Chapter 2

I will not examine this important matter in all its bearings at present; I mean to take it up later on in our course, and to lay before you the teachings of science on this subject, together with the principles on which they are based. For the present I will confine myself to the point we are treating just now, namely, the existence of a higher law than that of human tribunals, the superiority of the claims of natural to those of legal justice. Some might think, at first sight, that this needs no proof. In fact we are all convinced that human laws are often unjust, or, at least, very imperfect, and therefore they cannot be the ultimate test or fixed standard of right and wrong; yet the main argument advanced by one of the advocates of craniotomy rests upon the denial of a higher law, and the assertion of the authority of human tribunals as final in such matters.

In the "Medical Record" for July 27, 1895, p. 141, this gentleman writes in defence of craniotomy: "The question is a legal one _per se_ against which any conflicting view is untenable. The subdivisions under which the common law takes consideration of craniotomy are answers in themselves to the conclusions quoted above, under the unfortunate necessity which demands the operation." Next he quotes the Ohio statute law, which, he remarks, was enacted in protection of physicians who are confronted with this dire necessity. He is answered with much ability and sound learning by Dr. Thomas J. Kearney, of New York, in the same "Medical Record" for August 31, 1895, p. 320, who writes: "Dr. G. bases his argument for the lawfulness of craniotomy in the teachings of common law, contending, at least implicitly, that it is unnecessary to seek farther the desired justification. However, the basis of common law, though broad, is certainly not broad enough for the consideration of such a question as the present one. His coolness rises to sublime heights, in thus assuming infallibility for common law, ignoring the very important fact that behind it there is another and higher law, whose imperative, to every one with a conscience, is ultimate. It evidently never occurs to him that some time could be profitably spent in research, with the view to discovering how often common-law maxims, seen to be at variance with the principles of morality, have been abrogated by statutory enactments. Now the maxims of common law relating to craniotomy, the statutes in conformity therewith, as well as Dr. G.'s arguments (some of them at least), rest on a basis of pure unmitigated expediency; and this is certainly in direct contravention of the teachings of all schools of moral science, even the utilitarian."

Dr. Kearney's doctrine of the existence of a higher law, superior to all human law, is the doctrine that has been universally accepted, in all Christian lands at least, and is so to the present day. Froude explains it correctly when he writes: "Our human laws are but the copies, more or less imperfect, of the eternal laws so far as we can read them, and either succeed and promote our welfare or fail and bring confusion and disaster, according as the legislator's insight has detected the true principle, or has been distorted by ignorance or selfishness" (Century Dict., "Law").

Whoever calmly reflects on the manner in which laws are enacted by legislative bodies, under the influence of human passions and prejudices, often at the dictation of party leaders or of popular sentiment, of office-seekers or wealthy corporations, etc., will not maintain for a moment that human laws and human tribunals are to be accepted as the supreme measure or _norma_ of right and wrong. The common law of England, which lies at the basis of our American legislation, and is an integral portion of our civil government, is less fluctuating than our statutory law, and is in the main sound and in conformity with the principles of Jurisprudence. But no one will claim infallibility for its enactments; the esteem we have for it is chiefly due to its general accord with the requirements of the higher law.

7. There is, then, a higher law, which all men are bound to obey, even lawgivers and rulers themselves as well as their humblest subjects, a law from which no man nor class of men can claim exemption, a law which the Creator cannot fail to impose upon His rational creatures: although God was free to create or not to create as He chose, since He did not need anything to complete His own happiness,--yet, if He did create, He was bound by His own wisdom to put order into His work; else it would not be worthy of His supreme wisdom. As the poet has so tersely expressed it, "Order is Heaven's first law."

How admirably is this order displayed in the material universe! The more we study the sciences--astronomy, biology, botany, physiology, medicine, etc.--the more we are lost in admiration at the beautiful order we see displayed in the tiniest as well as in the vastest portions of the creation. And shall man alone, the masterpiece of God in this visible universe, be allowed to be disorderly, to be a failure in the noblest part of his being, to make himself like to the brute or to a demon of malice, to waste his choicest gifts in the indulgence of debasing pleasure? The Creator is bound by His own wisdom to direct men to high purposes, worthy of their exalted intellectual nature. But how shall He direct man? He compels material things to move with order to the accomplishment of their alloted tasks by the physical laws of matter. He directs brute animals most admirably to run their appointed careers by the wonderful laws of instinct, which none of them can resist at will. But man He has made free; He must direct him to do worthy actions by means suitable to a free being, that is, by the enacting of the moral law.

He makes known to us what is right and wrong. He informs every one of us, by the voice of reason itself, that He requires us to do the right and avoid the wrong. He has implanted in us the sense of duty to obey that law. If we do so, we lead worthy lives, we please Him, and, in His goodness, He has rewards in store.

But can He be pleased with us if we thwart His designs; if we, His noblest works on earth, instead of adding to the universal harmony of His creation, make monsters of ourselves, moral blots upon the beautiful face of His world? It were idle for Him to give us the knowledge of His will and then to stand by and let us disfigure His fairest designs; to bid us do what is right, and then let us do wrong without exacting redress or atonement. If He is wise, He must not only lay down the law, but He must also enforce it; He must make it our highest interest to keep His law, to do the right; so that ultimately those men shall be happy who have done it, and those who have thwarted His designs shall be compelled to rue it. He will not deprive us of liberty, the fairest gift to an intelligent creature, but He will hold out rewards and punishments to induce us to keep the law and to avoid its violation. Once He has promised and threatened, His justice and His holiness compel Him to fulfil His threats and promises. A man can commit no rasher act than to ignore, defy, and violate that higher law of which we are speaking, and which, if it must direct all men, especially requires the respect and obedience of those into whose hands he has placed at times the lives of their fellow-men, the greatest of earthly treasures.

I have insisted so much, gentlemen, on the existence of the higher law, on its binding power and on the necessity of observing it, because it is the foundation of my whole course of lectures. If there were no higher law, then there would be no Medical Jurisprudence, in the true sense of the word. For Jurisprudence studies the principles that underlie legal enactments, and if there were no higher law, there would be no such principles; then the knowledge of the human law would fill the whole programme. This in fact is the contention of the defendant of craniotomy to whom I have referred; and he boldly applies his speculation to a matter in which the physician has the most frequent opportunity to exhibit his fidelity to principle, or his subserviency to the requirements of temporary expediency at the sacrifice of duty.

8. You will find, gentlemen, as we proceed in our course, that Doctors have very many occasions in which to apply the lessons of Jurisprudence in their medical practice. I even suspect that they need to be more conscientious in regard to the dictates of the higher law than any other class of men, the clergy alone, perhaps, excepted. They need this not only for their own good, but also for the good of their patients and of the community at large. The reasons are these:

A. The matters entrusted to their keeping are the most important of all earthly possessions; for they are life itself, and, along with life, health, the necessary condition of almost all temporal enjoyment. No other class of men is entrusted with more weighty earthly interests. Hence the physician's responsibility is very great; hence the common good requires that he be eminently faithful and conscientious.

B. With no other class of men does the performance of duty depend more on personal integrity, on conscientious regard for the higher law of morality than with the Doctor. For the Doctor's conduct is less open to observation than that of other professions. The lawyer may have many temptations to act unjustly; but other lawyers are watching him, and the courts of justice are at hand to check his evil practices. As to the judge, he is to pronounce his decisions in public and give reasons for his ruling. The politician is jealously watched by his political opponents. The public functionary, if he is unjust in his dealings, is likely sooner or later to be brought to an account. But the physician, on very many occasions, can be morally sure that his conduct will never be publicly scrutinized. Such is the nature of his ministrations, and such too is the confidence habitually reposed in his integrity, that he is and must be implicitly trusted in matters in which, if he happens to be unworthy of his vocation, he may be guilty of the most outrageous wrongs.

The highest interests of earth are in his hands. If he is not conscientious, or if he lets himself be carried about by every wind of modern speculations, he can readily persuade himself that a measure is lawful because it is presently expedient, that acts can justly be performed because the courts do not punish them; and thus he will often violate the most sacred rights of his patients or of their relatives. Who has more frequent opportunities than a licentious Doctor to seduce the innocent, to pander to the passions of the guilty, to play into the hands of greedy heirs, who may be most willing to pay him for his services? No one can do it more safely, as far as human tribunals are concerned. As a matter of fact, many, all over this land and other lands, are often guilty of prostituting their noble profession to the vilest uses. The evil becomes all the more serious when false doctrines are insinuated, or publicly advocated, which throw doubt upon the most sacred principles of morality. True, the sounder and by far the larger portion of medical men protest against these false teachings by their own conduct at least; but it very frequently happens that the honest man is less zealous in his advocacy of what is right than is the propagandist of bold speculations and dangerous new theories in the spreading of what is pernicious.

The effect thus produced upon many minds is to shake their convictions, to say the least; and I need not tell you, gentlemen, that weak convictions are not likely to be proof against violent and repeated temptations. In fact, if a physician, misled by any of those many theories which are often inculcated or at least insinuated by false scientists, can ever convince himself, or even can begin to surmise that, after all, there may be no such thing as a higher law before which he is responsible for even his secret conduct, then what is to prevent him from becoming a dangerous person to the community? If he see much temporal gain on the one hand, and security from legal prosecution on the other, what would keep him in the path of duty and honesty? Especially if he can once make himself believe that, for all he knows, he may be nothing more than a rather curiously developed lump of matter, which is to lose forever all consciousness in death. Why should he not get rid of any other evolved lump of matter if it stand in the way of his present or prospective happiness? Those are dangerous men who inculcate such theories; it were a sad day for the medical profession and for the world at large if ever they found much countenance among physicians. Society cannot do without the higher law; this law is to be studied in Medical Jurisprudence.

It is my direct object, gentlemen, to explain this law to you in its most important bearings, and thus to lay before you the chief duties of your profession. The principal reason why I have undertaken to deliver this course of lectures--the chief reason, in fact, why the Creighton University has assumed the management of this Medical College--is that we wish to provide for the West, as far as we are able, a goodly supply of conscientious physicians, who shall be as faithful and reliable as they will be able and well informed; whose solid principles and sterling integrity shall be guarantees of upright and virtuous conduct.

That this task of mine may be successfully accomplished, I will endeavor to answer all difficulties and objections that you may propose. I will never consider it a want of respect to me as your professor if you will urge your questions till I have answered them to your full satisfaction. On the contrary, I request you to be very inquisitive; and I will be best pleased with those who show themselves the most ready to point out those difficulties, connected with my lectures, which seem to require further answers and explanations.

LECTURE II.

CRANIOTOMY.

Gentlemen:--In my first lecture I proved to you the existence and the binding power of a higher law than that of human legislators, namely, of the eternal law, which, in His wisdom, the Creator, if He created at all, could not help enacting, and which He is bound by His wisdom and justice to enforce upon mankind.

We are next to consider what are the duties which that higher law imposes upon the physician. In this present lecture I will confine myself to one duty, that of respect for human life.

A duty is a bond imposed on our will. God, as I remarked before, imposes such bonds, and by them He directs free beings to lead worthy lives. As He directs matter by irresistible physical laws, so He directs intelligent and free beings by moral laws, that is, by laying duties or moral bonds upon them, which they ought to obey, which He must require them to obey, enforcing His commands by suitable rewards and punishments. Thus He establishes and enforces the moral order.

Now the duties He lays upon us are of three classes. First, there are duties of reverence and honor towards Himself as our sovereign Lord and Master. These are called the duties of Religion, the study of which does not belong to Medical Jurisprudence. The other classes of duties regard ourselves and our fellow-men, with these we are to deal in our lectures.

I. Order requires that the meaner species of creatures shall exist for the benefit of the nobler; the inert clod of earth supports vegetable life, the vegetable kingdom supplies the wants of animal life, the brute animal with all inferior things subserves the good of man; while man, the master of the visible universe, himself exists directly for the honor and glory of God. In this beautiful order of creation, man can use all inferior things for his own benefit.

This is what reason teaches concerning our status in this world; and this teaching of reason is confirmed by the convictions of all nations and all ages of mankind. The oldest page of literature that has come down to us, namely, the first chapter of the first book of Holy Writ, lays down this same law, and no improvement has been made in it during all subsequent ages. Whether we regard this writing as inspired, as Christians and Jews have always done, or only as the testimony of the most remote antiquity, confirmed by the acceptance of all subsequent generations, it is for every sensible man of the highest authority.

Here is the passage: "God said, Let us make man to our image and likeness; and let him have dominion over the fishes of the sea, and the fowls of the air, and the beasts, and the whole earth, and every creeping creature that creepeth upon the earth." And later on in history, after the deluge, God more explicitly declared the order thus established, saying to Noe and his posterity: "Every thing that moveth and liveth shall be meat for you; even as the green herbs have I delivered them to you." But He emphatically adds that the lives of men are not included in this grant; they are directly reserved for His own disposal. "At the hand of every man," He says, "will I require the life of man."

All things then are created for man; man is created directly for God, and is not to be sacrificed for the advantage of a fellow-man. Thus reason and Revelation in unison proclaim that we can use brute animals as well as plants for our benefit, taking away their lives when it is necessary or useful to do so for our own welfare; while no man is ever allowed to slay his fellow-man for his own use or benefit: "At the hand of every man will I require the life of man."

II. The first practical application I will make of these general principles to the conduct of physicians is this: a physician and a student of medicine can, with a safe conscience, use any brute animal that has not been appropriated by another man, whether it be bug or bird or beast, to experiment upon, whatever specious arguments humane societies may advance to the contrary. Brute animals are for the use of man, for his food and clothing, his mental and physical improvement, and even his reasonable recreations. Man can lawfully hunt and fish and practise his skill at the expense of the brute creation, notwithstanding the modern fad of sentimentalists. The teacher and the pupil can use vivisection, and thus to some extent prolong the sufferings of the brute subject for the sake of science, of mental improvement, and intelligent observation. But is not this cruelty? and has a man a right to be cruel? No man has a right to be cruel; cruelty is a vice, it is degrading to man's noble nature. But vivisection practised for scientific purposes is not cruel. Cruelty implies the _wanton_ infliction of pain: there are people who delight in seeing a victim tortured; this is cruelty or savagery, and is a disgrace to man. Even to inflict pain without benefit is cruel and wrong; but not when it is inflicted on the brute creation for the benefit of man, unless the pain should be very great and the benefit very small. Certainly it is right to cultivate habits of kindness even to animals; but this matter must not be carried to excess.

The teaching of humane societies condemning all vivisection is due to the exaggeration of a good sentiment and to ignorance of first principles. For they suppose that sufferings inflicted on brute animals are a violation of their rights. Now we maintain that brute animals have no rights in the true sense of the word. To prove this thesis we must explain what a right is and how men get to have rights. A _right_ is a moral claim to a thing, which claim other persons are obliged to respect. Since every man has a destiny appointed for him by his Creator, and which he is to work out by his own acts, he must have the means given him to do so. For to assign a person a task and not to give him the means of accomplishing it would be absurd. Therefore the Creator wants him to have those means, and forbids every one to deprive him of those means. Here is the foundation of rights. Every man, in virtue of the Creator's will, has certain advantages or claims to advantages assigned him which no other man may infringe. Those advantages and claims constitute his rights, guaranteed him by the Creator; and all other men have the _duty_ imposed on them to respect those rights. Thus rights and duties are seen to be correlative and inseparable; the rights lodged in one man beget duties in other men. The same Creator that assigns rights to one man lays upon all others duties to respect those rights, that thus every free being may have the means of working out its Heaven-appointed destiny.

Thus it is apparent that rights and duties suppose free beings, persons; now an irrational animal is not a person; it is not a free being, having a destiny to work out by its free acts; it is therefore incapable of having duties. Duties are matters of conscience; therefore they cannot belong to the brute animal; for it has no conscience. And, since rights are given to creatures because of the duties incumbent on them, brute animals are incapable of having rights. When a brute animal has served man's purpose, it has reached its destiny.

III. But it is entirely different with man: there is what we may call an infinite distance between man and brute. Every man is created directly for the honor and service not of other men, but of God Himself: by serving God man must work out his own destiny--eternal happiness. In this respect all men are equal, having the same essence or nature and the same destiny. The poor child has as much right to attain eternal happiness as the rich child, the infant as much as the gray-bearded sire. Every one is only at the beginning of an endless existence, of which he is to determine the nature by his own free acts. In this infinite destiny lies the infinite superiority of man over the brute creation.

That all men are equal in their essential rights is the dictate of common-sense and of sound philosophy. This truth may not flatter kings and princes; but it is the charter of human rights, founded deeper and broader in nature and on the Creator's will than any other claim of mankind. As order requires the subordination of lower natures to higher, so it requires equality of essential rights among beings of the same nature. Now all men are of the same nature, hence they have all the same essential rights.

If any people on earth must stand by these principles, certainly the American people must do so; for we have put them as the foundation-stones of our civil liberty. There is more wisdom than many, even of its admirers, imagine in the preamble to our Declaration of Independence; upon it we are to base the most important rights and duties which belong to Jurisprudence. The words of the preamble read as follows: "We hold these truths as self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." I feel convinced, gentlemen, and I will take it for granted henceforth, unless you bring objections to the contrary, that you all agree with me on this important point that _every man has a natural right to his life, a right which all other men are solemnly bound to respect_. It is his chief earthly right. It is called an _inalienable_ right; by which term the fathers of our liberty meant a right which under no circumstances can be lawfully disregarded. A man who takes it upon himself to deprive another of life commits two grievous wrongs: one towards his victim, whose most important right he violates, and one towards God, who has a right to the life and service of His creatures. "Thou shalt not kill" is a precept as deeply engraven on the human heart by reason itself as it was on the stone tables of the Ten Commandments by Revelation.