Chapter IV: 38 (1)

_Of Professional Duties in certain Cases which require a Knowledge of Law._

§ 1. Gentlemen of the Faculty of Physic, by the authority of different parliamentary statutes, enjoy an exemption from serving on inquests or juries, from bearing armour, from being constables or church-wardens, and from all burdensome offices, whether leet or parochial[39]. These privileges are founded on reasons highly honourable to Medical men, and should operate as incentives to that diligent and assiduous discharge of professional duty, which the legislature has generously presumed to occupy the time and to employ the talents of Physicians and Surgeons, in some of the most important interests of their fellow-citizens. It is perhaps on account of their being thus excused from many civil functions, that Sir William Blackstone, in his learned “Commentaries,” judges the study of the law to be less essential to them, than to any other class of men. He observes, that “there is no special reason why gentlemen of the Faculty of Physic should apply themselves to the study of the law, unless in common with other gentlemen, and to complete the character of general and extensive knowledge; a character which their profession, beyond others, has remarkably deserved[40].” But I apprehend it will be found that Physicians and Surgeons are often called upon to exercise appropriate duties, which require not only a knowledge of the principles of jurisprudence, but of the forms and regulations adopted in our courts of judicature. The truth of this observation will sufficiently appear from the following brief detail of some of the principal cases, in which the science of law is of importance to Medical practitioners. To enter at large on so comprehensive a subject, would far exceed the bounds of the present undertaking.

§ 2.[41] When a Physician attends upon a patient, under circumstances of imminent danger, his counsel may be required about the expediency of a last will and testament. It behoves him therefore to know, whether, in case of intestacy, the daughters or younger children of the sick person would be legally entitled to any share of his fortune; whether the fortune would be equally divided, when such equality would be improper or unjust; whether diversity of claims and expensive litigations would ensue, without a will, from the nature of the property in question; and whether the creditors of the defunct would by his neglect be defrauded of their equitable claims. For it is a culpable deficiency in our laws, that real estates are not subject to the payment of debts by simple contract, unless expressly charged with them by the last will and testament of the proprietor[42]; although credit is often founded, as Dr. Paley well observes, on the possession of such estates. This acute moralist adds, “He, therefore, who neglects to make the necessary appointments for the payment of his debts, as far as his effects extend, sins in his grave; and, if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart[43].”

Property is divided by the law into two species, personal and real; each requiring appropriate modes of transfer or alienation, with which a Physician should be well acquainted. It may also be required of him to deliver an opinion, and even a solemn judicial evidence, concerning the capacity of his patient to make a will, a point sometimes of difficult and nice decision; for various disorders obscure, without perverting, the intellectual faculties; and even in delirium itself there are lucid intervals, when the memory and judgement become sufficiently clear, accurate, and vigorous, for the valid execution of a testament. In such cases the will should commence with the signature of the testator, concluding with it also, if his hand be not, after continued mental exertions, too tremulous for subscription; and it should be made with all possible conciseness and expedition[44].

If the patient be surprised by sudden and violent sickness, the law authorizes a _nuncupative will_ in the disposal of personalty[45]. But, to guard against fraud, the testamentary words must be delivered with an explicit intention to bequeath; the will must be made at home, or among the testator’s family or friends, unless by unavoidable accident; and also in his last sickness,—for, if he recover, it is evident that time is given for a written will[46].

The law excludes from the privilege of making a will madmen, idiots, persons in their dotage, or those who have stupified their understandings by drunkenness. But there is a high degree of hypochondriacism, which not unfrequently falls under the cognizance of a Physician, and on which he may be required to decide whether it amounts to mental incapacity for the execution of a last will and testament. To define the precise boundaries of rationality is perhaps impossible; if it be true, according to Shakespear[47], that

“The lunatic, the lover, and the poet
Are of imagination all compact.”

But a partially distempered fancy is known to subsist with general intelligence; and a man, like Mr. Simon Browne, believing the extinction of his rational soul by the judgement of GOD, may uniformly evince in every other instance very distinguished intellectual powers, and be capable of directing his concerns and disposing of his property with sufficient discretion. To preclude one so affected from being a testator, seems inconsistent either with wisdom or justice; especially if the will which has been made, discover in its essential parts no traces of a disturbed imagination or unsound judgement. But, whenever false ideas of a practical kind are so firmly united as to be constantly and invariably mistaken for truth, we properly denominate this unnatural alliance _Insanity_; and, if it give rise to a train of subordinate wrong associations, producing incongruity of behaviour, incapacity for the common duties of life, or unconscious deviations from morality and religion, _Madness_ has then its commencement[48].

§ 3. A lunatic, or _non compos mentis_, in the eye of the law, is one who has had understanding, but has lost it by disease, grief, or other accident. The king is the trustee for such unfortunate persons, appointed to protect their property, and to account to them, if they recover, for their revenues; or, after their decease, to their representatives. The Lord Chancellor, therefore, grants a commission to enquire into the state of mind of the insane person; and if he be found _non compos_ by a jury, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his Committee[49]. The Physician who has been consulted about the case will doubtless be called upon to deliver an opinion concerning his patient; and, before he becomes accessory to his deprivation, as it were, of all legal existence, he will weigh attentively the whole circumstances of the disorder, the original cause of it, the degree in which it subsists, its duration, and probable continuance. For, if the malady be not fixed, great, and permanent, this solemn act of law must be deemed inexpedient, because it cannot be reversed without difficulty; and when insanity has been once formally declared, there may be grounds of apprehension that the party will be consigned to neglect and oblivion. With regard to the waste or alienation of property by the person thus afflicted, little risk is incurred, if he be put under the ordinary restraint of a judicious curator; for, whilst his mind remains in the state of alienation, he is incapable of executing any act with validity; and the next heir, or other person interested, may set it aside, on the plea of his incapacity. But the use of a guardian or committee of a lunatic is chiefly to renew, in his right, under the direction of the court of chancery, any lease for lives or years, and to apply the profits for the benefit of the insane person, of his heirs, or executors.

§ 4. The law justifies the beating of a lunatic, in such manner as the circumstances may require[50]. But it has been before remarked[51], that a Physician who attends an asylum for insanity is under an obligation of honour as well as of humanity, to secure to the unhappy sufferers committed to his charge all the tenderness and indulgence compatible with steady and effectual government; and the strait waistcoat, with other improvements in modern practice, now preclude the necessity of coercion by corporal punishment[52].

§ 5[53]. Houses for the reception of lunatics are subject to strict regulations of law. These regulations refer to the persons keeping such houses, to the admission of patients into them, and to their inspection by visitors, duly authorized and qualified. If any one conceal more than a single lunatic without a licence, he becomes liable to a penalty of five hundred pounds. The licences in the cities of London and Westminster, or within seven miles of the metropolis, are granted by the College of Physicians; who are empowered to elect five of their fellows to act as commissioners for inspecting the lunatic asylums, within their jurisdiction. Houses for the reception of lunatics in the country are to be licensed by the justices of the peace during their quarter-sessions: and at the time when the licence is granted the magistrates are directed to nominate two of their own body, and also one Physician, to visit and inspect such licensed houses. This inspection they are empowered to make as often as they judge it to be expedient; and an allowance is to be granted for the expences incurred. The keeper of every licensed house is bound, under the penalty of one hundred pounds, not to admit or confine any person as a lunatic, without having a certificate in writing, under the hand and seal of some Physician, Surgeon, or Apothecary, that such person is proper to be received into the house, as being _non compos mentis_. And he is further required, under the same penalty, to give notice of this certificate to the secretary of the commissioners, appointed either by the College of Physicians, or the magistrates at their quarter-sessions. The Act of Parliament which establishes these regulations states this important proviso, “That in all proceedings that shall be had under his Majesty’s writ of _Habeas Corpus_, and in all indictments, informations, and actions, that shall be preferred and brought against any person or persons, for confining or ill-treating any of his Majesty’s subjects, in any of the said houses, the parties complained of shall be obliged to justify their proceedings, according to the course of the common law, in the same manner as if this Act had not been made[54].”

The legal allowance to a Medical commissioner, for the visitation and inspection of a lunatic-asylum, is fixed by the statute at one guinea. This gratuity, which cannot be regarded as a just compensation for the time and trouble bestowed, it may often be proper to decline; for to a Physician of a liberal mind an inadequate pecuniary acknowledgement is felt as a degradation, but he will be amply remunerated by the consciousness of having performed an office, enjoined at once by the laws of humanity, and of his country.

§ 6. In the case of sudden death, the law has made provision for examining into the cause of it by the Coroner, an officer appointed for the purpose, who is empowered to summon such evidence as is necessary for the discharge of his inquisitorial and judicial functions. On these occasions the attendance of a Physician or Surgeon may often be required, who should be qualified to give testimony consonant to legal, as well as to medical knowledge. To this end he must not only be acquainted with the signs of natural death, but also of those which occur when it is produced by accident or violence. And he should not be a stranger to the several distinctions of homicide, established in our courts of judicature; for the division of this act into _justifiable_, _excusable_, and _felonious_, will aid his investigation, and give precision to the opinion which he delivers.

§ 7. When a crime, which the law has adjudged to be capital, is attempted to be committed by force, the resistance of such force, even so as to occasion the death of the offender, is deemed _justifiable homicide_. Mr. Locke carries this doctrine to a much greater extent; asserting, that all manner of force, without a right, upon a man’s person, puts him in a state of war with the aggressor, and of consequence, being in such a state of war, he may lawfully kill him that puts him under this unnatural restraint[55]. But Judge Blackstone considers this conclusion as applicable only to a state of uncivilized nature; and observes, that “the law of England is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer with impunity any crime to be _prevented_ by death, unless the same, if committed, would also be _punished_ by death[56].”

§ 8. With cases of justifiable homicide, however, gentlemen of the Faculty are seldom likely to be professionally concerned. But _excusable_ homicide may frequently fall under their cognizance, and require their deliberate attention and accurate investigation. It is of two sorts; either _per infortunium_, by misadventure; or _se defendendo_, upon a principle of self-preservation. Death may be the consequence of a lawful act, done without any intention of hurt. Thus, if an officer, in the correction of a soldier, happen to occasion his death, it is only misadventure; the punishment being lawful. But if the correction be unwarrantably severe, either in the manner, the instrument, or the duration of punishment, and death ensue, the offender is at least guilty of manslaughter, and in some circumstances, of murder. A Surgeon therefore is usually present when soldiers are chastised with the lash in pursuance of the sentence of a court-martial; and on his testimony must depend the justification of the mode and degree of punishment inflicted.—When medicines administered to a sick patient, with an honest design, to produce the alleviation of his pain or cure of his disease, occasion death, this is misadventure, in the view of the law; and the Physician or Surgeon who directed them is not liable to punishment criminally, though a civil action might formally lie for neglect or ignorance. But it hath been holden that such immunity is confined to _regular_ Physicians and Surgeons. Sir Matthew Hale, however, justly questions the legality of this determination, since physic and salves were in use before licensed Physicians and Surgeons. “Wherefore he treats the doctrine as apocryphal, and fitted only to qualify and flatter Licenciates and Doctors in Physic; though it may be of use to make people cautious how they meddle too much in so dangerous an employment.” The College of Physicians, however, within their jurisdiction, which extends seven miles round London, are vested by charter with the power of fine and imprisonment _pro mala praxi_[57]. Yet Dr. Groenevelt, who was cited in the year 1693 before the Censors of the College[58], and committed to Newgate by a warrant from the President for prescribing cantharides in substance, was acquitted on the plea that bad practice must be accompanied with a bad intention, to render it criminal. This prosecution, whilst it ruined the doctor’s reputation and injured his fortune, so that he is said to have died in want, excited general attention to the remedy, and afterwards established the use of it; though it must be acknowledged that his doses were too bold and hazardous. But, whatever be the indulgence of the law towards Medical practitioners, they are bound by a higher authority than that of the most solemn statute, not to exercise the healing art without due knowledge, tenderness, and discretion; and every rash experiment, every mistake originating from gross inattention, or from that ignorance which necessarily results from defective education, is, in the eye of conscience, a crime both against GOD and man.

It must frequently devolve on the Faculty to decide concerning the nature and effects of blows, strokes, or wounds inflicted, and how far the death of the sufferer is to be ascribed to them, or to some antecedent or subsequent disease. In homicide, also, _se defendendo_, the manner and time of the defence are to be considered; for, if the person assaulted fall upon the aggressor when the fray is over and he is running away, this is revenge, and not defence; and, though no witness were present, the situation of the wound or of the blow would afford, if in the back of the assailant, presumptive evidence of felonious homicide.

§ 9. This crime, which in atrocity exceeds every other, is considered by the law under the three heads of _suicide_, _manslaughter_, and _murder_, concerning each of which the Faculty are occasionally obliged to give professional evidence. A _felo de se_ is one who has deliberately put an end to his existence, or committed any unlawful malicious act, the immediate consequence of which proved death to himself. To constitute this act a crime, the party must have been of years of discretion, and in the possession of reason. A Physician, therefore, may be called upon by the coroner to state his opinion of the mental capacity of the defunct. And the law will not authorize the plea, that every melancholic or hypochondriac fit deprives a man of the power of discerning right from wrong. Even if a lunatic kill himself in a lucid interval, Sir Matthew Hale affirms that he is a _felo de se_.—And the Physician who has attended him is best qualified to judge of the degree, the duration, or periodical seasons, of such returns of sanity. But there are cases of temporary distraction, when death may be rushed upon apparently with design, but really from the influence of terror, or the want of that presence of mind which is necessary to the exercise of judgement and the discrimination of actual from imaginary evil. Of this kind the reader will find an affecting instance related by Dr. Hunter in the “Medical Observations and Inquiries,” published by “a Society of Physicians in London[59].”

§ 10. _Manslaughter_ is defined “the unlawful killing of another without malice either express or implied; which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act.” Yet, though this definition is delivered from Sir Matthew Hale, by the excellent Commentator on the Laws of England so often quoted[60], it is not sufficiently precise and comprehensive. For, when a person does an act lawful in itself, but which proves fatal to a fellow-citizen, because done without due circumspection, it may, according to circumstances, be either misadventure, manslaughter, or murder. Thus, when a workman kills any one by flinging down a stone or piece of timber into the street, if the accident be in a country village, where there are few passengers, and if he give warning by calling out to them, it is only _misadventure_; but if it be in London, or any other populous town, where persons are continually passing, it is _manslaughter_, though warning be loudly given; and it is _murder_, if he know of their passing, and yet gives no warning; for this is malice against all mankind[61].

On the like grounds we may reason concerning the cases of death occasioned by drugs designed to produce abortion. This purpose is not always unlawful; for the configuration of the pelvis in some females is such as to render the birth of a full-grown child impossible, or inevitably fatal. But even in such instances the guilt of manslaughter may be incurred by ignorance of the drastic quality of the medicine prescribed, or want of due caution in the dose administered; and, when no moral or salutary end is in view, the simple act itself, if fatal in the issue, falls under the denomination of murder[62]. “If a woman be quick with child, and, by a potion or otherwise, killeth it in her womb, this is a great misprision, yet no murder; but if the child be born alive, and dieth of the potion or other cause, this is murder[63].” The procuring of abortions was common amongst the Romans; and, it is said, was liable to no penalty before the reigns of Severus and Antoninus. Even those princes made it criminal only in the case of a married woman practising it to defraud her husband of the comforts of children, from motives of resentment; for, the foetus being regarded as a portion of the womb of the mother, she was supposed to have an equal and full right over both. This false opinion may have its influence in modern, as well as in ancient, times; and false it must be deemed, since no female can be privileged to injure her own bowels, much less the foetus, which is now well known to constitute no part of them. To extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man; these regular and successive stages of existence being the ordinances of GOD, subject alone to His Divine will, and appointed by Sovereign Wisdom and Goodness as the exclusive means of preserving the race, and multiplying the enjoyments of mankind. Hence the Father of Physic, in the Oath enjoined on his pupils, (which some Universities now impose on the candidates for Medical degrees,) obliged them solemnly to abjure the practice of administering the πεσσὸς φθόριος[64]. But, in weighing the charge against any person of having procured abortion, the methods employed should be attentively considered by the Faculty; as this effect has often been ascribed to causes inadequate to its production. Even the pessary, so sanctimoniously forbidden by Hippocrates, has little of that activity and power which superstition assigned to it.

§ 11. The law of England guards with assiduous care the lives of infants, when endangered by motives which counteract, and too often overbalance, the strong operation of maternal love. In cases of bastardy, therefore, it is declared, by a statute passed in the reign of James the First, that, “If any woman be delivered of any issue of her body, male or female, which, being born alive, should by the laws of this realm be a bastard, and she endeavour privately, either by drowning, or secret burying thereof, or any other way, either by herself, or the procuring of others, so to conceal the death thereof, as that it may not come to light whether it was born alive or not, but be concealed, she shall suffer death, as in case of murder, except she can prove, by one witness at least, that the child was born dead[65].” This law, though humane in its principle, is much too severe in its construction[66]. To give certainty to punishment, by facilitating conviction, is doubtless an essential object of jurisprudence; and it has been well observed, that the statute which made the possession of the implements of coining a capital offence, by constituting such possession complete evidence of guilt, has proved the most effectual mean of enforcing the denunciation of law against this dangerous and tempting crime[67]. But the analogy which the able moralist has drawn between this ordinance and that relating to bastardy, is not fully conclusive. For possession, in the former case, clearly implies a specific purpose, for which the legislature with sufficient wisdom and justice has provided a specific punishment. Whereas secrecy in the mother, concerning the death of her illegitimate offspring, hardly amounts to the lowest degree of presumptive evidence of felonious homicide. Gentlemen of the Faculty have often melancholy experience of the distraction and misery which females suffer under these unhappy circumstances; and, when it becomes their painful office to deliver evidence on such occasions, justice and humanity require that they should scrutinize the whole truth, and

“nothing extenuate,
Nor set down aught in malice[68].”

“What is commonly understood to be the murder of a bastard child by the mother,” says Dr. Hunter, “if the real circumstances were fully known, would be allowed to be a very different crime in different circumstances. In some (it is to be hoped _rare_,) instances, it is a crime of the very deepest dye.... But, as well as I can judge, the greatest number of what are called murders of bastard children, are of a very different kind. The mother has an unconquerable sense of shame, and pants after the preservation of character: so far she is virtuous and amiable. She has not the resolution to meet and avow infamy. In proportion as she loses the hope either of having been mistaken with regard to pregnancy, or of being relieved from her terrors by a fortunate miscarriage, she every day sees her danger greater and nearer, and her mind more overwhelmed with terror and despair. In this situation many of these women, who are afterwards accused of murder, would destroy themselves, if they did not know that such an action would infallibly lead to an enquiry, which would proclaim what they are so anxious to conceal. In this perplexity, and meaning nothing less than the murder of the infant, they are meditating different schemes for concealing the birth of the child; but are wavering between difficulties on all sides, putting the evil hour off, and trusting too much to chance and fortune. In that state often they are overtaken sooner than they expected; their schemes are frustrated; their distress of body and mind deprives them of all judgement and rational conduct; they are delivered by themselves, wherever they happened to retire in their fright and confusion; sometimes dying in the agonies of child-birth, and sometimes being quite exhausted they faint away and become insensible of what is passing, and, when they recover a little strength, find that the child, whether still-born or not, is completely lifeless. In such a case, is it to be expected, when it could answer no purpose, that a woman should divulge the secret? Will not the best dispositions of mind urge her to preserve her character? She will therefore hide every appearance of what has happened as well as she can; though, if the discovery be made, that conduct will be set down as a proof of her guilt.... Here let us suppose a case, which every body will allow to be very possible. An unmarried woman, becoming pregnant, is striving to conceal her shame, and laying the best scheme that she can devise for saving her own life and that of the child, and at the same time concealing the secret; but her plan is at once disconcerted by her being unexpectedly and suddenly taken ill by herself, and delivered of a dead child. If the law punishes such a woman with death for not publishing her shame, does it not require more from human nature, than weak human nature can bear? In a case so circumstanced, surely the only crime is the having been pregnant, which the law does not mean to punish with death; and the attempt to conceal it by fair means should not be punishable by death, as that attempt seems to arise from a principle of virtuous shame[69].”

The observations here quoted have a just claim to attention from the extensive experience which the author possessed, and still more from his intimate knowledge of the female character. Yet to the moral and political philosopher, Dr. Hunter may appear to have exalted the sense of shame into the principle of virtue; and to have mistaken the great end of penal law, which is not vengeance, but the prevention of crimes. The statute, indeed, which makes the concealment of the birth of a bastard child full proof of murder, confounds all distinctions of innocence and guilt; as such concealment, whenever practicable, would be the wish and act of all mothers, amiable or vicious, under the same unhappy predicament. Law, however, which is the guardian and bulwark of the public weal, must maintain a steady, and even rigid, watch, over the general tendencies of human actions: and, when these are not only clearly understood, but interpreted according to the rules of wisdom and rectitude, that may justly be constituted a civil crime, which, if permitted, might give occasion to atrocious guilt, though in its own nature innocent. The measure of punishment, however, should be proportionate, as nearly as possible, to the temptation to offend, and to the kind and degree of evil produced by the offence. If inadequate to the former, it will be nugatory; and if too severe for the latter, it will defeat itself, by furnishing a just plea for superseding its execution[70]. A revision of our sanguinary statutes is much wanted[71]; and it would be happy if means could be devised of suppressing the punishment, by obviating the crime, when it is merely positive or municipal. This we have seen accomplished with respect to the coinage of money, by the simple introduction of a standard weight in the payment of gold. And a sagacious legislator might doubtless discover and adopt similar improvements in other branches of penal jurisprudence.

Much observation is required to discriminate between a child still-born, and one that has lived after birth only a short space of time. Various appearances, also, both internal and external, may be mistaken for marks of violent death. Even the swimming of the lungs in water, a test on which so much reliance is placed, will, on many occasions, be found fallacious. But these are points of professional science, which do not strictly fall under the subject of this section; and the reader is particularly referred to the paper already quoted, and also to J. F. Faselii “Elementa Medicinae Forensis [Regim. 4to. 1787.];” or to a valuable epitome of the same work in English by Dr. Farr[72].

§ 12. Duelling is another species of felony, even though the consequences of it should not prove fatal: and gentlemen of the Faculty are peculiarly interested in the knowledge of the laws relating to it; because they are not only liable to be summoned on the trial of the parties, if either or both of them be wounded, but are frequently professional attendants on them in the field of combat[73]. It is astonishing that a practice which originated in ages of Gothic ignorance, superstition, and barbarism, should be continued in the present enlightened period, though condemned by the ordinances of every state, and repugnant to the spirit and precepts of Christianity. Sir Francis Bacon, when Attorney-General, in the reign of James I., delivered a Charge before the Court of Star-Chamber touching duels, which gives a clear and animated view of the light in which they were then regarded. “The first motive,” he says, “is a false and erroneous imagination of honour and credit; and therefore the King, in his last proclamation, doth most aptly and excellently call them _bewitching duels_. For, if one judge of it truly, it is no better than a sorcery, that enchanteth the spirits of young men that bear great minds with a false shew, _species falsa_; and a kind of satanical illusion and apparition of honour against religion, against law, and against moral virtue.... Hereunto may be added, that men have almost lost the true notion and understanding of fortitude and valour. For fortitude distinguisheth of the grounds of quarrels whether they be just; and not only so, but whether they be worthy; and setteth a better price upon men’s lives than to bestow them idly. Nay, it is weakness and disesteem of a man’s self, to put a man’s life upon such liedger[74] performances; a man’s life is not to be trifled away; it is to be offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. It is in expense of blood as it is in expense of money; it is no liberality to make a profusion of money upon every vain occasion; nor no more it is fortitude to make effusion of blood, except the cause be of worth[75].”

The decree of the Star-Chamber against Priest and Wright, the objects of Sir Francis Bacon’s Charge, was, that they should both be committed to prison; that the former should be fined £500, and the latter 500 marks; and that at the next assizes they should publicly acknowledge their high contempt of, and offence against, GOD, the King’s majesty, and his laws, shewing themselves penitent for the same.—Though this judgement appears to have been founded in wisdom and equity, yet, happily for our country, the court which passed the sentence has been long suppressed; and we are now governed, not by arbitrary will, but by known and fixed laws. Those which subsist against duelling, I shall quote on the authorities of Foster, Blackstone, Hawkins and Burn. “Deliberate duelling, if death ensueth, is in the eye of the law murder; for duels are generally founded in deep revenge; and, though a person should be drawn into a duel, not upon a motive so criminal, but merely upon the punctilio of what the _swordsmen falsely call honour_, that will not excuse; for he that deliberately seeketh the blood of another upon a private quarrel, acteth in defiance of all laws human and divine, whatever his motive may be[76].” “Express malice is when one, with a sedate deliberate mind and formed design, doth kill another.... This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder; thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives and those of their fellow-creatures, without any warrant or authority from any power either divine or human, but in direct contradiction to the laws both of GOD and man. And therefore the law has justly fixed the crime and punishment of murder on them and on their seconds also[77].” “The law so far abhors all duelling in cold blood, that not only the principal who actually kills the other, but also his seconds, are guilty of murder, whether they fought or not: and it is holden, that the seconds of the party slain are likewise guilty as accessaries[78].”—From variations in the moral and intellectual character of man, it is impossible to ascertain the precise period when the passions may be supposed to become cool, after having been violently agitated. Judgement, therefore, must be founded on the circumstances of deliberation which are delivered in the course of evidence. In many cases it has been determined that death, in consequence of an appointment and meeting a few hours subsequent to the provocation, is murder[79].

§ 13. Before a Surgeon engage professionally to attend a duellist to the field of combat, it behoves him to consider well, not only how far he is about to countenance a deliberate violation of the duties of morality and religion; but whether, in the construction of law, he may not be deemed an aider and abettor of a crime which involves in it such turpitude that death is alike denounced against the principal and the accessary. Does he not voluntarily put himself into a predicament, similar, in many essential points, to that of the second, who is expressly condemned by the legislature of this country? Both are apprized of the purpose to commit an act of felony; both take an interest in the circumstances attendant upon it; and both are present during the execution, the one to regulate its antecedents, the other to alleviate its consequences. But I suggest these considerations with much diffidence: and, though I observe some passages in Sir Michael Foster’s “Discourse concerning Accomplices,” which seem to confirm them, yet it may be proper to quote the following, apparently adverse, opinion of this excellent judge. “In order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance, if necessary: and therefore if _A._ happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levieth hue and cry after him; this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessary[80].”

But, whatever be the objections against the attendance of a Surgeon in the field of combat, they cannot be construed to extend to the affording of all possible assistance to any unfortunate sufferer in an affair of honour; provided such assistance be not preconcerted, but required as in ordinary accidents or emergencies. For in the offices of the healing art no discrimination can be made either of occasions or of characters; and it must be acknowledged, that many of the victims of duelling have been men, from their talents and virtues, possessing the justest claim to assiduous and tender attention. That lives of such inestimable value to their friends, to their families, and to the public, should be at the mercy of any profligate rake who wantonly gives affronts or idly fancies he receives them, is a great aggravation of the folly, as well as of the guilt, of duelling. This reflection seems to shew the propriety of a change in the penal code respecting it; and that the punishment inflicted should be confined to the aggressor; strict inquisition into the circumstances of the case being previously made by the coroner, or some magistrate authorized and bound to exercise this important trust. And _he_ may with reason be regarded as the aggressor, who either violates the rules of decorum by any unprovoked rudeness or insult, or who converts into an offence what was intended only as convivial pleasantry[81].

§ 14. A Physician has no special interest in an acquaintance with the statutes relative to duelling; but, as he possesses the rank of a gentleman, both by his liberal education and profession, the law of honour (if that may be termed a _law_, which is indefinite and arbitrary,) has a claim to his serious study and attention. As a philosopher also it becomes him to trace its origin, and to investigate the principles on which it is founded; and as a moralist duty calls upon him to counteract its baneful influence and ascendancy: for in principle it is distinct from virtue; and as a practical rule it extends only to certain formalities and decorums, of little importance in the transactions of life, and which are spontaneously observed by those who are actuated with the true sense of propriety and rectitude. Genuine honour in its full extent may be defined, a quick perception and strong feeling of moral obligation, in conjunction with an acute sensibility to shame, reproach, or infamy. In different characters these constituent parts of the principle are found to exist in proportions so diversified, as sometimes to appear almost single and detached. The former always “aids and strengthens virtue:” the latter may occasionally “imitate her actions[82],” when fashion happily countenances, or high example prompts to, rectitude; but, being connected for the most part with a jealous pride and capricious irritability, it will be more shocked with the imputation, than with the commission, of what is wrong; and thus it will constitute that spurious honour, which, by a perversion of the laws of association, “puts evil for good and good for evil,” and, under the sanction of a name, perpetrates crimes without remorse and even without ignominy[83].

§ 15. Homicide by poison is another very important object of medical jurisprudence. When it is the effect of inadvertency, or the want of adequate caution in the use of substances dangerous to health and life, the law regards it as a _misdemeanour_; when it is the consequence of rashness, of wanton experiment, or of motives unjust though not malicious[84], it becomes _manslaughter_; and when the express purpose is to kill by means of some deleterious drug, it constitutes a most atrocious species of _murder_. In cases of this nature the Faculty are called upon to give evidence concerning the nature of the poison, the symptoms produced by it, and the actual fatality of its operation. I know not whether the period of this fatal operation be extended, as in the infliction of blows and wounds, to a year and a day; but, if it be, the most nice and accurate investigation of the progressive advances of disease and death will be incumbent on the Physician or Surgeon who is consulted on the occasion. No subject has given rise to more misconception and superstition than the action of poisons. Numberless substances have been classed as such, which, if not inert, are at least innoxious; and powers have been ascribed to others, far exceeding their real energy. Even Lord Verulam, the great luminary of science, in his Charge against the Earl of Somerset for the murder of Sir Thomas Overbury in the tower of London, seems to give credit to the story of Livia, who is said to have poisoned the figs upon the tree, which her husband was wont to gather with his own hands; and he seriously states, that Weston chased the poor prisoner “with poison after poison; poison in salts, poison in meats, poison in sweet-meats, poison in medicines and vomits, until at last his body was almost come, by use of poisons, to the state that Mithridates’s[85] body was by the use of treacle and preservatives, that the force of the poisons was blunted upon him: Weston confessing, when he was chid for not dispatching him, that he had given him enough to poison twenty men[86].” In this criminal transaction the truth probably was (what has been judiciously suggested by Rapin,) that the lieutenant of the Tower, refusing to be concerned in the crime, yet not daring to discover it from the fear of the Viscount Rochester’s resentment, seized the victuals sent from time to time for the prisoner, and threw them into the house of office. Sir Thomas Overbury, however, fell a victim at last to an empoisoned glyster.

When the particular drug, or other mean employed, can be accurately ascertained, its deleterious qualities should be fully investigated; and these should be cautiously compared with the effects ascribed to it in the case under consideration. It may often be expedient also to examine the body of the sufferer by dissection; and this should be accomplished as expeditiously as possible, that the changes imputed to death may not be confounded with those which are imputed to poison. But on such points reference can alone be made to the knowledge and experience of the practitioner, and to the lights which he may acquire by consulting Faselius and other works of a similar nature. I shall, therefore, close this article with a few passages of the charge of Mr. Justice Buller to the grand jury, relative to the trial of Captain Donellan, for the murder of Sir Theodosius Boughton, at the Warwick assizes, in March 1781. “In this case, gentlemen,” he says, “you will have two objects to consider, first, whether the deceased did die of _poison_? secondly, whether the person suspected did assist in _administering_ the poison? With respect to the first of these considerations, you will, no doubt, hear the sentiments of those who are skilled in the nature and effects of poison, which is of various sorts, and most subtile in its operation. From the information of such persons you will be able to form an opinion upon the effects which different poisons have on different persons; and also of the effects the same poisons have on persons of different habits and constitutions.... If you find he did get his death by poison, the next case is, to consider who gave him that poison. Where poison is knowingly given, and death ensues, it is wilful murder; and if one is present when poison is given by another, he is not an accessary but a principal[87].”

§ 16. In all civilized countries the honour and chastity of the female sex are guarded from violence by the severest sanctions of law: and this protection is at once humane, just, and necessary to social morality. It is consonant to humanity that weakness should be secured against the attacks of brutal strength; it is just that the most sacred of all personal property should be preserved from invasion; and it is essential to morality that licentious passion should be restrained, that modesty should not be wounded, nor the mind contaminated, in some instances, before it is capable of forming adequate conceptions of right and wrong. The crime of rape, therefore, subjects the perpetrator to condign punishment by every code of jurisprudence, ancient or modern[88]. Amongst the Jews death was inflicted, if the damsel was betrothed to another man; and, if not betrothed, a fine amounting to fifty shekels of silver was to be paid to her father by him who had “laid hold of the virgin,” and she was to become his wife; and, “because he had humbled her, he might not put her away all his days[89]:”—for the privilege of divorce was authorized by the Jewish institutions. The Romans made this offence capital, superadding the confiscation of goods. Even the carrying off a woman from her parents or guardians, and cohabiting with her, whether accomplished by force or with her full consent, were made equally penal with a rape, by an imperial edict. For the Roman law seems to have supposed, that women never deviate from virtue without being seduced by the arts of the other sex; and, therefore, by imposing a powerful restraint on the solicitations of men, they aimed at a more effectual security of the chastity of women. “Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere.” But the English law, as Judge Blackstone has observed[90], does not entertain such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault on one only of the transgressors; and it is therefore essential to the crime of rape, that the woman’s will is violated by the execution. But, by a statute of Queen Elizabeth, if the crime be perpetrated on a female child under the age of ten years, the consent or non-consent is immaterial, as she is supposed to be of insufficient judgement. Sir Matthew Hale is even of opinion, that such profligacy committed on an infant under _twelve_ years, (the age of female discretion by common law,) either with or without consent, amounts to a rape and felony[91]. But the decisions of the courts have generally been founded on the statute abovementioned.

A male infant under the age of fourteen years is deemed by the law incapable of committing, and therefore cannot be found guilty of, a rape, from a presumed imbecility both of body and mind. This detestable crime being executed in secrecy, and the knowledge of it being confined to the party injured, it is just that her single testimony should be adducible in proof of the fact. Yet the excellent observation of Sir Matthew Hale merits peculiar attention: “It is an accusation,” says he[92], “easily to be made, and hard to be proved; and harder to be defended by the party accused, though never so innocent.” He then relates two extraordinary cases of malicious prosecution for this crime, which had fallen under his own cognizance; and concludes, “I only mention these instances, that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may, with so much ease, be imposed upon, without great care and vigilance; the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are over-hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witnesses.” Collateral and concurrent circumstances of time and place[93], appearances of violence on examination, &c., are, therefore, necessary to be added to the mere affirmative evidence of the prosecutor; and the inspection of a Surgeon is often required, to ascertain the reality of the alleged violence. On such occasions his testimony should be given with all possible delicacy, as well as with the utmost caution. Even external signs of injury may originate from disease, of which the following examples, which have occurred in Manchester, are adduced on very respectable authorities.

A girl about four years of age was admitted into the Manchester Infirmary on account of a mortification in the female organs, attended with great soreness, and general depression of strength. She had been in bed with a boy fourteen years old, and there was reason to suspect that he had taken criminal liberties with her. The mortification increased, and the child died. The boy, therefore, was apprehended, and tried at the Lancaster assizes; but was acquitted on sufficient evidence that several instances of a similar disease had appeared, near the same period of time, in which there was no possibility of injury or guilt. In one of these cases the body was opened after death. The disorder had been a typhus fever, accompanied with a mortification of the pudenda. There was no evident cause of this extraordinary symptom discoverable on inspection. The lumbar glands were of a dark colour; but all the viscera were sound.

§ 17. Concerning nuisances, the investigation and testimony of the Faculty may be required, whenever they are of a nature offensive by the vapours which they emit, and injurious to the health of individuals or of the community. The law defines any thing that worketh hurt, inconvenience, or damage, to be a nuisance[94]. Thus, if a person keep hogs or other noisome animals so near the house of another that the stench incommodes him and renders the air unwholesome, this is a nuisance, because it deprives him of the enjoyments and benefits of his habitation. A smelting house for lead, the smoke of which kills the grass and corn, and injures the cattle of a neighbouring proprietor of land, is deemed a nuisance. Dye-houses, tanning-yards, &c., are nuisances, if erected so near a water-course as to corrupt the stream. But a chandler’s factory, even when situated in a crowded town, is said to be privileged from action or indictment, because candles are regarded as necessaries of life. Hawkins, however, questions the authority of this opinion, since the making of candles may be carried on in the country without annoyance[95]. But this is scarcely practicable in a populous neighbourhood; and, as Lord Mansfield has adjudged, that, in such cases, what makes the enjoyment of being and property uncomfortable, is, in the view of the law[96], a nuisance, various works and trades, essential to the happiness and interest of the community, may fall under this construction. But chemistry, mechanics, and other arts and sciences, furnish methods of diminishing or obviating almost every species of noisome vapour; and there can be no doubt that vitriol works, aqua-fortis works, marine acid-bleaching works, the singeing of velvets, &c., may be carried on with very little inconvenience to a neighbourhood, by means neither difficult nor expensive. The same observation may be applied to the business of the dyer, the fell-monger, the tanner, the butcher, and the chandler; and, as these with many other disgustful trades are in some degree necessary in large towns, justice and policy require that they should only be prosecuted as nuisances, when not conducted in the least offensive mode possible. To guard against arbitrary powers in municipal government, and to render the decision and investigation of such points perfectly consistent with the liberty of the subject, the reference should be made to a jury; or at least, any individual should be allowed an appeal to one, if he think himself aggrieved.

The frequency of fires in large manufacturing towns makes it expedient that magistrates or commissioners should be authorized to scrutinize rigidly into the causes of them when they occur, to punish neglect or carelessness, as well as malicious intention, and to enforce suitable measures of prevention. The plans proposed for this last very important purpose by Mr. Hartley and Lord Stanhope have been proved to be effectual, and are not expensive[97]. The adoption of them, therefore, or of other means which may hereafter be discovered, should be required, under a heavy penalty, in cases deemed by insurers _doubly hazardous_.

§ 18. It is a complaint made by coroners, magistrates, and judges, that Medical gentlemen are often reluctant in the performance of the offices required from them as citizens qualified by professional knowledge to aid the execution of public justice. These offices, it must be confessed, are generally painful, always inconvenient, and occasion an interruption to business, of a nature not to be easily appreciated or compensated; but, as they admit of no substitution, they are to be regarded as appropriate debts to the community, which neither equity nor patriotism will allow to be cancelled[98].