Chapter IV: 38 (2)

When a Physician or Surgeon is called to give evidence, he should avoid, as much as possible, all obscure and technical terms, and the unnecessary display of Medical erudition. He should deliver, also, what he advances, in the purest and most delicate language consistent with the nature of the subject in question.—When two or more gentlemen of the Faculty are to offer their opinions or testimony, it would sometimes tend to obviate contrariety, if they were to confer freely with each other, before their public examination. Intelligent and honest men, fully acquainted with their respective means of information, are much less likely to differ, than when no communication has previously taken place. Several years ago a trial of considerable consequence occurred relative to a large copper work; and two Physicians of eminence were summoned to the assizes, to bear testimony concerning the salubrity or insalubrity of the smoke issuing from the furnaces. The evidence they offered was entirely contradictory. One grounded his testimony on the general presumption that the ores of copper contain arsenic; and consequently that the effluvia proceeding from the roasting of them, must be poisonous because arsenical. The other had made actual experiments on the ore employed in the works under prosecution, and on the vapours which it yielded: he was thus furnished with full proof that no arsenic was discoverable in either. But the affirmative prevailed over the negative testimony, from the authority of the Physician who delivered it; an authority which he probably would not have misapplied, if he had been antecedently acquainted with the decisive trials made by his opponent.

§ 19. It is the injunction of the law, sanctioned by the solemnity of an oath, that in judicial testimony “the truth, the whole truth, and nothing but the truth” shall be delivered. A witness, therefore, is under a sacred obligation to use his best endeavours that his mind be clear and collected, unawed by fear, and uninfluenced by favour or enmity. But in criminal prosecutions, which affect the life of the person accused, scruples will be apt to arise in one, who, by the advantages of a liberal education, has been accustomed to serious reflection, yet has paid no particular attention to the principles of political ethics. It is incumbent, therefore, on gentlemen of the Faculty to settle their opinions concerning the right of the civil magistrate to inflict capital punishment, the moral and social ends of such punishment, the limits prescribed to the exercise of the right, and the duty of a citizen to give full efficiency to the laws.

The magistrate’s _right_ to inflict punishment, and the _ends_ of such punishment, though intimately connected, are in their nature distinct. The _right_ is clearly a substitution or transfer of that which belongs to every individual by the law of nature, viz. instant self-defence, and security from future violence or wrong. The _ends_ are more comprehensive, extending not only to complete security against offence, but to the correction and improvement of the offender himself, and to counteract in others the disposition to offend. Penal laws are to be regulated by this standard; and the lenity or severity with which they are executed, should, if possible, be exactly proportionate to it. In different circumstances, either personal or public considerations may preponderate; and in cases of great moral atrocity, or when the common weal is essentially injured, all regard to the reformation of a criminal is superseded, and his life is justly forfeited to the good of society. In the participation of the benefits of the social union, he has virtually acceded to its conditions; and the violation of its fundamental articles renders him a rebel and an enemy, to be expelled or destroyed, both for the sake of security, and as an awful warning to others. When capital punishments are viewed in this light, the most humane and scrupulous witness may consider himself as sacrificing private emotions to public justice and social order; and that he is performing an act at once beneficial to his country and to mankind. For political and moral economy can subsist in no community, without the steady execution of wise and salutary laws; and every atrocious act, perpetrated with impunity, operates as a terror to the innocent, a snare to the unwary, and an incentive to the flagitious. The criminal, also, who evades the sentence of justice, like one infected with the pestilence, contaminates all whom he approaches. He, therefore, who, from false tenderness or misguided conscience, has prevented conviction by withholding the necessary proofs[99], is an accessary to all the evils which ensue. The maxim, that “it is better ten villains should be discharged than a single person suffer by a wrong adjudication,” is one of those partial truths which are generally misapplied, because not accurately understood. It is certainly eligible that the rules and the forms of law should be so precise and immutable, as not to involve the innocent in any decision obtained by corruption, or dictated by passion and prejudice; though this should sometimes furnish an outlet for the escape of actual offenders. The plea, also, may have some validity in crimes of a nature chiefly political, (with which, however, the Faculty can professionally have no concern,) such as coining and forgery, or in cases wherein the punishment much exceeds the evil or turpitude of the offence. For Lord Bacon has well observed, that “over-great penalties, besides their acerbity, deaden the execution of the law[100];” and, when they are discovered to be unjustly inflicted, its authority is impaired, its sanctity dishonoured, and veneration gives place to disgust and abhorrence.

But the dread of innocent blood being brought upon us by explicit and honest testimony, is one of those superstitions, which the nurse has taught, and which a liberal education ought to purge from the mind: and if, in the performance of our duty, innocence should unfortunately be involved in the punishment of guilt, we shall assuredly stand acquitted before GOD and our own consciences. The convict himself, lamentable as his fate must be regarded, may derive consolation from the reflection, that, though his sentence be unjust, “he falls for his country, whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and upholden[101].”

§ 20. When professional testimony is required in cases of such peculiar malignity as to excite general horror and indignation, a virtuous mind, even though scrupulous and timid, is liable to be influenced by too violent impressions, and to transfer to the accused that dread and aversion, which, before conviction, should be confined to the crime, and as much as possible withheld from the supposed offender. If the charge, for instance, be that of parricide, accomplished by poison, and accompanied with deliberate malice, ingratitude, and cruelty; the investigation should be made with calm and unbiassed precision, and the testimony delivered with no colouring of passion, nor with any deviation from the simplicity of truth. When circumstantial proofs are adduced, they should be arranged in the most lucid order, that they may be contrasted and compared in all their various relations with facility and accuracy; and that their weight may be separately and collectively determined in the balance of justice. For in such evidence there subsists a regular gradation from the slightest presumption to complete moral certainty; and, if the witness possess sufficient information in this branch of philosophical and juridical science, he will always be competent to secure himself, and, on many occasions, the court also, from fallacy and error. The Marquis de Beccaria has laid down the following excellent theorem concerning judicial evidence:—“When the proofs of a crime are dependent on each other, (that is, when the evidence of each witness, taken separately, proves nothing,) or when all the proofs are dependent upon one, the number of proofs neither increases nor diminishes the probability of the fact; for the force of the whole is no greater than the force of that on which they depend; and, if this fails, they all fall to the ground. When the proofs are independent of each other, the probability of the fact increases in proportion to the number of proofs; for the falsehood of one does not diminish the veracity of another.... The proofs of a crime may be divided into two classes, perfect and imperfect. I call those _perfect_, which exclude the possibility of innocence; _imperfect_, those which do not exclude this possibility. Of the first, one only is sufficient for condemnation; of the second, as many are required as form a perfect proof; that is to say, that, though each of these, separately taken, does not exclude the possibility of innocence, it is nevertheless excluded by their union[102].”

FOOTNOTES:

[38] [In this chapter there are numerous statements on different points of law, which after the lapse of nearly half a century are no longer accurate: these, where material, the Editor has endeavoured to correct, chiefly by the assistance of Edward Herford Esq., Coroner of Manchester.]

[39] [See Willcock’s _Laws relating to the Medical Profession_.]

[40] Introd. § 1. vol. i. p. 13.

[41] [See Notes and Illustrations, No. X.]

[42] [This is no longer the case; as, by 3 & 4 Will. IV. c. 104, freehold and copyhold estates in all cases are made assets for the payment of simple contract as well as specialty debts.]

[43] _Moral and Political Philosophy_, bk. iii. pt. i. ch. 23.

[44] “In the construction of the statute 29 Car. II. c. 3. it has been adjudged that the testator’s name, written with his own hand, at the beginning of the will, as, ‘I, John Mills, do make this my last will and testament,’ is a sufficient signing, without any name at the bottom; though the other is the safer way.” See Blackstone’s _Comment._, bk. ii. ch. 23. vol. ii. p. 376. [This is no longer law.]

[45] [Nuncupative wills are now abolished, except in the case of sailors and soldiers in actual service.]

[46] See Blackstone’s _Comment._, bk. ii. ch. 32. vol. ii. p. 501.

[47] [_Midsummer Night’s Dream_, act v. sc. 1.]

[48] See the Author’s _Moral and Literary Dissertations_, p. 127 (or _Works_, vol. ii. p. 82); also Notes and Illustrations, No. XI.

[49] Blackstone’s _Comment._, bk. i. ch. 8. vol. i. p. 304.

[50] Hawkins, _Pleas of the Crown_, bk. i. ch. 60. § 23; Burn’s _Justice_, vol. iii. p. 1288. (ed. 1845.)

[51] Ch. ii. § 30.

[52] [If Dr. Percival could say this in 1793, much more may _we_ thankfully repeat the statement in 1849.]

[53] [See Notes and Illustrations, No. XII.]

[54] See _Statutes at Large_, vol. viii. 14 Geo. III. c. 49. § 31; [also 9 Geo. IV. c. 40; 3 & 4 Will. IV. c. 36 & 64; 1 & 2 Vict. c. 14 & 64; 3 & 4 Vict. c. 54; 5 & 6 Vict. c. 87, and 7 & 8 Vict. c. 101. s. 27.]

[55] _Treatises of Government_, bk. ii. ch. 3. (_Works_, vol. iv. p. 347.)

[56] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 181. [This test, however, by the relaxation of the criminal law with respect to rape, burglary, and some other crimes, is no longer applicable.]

[57] [See Willcock’s _Laws relating to the Medical Profession_, p. 91.]

[58] [See Groenevelt’s _Tutus Cantharidum in Medicina Usus Internus_, præf.]

[59] Vol. vi. p. 279.

[60] [Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 190.]

[61] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 191.

[62] See Burn’s _Justice_, vol. iii. p. 810. [By 7 Will. IV. and 1 Vict. c. 85. the unlawfully administering any poison or other noxious thing, or using any instrument or other means to procure miscarriage, is made felony, punishable with transportation for life.]

[63] _Ibid._, vol. i. p. 10. (ed. 1845.)

[64] [Οὐδὲ γυναικὶ πεσσὸν φθόριον δώσω. Hippocr. _Jusjur._, tom. i. p. 2. ed. Kühn.]

[65] Burn’s _Justice_, vol. i. p. 613. (ed. 1845.)

[66] [It has long been repealed; and the endeavour to conceal the birth of a child is now a misdemeanour punishable with imprisonment.]

[67] See Paley’s _Moral and Political Philosophy_, bk. vi. ch. 9.

[68] [Shakespear’s _Othello_, act v. sc. 2.]

[69] _Medical Observations and Inquiries_, vol. vi. pp. 271, 286.

[70] “L’atrocité des lois en empêche l’exécution.—Lorsque la peine est sans mesure, on est souvent obligé de lui préférer l’impunité.” (Montesquieu.)

[71] [This has taken place, and the punishment of death is now inflicted in comparatively few cases.]

[72] “Elements of Medical Jurisprudence, &c. &c. by Samuel Farr, M.D.” 3rd. ed. 12mo. Lond. 1815. [Or the more modern works of Beck, Christison, Taylor, &c.]

[73] [See Notes and Illustrations, No. XIII.]

[74] Liedger, i. e. _slight_, _trifling_, from the French _leger_.

[75] Bacon’s _Works_, vol. iv. p. 401.

[76] Sir Michael Foster’s _Discourse of Homicide_, ch. 5. § 5. (in his _Crown Law_, 8vo. p. 297.)

[77] Blackstone’s _Comment._, bk. iv. ch. 14. vol. iv. p. 198.

[78] Hawkins, _Pleas of the Crown_, bk. i ch. 31. § 31; and Burn’s _Justice_, vol. iii. p. 812. ed. 1845.

[79] See Legg’s case, in Kelyng’s _Reports_, p. 27; Eden’s _Principles of Penal Law_, chap. 20. p. 224.

[80] Foster’s _Crown Law_, 8vo. p. 350.

[81] See Notes and Illustrations, No. XIV.

[82] Addison’s _Cato_, act ii. sc. 5.

[83] See the Author’s _Moral and Literary Dissertations_, p. 295. (or _Works_, vol. ii. p. 203.)

[84] “If an action unlawful itself be done deliberately, and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately, fall it where it may, and death ensue against or beside the original intention of the party, it will be murder. But if such mischievous intention doth not appear, (which is matter of fact and to be collected from circumstances,) and the act was done heedlessly and incautiously, it will be manslaughter, not accidental death, because the act upon which death ensued was unlawful.” (Foster’s _Crown Law_, p. 261.)

[85] [See Galen, _De Antid._ i. 1; _De Ther. ad Pis._ c. 16. tom. xiv. pp. 3, 283.]

[86] Bacon’s _Works_, vol. iv. p. 481.

[87] _Hist. Sketches of Civil Liberty_, p. 209.

[88] See Notes and Illustrations, No. XV.

[89] Deut. xxii. 25, 28, 29.

[90] [_Comment._, bk. iv. ch. 15. vol. iv. p. 210.]

[91] [It is now created a misdemeanour by statute.]

[92] [_Hist. Placit. Coronae_, Pt. i. ch. 58. vol. i. p. 635.]

[93] These circumstances are particularly adverted to in the Mosaic Law. See Deut. xxii. 25-27.

[94] See Blackstone’s _Comment._, bk. iii. ch. 13. vol. iii. p. 216 &c.; and bk. iv. ch. 13. vol. iv. p. 161 (?)

[95] Hawkins, _Pleas of the Crown_, bk. i. ch. 75. § 10; Burn’s _Justice_, vol. iii. p. 233 ed. 1845.

[96] Burrow’s _Reports_, p. 333; Burn, _ibid._

[97] [Mr. Hartley’s plan the Editor has not been able to find; that of Lord Mahon (afterwards Earl Stanhope,) is contained in the _Philos. Trans._ for 1778, p. 884. The titles of more recent works on the same subject may be seen in Watt’s _Bibl. Brit._]

[98] [See Notes and Illustrations, No. XVI.]

[99] “The oath administered to the witness is, not only that what he deposes shall be true, but that he shall also depose the _whole_ truth; so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not.” Blackstone’s _Comment._, bk. iii. ch. 23. vol. iii. p. 372.

[100] See _Proposal for Amending the Laws of England_. (_Works_, vol. iv. p. 367.)

[101] Paley’s _Moral and Political Philosophy_, bk. vi. ch. 9.

[102] _Essay on Crimes and Punishments_, chap. 14.

NOTES AND ILLUSTRATIONS.

NOTE I. Chap. i. § 31. p. 45.

_Caution or temerity in practice._

It is the observation of an elegant writer on the subject of morals, and applicable to Medical practice, that “The best character is that which is not swayed by temper of any kind; but alternately employs enterprise and caution, as each is useful to the particular purpose intended. Such is the excellence which St. Evremond ascribes to Mareschal Turenne, who displayed every campaign, as he grew older, more temerity in his military enterprises; and being now, from long experience, perfectly acquainted with every incident in war, he advanced with greater firmness and security, in a road so well known to him[103].” Yet it is said of the great Duke of Marlborough, that ten years of such uninterrupted and splendid success as no other general could boast of, never betrayed him into a single rash action[104].

That boldness in Medical practice is more frequently the antecedent than the consequence of experience, is a melancholy truth; for it is generally founded either on theoretical dogmas, or on pride which disclaims authority. To the consideration of Physicians who are thus prematurely confident in their own powers, the remark of Lord Verulam[105] may be recommended: “This is well to be weighed, that boldness is ever blind; for it seeth not dangers and inconveniences: therefore it is ill in counsel, good in execution: so that the right use of bold persons is, that they never command in chief, but he seconds, and under the direction of others. For in counsel it is good to see dangers, and in execution not to see them, except they be very great.”

NOTE II. Chap. ii. § 2. p. 48.

_Temperance of Physicians._

“Though much has been said, and with some truth, of the good effects of wine in producing rapidity and vivacity of thought, it has scarce ever been pretended that it favoured the exercise of discrimination and judgement. The only persons in whom it has ever been supposed not to have the very opposite effects, are some gentlemen of the Faculty. The ignorant vulgar would think _a priori_, that, _caeteris paribus_, a Physician who was sober, would attend more accurately to the case of his patient, and compare and distinguish all circumstances better, and judge more soundly, and prescribe more rationally, than he could do when he was drunk. But some Physicians, who should be supposed to know themselves best, and who certainly must have known how they acquitted themselves in those different situations, have boasted that they prescribed as well drunk as sober. In this they could not be mistaken; for, whether we consider the matter physically or logically, their boast amounts precisely to this, that they prescribed no better when they were sober than they did when they were drunk; which is undoubtedly a noble accomplishment, but it is not surely either wonderful or rare[106].”

Tacitus, in his admirable treatise “De Situ, Moribus et Populis Germaniae,” has stated, that those nations “de reconciliandis invicem inimicis, et jungendis affinitatibus, et adsciscendis principibus, de pace denique ac bello, plerumque in conviviis consultant: tamquam nullo magis tempore aut ad simplices cogitationes pateat animus, aut ad magnas incalescat. Gens non astuta nec callida, aperit adhuc secreta pectoris licentia loci. Ergo detecta et nuda omnium mens postera die retractatur; et salva utriusque temporis ratio est. Deliberant dum fingere nesciunt: constituunt dum errare non possunt[107].” (c. 22.)

In deliberation it may on some peculiar occasions be of importance to break off all former strong associations. A fit of drunkenness accomplishes this fully: sleep has the same tendency, and hence the proverb, “I will sleep upon it.” But such deliberation bears no analogy to what is required from a Physician, when he is to consider the case of a patient.

“Universal temperance,” says Mr. Gisborne[108], “both in eating and drinking, is particularly incumbent on a Physician in every period of his practice, not merely as being essentially requisite to preserve his faculties in that alert and unclouded state which may render him equally able at all times to pronounce on the cases which he is called to inspect; but because it is a virtue which he will very frequently find himself obliged to inculcate on his patients, and will inculcate on them with little efficacy, if it be not regularly exemplified in his own conduct.”

NOTE III. Chap. ii. § 3. p. 49.

_“A Physician should be the minister of hope and comfort to the sick.”_

Mr. Gisborne, in one of his interesting letters to me on the subject of Medical Ethics, suggests, that it would be advisable to add, _as far as truth and sincerity will admit_. “I know very well,” says he, “that the sentence, as it now stands, conveys to you, and was meant by you to convey to others, the same sentiment which it would express after the proposed addition. But, if I am not mistaken in my idea that there are few professional temptations to which Medical men are more liable (and frequently from the very best principles,) than that of unintentionally using language to the patient and his friends more encouraging than sincerity would vindicate on cool reflection, it may be right scrupulously to guard the avenues against such an error.”

In the “Enquiry into the Duties of Men,” the same excellent moralist thus delivers his sentiments more at large[109]. “A professional writer[110], speaking in a work already quoted[111] respecting the performance of Surgical operations in hospitals, remarks, that it may be a salutary as well as an humane act in the attending Physician, occasionally to assure the patient that every thing goes on well, _if that declaration can be made with truth_. This restriction, so properly applied to the case in question, may with equal propriety be extended universally to the conduct of a Physician, when superintending operations performed, not by the hand of a Surgeon, but by Nature and Medicine. Humanity, we admit, and the welfare of the sick man, commonly require that his drooping spirits should be revived by every encouragement and hope which can honestly be suggested to him. But truth and conscience forbid the Physician to cheer him by giving promises, or raising expectations, which are known or intended to be delusive. The Physician may not be bound, unless expressly required, invariably to divulge at any specific time his opinion concerning the uncertainty or danger of the case; but he is invariably bound never to represent the uncertainty or danger as less than he actually believes it to be; and whenever he conveys, directly or indirectly, to the patient or to his family, any impression to that effect, though he may be misled by mistaken tenderness, he is guilty of positive falsehood. He is at liberty to say little; but let that little be true. St. Paul’s direction, _not to do evil that good may come_[112], is clear, positive, and universal.”

Whether this subject be viewed as regarding general morality, or professional duty, it is of high importance; and we may justly presume that it involves considerable difficulty and intricacy, because opposite opinions have been advanced upon it by very distinguished writers. The ancients, though sublime in the abstract representations of virtue, are seldom precise and definite in the detail of rules for its observance. Yet in some instances they extend their precepts to particular cases; and Cicero, in the third book of his “Offices,” expressly admits of limitations to the absolute and immutable obligation of fidelity and truth. (cc. 24, 25.)

The maxim of the poet, also, may be adduced as intended to be comprehensive of the moral laws, by which human conduct is to be governed:—

“Sunt certi denique fines,
Quos ultra citraque nequit consistere rectum[113].”

The early Fathers of the Christian Church, Origen, Clement, Tertullian, Lactantius, Chrysostom, and various others, till the period of St. Augustine, were latitudinarians on this point. But the holy father last mentioned, if I mistake not, in the warmth of his zeal, declared that he would not utter a lie, though he were assured of gaining Heaven by it[114]. In this declaration there is a fallacy, by which Augustine probably imposed upon himself: for a lie is always understood to consist in a _criminal_ breach of truth, and therefore under no circumstances can be justified. It is alleged, however, that falsehood may lose the essence of lying, and become even praiseworthy, when the adherence to truth is incompatible with the practice of some other virtue of still higher obligation. This opinion almost the whole body of civilians adopt, with full confidence of its rectitude. The sentiments of Grotius may be seen at large in the satisfactory detail which he has given of the controversy relating to it[115].

Puffendorff, who may be regarded as next to this great man in succession as well as authority, delivers the following observations in his “Law of Nature and Nations,” which are pointedly applicable to the present subjects, yet carried assuredly to a very reprehensible extent:—“Since those we talk to may often be in such circumstances, that, if we should tell them the downright truth of the matter, it would prejudice them, and would incapacitate us for procuring that lawful end we propose to ourselves for their good; we may in these cases use a fictitious or figurative way of speech, which shall not directly represent to our hearers our real thoughts and intentions: for, when a man is desirous, and it is his duty, to do a piece of service, he is not bound to take measures that will certainly render his attempts unsuccessful[116].”—“Those are by no means guilty of lying, who, for the better information of children, or other persons not capable of relishing the naked truth, entertain them with fictions and stories; nor those who invent something that is false, for the sake of a good end, which by the plain truth they could not have compassed; as, suppose, for protecting an innocent, for appeasing a man in his passion, for _comforting the afflicted_, for _animating the timorous_, for _persuading a nauseating patient to take his physic_, for overcoming an obstinate humour, for making an ill design miscarry[117].”

Several modern ethical writers of considerable celebrity have been no less explicit and indulgent on this question. Amongst these it may suffice to cite the testimony of the late Dr. Francis Hutcheson of Glasgow; of whom it is said by his excellent biographer, that “he abhorred the least appearance of deceit either in word or action[118].” “When in certain affairs,” says he, “’tis known that men do not conceive it an injury to be deceived, there is no crime in false speech about such matters.... No man censures a Physician for deceiving a patient too much dejected, by expressing good hopes of him, or by denying that he gives him a proper medicine which he is foolishly prejudiced against: the patient afterwards will not reproach him for it.... Wise men allow this liberty to the Physician in whose skill and fidelity they trust: or if they do not, there may be a just plea from necessity[119].”—“These pleas of necessity some would exclude by a maxim of late received, _We must not do evil that good may come of it._ The author of this maxim is not well known. It seems, by a passage in St. Paul[120], that Christians were reviled as teaching, that, since the mercy and veracity of God were displayed by the obstinate wickedness of the Jews, they should continue in sin that this good might ensue from it. He rejects the imputation upon his doctrine; and hence some take up the contradictory proposition as a general maxim of great importance in morality. Perhaps it has been a maxim among St. Paul’s enemies, since they upbraid him with counteracting it. Be the author who they please, the sentence is of no use in morals, as it is quite vague and undetermined. Must one do nothing for a good purpose, which would have been evil without this reference? ’Tis evil to hazard life without a view to some good; but, when ’tis necessary for a public interest, ’tis very lovely and honourable. ’Tis criminal to expose a good man to danger for nothing; but ’tis just even to force him into the greatest dangers for his country. ’Tis criminal to occasion any pains to innocent persons, without a view to some good; but for restoring of health we reward chirurgeons for scarifyings, burnings, and amputations. ‘But,’ say they, ‘such actions, done for these ends, are not evil. The maxim only determines that we must not do, for a good end, such actions as are evil even when done for a good end.’ But this proposition is identic and useless; for who will tell us next, what these actions, sometimes evil, are, which may be done for a good end? and what actions are so evil that they must not be done even for a good end? The maxim will not answer this question; and truly it amounts only to this trifle; _you ought not for any good end to do what is evil, or what you ought not to do, even for a good end_[121].”

Dr. Johnson, who admits of some exception to the law of truth, strenuously denies the right of telling a lie to a sick man for fear of alarming him. “You have no business with consequences,” says he; “you are to tell the truth. Besides, you are not sure what effect your telling him that he is in danger may have. It may bring his distemper to a crisis, and that may cure him. Of all lying I have the greatest abhorrence of this, because I believe it has been frequently practised on myself[122].”

If the Medical reader wishes to investigate this nice and important subject of casuistry, he may consult Grotius _De Jure Belli ac Pacis_, Puffendorff, Grove’s _Ethics_, Balguy’s _Law of Truth_, Fénelon’s _Telemachus_, Butler, Hutcheson, Paley, and Gisborne. Every practitioner must find himself occasionally in circumstances of very delicate embarrassment, with respect to the contending obligations of veracity and professional duty; and when such trials occur, it will behove him to act on fixed principles of rectitude, derived from previous information and serious reflection. Perhaps the following brief considerations, by which I have conscientiously endeavoured to govern my own conduct, may afford some aid to his decision.

Moral truth, in a professional view, has two references; one to the party to whom it is delivered, and another to the individual by whom it is uttered. In the first, it is a _relative_ duty, constituting a branch of justice; and may be properly regulated by the Divine rule of equity prescribed by our SAVIOUR, to do unto others, as we would (all circumstances duly weighed,) they should do unto us[123]. In the second, it is a _personal_ duty, regarding solely the sincerity, the purity, and the probity of the Physician himself. To a patient, therefore, (perhaps the father of a numerous family, or one whose life is of the highest importance to the community,) who makes enquiries, which, if faithfully answered, might prove fatal to him, it would be a gross and unfeeling wrong to reveal the truth. His right to it is suspended, and even annihilated; because, its beneficial nature being reversed, it would be deeply injurious to himself, to his family, and to the public: and he has the strongest claim, from the trust reposed in his Physician, as well as from the common principles of humanity, to be guarded against whatever would be detrimental to him. In such a situation, therefore, the only point at issue is, whether the practitioner shall sacrifice that delicate sense of veracity, which is so ornamental to, and indeed forms a characteristic excellence of, the virtuous man, to this claim of Professional justice and social duty. Under such a painful conflict of obligations a wise and good man must be governed by those which are the most imperious; and will therefore generously relinquish every consideration referable only to himself. Let him be careful, however, not to do this, but in cases of real emergency, which happily seldom occur; and to guard his mind sedulously against the injury it may sustain by such violations of the native love of truth.

I shall conclude this long note with the two following very interesting biographical facts. The husband of the celebrated Arria, Caecina Paetus, was very dangerously ill. Her son was also sick at the same time, and died[124]. He was a youth of uncommon accomplishments, and fondly beloved by his parents. Arria prepared and conducted his funeral in such a manner, that her husband remained entirely ignorant of the mournful event which occasioned that solemnity. Paetus often enquired with anxiety about his son; to whom she cheerfully replied, that he had slept well, and was better. But if her tears, too long restrained, were bursting forth, she instantly retired, to give vent to her grief; and when again composed, returned to Paetus with dry eyes and placid countenance, quitting, as it were, all the tender feelings of the mother at the threshold of her husband’s chamber.

“Lady Russell’s only son, Wriothesley, Duke of Bedford, died of the small-pox in May 1711, in the 31st year of his age[125].... To this affliction succeeded, in Nov. 1711, the loss of her daughter, the Duchess of Rutland, who died in child-bed. Lady Russell, after seeing her in the coffin, went to her other daughter, married to the Duke of Devonshire, from whom it was necessary to conceal her grief, she being at that time in child-bed likewise; therefore she assumed a cheerful air, and with astonishing resolution, [verbally] agreeable to truth, answered her anxious daughter’s enquiries with these words: ‘I have seen your sister out of bed to-day.’”

NOTE IV. Chap. ii. § 5. p. 50.

“_The practice of a prior Physician should be treated with candour, and justified, so far as truth and probity will permit._”

Montaigne in one of his “Essays” treats with great humour of Physic and Physicians; and makes it a charge against them, that they perpetually direct variations in each other’s prescriptions. “Who ever saw,” says he, “one Physician approve of another’s prescription, without taking something away, or adding something to it? By which they sufficiently betray their art, and make it manifest to us that they therein more consider their own reputation, and consequently their profit, than their patients’ interest[126].”

NOTE V. Chap. ii. § 9. p. 53.

_Theoretical discussions should be generally avoided._

This rule is not only applicable to consultations, but to any reasonings on the nature of the case and of the remedies prescribed, either with the patient himself or his friends. It is said by my lamented friend Mr. Seward in his entertaining “Anecdotes,” that the late Lord Mansfield gave this advice to a military gentleman, who was appointed Governor of one of our islands in the West Indies, and who expressed his apprehensions of not being able to discharge his duty as chancellor of his province: “Always decide, and never give reasons for your decision. You will in general decide well; yet give very bad reasons for your judgement[127].”

NOTE VI. Chap. ii. § 11. p. 54.

_Regular academical education._

“It is the general opinion,” says Dr. Johnson[128], “that Sydenham was made a physician by accident and necessity; and Sir Richard Blackmore reports in plain terms[129], that he engaged in practice without any preparatory study, or previous knowledge, of the Medicinal sciences; and affirms, that, when he was consulted by him what books he should read to qualify him for the said profession, he recommended _Don Quixote_. That he recommended Don Quixote to Blackmore,” continues Dr. Johnson, “we are not allowed to doubt; but the relater is hindered, by that self-love which dazzles all mankind, from discovering that he might intend a satire very different from a general censure of all the ancient and modern writers on Medicine; since he might perhaps mean, either seriously or in jest, to insinuate that Blackmore was not adapted by nature to the study of Physic, and that, whether he should read Cervantes or Hippocrates, he would be equally unqualified for practice, and equally unsuccessful in it. Whatsoever was his meaning, nothing is more evident than that it was a transient sally of an imagination warmed with gaiety, or the negligent effusion of a mind intent upon some other employment, and in haste to dismiss a troublesome intruder.” Sydenham himself has declared[130], that, after he determined upon the profession of Physic, he applied in earnest to it, and spent several years in the University of Oxford, before he began to practise in London. He travelled afterwards to Montpelier in quest of more information; “so far was he from any contempt of academical institutions, and so far from thinking it reasonable to learn Physic by experiments alone, which must necessarily be made at the hazard of life[131].”

But it is highly injurious to the usefulness and honour of the Profession, to suppose the education of a Physician may be confined to the pursuit of Medicine as an _art_. Sir William Blackstone, in the Introduction to his “Commentaries on the Laws of England[132],” has reprobated the custom of placing the juridical student “at the desk of some skilful attorney, in order to initiate him early in all the depths of practice, and render him more dexterous in the mechanical part of business.” This illiberal path to the bar is not to be sanctioned, he observes, by a few particular instances of persons, who, through the force of transcendent genius, have been able to overcome every disadvantage. And he points out, in very forcible terms and with sound argument, how essential it is to the lawyer to form his sentiments by the perusal of the purest classical authors; to learn to reason with precision, by the simple but clear rules of unsophisticated logic; to fix the attention, and steadily to pursue truth through the most intricate deductions, by an acquaintance with mathematical demonstration; and to acquire enlarged conceptions of nature and of art, by a view of the several branches of experimental philosophy. Now, if this be the _vantage ground_, (to adopt the language of Lord Bacon,) from which the study of the Law should commence, it ought to be deemed at least equally necessary to qualify for the prosecution of Medicine—a science which has man, as a compound of matter and mind, for its subject, and an infinitude of substances derived from the animal, vegetable, and mineral kingdoms for its instruments. This sentiment seems to have been early prevalent in the celebrated school of Physic, established at Salerno in Italy. For it was enacted, A.D. 1237, by the heads of colleges there, that the pupils should be bound to pass three years in the acquisition of philosophy, and five subsequent years in that of Medicine[133]. The like regulations were afterwards adopted in other Universities; but in various countries have fallen into disuse.

On the first revival of learning in Europe, science was held in the highest estimation; and the three faculties of Law, Physic, and Divinity assumed particular honours and privileges. Academical degrees were conferred on their members; and these titles, with the rank annexed to them, were admitted _ubique gentium_; being, like the order of knighthood, of universal validity. Doctors indeed contended sometimes with knights for precedence, and the disputes were not unfrequently terminated by advancing the former to the dignity of knighthood. It was even asserted that a doctor had a right to that title without creation[134].

NOTE VII. Chap. ii. § 15. p. 57.

_Pecuniary acknowledgements._

The following fact is applicable to the professional conduct of Physicians towards their friends:—“When Addison was in office, [under the earl of Wharton, as Lord Lieutenant of Ireland,] he made a law to himself, as Swift has recorded, never to remit his regular fees in civility to his friends: ‘for,’ said he, ‘I may have a hundred friends; and, if my fee be two guineas, I shall, by relinquishing my right, lose two hundred guineas, and no friend gain more than two; there is therefore no proportion between the good imparted, and the evil suffered[135].’” In recording Mr. Addison’s _prudential_ conduct, his probity, with respect to pecuniary acknowledgements, should not be unnoticed. In a letter, relative to the case of Major Dunbar, he says:—“And now, Sir, believe me, when I assure you, I never did, nor ever will, on any pretence whatsoever, take more than the stated or customary fees of my office. I might keep the contrary practice concealed from the world, were I capable of it; but I could not from myself; and I hope I shall always fear the reproaches of my own heart, more than those of all mankind[136].”

At a period when empirics and empiricism seem to have prevailed much in Rome, the exorbitant demands of Medical practitioners, particularly for certain secret compositions which they dispensed, induced the Emperor Valentinian to ordain, that no individual of the Faculty should make an express charge for his attendance on a patient, nor even avail himself of any promise of remuneration during the period of sickness; but that he should rest satisfied with the donative voluntarily offered at the close of his ministration[137]. By the same law, however, the Emperor provided that one practitioner, at least, should be appointed for each of the fourteen sections into which the Roman metropolis was divided, with special privileges, and a competent salary for his services; thus indirectly, yet explicitly, acknowledging that a Physician has a full claim in equity to his professional emoluments. Is it not reasonable, therefore, to conclude, that what subsisted as a _moral_ right, ought to have been demandable, under proper regulations, as a _legal_ right? For it seems to be the office of law to recognise and enforce that which natural justice recognises and sanctions.

The Roman advocates were subject to the like restrictions, and from a similar cause; for their rapacity occasioned the revival of the Cincian Law, “qua cavetur antiquitus, ne quis ob causam orandam pecuniam donumve accipiat.” But Tacitus relates, that, when the subject was brought into discussion before Claudius Caesar, amongst other arguments in favour of receiving fees, it was forcibly urged, “sublatis studiorum pretiis, etiam studia peritura;” and that, in consequence, the prince “capiendis pecuniis posuit modum, usque ad dena sestertia, quem egressi repetundarum tenerentur[138].”

A precise and invariable _modus_, however, would be injurious both to the barrister and the Physician, because the fees of each ought to be measured by the value of his time, the eminence of his character, and by his general rule of practice. This rule, with its antecedents, being well known, a _tacit compact_ is established, restrictive on the claims of the practitioner, and binding on the probity of the patient. Law cannot properly by its ordinances establish the custom, which will and ought to vary in different situations and under different circumstances. But a court of judicature, when formally appealed to, seems to be competent to authorize it if just, and to correct it if unjust. Such decisions could not wholly change the honorary nature of fees; because they would continue to be increased at the discretion of the affluent, according to their liberality and grateful sense of kind attentions; and diminished at the option of the Physician to those who may from particular circumstances require his beneficence.

From the Roman code the established usage in different countries of Europe relative to Medical fees has probably originated. This usage, which constitutes common law, seems to require considerable modification to adapt it to the present state of the Profession. For the general body of the Faculty, especially in the united kingdom of Great Britain and Ireland, are held in very high estimation on account of their liberality, learning, and integrity[139]; and it would be difficult to assign a satisfactory reason why they should be excluded from judicial protection, when the just remuneration of their services is wrongfully withheld. Indeed a Medical practitioner (one especially who is settled in a provincial town, or in the country,) may have accumulated claims from long-protracted and often expensive attendance; and his pecuniary acknowledgements may be refused from prejudice, from captiousness, from parsimony, or from dishonesty. Under such circumstances considerations of benevolence, humanity, and gratitude, are wholly set aside; because, when disputes arise, they must be suspended or extinguished, and the question at issue can alone be decided on the principles of _commutative justice_.

NOTE VIII. Chap. ii. § 30. p. 65.

_Public worship; scepticism and infidelity._

The neglect of social worship, with which Physicians have been too justly charged, may be traced in many instances to the period of their academical education, particularly in the Universities, where young men are permitted to live at large, and are subject to no collegiate discipline. Sunday, affording a recess from public lectures, is devoted by those who are ardent in study to a review of the labours of the past week, to preparations for Medical or scientific discussions in the societies of which they are members, or to other pursuits, belonging to their Profession, but unconnected with Religion. The idle and the gay in such situations are eager to avail themselves of opportunities so favourable to their taste for recreation, or to their aversion to business and confinement. In each of these classes, though actuated by different principles, there is much danger that devotional impressions will be gradually impaired for want of stated exercise and renewal; and a foundation will thus be laid for habitual and permanent indifference in future life to Divine services, whenever Medical avocations furnish a _salvo_ to the mind, and a plausible excuse to the world, for non-attendance on them. This coldness of heart, this moral insensibility, should be sedulously counteracted before it has acquired an invincible ascendancy. No apology should be admitted for absence from the stated offices of piety, but that of duties to be performed of immediate and pressing necessity. When the church is entered with just views, it will be found that there is a sympathy in religious homage, which at once inspires and heightens devotion; and that to hold communion with God in concert with our families, our friends, our neighbours, and our fellow citizens, is the highest privilege of human nature. But, with a full conviction of the obligation of public worship, as a social institution founded on common consent, and enjoined by legal authority; as a moral duty connecting us by the most endearing ties with our brethren of mankind, who are joint dependants with ourselves on the pardon, the protection, and the bounty of GOD; and as a debt of general homage to our Creator, Benefactor, and Judge; yet there may subsist in a devout and benevolent mind scruples respecting doctrines and forms, sufficient to produce an alienation from the sacred offices of the temple. Such doubts, when they originate from serious enquiry, and are not the result of fastidiousness or arrogance, have a claim to tenderness and indulgence; because to act in contradiction to them, whilst they subsist, would be a violation of sincerity, amounting in some cases to the guilt of hypocrisy. But in a country where private judgement is happily under no restraint, and where so great a diversity of sects prevails, it will be strange if a candid and well-informed man can find no Christian denomination, with which he might accord in spirit and in truth. Sir Thomas Brown, in the statement which he has given in his “Religio Medici[140],” seems to have allowed himself on these points very extensive latitude:—“We have reformed _from_ them, [viz. the Papists,] not against them; ... and therefore I am not scrupulous to converse and live with them, to enter their churches in defect of ours, and either pray _with_ them or for them. I could never perceive ... that a resolved conscience may not adore her Creator any where, especially in places devoted to His service; where, if _their_ devotions offend Him, mine may please Him; if theirs profane it, mine may hallow it.... I could never hear the _Ave-Mary_ bell without an elevation, or think it a sufficient warrant, because _they_ erred in one circumstance, for me to err in all,—that is, in silence and dumb contempt: whilst therefore _they_ directed their devotions to _her_, I offered mine to GOD, and rectified the errors of _their_ prayers by rightly ordering my own.”

But authority much more respectable than that of Sir Thomas Brown may be adduced in favour of the spirit of catholicism in Christian communion. Mr. Locke, a short time before his death, received the Sacrament according to the rites of the Church of England, though it is evident from his writings that he dissented from many of her doctrines. When the office was finished, he told the minister, “that he was in the sentiment of perfect charity towards all men, and of a sincere union with the Church of CHRIST, under whatever name distinguished[141].”—Dr. David Hartley was originally intended for the clerical profession, but was prevented from going into holy orders by his scruples concerning subscription to the Thirty-nine Articles. He continued, however, to the end of his life, a well-affected member of the Establishment, approving of its practical doctrines, and conforming to its public worship. He was a Catholic Christian, says his son and biographer, in the most extensive and literal sense of the term. On the subject of religious controversy he has left the following testimony of his sentiments:—“The great differences of opinion and contentions, which happen on religious matters, are plainly owing to the violence of men’s passions more than to any other cause. When Religion has had its due effect in restraining these, and begetting true candour, we may expect a unity of opinion both in religious and other matters, as far as is necessary for useful and practicable purposes.”

These examples of the conduct of wise and conscientious Christians evince, that, in their estimation, forms, ceremonies, and doctrines, are of a moment subordinate to the benefits and obligations of social worship. But they are not adduced to sanction an _indifference_, either to religious rites, or religious truth. The mind will always be in the best frame for holy exercises, when the modes by which they are conducted are consonant to its sentiments of propriety and rectitude; and that church should be habitually resorted to, if practicable, the public services of which accord most satisfactorily with the views of the individual, concerning the attributes of GOD, and the revelation of His will and promises to man. No personal friendship, no party connection, no professional interest should be allowed to predominate in the choice. For genuine piety, which is the joint offspring of reason and of sentiment, admits of no substitutions. It consists in a full conviction of the understanding, accompanied with correspondent affections of the heart; and in its exercises calls forth their united and noblest energies.

It will not be foreign to the subject of this note to investigate briefly, the imputation of scepticism and infidelity, which has been laid against the Medical Faculty. The Rev. Dr. Samuel Parr, whose candour is unquestionable, and whose learning and genius entitle him to the highest respect, has lately sanctioned it, as will appear by the following passage from his “Remarks on the Statement of Dr. Charles Combe,” (p. 82[142]):—“While I allow,” says he, “that peculiar and important advantages arise from the appropriate studies of the three liberal professions, I must confess, that in erudition, in science, and in habits of deep and comprehensive thinking, the pre-eminence in some degree must be assigned to Physicians. The propensity which some of them have shewn to scepticism upon religious topics is indeed to be seriously lamented; and it may be satisfactorily explained, I think, upon metaphysical principles, which evince the strength rather than the weakness of the human mind, when contemplating under certain circumstances the multiplicity and energy of physical causes. But I often console myself with reflecting on the sounder opinions of Sir Thomas Brown, Sydenham, Boerhaave, and Hartley, in the days that are past: and of our own times posterity will remember that they were adorned by the virtues, as well as the talents, of a Gregory, a Heberden, a Falconer[143], &c.”