Chapter IV: 38 (3)

Mr. Gisborne, in his “Enquiry into the Duties of Men, in the Higher and Middle Classes of Society[144],” a work to which I have already referred, as an admirable system of practical and appropriate ethics, has very explicitly and forcibly delivered his sentiments on this interesting subject. “The charge,” he says, “may have been made on partial and insufficient grounds; but the existence of it should excite the efforts of every conscientious Physician to rescue himself from the general stigma. It should stimulate him, not to affect a sense of Religion which he does not entertain, but openly to avow that which he actually feels.... If the charge be in some measure true, it is of importance to the Physician to ascertain the causes from which the fact has originated, that he may be the more on his guard against their influence. The following circumstances may not have been without their weight. They who are accustomed to deep researches into any branch of philosophical science; and find themselves able to explain to their own satisfaction almost every phenomenon, and to account (as they apprehend,) for almost every effect by the operation of such causes as in ordinary language are termed _natural_, are apt to acquire extravagant ideas of the sufficiency of human reason on all subjects: and thus learning to doubt the necessity, become prejudiced against the belief, of Divine Revelation. In the next place, they who justly disclaim the empire of authority in Medical theories, may carelessly proceed to regard religious doctrines as theories, resting on no other foundation, and deserving of no better fate. Thirdly, it is to be observed, that men may be divided into two distinct classes, with respect to the sort of testimony on which they receive truths of any kind. They who are chiefly addicted to investigations and reasonings founded on analogy, look primarily and with extreme partiality to that species of evidence; and, if the thing asserted appears contrary to the common course of nature, more especially if it militate against any theory of their own, (and such persons are much disposed to theorize,) they are above measure reluctant to admit the reality of it, and withhold their assent until such a number of particular proofs, incapable of being resolved into fraud or misconception, is produced, as would have been far more than sufficient to convince an unbiassed understanding: whereas other men, little used to analogical enquiries, look not around for such testimony either in support or in refutation of an extraordinary circumstance affirmed to them; but readily give credit to the fact on its own distinct proofs, or from confidence in the veracity and discernment of the relator. It is evident that Physicians are to be ranked in the class first described, and are consequently liable to its prejudices: and it is equally evident that those prejudices will render all on whom they fasten, particularly averse to recognise the truth of miracles; and will probably prevent them from examining with impartiality the evidence of a religion founded on miracles, and perhaps from examining it at all. Fourthly, to the preceding circumstances must be added the neglect of Divine worship too customary among persons of the Medical profession. This neglect seems to have contributed not only to excite and to strengthen the opinion of their scepticism and infidelity, but sometimes to produce scepticism and infidelity itself; for it is a natural progress, that he who habitually disregards the public duties of Religion, should soon omit those which are private, should speedily begin to wish that Christianity may not be true, should then proceed to doubt its truth, and at length should disbelieve it.”

The late Dr. [John] Gregory of Edinburgh, anxious to support the honour of a profession which he loved, and of which he was a distinguished ornament, very strenuously repels the charge against it of scepticism and infidelity. Though his excellent Lectures are doubtless in the hands of most Physicians, yet I am tempted to make a transcript from them, because I wish the present important subject to be viewed in the several lights in which it has been presented to the mind by different writers of acknowledged probity, information, and judgement. “I think the charge,” he observes[145], “ill founded, and will venture to say, that the most eminent of our Faculty have been distinguished for real piety. I shall only mention as examples, Harvey, Sydenham, Arbuthnot, Boerhaave, Stahl, and Hoffmann.—It is easy, however, to see whence this calumny has arisen. Men whose minds have been enlarged by knowledge, who have been accustomed to think, and to reason upon all subjects with a generous freedom, are not apt to become bigots to any particular sect or system. They can be steady to their own principles, without thinking ill of those who differ from them; but they are impatient of the authority and control of men, who would lord it over their consciences, and dictate to them what they are to believe. This freedom of spirit, this moderation and charity for those of different sentiments, have frequently been ascribed by narrow-minded people to secret infidelity, scepticism, or, at least, to lukewarmness in Religion; while some who were sincere Christians, exasperated by such reproaches, have sometimes expressed themselves unguardedly, and thereby afforded their enemies a handle to calumniate them. This, I imagine, has been the real source of that charge of infidelity, so often and so unjustly brought against Physicians.... The study of Medicine[146], of all others, should be the least suspected of leading to impiety. An intimate acquaintance with the works of Nature raises the mind to the most sublime conceptions of the Supreme Being; and at the same time dilates the heart with the most pleasing views of Providence. The difficulties that necessarily attend all deep enquiries into a subject so disproportionate to the human faculties, should not be suspected to surprise a Physician, who, in his practice, is often involved in perplexity, even in subjects exposed to the examination of his senses.

“There are, besides, some peculiar circumstances in the profession of a Physician, which should naturally dispose him to look beyond the present scene of things, and engage his heart on the side of Religion. He has many opportunities of seeing people, once the gay and the happy, sunk in deep distress, sometimes devoted to a painful and lingering death, and sometimes struggling with the tortures of a distracted mind. Such afflictive scenes, one would imagine, might soften any heart, not dead to every feeling of humanity, and make it reverence that Religion, which alone can support the soul in the most complicated distresses; that Religion, which teaches to enjoy life with cheerfulness, and to resign it with dignity.”

The judicious and animated considerations which are here delivered, could proceed only from a mind actuated by the principles of virtue and Religion; and I trust the great majority of Physicians have their feelings in unison with those of the amiable writer I have quoted. But there may be some who have been hardened to moral apathy by the very causes which should excite benevolence and piety. It has been well remarked by divines and metaphysicians, that _passive impressions_ become progressively weaker by frequent recurrence; and that the heart is liable to grow callous to scenes of horror and distress, and even to the view of death itself. This law of nature is intended by the wise and benignant Author of our frame to answer the most salutary purposes, by co-operating with another of equal, perhaps superior, force: for _active propensities_ are formed and gradually strengthened by the like renewal of the circumstances which excite them. The love of goodness is thus rendered habitual; and rectitude of conduct is steadily and uniformly pursued without struggle or perturbation.

The human character then attains the highest excellence of which this probationary state is capable; and perhaps the Medical profession is more favourable than any other to the formation of a mental constitution, that unites in it very high degrees of intellectual and moral vigour; because it calls forth the steady and unremitting exertions of benevolence, under the direction of cultivated reason; and, by opening a wider and wider sphere of duty, progressively augments their reciprocal energies. But the connection between the laws of impression, and of habit, is not so determinate and necessary as to be wholly independent of the agent who is under their influence. By a perversion of the understanding and the will, they may be, and sometimes are, separated. The affections also, when the temperament is phlegmatic, subsist only in a languid state; and are too evanescent to produce a permanently correspondent frame of mind. If with this coldness of heart a sceptical turn of thinking happen to be associated, either constitutionally or from the casualties of study and connections, virtuous principles will gradually decay; all the tender charities of life will soon be extinguished; a future state will be either disbelieved or regarded with indifference; and practical atheism will ensue, with the whole train of evils which result from a denial of the creative agency of GOD, or His Divine administration. Allowing this to be an extreme and barely possible case, (a concession which I am solicitous to grant to my countrymen, notwithstanding what has been fatally experienced in a neighbouring kingdom,) yet different gradations towards it may subsist, and the first step should be avoided with sedulous care. The countervailing power of Religion is here essentially necessary, because nothing besides can furnish motives to rectitude, of adequate dignity, weight, and authority. To restore the impressions of piety which have been lost or impaired, without falling into the fervours of enthusiasm, or the gloom of superstition, may be an arduous task, a task that will require time and perseverance to accomplish. But the attainment will amply repay the labour, by the sweet satisfaction which a Physician cannot fail to derive from the consciousness that he exercises his profession under the inspection of a Being Who approves and will reward every effort to acquire His favour by doing good to mankind. In his offices of humanity, he will feel an interest and elevation, of which those can have no conception who regard the human race, (and consequently the sufferers under their care,) not as the offspring of GOD, or as expectants of immortality, but as the creatures of a day, formed by the casual concourse or the natural appetencies of atoms, and born only to perish. Such degrading and unhappy notions often spring from a love of paradox, a passion for novel hypothesis, ambition to be victorious in subtle disputation, and a contempt for established authority, accompanied for the most part with an implicit submission to empirics in science, who dogmatize most when they assume the mask of scepticism. To the successful pursuit of truth it is necessary to bring a well-disciplined mind, modest and sober in its views, and uninfluenced not only by vulgar, but by philosophical prejudices, which are far more dangerous, because more plausible and fascinating. When subjects which relate to theology are investigated, reverence and humility should be associated with all our reasonings. No practice is more subversive of devotional sentiment, than that of carrying into religious discussions the licentiousness of thought and expression, which young Physicians are too apt to indulge on Medical topics. He who can suffer himself to treat his Maker with indifference and with levity, whether it be in utterance or in contemplation, will soon lose the religious impressions of reverence, gratitude and love; and his mind will then be prepared for the systems of impiety and atheism, which of late have been so boldly promulgated under the imposing name of philosophy. Productions of this class should be shunned, even by those who are thoroughly grounded in rational faith; because familiarity with them can hardly fail to impair the moral sensibilities of the heart. They are “evil communications,” which forcibly tend to “corrupt good manners.”

To the comprehensive view of a well-educated Physician, the Divine Being will appear, with the fullest manifestation, in all without and all within him. Through the several kingdoms of nature, with which he is intimately acquainted, he traces every where design, intelligence, power, wisdom, and goodness; and in the frame of his own body, as well as in the constitution of his mental faculties, he finds especial reason to conclude, that, above all the other works of the creation, “he is fearfully and wonderfully made[147].” The daily offices of his profession disclose to him irrefragable proofs of the providence and moral government of GOD. Health, as consisting in the soundness and vigour of the bodily organs, and in their complete aptitude for exertion and enjoyment, is doubtless of inestimable consideration. But the occasional suspension of this blessing may be necessary to obviate the abuses to which it is liable, to evince its high value, to remedy the injuries it may have sustained, and to insure its future more permanent duration. A strong constitution is too often made subservient to sensuality, ebriety, and other licentious indulgences, which, if not seasonably interrupted by the experience of consequential suffering, would prove destructive to the animal economy, and bring on premature decrepitude or death. Diseases, under these circumstances, furnish a beneficial restraint, and preserve the mind from contamination, whilst they are often the remedies which nature has kindly provided for the restoration of the vital functions. A good, which has been lost and beneficently restored, will be prized according to its high desert; and, being cherished with assiduous care, will be prolonged and applied to its proper uses in the great business of life. But sickness, it must be acknowledged, is not always remedial in its tendency; and frequently produces degrees of protracted languishment and pain, grievous to endure, and obstructive of those active offices, which, in his present sphere, man is called upon to perform. There are duties, however, of another class, not less essential to the improvement and excellence of his moral and religious character; and where is a school to be found like the chamber of sickness for meekness, patience, resignation, gratitude, and devout trust in GOD? There pride is humbled, the angry passions subside, animosities cease, and the vanities of the world lose their bewitching attractions. False associations are there corrected, true estimates are formed; and, whilst the passive virtues are cultivated in the suffering individual, all who minister to him have their best dispositions exercised and improved. Tenderness, humanity, sympathy, friendship, and domestic love, on such occasions, find that sphere which is peculiarly adapted to their exertion; and all the softer charities derive from these sources their highest refinements[148].

Rational theism leads the mind, by fair and necessary induction, to extend its views to Revelation. He who has discovered the Divine wisdom, power, and goodness, through the various works of creation, will feel a solicitude to make farther advances in sacred knowledge; and, the more profoundly he venerates the Author of his being, the more earnest will he be to become acquainted with His will, with the means of conciliating His favour, with the duration of his own existence, and with his future destination. Several distinguished characters in the heathen world have in a very explicit manner testified the truth of this observation. Suffice it to state only the following remarkable passages from Plato[149]:—“A divine revelation is necessary to explain the true worship of GOD—to add authority to moral precepts—to assist our best endeavours in a virtuous course—to fix the future rewards and punishments of virtuous and vicious conduct—and to point out some acceptable expiation for sin.” He introduces Socrates, assuring Alcibiades, “that in a future time a divine person will appear, who, in pure love to man, shall remove all darkness from his mind, and instruct him how to offer his prayers and praises in the most acceptable way to the Divine Being.” The privileges which this intelligent and amiable philosopher ardently looked for, we happily enjoy. Christianity has “brought life and immortality to light[150];” and the Gospel is the sacred charter of our expected inheritance of felicity. To regard with indifference what is so momentous, is the grossest folly; to be dissatisfied with its evidence, argues the want of discernment and of candour; and to reject it, without deliberate and conscientious investigation, is a high degree of impiety: the appeal, however, must finally be made to the judgement of every individual; and we may humbly hope, that He Who knoweth our frame, will pity intellectual infirmity, and pardon involuntary error.

NOTE IX. Chap. ii. § 31. p. 66.

_Union in consultation of senior and junior Physicians._

“Heat and vivacity in age,” says Bacon[151], “is an excellent composition for business. Young men are fitter to invent than to judge, fitter for execution than for counsel, and fitter for new projects than for settled business; for the experience of age, in things that fall within the compass of it, directeth them, but in new things abuseth them. The errors of young men are the ruin of business; but the errors of aged men amount but to this, that more might have been done or sooner. Young men, in the conduct and manage of actions, embrace more than they can hold; stir more than they can quiet; fly to the end without consideration of the means and degrees; pursue some few principles, which they have chanced upon, absurdly; care not to innovate, which draws unknown inconveniences; use extreme remedies at first; and, that which doubleth all errors, will not acknowledge or retract them; like an unruly horse, that will neither stop nor turn. Men of age object too much, consult too long, adventure too little, repent too soon, and seldom drive business home to the full period, but content themselves with a mediocrity of success. Certainly it is good to compound employments of both; for that will be good for the present, because the virtues of either age may correct the defects of both; and good for succession, that young men may be learners, while men in age are actors; and lastly, good for extern accidents, because authority followeth old men, and favour and popularity youth. But for the moral part, perhaps youth will have the pre-eminence, as age hath for the politic.”

[NOTE X. Chap. iv. § 2. p. 79.

_On Wills._

In case of intestacy if a man leave a wife and children, the wife takes one third of the personal estate, and the other two thirds belong to the child or children. If the deceased leave a wife, but no child, one half of his personal estate will descend to his wife, and the other half will be divisible among his nearest of kindred, in the same manner as the whole would have been divisible if he had left no wife. But under no circumstances is the wife entitled to more than half of her husband’s estate, if he die intestate. The father of an intestate without issue is entitled to one half of his estate if he leave a widow, and to the whole if he leave none. When the nearest of kindred are the mother and the brothers and sisters, the personal estate is divisible into equal portions, one of which will belong to the mother, and one to each of the brothers and sisters[152]

By Stat. 1 Vict. c. 26, one settled rule is established, which is applicable to every species of Wills and every description of property; it being enacted that no Will shall be valid unless it shall be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction. Every will must have at least two witnesses, who must be present at the same time during the signature of the testator, and must attest and subscribe the Will in the presence of the testator:—but no particular form of attestation is necessary.—If a person to whom a legacy is given, be witness to a Will, he forfeits his legacy; but a creditor may be a witness to a Will without forfeiting his debt, and also an executor without invalidating his appointment to the executorship.]

NOTE XI. Chap. iv. § 2. p. 83.

_Partial insanity, with general intelligence. Lucid interval._

Sir Matthew Hale has stated[153], that “There is a _partial_ insanity of mind; and a _total_ insanity. The former is either in respect to things, _quoad hoc vel illud insanire_; some persons, that have a competent use of reason in respect of some subjects, are yet under a particular _dementia_ in respect of some particular discourses, subjects, or applications; or else it is particular in respect of degrees; and this is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital; for doubtless most persons that are felons of themselves, and others, are under a degree of partial insanity, when they commit these offences.... The person that is absolutely mad for a day, killing a man in that distemper, is equally not guilty, as if he were mad without intermission. But such persons as have their lucid intervals (which ordinarily happens between the full and change of the moon,) in such intervals have usually at least a competent use of reason, and crimes committed by them in these intervals are of the same nature, and subject to the same punishment, as if they had no such deficiency; nay, the alienations and contracts made by them in such intervals are obliging to their heirs and executors.”

Partial insanity and general intelligence may subsist in various degrees and proportions to each other in different persons, and even in the same person at different times. If Socrates had lived at this period, and had not only professed himself to be governed by the influences of a familiar spirit, or demon, but had also uniformly regulated his conversation and actions by this persuasion, he would have been justly chargeable with derangement of mind, notwithstanding the profound wisdom which he displayed in his instructions concerning morals and the conduct of life. Lord Herbert of Cherbury was highly distinguished both for talents and erudition: but, having unfortunately adopted prejudices against Christianity, he wrote an elaborate work entitled, “De Veritate, prout distinguitur a Revelatione;” and, knowing it would meet with much opposition, he remained some time in anxious suspense about the publication of it. Providence, however, as he informs us in his own biographical memoirs, kindly interposed, and determined his wavering resolutions. “Being thus doubtful in my chamber, one fair day in the summer, my casement being opened towards the south, the sun shining clear, and no wind stirring, I took my book, ‘De Veritate,’ in my hand, and kneeling on my knees, devoutly said these words:—‘O Thou eternal GOD, ... I am not satisfied enough whether I shall publish this book, “De Veritate;” if it be for Thy glory, I beseech Thee give me some sign from heaven; if not, I shall suppress it.’ I had no sooner spoken these words, but a loud though yet gentle noise came from the heavens, (for it was like nothing on earth,) which did so comfort and cheer me, that I took my petition as granted, and that I had the sign I demanded; whereupon also I resolved to print my book.” This was not a temporary delusion of the imagination, but continued a permanent object of belief through life. And the impression was more extraordinary, and more indicative of an unsound mind, because Lord Herbert’s chief argument against Christianity is, the improbability that Heaven shall reveal its laws _only to a portion of the earth_. For how could he, who doubted of a _partial_, confide in an _individual_, revelation? or is it possible that he could rationally think his book of sufficient importance to extort a declaration of the Divine will, when the interest and happiness of a fourth part of mankind were deemed by him objects inadequate to the like display of goodness[154].

The history of the Rev. Simon Browne still more remarkably exemplifies the union of vigour and imbecility, of rectitude and perversion in the same understanding. The loss of his wife and of his only son so powerfully affected him, that he desisted from the duties of his clerical function, and could not be persuaded to join in any act of worship to the Deity, either public or private. “He imagined that Almighty GOD, by a singular instance of Divine power, had, in a gradual manner, annihilated in him the thinking substance, and utterly divested him of consciousness: that, though he retained the human shape, and the faculty of speaking, in a manner that appeared to others rational, he had all the while no more notion of what he said than a parrot. And, very consistently with this, he looked upon himself as no longer a moral agent, a subject of reward or punishment.” In this conviction he continued with very little variation, to the close of life. Yet, whilst under the influence of this strange phrenzy, his faculties, in all other respects, appeared to be in full vigour. He applied himself with ardour to his studies; and was so acute a disputant, that his friends were wont to say, “he could reason as if possessed of _two_ souls.” Indeed, both his imagination and his judgement were so improved as to surpass the state in which they subsisted during his perfect sanity[155].

In J. J. Rousseau, we have a most interesting example of morbid sensibility and depraved imagination, combined with extensive knowledge and pre-eminent genius. It is said by Madame de Staël[156] that “sometimes he would part with you, with all his former affection; but, if an expression had escaped you, which might bear an unfavourable construction, he would recollect it, examine it, exaggerate it, perhaps dwell upon it for a week, and conclude by a total breach with you. Hence it was, that there was scarce a possibility of undeceiving him; for the light which broke in upon him at once, was not sufficient to efface the wrong impressions which had taken place so gradually in his mind. It was extremely difficult too to continue long on an intimate footing with him: a word, a gesture, furnished him with matter of profound meditation; he connected the most trifling circumstances, like so many mathematical propositions, and conceived his conclusion to be supported by the evidence of demonstration[157].”

I have hazarded an opinion in the text, contrary to what, I believe, is usually adopted by lawyers, that there may be cases of partial insanity with a high degree of general intelligence, in which the individual ought not to be precluded from the privilege of making a last will and testament. To deny the testamentary qualification to one, who, notwithstanding some false predominant conception, has been held capable of managing his concerns with discretion, and whose bequests discover no traces of a disturbed imagination, or unsound judgement, seems to be inconsistent both with wisdom and with natural justice. Such a person, I presume, is capable of acquiring property by legacy, by bargain, by transfer, by industry, or by office; and he is not prohibited during life from giving or expending possessions thus obtained. Why then does the law deprive him of the right of bequeathing after death, that which he might have dispensed, when alive, without control? Whatever be the opinion which a Medical practitioner may have entertained concerning the capacity or incapacity for making a will of one under these circumstances, it can hardly be necessary to observe, that his evidence, when called for in a course of legal enquiry, should be delivered explicitly, and without any bias from his pre-conceptions. On the point litigated it is the exclusive province of the judge and jury to decide, after a full investigation of the case.

To determine the existence of a lucid interval in the delirium of fever, or in the more permanent alienation of mind which constitutes insanity, the testimony of a Physician is sometimes required in courts of law. It will be incumbent on him, therefore, to possess a clear and definite opinion on the subject, founded both on the nature of the malady, and the state of the patient. The cessation of febrile delirium is not difficult to ascertain, because the rational faculties, being unimpaired by a short suspension, at once manifest their renewal by signs which cannot be misunderstood; but the complete remission of madness is only to be decided by reiterated and attentive observation. Every action and even gesture of the patient should be sedulously watched, and he should be drawn into conversations at different times that may insensibly lead him to develope the false impressions under which he labours. He should also be employed occasionally in business or offices connected with, and likely to renew, his wrong associations. If these trials produce no recurrence of insanity, he may, with full assurance, be regarded as legally _compos mentis_ during such period, even though he should relapse a short time afterward into his former malady.

[NOTE XII. Chap. iv. § 5. p. 85.

_On the new Lunatic Act._

By Lord Ashley’s new “Act for the Regulation of the Care and Treatment of Lunatics,” (8 and 9 Vict. c. 100.) many alterations were made in the old law, of which the following are some of the most important[158].

We have, in the first place, secured by this act a permanent body of six able and experienced gentlemen to officiate as visiting Commissioners, three of whom are barristers, and three are physicians, and who are required to devote their time exclusively to the performance of their official duties. They are not permitted to hold any other office for which they derive remuneration, or to be connected either directly or indirectly with any public or private establishments for the reception of the insane; neither can they exercise their respective professions of law and medicine. They receive a salary of £1500 per annum; and the appointment is for life. They are empowered not only to visit private lunatic asylums, but gaols, workhouses, and hospitals,—in fact, every place in which insane persons are confined. They are to institute the most rigid scrutiny into their condition, with the view of ascertaining whether they are unjustly confined, or improperly treated; and, if such should be the case, to report accordingly to the Lord Chancellor, who is invested with full authority to redress any injury which may have been inflicted.

With respect to the medical certificates required of those who have the power of consigning a fellow-creature to an asylum, formerly, the Physician, Surgeon, or Apothecary, was merely called upon to certify to the abstract fact of the presence of unsoundness of mind in any given case; but, according to the present law, it is necessary for the person signing it to state the facts in connexion with the case upon which he has founded his opinion. Independently of thus affording an additional protection to the public, a body of valuable information will be obtained, which may be turned by the Commissioners to useful account. In connexion with this branch of the subject may be mentioned the Medical “Case Book,” which the Act requires every Medical superintendent of the insane to keep for the inspection of the Commissioners. He is not merely (as under the old law,) to enter the name, form of the malady, the place of abode, age, and social condition of each patient intrusted to his care, but he is, at the same time, to give in writing a correct description of the medicine and other remedies prescribed for the treatment of his disorder.

Among the minor, but still important, amendments effected in the law, the following may be mentioned: the Act enables a proprietor of an asylum to retake a patient who may have escaped from confinement. Again, parties guilty of ill-treating a patient may be proceeded against for misdemeanour. Individuals considering themselves to have been ill-treated, or wilfully neglected, may, after having regained their liberty, obtain, upon application to the Secretary of the Commissioners, a copy of the medical certificates and order with the view to legal proceedings. In the case of the death of any patient, a statement of the cause of death, with the name of any person who may have been present, is to be drawn up and signed by the Medical attendant, a copy of which is to be sent to the Commissioners. Patients may now be transferred, with the consent of the party signing the order, from one licensed house to another, without renewing the medical certificates; while, under the former Act, the proprietor had to procure fresh certificates for each patient before such a change of residence could be effected. The Commissioners have the power of making a night visitation to any house in which they may have reason to believe that the patients are subjected to ill-treatment. No patient pronounced by the Medical superintendent to be “dangerous” can be removed from an establishment, unless for the purpose of transferring him to another, without the consent of the Commissioners. The Commissioners also have the power of regulating the dietary of pauper patients confined in licensed houses and hospitals. There is to be a weekly meeting of the board for the consideration of, and adjudication upon, any matters touching the working of this Act, which will very much facilitate the practical operation of the law, as the Commissioners have the power to apply an immediate remedy for any abuse which may be brought under their notice.

Proprietors of asylums are by the new law much more effectually protected than under the former Act. If a party insane, or alleged to be so, is received into a licensed house or hospital, with a written order for his reception, and two medical certificates, the person so admitting him, having complied with the provisions of the act of parliament, is protected from any vexatious actions which might be brought against him by persons representing themselves to have been unjustly confined and detained. The Act enables the proprietor, superintendent, servants, and any person engaged in receiving, detaining, retaking, and confining a person legally certified to be insane, to plead the order and certificates in bar of all proceedings at law. No action can be maintained against any individual who has in respect of such persons kept within the strict letter of the enactment.

Again, the Act allows the superintendent and proprietor fourteen days to retake a patient who may have made his escape from an asylum, without the necessity of having to procure a fresh order and medical certificate.

But perhaps the most important provision in the new Act, is that which relates to single patients in unlicensed houses and cottages. By the present Act, no one insane, or said to be so, can be sent to, or received in, any unlicensed place, unless two medical certificates have been obtained certifying to the patient’s insanity. The person taking charge of such patient is immediately to make a return of his name to the Commissioners, and he is subject to their visitation. The friends or relatives of the patients are compelled by the Act to appoint a Medical superintendent to visit occasionally persons confined in unlicensed places, who is required to enter into a “Medical Visitation Book” all the particulars connected with each case, with an account of the medical and moral treatment adopted. This book is to be open to the inspection of the Commissioners.

By this Act, therefore, (irrespectively of many minor improvements,) four important amendments in the law relating to the regulation of lunatics and lunatic asylums are introduced. First, by the establishment of a permanent body of experienced Commissioners, authorized to inspect every place in which the insane are confined, (excepting those placed under the care of persons who derive no remuneration for undertaking their management, or those who have been the subject of a commission of lunacy, and who are residing with the committee appointed by the Lord Chancellor,) a more vigilant and searching scrutiny into the condition of the insane will be enforced. Secondly, the law throws an additional protection around those who are authorized to keep establishments for the treatment of insanity. Thirdly, by the alteration required in the character of the medical certificates, and the statement which the Act compels every Medical superintendent to keep of the particulars of the medical treatment adopted by him in each case under his care, a valuable collection of facts connected with the pathology of insanity will be recorded, from the study and classification of which important conclusions may be deduced. Fourthly, the abolition of the cottage system of treating the insane cannot but be productive of the most advantageous results. These unhappy persons will now have a fair chance of being restored to health, and to the enjoyment of their social rights and privileges. As the objects for which they were formerly confined in cottages and other unlicensed places—viz. privacy and secrecy—no longer exist, it is hoped that the insane will now be sent to well conducted private establishments, where they will have a chance of being restored to sanity.]

[NOTE XIII. Chap. iv. § 12. p. 102.

_Legal penalties on Duelling._

Simply wounding one’s antagonist in a duel is now a capital offence. To shoot at a person, though no bodily injury ensue, is a felony punishable with transportation for life. (Stat. 7 Will. IV. and 1 Vict. c. 85.) Challenging another to fight a duel, and using opprobrious language with intent to provoke a person to send a challenge, are misdemeanours at common law.]

NOTE XIV. Chap. iv. § 13. p. 108.

_Duelling._

In the usages of the ancient Germans, evident traces of duelling may be discovered. But it was employed by them either as an appeal to the justice, or to the prescience, of the gods. Velleius Paterculus informs us that questions, decided amongst the Romans by legal trial, were terminated amongst the Germans by arms or judicial combat[159]. Tacitus describes it as a species of divination, by which the future events of important wars were explored[160]. A captive from the enemy was compelled to fight with a man selected from their own nation. Each was accoutred with his proper weapons, and the presage of success was determined by the issue of the battle. A law is quoted by Stiernhöök[161], which shews that judicial combat was at first appropriated to points respecting personal character, and that it was only subsequently extended to criminal cases and to questions relative to property. The terms of the law are, “If any man shall say to another these reproachful words, ‘You are not a man equal to other men,’ or, ‘You have not the heart of a man,’ and the other shall reply, ‘I am a man as good as you;’ let them meet on the highway. If he who first gave offence appear, and the person offended absent himself, let the latter be deemed worse than he was called; let him not be admitted to give evidence in judgement either for man or woman, and let him not have the privilege of making a testament. If the person offended appear, and he who gave the offence be absent, let him call upon the other thrice with a loud voice, and make a mark upon the earth, and then let him who absented himself be deemed infamous, because he uttered words which he durst not support. If both shall appear properly armed, and the person offended shall fall in the combat, let a half compensation be paid for his death. But if the person who gave the offence shall fall, let it be imputed to his own rashness. The petulance of his tongue hath been fatal to him. Let him lie in the field without any compensation being demanded for his death.”

Montesquieu, on the authority of Beaumanoir, whom he quotes with great respect, deduces the rise and formation of the articles relative to the point of honour from the following particular judicial usages. The accuser declared in the presence of the judge that such a person had committed such an action; the accused made answer that he lied; upon which the judge gave orders for the duel. Thus it became an established rule, that, whenever the lie was given to a person, it was incumbent on him to fight. Gentlemen combatted on horseback, completely armed; villeins fought on foot, and with bâtons. The bâton, therefore, was regarded as an instrument of affront, because to strike a man with it was to treat him as a villein. For the like reason, a box on the ear, or blow on the face, was deemed a contumely, to be expiated with blood; since villeins alone were liable to receive such disgraceful blows, as it was peculiar to them to fight with their heads uncovered[162].

Practices like these were so congenial to the proud and martial spirit of the times, as well as to the superstition which prevailed, that they became universal throughout Europe. But it is evident that they could not fail to subvert the regular course of justice, diminish the authority of government, and violate the sacred ordinances of the Church. For the clergy uniformly remonstrated against, and even anathematized them, as adverse to Christianity; and the civil power frequently interposed, to set bounds to usages, which its authority was too feeble to suppress. Henry I. of England, in the twelfth century, prohibited trial by combat in all questions concerning property of small value. Louis VII. of France issued an edict to the same effect. St. Louis, who was a distinguished legislator, considering the rude age in which he reigned, attempted a more perfect jurisprudence by substituting trial by evidence in place of that by combat. And afterwards it became the policy of every monarch, who possessed power or talents, to explode these relics of Gothic barbarism. By degrees the practice became less and less frequent: courts of judicature acquired an ascendancy; law was studied as a science, and administered with great regularity; and the ferocious manners of the inhabitants of Europe yielded to the arts of peace, and to the benefits of social and civilized life. But an event occurred in the year 1528, which both revived the practice of single combat, and gave a new form to it, more absurd and fatal. The political and personal enmity, which subsisted between the Emperor Charles V. and Francis I., led the former to commission the French herald, sent to him with a denunciation of war, to acquaint his sovereign, that he should from that time consider him not only as a base violator of public faith, but as a stranger to the honour and probity of a gentleman. Francis instantly sent back the herald with a cartel of defiance, giving the Emperor the lie, and challenging him to single combat. Charles accepted the challenge; but, it being impracticable to settle the preliminaries, this romantic and ridiculous enterprise of course was never accomplished. The transaction, however, excited such universal attention, and reflected so much splendour and dignity on this novel mode of single combat, that every gentleman thought himself entitled, and even bound in honour, to draw his sword, and to demand satisfaction of his adversary for affronts trivial and even imaginary[163]. The best blood in Christendom was shed; personages of the first distinction were devoted to death; the ease, the familiarity, and the confidence of private intercourse were interrupted; and war itself was hardly more destructive to life and to its dearest enjoyments than this fatal and seductive frenzy[164].

Evils of such magnitude required adequate remedies; and all the terrors of law were every where exerted to repress them. But they have hitherto been employed in vain: nor is it likely that sanguinary punishments will prevail, because the dread of such punishment would be deemed equally dishonourable with the fear of death in the chances of combat. A heavy fine, strictly levied, would operate with greater force on some of the most active principles of the human mind; and if it amounted to half, or one third, of the convicted person’s fortune, (such portion being placed in chancery, for the benefit of his heirs or children,) this privation would not only extend to his comforts and accommodations, but would be felt as a species of infamy, by depriving him of the means of maintaining his rank and station in life. Lord Verulam has proposed the following remedy for duelling; which, if effectual with men of quality, would soon disgrace the practice amongst those of inferior degree[165]:—“The fountain of honour is the King and his aspect, and the access to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can be; if his Majesty shall be pleased, that, when this court shall censure any of these offences in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his Queen and Prince, I think there is no man that hath any good blood in him, will commit an act that shall cast him into that darkness, that he may not behold his sovereign’s face.” This proposal of Lord Verulam seems to receive some confirmation from a story related by Lord Shaftesbury in his “Characteristicks[166].” “A certain gallant of our court, ... being asked by his friends, why one of his established character for courage and good sense would answer the challenge of a coxcomb, confessed, ‘that for his own sex, he could safely trust their judgement; but how should he appear at night before the maids of honour?’”

Thus the principle on which duelling is founded, is now neither an appeal to the justice of Heaven, nor an expression of resentment for wrong sustained; but generally a mere punctilio of honour, which would affix a stigma on the character for courage of him who omits to offer, and on the opponent who declines the acceptance of, a challenge. Hence forgiveness of injury and reparation from the consciousness of having committed it, those noble sentiments of just and generous minds, are wholly precluded in the intercourse of fashionable life.

A very able moralist, whom I have often quoted with peculiar satisfaction, has reduced the question concerning duelling, as now practised, to this single point: whether a regard for our own reputation is, or is not, sufficient to justify the taking away the life of another. “‘A sense of shame,’” says he, “‘is so much torture; and no relief presents itself otherwise than by an attempt upon the life of our adversary.’ What then? The distress which men suffer by the want of money is oftentimes extreme, and no resource can be discovered but that of removing a life which stands between the distressed person and his inheritance. The motive in this case is as urgent, and the means much the same, as in the former; yet this case finds no advocates.

“For the army, where the point of honour is cultivated with exquisite attention and refinement,” continues the same excellent writer, “I would establish a _Court of Honour_, with a power of awarding those submissions and acknowledgements, which it is generally the purpose of a challenge to obtain; and it might grow into a fashion with persons of rank of all professions, to refer their quarrels to this tribunal[167].”

An institution, like the one thus forcibly recommended by Dr. Paley, might probably have prevented the late fatal duel between Colonel Montgomery and Captain M’Namara. The address of the latter to the gentlemen of the jury gives just grounds for this opinion, and claims on that account the attention of the legislature. “Gentlemen,” said he, “I am a captain in the British Navy. My character you can only hear from others; but to maintain my character in that station, I must be respected. When called upon to lead others into honourable danger, I must not be supposed to be a man who had sought safety by submitting to what custom has taught others to consider as a disgrace. I am not presuming to urge any thing against the laws of GOD, or of this land. I know that, in the eye of religion and reason, obedience to the law, though against the general feelings of the world, is the first duty, and ought to be the rule of action: but in putting a construction upon my motives, so as to ascertain the quality of my actions, you will make allowances for my situation[168].” In referring to the foregoing disastrous case, it is proper to notice, that a Surgeon of considerable eminence, who attended on the field of combat in his _professional capacity_, was on this account arrested and sent to Newgate by a warrant from the civil magistrate as a _principal_ in the alleged murder, having been present at the duel and antecedently privy to it. Nor was he liberated from prison till the grand jury had rejected the indictment.

It has recently been stated in one of the periodical prints, that a law to prevent duelling was passed in the general assembly of North Carolina during their last session, by which it was enacted, “That no person sending, accepting, or being the bearer of a challenge, for the purpose of fighting a duel, even though no death should ensue, shall ever after be eligible to any office of trust, power, or profit in the state, any pardon or reprieve notwithstanding: and that the said person shall further be liable to be indicted, and on conviction shall forfeit and pay the sum of one hundred pounds to the use of the state. And if any one fight a duel, by which either of the parties shall be killed, then the survivor, on conviction thereof, shall suffer death without benefit of clergy; and the seconds shall be considered as accessaries before the fact, and likewise suffer death[169].”

I shall insert the following communication from my late venerable friend Dr. Benjamin Franklin, on the subject of duelling, because the deliberate opinion of a man peculiarly distinguished by perspicacity, soundness of judgement, and extensive knowledge of the world, cannot fail to be interesting to the reader. The letter was written in the 79th year of his age, and evinces the same vein of humour which characterized him through life. A few passages are omitted, being merely complimentary and personal.

“_Passy, near Paris, July 17, 1784._

“Dear Sir,

“I received, yesterday, by Mr. White, your kind letter of May
11th, with the most agreeable present of your new book. I read
it all before I slept.... It is astonishing that the murderous
practice of duelling, which you so justly condemn, should
continue so long in vogue. Formerly, when duels were used to
determine law-suits from an opinion that Providence would in
every instance favour truth and right with victory, they were
more excusable. At present they decide nothing. A man says
something, which another tells him is a lie. They fight; but,
whichever is killed, the point in dispute remains unsettled.
To this purpose they have a pleasant little story here: A
gentleman in a coffee-house desired another to sit farther from
him. ‘Why so?’ ‘Because, Sir, you smell offensively.’ ‘That is
an affront, and you must fight me.’ ‘I will fight you, if you
insist upon it, but I do not see how that will mend the matter;
for, if you kill me, I shall smell too; and if I kill you, you
will smell, if possible, worse than you do at present.’—How can
such miserable sinners as we are, entertain so much pride as to
conceive that every offence against our imagined honour merits
death? These petty princes, in their own opinion, would call
that sovereign a _tyrant_, who should put one of them to death
for a little uncivil language, though pointed at his sacred
person. Yet every one of them makes himself judge in his own
cause, condemns the offender without a jury, and undertakes
himself to be the executioner.

“Our friend Mr. Vaughan may perhaps communicate to you some
conjectures of mine, relating to the cold of last winter, which
I sent him in return for the observations on cold of Professor
Wilson. If he should, and you think them worthy so much notice,
you may shew them to your Philosophical Society, to which I
wish all imaginable success. Their rules seem to me excellent.

“With sincere and great esteem, I have the honour to be your
most obedient, and most humble servant,

B. FRANKLIN.”

NOTE XV. Chap. iv. § 16. p. 114.

_Punishment of the crime of Rape._

The atrocity of this crime appears to have been variously estimated at different periods, and in different countries; if we may judge from the diversity of punishments inflicted on the perpetrators of it. The reader will find a copious and interesting enumeration of them in a volume entitled, “A View of Ancient Laws against Immorality and Profaneness,” by John Disney, M.A. Cambridge, 1729, fol. I would refer him also to the “Principles of Penal Law,” by Mr. Eden, now Lord Auckland. As both these valuable works are out of print, a few extracts from each may form an acceptable addition to the present note.