in the jurat be received in the court for which it was sworn, Littledale, J., was of opinion that, nevertheless perjury might be assigned upon it.' So it was ruled by lord Tenterden, that a party filing a bill for an injunction, and making affidavit of matters material to it, is indictable for perjury committed in that affidavit, though no motion is ever made for an injunction.' And in the New York reports we find two cases quite as much in point as those just quoted. In Dayton v. Rockwell,' it was held that perjury might be committed in making an affidavit, which was legally defective for the purpose for which it was made. In that instance, the party in question, in order to obtain a justice's warrant, had made affidavit that he had a good cause of action against his debtor, without adding that the debtor was about to leave the country; and though the warrant would be invalid for that defect, yet it was decided that the party might none the less be guilty of perjury, if he swore falsely, quatenus, in order to obtain it. So, in Pratt v. Price, an affidavit made to obtain a writ of certiorari, in a case where it could not be granted in consequence of the prohibition of an express statute, was nevertheless held to be the subject of perjury.

Thus, upon authority, as well as principle, we should arrive at a different decision from that pronounced in the case before us. We do not assent that the want of record to the defendant's deposition absolved him from the penalties of perjury for false testimony therein contained. As matter of proof, we believe the Massachusetts statute in requiring the recording of depositions "in perpetuam,” and the decisions of the supreme court in rejecting them as evidence for civil purposes unless so recorded, were not designed to have the effect to exclude them as proof in a

1 Hailey's case, R. and Moody, N. P. C. 94.

2 White's case, Moody and Malkin, 271.

11 Wend. 140.

4 11 Wend. 127.

criminal proceeding, like the present; and, finally, that the profert in the indictment in question did not require the production of the deposition as of record.

G. B.

ART. III.-MEDICAL EVIDENCE.

It is a matter of common remark, that medical men, even when possessing considerable reputation, make but a sorry figure on the witness-stand, and the fact is regarded, on account of its frequency, as reflecting some discredit on the profession itself. We are not inclined to deny the correctness of the charge, but we regret that the fact has seldom excited any other emotion than one of surprise or contempt, and that but little desire has been evinced to ascertain the causes of so singular a phenomenon. The inquiry, if candidly pursued, would have shown that the evil is chargeable, in a great measure, to causes very different from that to which it is commonly attributed; and people would have seen, like the poet in Moliere, who found to his astonishment, that he had been writing prose all his life, that they have been surprised at what could not have been otherwise, in the very nature of things. The medical profession has been greatly wronged by the imputation of ignorance and presumption that has been freely cast upon it, in consequence of the lamentable exhibitions of some of its members; and it is time it were generally understood, that the blame in this matter is more justly chargeable to the laws and opinions of the community, than to any culpable deficiency in the profession itself. Society has it in its power to mould the professions, almost as it chooses; and it may be laid down as a general principle, that their characters, whatever they may be, are attributable, not more to those of the individuals that compose them, than to the state of society in which

they exist. All other than their necessary defects may be more or less remedied by the action of the community, so that if they are permitted to remain after having been fairly exposed, the professions cannot be justly responsible for the evils they occasion. Before blaming or ridiculing medical witnesses for "breaking down" so frequently, we should be sure that any other class of men would have done better under similar circumstances. We are anxious that the delinquency in question should be traced to its true source, for the double purpose of doing justice to the medical profession, and of suggesting a remedy for the evil in question.

We certainly would not deny that the proverbial embarrassment of medical men on the witness-stand, is sometimes the result of culpable ignorance that deserves no indulgence. whatever. Men who have long since abandoned the study of their profession while they continue in the practice of it, and act upon the idea that a science which is constantly improving had arrived at perfection during their pupilage, have not unfrequently undertaken to enlighten courts and juries, in a way that would effectually prevent a student from obtaining a diploma from any respectable school in the country. The counter testimony of others of genuine attainments, and the scathing process of a cross-examination, only induce them to persist in blazoning their folly and in striving to obtain a triumph by force of positive and clamorous assertions. It too frequently happens on such occasions, especially in the country, that feelings of personal animosity usurp the place of a conscientious regard for truth, and the witness-stand becomes the scene of professional collisions in which ignorance generally triumphs. We have known, in a case of poisoning by arsenic, the testimony of a modest young man, though a very skilful practical chemist, utterly discredited with the jury by the bold and swaggering assertions of an old practitioner who knew nothing of chemistry, and for years, probably, had not read

a paragraph in any scientific work whatever. But whether such exhibitions can be justly considered as disgraceful to the medical profession or not, lawyers certainly have no right to complain of them, so long as they are guilty of deliberately endeavoring to make professional ignorance and the popular prejudice in favor of age and fancied experience, available to the success of their cause. If professional ignorance and audacity rear their unblushing front in the witness-stand, we have a right to ask, who places them there? who confidently reckons upon them, as the principal element of success?

While we have no disposition to excuse gross or culpable ignorance, we claim some indulgence for the intelligent physician, on account of the disadvantages under which his testimony is given. The duties of the medical practitioner are far from being favorable to the promotion of the intellectual habits which are essential to that precision and accuracy in his opinions, which alone will enable them to bear the test of a searching examination. With his mind well fortified with principles and enlarged by philosophical views of nature's laws in the sphere to which he has devoted himself, he begins his career, determined to find an explanation of every phenomenon, and to have a reason for every measure. He reverently bows to the supremacy of true philosophy and turns himself away from the seductive worship of empiricism. He advances but a little way in his course, however, when he finds that the light which seemed to. beam over his whole path, frequently disappears, and leaves him to grope his way in darkness. At the very bedside of his patient, the ample instructions of the schools become a dead letter; he finds himself obliged to resort to his own resources, and obtain the requisite conclusions in the best manner he can. He is not only obliged to arrive at his conclusions as he best can, but the circumstances of the case often admit of but little deliberation, and he is necessarily

guided, more by the force of general impressions, than by deductions cautiously and rigidly drawn. Such conclusions are sufficient for his purpose, and he may have a strong conviction of their correctness, while it might be difficult for him to give a reason for his belief that would satisfy others, or bear examination. This, however, in the ordinary routine of practice, is seldom required, and he remains unconscious of his deficiency, till he finds, in the quality of a witness, that opinions which he has been acting upon all his life, are suddenly annihilated, like the baseless fabric of a vision, by the assaults of relentless counsel. While court and jury are eagerly expecting the why and because of what he says, he can give them nothing but individual, unsupported convictions which, anywhere else indeed, it would never have entered their heads to doubt. And if, in the course of his life, he has ever borne in mind the hint of a veteran practitioner to a young enthusiast,-"Juvenis, tua doctrina non promittit opes: plebs amat remedia,"-and been chary of expressing his opinions, until he has almost lost the power of doing it, who can blame him? Is it his fault that he has been obliged to confine himself to brief and oracular responses, which, though they fail to enlighten the inquirer, effectually silence and satisfy him? Ought it to be expected, that the moment he enters a court, he should drop the habit of his whole life, and succeed for the first time in pouring light and conviction into minds that never would suffer the attempt before?

This difficulty which is experienced by the physician in supporting his opinions by appropriate illustrations, factsand arguments, is greatly increased by the circumstances. under which his evidence is given. He is often called upon without any opportunity for preparation, or his preparation, if he have made any, is of little avail to him, from the fact of his being unable to anticipate the precise points on which his evidence may be required. Amid the fatigues and anx