under the custody of curators. It is very probable that in such proceedings expert testimony was relied upon to some extent at least. In Rome, under both the republic and empire, and elsewhere in Europe during the middle ages, human suffering produced by physical torture was relied upon in criminal procedure to extort confessions or other evidence which might be used against the prisoner, and during all these dark ages of the criminal law we hear but little of medicine as an adjunct to, or a mitigator of, its enforcement. Torture played a prominent part in Roman criminal procedure, particularly in the preliminary investigation after the arrest of the accused. Slaves were tortured when their masters were suspected of offenses, and the accused himself might be tortured repeatedly when the evidence against him was particularly strong. It is worthy of note here that the Roman law was especially severe upon the crime of poisoning, and extended its provisions to every one, "qui venemum necandi hominis causa fecerit, vel vendiderit," and that the crime of rape was specially provided for, and was not included under the "Lex Julia de Adul teriis," which apparently was intended to cover every other sort and description of sexual crime. But the crime of murder or attempted murder by poison has always been regarded with special abhorrence in ancient systems of law. By the Statute 22 Hen. VIII. it was provided that willful poisoners should be boiled to death; and in the trial of Richard Watson for poisoning in 1615 Lord Coke declared that "of all felonies murder is the most horrible; of all murders, poisoning the most detestable; and of all poisoning, the lingering poisoning." (State Trials, vol. ii., p. 91.)

The idea of preliminary torture of the accused with a view to extracting from him a confession, or evidence that can be used against him, is preserved, although of course in a very much modified and milder form, in the French system of criminal procedure. In France the juge d'instruction, who in some respects corresponds to our committing magistrate, may put the prisoner in solitary confinement for an indefinite time, and during the time question him in secret as often as he desires. This secret interrogation may be carried on without giving the accused any information as to the nature of the evidence against him, and every art of verbal torture-in addition to the solitary confinement-calculated to extort from him a confession may be used against the unfortunate prisoner.

The system of trial by ordeal which existed, particularly in England, in the middle ages, and even up to the sixteenth century, may have sufficient interest to the student of legal medicine to deserve a passing mention. In England, under this system, if an accused person could not get a sufficient number of satisfactory "compurgators," or persons who would swear to their belief in his innocence, he was put to the ordeal. This ordeal might be of various descriptions. It sometimes consisted in compelling the accused to handle red-hot irons, or plunge parts of his body into boiling water, and if the skin showed any mark of burn or scalding, he was guilty. Another form of the ordeal was to throw the accused into water, and if he sank he was innocent, and if he floated he was guilty. These ordeals, whatever might be their nature, were simply tests of human endurance of such a kind that only a reversal of some law of nature could enable the victim to successfully support them.

The real beginning of the science of forensic medicine is generally ascribed to the publication in 1553, by the Emperor Charles V. of Ger

many, of the Constituo Criminalis Carolina, or Caroline Code, in which it was directed that the opinion of medical men should be taken in cases where death was alleged to have occurred by violence, and suspicion existed of a criminal agency. But it was not until the seventeenth century that we began to have authentic recorded instances of the employment of forensic medicine in England, and in some of the English state trials of that time we find cases in which medical men were called upon to testify in criminal trials; but in a large class of inquiries which are to-day the subject of medical examination and testimony, medical men were not consulted. For instance, we know that in applications for postponement of the sentence of death on account of pregnancy, in prosecutions for rape, and in applications for a decree of nullity on the ground of incapacity to consummate the marriage contract, it was the practice to impanel a jury of matrons to examine and report to the court. In the trial for murder of Jane Norkott, in 1628, there is a curious instance of the disinterment of a body for a second inquest thirty days after the first inquest had been held. At the first inquest the coroner's jury rendered a verdict of suicide. It was shown upon the trial that when the body of Jane Norkott was disinterred for the second inquest, one of the persons accused of her murder touched the dead body, "whereupon the brow of the dead, which before was of a livid and carrion color, began to have a dew or gentle sweat arise on it, which increased by degrees till the sweat ran down in drops on the face, the brow turned to a lively and fresh color, and the deceased opened one of her eyes and shut it again; and this opening the eye was done three several times; she likewise thrust out the ring or marriage finger three times and pulled it in again, and the finger dropped blood on the grave." (14 State Trials, 1342.)

In 1665 occurred the trial of the Suffolk witches, Rose Cullender and Amy Duny, on a charge of bewitching children, in which we find one of the most enlightened and distinguished physicians of the time, Sir Thomas Browne, author of the Religio Medici, testifying to his belief in witchcraft, and it was largely upon his testimony that the unfortunate women were convicted and hung. As an illustration of the value of the best medical testimony in England in that day, it is worth while to quote Dr. Browne's testimony in court, delivered after an examination of the two accused women and the aunt of the children alleged to have been bewitched. It seemed that Rose Cullender and Amy Duny had quarreled with the parents of the children; that the children subsequently had fits and threw up crooked pins and a twopenny nail with a broad head, and that thereupon a bee brought the nail and forced it into the child's mouth; and the two children declared that the prisoners were tormenting them, and that they saw their apparitions. There was other evidence, but the foregoing was the most weighty. After hearing the evidence and making his examination, Dr. Browne, having been called on for his opinion, stated to the court that "he was clearly of opinion that the persons were bewitched, and said that in Denmark there had been lately a great discovery of witches, who used the very same way of afflicting persons by conveying pins into them, and crooked as these pins were, with needles and nails. And his opinion was that the devil in such cases did work upon the bodies of men and women upon a natural foundation (that is) to stir up and excite such humours superabounding in

their bodies to a great extent, whereby he did in an extraordinary manner afflict them with such distempers as their bodies were most subject to, as particularly appeared in these children; for he conceived that these swooning fits were natural, and nothing else but that they call the mother, but only heightened to a great excess by the subtlety of the devil coöperating with the malice of those we term witches, at whose instance he doth these villainies."

In his Religio Medici (part i., sec. 30) Dr. Browne emphatically affirms his belief in witches, and describes those who do not believe in them as "a sort not of Infidels, but Atheists." In charging the jury in the case just alluded to, Chief-Justice Hale said "that there were such creatures as witches he had no doubt at all."

In the early part of the eighteenth century we have what is probably the first recorded instance of a criminal trial in which the result depended largely upon the conflicting evidence of medical experts. The case was that of Spencer Cowper, an Englishman of high position, who was accused of the murder of a Quakeress, Sarah Stout by name. Miss Stout's body was found one morning in a mill stream. There was evidence to show that the last person who had been with her on the night before was Cowper. He was tried for her murder, and a considerable number of physicians were called by the prosecution and defense to establish or controvert, among others, this proposition: that "it is contrary to nature that any persons that drown themselves should float upon the water; we have sufficient evidence that it is a thing that never was; if persons come alive into the water, then they sink; if dead, then they swim." Witnesses were also called to prove the proposition that water must be found in the stomach of a person who died of drowning, and that its absence was inconsistent with death so caused. The case was prosecuted and defended with great energy and vigor, and resulted in Cowper's acquittal. Baron Hatsell, who presided at the trial, made some remarks upon medical testimony in the course of his charge to the jury, which have a decided resemblance to some of the reflections which are made to-day by judges charging the jury upon the merits of the same kind of evidence. Baron Hatsell said: "You have heard also what the doctors and surgeons said on the one side and the other concerning the swimming and sinking of dead bodies in the water; but I can find no certainty in it, and I leave it to your consideration. The doctors and surgeons have talked a great deal to this purpose, and of the water going into the lungs or the thorax; but unless you have more skill in anatomy than I, you will not be much edified by it." (13 State Trials, 1188.)

In another criminal trial somewhat later we find a very curious result of the denial to the prisoner of the assistance of counsel in trials for felony. At the trial of Lord Ferrars, the prisoner set up the defense of insanity, and was obliged himself to examine the witnesses whom he called to support this plea.

In the nineteenth century the development of the science of forensic medicine has been rapid and important, and a quantity of literature has appeared upon the subject. Some of the best known names of contributors to the science are those of Orfila and Tardieu in France, Casper in Germany, Christison, Taylor, Guy, and Ogston in England, and Beck, Reese, Wharton and Stille, and Wormley in the United States. The increasing complexity of modern life resulting as it has in a marked in

crease in the quantity and variety of litigation, the rapid strides in the direction of accurate knowledge and means of scientific investigation which have been made in medicine, surgery, and chemistry, and the tendency to a relaxation of the strictness of the old common-law rules of evidence, have all contributed to activity in the domain of forensic medicine and to the enlargement of the field of its application.

Recurring to the definition of medical jurisprudence which has been given, it is obvious in the first place that a wide field of science may be covered by the terms "principles and practice of medicine." Anatomy, physiology, medicine, surgery, chemistry, and physics, all come to a greater or less extent within the province of the science of medicine, and they are all constantly called upon to contribute to the elucidation of legal questions affecting life, liberty, and property. It may be said that the progress which has been made in the application of the sciences of toxicology and pathology in courts of law has greatly increased the dif ficulty of successfully concealing the crime of death by poisoning.

Nor is the category of the kind of judicial proceedings in which the assistance of the trained medical witness is invoked less varied than the nature of the subjects covered by the science of medical jurisprudence. The determination of the capacity of testators to make wills, of contracting parties to contract, and in the marriage relation to consummate the contract, the decision of property rights depending upon questions of legitimacy, survivorship, age, and identity, mental capacity to take and hold property, are all familiar instances on the civil side of the law of the daily application of the science of medical jurisprudence to assist courts and juries in arriving at just conclusions in regard to property rights; while in the criminal branch of the law, the increasing frequency with which mental alienation is interposed as a defense to prosecution for crimes of violence, the necessity of the ascertainment of the causes, and probable means or instrument, of death or injury, and the duration and effect of such injuries, and questions arising out of what is known as hypnotism, which has already more than once been interposed in France as a defense to criminal prosecutions-all furnish a class of cases in which the testimony of the medical expert is indispensable. It is to be noted, however, that the statute law of many of the States has interposed a wise and salutary check upon possible forms of abuse of the confidential relation which must of necessity exist between physician and patient, by prohibiting the disclosure by a physician of communications made by, or information received from, the patient while in attendance upon him in a professional capacity. This topic will be fully treated in a subsequent article. It is an instance of a class of cases in which expert testimony is limited or excluded on the same well-founded grounds of public policy which has caused the enactment of laws prohibiting the disclosure of confidential communications made by clients to their attor neys, and persons to their spiritual advisers.

Under the systems of legal procedure which obtain in England and the United States, the contesting parties to the proceeding select their own experts and pay them. That this system has in some cases led to abuse, and that it has, particularly in the last few years, had a tendency to throw discredit upon all medical expert testimony, cannot be doubted. The spectacle which is now constantly witnessed in our courts, of equally qualified experts called on different sides of a case flatly contradict

ing each other, must of necessity cast doubt either upon the reliability of medical opinion, or else upon the standing of medicine as an exact science. But as the real object of all judicial proceedings is the ascertainment of truth and the doing of justice, the important question is whether our system conduces to these ends to a greater or less extent than the system in vogue elsewhere. As regards this question there is much room for discussion and difference of opinion. But that there is a growing restiveness on the part of judges, juries, and experts themselves under the faults and defects of our system, and a casting about for some better solution of the problem, is undoubted. A very brief statement of how it is managed in France and Germany, where the English and American system of common law procedure does not exist, may be not without interest.

In France the court may order an investigation and report (expertise) by experts whenever it deems it advisable. If the parties cannot agree upon the experts the court appoints them. They are at least three in number, and are generally, though not necessarily, selected from a list of specialists termed experts assermentés. The order directing the investigation contains a statement of its precise object, and appoints a referee, or juge commissaire. Barristers, or avocats, are not allowed to appear before the experts, but the parties are represented before them by solicitors (aroués), and sometimes by persons specially skilled in the matter of the investigation. The report must be signed by all three of the experts; and if there be a dissent, the dissenting opinion and the reasons for it are set forth in the body of the report. The judges, however, are not at all bound by the report if it is opposed to their convictions. ("Si leur conviction s'y oppose." Code de Procédure Civile, titre quatorzième.)

In Germany since 1870, under the Code of Civil Procedure for the German Empire, after the issues are framed upon which expert testimony is sought, the parties may agree upon the experts, and the court appoints those agreed upon, but it may confine the parties to a given number of experts. Sometimes the court submits to the parties the names of a number of experts, and allows each side to object to a certain number of them, and then appoints those remaining. There exists in Germany a class of officially appointed experts on certain subjects, and in trials which concern these subjects such experts have the preference in appointment, unless there exists some special reason why they should not be appointed. In Prussia, for instance, it is said to have been the custom to appoint as experts a physician and surgeon for every county. In addition there was a medical college in each province to which an appeal lay if the experts disagreed or the parties desired it. In addition to this there was an appellate medical commission for the whole kingdom. (Rogers, Expert Testimony. § 41.) But in Germany, as in France, the court is not constrained to follow the expert opinions, and if it is not satisfied with them it may order a new expert opinion from the same or from other experts.

The plans for reform in the American system of calling expert witnesses have generally been in the direction of establishing a class of official experts; and the trouble with most of the plans is that they contravene one or all of the three fundamental ideas of our system of criminal trial, to wit, that the judge alone is to be the judge of the law, that the jury alone are to pass on the facts, and that the accused shall be