is indebted for the olive, the fig, and the administration of justice."

The writings of the Greek physicians contain no reference to any legal application of their knowledge, and certain passages in the writings of the orators seem to indicate that, while a physician was called to inspect and treat a wounded person, the testimony as to the patient's condition was given in court by others.

Thus in the case against Euergos and Mnesibulus, in which an old woman had died some days after an assault, Demosthenes states that he notified the accused to bring a surgeon and cure the woman; but that as they did not do so, he himself brought his own surgeon and showed him her condition in the presence of witnesses. Upon hearing from the surgeon that the woman was in a hopeless condition, he again explained her state to the accused and required them to find medical aid. Finally, on the sixth day after the assault the woman died. He further asserts that these statements would be proved by the depositions.'

4

The third Tetralogy of Antiphon (B. C. 480) relates to a case in which the defence was essentially the same as that which was the subject of a vast amount of medical expert testimony in a celebrated trial for murder in New York not many years ago. A person wounds another, who dies some days afterward. The assailant is accused of murder and sets up the defence that the deceased perished, not from the wounds inflicted, but in consequence of unskilful treatment by the physicians.

In neither of these cases is any mention made of physicians having been called upon for testimony; indeed, the statements would lead to the inference that they were not. In another case in which a poor and sick citizen is accused of malingering to obtain the customary pecuniary aid from the State, Lysias' summons no medical evidence but relies entirely upon a statement of his client's case."

"Var. Hist.," iii., 38. Kennedy's transl., ed. Bohn, v.. 95.

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.

"Oratores Attici, C. Müller, Paris, 1877, i., 20.

"Oratores Attici," C. Müller, ed. Didot, Paris, 1877, i., 200-203.

In a doubtful fragment of Lysias the expression "as physicians and

Medical legislation was not more advanced during the ascendancy of the Roman Empire, although medical science was greatly developed, principally by the labors of Celsus, and of Galen and other Greek physicians. A few cases are mentioned by the historians which would seem to indicate a closer connection between law and medicine than had existed among the Greeks, but they refer rather to the custom of exposing the bodies of those who had died by violent means to public view, in order that any one might express his opinion as to the cause of death, than to any appeal to medical science in the administration of justice. Thus Suetonius' says that the physician Antistius examined the dead body of Julius Cæsar (B.C. 44), and declared that of all the wounds only that received in the breast was mortal.

Pliny cites an early instance of contested interpretation of post-mortem appearances in the case of Germanicus, who died. A.D. 19, by the action of poison, said the enemies of Piso, because the heart did not burn. The friends of Piso, while admitting the fact of non-consumption, attributed it to the deceased having had heart disease. The same author' quotes Masurius as having declared a child born after thirteen (lunar) months to be legitimate, in an action for the possession of property, on the ground that no certain period of gestation was fixed. The Emperor Hadrian (A.D. 117-138), according to Gellius, sought medical information in a similar case, and decreed the legitimacy of a child born in the eleventh (lunar) month, "after having considered the opinions of ancient philosophers and physicians.

99 4

Although the Justinian collections, the "Codex" (A.D. 529), the "Institutes" (A.D. 533), the "Digests," or "Pandects" (A.D. 534), and the "Novels" (A.D. 535-564), prepared by the best legal talent of the age, under the direction of Tribonian, do not provide for the summoning of physicians as witnesses; they contain an expression which indicates that at that time the true.

midwives declare” (ὥσπερ οἱ ἰατροὶ καὶ αἱ μαῖοι ἀπερηναντο) is used in connection with the question whether a foetus has life and may be murdered. Cf. "Orat. Attici." Müller and Hunziker, Paris, Didot, 1858, ii., 257.

"Jul. Cæs., " 82.

"Hist. Nat.," xi., 71. 3"Hist. Nat.," vii., 4.

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.

function of the medical expert was more correctly appreciated than it is to-day. His function was stated to be judicial rather than that of a witness. There is also a provision that in cases of contested pregnancy, midwives (who were considered as belonging to the medical profession) should, after examination of the woman, determine whether or no pregnancy exist, and that their determination should be final. The practice of medicine, surgery, and midwifery was regulated. Those desiring to practise must have been found competent by an examination. The number of physicians in each town was limited. They were divided into classes, and were subject to the government of the Archiatri. Penalties were imposed upon those guilty of malpractice or of poisoning. The Justinian enactments contain abundant internal evidence of having been framed in the light of medical knowledge. They contain provisions relating to sterility and impotence, rape, disputed pregnancy, legitimacy, diseased mental conditions, presumption of survivorship, poisoning, etc., which indicate that the medical knowledge of the time was fully utilized in their construction."

The Germanic peoples at about the same period possessed codes in which traces of a rudimentary medical jurisprudence existed. The most ancient of these was the Salic law (A.D. 422), in which the penalties to be paid for wounds of different kinds are fixed. The Ripuarian law, of somewhat later date, takes cognizance of the crime of poisoning. The laws of the Bavarians, Burgundians, Frisians, Thuringians, and Visigoths contain practically nothing of medico-legal interest. The Lex Alamannorum has numerous provisions relating to wounds, and expressly provides that the gravity of the injury shall be determined by a physician.'

During the period of about a thousand years, intervening between the Justinian and Caroline (vide infra) codes, the advancement of medicine and jurisprudence suffered almost complete arrest. The guilt or innocence of an accused person

1 "Medici non sunt proprie testes, sed majus est judicium quam testimonium."

*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., " Würz

burg, 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.

3 See Mende: "Handb. d. ger. Med.," Leipzig, 1819, i., 83-87.

was determined rather by his own confession under torture, or by "the judgment of God" as shown by ordeal or by judicial combat, than by testimony either expert or of fact.

Even during the night of the Middle Ages, instances are recorded in which the opinions of physicians were sought to determine questions of fact in judicial proceedings.

In the duchy of Normandy, in 1207-45, the laws provided for the examination of those claiming to be sick (to evade military service or appeal to judicial duel), of persons killed, and of women.'

In a decretal of Innocent III., in 1209, the question whether a certain wound was mortal was determined by physicians.'

There is extant in the statutes of the city of Bologna, under date of 1249, an entry to the effect that Hugo di Lucca had been assigned the duty, when called upon by the podesta, and after having been sworn, to furnish a true report in legal cases.'

In the kingdom of Jerusalein (ca. 1250) a person claiming exemption from trial by battle because of sickness or of wounds was visited by a physician (fisicien ou miége) and a surgeon (sérorgien), who examined him and made oath as to his condition.'

5

Sworn surgeons to the king are also mentioned in letters patent of Philippe le Hardi in 1278, of Philippe le Bel in 1311, and of Jean II. in 1352. That of Philippe le Bel refers to Jean Pitardi as one of "his well-beloved sworn surgeons in his Chastelet of Paris," whose functions are partly indicated by the extracts from the registers given below.

The registers of the Châtelet at Paris from 1389 to 1392 record several instances in which medical aid was rendered in judicial proceedings. Under date of March 22d, 1389-90, "Maître Jehan Le Conte, sworn surgeon to the king our sire, reports to Maître Jehan Truquam, lieutenant to the provost, that "upon that day in the morning one Rotisseur had gone

1 "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.

Ut peritorum judicio medicorum talis percussio asseveretur non

99

fuisse letalis," Mende, "Handb. d. ger. Med.," i., 91.

3 Hensschel, in "Janus," Breslau, 1847, ii., 135.

4"Assises de Jérusalem," Beugnot, Paris, 1841-43, quoted by Ortolan, l.c., infra.

5 Ortolan: "Débuts d. 1. Méd. lég.." Ann. d'Hyg., Par., 1872, 2 S., xxxviii., 361.

from life unto death in consequence of the wounds which he had received on the Monday evening preceding." Under date ♦f July 22d, 1390, is an account of the examination of one Jehan le Porchier, accused of intent to poison the king (Charles VI.), in which there is reference to a very early instance of toxicological expert evidence. In the wallet of the accused certain herbs. were found. The account proceeds: "Richart de Bules, herbalist, was summoned, to him the above-mentioned herbs were shown, and he was commanded that he should examine them and consider well and duly, reporting the truth of what he should find. The said Richart, after having examined them with great diligence, reported that in the box in which these herbs were he had found six leaves, namely: one leaf of jacia nigra, and one of round plantain, called in Latin plantago minor, and four of sow-thistle (lasseron), called in Latin rosti poterugni, and says that the leaf of jatria nigra is poisonous, but that in the others there is no poison known to the deponent." 2 On August 12th, 1390, "Jehan Le Conte and Jehan Le Grant, sworn surgeons of our sire the king," are present at the torture of a prisoner, but for what purpose does not appear. In another case the same Jehan Le Conte testified that a wound in the head of a deceased person was made with an axe.' At a later period in Italy, the infliction of "the question" took place under medical supervision. Zacchias devotes a chapter, De Tormentis et Pœnis, to the consideration of the different methods of torture, the degrees of pain and danger attending each, and the conditions of age, sex, and health which render its application inadmissible."

During this period, as indeed from the earliest times, the practice of medicine was regulated by law. Thus a law of King Roger of Sicily (1129-54) punished those who practised medicine without authority with imprisonment and confiscation of goods; and an edict of Frederick II. (1215-46) imposed like penalties upon those who presumed to practise except after graduation at the school of Salernum."