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Palmer's case”), we have ourselves expressed our opinions strongly with regard to the disreputable mode in which medical evidence is proffered. We there have said—“The witness-box seems to be sought by some as a cheap advertisement, by others as the means of contradicting or discomfiting a rival; but from whatever cause it may arise, the worst danger to the administration of justice, and the greatest injury to the scientific character, will be incurred whenever it shall be known that professional witnesses may be retained to establish indifferently a case for either side.
This is no fanciful danger; for we believe that there are few lawyers of considerable practice who could not within their experience give instances of the profligacy with which scientific testimony is tendered, and not in criminal cases only.”—(L. M. & R., Vol. I., N. S., p. 349). And again : "That there have been frequent occasions when (to use Lord Campbell's expression) the medical witness is turned into the retained advocate'is as true as it is grievous, and when such occasions occur they call for most unrelenting comment.'
It is not, therefore, that we do not concur with the author in condemning notorious and scandalous misconduct of so-called scientific “professional” witnesses; but we think, in a standard work like Dr. Taylor's, contemporary culprits need not be so perpetually pilloried. We get tired of perpetually seeing notes of admiration placed after the assertions, doctrines, and imperfections of Dr. Letheby and Mr. Herepath. These seem to be Dr. Taylor's especial aversion, and their inconsistencies are frequent themes of observation. One effect of Dr. Taylor's remarks on this head will be, that every unscrupulous jail attorney or accomplice of felons, who seeks to have a case made out, got up, or carried through, has had plainly indicated to him that there is a market of "scientific evidence," where he can procure the testimony best suited to his wants.
The observations of Dr. Taylor with reference to Palmer's case (and also illustrating the observations we have just made) are well worthy of perusal. He
says: “ That the prisoner was guilty of the foul crime of murdering
his friend, no one who views the whole case apart from prejudice can entertain a reasonable doubt. A distinguished German who has commented on his trial, expresses his astonishment that any professional men could be found in England, who could stand forward and publicly state on oath that the symptoms under which Cook died might be explained by any form of nervous disease, epilepsy, or angina pectoris (Dr. Husemann in Reil's Journal, 1857, 4te Heft, p. 564). It argues but little for the knowledge or moral feelings of medical witnesses, and must shake the confidence of the public, as it has already done to a great extent, in the trustworthiness of medical opinions. Such must be the result when scientific witnesses accept briefs for a defence; when they go into a witness-box believing one thing, and endeavour to lead a jury by their testimony to believe another--when they make themselves advocates, and deal in scientific subtleties, instead of keeping to the plain truth. Such men should be marked by the public, and their efforts at endeavouring to confer impunity on the foulest crimes, and to procure the acquittal of the most atrocious criminals, should be duly noted. The chemical defenders of the culprit Tawell on the apple pip' theory (ante, p. 682), were in the foremost rank to defend the culprit Palmer! Fortunately for society their efforts did not prove successful in either case. In the mean time, this pernicious system is a heavy blow and a great discouragement to the detection and exposure of murder by secret poisoning. No man in this country can henceforth venture to denounce a grave crime of this kind, committed by a person of wealth or of social position, without being prepared to incur the most calumnious attacks, and to have his opinions and motives grossly misrepresented. If, after due consideration, he boldly expresses his opinion at an inquest, and persists in it, he is said to be prejudiced ; if he hesitates or expresses himself timidly, he is not to be trusted! There is but little protection afforded to a witness by a court of law; the accused person is there the sole object of sympathy and consideration; and a learned counsel is only mildly rebuked, who, against the whole bearing of the scientific evidence, asserts that the prisoner is innocent, and asks
the jury to adopt his venal assertion in preference to the unbiassed opinions of medical men."
Dr. Taylor, in the above passage as elsewhere, is, we believe, justified in the use of most of his expressions; but, notwithstanding all his experience, we perceive that his notion of the duty and position of an advocate in English courts of law, partakes of the error which we commonly find, and expect to find, amongst wellinformed people. “Venal assertion ” is not the correct term for the language of counsel. Dr. Taylor himself is paid, and properly so, for giving evidence. For his assertions in the witness-box he is remunerated—we might call them venal in the primary sense of the word, as they are in one sense bought; so the arguments and forensic powers, when exercised by counsel, are in like manner venal. The assertions of the latter, however, are not venal. They are valueless, and therefore not marketable, unless supported by evidence.
It may be that the principle of advocacy is altogether immoral, and that no one, lawyer or layman, should promote the cause of plaintiff, defendant, prosecutor, or prisoner, until he has first examined the matter, and been persuaded of the truth and righteousness of a litigant's cause—i. e., until he has first constituted bimself judge and jury. But at present it is thought that justice is better secured by allowing advocates on both sides, whose functions shall be distinct from that of the court. Most questions have, as experience shews, at least two sides; and it is better that each side should be presented by a different individual, and be submitted to hostile examination of professed opponents.
To define the limits of the advocate's duty, is almost as difficult as Dr. Taylor finds it to define the limits of the terms poison, or of medicine. These limits are, doubtless, often transgressed by those whose moral sense is blunted; but they are more often wrongly supposed, by the ignorant, vulgar, and prejudiced, to have been transgressed, when, so far from this being the fact, the interests of the client would have been betrayed, and truth sacrificed, if any other course had been pursued. Nor has Dr. Taylor, so far as our personal observation extends, any cause to complain
of his treatment by the bench or bar. He is personally respected, and regard for his merits is shewn in a marked manner. His opinion and statements, wherever we have seen him giving evidence, have been received with the utmost attention. The exactitude, propriety, and pertinence with which he delivers his testimony in a court of justice, awaken the admiration of every body competent to judge of his difficult and responsible duties. He possesses a rare and valuable combination of qualities. To great scientific accomplishments, practical skill, and enlarged experience in delicate chemical analysis, he adds the power
of happy expression, and extraordinary ability in conveying to ordinary minds, and the untrained intellects of jurymen, the results of his studies and investigations. Cross-examinations do not seem to ruffle him, nor comment in court to disturb him; and, if we might offer a word of advice to him, it would be not to be chagrined, or exhibit annoyance, after he has left the court, by a recollection of the antagonism or detractation of other and less respectable persons, or by recalling the criticism and observations to which his evidence, like that of all witnesses, must and ought to be exposed.
Although we boast that modern science not only saves the innocent, while it brings the guilty to justice, yet we ought carefully to note what are its capabilities, and where it fails, through the ascertained means and known tests proving ineffective, or through the rashness or vain pretensions displayed by analysts. To be able to discover the four-thousandth part of a grain of strychnine in an ounce of blood, is a claim, it would appear, which certain experts have made. The one-thousandth part of a grain, it is conceded, can, under certain circumstances, be detected But the practical question in medical jurisprudence is, can such an infinitesimal dose be given to a living animal, and can the poison afterwards be separated from the blood ? And this is proved to be impossible. A candid expert would draw the distinction between the experiment he makes with the pure poison, and those he tries in seeking small quantities diffused through the dead blood and tissues. There are limits to the amount of scientific knowledge at any particular period, as well as to those of ingenious
experiment; there are none to the dogmatism of vain and unscrupulous men. “By one chemist, strychnine is said to be eliminated in the urine; by another, to be deposited in the flesh and bones; by a third, to remain stationary, so as to be entirely recoverable after having done its work as a poison ; and by a fourth, to be speedily thrown out of the system. These inconsistent statements show that there is a total want of uniformity in the results obtained by the different analysts;” or (we may suggest) of the errors which arise from men allowing theories or hasty conclusions to take the place of practical research. Chemists are sometimes at fault, and cannot explain why very satisfactorily : thus we see a case referred to where an old man had undoubtedly poisoned his grandson by giving him phosphorus paste with his bread and butter, but Mr. Herapath could not find any trace of phosphorus. The following passage is not very consolatory to those who would desire to place implicit confidence in the results of science :-"Men who have shamelessly stated on oath that there is no poison so easy to detect (as strychnine), have, when cases have actually occurred to them, shrupk from the responsibility of testing their theories by facts. With regard to the alkaloid, strychnine itself, among fourteen fatal cases which had occurred up to the time of William Palmer's trial (1856), chemical science was a blank.”
In connection with this subject is a remark of Dr. Taylor, which is worthy of consideration. He
“It cannot be denied that the great facility with which chemical analysis is applied to the detection of most mineral poisons, is due to the ignorance of those who criminally administer them. A mineral poison is frequently given in the form of a loose powder undissolved, and it is then capable of analysis.” But the author proceeds to give instances where toxicological science has been brought to bear by the miscreant, so as to baffle the scientific "detective," as the analytical experts are sometimes discourteously called. Dr. Taylor, too, will recollect a case in Essex, where, as it has been alleged, and with great probability, a woman was tried on a charge of poisoning, and being acquitted (though no