the performance of this duty, thePillal Karrasappears to display a judgment, which the most enlightened views of modern physiology could not improve. The diver,for instance, is enjoined to abstain from all food for some time previous to his descent; a practice, the value of which will be duly appreciated by those who read our chapter on the physiology of Suffocation, vol. ii. p. 34.
In those countries, where it becomes necessary to check the increase of population, we again find that ecclesiastical institutes are made subservient to state policy; thus the religion of the Island of Formosa[5]prohibits women becoming mothers before the age of thirty-five years; and, should they become pregnant before that time, the priestess procures abortion by violence[6].
In the book of sacred law of the Hindus,[7]the rules for the choice of a wife are formally and minutely detailed, and will be found remarkably conformable with our physiological notions respecting the transmission of disease and deformity.
The knowledge ofForensic Medicine, if not as ancient and universal as the Institutes of Medical Police, may still boast of an early origin, and a very extensive influence; thus inDeuteronomy[8]in cases of doubtful virginity, the Elders are to be consulted, in order that they may deliver their judgment from the physiological evidence of the case. In ancient nations the assistance of the philosopher and physician was universally required for the prevention, as well as detection of crime; thus wasArchimedesconsulted by the king of Sicily, when a workman was suspected tohave fraudulently alloyed the gold in his crown. The Romans, especially in the reign ofSeverus,Antonine,Adrian, andAurelius, constructed several laws, and reformed some others, in conformity with the sentiments inculcated in the works ofHippocratesandAristotle; the capital crime of procuring abortion was accordingly limited to those cases wherein the fœtus exceeded forty days; and theEmperor Adrianpassed a decree upon the subject of legitimacy, as connected with the period of utero-gestation, according to the physiological opinions with respect to the possibility of retarded delivery;[9]whileNuma Pompiliusprohibited the burial of a pregnant woman, or of one supposed to be pregnant, until the fœtus should have been extracted, or the state of the uterus ascertained by dissection.[10].
The trials by ordeal in the dark ages of modern Europe, when the decision of the most important questions was abandoned to chance or to fraud, when carrying in the hand a piece of red hot iron, or plunging the arm in boiling water,[11]was deemed a test of innocence, and a painful or fraudulent experiment, supplanting a righteous award, might consign to punishment the most innocent, or save from it the most criminal of men, have ever been deemed a shocking singularity in the institutions of our barbarous ancestors. We are ready to admit the justice of this charge generally; and yet we fancy that, upon someoccasions we are enabled to discern through the dim mist of credulity and ignorance, a ray of policy that may have been derived from the dawning of a rude philosophy. Trials by ordeal, as we are informed by Mr.Mill, hold a high rank in the institutes of the Hindus. It appears that there are no less than nine different modes of trial, but thatby water in which an idol has been washed, and the oneby rice, are those which we shall select as well calculated to illustrate the observations which we shall venture to offer. The first of these trials consists in obliging the accused person to drink three draughts of the water in which the images of the Sun and other deities have been washed; and if within fourteen days he has any indisposition, his crime is considered as proved. In the other species of ordeal alluded to, the persons suspected of theft are each made to chew a quantity of dried rice, and to throw it upon some leaves or bark of a tree; they, from whose mouth it comes dry, or stained with blood, are deemed guilty, while those who are capable of returning it in a pulpy form, are at once pronounced innocent. When we reflect upon the superstitious state of these people, and at the same time, consider the influence which the mind, under such circumstances, is capable of producing upon the functions of the body, it is impossible not to admit that the ordeals above described are capable of assisting the ends of justice, and of leading to the detection of guilt. The accused, conscious of his own innocence, will fear no ill effects from the magical potation, but will cheerfully acquiesce in the ordeal; whereas the guilty person, from the mere uneasiness and dread of his own mind, will, if narrowly watched, most probably discover some symptoms of bodily indisposition,before the expiration of the period of his probation. In the case of the ordeal byrice, a result, in correspondence with the justice of the case, may be fairly anticipated on the soundest principle of physiology. There is perhaps no secretion that is more immediately influenced by the passions than that of saliva. The sight of a delicious repast to a hungry man is not more effectual in exciting the salivary secretion, than is the operation of fear and anxiety in repressing and suspending it. If the reader be a medical practitioner, we refer him for an illustration to the feelings which he experienced during his examination before the medical colleges; and if he be a barrister, he may remember with what a parched lip he gave utterance to his first address to the jury. Is it then unreasonable to believe that a person under the influence of conscious guilt, will be unable, from the dryness of his mouth, to surrender the rice in that soft state, which an innocent individual, with an undiminished supply of saliva, will so easily accomplish?
These few examples will suffice to shew that Medical Jurisprudence had an early origin; and yet we are ready to admit that its applications were extremely desultory, and often, from the infant state of the sciences upon which it rested, not only imperfect but erroneous; indeed the question may be very fairly maintained, whether on many occasions the evidence of the physician has not embarrassed where it should have enlightened, and misled where it was called upon to direct the steps of justice. Forensic medicine, however, could scarcely be considered as constituting a branch of legislation, until its utility was publicly recognised, and its assistance legally required. This admission will compel us to assign toGermany the honour of its origin, for the Medical jurist is first acknowledged, and his services formally required, in the celebrated criminal code framed byCharlesthe Fifth, at the Diet of Ratisbon, in the year 1532, known by the name of the “Constitutio Criminalis Carolina,” and which still constitutes the basis of the criminal proceedings of the German courts. In the code it is enacted, that medical men shall be consulted whenever death has been occasioned by violent means, whether criminal or accidental, by wounds, poisons, hanging, drowning, or the like; as well as in cases of concealed pregnancy, procured abortion, child-murder, &c. The publication of such a code very naturally awakened the attention of the medical profession, and summoned numerous writers from its ranks. The first of whom wereBohn[12],Valentini[13],Boerner[14],Kannegeiser[15], andStruppe;Alberti[16],Zittman[17],Richter[18],Teichmeyer[19], andStark[20]; some years after whom cameHebenstreit[21],Ludwig[22], andFazellius[23].
The first German work of any authority is that ofJohn Bohn, published in 1689, and entitled “DeRenunciatione Vulnerum,” in which the author attempts to shew what wounds are necessarily fatal. In 1704, the same Professor presented to the profession a forensic work of greater range, for the purpose of giving rules for the conduct of physicians in attending the sick, and in delivering evidence before a court of judicature; it is entitled “De Officio Medici, duplici, clinico et forensi.” At about, or rather previous to the publication of this latter work, the celebrated Pandects ofValentiniappeared, which form a compendious retrospect of the opinions and decisions of preceding writers on Juridical Medicine. In his prefaceValentiniendeavours to enforce the necessity of cultivating this branch of Medical Science; and although more than a hundred and twenty years have elapsed, how aptly will his rebuke apply to the medical witnesses of the present age—“Evenit sæpe ut etiam illi qui magno Archiatrorum Practicorumque felicissimorum titulo superbiunt, in publicis hujuscemodi occasionibus facultatibus, ut Mus in pice, hæreant, ineptisque relationibus facultatibus Academicis non tantum risum moveant, sed et omnem, qua prius gaudebant estimationem protinus amittant.” This was followed by the works ofKannegeiser, and ofFrederic Boerner, medical professor of Wirtemburg, on various subjects connected with Legal Medicine. The system ofAlbertiof Halle, in six volumes quarto, appeared in 1725. Amongst the numerous questions elucidated by this laborious author, we may particularize those relating to conception and utero-gestation; and the reader will perceive that we have frequently availed ourselves of his opinion upon these points. Nearly cotemporary withAlberti, wereZittman,Richter, andTeichmeyer, from whose writings we have also had frequent occasion to extract somevaluable observations. In 1730 the progress of Medical Jurisprudence was very considerably advanced by the publication of the argumentative work ofStorck, in which the utility of medical knowledge in assisting the operation of the laws, is very ably and warmly advocated. TheAnthropologia ForensisofHebenstreit, from which we have so frequently derived useful information, did not appear until 1753, and was followed by theInstitutes of Ludwig, and theElements of Fazellius. In 1781,Plenck[24]published his Elementary work on Forensic Medicine and Surgery; and in the following year the first volume ofHaller’s[25]celebrated Lectures on Juridical Medicine, in the execution of which he takes the Institutes ofTeichmeyeras his text, correcting his errors, and amplifying his opinions. This work was subsequently completed in three volumes. In 1784,Daniel, by the title of his work[26]published at Halle, first introduced the term ofState Medicine, as expressive of that branch of medical science of which we are now treating. The annals of the close of the eighteenth century are enriched by several important productions; amongst which may be particularizedConspectus of Sikora[27], theFirst Lines of Loder[28], theSystem of Metzer[29], and theDelineations of Muller[30]. If the reader be desirous of further informationrespecting the German literature of State Medicine, at this period, we must refer him to the great works ofSchlegel[31]andPlouquet[32];Struviuslikewise in hisBibliotheca Juris, (vol. i. p. 172) refers to the work ofAndreas Otto Goellicke, Frankfort, 1723, for an enumeration of the numerous medico-legal writers of the earlier part of this age.
During the present century we have received two volumes from the pen ofMetzger; and in the year 1806,KnappeandHeckercommenced at Berlin, a periodical publication, under the title of “Critical Annals of State Medicine;” some years after which a similar work appeared under the superintendance ofProfessor Koppof Hanau. In speaking of the periodical works of Germany, we must not omit to mention that conducted byDr. Scherf, Aulic Counsellor at Detmold, under the title of “Contributions to the Archives of Medical Police,” which extended to eight volumes, and was afterwards continued under the appellation of “Isis,” or “Journal of Medical Jurisprudence and Police.” To the catalogue of writers already enumerated, we might add many more; but having cited the most celebrated works we consider it unnecessary to adduce farther demonstration of the indefatigable and laborious industry of the German literati.
The middle of the sixteenth century may be stated as the epoch at which the subjects of Medical Jurisprudence first excited much attention in the schools of Italy. The earlier writers, however, would appear to have studied the science rather with casuistical, than physiological views.Fortunatus Fidelis, whohas been regarded as the father of the Medico-legal literature of Italy, first published his work “De Relationibus Medicorum,” at Palermo, about the period above stated; it was afterwards republished at Venice, and lastly at Leipsic, under the care ofPaul Amman, Professor of Botany and Physiology in that University. It consists of four books, of which the following may be received as an outline of the contents,viz.I. On Public Food; the Salubrity of the Air; Pestilence. II. Wounds; Pretended Diseases; Torture; Injuries of the Muscles; Medical Errors. III. Virginity; Impotence; Hereditary Diseases; Pregnancy; Moles; the Vitality of the Fœtus; On Birth; Monsters. IV. Life and Death; Mortality of Wounds; Suffocation; Death by Lightning and Poisoning.
Amongst the earliest dissertations which appeared on questions connected with the subject of Jurisprudence, and which merits notice on this occasion, is one byFrederic Bonaventura, an eminent scholar and physician of Urbino, in Italy, who flourished in the early part of the seventeenth century, entitled, “De Natura partus octomestris, adversus vulgarem opinionem, libri decem.” Francof. 1601; an enormous folio volume, containing upwards of one thousand pages, on this uninteresting subject; in which he has introduced the opinions of different writers, and an account of all the controversies that have been held on the legitimate period of utero-gestation. The most celebrated however of all the Italian works which have descended to us, is that ofPaul Zacchias,[33]physician to Pope Innocent the Tenth, whowas long considered as the only arbiter of questions relating to any of the subjects of Juridical Medicine. The estimation in which this work was universally held may be easily discovered, from the expressions with which it is mentioned by all cotemporary writers.Zacutus Lusitanus, in alluding to its value, exclaims “Emi,—vidi—legi—obstupui”! When we consider the period at which it was written, it must certainly be acknowledged as a very extraordinary work; that it should be overrun with casuistical subtleties cannot be a matter of surprise; the style too is entirely scholastic, full of digression, and prolix passages of erudition, but such was the taste of the age in which it was composed. We are also to remember that at this period, the philosophy ofAristotlealone directed the schools, and the doctrines ofGalen, illustrated by a thousand servile commentators were, according to the judgment of that æra, the only sources from which medical opinions could be legitimately deduced. The study of Anatomy had only then commenced under the guidance ofVesalius,Columbus,Fallopius, andEustachius; while Surgery, notwithstanding the labours ofParé,Arceus,Andrew Dalla Croce,Aqua Pendente, and other masters, was in its mere infancy. Chemistry too was as yet full of conceit and uncertainty; and Pharmacy was absolutely without any acknowledged principles. As the great work ofZacchiaswas composed at different periods, with considerable intervals between each, we find numerous repetitions, and contradictions. It is therefore evident, that although the “Quæstiones Medico-legales” may afford much instruction to the learned physician, it can be of no service to the student; this opinion is justly expressed by “Camerarius[34]—QuisquisPauli Zacchiæ opus legere cum fructu voluerit, insigni jam rerum medicarum notitia instructus sit oportet; eo magis quod alia sit modernæ Medicinæ facies; ditissimus enim thesaurus est liber iste, supplendus tamen subinde ex aliis fontibus recentioribus.”
Barnardin Ramazzini, having been struck with the numerous accidents which had occurred to Nightmen, was induced to direct his attention to the causes and nature of the asphyxia by which they perished, and to extend his investigation to the maladies to which the artisans in every profession were more peculiarly subjected. He accordingly, in the year 1700, published at Padua, an excellent treatise on these affections, entitled “De Morbis Artificum Diatriba,” a work which has retained its credit as a standard production, and to which all subsequent works on the same subject have been very largely indebted. It was translated byFourcroy, who also enriched it with many valuable notes in 1777. It has also been presented to the public in many other countries, at different periods, and under various forms; as byM. Hecquet, 1740;Skragge, in 1764;Bertrand, in 1804;Gosseof Geneva, in 1516; andPatissier, in 1822.
In 1749, ProfessorBeccaria, of Bononia, published his work entitledScriptura Medico-Legalis, andBononiin hisIstruzioni Teorico pratiche di Chirurg: entered with considerable minuteness into the subject of Forensic Surgery, especially in its relations to wounds. The later production however, ofGiuseppe Tortosa[35], the disciple ofCaldani, must be considered as the most elaborate and scientific of all theItalian works on Medical Jurisprudence. The reader will find that we have frequently referred to this author; and it is just to state, that during the progress of our labours we have derived from him no inconsiderable assistance, in ascertaining the sentiments of the Medical Jurists of the Italian school, upon various casuistical as well as physiological doctrines. The work is professed to have been written with the sanction of his master,Caldani, and under the auspices ofFranckof Pavia, and ofPlouquetof Turin. He includes in his plan such subjects only as relate to Forensic Medicine, excluding those which belong more correctly to the department of Medical Police. The work is divided into three parts,viz.1. Comprehending all the principal objects ofEcclesiasticaljurisdiction. 2. Subjects relating to theCivilcourts. 3. Those which relate to theCriminalcourts. The subdivisions of each part are arranged in the following order.Part I.—Conjugal Impotence.—Conjugal Rites.—Monstrous Births.—Hermaphrodites.—Magic.—Of Persons possessed of Spirits.—Miracles.—Ecclesiastical Fasting.Part II.Age.—Pregnancy.—Birth.—Superfœtation.—Cæsarean Operation.—Simulated and Dissimulated Diseases.Part III.Of Deflowering.—Sodomy.—Torture.—Legal Examination of Wounds, and Dead Bodies.—Poisoning.—Infanticide.—Homicide by wounding.—Fœticide.—Accidental Death.
The application of Medical science to jurisprudence may, practically considered, be said to have commenced in France about the time of Francis I; but it was not until after the publication of theConstitutio Criminalis Carolina, that the French government, unwilling to allow their criminal code to remain less perfect and refined than that of their continentalneighbours, decreed that the assistance of physicians and surgeons should be legally required; and which was at length rendered still more peremptory by letters patent granted by Henry IV, in 1606, conferring upon his first physician the privilege of nominating surgeons in every town to the exclusive exercise of this important duty; and Louis XIV. in 1667, after having formally declared, that all Reports which had not received the sanction of such an officer should be invalid, ordered by a decree, in 1692, that a physician shall always be present with the surgeon, at the examination of a body[36]; the surgeons, however, of those times were not distinguished by the knowledge which they now possess; hence, in every thing that did not directly involve surgical discussion and practice, their reports were frequently defective. Magistrates were consequently induced to summon the more learned physician to the assistance of the Juridical Surgeon, long before it was enforced by the law; a practice, which like many others, acquired force and regularity from repetition.
Ambrose Paréis acknowledged as the first French writer on the subject of Juridical Medicine, and his treatise on Reports, published in 1575, was, for nearly a century, regarded as the only standard authority upon these occasions; it was, however, at length, to a great degree, superseded by the more accomplished treatises ofGendriof Angers, in 1650, ofBlegniof Lyons, in 1684, and ofDeveauxof Paris, in 1693. This latter work is one of very considerable merit, especially as it regards the diagnosis and prognosis of wounds.
The eighteenth century, saysFoderé[37], an æra remarkable for the conversion of the human mind from the enthusiasm of poetry and the fine arts, to the cultivation and study of the exact sciences, must be considered as the auspicious dawn of medico-legal knowledge in France. The spirit of emulation which animated the rival schools of Surgery and Medicine, produced men, who enlightened by their talents every department of the science of Medicine. ProfessorLouis, Secretary to the Academy of Surgery, taught publicly in the schools the art of resolving different questions in medical jurisprudence, which previous to his time had never been practised. Numerous memoirs on its various branches appeared in succession; eloquence allied itself to science, and their combined efforts were displayed in this novel mode of benefiting mankind. Upon the great principles of justice and humanity which presided at the reform of the penal code, chairs of medical jurisprudence were established in all the faculties of medicine. In 1788,Louispublished at Paris his letters on the certainty of the signs of death, in answer to the dissertations ofWinslowandBruhier; and of whose judicious remarks we have availed ourselves in the discussion of the subjects of “Real and Apparent Death.” (Vol. II. p. 15). To the same author we are also indebted for memoirs on Drowning, and on the means of distinguishing Suicide from Assassination in cases of death by suspension. His Consultations on the celebrated causes ofMonbailly,Syrven,Calas,Cassagneux, andBaronet, which are recorded in the “Causes Célébres,” must serve to exalt him still higher in our estimation.Winslowengaged his talents in the investigation of the Cæsarean Operation, including its moral, political, and religiousrelations.PetitandBouvartentered the field as controversialists, and disputed the opinions ofLouison protracted pregnancy, with considerable ability. The former of these philosophers wrote also several memoirs on the phenomena of suspension and strangulation; he, moreover, examined the question relative to the signs of death from abstinence.Lorrydiscussed the question of survivorship with great acuteness and judgment.Salinattempted to deduce from the character of the organic lesions, an inference with respect to the nature of the poison that inflicted them; and he illustrated this opinion in an elaborate memoir on the research of the traces of poison on the body ofLamotte, sixty-seven days after it had been deposited in the earth; in which he decides that the death was occasioned bycorrosive sublimate.[38]And although the nice distinctions which this ingenious writer laboured to establish never had any existence but in his own imagination, yet the agitation of so important a question was by no means unprofitable; it directed the attention of the physician to the state of the organic lesions, and has ultimately led to some useful conclusions. WhileSalinwas thus engaged on the subject of poisoning,Lafossesought to distinguish the phenomena produced by death, from the traces of violence inflicted during life upon the body. He, moreover, developed the unequivocal signs of pregnancy and parturition.Professor Chaussier, in the year 1789, by a memoir, to the Academy of Sciences at Dijon, on the great importance of the study of juridical medicine, excited a spirit of emulation which was productive of the highest advantage. At about this period also the memorable“Encyclopédie Méthodique,” was undertaken, in which the celebrated authors already named contributed their powerful assistance, in conjunction withProfessor Mahon, in compiling the elaborate articles upon Medical Jurisprudence. Such were the materials, saysM. Foderé, which enabled me to publish my first systematic work[39]on this science in the year 1796.
In the first few years of the present century the science of juridical medicine received numerous contributions from the French physicians.M. Vigné, of Rouen, published in 1805 his humane and enlightened reflections upon its practical applications; a work which bears internal evidence of the science as well as the judgment of its author. In the year 1807, the system ofProfessor Mahonappeared, not, however, until after the death of its author;M. Fautrelhaving undertaken the charge of arranging the manuscript, of illustrating it with notes, and of giving it to the world.[40]Nearly at the same time the small, but useful work ofBelloc[41]was published; and in the following yearMarc[42]translated the German manual ofRoseon juridical dissection, and enriched it with original observations; to which he also subjoined two memoirs on the obscure subject of the “Docimasia Pulmonaris.” We have deemed it necessary to introduce to our readers this slight sketch of the literary history of Medical Jurisprudence in relation to its progress in the several countries of Germany, Italy,and France; for much of the information thus afforded we are indebted to the elaborate system ofProfessor Foderé,[43]published in six volumes, in the year 1813, and which must be regarded as a new work, rather than the republication of that already noticed, as having appeared in 1796. From this voluminous treatise we have frequently, in the progress of our present undertaking, made copious extracts. It becomes our duty therefore to present our reader with some account of the extent of its objects, and the order of their arrangement. The author divides his work into three parts, viz. theFirstcomprehending subjects of a mixed nature, or those which admit of application to civil as well as criminal cases, “Médecine Légale mixte.” TheSecondexclusively relating to criminal jurisprudence, “Médecine Légale Criminelle;” and theThird, to medical police, “Médecine Légale Sanitaire.”
The work opens with a learned introduction, in which the importance of the science is fairly examined, and its history pursued with much detail, from its origin, to the period at which the author wrote. The qualifications of the forensic physician are also considered, and the different circumstances opposed to the success of his labours, enumerated and appreciated. Then follow in succession the subjects of the first division, viz. the different ages of human life, puberty, minority, majority, with the anomalies to which the natural growth and developement of the body are liable. Personal identity and resemblance. The relative and absolute duration of life. The grounds of prohibition in testatorship, such as habitual, periodical, and temporary insanity; suicide;deaf and dumb state; somnambulism; intoxication. The qualifications of testators and witnesses. Marriage and divorce. Pregnancy, true and false. Parturition, and the signs denoting the death of the fœtus in utero. Paternity and filiation. Premature and retarded births. Monsters. Hermaphrodites. Survivorship. Signs of real and apparent death. Treatment of the different varieties of Asphyxia. Certificates of exemption, and diseases which exempt. Feigned, dissimulated, and imputed maladies.
TheSeconddivision commences with the third volume, and includes, in their respective order, chapters on the examination of bodies found dead. The distinction of assassination from suicide. Wounds. Poisoning. Rape. Abortion. Concealment and substitution of the offspring; and Infanticide.
TheThirddivision, with which the fifth volume commences, successively treats of the preservation of the human species, and of the means of remedying its physical degeneracy. Contagious, hereditary, and epidemic diseases, and the precautions to be adopted against them. The medical police of cities, with regard to aliment, arts, manufactures, and attention to the sick. Military and naval hygiène; and, lastly, the medical police of hospitals and prisons.
No work of similar calibre had been previously published, and its execution is a sufficient proof of the profound erudition and sterling ability of its author; but it is by no means calculated to assist the inquiries of the English physician. It is often unnecessarily prolix and minute, and is adapted only to the judicial courts of the continent. Since its publication numerous writers on detached questions have sprung up, and thrown much additional light on their obscurer points. The subject of poisons has been veryably elucidated by the researches ofProfessor Orfila[44], and in a work[45]still more recently published by that distinguished professor, the applications of Toxicological Science to Forensic inquiries have been more minutely considered.
The subjects of conception and delivery, with the various questions to which they have given origin, have been very ably discussed byM. Capuron;[46]from whose work it will be perceived we have derived much satisfactory information.
After the historical view which we have taken of the continental literature of the subject, we fear that the labours of our own countrymen, in this department of science, will suffer a disparaging comparison; and yet we trust that any temporary feeling of inferiority and humiliation thus excited, will easily yield to the just conception of the circumstances to which the neglect of the subject is to be attributed.
Although numerous questions connected with objects of forensic inquiry had been discussed and illustrated in the various periodical journals of Great Britain, yet no work, professing to treat of Medical Jurisprudence, appeared previous to the small and imperfect production ofDr. Farrein 1788, entitled “Elements of Medical Jurisprudence,”[47]and which was ratheran abstract of a foreign work, than an original essay. The next in succession was a “Treatise on Medical Police,” byDr. Robertson, in two volumes, published in 1808. In 1815Dr. Bartley, of Bristol, presented us with “A Treatise on Forensic Medicine,” than which it is impossible to conceive any production more meagre or imperfect.Dr. Male[48]is undoubtedly entitled to the grateful notice of the medical historian, as the author of the first respectable English book on forensic medicine.
The last, and by far the most comprehensive and instructive work that has appeared in this country, is byDr. Gordon Smith, entitled “The Principles of Forensic Medicine, systematically arranged, and applied to British Practice.” London, 1821.
In addition to the above writings, we may record the “Medical Ethics” ofDr. Percival; which, although not intended, nor indeed calculated for practical instruction, contains some interesting allusions to our subject. Nor must we omit to enumerate the several valuable monographs with which different English physicians have sought to advance the progress of medico-legal inquiry; as, for instance, the celebrated paper ofDr. Hunter, “On the Uncertainty of the Signs of Murder in the case of Bastard Children;”Dr. Haslam’sintelligent and judicious essay “On Medical Jurisprudence, as it relates to Insanity, according to the Law of England;” andDr. Hutchinson’slaborious “Dissertation on Infanticide.”
Some of the more important subjects of Public Health, received also early notice, and were veryably investigated by our physicians. The plan of ventilating the holds and lower decks of ships, as proposed bySuttonin 1739, must have fallen into total neglect, through the unaccountable prejudice of the Admiralty, had it not received the powerful support ofDr. Mead, by whose advice experiments were publicly made, the success of which was, in the year 1741, acknowledged in an order of his Majesty that all vessels belonging to the Navy should be provided with ventilators. About the same periodHalespublished his celebrated memoir on the various causes which influence the health of seafaring men, and on the precautions necessary to be taken to prevent those maladies which frequently display themselves in ships and other confined situations; among which modes of safety the most important was a plan of ventilation by means of very ingenious bellows, and which were used with much success in the prisons of Porchester castle, Winchester, and Newgate;[49]and in the several hospitals of London, Bristol, and Northampton.
In the year 1803, on the presentation of a memorial to his late Majesty’s ministers, urging the expediency of a Professorship of Medical Jurisprudence, in the University of Edinburgh, a Chair was endowed, andDr. Duncan, junior, appointed to fulfil its duties; which, for many years he has continued to perform, with infinite credit to himself, and with equal advantage to the University and to the public. In the schools of England we continue to suffer from the want of such an establishment;Dr. Harrison, a few years since, read some lectures on the subject in the Medical Theatre of Windmill street; andDr. Gordon Smith,has announced his intention of devoting himself to the duties of a public lecturer on Medical Jurisprudence.Dr. Elliotsonhas also lately published his “Introductory Lecture of a Course upon State Medicine,” which he proposes to deliver in the Anatomical Theatre in Southwark.
But it has been demanded, and in a tone, as it would seem, suggested by the feelings of mortified pride and disappointment, how it can have happened that in Britain, a country distinguished above all others for the unceasing jealousy and circumspection with which every thing that even remotely interests the life and comfort of the subject is scrupulously regarded, a science so peculiarly calculated to control the disorders of the social system, to rescue innocence from infamy or death, and to lead to the detection and punishment of crime, should for so long a period have been imperfectly appreciated, and utterly neglected?
The answer to the charge is obvious, and, we trust, satisfactory. The progress of medical knowledge, including its collateral branches of science, can only within a few years be said to have rendered its applications available to the laws; while the spirit of British liberty and independence not only resists the perpetual intrusion of authorities, so necessary in other countries for the preservation of the public health, but insures, without the aid of legal enactments, all the benefits which can accrue from domestic cleanliness and attention.[50]But upon each of these points it will be necessary to offer some farther remarks.
That the evidence afforded by an improving, but still precarious and imperfect physiology, should have been indiscriminately received at the tribunals of those countries where the decision of questions of justice is too often influenced, and even directed by the subtleties of casuistry, may be regarded as a subject of regret, but can scarcely excite the feeling of astonishment. Nor can we, on the other hand, be surprised to find, that the extreme jealously of the British courts of judicature should have resisted testimony which admits of being depreciated, or in any degree rendered questionable, by the doubtful controversies of science. So rapid, however, has been the progress of the leading branches of medical knowledge during the last ten years; and so successfully have they disentangled themselves from the many fatal fallacies with which they were encompassed, that the general prejudice against their practical utility, in advancing the administration of justice, must gradually subside, and the study of forensic medicine become universally popular. To strengthen our conviction upon this point we have only to compare the evidence of medical men, as delivered in the courts of justice during the last, and present century. Even so late as the period ofSir Thomas Browne, we find that learned physician bearing public testimony to the reality of diabolical illusions, and occasioning, by his evidence, the conviction and condemnation of two unfortunate persons, who were tried at Bury St. Edmonds before the Lord Chief BaronSir Mathew Hale, on the capital charge of bewitching the children of aMr. Pacey, and causing them to have fits![51]Inexamining the chemical evidence in cases of poisoning, let us only compare that which was given byDr. Addingtonon the trial ofMary Blandy, at Oxford in 1752, (see Appendix, p. 236) with that which has been delivered on any of the trials of the present day. Compare again the nature of the physiological evidence which has been received as satisfactory and conclusive, in cases of infanticide, with that which is acknowledged by the most distinguished physicians of our own times to be wholly inadequate to establish even a presumption of guilt.
With regard to the next point under consideration, viz. the expediency of an extended system of medical police in a free country like Great Britain, we have only to observe that, if we examine the extent of such institutions in the different states of Europe, we shall find it universally conformable with the genius, circumstances, and necessities of each government. Sweden, for instance, a country which from position, climate, and population, is relatively feeble, has found it necessary, for its very existence, to cultivate with assiduity the few resources which nature has bestowed upon it; and, hence, by a well digested system of medical statistics,[52]ithas been enabled to achieve extraordinary and brilliant actions, and to repair immense losses which it would otherwise have been unable to survive.
In Paris there exists a complete system of “Assainissement,” or police for the preservation of the public health. Its administration devolves uponM. le Préfet de Police, who for some years resorted to chemists and physicians for advice upon the different questions that might arise; upon such occasions, however, it is evident that he could only obtain that isolated advice, which, for want of having been properly discussed, was frequently arbitrary and weak; he had indeed sometimes temporary commissions, which were formed when any important problem was to be solved. In the year 1802 a council of health was, on the recommendation ofM. Cadet de Gassicourt, permanently established. At first it only consisted of four members; but the new avocations required day by day, so multiplied their labours, that they were compelled in 1807 to increase the number of members composing it to seven; and the particular attention necessary to be paid to epidemical diseases determinedM. le Préfetto add to it two physicians. The duties of this council of health were, to watch over all insalubrious manufactories and workshops; to collect observations on epidemics, and on the sources from whence they arose. They had, moreover, the charge of superintending the cleansing of the markets, rivers, slaughter-houses, butchers offal, burying-places, sewers, &c. and also of inspecting the public baths;the manufactories of the artificial, and the depots of the natural mineral waters; the amphitheatres for dissection; of making statistical researches on the bills of mortality; on the means of rendering the theatres, hospitals, and other public places more salubrious; on the best system for heating and lighting; on the composition of secret remedies; suspected vessels, &c. When this council received its definite organization, it was composed of the following persons, whose names are a sufficient guarantee of the ability with which the duties of the establishment must have been performed—M. D’Arcet,M. Le Chevalier Cadet de Gassicourt,MM. Deyeux,Berard,Huzard,Leroux,Dupuytren,Pariset,Petit,Marc, andGirard.
An establishment similarly constituted in this country, that should from time to time report its labours to the home department, would without doubt be attended with much advantage, and might suggest many police regulations highly conducive to the health and welfare of the community.
Of the severity of the French system of police, “Pharmaco-legale,” the reader may form some idea, when we inform him that, during the progress of the present work through the press, an apothecary of Verdun has been fined three thousand francs, for selling sulphuric acid to a woman who had poisoned herself with it. We are very far from objecting to such a system, especially where the respectability and knowledge of the vender are not guaranteed by an adequate power vested in some medical corporation. In Germany a mistaken policy exists of regulating every thing connected with health by the law, and which has led to the formation of a cumbrous code of contradictory, and often, injurious enactments.
The legislature of Britain has been accused of apathy upon all subjects in which the prosperity of commerce is not involved, and upon such occasions it is said to display a morbid vigilance and activity; “so truly mercantile are the English,” observesProfessor Raynal, “that they mix up commerce with their philosophy, and even with their religion;” as a proof of this, he instancesMr. Locke, who, amongst his arguments for converting the Indians, adds that, “by being thus induced to cover their naked bodies, they would add to the consumption of British manufactures.” We do not admit the allegation, and may be allowed to ask, in what country the fruits of commerce are more liberally devoted to the encouragement of science, or to the promotion of religion? In truth, the benefits which are enforced by the legal enactments of other countries, are in England the spontaneous consequence of individual liberality; and what is that repose which the jealousy of our rival neighbours has denominated apathy, but the placid expression of satisfaction experienced by the whole community at the active liberality of the numerous individuals of which it is composed? We are, nevertheless, willing to admit that occasions do exist in which the interference of the legislature might be made subservient to the preservation of the public health; and, in the course of our work, we have not felt any hesitation in directing the attention of the reader to their several merits. We have, in particular, recommended some enactments in cases of epidemic disease. Under such circumstances of public calamity the people naturally look for the sympathy and support of their government; and the general confidence inspired by a public act, however unimportant in itself, will always be attended with advantage;it will have the tendency to diminish the susceptibility of the people, and to limit the ravages of disease. The sages of ancient Rome were deeply sensible of this important fact in the œconomy of the people; whenever, therefore, their city was threatened with pestilence, a dictator was elected with great solemnity, for the sole purpose of driving a nail into the wall of the temple of Jupiter; and thus, while they imagined that they propitiated an offended deity, they diminished the susceptibility to disease, by appeasing their own fears.
Much benefit might also be conferred on the operative classes of society, by some judicious enactments that should ensure the adoption of the various plans of safety and protection, which science has from time to time discovered for the advantage of those who are engaged in the more dangerous occupations and manufactories; but which, from the apathy of some, and the prejudice of others, have been either heedlessly neglected, or illiberally and insolently repulsed. The blind opposition, which such inventions meet with, is well illustrated in the history of thesafety lampofSir Humphry Davy, an instrument which has completely succeeded in use, and yet such is the obstinacy of the miners, that many of them continue to expose their own lives, and those of their companions, by carrying open lanterns about the galleries of the mines. The author of the present work has personally experienced the same mortifying insensibility and opposition, in his attempts to prevent the awful accidents that so frequently occur in the mines of Cornwall, from the premature explosion of gunpowder,[53]in the operation of blasting rocks.
In the processes ofneedle-pointinganddry-grinding, the artisans rarely live many years, in consequence of the organic mischief produced in the pulmonary organs, from the fine metallic particles that are inhaled during the operation; to obviate such a source of danger, the Society of Arts offered a premium for any invention that might afford security, and their gold medal was, in consequence, presented toMr. Abraham, of Sheffield, for his “magnetic guard.” Notwithstanding the expediency of this apparatus, we understand that the greatest opposition has been manifested by the workmen to its introduction. From the extreme danger of the process their wages are very high, and they fear that the adaption of any system that may diminish the risk will be followed by a corresponding reduction in their pay.
Surely such a subject well deserves the attention of the legislature. In France thePrefet de Policewould prohibit the carrying on of such arts, unless every means of safety were applied. Such a measure was adopted in the case of thewater-gildersin Paris, who hesitated to employ the means of ventilation suggested byM. d’Arcetfor their security. It is not our intention to recommend a jurisdiction so absolute and summary, but some enactments should be framed that might secure the safety of the artisan, without infringing upon the liberty of the subject.
Wherever governments have interfered for the purpose of encouraging and rewarding, or of prohibiting and restraining, particular medical opinions or practices, the inexpediency of such interference has generally been soon discovered and demonstrated. What could have been more absurd than the attemptof the French parliament to proscribe the use of antimony,[54]or the sale of poppy oil;[55]or the enactments of the different governments of Europe to restrain the custom of smoking tobacco.[56]The pension conferred by the French government uponM. Sigault[57]for the invention of a new mode of facilitating delivery, in cases of difficult parturition; and the medal which was struck to commemorate it, were measures not less inconsiderate and absurd than the vote, by our own parliament, of five thousand pounds toMrs. Stephensfor the supposed discovery of a medicine that could dissolve a calculus in the bladder. But it may be said that we are reasoning against the propriety of a practice from its abuse—That may be very true; but our object is to shew that such a practice is pre-eminently exposed to fallacy and abuse. We profess ourselves, generally, hostile to the policy of remunerating medical discoveries, as they have been termed, by grants of money; although we cheerfully tender our homage and thanks for the great service rendered this country and the world, by the liberal support which the government has afforded to the cause of vaccination; and were the minister even now to withdraw the necessary supplies for the continuance of the vaccine board, the consequences that would, under such circumstances, ensue, afford a subject of the most awful consideration.
According to the view which we have taken of the subject of medical police, as necessary to the welfare of this country, our attention is necessarily directed to the Royal College of Physicians, as the only legitimate source from which the government is to deriveits information, and the public their protection. No apology therefore can be necessary for the minute research by which we have endeavoured to ascertain and establish their existing rights and privileges. Under any circumstances it must be an object of the first importance to the profession, but at the present period the inquiry would seem to be marked with a more than ordinary degree of interest, as the anticipated removal of the College, and the increased attention which has been recently drawn to the subject, appear to promise considerable improvements not only in the interior arrangement of that learned body, but also in their public relations.