[1] The distinction made in the text and in the title of this work is not new. It was recognized by the father of medico-legal science, Zacchias, in his two prefaces, one to the “lector medicus,” the other to the “lector legumperitus” (“Quæst. Med. Leg.,” Ed. Venet., 1727, fol.). In a note to the introduction of the “Medical Jurisprudence” of Dr. Paris and Mr. Fonblanque (the first work produced by joint authorship of a physician and a lawyer, in 1823) is the following (p. i.): “Some authors have objected to the term Medical Jurisprudence as implying a knowledge of the laws relating to medical topics, rather than an acquaintance with the medical science necessary for the elucidation of legal subjects. As it is our peculiar object to unite the sciences and to show their mutual relevance, the title becomes most applicable to this, although it may have been improperly affixed to former works.” The title of one of two existing French works in whose authorship a lawyer is associated is: “Traité de Médecine légale, de Jurisprudence médicale et de Toxicologie,” par Le Grand du Saulle, Geo. Berryer et Gab. Pouchet, 2d ed., 8vo, Paris, 1886.

[2] “Bibl. Hist.,” I., ii., 77; Miot’s transl., Paris, 1834, i., 157.

[3] L. c., I., ii., 82; transl., i., 165.

[4] L. c., I., ii., 75, 76; transl., i., 152.

[5] The “Papyros Ebers,” in the University of Leipzig, the most ancient medical text known, was written about 1550 B.C., and is probably one of the books referred to by Diodorus. It contains no statement bearing upon our subject. It is, however, simply a collection of descriptions of remedies, and their uses, including the incantations to be used with them. (See “Papyros Ebers,” H. Joachim, Berlin. 1890.) The same is true of the Berlin and Leyden papyri. The Bibl. Nat. (Tf. 2) possesses a Chinese manuscript on legal medicine. The catalogue does not, however, state to what period it belongs.

[6] For an account of early Indian medicine, see Th. A. Wise, “Review of the Hist. of Med.,” Lond., 1867, i., 272 et passim; “Hindu System of Medicine,” 1845, by the same author; Haeser, “Lehrb. d. Gesch. d. Med.,” 3. ed., i., 5-40.

[7] Hippocr.: “De Superfœtatione,” ed. Littré, viii., 472.

[8] Hippocr.: “De Septimestri partu;” ibid., “De Octimestri partu,” ed. Littré, viii., 432, 436, 452.

[9] “Aphorismi,” vi., 18, 24; “De Morbis,” ed. Littré, vi., 144.

[10] Petit, S.: “Leges Atticæ,” Lugd. Bat., 1742, lib. iii., tit. 8.

[11] “Od.,” iv., 229; xvii., 384.

[12] For an excellent account of Attic criminal procedure, see Kennedy, C. R.: “Demosthenes’ Orations,” ed. Bohn, iii., 326-372.

[13] “Var. Hist.,” iii., 38.

[14] Kennedy’s transl., ed. Bohn, v., 95.

[15] What the contents of these depositions were and by whom made is unknown, as the papers referred to by the orator are not given. In the Attic courts the testimony was taken at a preliminary trial, and referred to at the trial by the orator.

[16] “Oratores Attici,” C. Müller, Paris, 1877, i., 20.

[17] “Oratores Attici,” C. Müller, ed. Didot, Paris, 1877, i., 200-203.

[18] In a doubtful fragment of Lysias the expression “as physicians andmidwives declare” (ὡσπερ οὶ ἰατροὶ καὶ αὶ μαῑαι ἁπερηναντο) is used in connection with the question whether a fœtus has life and may be murdered. Cf. “Orat. Attici,” Müller and Hunziker, Paris, Didot, 1858, ii., 257.

[19] “Jul. Cæs.,” 82.

[20] “Hist. Nat.,” xi., 71.

[21] “Hist. Nat.,” vii., 4.

[22] A. Gellius: “Noct. Att.,” 1. 3, c. 16: “requisitis veterum philosophorum et medicorum sententiis.” The word “veterum” seems to indicate that the emperor consulted books, not living physicians.

[23] “Medici non sunt proprie testes, sed majis est judicium quam testimonium.”

[24] For accounts of the medico-legal provisions of the Justinian enactments, see: G. A. v. d. Pfordten, “Beiträge z. Gesch. d. ger. Med. aus d. Justin. Rechtssam.,” Würzburg, 1838: M. F. Eller, Bull. Med. Leg. Soc. N. Y., 1879, i., 226-237; and Friedreich, Blt. f. ger. Anthr., Nürnberg, 1850, I., iii., 1-64; 1862, xiii., 188-215.

[25] See Mende: “Handb. d. ger. Med.,” Leipzig. 1819, i., 83-87.

[26] “Etablissements et Coûtumes, Assises et Arrêts de l’Echiquier de Normandie au xiii. Siècle,” A. J. Marnier, Par., 1839: “veue d’homme en langueur, veue de méfaits, veue d’homme occis et veue de femme despucelée.”

[27] “Ut peritorum judicio medicorum talis percussio asseveretur non fuisse letalis,” Mende, “Handb. d. ger. Med.,” i., 91.

[28] Hensschel, in “Janus,” Breslau, 1847, ii., 135.

[29] Assises de Jérusalem,” Beugnot, Paris, 1841-43, quoted by Ortolan, l.c., infra.

[30] Ortolan: “Débuts d. l. Méd. lég.,” Ann. d’Hyg., Par., 1872, 2 s., xxxviii., 361.

[31] “Registre Criminel du Châtelet de Paris,” Par., 1861, i., 255.

[32] Ibid., i., 313.

[33] Ibid., i., 375, 409.

[34] “Quæst. Medico-legales,” t. ii., lib. vi., tit. ii.: vol. ii., pp. 33-49, ed. Venet., fol., 1737.

[35] See also “Reg. Crim. Chât. de Paris.,” i., 204, ii., 429; Desmaze: “Hist. Méd. Lég.,” 11-20, 33-41.

[36] Isensee: “Gesch. d. Med.,” i., 216.

[37] “Constitutio criminalis Carolina.” The first edition was printed at Mayence, 1533, fol., by J. Schöffer. See also Kopp, “Jahrb. d. Staatsarznk.,” Frankf., 1808, i., 183.

[38] “Con. cr. Car.,” art. 147.

[39] Ibid., art. 149.

[40] Ibid., arts. 35, 36, 131, 133; “Bambergische Halssgerichts-Ordenung.” Bamb., 1507, art. 44.

[41] “Con. cr. Car.,” art. 37.

[42] Ibid., art. 134.

[43] Ibid., arts. 135, 179, 219.

[44] “Non per quoslibet, nec per insipidos et imperitos, sed tantum per peritos ac doctos medicos aut chirurgos,” p. 245.

[45] “Praxis Rerum Criminalium,” Antw., 1554 (the dedicatory epistle is dated 1551), pp. 245-252, 223-228.

[46] Wildberg, “Bibl. Med.-for.,” Berl., 1819, Nos. 553, 554, 1,124, 1,125, 1,126, 1,304, 1,835, 1,836, 2,342, cites nine works earlier than 1575. These are, however, monographs on the period of gestation, witchcraft, fasting girls, drunkenness, and wounds of the head.

Works on toxicology were written at a much earlier date: the Θηριακά and Αλεξιφάρμᾶκα, of Nicander, ca. B.C. 135; θeπερὶ δηλητηρίων φαρμάκων, of Dioscorides, ca. A.D. 50; the treatises, “De Venenis,” of Petrus de Abbano (ca. A.D. 1250), first printed Mantua, 1472; of Arnoldus da Villanova (ca. A.D. 1300), first printed (sine loc. et an.) ca. 1470; of Santes de Ardoynis, Venice, 1492, and of F. Ponzetti, Venice, 1492, are among the earliest. Works on toxicology are not considered in this Introduction, the historical sketch of that science being reserved for a later volume.

[47] Ed. Malgaigne, 1840, t. iii., l. xxvii., pp. 651-658; ed. princ., Paris, 1575, fol., pp. 931-944. On the title-page of an earlier work, printed in 1562, Paré is referred to as “chirurgien ordinaire du Roi, et Juré à Paris.” Ploucquet, “Lib. Med. dig.,” Tüb., 1809, iv., 349, mentions a monograph by “Tygeon, Th.,” printed at Lyons, 1575.

[48] S. Pineau: “De notis Integritatis et Corruptionis Virginum,” Paris, 1598; A. Hotman: “De la Dissolution du Mariage par l’Impuissance,” etc., Paris, 1581; de la Corde, “Ergo Virgo ... lac in mammis habere potest,” Paris, 1580. Wildberg, l. c., Nos. 555, 1,308, 1,309, are not properly medico-legal.

[49] In his “De Vitiis Vocis,” etc., Frankf., 1597. He had previously published a treatise, “De morbis veneficis ac veneficiis,” Venet., 1595.

[50] “De relationibus medicorum ... in quibus ea omnia quæ in forensibus ac publicis causis medici referre solent,” etc., Panormi, 1602. Mongitore, “Bibl. Sic.,” Panormi, 1707-14. i., 199, mentions an edition of 1598, Pan., under the title: “Bissus [Birrus?], sive medicorum patrocinium,” etc.

[51] “Quæstiones Medico-legales,” Rome, 1612-35, 3 t., fol. See also Kerschensteiner: Friedr. Bl. f. ger. Med., etc., Nürnb., 1884, xxxv., 401-410.

[52] Wildberg, “Bibl. Med.-for.,” gives the titles of thirty-four treatises on legitimacy, impotence, sterility, signs of virginity, etc., published in France during this period.

[53] On reports: Réné Gendri, 1650; Nicolas de Blegny, 1684; J. Devaux, 1693; Prevot, 1753; H. M. Maret, 1757. On signs of death: P. E. Dionis, 1718; J. B. Winslow, 1740; S. J. Bruhier, 1745.

[54] On the signs of death, 1752; on the distinction between suicide and murder by hanging, 1763; on the duration of pregnancy, 1764, etc. These and other articles on drowning, etc., are collected in his “Œuvres diverses de Chirurgie,” 2 vols., Par., 1788.

[55] Cases of Monbailly, Syrven, Calas, Cassaigneux, Baronet, etc.

[56] “Recueil de pièces relatives à la question des naissances tardives,” Amst. and Par., 1766, 2 vols.

[57] “Consult. Méd.-lég. s. u. Accus. d’Infanticide,” 1785; “Obs. Chir.-lég.,” 1790; “Méd.-lég.,” 1809; “Consult. et Rapp. sur diverses obj. d. Méd.-lég.,” 1824; “Mém. méd.-lég. s. l. Viabilité,” 1826; “Consult. Méd.-lég. s. u. cas d’amp. d. l. Cuisse,” 1828.

[58] “Les Lois éclairées par les Sciences physiques,” Par., 1798, 3 vols., 8vo; “Traité de Méd.-lég. et d’Hyg. publ.,” Par., 1813, 6 vols., 8vo.

[59] “Méd.-lég.,” etc., Rouen, 1801; Paris, 1807, 1811.

[60] “Cours. de Méd.-lég.,” Paris, 1809, 1811, 1819.

[61] “Aperçu et obs. s. l. Méd.-lég.,” Lyon, 1811; “Secours aux Asphyxies,” Lyon, 1818; “Man. d. Méd.-lég.,” Lyon, 1821.

[62] In the later editions Chaudé took the place of Brosson, and a chemist, J. Bouis, was added.

[63] Devergie, “Méd.-lég.,” 1836, contains a legal chapter by de Robécourt. Paris and Fonblanque, “Med. Jurispr.,” Lond., 1823; Wharton and Stillé, “Med. Jur.,” Phila., 1855; Le Grand du Saule, Berryer et Pouchet, “Tr. de Méd.-lég. de Jur. méd. et de Tox.,” 2d ed., Par., 1881.

[64] “Sur les Attentats aux Mœurs,” 1st ed., 1857; 7th ed., 1878; “Sur l’Avortement,” 1856, 1861, 1868; “Sur la Pendaison,” etc., 1865, 1870, 1879; “Sur l’Empoisonnement” (with Z. Roussin), 1867, 1875; “Sur l’Infanticide,” 1868; “Sur la Folie,” 1872; “Sur les Blessures,” 1879; “Sur les Maladies, etc.,” 1879.

[65] Lib. iv., cap. ix.: Qua ratione morbum simulantes deprehendi queant; cap. x.: testificandi methodus circa eos, quibus venenum fuit exhibitum; cap. xi.: testificandi ratio in vulneribus capitis; et in iis qui aquâ fuerunt suffocati; cap. xii.: Quomodo amissa virginitas: et alterius utrius conjugis sterilitas deprehendatur.

[66] “De renunciatione vulnerum,” etc., Lips., 1689, 8vo (“Egregium opus,” Haller).

[67] “De officio medici duplici, clinico nimirum et forensi,” Lips., 1704, 4to (“Eximius liber,” Haller).

[68] “Pandectæ Medico-legales,” etc., Francof., 1701, 4to; “Novellæ Medico-legales,” etc., Francof., 1711, 4to; “Corpus Juris Medico-legale,” etc., Francof., 1722, fol.

[69] “Medicina forensis, hoc est responsa facultatis medicæ Lipsiensis ad quæstiones et casus medicinales, ab anno 1650 usque 1700,” Francof., 1706, 2 vols., 4to.

[70] “Der medicinische Richter, oder Acta physico-medico forensia Collegii medici Onoldini,” Onolzbach, 1755, 4to.

[71] “Systema Jurisprudentiæ Medicæ,” etc., 6 vols., 4to, Halle, Leipzig, and Görlitz, 1725-47.

[72] “Institutiones Medicinæ legalis et forensis,” Jena, 1723, 1731, 1740, 1762.

[73] “Medicina forensis demonstrativa,” etc., Frankf., ad Viadr., 1723; “Introductio in historiam litterariam scriptorum qui medicinam forensem commentarius suis illustraverunt,” Frankf., 1723, 1735.

[74] “Elementa Medicinæ forensis,” Jena, 1767, published posthumously.

[75] Hebenstreit: “Anthropologia forensis,” Lips., 1753; Ludwig: “Institutiones Medicinæ forensis,” ed. 2, Lips., 1774.

[76] “Beiträge zur medicinischen Gelehrsamkeit,” etc., Halle. 1748-54; “Sammlung medicinischen ... Zeugnissen,” etc., Leipz., 1776; “Institutionum Medicinæ publicæ,” etc., Lips., 1778.

[77] “Kurzgefasstes System der gerichtlichen Arzneywissenschaft,” Königsb. u. Leipz., 1793.

[78] “Entwurf der gerichtlichen Arzneiwissenschaft,” etc., Frankf., 1796-1801, 4 vols.

[79] “Collectio Opusculorum selectorum ad Medicinam forensem spectantium.” Lips., 1785-90, 6 vols.

[80] “Conspectus Medicinæ legalis,” etc., Prague, 1780.

[81] “Elementa Medicinæ et Chirurgiæ forensis,” Viennæ, 1781; “Toxicologia,” etc., Viennæ, 1785.

[82] Magazin für die gerichtliche Arzneikunde und medicinische Polizei, Stendal, 1782-87, 6 vols. Pyl also published “Aufsätze und Beobachtungen aus der gerichtlichen Arzneiwissenschaft,” Berlin, 1783-93, 8 vols. Uden was the first to edit a medical journal in Russia.

[83] “Vollständiges System der gerichtlichen Arzneikunde,” Stendal, 1795-1800; “Beiträge zur praktischen und gerichtlichen Arzneikunde,” Stendal, 1799.

[84] Jahrb. der gesam. Staatsarzneikunde, Leipzig, 1835-40, 7 vols.; Bibliotheca Medicinæ publicæ,” Berol., 1819, 2 vols. Between 1804 and 1849 Wildberg published fifteen books and treatises on medico-legal subjects.

[85] Kritische Jahrb. f. d. Staatsarznk. f. d. xix. Jahrb., 1806-09. Jahrb. d. Staatsarznk., 1808-19.

[86] Zeitschrift für die Staatsarzneikunde, Erlangen, 1821-64, 118 vols.; “Lehrbuch der ger. Med.,” 1te Aufl., Berlin, 1812, 13te Aufl., Berlin, 1859.

[87] “Visa Reperta,” Wien, 1827-45, 3 vols.; “Systematisches Handb. d. ger. Med.,” Wien, 1te Aufl., 1813, 5te Aufl., 1846.

[88] “Ausfürl. Handb. d. ger. Med.,” Leipzig, 1819-32, 6 vols.

[89] “Handb. d. ger. Med.,” Berlin, 1841.

[90] “Enzyklop. Handb. d. ger. Arzneyk.,” Leipzig. 1838-40, 2 vols.; Magazin f. die Staatsarzneykunde.

[91] Centralarch. f. d. ges. Staatsarznk., Ansbach, 1844-49; Blätter f. d. gerichtliche Anthropologie, Erlangen, 1850, now published at Erlangen under the title Friedreich’s Blätter f. ger. Med. u. Sanitätspolizei.

[92] “Gutachten u. Aufsätze,” etc., Leipzig, 1847; “Auswahl von Gutachten,” etc., Dresden, 1853.

[93] “Beiträge z. medicin. Statistik,” etc., Berl., 1825-35, 2 vols.; “Denkwürdigkeiten z. medicin. Statistik,” etc., Berl., 1846; “Gerichtl. Leichen-Oeffnungen,” Berl., 1851-53, 1850-52; “Klinische Novellen,” etc., Berl., 1863.

[94] “Pract. Handb. d. ger. Med.,” Berl., 1te Aufl., 1857-58; 8te Aufl., Berl., 1889, also translation of Geo. Balfour, New Sydenham Soc., London. 1861-65. The fourth and succeeding editions, published after Casper’s death (1864), were edited by Karl Liman, his successor in the chair of medical jurisprudence (d. 1892).

[95] Vierteljahresschr. f. ger. u. öffentl. Med., Berl., 1852, edited after Casper’s death by Horn, 1865-70, Eulenberg, 1871-90, Wernich, 1891.

[96] “Handb. d. ger. Med.,” Tübingen, 1881-82, 4 vols.

[97] Daniel: “Bibl. d. Staatsarznk.,” Halle, 1784, No. 107, mentions: “E. Prat, Rationarium chirurgicum, oder nothwendiges Handbuch des Wundarztes, wie er Bericht an die Obrigkeit thun soll u. s. w., aus dem Engl.,” Hamb., 1684. 4, 690. 8. The same title is reproduced by Wildberg (No. 239) in 1819, and the edition of 1684 is mentioned by Ploucquet, “Initia” (1803), Suppl. iv., 36, and “Litt. med. dig.” (1809), iii., 54, the name of the author being given as “Pratt (Elias).” This may be an early work by Ellis Pratt, but we can find no mention of it elsewhere. In the years 1734, 1761, and 1787 dissertations on abortion were defended at Edinburgh by Arnot, Harris, and Murray. Three treatises on death from suffocation by Goodwyn, Frank, and Coleman appeared in 1788-91. In 1788 S. Farr published at London his “Elements of Medical Jurisprudence,” to which Percival (“Med. Ethics,” Oxford, 1849, p. 102) justly refers as “a valuable epitome of S. F. Faselii’s “Elementa Medicinæ Forensis [Regiom., 4to, 1787], in English by Dr. Farr.”

[98] “Med. Jur.,” iii., p. 226 seq. Report that Joseph Lane died of poison (1623). Report that Sir James Standsfield was strangled and not drowned, with account of autopsy (1687). Also extracts from the medical evidence in the cases of Spencer Cowper (from 13 Howell’s “State Trials”); Mary Blandy (Oxford, 1752); John Donellan (Warwick, 1781); and R. S. Donnall (Launceston, 1817).

[99] “Heads of Lectures on Medical Jurisprudence, or the Institutiones Medicinæ legalis,” vi., 24 pp., 8vo, Edinb., 1792.

[100] See Beck “Med. Jur.,” 7th ed., xvi., and note.

[101] In the preface Dr. Percival says: “This work was originally entitled ‘Medical Jurisprudence,’ but some friends having objected to the term Jurisprudence it has been changed to Ethics.” An unfinished and unpublished edition, written prior to 1794 and containing Chapter IV., was printed about 1800 (see Editor’s Preface, p. 2, and note, Author’s Preface, pp. 25, 26, ed. Oxford, 1849).

[102] “An Epitome of Juridical or Forensic Medicine,” etc., viii., 199 pp., 8vo, London, 1816, also in Th. Cooper’s “Tracts on Med. Jur.,” Phila., 1819. In the preface the author refers to the lectures of Prof. Duncan.

[103] This excellent work (“The Principles of Forensic Medicine”) went through three editions in six years. Dr. Smith, who was a teacher of medical jurisprudence in the Royal Institution, Westminster Hospital, and University of London, and also published a number of papers in the Edinb. M. and S. Jour., and “Hints for the Examination of Medical Witnesses,” Lond., 1829, died at the age of forty-one in 1833, after fifteen months’ imprisonment in a debtors’ prison.

[104] “Med. Jur.,” 3 vols., 8vo, London, 1823. See note 1, p. v.

[105] “A Manual of Med. Jur.,” London, 1831, 2d ed., 1836, Amer. ed., with notes by R. E. Griffith, Phila., 1832.

[106] “Outlines of a Course of Lectures on Med. Jur.,” Edinb., 1836, 2d ed., 1840, Amer. ed., Phila., 1841.

[107] A. Amos, Lond. M. Gaz., 1830, vii.; 1831, viii. A. T. Thomson, Lond. M. and S. J., 1834-35, vi.; 1835, vii.; also Lond. Lancet, 1836-37, i., ii. (Thomson’s lectures were printed in German in book form, Leipzig, 1840.) H. Graham, Lond. M. and S. J., 1835, vi., vii. W. Cummin, Lond. M. Gaz., 1836-37, xix. T. S. Smith, Lond. M. Gaz., 1837-38, xxi.; 1838, xxii.

[108] Dease: “Med. Jur.,” and Haslam: “Med. Jur. Insanity,” along with the treatises of Farr and of Male, are reprinted in Cooper’s “Tracts on Med. Jur.,” Phila., 1819.

[109] Synop. Mod. Med. Jur.,” Lond., 1829.

[110] “Treatise on Med. Jur.,” Lond., 1834; Phila., 1836.

[111] “Homicide by External Violence,” Lond., 1837.

[112] “Med. Jur.,” Dublin, 1839.

[113] “Cases in Leg. Med.,” Edinb., 1840.

[114] “Med. Jur. of Insanity,” Lond., 1840.

[115] “Criminal Jurisprudence in relation to Mental Organization,” London, 1841.

[116] “Principles and Practice of Med. Jur.,” 1st ed., Lond., 1865; 3d ed., Lond., and Phila., 1883. “On Poisons,” 1st ed., Lond., 1848; 3d ed., Lond., 1875. “Lectures on Med. Jur.,” Lond. M. Gaz., 1846, n. s., ii., iii.; 1847, n. s., iv. Articles on arsenic, antimony, strychnine, and other toxicological subjects, strangulation, blood-stains, etc., in Guy’s Hosp. Repts.

[117] “Principles of Forensic Medicine,” Lond., 1844. The work is now in its sixth edition. Prof. D. Ferrier, Dr. Guy’s successor in King’s College, having been associated in the authorship of the 4th ed. in 1875 and subsequently.

[118] “Lectures on Med. Jur.,” edited by Fr. Ogston, Jr., Lond., 1878.

[119] Woodman and Tidy: “A Handy-book of Forensic Medicine and Toxicology,” Lond. and Phila., 1877. Tidy, “Legal Medicine.” 2 vols., Lond., 1882-83; also, Phila., 3 vols., 1882-84; New York, 3 vols., 1882-84.

[120] “Cirurgia Forense,” etc., 3 vols., 12mo, Madrid, 1796-97. Wildberg mentions two earlier monographs: “De partu Septimestri,” Antw., 1568, by F. Mena, physician in ordinary to Philip II.; and “Diez privilegios para mugeres prennantes,” Complut., 1606, by J. A. de Fontechia, professor at Alcala de Hénares.

[121] “Elementos de Medicina y Cirurgia legal,” etc., Madrid, 1834; 4th ed., Zaragossa, 1844.

[122] “Tratado de Medicina y Cirurgia legal,” etc., Madrid, 1844; 5th ed., 4 vols., 8vo, Madrid, 1874-75.

[123] “Instituições de Medicina forense,” Paris, 1832; 2d ed., Lisbon, 1840.

[124] “Vorlesungen über die gerichtliche Arzneiwissenschaft,” 3 vols., 12mo, Bern, 1728-84.

[125] “Utkast til Medicinal-Lagfarenheten,” etc. (Project of medical jurisprudence, etc.) Stockh., 1776.

[126] “Forelaesninger over den legale Medicin,” Christiania, 1838.

[127] “Haandbog i den legale Medicin,” Kjøbenhavn, 1843.

[128] “Versuch eines Umrisses der philosophisch.-medizinischen Jurisprudenz.” u. s. w., Dorpat, 1803.

[129] See Wildberg: “Bibl. med. leg.,” Nos. 1,198, 1,142, 1,215.

[130] Lugd. Bat., 1610, etc.

[131] Amstel., 1615.

[132] Rotterd., 1767.

[133] Lugd. Bat., 1768.

[134] S. Gravenh., 1815.

[135] “Traité de Médecine légale et de Jurisprudence de la Médecine,” 2 vols. in 1, Gand., 1859-60; 2d ed., Paris, 1878; 3d ed., Bruxelles, 1885. (See Toxicology.)

[136] “Yei sei honron” (Lectures on medical jurisprudence, translated by Gento Oye), 3d ed., 2 vols., Tokio, 1880.

[137] “Saiban igaku teiko” (Medical Juris.), 3 vols., Tokio, 1882-84.

[138] “Sixteen Introductory Lectures,” etc., Phila., 1811, pp. 363-395.

[139] Amer. Med. and Phil. Reg., N. Y., 1814, iv., 614. It is to be regretted that instruction in medical jurisprudence is not now given at this school (1893).

[140] Beck, “Med. Jur.,” 7th ed., xix. The Index Catalogue contains the titles of forty-nine works by Caldwell, none of which are medico-legal.

[141] Beck, loc. cit.

[142] “Tracts on Medical Jurisprudence,” etc., Phila., 1819.

[143] “Elements of Medical Jurisprudence,” 2 vols., 8vo, Albany, 1823; 12th ed., 2 vols., 8vo, Phila., 1863. A chapter on Infanticide by John B. Beck was added to the third edition. This and later editions are “by T. R. and J. B. Beck.”

[144] N. Y. Med. and Phys. Jour., 1823, ii., 9-30.

[145] “An Essay on Medical Jurisprudence,” Phila., 1824.

[146] Phila. J. M. and Phys. Sc., 1825, x., 36-46.

[147] “Syllabus of Lectures.” etc., Univ. of Va., 1827.

[148] “An Introductory Address,” etc., Phila., 1829, and “Syllabus of a Course of Lectures on ... Medical Jurisprudence in the Philadelphia Medical Institute” [n. p., n. d.].

[149] “A Catechism of Medical Jurisprudence.” etc., Northampton, 1835.

[150] Dean (A.): “Manual of Medical Jurisprudence,” Albany, 1840; Dean (A.): “Principles of Medical Jurisprudence,” Albany, 1854: Elwell (J. J.): “Medico-legal Treatise on Malpractice and Evidence,” New York, 1860; 4th ed., New York, 1881.

[151] “Medical Jurisprudence.” Phila., 1855. 4th ed., edited by R. Amory and E. S. Wood, 3 vols., Phila., 1884.

[152] “A Medico-legal Treatise on Malpractice and Medical Evidence,” N. Y., 1860; 4th ed., N. Y., 1881.

[153] “The Jurisprudence of Medicine,” etc., Phila., 1869.

[154] In that case (Bailey v. Mogg), the Court says of that statute (Laws of 1844, p. 406): “The triumph was now complete, for the legislature had made every man a doctor, and nostrums of every description and admixture could now be safely prescribed, and payments therefor exacted by authority of law.”

[155] Notwithstanding these statutory enactments, it has been held that one who undertakes to cure disease by rubbing, kneading, pressing, and otherwise manipulating the body (massage) is not liable for having violated the provisions of the statute against practising medicine or surgery without a license. Smith v. Lane, 24 Hun (New York Supreme Court), 32.

[156] Analysis of this decision shows that the main ground, upon which the court of last resort sustained the right of the applicant for admission to be admitted as a member of the society, was, that the provisions of the by-law in question were not specifically made applicable to a person applying for membership. The Court observed, pp. 192 et seq.: “The regulations embodied in the so-called code are admirably framed, and commend themselves to every reader, as tending to raise to a still higher elevation the character of the learned and honorable profession to which they were submitted for approval and adoption. They are not limited in their scope to the range of moral obligation, but embrace express rules of conduct, in personal, professional, and public relations. They are regulations in the various departments of morals and manners, of courtesy and etiquette, of delicacy and honor. They bind those who pledge themselves to their observance, but cannot be recognized in law, as conditions precedent to the exercise of an honorable profession, by learned, able, and upright men, who have not agreed to abide by them. The non-observance of such regulations may be made cause for exclusion or disfranchisement; but it must be either by the agreement of parties or by the exercise of the law-making power.

“The applicant was not a member either of the American Medical Association or of the Erie County Medical Society, at the time of his alleged deviation from the formulas prescribed by these conventional rules. He was under no legal obligation to observe them, and had neither actual nor constructive notice of their existence. Those who were members of the society could not lawfully be expelled for antecedent deviation from the code (Fawcett v. Charles, 13 Wend., 477). Much less could such deviation be alleged, as cause for exclusion, against one who had never agreed to be bound by it, and as to whom it was not merely an inoperative but an unknown law.

“As the relator demanded admission to the enjoyment of a franchise to which he was presumptively entitled, his exclusion could be justified only by facts repelling the presumption that he was duly qualified for admission, or by extraneous facts, showing that, if his application was granted, there were then subsisting causes, making ‘a clear case’ for immediate expulsion (Ex parte Paine, 1 Hill, 665).

“The burden was upon the appellant to establish affirmatively the existence of such present cause for expulsion. The society waived the right of making a return and taking a formal issue on the claim of the relator, to be determined as matter of fact by a jury, under the direction of the court; but submitted its objections in the form of affidavits, which failed to establish cause either for exclusion or expulsion.

“The only specific fact alleged in the opposing affidavits, as ground of objection, was the publication by the relator of a professional advertisement, which was inserted in one or more of the Buffalo journals in May, 1855, and discontinued in January, 1857, more than two years before his application was presented. It is charged that the printing of this notice was an empiricism, and in conflict with the code of ethics adopted by the Erie County Medical Society.

“There is nothing in the terms of the advertisement from which any inference can justly be drawn against the relator, in respect either to his personal character or his professional skill. There is no suggestion, in the affidavits, that any of the statements of fact contained in the notice are untrue, and there is nothing in its contents inconsistent with perfect good faith on the part of the relator. It refers to the treatment of bronchitis, asthma, and consumption, as a special department of the profession to which he had directed his particular attention; and it alludes to his use of the method recently introduced, of medicated inhalation, through an instrument appropriate to that purpose, in aid of such general treatment as experience had proved to be beneficial in that class of diseases. It is not denied that the relator possessed peculiar skill in this department of the profession; and the case discloses the fact that the method of auxiliary treatment, introduced by him in the county of Erie, was not only successful in his own practice, but was adopted, with beneficial results, by members of the county society of high professional standing, and that it was accepted by a large proportion of the physicians of Western New York. If, at the time this remedy was introduced, he had been a member of the County Society or of the American Medical Association, he would not have been at liberty to direct attention, through the medium of the public journals, to the benefits resulting from its use. This would, perhaps, have been unfortunate for those who were suffering, in that vicinity, from this particular class of diseases; but it is undoubtedly true that the suppression of such an advertisement would have been more considerate toward his professional brethren, and more in accordance with the rules of delicacy and good taste. But an error, in this respect, by one who had no notice of the society regulation is not cause for disfranchisement. The act of the relator was neither immoral nor illegal. It was no violation of the by-laws; for, as to him, they were wholly inoperative. It was no present cause for exclusion; for the publication of the objectionable notice had been discontinued for more than two years. When he applied for admission, he proposed to become bound by the by-laws; and this the society refused to permit, for the sole cause that he had not observed them before they became rules of conduct for him. ‘Where there is no law, there is no transgression.’ The relator, therefore, had been guilty of no legal wrong which could bar his claim to the franchise.”

[157] In Macpherson v. Cheadell (24 Wend., N. Y., 15) the Court said, p. 24:

“In the first place I doubt much whether the defendant below, after retaining the plaintiff as a physician and accepting his services as such, could call upon him in the first instance to prove a regular license. In other like cases, the presumption is against the defendant. It is so as between attorney and client, in a suit for services performed under a retainer. Pearce v. Whale, 7 Donl. & Ryl., 512, 515, per Bayley, Judge; 5 Barn. v. Cress., 38, S. C. There, if the objection sound in the fact that the plaintiff was never admitted, or that his admission has become inoperative, it lies with the defendant to show it. Id., and see Berryman v. Wise, 44 T. R., 566. and other cases; 1 Phil. Ev., 227, Cowen v. Hill’s ed. Besides, the contrary would be doing great violence to the presumption that no man will transgress the command of a positive law.” See also Thompson v. Sayre (1 Denio, N. Y., 75), where this principle seems to have been assumed as correct without question upon the strength of the decision quoted above. A similar doctrine appears to have been enunciated in the State of Illinois in Chicago v. Wood, 24 Ill. App., 42; and Williams v. People, 20 Ill. App., 92. It may be sound, and undoubtedly the English cases cited in Macpherson v. Cheadell, supra, tend to support it. But in a case in which the physician’s right to practise is denied, the safe course will be for him to have a duly authenticated copy of his license ready to be offered in evidence. The general rule is that the burden is on the plaintiff to show all the facts which make up his right of recovery. See Bliss v. Brainard, 41 N. H., 256; Salomon v. Dreschler, 4 Minn., 278; Kane v. Johnston, 9 Bosw., N. Y. Superior Ct., 154.

[158] That is, the burden devolves upon the defendant, and this notwithstanding the presumption of innocence, of showing what must be peculiarly within his own knowledge, namely, that he has been duly licensed. People v. Nyce, 34 Hun, N. Y., 298, and cases cited; 1 Greenleaf on Ev., § 79, and cases cited. See, contra, State v. Evans, 5 Jones. N. C., 250.

[159] In Finch v. Gridley’s Executors (25 Wend., N. Y., 469-471), Nelson, Ch. J., said: “I am also inclined to think the evidence which was given competent to prove the diploma from Fairfield College. The witness identified the corporate seal, and had himself received a diploma from that institution subscribed by the same president and secretary. Though he did not actually see them subscribe the paper, he had every means of becoming acquainted with their signatures; the delivery of it to him was an acknowledgment they had signed it. Besides, he was familiar with diplomas from the institution under their signature,” etc.

And see, also, Raynor v. State, 62 Wis., 289; Wendel v. State, id., 300.

[160] In some of the States, persons who simply administered roots and herbs in treating disease, have been excepted from that portion of the statute which forbids the practice of medicine and surgery without a license. The proper construction of such an exception is, that it is a question of fact for the jury, whether the person accused who claims the benefit of the exception, simply administered a concoction of roots and herbs within the meaning of the statute, or whether, under the guise of so doing, he really held himself out as and acted as a regular practitioner. All such penal statutes are to be construed, like all other penal statutes, with due regard to the rights of the individual, and at the same time with such degree of liberality as will tend to preserve the public safety.

[161] It has been held that the act of a physician in reporting to a health-board in good faith that his patient is suffering from small-pox, is not actionable. Brown v. Purdy, 8 N. Y. St. Rep., 143. The Court said (per Sedgwick, J.): “In order to give the public the protection due to it, according to the intention of the statute, any physician that possesses in fact an opinion that a patient has a contagious disease, is bound to report the case, whether he has or has not used ordinary professional skill and knowledge. A physician of skill in everything but cases of small-pox, which happily are not numerous, may, unexpectedly to himself, be called to a case which presents to him the appearance of small-pox. It may be said that he may call in counsel. It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly, if he really thinks the case to be one of small-pox, it is his duty to communicate his opinion to the public authorities, who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts the law points out for the physician. The attendance of these experts upon a patient can cause no injury, and thereafter the responsibility rests solely upon the public officer.”

As to how far the decision of an inspector appointed by a board of health is regarded by the law as quasi-judicial, and therefore conclusive, see Underwood v. Green, 42 N. Y., 140; Raymond v. Fish, 51 Conn., 80. Health officers who were guilty of gross negligence in removing infected persons from a city in stormy weather, and putting them in an unprotected and unsafe structure, so that such persons died from the exposure, have been held liable. Aaron v. Broiles, 64 Tex., 316.

The latest and most complete statute laws creating or regulating health boards are: England, 38 and 39 Victoria, chap. 55; United States (National Board of Health), 20 Stat. L., 484, suppl. to U. S. Rev. Stats., chap. 202, passed March 3d, 1889; Mass., chap. 79, Mass. Rev. Stats.; Pa., Laws of 1885, chap. 56; New York (State Board of Health), 2 N. Y. Rev. Stats., 1195; Local Boards, id., 1191-1193, chap. 270, Laws of 1885. The statutes of New Jersey are considered in Lozier v. Newark, 19 Vr., 453. In Missouri the power to license physicians is conferred upon the State Board of Health, and the Supreme Court of that State has held that the act of that board in granting or refusing a license is discretionary and its action in such a matter will not be enforced by a writ of mandamus (State v. Gregory, 83 Mo., 123); and a similar doctrine prevails in Minnesota, State v. State Med. Board, 32 Minn., 324. The latest and best work on the general subject of the organization and powers of boards of health is Parker & Worthington’s “Public Health and Safety,” M. Bender, publisher, Albany, N. Y., 1892.

[162] Consult, as to this, Parsons on “Contracts,” vol. ii., p. 56.

[163] Of course in those States or countries in which statutes of fraud render void, contracts for personal services for a longer period than one year (or any period named in the statute), unless such contracts are in writing and duly signed, contracts should be drawn and entered into with regard to those statutes.

[164] See also “Field’s Medico-Legal Guide,” 208-210, where the following cases are cited as sustaining this doctrine: New York, Carpenter v. Blake, 60 Barb., 488; same case on appeal, 75 N. Y. Court of Appeals, 12. Connecticut, Landon v. Humphrey, 9 Conn., 209. Iowa, Smothers v. Hawks, 34 Ia., 286. Indiana, Long v. Morrison, 14 Ind., 595. Maine, Leighton v. Sargeant, 27 Me. (7 Fost.), 468; Howard v. Grover, 28 Me., 97. Illinois, MacNevins v. Lowe, 40 Ill., 209. Kansas, Teft v. Wilcox, 6 Kan., 46. Massachusetts, Com. v. Thompson, 6 Mass., 134; Small v. Howard, 128 Mass., 131, 35 Am. Rep., 363. Pennsylvania, Potter v. Warner, 91 Pa. St., 362, 36 Am. Rep., 668. Wisconsin, Reynolds v. Graves, 3 Wis., 416. Vermont, Briggs v. Taylor, 28 Vt., 180.

[165] See Shear. & Redf. on Negligence, 440; Elwell on Malpractice, 55; Carpenter v. Blake, supra; Rex v. Long, 4 C. & P., 422; Slater v. Baker, 2 Willes (Eng.), 259; Ordronaux on Jurisp. of Med., pp. 29 et pass.; 20 Am. Law Rev., 82.

[166] On the points here suggested cf. Edington v. Life Ins. Co., 67 N. Y., 185, same case, 77 N. Y., 564; Grattan v. Life Ins. Co., 80 N. Y., 281; Dilleber v. Life Ins. Co., 87 N. Y., 79; Westover v. Life Ins. Co., 99 N. Y., 56; People v. Murphy, 23 N. Y. Weekly Digest, 42; same case, 101 N. Y., 126; Hunn v. Hunn, 1 T. & C., 499; Pierson v. The People, 79 N. Y., 432-435; People v. Carlyle Harris, 136 N. Y., 424.

[167] Patten v. Wiggin, 51 Me., 594.

[168] See on this question also Bigelow’s “Leading Cases,” on Torts, 295-303.