Athletics, Beneficial and Otherwise
(See page 1609, October Proceedings; and page 1873 November Proceedings)
Rear Admiral A. P. Niblack, U. S. N. (Retired.)—Doctor Carjienter has recently completed four years’ service as Senior Medical Officer at the Naval Academy, where his zeal, intelligence, and progressiveness have resulted in improved supervision both in the gymnasium and in “Misery Hall,” in which sprains, bruises, and soreness are treated by approved methods of physiotherapy. Naturally he did not think that mechanical manipulation, or osteopathy, was needed with “posture”; otherwise they would have it in the gymnasium now, and I would have been saved the unpleasant task of “uplifting and of stepping on toes in the process.
It is said to be always a sign that something is wrong in the Navy when everybody is satisfied, so there is no use mincing words. My friend, Dr. Carpenter, for he is one of the warmest friends I have, says in his criticism of my paper: “Admiral Niblack’s statement that the Medical Department is backward in not recognizing the value of osteopathic practitioners for duty on the staff of the Naval Academy gymnasium is evidently based on his belief that osteopathy gives a ‘peculiar knowledge’ not possessed or required of medical officers… So far as the theory of ‘readjustments’ is concerned, medical officers would probably agree that this ‘peculiar knowledge’ holds no interest for them. On the other hand, some, including the writer, believe that osteopathy has utilized a valuable therapeutic aid which has been neglected.” That is an excellent statement of my position, but what the Medical fraternity in general has neglected is not only deep massage, as intimated by Dr. Carpenter, but that manual dexterity in “readjustments” and that “peculiar knowledge” which it is necessary to go to an osteopath to get in its most efficient form. This is not saying that doctors can not do it, but that they don’t, except with rare exceptions, for I know doctors who can and do.
The ethics of the medical profession, broadly speaking, defines surgery, including fractures, wounds’, etc., as one of the legitimate functions of a doctor, and “prescription” as another. In the one, the doctor performs marvels with his skilful hands, and, in the other, he uses a pen. Besides materia medica to draw upon for prescriptions, he has hot and cold applications, electricity, light, massage, baths, rubbings, and mechanical appliances, and all else that physiotherapy has to offer, but it is always someone else that fills the prescription. That is where the osteopath slips one over on the doctor, for, instead of writing out a prescription, he examines the actual machine, which is dislocated, and by touch, eye, and ear, gets a closer line on the trouble. It is surprising, within the limits of their “peculiar knowledge,” and what they claim they can do, how successful they are. Of course, doctors know the bones, muscles, nerves, tendons, and organs of the human body and their functions quite as thoroughly as the osteopaths, but they have not their manual dexterity and touch, merely through lack of experience. There is no reason why they should not have the experience, but very few go after it. It would be better if doctors were also “osteopaths,” and much better if osteopaths were doctors. In my experience, I have seen patients, aboard ships and in naval hospitals, all bandaged up, in pain, and off duty, for some “displacement” that an osteopath could remedy in five minutes or less, by the watch. Everyone who has looked into the matter, and is not perverted by ethics, knows of so many cases, other than bone displacements, where pressure or congestion has been relieved with startling results. I mention all this to offset Dr. Carpenter’s remark that I “would be the first to recognize the value of physiotherapy if familiar with its applications,” whereas’ it is because I am familiar to a very marked degree with it that I see how inconsistent it is to leave out of physiotherapy, the deep massage, the “manipulation,” and the “bone setting” of the osteopathic practitioner.
I hold no brief for osteopathy, but would welcome anyone who could qualify in this matter of- “posture.” If it is a question of ethics, then I don’t think the Navy ought to be kept out of benefits for that reason. It took us a long time to get dentists in the Navy, but this is not a question of having naval osteopaths, although I, for one, would accept all they can do that is good—or better. To illustrate the workings of ethics, Sir Albert Barker, England’s most famous “bone setter,” to whom doctors in London had freely sent many cases, was knighted in 1921. There was a great stir over it at the time, hut as he could not be made a fellow of the Royal College of Surgeons, they recognized his eminent services by easing him off with a title.
The real question is what has osteopathy got to do with “posture.” Posture, as now taught at the Naval Academy, is too much of a “pose,” which lasts while officers are supposed to be looking. To some it comes natural and easy. To others it is unnatural, owing to previous wrong carriage, to stiffened ligaments, to round shoulders, to bad “poise” of the spinal column, and many other drawbacks which can be corrected by manipulation, and held naturally through corrective exercises. The West Point and Annapolis “military posture” is not natural, but is exaggerated enough to allow for some slump in after life.
An osteopath, the best-known one in New York City, who, some years ago, in a few minutes, smilingly relieved me of intense pain for "lumbago,” from which I had suffered five days on board ship, by snapping a bone back into place, has just written me as follows: “It certainly pleases me to know that someone has taken the stand in regard to posture, which I have advocated for the past fifteen years, having had charge for some years of the Bennett School at Millbrook, N. Y., with from one hundred seventy-five to two hundred girls yearly. I believe that faulty posture, whether dependent upon occupational habit, slump, general carelessness, or displacement of vertebra due to injury, or to improper shoes changing the balance at point of contact with the surface of the earth, is the primary factor in ninety per cent of constitutional diseases, and, as you say in your paper, it is necessary to make the subject assume a posture, not because he is made to, but because it is natural. It is impossible to make corrections of parts of the body affecting posture if he keeps on with his old original slump when sitting down. I have endeavored to create at all times a correct posture in each one subconsciously, and my efforts in every instance have been crowned with success. Posture is a habit—a pleasant habit if you please—and I find that I am having less trouble in maintaining corrections which I have made when the idea becomes fixed in the subject’s mind.”
Correct posture should be insisted upon in recitation rooms, in the mess hall, and in study; but, before all else, bodily corrections should be made to make posture natural. It is to be hoped that the rising generation will thus avert the slump into flabbiness which overtakes many officers, who, through incorrect posture bring on constitutional troubles which shorten their careers. The present Surgeon General of the Navy is one of the most progressive kind, and I am quite sure that in co-operation with the Naval Academy authorities, he will see that no feeling of self-satisfaction will stand in the way of common-sense progress. I am not trying to run anybody’s else business for him, but am merely speaking for the good of the service we all love, without regard to corps, class, or the dead past.
Evidence
(See page 643, April, 1923, Proceedings)
Lieutenant Commander J. H. Taylor, U. S. Navy.—Thoroughly to analyze Commander Parker’s article and set forth at length the misconceptions therein contained would require considerable study and the use of a great many volumes of a law library which are not available to me at sea.
Nevertheless, I believe I can answer some of the issues raised by Commander Parker and of these the general question, “Why is it that these Rules of Evidence are (largely) rules for the exclusion of evidence?”
The answer will not be found in the Court-martial Manual for the reason that no manual of such a size could contain more than a few legal principles for the general guidance of court-martial. These are of themselves often incomplete and inaccurate since they are frequently designed to prevent error in circumstances that might arise and which will actually arise but infrequently. For example, it is seldom required in the civil courts to prove that the one offering documentary evidence is the legal custodian thereof. In order to avoid error in the one case of a hundred where proof might be necessary it is required in all courts-martial. To accept the requirements of the Court-martial Manual as law must, then, be done in an extremely guarded manner.
Nor can the dicta to be found in the cases be accepted as the law. Practically every case in the books contains unofficial utterances' of the judge upon some matter not in issue or relevant to the point being decided, but such dicta is not subject to review by the higher courts and, with all due respect, it is not law. Search the cases and expressions can be found which seem to prove any proposition under the sun when taken alone.
The law will be found in the sum of the cases decided in the courts of last resort upon the point in question. It is necessary to read all the cases, throw out extraneous matter, see what was actually decided upon a material point in issue and from these it may be that the law of the point may be reduced to a comparatively simple statement. Textbook writers have done this work in many branches of the law but their utterances at best are only deductions, in their own words, from the decided cases. Their difficulties are many and their labor is enormous, but in view of these very difficulties is it not easily seen that their statements cannot be relied upon as a full and accurate statement of the law? And if the difficulties of the textbook writer are legion, imagine if you can, the trials that beset an author who must condense the law of evidence into a few pages of the manual.
The specific answer to Commander Parker’s general question is set forth in 22 Corpus Juris 158:
Logic is the controlling force in the law of evidence. An offer by a party to prove a fact in evidence involves an assertion by him that such a relation exists1, in reason, as a matter of logic, between the fact offered and a fact in issue that the existence of the former renders probable or improbable the existence of the latter, and the relation thus asserted is termed relevancy. (Plainer and Plainer, 78 N. Y. 90, 95). It is therefore a basic rule of evidence that whatever facts are logically relevant are legally admissible, (Standard Oil Co. and Van Eiten, 107 U. S. 325.) while facts which are not logically relevant to the issue are not admissible (See cases cited in note 54, 22 Corpus Juris 159); the onus of showing relevancy, intrinsic or in connection with other facts, of a fact offered in evidence, being upon the party offering the evidence. It follows that the rules of evidence are largely those of exclusion * * * *.
The simple answer to the general question is, then, that so much of evidence is admissible that it is easier and simpler to point out those things which, for reasons which may be practical, historical or purely arbitrary, are not admissible.
And the rules of exclusion themselves are, in the main, reasonable rules considering everything. The reasons for them, on final analysis, are convincing in the great majority of cases. Those rules which are based on practical grounds are practical, those based on historical reasons are such as are for the protection of everyone from the hysterics of an upheaval in the political world and even serve to a large extent toward prevention of the resumption of tyranny by those in power, and those rules which seem arbitrary were once reasonable, and are either fundamentally reasonable now or in process of being modified by legislation.
I was extremely fortunate when taking a law course in having for an instructor on the law of evidence Professor Wilson of George Washington University Law School, later of Cornell University. Professor Wilson was not only a profound student of the cases, the generally accepted texts of law (including those of Professor Wigmore whose works are probably the best on the subject) and of legal history, but he possessed an extraordinary faculty for reducing reasons for the rules to simple terms easily understood by the student. Unfortunately my lecture notes are not now available but I am assured that the reasons advanced were, in the main, excellent.
Naturally it is desired to arrive at the truth and it is desired to exclude evidence which may not be the truth. Is there any guarantee that the words of any dying person are the truth? In homicide cases it so often occurred that the victim was the only person, other than the accused, on the scene, so the rule was relaxed at that point. But there was no such pressing necessity in other cases. There were usually other witnesses, or other means of arriving at the truth. And that is the reason for keeping out the unsworn, and too frequently malicious statements, of seriously injured persons. Even at that, involuntary exclamations are admissible. Why? The involuntary exclamation was probably an index to the truth. And under this latter rule (and other similar exceptions) a judge advocate who knows his law of evidence, rather than one who accepts the bold, misleading statements in the manual, can present all the logically relevant evidence to the court.
With regard to evidence of character, if the opinion of the witness is to be taken, just who shall be the witness? Shall the witness be chosen by the accused or by the prosecution? And in either case what kind of a man is the witness that he shall judge? If, however, there can be obtained a statement of what the majority of the community think of the character of the accused is it not more apt to be a fairly accurate estimate than the probably biased opinion of any one of the community? Upon final analysis just what bearing do past acts have upon the probability of a recent act? Would any man of us be content to be tried upon the gabble, guesses, misinformed misconceptions and jealousies of his neighbors? And how many of the ordinary counsel for the accused could bring out the actual truth?
And so long as an informed prosecutor is not too seriously handicapped by the present rules, why should the rules be changed to secure more convictions of the already but little protected enlisted man before General Court-martial? Congress has very recently changed Court-martial procedure in the Army to a degree which makes it extremely difficult to secure convictions in any case. Presentation of a request for mitigation of requirements now in effect for the Navy would doubtless serve only to call attention to the different requirements and bring upon us the same difficulties.