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ART. VI.-Medical Jurisprudence. Foderé Médicine légale, 8vo.
6 vols. Paris, 1813. Orfila Toxocologie gé érale considé é, sous les Rapports de la Physiologie, de la Pathologie, et de la Médicine
légale, Paris, 1815. From the Journal of Science and the Arts. OUR
UR attention has been directed to the science of Medical Juris
prudence or State Medicine, as it is termed in Germany, by some recent publications of considerable merit. As a science it is not known in this country, nor does it form any part of the necessary studies of the medical practitioner. In the present paper, we shall point out what we consider to be its leading branches; and we are so convinced of the benefit which would result to mankind from a more general attention to this science, that we shall not apologise for having entered on a subject which may probably be considered not to be immediately within the limits of our journal. The science of Medical Jurisprudence comprehends the evidence and opinions necessary to be given in courts of justice, by practitioners, on all subjects relating to their profession: according to the English laws, the testimony or the opinions of medical men are not directly required, though it is usual in certain cases, to require their evidence on professional subjects: public attention has been of late called to the laws now in force relating to coroner's inquests, and the mode in which they are administered. This subject is intimately connected with Medical Jurisprudence. Without wishing to discuss the propriety of the laws for the punishment of suicide, so far as they relate to the forfeiture of property, and the giving publicity to the offence; there can be little question but that the exposure of the body of the suicide is not consonant to the feelings of the present age; and yet it cannot be forgotten, that within a short period the body of an unfortunate wretch was, in open day, dragged in procession along the public way, headed by the civil power. Very slight evidence, or rather no evidence at all, but merely the discretion of the coroper, is sufficient to procure a verdict of lunacy; and that such verdicts are often corruptly procured, no person who has attended to the proceedings of coroners' inquests, can have any doubt. It may be questioned
whether an ignominious burial has any direct tendency to the prevention of suicide; and unless it is clearly established that it has, in an enlightened age like the present, so barbarous and disgusting a law should be abolished, or at least why should not the very fact of suicide be considered in all cases, as affording evidence of insanity? It is of the utmost importance to the due administration of justice that the evidence before the coroner should be complete and correct. To insure this, it will be requisite that enacta ments should be made, at once regulating the mode of producing such evidence, and the class of persons by whom it is to be given. Several instances of the grossest neglect and irregularity in the evidence of medical persons have come to our knowledge; the followa ing is one of the most flagrant:-a servant had died in consequence of poison; it was supposed she had taken it purposely, though she
stated that it was taken by her as a dose of salts which had been carelessly left about by another servant: there was, however, reason to suspect that she had been pregnant, and had lately miscarried. The prejudice was considerably excited in favour of the deceased having taken the poison accidentally. Two medical gentlemen of eminence attended to examine the body; the apothecary who was to give evidence before the coroner, was also in attendance; and as, from the early part of the examination, there was little question but that the woman had been pregnant, on the examination proceeding, the apothecary actually left the room, stating, that as he was to be examined before the coroner, if he gave any evidence which might seem prejudicial to the character of the deceased, it would seriously affect his professional interests in the neighbourhood! Now, in this case, independently of false evidence having been in fact given before the coroner, injustice was done to the servant who was supposed to have brought the poison into the house. In order to insure proper attention and skill on the part of medical persons who may be called in to give their evidence before coroners, we should propose that in addition to the usual course of education, all medical students should be required to attend a certain number of lectures exclusively on the subject of Medical Jurisprudence, in which their attention would be particularly called to those parts of the science of medicine, respecting which they would be liable to be called upon to give their opinions, in courts of justice, with peculiar directions as to the nature of the proof required, and the effect of their testimony. In addition to this, we conceive much benefit would arise from the prescribing particular rules to be adopted in all cases of sudden or suspicious death; and making it imperative on the coroner to employ particular medical persons (who should be remunerated); and for this purpose a certain number of practitioners in each county, who had previously passed such examinanation as might be thought fit, should be named as the persons to be employed by the coroner; and that every such examination should be made according to certain directions to be determined on, and a report of it in writing signed and sworn to by the person making it. In order to facilitate the mode of making these examinations and reports, certain printed formulæ might be devised, stating the mode of examination to be pursued, and the results; such formulæ, of course to be varied according to circumstances. This is the mode adopted in France, and in other countries in Europe, and from the adoption of which we conceive much benefit would arise. The reporter might still be examined viva voce, either before the coroner, or on the trial. Independent of the improvement which would result from this, in the administration of justice, much good would arise from the removal of doubt and suspicion in the public, which is often misled by the evidence given before coroners, on medical subjects, owing to the unfitness of the persons employed. There can be little question, that had the examinations and analysis been skilfully made, no public disturbance or discontent would have arisen in the case of Elizabeth Fenning, who was executed for an attempt to poison the family of a stationer, in Chancery-lane.
The evidence of medical men, amongst lawyers, is a subject of general animadversion; and indeed it is impossible to refer to the several printed trials, such as those of Spencer, Cowper, Donellan, and others, without astonishment at the inconsistency and uncertainty which seems to have pervaded the opinions of former medical practitioners.
It may also be expected, that much good will result from the canvassing the points necessary to be attended to, in examinations of the nature we have mentioned, and that greater skill will be attained, and important discoveries made, in the application of remedies in cases of suspended animation, the administration of poison, &c. respecting which little attention seems to have been paid by the generality of the present practitioners—at least those of the second class; and it is amongst the second class that skill and knowledge in this branch of science is particularly required, as they are most frequently called upon in cases of poison, &c.
The first directions respecting the consulting medical men, in the administration of justice, in any modern code, is in the Constitutio Criminalis Carolina of Charles V., which enacts, that the evidence of medical men shall be taken in cases of violent death, poison, child murder, &c.; and now, by the laws of most of the states in the continent of Europe, their evidence is required in similar cases. The code Napoleon, one of the most singular productions of modern jurisprudence, gives, at considerable length, the rules to be observed in making the necessary reports, and in the testimony on medical subjects connected with jurisprudence.
The most distinguished works on this science, amongst the Germans, are, the Pandectæ Medico-legales, of Valentini, 1702; the works of Plenk, Frank, and Sikora, together with the Colatio Opusculorum Selectorum ad Medicinam Forensem spectantium: curante Schlegel, 1787.
Amongst the Italians, Paul Zacchias is most distinguished. Ambrose Paré was the first in France who treated on this subject; and the Medicine Légale et Police Médicale, of M. Mahon; the Course of Legal Medicine,' of M. Belloc; the Medicine Légale of M. Fodere, and the Toxicology of M. Orfila, are amongst the most eminent of the modern French works on the subject. In this country, with the exception of the Lectures of Dr. Duncan, of Edinburgh (where there is a professorship, for the study of medical jurisprudence), we have no publication of any note, although there are several essays, on particular subjects relating to medical jurisprudence, of considerable value. Amongst the foremost is to be reckoned the Paper of Dr. W. Hunter, on the uncertainty of the signs of murder in bastard children.
We shall conclude our remarks on this subject, with a concise enumeration of the subjects embraced by the science of medical jurisprudence, which we shall notice in the order in which they are treated ot in the work of M. Foderé, which, though very prolix, and written without either great professional skill or talent, contains
much curious information on the science, as well as the opinions of most of the preceding writers on the subjects discussed.
The physical qualities of man form one of the first and most important subjects of inquiry. According to the laws of all civilized nations, there are certain fixed epochs when reason is to be considered as sufficiently developed for the exercise of certain acts; such as the dominion over property-union of sexes-holding of offices, &c. Majority is to be considered a civil institution, varying in different nations and climates. In the debates on the code Napoleon, no point was more discussed than, whether the period of majority should be fixed at twenty-one or twenty-five; but the former was determined on, except in the case of power to contract marriage, and the discharge of some particular functions. Many cases may arise, and have arisen in this country, in which the age of a party is only to be ascertained by presumption, and it is obvious that the opinion of medical men, on this subject, must have considerable weight. A considerable portion of the first volume of M. Fodere's work is taken up in discussing the physical powers of man, at different ages, as far as regards his legal capacities--the commission of crime, and infliction of injury: The Médicine Légale of M. Foderé contains a very detailed commentary on the code Napoleon, which, like many other codes, attempts to establish a scale of the physical powers of man, by which their faculties and incapacities are to be ascertained. Zacchias, one of the most sensible writers who have considered this subject, which, it seems, has (fruitlessly enough, in our opinion) occupied the attention of many jurists and medical writers, admits, that the legal period of age must arise from arbitrary presumption, rather than from any rules resulting from observation of nature, whose variations are infinite.
Many important points arise on the question when the period of gestation ceases: from forty-five to fifty is the ordinary time, though there are exceptions. This point was much canvassed in the Douglas cause. Haller, speaking upon this subject, mentions many women who have borne long after fifty, and who, it may be said, experienced a sort of second youth—have borne, as he states, up to seventy. The English law admits of no presumption, as to the time when a woman ceases to have children, though this enters into most other codes. In England, property, which reverts to the parents, in default of issue, is frequently tied up till after their death, though the moral probability of their having issue may long have ceased. Many curious points seem to have arisen, in France and other countries, with respect to identity; and the subject, in all the treatises, is noticed at considerable length.
The next point is, the relative and absolute duration of life. case of absence, the English law admits of great latitude; and as each particular instance is determined by a jury, there is very little certainty as yet established; great practical convenience, however, would result from fixed rules on this subject. The relative mortality of the sexes is also considered at length by M. Foderé.
The presumption of survivorship, amongst persons perishing by the same mischance, as shipwreck, suffocation, &c. When no positive evidence can be procured, as to the exact periods of their death, is also another point of which the foreign jurists have written much, but respecting which we have no positive rules in this country. It frequently becomes a question of considerable impor. tance, in the devolution of property, to ascertain which of two persons survived; as parent or child, testator or legatee, &c. The laws of several nations have admitted of arguments, drawn from the relative supposed physical powers of the parties to sustain life, such as are to be inferred from the difference of age, sex, &c.
In imitation of the civil law-codes, the code Napoleon has attempted to lay down particular rules for the devolution of property,
in cases of this nature: we extract the following passages:Persons dying, who are the legal representatives to each other, without it being known which died first, the presumption of survi. vorship is to be determined by the circumstances of the case; and in default thereof, by the strength, age, and sex of the parties. If those who shall so die together shall be both under sixteen, then the eldest shall be presumed to have survived: if they were all above sixty, then the youngest shall be presumed to have survived; if some under fifteen, and others above sixty, then the first shall be presumed to have survived; if all are above fifteen, and under sixty, then the male is presumed to have survived, if the ages are equal, or the difference does not exceed a year; if they were of the same sex, then the presumption of survivorship, according to the order of nature, is to be adopted, and the younger is supposed to have. survived the elder. In this there is an odd mixture of arbitrary rules, and an attempt at reaching the probable truth, by a comparative estimate of the physical powers of man; besides, many objec. tions might be made to the above rules, as far as they attempt to regulate, on principle, the doctrine of presumptions, we conceive that the simplest law, and the one that would most probably come nearest to natural justice, would be to enact, that in all cases, the order of nature should be presumed to have taken place, and therefore, if father and child died, whatever their probable physical powers, the child should, as in the course of nature, be considered as having survived the father; and so in all cases of succession. The English law, on this subject, is entirely defective, and although there have been questions, in which it was necessary to decide which was the survivor, in the absence of all but presumptive evidence, it does not appear that any decision was ever made, or that any principle of law was admitted, either original, or as adopted from the civil code; whereas, if some fixed rule were adopted, parties at least would not be ignorant of the nature of their rights. In a cause lately before the Court of Chancery, which was the case of a legatee and testator being shipwrecked in the same ship, it was sent by the master of the rolls, to be tried by a jury which survived, though he admitted there was a total absence of all evidence, on which they could found their verdict; whereas, had some princi