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LECTURES ON MEDICAL JURISPRUDENCE,
[1836-37 LECTURES ON
MEDICAL
JURISPRUDENCE,
NOW IN COURSE OF DELIVERY AT THE
UNIVERSITY OF LONDON.
BY PROFESSOR A. T. THOMSON.
Mr. GEORGE PATMORE was tried .for the murder of Mr. JOHN SCOTT, in a duel. Mr. -PETTIGREW, a surgeon, was the first witness called. Mr.Justice BAILEY said, "Mr. PETTIGZEW, I think it necessary to give you this caution. If you think the evidence which you are about to give likely to expose. you to a criminal prosecution, you are not bound to , give it." Mr. PETTIGREW replied, 11 My- lord, -1 mn not competent to form any opini6n of my legal guilt. I have not taken the part of principal, or second. The part which I have taken was merely to exercise my professional duty ; in that I do not think there was any moral guilt." Mr. Justice BAILEY. " If you went (knowing a duel was to take place) for the purpose of giving professional attendance, I apprehend you are liable to a eriminal _
,
LECTURE III. Crimination of a Medical Witness by his own Evidence.—Evidence grounded merely on Opinion.—Evidence based on Personal Ex-
perience.—Opinions grounded on Scientific Records.—Personal Bearing and Demeanour of Medical Witnesses in Court.—Confes-
sions of Sick and Dying Persons.—Rules for Medical Men.—Illustrations.—Such Con-
fessions under Scotch Law. statute of
III.
.
,
George :-By cap. 37., it is declared, that a witness cannot prosecution.", Mr. PETTIGREW. " Then, my lord, I must refuse to answer questions, because he’may decline answering any questions." subject himself to a civil liability or Mr. Justice BAILEY. 11 I-recollect having but he is not bound to answer GENTLF)IEN
a
-
charge;
any
questions which may expose him to criminal punishment or penal liability. In such cases
surgeon of eminence tried in this court,on a similar occasion."
seen a
.
Neither Mr. PETTIGREW, nor his assistant, the Limits to which a medical witness may were examined. thus proceed, ought to be well understood. In this case, the witness was greatly A surgeon, who goes out with parties that indebted to the judge; and the case strongly are about to fight a duel, is liable to be proillustrates the advantage of a knowledge secuted criminally, if it can be proved that of the law of legal evidence to medical k, knew that the duel was to take place. He is supposed, in that case, to be an aider men. In mentioning this case, hlr. AMOs remarks-"Mr. PETTIGREW could and abettor of the crime, which is felony in quaintly not but have regretted his deficiencies if, the eye of the law. But as ’the duty of the after concluding his evidence, he had been surgeon differs from that of the second, who requested to spend the rest of the day with out to the the of goes regulate perpetration the and the next morning but one murder, and as the surgeon attends merely. withgoaler, the executioner,-a doom which must to alleviate its -consequences, if they admit have awaited him if royal mercy had not ,of alleviation, I am disposed to regard the legal law in this respect as at least severe. It intervened,ofinthepity to the ’"deplorable On the same culprit."* ignorance that a is, nevertheless, true, surgeon who, a medical witness may refuse to attends on the field, knowing that a duel is principle answer any question tending to degrade to be fought, is regarded in law as an either his moral or his professional characaccomplice. In giving testimony, therefore, ter, unless the transaction respecting which in a prosecution of the surviving party for the witness is interrogated form any part of not to a is bound murder, surgeon answer the issue; in which case he will be obliged any questions which may tend to criminate to give evidence, however strongly it. may himself. See Mr. Amos’s Printed Lectures. At the Old Bailey sessions, in June 1821, ’ ’z_ No. 686. L ’
.
’
’
146 reflect upon his character; but, in all matters opinion, whether certain symptoms are irrelevant to the investigation in issue, he symptoms of insanity, yet they are not com. may legally refuse to answer. Thus a petent to give an opinion whether the par. medical witness may, on some former occa- ticular act for which a prisoner is tried, sion, have displayed great professional was an act of insanity. Thus, in such a ignorance in his delivering his testimony, case as that of BELLINGHAM, who shot Mr. but he may have subsequently recovered the PERCEVAL, and was properly hanged for the good opinion of the world; consequently it murder, a physician might have proved that would be an act of extreme cruelty and the prisoner had displayed proofs of in. injustice to expose his character afresh to sanity; but his opinion would not have evil report, by means of his own testimony. been asked whether the murder in question A question may, nevertheless, be asked which I was an act of insanity. It is surely un. may tend to disparage a witness, provided necessary, Gentlemen, for me to urge you to it have not a direct and immediate effect to reflect on the high responsibility of the disparage. In a case in which Lord medical witness in all such cases. Is it ALVANLEY was judge, a female was asked requisite to say that he should come into whether she did not cohabit with the plain- court not merely to give an opinion; he tiff ; his lordship did not exclude the ques- should be able to maintain its accuracy, tion, and added, " that unless a witness and to afford the reasons which influence could be asked what might tend to disparage his decision ? Without such an elucidation, him, an investigation into the character of " opinion," as Dr. HASLAM justly remarks, the witness, which it might be important to becomes a bare dzcMM . But in every ascertain, would be prevented." If the wit- case, as well as in those of insanity, it is ness display premeditated ignorance on a incumbent in the medical witness to explain point regarding which he ought manifestly and to establish his testimony ; and in doing to have possessed greater knowledge, this so, as he is directing his observations to circumstance in a witness should never be unprofessional men, he is bound also to forgotten ; and the witness should be held make his explanations satisfactory to the up to the finger of scorn. STARKIE, in treat- capacities of his hearers; he must make ing of the instruments of evidence, justly himself intelligible to ordinary compre. remarks that, " It cannot but be material for hensions. the jury to understand the character of the You must also bear in mind, Gentlemen’ witness whom they are called upon to that your powers to form a judgment on believe; and to know, whether, although circumstances which require professional he has not been actuallv convicted of skill may be called in question. For exany crime, he has not in some measure ample, a man is wounded, and death ensues; rendered himself less credible, by his dis- the jury cannot draw any conclusion, from their own experience, whether the fatalissue graceful conduct."* In general a witness must speak to facts; was the result of the wound ; consequently opinion is not regarded as evidence; but a surgical witness is called in. He delivers medical witnesses, as I have already stated, his opinion as to the connection between the speak not only as to facts, but also state wound and the death, grounded upon the opinions, both as to the condition of patients knowledge which he is supposed to possess, whom they have seen, and with respect to on hearing all the circumstances and the cases detailed by other witnesses, although symptoms of the case ; and the jury is to be they have not themselves seen the patients. guided by his opinion, because it is a just Such opinions are received as evidence. I maxim in law, " cuilibet in arte sua creBut the skill of the witness was some years ago subpaened to attend a dendum est." trial at Warwick, on a policy of insurance may be called in question; his ability ill’;S! on a life; yet all that could be expected be undoubted before his evidence car, be from me, and from other medical witnesses received; thence, if questioned, he must be who were in the same predicament with prepared not only to maintain the validity myself, was merely an opinion of the state of his opinion, but to display the extent of of the health of the deceased, from the his ability by the opinions which he dedetails of others, at the time of effecting the livers. policy. In cases of insanity this species of Nothing weighs so much with a jury, evidence is often most important, as the in evidence to testimony, as expemedical man is permitted to form his judg- rience in the witness in reference to the ment upon the representation which wit- subject at issue ; but, however great this nesses at the trial have given of the conduct, may be, yet it will have little influence in manner, and general appearance exhibited by regulating the decision of a court, if it be the patient. There is however a certain not in conformity with the general ex. degree of limitation in such cases; for, perience of the world. Thus, if a surgeon although medical witnesses are admitted, were to affirm that a man whose skull was after hearing such evidence, to give their fractured by a blow on the head, and who died a few days afterwards, did not fall a * Starkie’s victim to the blow, but died of apoplexy; or Evidence, p. 142.
giving
147
by displaying the extent of their knowledge on the subjects at issue, and they deliver harangues almost amounting to lectures in court ; but no conduct is more indiscreet ; none is more likely to weaken any hold which the witness may have previously gained upon the good opinion of the public. No quality is of more importance to the medical witness than presence of mind. It is, also, of the first importance to have no dread of being called upon to give medical evidence; for there can be no doubt that the individual who feels that his appearance in the witness-box is a formidable undertaking, will seldom do justice either to himself or to the profession. It has been remarked that ignorance is the parent of this dread; and, assuredly, a well-informed medical witness has nothing to fear, if he preserve his presence of mind, if he give short and prompt replies to the questions put to him, and if he bestow that attention which will enable him to understand clearly the nature of the questions before he makes his replies. It may be supposed that this promptness is not easily acquired where so many things occur to derange the memory; but, except in the coroner’s court, no witness is called into court without having time allowed him to refresh his memory, and to come forward in a state of preparation. It has been remarked by JEREMY BENare deceiving us."’ THAM, that promptitude of reply affords, in In commenting upon evidence respecting fact, a very great security against prevariopinions, those of medical writers are often cation, or falsehood, inasmuch as memory mentioned by counsel, and the opinion of is more prompt than invention; but that the witness respecting them is demanded. acute writer admits that although this is In such cases it is always advisable to true in part, yet that when memory is strugcriticise with judgment, and to advance glingwith distance of time, and tryingto contrary opinions with diffidence. In a case disentangle complicated facts, it hesitates at mentioned in the printed lectures of Mr. every step ; the more it labours to be acAotos, a medical man at Lincoln flippantly curate, the slower is its pace. Invention." replied to a question, by slighting the in- he says, "can proceed more rapidly." But formation which was to be obtained from when the delay to answer is long, this writers on medicine, remarking that authors silence always turns to the disadvantage of would advance any thing. 11 Chief-Justice the person examined. Thence the great neDALLAs reprimanded the witness, remarking cessity of promptness and presence of mind. that he would not sit in a court of justice In extreme cases, when a person believes and hear scienee reviled, and the recorded that he is dying, confessions are sometimes researches of the medical world represented made to medical men. Thence the young by ignorant tongues as leading only to un- practitioner should be advised of the circumstances under which such confessions certainty." In delivering your own opinions never can be received as evidence. The rules to volunteer explanations which are not re- be observed in such cases are clear, and quired. I have seen medical men run into should always be kept in recollection. In difficulties from which they could not ex- the first place, no improper interference tricate themselves by such indiscretions, should be exerted to induce a confession, and lose themselves in a labyrinth of per- for, if it can be proved that either promise plexities, which even became obvious to the or threat has been held out, the confession adverse counsel, who generally exerted cannot be received; but it is still undecided every nerve to lead the unfortunate wan- whether this rule is strictly referable to inderers still farther astray, until they were ducements held out by medical men, who completely mystified and lost. Some men are considered as unauthorised persons. In think that they can elevate their professional the second place, if a threat or a promise be made by a magistrate, a constable, or the Starkie, p. 471, vol. 1. prosecutor, to obtain the confession, it canL2
any other disease, his testimony, although he might be a man of great experience, yet, to say the most of it, would create little belief of its correctness in the minds of the jury. Nor is this wonderful, since one of human testimony is experience ; ground and 11 it necessarily follows that such testimony is strengthened or weakened by its conformity, or its inconsistency, with ourprevious knowledge and experience."* A man z, easily credits a witness who states that that event has happened which he himself has known to happen under similar circumstanes ; and he may even believe such testimony, if according to his preconceived ideas, although he should not have had actual experience of similar facts ; but when a person asserts that which is not only unsupported by common experience, but is contrary to it, belief is slow and difficult. I may illustrate this by an anecdote told to me by my friend Mr. GALT, the novelist: "When I was in Palermo," said Mr. GALT, "my landlord and his family were much pleased with the accounts which I gave to them of London. One evening, however, on telling them that the salary of a prima donna, in our Opera House, was equal to that of the Prime Minister, my host stopped me short, and said, No,—no, that is not credible. Hitherto we have believed what you have told to us, because we thought you a sober-minded man, but now I am sure you
characters
I
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148
be received; but if an admonition come from a medical man, although in the presence of a constable, to whom the confession shall be afterwards made, then it is admissible. The same rule holds in regard to a confession made to a medical man who has persuaded the prisoner to make it, because not
made even in our times. Persons have confessed to murders which were never committed ; forgeries have been confessed to by people who could scarcely write theif names ; and statements of the most incre.
dible.events, perfectly incompatible with
the laws of nature, have entered into the it would be better for him,-unless the sur- confession of persons accused of witchcraft, geon has been called in on the occasion, in in former times. It is, indeed, melancholy which case he is regarded as clothed with a to reflect that penal statutes were founded sort of official capacity. upon such confessions, and that legal murIn the case of a woman, named GIBBONS, ders were perpetrated in the execution of who was tried for the murder of her bastard the poor wretches who made the confessions. child, Mr. COZENS, a surgeon, received the Nevertheless, such events, equally disgrace. confession of the culprit whilst he was at- ful to the humanity and to the common sense tending her in the capacity of a surgeon. of the country, were frequently occurring The admissibility of this confession was ob- for nearly a couple of centuries. Indeed, it jected to by counsel, because a woman who is only since the reign of GEORGE II. that was present had induced the prisoner to witchcraft has ceased to be a capital offence makethe confession. Mr. Justice PARK and in this country. If insanity be not at the bottom of some Baron HULLOCK overruled the objection, because Mr. COZENS, to whom the confession confessions which are made on sickbeds, was made, had not induced the woman to even at the present day, it is not easy to confess, nor had he held out any promise or trace them to any motive. Some of these I threat, and, therefore, the confession was re- have witnessed in the course of my profesgarded a free and voluntary one. The in- sional life; and although I could generally ducement of the stranger was not regarded refer them to some taint of insanity in the of any moment. It does not appear, in this I individuals, yet they made upon others an case, whether the judge would have held impression which might have been produc. the confession admissible, if Mr. COZENS had tive of the most melancholy results, had the induced the woman to confess, although it is individuals who made them unfortunately probable that they inferred it, as the judges recovered. Medical men are frequently called upon began the statement of their opinion, by saywho ing " That as no inducement had been held to receive the declarations out by Mr. CozENS, to whom the confession have suffered some mortal injury, and their was made," &c. On this ground, I think declarations, although they are a species that I am right in recommending you not toof hearsay evidence, yet are constantly aduse any means to induce a suspected person,mitted as evidence, in criminal prosecutions, who may wish to unburthen his mind towhen the charge against a prisoner arises you, to do so. Receive what is said with- out of the death of the person who made the out comment, and, as soon as possible, com- declaration. Such declarations are, indeed, mit it to writing. It is, indeed, advisableconsidered so important, that when a wife to commit the confession to paper, whilst: who is supposed to have been murdered by the person is making it; and, in doing so, ither husband, makes a dying decla1’atioll, is also of the utmost importance that theeither criminating the husband, or relieving most scrupulous attention be paid to thehim of the charge, it is admitted as evidence. minutest details ; and, as nearly as can beThe court, however, must be satisfied that done, they should be recorded in the very the party who made the declaration was words of the confessing person. If the con- really under the impression of approaching fession be taken down in writing at the time,death. The reception of such declarations it should be read over to the prisoner, andI as evidence is founded "partly on the awful signed both bv him and the surgeon, actingsituation of the dying person, which is supshould the prisoner re-posed to be as powerful over his conscience officially, fuse to sign it, the written document is stillI as the obligation of any oath, and partly on admissible as evidence, by the prisoner’s ac- the supposition of the absence of interest* knowledgment of the truth of its contents.when a person is on the verge of eternity."* But if such an admission is not made, andIndeed, when we reflect upon the situation the prisoner has refused to sign the confes-in which the individual making the declarasion after it has been read over to him, then tion is placed, the probability immediately it cannot be received in evidence. The’ strikes us, that truth only would be spoken writing, also, must be proved by some per-under such circumstances. In another point son wiio heard the prisoner confess. Hasty of view, also, it is not likely that a person confessions, made to persons having no au- making a dying declaration will be under thority, according to Judge FOSTER, are thethe influence of human passions. I cannot weakest and most suspicious of all evidence.avoid quoting a passage from our immortal As historical facts, it is curious to trace * Amos’s printed Lectures. the singular confessions which have been
of persons
although,
149 in his memory; and this statement is allowed to be referred to in giving testimony in
dramatist, which beautifully illustrates this condition of mind. In the last act of King John, AELUN, who is mortally wounded, thus expresses himself:"Have I not hideous death within my view, Retaming but a quantity of life,
Y. hich bleeds away, ev’n as a form of wax Resoheth from its figure ’2ainst the fire ? What in the world should mak e me now deceive, Since I must lose the use of all deceitt Why should I then be false, since it is true " That I must die here, and lire hence by truth ?
court.
receiving dying declarations, the meman should always recollect that they must be voluntary ; nothing should be suggested, nothing like leading questions attempted ; nor anything brought forward that can tend to foster the smallest degree of resentment, or improper feeling, in the bosom of the dying man ; for, extraordinary In
dical i ’
Dying declarations, therefore, have always as it may appear, it is nevertheless true, been received as evidence; but it must be that our passions often are the last to quit proved that the declaration was made under their hold, even when the grave is yawning Neither ought the medical a perfect consciousness of danger, and that to receive us. all hope of recovery had been given up. It man in such cases, to conceal from the dying is not essential, however, that the deceased man the danger of his situation; for if the should express his sense or apprehension of smallest ray of hope be let in, the declarahis approaching death ; but the conscious- tion, which would otherwise be 2alid eviIt is nevertheness of his impending death may have been dence, becomes valueless. infeired from the expressions of the de- less true, that if no opinion be delivered by ceased, or from the knowledge of a medical the surgeon, although the dying individual man, who receives it, of the nature of the have given no satisfactory information recase. The fact of such an apprehension specting his own feelings with regard to on the part of the individual who made his deatii, the declaration is good in evithe declaration, is a question to be decided dence. In a case of this kind, in which a by the Judge, from the testimony of those woman was the murdered person, (reported who received it, before such a declaration in Leach’s Crown Law, vol. i. p. 500,) Baron can be admitted as evidence. Now, it is EYRE thus expressed his opinion-,’ Inmore likely that dying declarations should asmuch as she was mortally wounded, and be made to medical men than to others, be-was in a condition which rendered almost cause the consciousness of the near approach immediate death inevitable, as she was of death is most likely to be impressed onthought, by every one about her, to be the patient from what a surgeon may say, in dying, though it was difficult to get from reply to the enquiries of a wounded man,her particular explanations as to what she even more than from any feeling in the indi- thought of herself and her situation; no declarations made under these circumstances vidual himself. These dying declarations impose great ought to be considered by the jury as being responsibility on the medical man who proves madeunder the impression of her approachthem. In detailing a dying declaration, it ing dissolution; for, resigned as she apis necessary to preface the statement by an peared to be, she must havefelt the hand of accurate account of the condition of the pa- death, and must have considered herself as tient at the time when the declaration was a dying woman. She continued to repeat, made, so that there may be positive proof as rationally and uniformly, the facts which tothe fitness of the deceased for making it, she had disclosed from the moment her without which it cannot be received as evi- senses returned, until her tongue was no dence. The term "fitness," here, does not longer capable of performing its ollice. refer solely to the bodily condition of the Declarations so made are certainly entitled deponent; for the parties against whom the to credit; they ought therefore to be received declarations are made, may object to them, as evidence." Other cases may be found in by proving that the state of mind and the East’s Crown Law, and in similar works, in behaviour of the deponent, in his last mo- which this opinion was actedupon: the ments, were such as to lead to the inference, consciousness of danger, as I have already that being not duly impressed by a religious said, need not be expressed, it may be insense of his approaching dissolution, he ferred from the nature of the wound, and allowed malice to influence his mind in other circumstances. The most difficult part which a medical making the declaration, which would, of course, at once invalidate it as evidence. man has to perform in such cases, is in The exact words employed by the deceased i receiving the dying declaration where suicide should be given; and, as I have already is suspected. In no case is more discrimisaid, when there is time for it, the de- nation and discretion required; the suicide position should be taken down on paper, must be led to disburthen his mind, he must and read over, and signed by the dying not be driven to it by questions, which pre, man. But, if this has not been done, too often, apt to rankle in the mind of the owing to the rapid death of the deponent, a delinquent, who consequently becomes Ntemorandum of the conversation should be silent and morose, instead of making a made by the surgeon, whilst it is yet fresh confident of his medical attendant.
150 In all cases of death-bed declarations, nothing is toimportant as to examine closely the history of events prior to the fatal issue; these often throw more light upon the transaction than anything immediately connected with the event itself. Upon the whole, the following are the rules that ought to guide the medical practitioner in receiving dying declarations: 1. The deponent should be conscious of his danger, and have given up all hope of recovery. 2. The declaration should be
perfectly
voluntary.
seems to have been PETERS, the clergyman, discreet. 11 I desired him," said extremely he, " to consider that, as a dying man, great weight would be laid on his words, there. fore if he said any thing not strictly true, he might involveinnocent people in the guilt and the punishment; therefore I desired him to lay his hand upon his heart and consider."* The following is the statement of Mr. admitted as evidence in this case:PETERS, " He (Mr. LUTTERELL) told me," said Mr. PETERS, " as a dying man, as he expected
to be tried for this very fact at the bar of
Heaven,
as
well
as
the person who had in.
moment, jured him, he assured me he was murdered and, if in a barbarous manner; Afterwards came in one CHURCH, a bailiff, in the same street, possible, signed by the deponent. 4. If any notes of the circumstances con- and desired me to put it home to him; I 3. Notes should be taken at the and these should be read over,
nected with the declaration are intended to be used in court to refresh the memory, they must be original notes ; copies are not admissible. 5. It must be clear that the deceased was of a character to be impressed by a religious sense of his approaching death. I will now, Gentlemen, endeavour to illustrate these doctrines by a few cases. In 1722, two men, of the names of HUGH REASON and ROBERT TRANTER, were tried for the murder of Edward LUTTERELL, Esq. The prisoners, who were bailiffs, called upon Mr. LUTTERELL, to serve upon him a warrant of arrest for ten pounds, when Mr. LUTTERELL, having had some words with the officers, went up to another room in his house, and brought down a brace of pistols, which he laid upon the table, without, as it appeared, having any design of using them offensively. The dispute, however, with the officers continuing, Mr. LUTTERELL struck one of them on the head with a stick, when both of them fell upon him, stabbed him with a sword in many places, and afterwards fired two balls into his body. Now, the principal evidence in this case was the dying declaration of Mr. LUTTERELL, who made three declarations, at three distinct periods, in the course of the day, with the interval of an hour between each of them The first declaration was not taken down in writing, but the second was reduced into writing by a clergyman, in the presence of two justices of the peace ; the third was again heard by the clergyman, but not committed to paper. The written deposition was not signed, because, before they could perfect the examination, Mr. LUTTERELL fainted, and this paper was, in an extraordinary manner, carried off by one of the magistrates, and was not produced on the trial; and a copy, which was kept by the clergyman, could not be admitted as evidence, although the oral testimony of the clergyman was received. The clergyman deposed, that at each of the times he was with Mr. LuTTERELL, that gentleman declared that he had been barbarously murdered. The conduct of Mr.
did, upon which he made me the same an. swer, that he was barbarously murdered. He wanted spirits, or would have expressed himself more fully; on this I prayed by him, and when I had done I took my leave of him. In about an hour afterwards I was again sent for; when I came there, I met Mr. VERNON and Mr. HAYNES, justices of of the peace ; one of thejustices gave Mr. LUTTERELL his oath, and, there being no clerk there, desired me to take his words in writing, which I did. The words were these:-’ The bailiffs took the pistols from my table ; they fired them twice ; the fat man drew his sword, and then run me into the body with his sword ; and then drew my sword, which I broke in his hand, and begged for life; I neither fired a pistol or made one push; they both run me through; I offered to pay them the money.’ I think these are the very words he said. After this I prayed by him again, and still desired that he would not lay any thing to the charge of people that were not guilty. I left him then, and came again a third time; and, as I was praying by him, he interrupted me, and asked me if it was not proper to receive the holy sacrament, which he was desirous to do. I asked him if he had ever received the sacrament; he told me he had; I desired him to consider, and to assist him, I put him in a method; I told him one thing which was necessary, and which perhaps he might come into with reluctance, and that was charity and forgiveness of his ene. mies. I told him he had been hardly dealt with,I believed, yet it did behove him, as he died a Christian, to forgive them; he told me he did forgive, and hoped Almighty God, at the last day, would forgive their indiscretion. He died some time afterwards, but then in so dosing a condition, that I could not attend him to any purpose." " Mr. HUNGERFORD. Did he say any thing about who fired the pistol ?? " PETERS. I mentioned it to him, when I asked him if he had fired either of the pis. tols ; I told him one of the bailiffs was *
Howell’s State
Trials, vol. xvi. p.
24-31.
151
wounded, andthatthere were two balls taken did declare that he, the said panel, was the out of his hand ; he assured me, as a dying person who gave him the wound." The libel against GEORGE DONALD, August 4 and 11, man, that he fired neither of the pistols. "REASON. Did not he confess that he had 1730, relates, "At least, at the time and place broke one of their heads ? aforesaid, the deceased, ROBERT STEW ART, "PETERS. No, he did not say he broke one received a wound in the belly, of which, in of their heads, nor any thing like it ; so far a short space, he died ; and upon the noise from that, he said he did not design tohurt made by the firing of a pistol, one of the neigha hair of their heads." bours, running immediately into the said In this instance the copy of the written house, saw him, the said GEORGE DONALD, examination was altogether set aside, and with a pistol in his hand, which was smokonly what was said in the first and last in- ing, and fire on the breast of the said ROBERT terview of the clergyman with the dying STEWART’S clothes, and having opened them, man, was admitted. The written examina- saw one wound bleeding, and heard the said tion was set aside merely because it was ROBERT STEWART say that he, the said GEORGE not the original paper. DONALD, had shot him." Testimony was The great importance of reducing dying given to this material circumstance, notwithclarations to writing is also pointed out in standing the opposition made to it by the the charge of the Chief-Justice. " Mr. pannel. Indeed, in such cases, the dying PETERS," says he, " is a very worthy declaration is properly a part of the fact or person, there is no reason to doubt; but story. The indictment of NORMAN Ross he swears upon his memory ; and when makes the like charge in these words :a man swears upon his memory he may mis And she being yet able to speak, declared take, and the mistake of a few words may to the persons present that he (NORMAN alter the sense." The Judge, in further com- Ross) was the person who had done that menting on the improper conduct of the bloody deed, and directed them to look for magistrates in carrying off the written exa- the knife, which was accordingly done, and mination, says, "The prosecutor has not pro- found behind the bedstead, smeared with duced the evidence that is proper, and only blood." And these things went proof withrelies on the memory of the witnesses, and out objection. The like was allowed in the this seems to affect the evidence that is trial of NICHOLAS COCKBURN, August 12, 1754, given by Mr. PETERS." This is sufficient for poisoning his grandmother. A surgeon to show the importance of written testimony who attended the deceased, and Mr. DuNin such cases, for although Mr. PETERS’ tes- DAS of Armston (afterwards Lord President timony was received, yet it was weakened for of the Court of Session), who had acted as want of the written examination. If there a justice of peace on the occasion, deponed be no time to write down what the dying at large to the account which the deceased man says, the matter of the conversation in her illness had given them of the violent should be committed to writing as soon and sudden manner in which she was taken afterwards as possible, and such memoranda ill, of the pannel having prepared breakfast are permitted to be used in court to refresh for her, of the various shifts and devices which she used to avoid detection,-in short, the memory of a witness. Concerning the admissibility as evidence of her whole grounds of belief that the pa.nof dying declarations under the Scotch law, nel had been the cause of her death. There the following passage occurs in Mr. HuME’s is another case of murder by poison, August "Commentaries," respecting trials for crimes 9 and 12, 1755,-that of ANDREW WILSON, who was tried for poisoning his wife; and (vol. ii., p. 227, et seq.):"In cases of murder, our judges have there the libel bears the same impeachment always admitted evidence of the dying de- of the panel by the deceased upon her deathclaration of the deceased, even though purely bed, thus :—" And, likewise, your said wife, verbal, and still more if reduced into writ- during her said last illness, did, in the preing by any creditable person, with respect sence and hearing of several persons, express to the manner and guilt of his death. Justly strong suspicions of your having poisoned her considering such material testimony, given with the said drink." Last of all, I may on so trying an occasion, is of some appeal to the noted trial of MUNGO CAMPweight in the scale of evidence and sound BELL, February 26, 1770, where Mr. MOORE, reason, as a circumstance and presumption who attended Lord EcLINTOUN on his deathof guilt, though not to be received as of bed, gave evidence of his dying declaration, equal value with an oath emitted before the with respect to the occasion of his receiving
assize." This doctrine has the sanction of the mortal wound. Many precedents in various forms. In the Dying declarations are also brought forcase of WILLIAM Ross, February 16,1719, ward in favour of the accused, and in such the interlocutor sustains this among other cases are subject to the same rules. Thus, articles of presumption against the panel : in the trial of a soldier of the name of HALE, "And upon carrying the panel to the de- who shot his comrade, the accused was acfunct’s house, he, the said defunct, when on quitted on the dying declaration of the man his death-bed, upon seeing the said who was shot. He deposed," That he verily
panel,
152
believed that SAMUEL HALE knew
not that the piece was loaded, and that he freely forgave him ; and he stretched forth his hand and kissed him, and said that he believed he meant him no harm, and that the thing Hale was acquitted. was accidental."
LECTURES ON
MATERIA
MEDICA AND
THERAPEUTICS, NOW
IN
COURSE
OF
DELIVERY
AT THE
WINDMILL STREET SCHOOL OF MEDICINE. BY
GEORGE G.
SIGMOND,
M.D.
LECTURE II.
Absurdities in ancient
Pharmacopœias.—The Study of Botany.—Classification of the Materia Medica.—Superiority of the Linnœan Distribution of the Vegetable Kingdom.— The Mineral Kingdom.—The Vital Proand Constituents, the Ultimate and Proximate Principles, of Plants. — The Structure of Vegetables.—Roots which are
cesses
employed Medicinally. THE number and variety of substances which have been employed from the earliest period, in the cure of disease, are very great. From the vegetable, the animal, the mineral, kingdom, and lately from the gaseous kingdom, have we sought relief from those diseases with which, during his progress through this state, it has pleased a great Creatcr, for purposes unknown to us, to afflict man. The industrious nosologist, SAUVAGES, hascalculated-that there are about 2400 disorders to which the human race is liable, and for which it is our sacred duty.to investigate every object in nature that can alleviate them. At first, almost every thing was indiscriminately received, and then as arbitrahas at length enabled us to select from the vast farrago those which really possess therapeutic power, and to establish a system which is pretty universally recognised throughout all parts of the globe that have been illuminated by the torch of science. No longer does the talisman, the amulet, work upon a disordered imagination. Charms, witchcraft, and astrology have lost their influence ; and although, for a time, some daring quackery absorbs the public attention, the good sense of the community, aided by the scrutinizing vigilance of the medical world, overwhelms it with the contempt it merits. The sponge that wiped the consecrated table of the Pope is no longer superstitiously venerated as a healer of wounds, nor does a throngof unhealthy in-
rily rejected. Experience
dividuals surround the carriage of our kings to obtain the royal touch, once thought to be a specific- against scrofula. We no longer find, as in our first pharmacopoeias, remedies inhuman skulls powdered, in pairings of the nails, in wolf’s liver, in hog’s-lice, in common bed-bugs, all of which, in their appropriate Latin names, obtained the sanction of our learned bodies. The progress of the Materia Medica is now less impeded by superstition, by credulity, ignorance, impudence, false theory, avarice, and a blind obedience to the writings of the ancients. StiM, however, much remains to be done, and diligent exa. mination is necessary before we rashly reo ceive into our pharmacopoeias substances, whose effects upon the tissues of the human body are not thoroughly understood. Few subjects are more deeply interesting than the philosophy of vegetables, which we must now slightly consider. Were we to attempt to enter much into the contemplation of botanic knowledge, however deep a source of intellectual pleasure it might prove, our course of lectures would be too much extended. I would recommend to your pe. rusal,as initiatory to this science, WILDE. NOW’s"Principles of Botany and of Vegetable Physiology," KEITH’S « System of Pliysiological Botany," Sir JAMES SMITH’S "Introduction to Botany," Professor LINDLEY’S " Introduction to Botany," the " Principles of Descriptive and Physiological Botany," by the Rev. J. S. HENSLOW; and for a history of its progress, more especially in England, to Dr. PULTENEY’S " Historical and Biographical Sketches." With regard to the systems of botany best for the student to pursue, I must acknowledge my feeling in favour of the Linnæan. The study of all systems is, I know, irksome ; but let me impress upon your minds that a methodical arrangement is always necessary in the acquirement of a science. It enables every intelligent individual first to become acquainted with the rudiments, and then to pursue the further detail. Without it all studies are difficult to be followed, and as LINNÆUS, whose life was spent in endeavouring to render the avenues to information simple and easy, by classification, has justly observed-" System was the clue by which ARIADKE escaped from the labyrinth, and without it all is chaos.Filum ARIADNEUM est systema, sine quo, chaos." CABAN IS, in his beautiful work on the revolutions of medical science, has aptly compared the scientific student to an inquisitive traveller, who, collecting every thing which interests him on his way, sees his baggage increase in bulk, at every moment; he feels himself frequently to stop and examine it, in order to free himself from the useless and redundant articles, and to arrange them in a more suitable order. It is this want of system that renders the
obliged
MEDICAL
JURISPRUDENCE,
NOW IN COURSE OF DELIVERY AT THE
UNIVERSITY OF LONDON.
BY PROFESSOR A. T. THOMSON.
Mr. GEORGE PATMORE was tried .for the murder of Mr. JOHN SCOTT, in a duel. Mr. -PETTIGREW, a surgeon, was the first witness called. Mr.Justice BAILEY said, "Mr. PETTIGZEW, I think it necessary to give you this caution. If you think the evidence which you are about to give likely to expose. you to a criminal prosecution, you are not bound to , give it." Mr. PETTIGREW replied, 11 My- lord, -1 mn not competent to form any opini6n of my legal guilt. I have not taken the part of principal, or second. The part which I have taken was merely to exercise my professional duty ; in that I do not think there was any moral guilt." Mr. Justice BAILEY. " If you went (knowing a duel was to take place) for the purpose of giving professional attendance, I apprehend you are liable to a eriminal _
,
LECTURE III. Crimination of a Medical Witness by his own Evidence.—Evidence grounded merely on Opinion.—Evidence based on Personal Ex-
perience.—Opinions grounded on Scientific Records.—Personal Bearing and Demeanour of Medical Witnesses in Court.—Confes-
sions of Sick and Dying Persons.—Rules for Medical Men.—Illustrations.—Such Con-
fessions under Scotch Law. statute of
III.
.
,
George :-By cap. 37., it is declared, that a witness cannot prosecution.", Mr. PETTIGREW. " Then, my lord, I must refuse to answer questions, because he’may decline answering any questions." subject himself to a civil liability or Mr. Justice BAILEY. 11 I-recollect having but he is not bound to answer GENTLF)IEN
a
-
charge;
any
questions which may expose him to criminal punishment or penal liability. In such cases
surgeon of eminence tried in this court,on a similar occasion."
seen a
.
Neither Mr. PETTIGREW, nor his assistant, the Limits to which a medical witness may were examined. thus proceed, ought to be well understood. In this case, the witness was greatly A surgeon, who goes out with parties that indebted to the judge; and the case strongly are about to fight a duel, is liable to be proillustrates the advantage of a knowledge secuted criminally, if it can be proved that of the law of legal evidence to medical k, knew that the duel was to take place. He is supposed, in that case, to be an aider men. In mentioning this case, hlr. AMOs remarks-"Mr. PETTIGREW could and abettor of the crime, which is felony in quaintly not but have regretted his deficiencies if, the eye of the law. But as ’the duty of the after concluding his evidence, he had been surgeon differs from that of the second, who requested to spend the rest of the day with out to the the of goes regulate perpetration the and the next morning but one murder, and as the surgeon attends merely. withgoaler, the executioner,-a doom which must to alleviate its -consequences, if they admit have awaited him if royal mercy had not ,of alleviation, I am disposed to regard the legal law in this respect as at least severe. It intervened,ofinthepity to the ’"deplorable On the same culprit."* ignorance that a is, nevertheless, true, surgeon who, a medical witness may refuse to attends on the field, knowing that a duel is principle answer any question tending to degrade to be fought, is regarded in law as an either his moral or his professional characaccomplice. In giving testimony, therefore, ter, unless the transaction respecting which in a prosecution of the surviving party for the witness is interrogated form any part of not to a is bound murder, surgeon answer the issue; in which case he will be obliged any questions which may tend to criminate to give evidence, however strongly it. may himself. See Mr. Amos’s Printed Lectures. At the Old Bailey sessions, in June 1821, ’ ’z_ No. 686. L ’
.
’
’
146 reflect upon his character; but, in all matters opinion, whether certain symptoms are irrelevant to the investigation in issue, he symptoms of insanity, yet they are not com. may legally refuse to answer. Thus a petent to give an opinion whether the par. medical witness may, on some former occa- ticular act for which a prisoner is tried, sion, have displayed great professional was an act of insanity. Thus, in such a ignorance in his delivering his testimony, case as that of BELLINGHAM, who shot Mr. but he may have subsequently recovered the PERCEVAL, and was properly hanged for the good opinion of the world; consequently it murder, a physician might have proved that would be an act of extreme cruelty and the prisoner had displayed proofs of in. injustice to expose his character afresh to sanity; but his opinion would not have evil report, by means of his own testimony. been asked whether the murder in question A question may, nevertheless, be asked which I was an act of insanity. It is surely un. may tend to disparage a witness, provided necessary, Gentlemen, for me to urge you to it have not a direct and immediate effect to reflect on the high responsibility of the disparage. In a case in which Lord medical witness in all such cases. Is it ALVANLEY was judge, a female was asked requisite to say that he should come into whether she did not cohabit with the plain- court not merely to give an opinion; he tiff ; his lordship did not exclude the ques- should be able to maintain its accuracy, tion, and added, " that unless a witness and to afford the reasons which influence could be asked what might tend to disparage his decision ? Without such an elucidation, him, an investigation into the character of " opinion," as Dr. HASLAM justly remarks, the witness, which it might be important to becomes a bare dzcMM . But in every ascertain, would be prevented." If the wit- case, as well as in those of insanity, it is ness display premeditated ignorance on a incumbent in the medical witness to explain point regarding which he ought manifestly and to establish his testimony ; and in doing to have possessed greater knowledge, this so, as he is directing his observations to circumstance in a witness should never be unprofessional men, he is bound also to forgotten ; and the witness should be held make his explanations satisfactory to the up to the finger of scorn. STARKIE, in treat- capacities of his hearers; he must make ing of the instruments of evidence, justly himself intelligible to ordinary compre. remarks that, " It cannot but be material for hensions. the jury to understand the character of the You must also bear in mind, Gentlemen’ witness whom they are called upon to that your powers to form a judgment on believe; and to know, whether, although circumstances which require professional he has not been actuallv convicted of skill may be called in question. For exany crime, he has not in some measure ample, a man is wounded, and death ensues; rendered himself less credible, by his dis- the jury cannot draw any conclusion, from their own experience, whether the fatalissue graceful conduct."* In general a witness must speak to facts; was the result of the wound ; consequently opinion is not regarded as evidence; but a surgical witness is called in. He delivers medical witnesses, as I have already stated, his opinion as to the connection between the speak not only as to facts, but also state wound and the death, grounded upon the opinions, both as to the condition of patients knowledge which he is supposed to possess, whom they have seen, and with respect to on hearing all the circumstances and the cases detailed by other witnesses, although symptoms of the case ; and the jury is to be they have not themselves seen the patients. guided by his opinion, because it is a just Such opinions are received as evidence. I maxim in law, " cuilibet in arte sua creBut the skill of the witness was some years ago subpaened to attend a dendum est." trial at Warwick, on a policy of insurance may be called in question; his ability ill’;S! on a life; yet all that could be expected be undoubted before his evidence car, be from me, and from other medical witnesses received; thence, if questioned, he must be who were in the same predicament with prepared not only to maintain the validity myself, was merely an opinion of the state of his opinion, but to display the extent of of the health of the deceased, from the his ability by the opinions which he dedetails of others, at the time of effecting the livers. policy. In cases of insanity this species of Nothing weighs so much with a jury, evidence is often most important, as the in evidence to testimony, as expemedical man is permitted to form his judg- rience in the witness in reference to the ment upon the representation which wit- subject at issue ; but, however great this nesses at the trial have given of the conduct, may be, yet it will have little influence in manner, and general appearance exhibited by regulating the decision of a court, if it be the patient. There is however a certain not in conformity with the general ex. degree of limitation in such cases; for, perience of the world. Thus, if a surgeon although medical witnesses are admitted, were to affirm that a man whose skull was after hearing such evidence, to give their fractured by a blow on the head, and who died a few days afterwards, did not fall a * Starkie’s victim to the blow, but died of apoplexy; or Evidence, p. 142.
giving
147
by displaying the extent of their knowledge on the subjects at issue, and they deliver harangues almost amounting to lectures in court ; but no conduct is more indiscreet ; none is more likely to weaken any hold which the witness may have previously gained upon the good opinion of the public. No quality is of more importance to the medical witness than presence of mind. It is, also, of the first importance to have no dread of being called upon to give medical evidence; for there can be no doubt that the individual who feels that his appearance in the witness-box is a formidable undertaking, will seldom do justice either to himself or to the profession. It has been remarked that ignorance is the parent of this dread; and, assuredly, a well-informed medical witness has nothing to fear, if he preserve his presence of mind, if he give short and prompt replies to the questions put to him, and if he bestow that attention which will enable him to understand clearly the nature of the questions before he makes his replies. It may be supposed that this promptness is not easily acquired where so many things occur to derange the memory; but, except in the coroner’s court, no witness is called into court without having time allowed him to refresh his memory, and to come forward in a state of preparation. It has been remarked by JEREMY BENare deceiving us."’ THAM, that promptitude of reply affords, in In commenting upon evidence respecting fact, a very great security against prevariopinions, those of medical writers are often cation, or falsehood, inasmuch as memory mentioned by counsel, and the opinion of is more prompt than invention; but that the witness respecting them is demanded. acute writer admits that although this is In such cases it is always advisable to true in part, yet that when memory is strugcriticise with judgment, and to advance glingwith distance of time, and tryingto contrary opinions with diffidence. In a case disentangle complicated facts, it hesitates at mentioned in the printed lectures of Mr. every step ; the more it labours to be acAotos, a medical man at Lincoln flippantly curate, the slower is its pace. Invention." replied to a question, by slighting the in- he says, "can proceed more rapidly." But formation which was to be obtained from when the delay to answer is long, this writers on medicine, remarking that authors silence always turns to the disadvantage of would advance any thing. 11 Chief-Justice the person examined. Thence the great neDALLAs reprimanded the witness, remarking cessity of promptness and presence of mind. that he would not sit in a court of justice In extreme cases, when a person believes and hear scienee reviled, and the recorded that he is dying, confessions are sometimes researches of the medical world represented made to medical men. Thence the young by ignorant tongues as leading only to un- practitioner should be advised of the circumstances under which such confessions certainty." In delivering your own opinions never can be received as evidence. The rules to volunteer explanations which are not re- be observed in such cases are clear, and quired. I have seen medical men run into should always be kept in recollection. In difficulties from which they could not ex- the first place, no improper interference tricate themselves by such indiscretions, should be exerted to induce a confession, and lose themselves in a labyrinth of per- for, if it can be proved that either promise plexities, which even became obvious to the or threat has been held out, the confession adverse counsel, who generally exerted cannot be received; but it is still undecided every nerve to lead the unfortunate wan- whether this rule is strictly referable to inderers still farther astray, until they were ducements held out by medical men, who completely mystified and lost. Some men are considered as unauthorised persons. In think that they can elevate their professional the second place, if a threat or a promise be made by a magistrate, a constable, or the Starkie, p. 471, vol. 1. prosecutor, to obtain the confession, it canL2
any other disease, his testimony, although he might be a man of great experience, yet, to say the most of it, would create little belief of its correctness in the minds of the jury. Nor is this wonderful, since one of human testimony is experience ; ground and 11 it necessarily follows that such testimony is strengthened or weakened by its conformity, or its inconsistency, with ourprevious knowledge and experience."* A man z, easily credits a witness who states that that event has happened which he himself has known to happen under similar circumstanes ; and he may even believe such testimony, if according to his preconceived ideas, although he should not have had actual experience of similar facts ; but when a person asserts that which is not only unsupported by common experience, but is contrary to it, belief is slow and difficult. I may illustrate this by an anecdote told to me by my friend Mr. GALT, the novelist: "When I was in Palermo," said Mr. GALT, "my landlord and his family were much pleased with the accounts which I gave to them of London. One evening, however, on telling them that the salary of a prima donna, in our Opera House, was equal to that of the Prime Minister, my host stopped me short, and said, No,—no, that is not credible. Hitherto we have believed what you have told to us, because we thought you a sober-minded man, but now I am sure you
characters
I
-
-
148
be received; but if an admonition come from a medical man, although in the presence of a constable, to whom the confession shall be afterwards made, then it is admissible. The same rule holds in regard to a confession made to a medical man who has persuaded the prisoner to make it, because not
made even in our times. Persons have confessed to murders which were never committed ; forgeries have been confessed to by people who could scarcely write theif names ; and statements of the most incre.
dible.events, perfectly incompatible with
the laws of nature, have entered into the it would be better for him,-unless the sur- confession of persons accused of witchcraft, geon has been called in on the occasion, in in former times. It is, indeed, melancholy which case he is regarded as clothed with a to reflect that penal statutes were founded sort of official capacity. upon such confessions, and that legal murIn the case of a woman, named GIBBONS, ders were perpetrated in the execution of who was tried for the murder of her bastard the poor wretches who made the confessions. child, Mr. COZENS, a surgeon, received the Nevertheless, such events, equally disgrace. confession of the culprit whilst he was at- ful to the humanity and to the common sense tending her in the capacity of a surgeon. of the country, were frequently occurring The admissibility of this confession was ob- for nearly a couple of centuries. Indeed, it jected to by counsel, because a woman who is only since the reign of GEORGE II. that was present had induced the prisoner to witchcraft has ceased to be a capital offence makethe confession. Mr. Justice PARK and in this country. If insanity be not at the bottom of some Baron HULLOCK overruled the objection, because Mr. COZENS, to whom the confession confessions which are made on sickbeds, was made, had not induced the woman to even at the present day, it is not easy to confess, nor had he held out any promise or trace them to any motive. Some of these I threat, and, therefore, the confession was re- have witnessed in the course of my profesgarded a free and voluntary one. The in- sional life; and although I could generally ducement of the stranger was not regarded refer them to some taint of insanity in the of any moment. It does not appear, in this I individuals, yet they made upon others an case, whether the judge would have held impression which might have been produc. the confession admissible, if Mr. COZENS had tive of the most melancholy results, had the induced the woman to confess, although it is individuals who made them unfortunately probable that they inferred it, as the judges recovered. Medical men are frequently called upon began the statement of their opinion, by saywho ing " That as no inducement had been held to receive the declarations out by Mr. CozENS, to whom the confession have suffered some mortal injury, and their was made," &c. On this ground, I think declarations, although they are a species that I am right in recommending you not toof hearsay evidence, yet are constantly aduse any means to induce a suspected person,mitted as evidence, in criminal prosecutions, who may wish to unburthen his mind towhen the charge against a prisoner arises you, to do so. Receive what is said with- out of the death of the person who made the out comment, and, as soon as possible, com- declaration. Such declarations are, indeed, mit it to writing. It is, indeed, advisableconsidered so important, that when a wife to commit the confession to paper, whilst: who is supposed to have been murdered by the person is making it; and, in doing so, ither husband, makes a dying decla1’atioll, is also of the utmost importance that theeither criminating the husband, or relieving most scrupulous attention be paid to thehim of the charge, it is admitted as evidence. minutest details ; and, as nearly as can beThe court, however, must be satisfied that done, they should be recorded in the very the party who made the declaration was words of the confessing person. If the con- really under the impression of approaching fession be taken down in writing at the time,death. The reception of such declarations it should be read over to the prisoner, andI as evidence is founded "partly on the awful signed both bv him and the surgeon, actingsituation of the dying person, which is supshould the prisoner re-posed to be as powerful over his conscience officially, fuse to sign it, the written document is stillI as the obligation of any oath, and partly on admissible as evidence, by the prisoner’s ac- the supposition of the absence of interest* knowledgment of the truth of its contents.when a person is on the verge of eternity."* But if such an admission is not made, andIndeed, when we reflect upon the situation the prisoner has refused to sign the confes-in which the individual making the declarasion after it has been read over to him, then tion is placed, the probability immediately it cannot be received in evidence. The’ strikes us, that truth only would be spoken writing, also, must be proved by some per-under such circumstances. In another point son wiio heard the prisoner confess. Hasty of view, also, it is not likely that a person confessions, made to persons having no au- making a dying declaration will be under thority, according to Judge FOSTER, are thethe influence of human passions. I cannot weakest and most suspicious of all evidence.avoid quoting a passage from our immortal As historical facts, it is curious to trace * Amos’s printed Lectures. the singular confessions which have been
of persons
although,
149 in his memory; and this statement is allowed to be referred to in giving testimony in
dramatist, which beautifully illustrates this condition of mind. In the last act of King John, AELUN, who is mortally wounded, thus expresses himself:"Have I not hideous death within my view, Retaming but a quantity of life,
Y. hich bleeds away, ev’n as a form of wax Resoheth from its figure ’2ainst the fire ? What in the world should mak e me now deceive, Since I must lose the use of all deceitt Why should I then be false, since it is true " That I must die here, and lire hence by truth ?
court.
receiving dying declarations, the meman should always recollect that they must be voluntary ; nothing should be suggested, nothing like leading questions attempted ; nor anything brought forward that can tend to foster the smallest degree of resentment, or improper feeling, in the bosom of the dying man ; for, extraordinary In
dical i ’
Dying declarations, therefore, have always as it may appear, it is nevertheless true, been received as evidence; but it must be that our passions often are the last to quit proved that the declaration was made under their hold, even when the grave is yawning Neither ought the medical a perfect consciousness of danger, and that to receive us. all hope of recovery had been given up. It man in such cases, to conceal from the dying is not essential, however, that the deceased man the danger of his situation; for if the should express his sense or apprehension of smallest ray of hope be let in, the declarahis approaching death ; but the conscious- tion, which would otherwise be 2alid eviIt is nevertheness of his impending death may have been dence, becomes valueless. infeired from the expressions of the de- less true, that if no opinion be delivered by ceased, or from the knowledge of a medical the surgeon, although the dying individual man, who receives it, of the nature of the have given no satisfactory information recase. The fact of such an apprehension specting his own feelings with regard to on the part of the individual who made his deatii, the declaration is good in evithe declaration, is a question to be decided dence. In a case of this kind, in which a by the Judge, from the testimony of those woman was the murdered person, (reported who received it, before such a declaration in Leach’s Crown Law, vol. i. p. 500,) Baron can be admitted as evidence. Now, it is EYRE thus expressed his opinion-,’ Inmore likely that dying declarations should asmuch as she was mortally wounded, and be made to medical men than to others, be-was in a condition which rendered almost cause the consciousness of the near approach immediate death inevitable, as she was of death is most likely to be impressed onthought, by every one about her, to be the patient from what a surgeon may say, in dying, though it was difficult to get from reply to the enquiries of a wounded man,her particular explanations as to what she even more than from any feeling in the indi- thought of herself and her situation; no declarations made under these circumstances vidual himself. These dying declarations impose great ought to be considered by the jury as being responsibility on the medical man who proves madeunder the impression of her approachthem. In detailing a dying declaration, it ing dissolution; for, resigned as she apis necessary to preface the statement by an peared to be, she must havefelt the hand of accurate account of the condition of the pa- death, and must have considered herself as tient at the time when the declaration was a dying woman. She continued to repeat, made, so that there may be positive proof as rationally and uniformly, the facts which tothe fitness of the deceased for making it, she had disclosed from the moment her without which it cannot be received as evi- senses returned, until her tongue was no dence. The term "fitness," here, does not longer capable of performing its ollice. refer solely to the bodily condition of the Declarations so made are certainly entitled deponent; for the parties against whom the to credit; they ought therefore to be received declarations are made, may object to them, as evidence." Other cases may be found in by proving that the state of mind and the East’s Crown Law, and in similar works, in behaviour of the deponent, in his last mo- which this opinion was actedupon: the ments, were such as to lead to the inference, consciousness of danger, as I have already that being not duly impressed by a religious said, need not be expressed, it may be insense of his approaching dissolution, he ferred from the nature of the wound, and allowed malice to influence his mind in other circumstances. The most difficult part which a medical making the declaration, which would, of course, at once invalidate it as evidence. man has to perform in such cases, is in The exact words employed by the deceased i receiving the dying declaration where suicide should be given; and, as I have already is suspected. In no case is more discrimisaid, when there is time for it, the de- nation and discretion required; the suicide position should be taken down on paper, must be led to disburthen his mind, he must and read over, and signed by the dying not be driven to it by questions, which pre, man. But, if this has not been done, too often, apt to rankle in the mind of the owing to the rapid death of the deponent, a delinquent, who consequently becomes Ntemorandum of the conversation should be silent and morose, instead of making a made by the surgeon, whilst it is yet fresh confident of his medical attendant.
150 In all cases of death-bed declarations, nothing is toimportant as to examine closely the history of events prior to the fatal issue; these often throw more light upon the transaction than anything immediately connected with the event itself. Upon the whole, the following are the rules that ought to guide the medical practitioner in receiving dying declarations: 1. The deponent should be conscious of his danger, and have given up all hope of recovery. 2. The declaration should be
perfectly
voluntary.
seems to have been PETERS, the clergyman, discreet. 11 I desired him," said extremely he, " to consider that, as a dying man, great weight would be laid on his words, there. fore if he said any thing not strictly true, he might involveinnocent people in the guilt and the punishment; therefore I desired him to lay his hand upon his heart and consider."* The following is the statement of Mr. admitted as evidence in this case:PETERS, " He (Mr. LUTTERELL) told me," said Mr. PETERS, " as a dying man, as he expected
to be tried for this very fact at the bar of
Heaven,
as
well
as
the person who had in.
moment, jured him, he assured me he was murdered and, if in a barbarous manner; Afterwards came in one CHURCH, a bailiff, in the same street, possible, signed by the deponent. 4. If any notes of the circumstances con- and desired me to put it home to him; I 3. Notes should be taken at the and these should be read over,
nected with the declaration are intended to be used in court to refresh the memory, they must be original notes ; copies are not admissible. 5. It must be clear that the deceased was of a character to be impressed by a religious sense of his approaching death. I will now, Gentlemen, endeavour to illustrate these doctrines by a few cases. In 1722, two men, of the names of HUGH REASON and ROBERT TRANTER, were tried for the murder of Edward LUTTERELL, Esq. The prisoners, who were bailiffs, called upon Mr. LUTTERELL, to serve upon him a warrant of arrest for ten pounds, when Mr. LUTTERELL, having had some words with the officers, went up to another room in his house, and brought down a brace of pistols, which he laid upon the table, without, as it appeared, having any design of using them offensively. The dispute, however, with the officers continuing, Mr. LUTTERELL struck one of them on the head with a stick, when both of them fell upon him, stabbed him with a sword in many places, and afterwards fired two balls into his body. Now, the principal evidence in this case was the dying declaration of Mr. LUTTERELL, who made three declarations, at three distinct periods, in the course of the day, with the interval of an hour between each of them The first declaration was not taken down in writing, but the second was reduced into writing by a clergyman, in the presence of two justices of the peace ; the third was again heard by the clergyman, but not committed to paper. The written deposition was not signed, because, before they could perfect the examination, Mr. LUTTERELL fainted, and this paper was, in an extraordinary manner, carried off by one of the magistrates, and was not produced on the trial; and a copy, which was kept by the clergyman, could not be admitted as evidence, although the oral testimony of the clergyman was received. The clergyman deposed, that at each of the times he was with Mr. LuTTERELL, that gentleman declared that he had been barbarously murdered. The conduct of Mr.
did, upon which he made me the same an. swer, that he was barbarously murdered. He wanted spirits, or would have expressed himself more fully; on this I prayed by him, and when I had done I took my leave of him. In about an hour afterwards I was again sent for; when I came there, I met Mr. VERNON and Mr. HAYNES, justices of of the peace ; one of thejustices gave Mr. LUTTERELL his oath, and, there being no clerk there, desired me to take his words in writing, which I did. The words were these:-’ The bailiffs took the pistols from my table ; they fired them twice ; the fat man drew his sword, and then run me into the body with his sword ; and then drew my sword, which I broke in his hand, and begged for life; I neither fired a pistol or made one push; they both run me through; I offered to pay them the money.’ I think these are the very words he said. After this I prayed by him again, and still desired that he would not lay any thing to the charge of people that were not guilty. I left him then, and came again a third time; and, as I was praying by him, he interrupted me, and asked me if it was not proper to receive the holy sacrament, which he was desirous to do. I asked him if he had ever received the sacrament; he told me he had; I desired him to consider, and to assist him, I put him in a method; I told him one thing which was necessary, and which perhaps he might come into with reluctance, and that was charity and forgiveness of his ene. mies. I told him he had been hardly dealt with,I believed, yet it did behove him, as he died a Christian, to forgive them; he told me he did forgive, and hoped Almighty God, at the last day, would forgive their indiscretion. He died some time afterwards, but then in so dosing a condition, that I could not attend him to any purpose." " Mr. HUNGERFORD. Did he say any thing about who fired the pistol ?? " PETERS. I mentioned it to him, when I asked him if he had fired either of the pis. tols ; I told him one of the bailiffs was *
Howell’s State
Trials, vol. xvi. p.
24-31.
151
wounded, andthatthere were two balls taken did declare that he, the said panel, was the out of his hand ; he assured me, as a dying person who gave him the wound." The libel against GEORGE DONALD, August 4 and 11, man, that he fired neither of the pistols. "REASON. Did not he confess that he had 1730, relates, "At least, at the time and place broke one of their heads ? aforesaid, the deceased, ROBERT STEW ART, "PETERS. No, he did not say he broke one received a wound in the belly, of which, in of their heads, nor any thing like it ; so far a short space, he died ; and upon the noise from that, he said he did not design tohurt made by the firing of a pistol, one of the neigha hair of their heads." bours, running immediately into the said In this instance the copy of the written house, saw him, the said GEORGE DONALD, examination was altogether set aside, and with a pistol in his hand, which was smokonly what was said in the first and last in- ing, and fire on the breast of the said ROBERT terview of the clergyman with the dying STEWART’S clothes, and having opened them, man, was admitted. The written examina- saw one wound bleeding, and heard the said tion was set aside merely because it was ROBERT STEWART say that he, the said GEORGE not the original paper. DONALD, had shot him." Testimony was The great importance of reducing dying given to this material circumstance, notwithclarations to writing is also pointed out in standing the opposition made to it by the the charge of the Chief-Justice. " Mr. pannel. Indeed, in such cases, the dying PETERS," says he, " is a very worthy declaration is properly a part of the fact or person, there is no reason to doubt; but story. The indictment of NORMAN Ross he swears upon his memory ; and when makes the like charge in these words :a man swears upon his memory he may mis And she being yet able to speak, declared take, and the mistake of a few words may to the persons present that he (NORMAN alter the sense." The Judge, in further com- Ross) was the person who had done that menting on the improper conduct of the bloody deed, and directed them to look for magistrates in carrying off the written exa- the knife, which was accordingly done, and mination, says, "The prosecutor has not pro- found behind the bedstead, smeared with duced the evidence that is proper, and only blood." And these things went proof withrelies on the memory of the witnesses, and out objection. The like was allowed in the this seems to affect the evidence that is trial of NICHOLAS COCKBURN, August 12, 1754, given by Mr. PETERS." This is sufficient for poisoning his grandmother. A surgeon to show the importance of written testimony who attended the deceased, and Mr. DuNin such cases, for although Mr. PETERS’ tes- DAS of Armston (afterwards Lord President timony was received, yet it was weakened for of the Court of Session), who had acted as want of the written examination. If there a justice of peace on the occasion, deponed be no time to write down what the dying at large to the account which the deceased man says, the matter of the conversation in her illness had given them of the violent should be committed to writing as soon and sudden manner in which she was taken afterwards as possible, and such memoranda ill, of the pannel having prepared breakfast are permitted to be used in court to refresh for her, of the various shifts and devices which she used to avoid detection,-in short, the memory of a witness. Concerning the admissibility as evidence of her whole grounds of belief that the pa.nof dying declarations under the Scotch law, nel had been the cause of her death. There the following passage occurs in Mr. HuME’s is another case of murder by poison, August "Commentaries," respecting trials for crimes 9 and 12, 1755,-that of ANDREW WILSON, who was tried for poisoning his wife; and (vol. ii., p. 227, et seq.):"In cases of murder, our judges have there the libel bears the same impeachment always admitted evidence of the dying de- of the panel by the deceased upon her deathclaration of the deceased, even though purely bed, thus :—" And, likewise, your said wife, verbal, and still more if reduced into writ- during her said last illness, did, in the preing by any creditable person, with respect sence and hearing of several persons, express to the manner and guilt of his death. Justly strong suspicions of your having poisoned her considering such material testimony, given with the said drink." Last of all, I may on so trying an occasion, is of some appeal to the noted trial of MUNGO CAMPweight in the scale of evidence and sound BELL, February 26, 1770, where Mr. MOORE, reason, as a circumstance and presumption who attended Lord EcLINTOUN on his deathof guilt, though not to be received as of bed, gave evidence of his dying declaration, equal value with an oath emitted before the with respect to the occasion of his receiving
assize." This doctrine has the sanction of the mortal wound. Many precedents in various forms. In the Dying declarations are also brought forcase of WILLIAM Ross, February 16,1719, ward in favour of the accused, and in such the interlocutor sustains this among other cases are subject to the same rules. Thus, articles of presumption against the panel : in the trial of a soldier of the name of HALE, "And upon carrying the panel to the de- who shot his comrade, the accused was acfunct’s house, he, the said defunct, when on quitted on the dying declaration of the man his death-bed, upon seeing the said who was shot. He deposed," That he verily
panel,
152
believed that SAMUEL HALE knew
not that the piece was loaded, and that he freely forgave him ; and he stretched forth his hand and kissed him, and said that he believed he meant him no harm, and that the thing Hale was acquitted. was accidental."
LECTURES ON
MATERIA
MEDICA AND
THERAPEUTICS, NOW
IN
COURSE
OF
DELIVERY
AT THE
WINDMILL STREET SCHOOL OF MEDICINE. BY
GEORGE G.
SIGMOND,
M.D.
LECTURE II.
Absurdities in ancient
Pharmacopœias.—The Study of Botany.—Classification of the Materia Medica.—Superiority of the Linnœan Distribution of the Vegetable Kingdom.— The Mineral Kingdom.—The Vital Proand Constituents, the Ultimate and Proximate Principles, of Plants. — The Structure of Vegetables.—Roots which are
cesses
employed Medicinally. THE number and variety of substances which have been employed from the earliest period, in the cure of disease, are very great. From the vegetable, the animal, the mineral, kingdom, and lately from the gaseous kingdom, have we sought relief from those diseases with which, during his progress through this state, it has pleased a great Creatcr, for purposes unknown to us, to afflict man. The industrious nosologist, SAUVAGES, hascalculated-that there are about 2400 disorders to which the human race is liable, and for which it is our sacred duty.to investigate every object in nature that can alleviate them. At first, almost every thing was indiscriminately received, and then as arbitrahas at length enabled us to select from the vast farrago those which really possess therapeutic power, and to establish a system which is pretty universally recognised throughout all parts of the globe that have been illuminated by the torch of science. No longer does the talisman, the amulet, work upon a disordered imagination. Charms, witchcraft, and astrology have lost their influence ; and although, for a time, some daring quackery absorbs the public attention, the good sense of the community, aided by the scrutinizing vigilance of the medical world, overwhelms it with the contempt it merits. The sponge that wiped the consecrated table of the Pope is no longer superstitiously venerated as a healer of wounds, nor does a throngof unhealthy in-
rily rejected. Experience
dividuals surround the carriage of our kings to obtain the royal touch, once thought to be a specific- against scrofula. We no longer find, as in our first pharmacopoeias, remedies inhuman skulls powdered, in pairings of the nails, in wolf’s liver, in hog’s-lice, in common bed-bugs, all of which, in their appropriate Latin names, obtained the sanction of our learned bodies. The progress of the Materia Medica is now less impeded by superstition, by credulity, ignorance, impudence, false theory, avarice, and a blind obedience to the writings of the ancients. StiM, however, much remains to be done, and diligent exa. mination is necessary before we rashly reo ceive into our pharmacopoeias substances, whose effects upon the tissues of the human body are not thoroughly understood. Few subjects are more deeply interesting than the philosophy of vegetables, which we must now slightly consider. Were we to attempt to enter much into the contemplation of botanic knowledge, however deep a source of intellectual pleasure it might prove, our course of lectures would be too much extended. I would recommend to your pe. rusal,as initiatory to this science, WILDE. NOW’s"Principles of Botany and of Vegetable Physiology," KEITH’S « System of Pliysiological Botany," Sir JAMES SMITH’S "Introduction to Botany," Professor LINDLEY’S " Introduction to Botany," the " Principles of Descriptive and Physiological Botany," by the Rev. J. S. HENSLOW; and for a history of its progress, more especially in England, to Dr. PULTENEY’S " Historical and Biographical Sketches." With regard to the systems of botany best for the student to pursue, I must acknowledge my feeling in favour of the Linnæan. The study of all systems is, I know, irksome ; but let me impress upon your minds that a methodical arrangement is always necessary in the acquirement of a science. It enables every intelligent individual first to become acquainted with the rudiments, and then to pursue the further detail. Without it all studies are difficult to be followed, and as LINNÆUS, whose life was spent in endeavouring to render the avenues to information simple and easy, by classification, has justly observed-" System was the clue by which ARIADKE escaped from the labyrinth, and without it all is chaos.Filum ARIADNEUM est systema, sine quo, chaos." CABAN IS, in his beautiful work on the revolutions of medical science, has aptly compared the scientific student to an inquisitive traveller, who, collecting every thing which interests him on his way, sees his baggage increase in bulk, at every moment; he feels himself frequently to stop and examine it, in order to free himself from the useless and redundant articles, and to arrange them in a more suitable order. It is this want of system that renders the
obliged