We will say for the information of the Field that we have no copies of the decisions of the courts affecting the rights of Christian Scientists to carry on their work that can be said to be authority such as would be binding upon other courts. No single case against a Scientist has yet reached an appellate, or court of last resort, and it is only the decisions of these courts that become authoritative as precedents.
In Nebraska there was rendered some years since a decision by the Supreme Court of that state which was adverse to Christian Scientists. It arose out of the celebrated Buswell Case; but inasmuch as it was based upon exceptions submitted by the Attorney General of that state, and did not go up on appeal, it amounted to little more than a mere dictum, and can scarcely be regarded as a precedent. It in nowise affected the result of the trial in the lower court, which, as all familiar with the case will remember, was favorable to Mr. Buswell, the Scientist tried.
There have been some convictions of Christian Scientists before police magistrates, but, so far as we are advised, in every case that has been appealed from such decisions, there has been an acquittal in the upper or trial court. These courts, however, not being appellate courts, their decisions are not preserved in such a way as to become precedents. We make this explanation because we receive many inquiries for decisions, the impression seeming to prevail that there have been a great many.
We have from time to time published the results of trials in the lower courts; in fact have published all that have been sent us, with the exception of a case which arose in Washington, D. C., last year, and we publish herewith the decision of the police court in that case. Contrary to the usual custom in the police courts, the decision in this case was preserved, and we have been favored with a copy of it.
The decision fully explains what this case was, and no further explanation on our part seems necessary. The case attracted considerable attention and interest, because it was the first of the kind ever to come up for decision in the District of Columbia. Ex-United States Senator Blair of New Hampshire was of counsel in the case.
Following is the full text of the decision:—
IN THE POLICE COURT OF THE DISTRICT OF COLUMBIA.
Washington, D.C., December 15, 1897. 1 o'clock, P.M.
The United States vs. Sessford.
Present on behalf of the United States, Mr. Baker.
Present on behalf of the defendant, Messrs. Blair and Thom.
OPINION BY JUDGE MILLS.
The Court. Although the court has had ample time to consider this case, and to examine authorities presented by both sides, the very fact of our having had that amount of time has probably been the cause or source of the court's finding itself almost totally unprepared, taken by surprise, owing to the limited time that I have on the bench.
This act to regulate the practice of medicine and surgery, to license physicians and surgeons, and to punish persons violating the provisions thereof in the District of Columbia, is an Act of Congress passed June 3, 1896. The Act itself is one of vast importance to the people of the District, and to persons who have the privilege of practising medicine.
This complaint is brought under Section 13, which provides that:—
"After the passage of this Act, any person practising medicine and surgery or midwifery in the District of Columbia, or who shall publicly profess to do so, without first having obtained a license and registered the same as herein provided, for a violation of any of the provisions of this Act, or any of the rules and regulations made by authority conferred herein, or whose license or registration has been cancelled by order of said Board of Medical Supervisors of the District of Columbia, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished for each offence by a fine of not less than fifty dollars or more than five hundred dollars, or by imprisonment in the District Jail for a period of not less than ten nor more than ninety days, or by such fine and imprisonment.
"It shall be the duty of the United States District Attorney for the District of Columbia to prosecute all violations of the provisions of this Act."
It is not denied, or rather, it is conceded, that this defendant was not such a licensed physician; that she had no certificate and no right to practise medicine. The contention on behalf of the United States is that this defendant was practising medicine without that necessary pre-requisite, the certificate.
The only testimony that we have is that of Dr. Walsh, upon the fact of her practising; and that is a statement made by Dr. Walsh, which was not controverted, that when he called about the time of the death of the child, the defendant admitted that she was in sole charge of the invalid, or had been, and said that she was a Christian Scientist.
This act is in the nature of a penal act, and this is a quasi-criminal matter. The statute will have to be construed as all other statutes are having relation to criminal responsibility or liability. They must be construed in accordance with the plain meaning of the language of the act.
I have here Bishop on Statutory Crimes, 2nd edition, paragraph 190 (e):—
"A penal statute cannot be extended by implication or construction to cases within the mischief, if they are not at the same time within the terms, of the act, fairly and reasonably interpreted."
Paragraph 193 reads as follows:—
"The law delights in the life, liberty, and happiness of the subject; consequently it deems statutes which deprive him of these, or of his property, however necessary they may be, in a sense odious. For which and for kindred reasons, as well as because every man should be able to know certainly when he is guilty of crime, statutes which subject one to a punishment or penalty, or to forfeiture, or a summary process calculated to take away his opportunity of making a full defence, or in any way deprive him of his liberty, are to be construed strictly. And the degree of strictness will depend somewhat on the severity of the punishment they inflict.
I find in paragraph 193 a note to which there are several references appended:—
"The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the law-maker must govern in the construction of penal as well as other statutes. This is true. But this is not a new, independent rule, which subverts the old. It is a modification of the ancient maxim, and amounts to this, that, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature has to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous indeed to carry the principle, that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases."
Marshall, C. J., in United States vs. Wiltberger, 5 Wheat. 76, 95, 96. "When the law imposes a punishment which acts upon the offender alone, and not as a reparation to the party injured, and where it is entirely within the discretion of the lawgiver, it will not be presumed that he intended it should extend further than is expressed; and humanity would require that it should be so limited in the construction."
Johnson, J., in The State vs. Stephenson, 2 Bailey, 334, 335. And see Commonwealth vs. Loring, 8 Pick. 370; United States vs. Wigglesworth, 2 Story, 369; Strong vs. Stebbins, 5 Cow. 210; Verona Central Cheese Factory vs. Murtaugh, 4 Lans. 17.
I find in the American Encyclopedia of Law, under the caption "Criminal Negligence," this statement:—
"Every person who does an unlawful act carelessly or negligently, or a lawful act in a grossly careless and negligent manner, or who, through wanton or reckless conduct or wilful misconduct; or neglect, or gross want of skill and attention, or through wilful omission or neglect of duty, endangers, or causes to be endangered, the life or safety of another, is guilty of a crime."
And that crime is defined to be manslaughter. There are very many illustrations and precedents where persons have been convicted for recklessly and carelessly driving, so as to cause death, and many kindred evidences of negligence.
So that the Court has arrived at this conclusion: That although there is evidence here of gross neglect, and such as might be indictable under the common law, and while there may be some offence for which the laws of the United States would make this defendant responsible, in the judgment of the court it does not come within the purview of this statute, because only those things that are mentioned here and that are prohibited, are the ones that we have any right to conclude that Congress had in its mind at the time of passing this act. Therefore I think it is the duty of the court to dismiss this case against this defendant.
While, as we have said, this decision is not of itself authority for other courts (only so far as they may see fit to respect it), yet it is valuable because of the soundness of its deductions; these deductions being based upon standard text-books of criminal law and decisions of courts of last resort. These authorities will be of aid to counsel who may be called upon to appear in the courts for Christian Scientists. Until a better conception of what Christian Science is becomes more prevalent, we suppose Christian Scientists may occasionally be brought before the courts charged with "practising medicine without license," as has already been done in some cases.
We may be pardoned for saying that in the above case, we suppose, the court thought there was evidence of gross neglect because a regular medical practitioner had not been called. If the child had passed away under the treatment of a licensed physician, we assume the court would have found no evidence of neglect. This is one of those strange inconsistencies that we may sometimes expect until the courts, as a whole, get a more enlightened understanding of Christian Science. Its failures are so comparatively rare, that it were great injustice to assume that because there was a failure in this particular case, there was therefore gross neglect. We say this without pretending to be familiar with the specific facts in this case. We speak rather on general principles.
It seems to us to be approaching hard upon the ridiculous to prosecute a Christian Scientist for "practising medicine without a license," when medicine is the last thing in the world a Christian Scientist could be induced to practise. Medicine is expressly prohibited in all Christian Science practice. This of itself will be a sufficient defence to all such prosecutions in every court that is free from bias and before every fair-minded jury. It has already proved sufficient, as we have said, in all other than some of the police courts.
Should we receive any more decisions that might be of aid to the Field we shall publish them in the Journal. Meantime we trust we shall be exempt from frequent calls for decisions which we do not possess.
