Ethics and Jurisprudence 
for 
Dentists 
BY 
EDMUND NOYES, D.D.S., F.A.C.D. 
Professor of Ethics and Jurisprudence 
in Northwestern University 
Dental School 
Printed and Bound by 
W. B. CONKEY COMPANY 
Chicago 
1923 Copyright, 1923 
BY 
EDMUND NOYES, D.D.S., F.A.C.D. PREFACE. 
The writer of this book makes but little claim to originality 
for most of its contents. The "Professional Ethics," the dis- 
cussion of patents, and some small portions in other parts of 
the book have been thought out and written without much con- 
scious indebtedness to other writings. The portion on the 
general subject of ethics is derived chiefly from the "System 
of Ethics" by Friedrich Paulsen, translated by Frank Thilly, 
Professor of Philosophy in Cornell University. 
The "Jurisprudence" has been derived chiefly from the 
"Dental Jurisprudence" by William E. Mikell, Professor of Law 
in the University of Pennsylvania, with some help also from 
the "Dental Jurisprudence" by Elmer D. Brothers, Professor 
of Medical and Dental Jurisprudence in the University of Illi- 
nois, and from the "Dental Jurisprudence" by William F. Reh- 
fuss, D.D.S. 
It is possible some may think that a disproportionate amount 
of space has been given to the subject of general ethics. It is 
the writer's belief, however, that it is worth while for young 
men preparing themselves for any profession or any business 
to give some time to a study of the fundamental principles and 
sanctions of morality, and the powers and dispositions of mind 
and heart by which the conduct of life should be determined 
and the rules of duty should be obeyed; in other words, the 
virtues and duties which characterize good men. Professional 
ethics can have little authority and command little respect unless 
it is understood to rest upon the solid foundation of the general 
principles of morality. PREFACE TO SECOND EDITION. 
The need for a second edition has given opportunity to make 
changes and additions in many places. 
A chapter on specialists has been added to the professional 
ethics. "The Principles of Medical Ethics" has been reprinted 
from a new edition just issued by the American Medical Asso- 
ciation, by whom consent has been renewed for the reprinting of 
it in full. 
In the jurisprudence I have made free use of the articles 
entitled "Law for the Dentist," by Leslie Childs, which appeared 
in successive numbers of the Dental Cosmos. This is done with 
the consent of Mr. Childs and the Dental Cosmos. 
September, 1923. CONTENTS 
PART FIRST. 
ETHICS. 
CHAPTER I. 
PAGE 
The Moral Ideal..., 5 
CHAPTER II. 
Moral Evolution, Duty and Conscience ( 21 
CHAPTER III. 
Egoism and Altruism, Virtue and Happiness, Morality and Religion, Freedom of 
the Will 37 
CHAPTER IV. 
Doctrine of Virtues and Duties, Self-Control, Temperance, Courage 49 
CHAPTER V. 
The Bodily Life-Food . and. Drink-Habitation and Clothing-Rest and Recrea- 
tion. The Economic Life-Profession or Vocation-Frugality and Extrava- 
gance ,................................ 63 
CHAPTER VI. 
The Spiritual Life and Culture, Science and Art, Honor, Self-Knowledge 81 
CHAPTER VII. 
Compassion and Benevolence-Justice-Magnanimity 92 
CHAPTER VIII. 
Love of Neighbor-Limitations-Charity-Selfishness-Love 101 
CHAPTER IX. 
Veracity-Lie of Necessity-Promulgate the Truth-Martyrdom for Truth 106 
PART SECOND. 
PROFESSIONAL ETHICS. 
CHAPTER X. 
Ethics of Business-of Employment-of Professions 118 
CHAPTER XI. 
Professional Advertising-Winning a Practice-Duties to Patients 124 
CHAPTER XII. 
The Duty of the Dentist to Other Dentists and to the Dental Profession- 
Papers Read at Society Meetings-Fees 130 
CHAPTER XIII. 
Specialists 138 
CHAPTER XIV. 
Commissions and Split Fees-Codes of Ethics 144 
CHAPTER XV. 
Patents 153 
CHAPTER XVI. 
Principles of Medical Ethics of the American Medical Association 157 
PART THIRD. 
DENTAL JURISPRUDENCE. 
CHAPTER XVII. 
The Status of the Dentist-The Right to Practice-Power of the State to Regulate 
Practice-Relation Between Dentist and Patient 169 
CHAPTER XVIII. 
Liability for Compensation-Wives, Minors, Parents, Guardians, etc.-For Breach 
of Contract 194 
CHAPTER XIX. 
Liability to Patient for Malpractice-For Infecting a Patient-;For Operating 
Without Consent-Damages-Statute of Limitations-Definition of Mal- 
practice 210 
CHAPTER XX. 
Liability of the Dentist to the State-Liability for Illegal Practice-The Dentist 
as a Witness-Privileged Communications-Expert Testimony-Identifying the 
Dead-Jury Duty 227 
CHAPTER XXI. 
Inclusion of Books in Policy of Insurance 242 ETHICS. 
CHAPTER I. 
THE MORAL IDEAL. 
The moral obligations and duties which rest upon a man, 
and which he is expected to assume and acknowledge by reason 
of his occupation, are as important a part of his education and 
as worthy of his earnest attention and effort as the acquisition 
of his profession. 
Dentistry has developed into a profession independently of 
the medical profession-that is, by teaching in its own schools 
and conferring its own degree instead of teaching in the medical 
schools and practicing under the medical degree, and this has 
resulted in a lamentably wide separation of the two professions, 
which ought to maintain the closest relations and coordination in 
practice. Important compensation has been found in the greater 
technical and operative skill acquired in the dental schools than 
would have been likely to happen if the teaching of dentistry had 
been under the control of the medical schools, and mechanical 
skill and ingenuity put American dentistry in the leadership of the 
world for a long time. For many years also American dentists 
held a leading and influential position in most of the large cities of 
Europe. 
A close causative relation between mouth infections and very 
numerous and sometimes fatal infections in other parts of the 
body, known empirically and more or less acted upon for fifty 
years past, has in later years been demonstrated scientifically, and 
what is even more important, has commanded universal attention 
in both the medical and dental professions, and has forced a 
closer approach of the two professions than ever before. Neither 
profession has been found prepared for this, though a larger 
proportion of dentists have found themselves unable to meet 
physicians upon equal terms of knowledge and understanding of 6 
SYSTEM OF ETHICS. 
the cases that require consultation and cooperative treatment by 
both. This closer approach serves to emphasize the necessity 
(always acknowledged) that both professions must conform to the 
same ethical standards. As a matter of fact the ethical code of 
the dental profession has its source, its inspiration, and its authority 
from that of the medical profession, and the "Principles of Medical 
Ethics" as acknowledged and promulgated by the American Med- 
ical Association are of equal force and obligation for the dental 
profession, with a very few exceptions, perhaps, of matters which 
relate to things not included in dental practice, and one or two in 
which dentists are not accustomed to apply the medical rules with 
strictness. 
It is to the medical profession therefore that we must look 
for the origin of our professional ethics. Part of an editorial 
in the Chicago Tribune for Oct. 18, 1904, will give us a good 
introduction. 
"the medical ethical code." 
"Doctors are continually heard to say: 'No, I can't do that. 
It's not professional.' It is comparatively seldom that such an 
insistence on a professional code of ethics is noticed in the con- 
versation of lawyers or of engineers or of other followers of 
specialized callings. 
"What is the medical ethical code? What are the principles 
which a profession, more profuse in its disinterested charities 
than any other profession in the world, has established for its 
guidance ? 
"It was about 2,300 years ago that the practicers of the art 
of healing began to take an oath emphasizing the responsibilities 
which the nobility and holiness of that art imposed upon them. 
Hippocrates, forever to be revered, gave the oath his name. When 
a Greek physician took the Hippocratic oath and when the graduate 
of a modern medical school takes it the act is not only one of 
obligation for himself but of recognition of a great benefactor 
of mankind. 
"Here follows the Hippocratic oath in its essential parts: 
" 'I swear by Apollo the physician and by 2Esculapius that 
I will reckon him who taught me this art equally dear to me as THE MORAL IDEAL. 
7 
my parents, to share my substance with him and relieve his neces- 
sities if required, to look on his offspring in the same footing as 
my brothers, and to teach them this art if they shall wish to 
learn it. I will follow the system of regimen which, according 
to my judgment, I consider for the benefit of my patients and 
abstain from whatever is deleterious. I will give no deadly medi- 
cine to any one if asked nor suggest any such counsel. With 
purity and with holiness I will pass my life and practice my art. 
Into whatever houses I enter I will go into them for the benefit 
of the sick and will abstain from every voluntary act of mischief 
and corruption. Whatever in connection with my professional 
practice or not in connection with it, I hear or see in the life of 
men which ought not to be spoken of abroad, I will not divulge, 
as reckoning that all such should be kept secret.' 
"No other secular profession has ever reached such a cor- 
porate consciousness of duties which it corporately owes to the 
rest of the world. The Hippocratic oath assumed that simply 
because he has learned the art of restoring the sick to health he 
has passed into a realm in which the rules of personal selfishness 
are immediately abridged, if not expunged, and in which a new 
and special attitude must be taken. 
"In modern times the Hippocratic oath has been adapted and 
expanded till now it appears, as far as Chicago is concerned, in 
a sixteen page booklet, entitled 'Principles of Medical Ethics of 
the American Medical Association.' The chapters of this booklet 
cover, down to the smallest details, such subjects as 'The Duties 
of Physicians to Their Patients,' 'The Duties of Physicians to 
Each Other,' and 'The Duties of the Profession to the Public.' " 
Ethics and morality are synonymous terms and may be de- 
fined, comprehensively, as "The science that treats of human 
actions and mental affections considered as virtuous or vicious, 
right or wrong," and also the application of this science to the 
conduct of life; in other words, the art of right living. In these 
matters, as in most others, the art preceded the science, but never- 
theless the chief purpose of understanding the science is to enable 
us to perfect the art. 
Some have tried to distinguish between these words and to 
call ethics a science and morality an art. I prefer to broaden 8 
SYSTEM OF ETHICS. 
the significance of both words, and to say that ethics, besides being 
the science of moral values includes also the application of its 
facts and theories to the conduct of life, and that we may have 
a theory as well as a practice of morality, therefore that we may 
have ethical practice as well as ethical science and moral theory 
as well as moral conduct. 
Professional ethics considers the character and conduct of 
professional people with respect to their moral qualities exhibited 
or exercised in the practice of their profession. The code of 
ethics is not, as some have seemed to suppose, a set of rules and 
prescribed modes of procedure adopted and promulgated with sole 
reference to the purely selfish interests of the profession, but it 
represents the discovery and application to professional conduct 
of the fundamental rules of morality. 
It is unreasonable to expect that a man's professional con- 
duct will be good if his character and conduct in other respects 
are bad. We must have a general soundness of character and 
correctness of life if we expect to stand the tests of time and of 
special temptations professionally. It is proper, therefore, to con- 
sider, as concisely and briefly as we can, some of the more im- 
portant principles and requirements of ethics before seeking to 
discover their application to professional conduct. 
Anything I can say to you in the time allotted must be entirely 
inadequate and unsatisfactory, considered as an exposition of the 
great science and art of morality. If I can make it of some 
little value considered as a foundation or authority, and intro- 
duction to professional ethics, I will be satisfied. 
The object of morality is human welfare, and the criterion 
of character and conduct is the influence for good or evil resulting 
therefrom. The one whose character produces evil results to 
himself and others is bad, and acts whose natural and expected 
results are harmful are evil acts. Conduct resulting beneficially 
is good, and the best character and conduct is that which produces 
the greatest good of the highest type and for the longest time. 
The most fundamental and important question or problem 
of ethics relates to the nature of the moral ideal, the ultimate or 
highest good, the object of life the accomplishment of which may 
be considered a sufficient end or result in itself and not merely THE MORAL IDEAL. 
9 
as a means to some other and more satisfactory attainment. It 
may as well be acknowledged at once that it is only the nature 
and characteristics of the moral ideal that we may hope to dis- 
cover, and not its entire scope and content; for life and the char- 
acter and conduct which manifest its activities, is progressive and 
what its final and perfected results may be, no man can now fore- 
see, if, indeed, the progress and development of an immortal spirit 
shall ever cease. 
The best brief statement I have seen is that the moral ideal 
for man consists in the full development of his life-not the life 
of one man, but the lives of all men; or rather, perhaps, the moral 
ideal for any one man is the perfect development and exercise 
of his own life, and the largest help he may be able to give to 
promote the same end for all others within the reach of his per- 
sonal influence. This statement or definition must be taken with 
due regard for proportionate and relative values, a clear percep- 
tion that the soul is better than the body, and the growth and use 
of the intellectual, moral, and spiritual nature is a higher good 
than the development of the body and the performance of its 
functions or indulgence of its desires. 
As a practical statement of the highest ideal of good, this is 
necessarily vague, and must mean something different for each 
individual life, because each has its personal inheritance of powers 
and possibilities and its own environment and influences which help 
or hinder its unfolding, and all will differ from and come short 
of an ideally perfect life. Notwithstanding its vagueness, per- 
haps, even better because of it, this ideal of a life perfectly 
developed, and normally exercised, and influencing others for 
good to the extent of its opportunity, should be pictured in the 
imagination of every boy and girl, every man and woman-a con- 
stantly changing, ever expanding goal, the object of endeavor and 
emulation. 
Something needs to be said in this connection about the con- 
tention of many of the ethical philosophers that the highest good 
consists in the feelings of pleasure that life procures. It is true 
that pleasure is the normal and usual accompaniment of healthy 
life and right activity of body or mind. It may even be considered 
one of the important signs or indications by which we determine 10 
SYSTEM OF ETHICS. 
that welfare is being accomplished, but it is so far from being 
the only criterion of welfare and the exclusive object of pursuit 
that by universal consent the "pleasure seekers" are classed as bad 
and not good. Pleasure should be subordinated to personal wel- 
fare, to the welfare of others, and to the law of right. 
It may be urged that the phrase "pleasure seekers" is almost 
exclusively applied to those who spend their lives in sensual indul- 
gences, and that those who restrict such gratifications still have 
pleasure as their object, though of a higher and nobler, or at least, 
of a different sort. This may be a very plausible abstraction to 
argue about, but practically all good people must often deny or 
restrict the indulgence of pleasures of all sorts without any con- 
scious expectation that better pleasures, either near or remote, 
will be substituted for them. All we can say is that they are 
denied to us, or we deny them to ourselves, for the sake of welfare 
or a better life. Notwithstanding these limitations and restrictions, 
it is proper to consider pleasure as an important part of the ideal 
of good. We may say that the moral ideal has two elements. 
The primary one may be characterized as worth, or welfare, which 
we have described as consisting in the full development and exer- 
cise of human life. The secondary element is pleasure. To these 
we might add a third element, beauty, which needs no other justi- 
fication than the pleasure of beholding it and the indication of 
perfection it implies. All these expressions-welfare, pleasure, 
beauty, are somewhat vague because of the nature of the things. 
Because a human value, experience or pleasure, cannot be exactly 
weighed or measured. Also because the development of life and 
the enlargement of its activities brings into view a wider range 
of its possible activities and attainments, so that the moral ideal 
of attainable perfection is larger and higher for some men than 
others, and seems greater and better to the apprehension of a 
man or a people as development progresses, and we believe that 
the evolution or development of man, either in his individual char- 
acter or in society, is yet very far from being completed. 
There have been many, both of philosophers and theologians, 
who have taken the opposite view, namely, that the human race 
is and has been degenerating instead of developing. Probably this 
view was almost universal among the early Christians. The basis THE MORAL IDEAL. 
11 
of it is a belief that originally man fell from a state of moral per- 
fection, since which time he has been tending downward toward 
final destruction; salvation from evil character or evil destiny in 
this world or the next having reference to the rescue of individuals, 
whether in small or great numbers, from the general ruin. 
I believe that most thoughtful people, whether scientists or 
theologians, now take a different view, one in general accord with 
the theory of development or evolution, or at least a belief that 
there have been introduced into the world successively higher and 
more complicated forms of life, and that the evolution or advance- 
ment has been characteristic of moral and spiritual life as well as 
of physical life. 
I prefer, myself, to interpret the story of the Garden of 
Eden as an allegory intended to represent the awakening of man 
to a consciousness of God, of spiritual life and moral responsibility. 
Previous to such an awakening the human race was innocent, 
just as we suppose the lower animals to be, because unconscious 
of moral quality in conduct. 
It must be noticed particularly that this very doctrine of evo- 
lution has a double aspect, and gives the pessimists (if we may so 
call those who believe in the generally increasing wickedness of 
the human race and their final destruction as a punishment there- 
for) very substantial ground to stand upon, for the plasticity of 
life which makes possible a gradual evolution and increasing per- 
fection from generation to generation necessarily implies also the 
possibility, and what is easily observable in the human race, the 
very great danger of degeneracy. There seems no reason to doubt 
that in the long history of life in the world there have been species 
that have remained stationary or have degenerated instead of con- 
tributing anything toward the advancing evolution of life into 
higher forms, and it is a matter for easy enough observation that 
multitudes of individuals, many families, and possibly some nations 
of men have degenerated to final extinction. History records both 
the rise and the decline of dynasties, reigning families and nations. 
Whether the nation has yet appeared that will be found worthy 
to carry forward continually the development of humanity, or 
whether it will have to be done by some new nation formed out 
of such remnants of the old nations as prove worthy of preserva- 12 
SYSTEM OF ETHICS. 
tion, we can only conjecture and hope. How often the sad story 
of decline and destruction following upon development and suc- 
cess must be repeated in the future history of nations or families, 
no man is wise enough to tell. The hope of the world lies in the 
individuals, the families, the nations and races of men that have 
and will continue to have sufficient moral vigor and strenuousness 
of purpose to carry forward a little the evolution of individual, 
and social, and national life, and at last, of all human life-toward 
a more harmonious and perfect development. Men are not passive 
in the hands of fate, or providence, or circumstances. They either 
grow better or worse by the effects of their own choices and 
activities, and I need only to suggest the supreme importance to 
each individual that he be morally and spiritually progressive in- 
stead of a degenerate. 
What the moral ideal may signify to any particular individual 
depends upon what his understanding and imagination may con- 
ceive of the perfections, the knowledge, the power and influence, 
and variety of activities, and duration of existence which a human 
being may attain. 
The previous history of our morality and theory of life which 
have been and still continue most influential in the life of the 
Western nations, divides itself into three periods: 
*"The first embraces the development of the ancient world 
to its conversion; the second, the Christian development with its 
two halves, the Christianity of the Old World, and medieval Chris- 
tianity ; the third, the development of modern times which has not 
yet come to an end." The best ethical philosophy of the ancient 
world is that of the Greeks, which has also, of all the ancient 
systems, most influenced the thoughts of the modern western 
nations. 
It is impossible for us to take time to give an account of 
Greek ethics and I can only quote a few sentences from Paulsen's 
summary of its main features. 
t"It agrees with the popular Greek view that the highest good 
consists in the perfection of man as a natural being. Special 
stress is laid upon the development of the intellectual side. Even 
•(Paulsen, page 33.) 
t( System of Ethics, page 58.) THE MORAL IDEAL. 
13 
the popular conception recognizes the great importance of the 
intellect for human perfection." 
"The philosophers, the specific types of the Greek people, 
as the prophets are of the Israelites, go still further and make 
reason the root and crown of all human excellence. For them 
wisdom or philosophy is both the means and the content of 
eudoemonia-the former, in so far as it acquaints us with the 
highest good and regulates practical life to the end of realizing it- 
the latter, in so far as philosophy, or the scientific contemplation 
of the universe, is the highest, freest function of human nature, 
one that is desired solely for its own sake. It is said that 
Anaxagoras, being once asked for what end he had been born, 
answered: 'For the contemplation of the sun and moon and 
heaven, and the order governing the entire universe.' This is 
really the answer which the entire Greek philosophy, and the 
Greek mind in general, gives to the question." 
"Modern scientific research is, as compared with Greek 
philosophy, more like labor, often like petty and arduous labor. 
The physical or historical investigator of our time employs an 
enormous apparatus of learning and technical skill, collections and 
instruments, in order to throw light upon some obscure nook of 
reality. The result of his work may at some time, in some con- 
nection or other, assist us somewhat in understanding reality." 
But no one now expects to be able to understand all of reality 
or fully to understand the great order of the universe. 
"The Greek philosophers, on the other hand, were happy in 
the belief that it was possible, and that each one of them would 
be able to unravel the ultimate mysteries of the universe by pure 
contemplation. Even Aristotle, the great observer, declares that 
of all activities, scientific investigation is in least need of external 
aids, so convinced is he that the apparatus of research is a purely 
secondary affair." 
On its practical side the ethics and philosophy of the Greeks 
made much of physical perfection and the pleasures of healthy 
bodily activities, and of the duties of men to society and to the 
state. Their games, sports, athletic competitions, etc., had both 
these ends in view, namely, to develop the full capacity of bodily 
powers for the sake of the zest and pleasure of living, and also 14 
SYSTEM OF ETHICS. 
to produce a strong and hardy race of men for the defence of 
the state in war. Their inculcation of the virtues of courage, 
temperance, self-control of bodily impulses and desires, and justice 
in social intercourse and in the administration of law were for 
the same double purpose. Their ideals of life and standards of 
conduct had reference to the present earthly life. While the 
Greeks were not destitute of the hope and expectation of im- 
mortality, it would seem that their belief in a future life had 
very little influence upon either the ideals or the conduct of the 
present life. 
Christianity turned the thoughts and desires of men toward 
the immortal and spiritual life, whose transcendent value and 
infinite duration made the bodily and earthly life seem insig- 
nificant and worthless by comparison, and whose rewards and 
punishments became the strongest motives and sanctions for both 
the ideals and the conduct of the earthly life. The persecutions, 
the poverty, and often the almost incredible hardships which the 
early Christians endured, together with the belief, then probably 
universal among the Christians, that this wicked world was doomed 
to very speedy destruction, tended still further to a glorification 
of the heavenly life and a contemptuous disregard of the present, 
which, indeed, for many of them held very little of comfort or 
pleasure. There is little room to doubt that the early Christians 
greatly undervalued the earthly life, and as a consequence gave 
too little heed to some of its duties and opportunities as well as 
its perfections and pleasures. 
The various orders of monks, nuns, hermits, and other 
ascetics, carried these ideas still further and believed that the 
physical and earthly life is antagonistic and likely to be destruc- 
tive of spiritual life unless constantly suppressed and mortified. 
These various orders, consecrated to chastity, poverty, and 
obedience to the authority of the church as expressed in the com- 
mands of the priests, bishops, and other officers, and finally of 
the pope, probably served a useful purpose as a protest against 
the prevalent self-indulgence, licentiousness and brutality of the 
times, by showing, in living examples, the capacity of man to put 
his physical life and bodily impulses under a rigid discipline and 
control. The ascetics went much further than this and attempted THE MORAL IDEAL. 
15 
and believed salutary, not merely self-control, and the moderate 
and temperate satisfaction of natural impulses and desires, but 
their extinction. They appeared to think pain, hunger, thirst, cold, 
heat, ridicule, contumely, persecution-everything disagreeable, to 
be good for a man's soul, in proportion to their severity, so they 
tortured themselves, and sought to have the food and drink 
they must take to sustain life as unpalatable and disagreeable 
as possible, and generally "mortified" and punished themselves 
in every way they could think of. It seems very strange to 
us that they should have thought it a deadly sin to commit sui- 
cide, but meritorious in the highest degree to kill themselves by 
inches. 
Not all of the celibate orders were to be characterized in this 
way. Much the larger number were too actively engaged in use- 
ful services of various sorts to carry self-punishment to any such 
extremes, and it was these, whose lives of self-denial and unselfish 
ministry to the sinful and unfortunate were constantly under 
observation of the communities in which they lived, who exer- 
cised a salutary influence upon the world, while the more extreme 
of the self-torturers were for the most part secluded from public 
observation in monasteries and convents and their harmful in- 
fluence fortunately lessened thereby. 
Modern ethics and modern Christianity appreciate both 
earthly and heavenly, bodily and spiritual values, regarding the 
physical life as the foundation and the instrument for the use 
and manifestation of the intellectual and spiritual life during the 
period of earthly existence. That the physical life should be sub- 
ordinate and subservient to the intellectual and spiritual life is 
normal for man, and therefore conducive to the welfare of both 
body and soul, while a reversal of this order, making the soul 
servant of the body first brutalizes, and finally destroys both body 
and soul. Modern Christianity gives constantly increasing atten- 
tion and effort to procure a complete and symmetrical develop- 
ment and sound health of physical life, always having the pur- 
pose in view that intellectual and spiritual life are thereby promoted 
and have a better instrument for their expression. Life, whether 
physical or spiritual, is always confronted by dangers as well as 
opportunities, and some men are so well content with the perfec- 
2-Oct. 23 16 
SYSTEM OF ETHICS. 
tion of physical life that they neglect and ignore the opportunity 
it offers them to cultivate the nobler elements of character, and 
so degenerate instead of develop, from the very summit of physical 
perfection, which offers them the opportunity and incentive for 
progressive development of higher and spiritual powers. 
Paulsen says (page 157). "Three great truths Christianity 
has engraven upon the hearts of men. 
"The first is: Suffering is an essential phase of human life. 
The Greeks were familiar with suffering but only as a fact which 
ought not to be. * * * Christianity has taught us to appre- 
ciate suffering; suffering is not merely a brutal fact, but essential 
to the perfect development of the inner man; suffering withdraws 
the soul from too complete devotion to the temporal and perishable; 
it is the antidote to vanity and the love of show; it is, in Christian 
phrase, the great means of education by which God turns our 
hearts from the earthly and temporal upwards, to the eternal, 
to Himself. And so suffering leads to inner peace." * * * 
"The second great truth which Christianity has impressed 
upon humanity is this: Sin and guilt are essential phases of human 
life. This truth, too, the Greeks did not see, or at least not in its 
entire force. * * * For Christianity, it is the most serious and 
the most awful truth that the inclination to evil is deeply rooted 
in the essence of the natural man. * * * It is an undoubted 
truth that human nature contains, besides beautiful and good 
capacities and impulses, inclinations which justify the harsh re- 
mark that man is the wicked animal. * * * The ancients were 
not conscious of the awfulness of the thing; it did not seem to 
be incompatible with their demands upon human nature. Chris- 
tianity has raised the standard; it measures man by the 
justice and holiness of God, which have become incarnate in 
Jesus. * * * It is impossible for us to accept evil as com- 
placently as did the Greeks." * * * 
"The third great truth which Christianity has impressed upon 
us is: The world lives by the vicarious death of the just and 
innocent. Whatever system-loving theology may have made of 
it, it remains the profoundest philosophical-historical truth. The 
nations owe their existence to the willingness of the best and the 
most unselfish, the strongest and the purest, to offer themselves THE MORAL IDEAL. 
17 
for sacrifice. Whatever humanity possesses of the highest good, 
has been achieved by such men, and their reward has been mis- 
understanding, contempt, exile, and death." * * * 
"Joined with these three elements is a fourth: the longing 
for the transcendent. Antiquity was satisfied with the earth; 
the modern era has never been wholly free from the feeling that 
the given (present) reality is inadequate. Something of the mood 
which Christianity introduced into the Occident-the feeling that 
the real home of the soul is not on earth, that this life is a 
pilgrimage in a foreign land-constantly confronts us in the poetry 
and in the life of the modern age, and not only among those who 
accept the teachings of primitive Christianity, but also among the 
children of the world. * * * After all this we may say: the 
mixture, antagonism, and reconciliation of Christian and Greek 
elements is characteristic of the modern conception of life and 
the world. There are times when the former, and there are times 
when the latter preponderate. * * * Indeed, if man were a 
purely logical being, then he would have to draw the line sharply 
between these extremes; the affirmation and the negation of this 
earthly life, Hellenic love of life and Christian yearning for de- 
liverance from all that is transitory, would be regarded by him 
as contradictory opposites, between which there can be no middle 
ground. But man is not mere intelligence, his inner life is not 
a logical mechanism which rejects everything contradictory; he 
is also and primarily a willing and feeling being, a being that 
experiences pleasure and pain, hope and fear, love and hate, 
admiration and contempt. The judgments, too, which he pro- 
nounces as such a being, he endeavors to comprehend into a sys- 
tem; thus arise the different conceptions of life, and the interpre- 
tations of the world based upon them, the religious systems. The 
greatest opposition which exists between them is that obtaining 
between culture-religions and world-affirming religions, and reli- 
gions of redemption. But extremes do not exclude each other 
here as in scientific systems. * * * The lines are not so 
sharply drawn, there is more inconsistency, mixture, approxima- 
tion,-nay, these are in a certain sense natural and neces- 
sary." * * * 
"In conclusion, let me say a word concerning an objective 18 
SYSTEM OF ETHICS. 
approximation, which becomes apparent when we compare the 
two types with a third, to which they are both opposed." 
"We may distinguish between three conceptions of a good 
life, and accordingly between three forms of conduct. The first 
seeks the good in sensuous enjoyment; the second finds it in the 
exercise of human spiritual powers in a varied civilization; the 
third, at last, transcends the earth and discovers the goal of life 
in the blessedness of the hereafter, which is here enjoyed in antici- 
pation. The first view is, according to the Greek belief, the ideal 
of the Asiatic barbarians; the second, that of the Greeks; the third, 
that of the Christians." 
"It is plain that the sec6nd and third views make common 
cause against the first. The rule of reason, the limitation and 
discipline of the sensuous desires, is demanded by both as the 
precondition of perfection. So far as that goes, an ascetic element 
is by no means wanting even in Greek morality; it is strongly 
enough emphasized by Plato, the Stoics, and still more by the 
later philosophers. Indeed the word "Asceticism," is derived 
from the Greek language,-it signifies, first of all, the discipline 
of the animal nature, which was practiced in the gymnasia, and 
also that of the inner life, which was practiced in the philosopher- 
schools. * * * Of course, Christianity, with its demand of 
self-denial and holiness, goes much further than Greek asceticism, 
which remained more or less a form of self-preservation; the 
development and exercise of the spiritual powers in philosophy 
and science formed the positive content of life, for the sake of 
which the discipline of the senses was demanded." 
"On the other hand, however, we find attempts at a positive 
treatment of the mundane world in Christianity; among them for 
example, the government of human life according to the principle 
of brotherly love, the perfection of a kingdom of God on earth. 
The love of neighbor becomes a definite and tangible thing only 
in case an earthly goal is presupposed, which it is the function of 
love to assist in attaining." 
It seems to me this is a mistaken limitation, for it is hard to 
see why it is not just as much the function of the love of neighbor 
to assist in attaining the goal of life in the blessedness of the 
hereafter as in the perfection of the earthly life. THE MORAL IDEAL. 
19 
Perhaps Paulsen is too much inclined to regard these three 
ideals of life as antagonistic and exclusive of each other. They 
are rather successive developments or enlargements of life, and 
as the Greek ideal did not call for the extinction of the physical 
and sensuous life, but only for its discipline and subordination to 
a better use and expression of life, so the Christian ideal does 
not call for the extinction of either the physical or the intellectual 
life, but only for the discipline and subordination of both to a 
better use of life in a disinterested service of humanity, with a 
perfected moral and spiritual life in both this world and the next as 
the ultimate object in view. As a matter of fact, established by 
observation and experience, such a discipline and subordination of 
the lower powers of life for the benefit of the higher, is good for 
them. The discipline of the physical life and sensuous pleasures 
by the Greeks resulted in a greater zest for sensuous pleasures, a 
better physical development for endurance and service and the 
preservation of health and life to a greater age than was accom- 
plished by the "outside barbarians" who were supposed to have 
no better object in life than physical perfections and pleasures. 
In like manner, the subordination and discipline of the intellectual 
powers and the pursuits of science, philosophy and art, for the 
better Christian ideals of service to moral and spiritual ideals and 
the hopes for immortality, have helped to develop an art, a science, 
and a philosophy, beneficent in their results and widespread and 
inclusive as to the numbers benefited, in comparison to which the 
best attainments of Greek art, science, and philosophy, were no 
more than a prophecy and a hope. 
It is to be remembered that so long as man is progressive 
(any man, or the race of mankind), the moral ideal is receding 
and enlarging,-always striven for but never attained. Every 
good man can comprehend and imagine thoughts, feelings, and 
motives, knowledge, and skill, and useful services, better than those 
to which he has attained, and if by and by he shall succeed in 
reaching his present ideals, his larger life and better activities will 
bring to his comprehension still better powers and greater useful- 
ness. On the other hand, the moral ideal, the true purpose of 
living, is realized day by day by every one in proportion as he 
may accomplish such perfection and health of body and soul as 20 
SYSTEM OF ETHICS. 
are possible to him and employ his strength and activity in useful 
service. Therefore, though the chase after the moral ideal in the 
perfection of life and conduct may never reach its goal, yet is 
the pursuit neither hopeless nor fruitless, but captures all along 
the way the richest rewards that human life may receive. CHAPTER II. 
MORAL EVOLUTION, DUTY AND CONSCIENCE. 
The object of life is the perfection of life, but this cannot 
be attained by individuals acting each by himself and for himself 
alone. He who attempts that will surely find the truth of the 
paradox: "He that will save his life shall lose it." Every good 
life must be used to help all other lives it may influence, toward 
such perfection and usefulness as may be possible for them, and 
personal and individual welfare cannot be attained without such 
service. Man is a social being; each must receive much from 
many others; each should therefore give much to many others. 
Scientific men describe the process of evolution as being ac- 
complished by a "survival of the fittest," and I believe some have 
written about it as though they believed it characterized by a wholly 
selfish and uncompromising "struggle for life" by each individual 
against all comers, in which the strongest and best developed sur- 
vived and were able to develop new organs and functions, or to 
modify and perfect old ones, and so gradually to adapt 
themselves more perfectly to their environment or to accom- 
modate themselves to the changes in their environment brought 
about by the slow progress of the world. By this means, higher 
and more complicated forms of life were developed out of the 
lower. Evolution was always accompanied by the elimination of 
the weak and unfit, and the degeneracy and extinction of many 
species that proved unable to adapt themselves to the changes tak- 
ing place in the environment in which they must live. 
A disposition is sometimes seen to regard the ideas of service 
and sacrifice for the good of others, and especially the sympathy 
and philanthropy which seek to improve or preserve the weak and 
unfit, as unscientific and of doubtful benefit to the progress of the 
world, and probably it is necessary to take account of moral and 
spiritual values in order to make out a case for the preservation 
of the physically weak and unfit; however, it needs but a moment's 
reflection to perceive that the "struggle for life" even in its lower 22 
SYSTEM OF ETHICS. 
forms, is not wholly personal and selfish. The dependence of in- 
dividuals upon each other, and consequently, the "struggle for the 
lives of others" began to show itself long before the advent of 
man upon the earth. Its first manifestations, of course, are in 
sexual relations and the care and protection of the young, but in 
varying forms and degrees of manifestation it has run parallel 
from the beginning with the struggle for personal and individual 
life. The highest expression of these two motives or impulses, 
the egoistic and the altruistic, working in harmonious co-ordina- 
tion to accomplish a good life, is formulated in the "Golden Rule": 
"Thou shalt love thy neighbor as thyself," and is as scientific as 
it is Christian. 
The close relations of men in modern society and the vast 
and exceedingly complex machinery of social, industrial and polit- 
ical affairs, imposing upon every one such numberless and varied 
duties corresponding to the rights and the needs of others, and 
making needful so many limitations and restraints upon the exer- 
cise of individual freedom and the indulgence of natural impulses, 
is a comparatively recent development or evolution of that portion 
of the human race to which we belong, and men are yet very far 
from the completion of their adaptation to this new environment. 
In fact, there is nothing upon which all men and women are so well 
agreed as on the proposition that very many things in social life 
and relations, in the conduct of business and manufacturing, in 
the management of political parties and the administration of 
government, the education of children and youth, and the practice, 
if not the creeds, of religion, are in need of improvement. When 
it comes to particular plans for improvement, the agreement 
ceases, but whenever there is a general agreement that some partic- 
ular thing can be improved by some definite method, there is im- 
mediate hope and usually speedy accomplishment of some real 
progress. 
Scientific men have long been engaged in a patient investiga- 
tion and study of the laws of God in the physical world, with the 
most astounding results in the harnessing of the forces of nature 
in the service of man, exerting greater physical power in useful 
work than could be done by untold millions of human hands, and 
by discovering and obeying the laws of life, men have been able MORAL EVOLUTION, DUTY AND CONSCIENCE. 
23 
in the vegetable and animal world to procure the comparatively 
rapid evolution or development of primitive or wild types into 
forms better suited to human uses. This is true conspicuously 
of domestic animals, fruits, vegetables, and grains. Having ac- 
complished so much upon these lower levels, it is reasonable to 
suppose that similar patient and sincere investigation may lead 
to the discovery of the laws of social, economic, moral, and 
spiritual life, and the forces and circumstances that promote or 
hinder development, and so the intelligence of men, by compre- 
hending the Divine purposes, and methods of operation, may guide 
or control human affairs in accordance therewith to the accomp- 
lishment of a more rapid development than the world has hereto- 
fore seen; for men have too often been little better (as respects 
the evolution of life) than passive instruments in the grasp of 
Divine forces, or at best have been groping almost blindly for the 
path of progress, and too often at cross purposes with each other 
and with the Creator. 
That men may understand the laws and purposes of God and 
actively co-operate with Him for their fulfilment is an old idea 
in the world as applied to moral and spiritual life and conduct. 
The New Testament teaches it in direct terms in such passages 
as these: "We then, as workers together with him, beseech you 
also that ye receive not the grace of God in vain."-(2 Corinth- 
ians vi-1) and "Work out your own salvation * * * for it is 
God which worketh in you."-(Phil, ii, 12-13). It is equally true 
that men are "Workers together with God" when they discover 
and apply to beneficent uses the laws and resources of the physical 
world, the laws and forces of vegetable and animal life and de- 
velopment, or the facts, relations and duties pertaining to economic, 
social, legal and moral relations and duties of men. 
Similar efforts, by a patient study of facts and relations, with 
such differences of methods as the nature of the subjects make 
necessary, are beginning to be applied to the discovery of the laws, 
and solution of the problems of social, business, economic, moral 
and spiritual life. Let us hope that in time the useful results may 
be as astonishing and satisfactory as they have been in the me- 
chanic arts, in the practice of medicine, surgery and dentistry, and 
many other activities by which the health, comfort, duration, and 24 
SYSTEM OF ETHICS. 
breadth and scope of human lives have been so greatly increased 
during the last hundred years. 
The first step in such progress, will be a better comprehension 
of the rights, and the needs of men and a moral quality, responsive 
to such comprehension, that will insure respect for human rights, 
and to the extent of power and opportunity, the supply of human 
needs. At the present time,-perhaps it has always been so,- 
the moral quality that leads men to do right is lagging behind the 
comprehension of what is right. That is to say, a very large 
number of people are not doing as well as they know how to do. 
Here, as everywhere, the difference between good and bad is fairly 
well understood by everybody in a general way. Good men are 
careful and scrupulous about the performance of their duty, and 
less strenuous about maintaining their rights, often yielding them 
rather than contend for them, especially when they judge that the 
contention may do more harm to themselves or others than the 
rights are worth in particular instances. Bad men, on the other 
hand, are very careless and indifferent about the performance of 
their duties, but usually very particular and insistent to have their 
rights respected. 
If the time could come when all men were developed to the 
greatest perfection and efficiency which their natural abilities and 
their circumstances in life make possible, and these perfected lives 
were exercised for the benefit of others equally with themselves, 
all rights would be protected, all duties would be performed, all 
the needy would be provided for, and the "Millennium" would be 
here. 
Until then, all good people must seek and expect to give more 
than is due from them, to help carry the burdens and perform the 
duties neglected by those who ought to do them. It is right for a 
man to use his life for his own perfection and welfare. It is his 
duty to use it for the good of those about him, and since we receive 
far more from others than we can do for ourselves, we should do 
far more for others than for ourselves, and our lives should be 
trained and perfected with chief reference to making them as effi- 
cient as possible in the service of others. Moral worth is impos- 
sible of attainment otherwise. Man must serve others if he would 
ennoble himself; he should ennoble himself that he may serve 
others. MORAL EVOLUTION, DUTY AND CONSCIENCE. 
25 
Although this writer is more largely indebted to Paulsen's 
"System of Ethics" than to any other source, it must not be sup- 
posed that everything preceding has been derived from Paulsen, 
either directly or indirectly. Much less has any attempt been 
made to epitomize the contents of the first four hundred and 
seventy pages of Paulsen's work. Many things of great interest 
and importance have been omitted, both respecting the historical 
development of morality and its fundamental conceptions and 
questions of principle, and for the most part, conclusions only 
have been stated without any attempt to outline or reproduce the 
facts or reasons by which he has fortified his conclusions or 
opinions. Many subjects have been wholly omitted; for instance, 
Paulsen has a whole chapter on the "Teleological and Formalistic 
Conceptions of the Good and the Bad." "The former explains the 
difference between good and bad by the effects which modes of 
conduct and acts of will naturally produce upon the agent and his 
surroundings. Acts are called good when they tend to preserve 
and promote human welfare; bad, when they tend to disturb and 
destroy it. Formalistic ethics, on the other hand, claims that the 
concepts good and bad, taken in their moral sense, designate an 
absolute quality of the will, without any regard to the effects of 
acts or modes of conduct; that this quality cannot be further ex- 
plained, but it must be accepted as a fact." Paulsen advocates the 
teleological view. 
The chapter on "The Highest Good" is a discussion of the 
hedonistic and energistic conceptions. We can only quote a state- 
ment of them. He says: "The highest good of an individual as 
well as of a society consists in the perfect development and exer- 
cise of life. This, of course, is a purely formal definition, but 
we cannot make it more specific. It is as impossible to define the 
perfect life as it is to define a plant or animal species. We can 
simply give a description of it: this it is the business of the doc- 
trine of virtues and duties to do." 
"Before giving a more detailed account of this conception, 
however, I deem it wise to discuss another view of the nature of 
the highest good. An influential ethical school contends that wel- 
fare or the highest good does not consist in the objective content 
of life, but in the feeling of pleasure which life procures; that 26 
SYSTEM OF ETHICS. 
pleasure is the thing of absolute worth, and that everything else 
has value only in so far as it conduces to pleasure. This view is 
commonly called hedonism; the theory opposed to it we have 
called energism." 
Paulsen's chapter on pessimism opposes the views of the pes- 
simistic philosophers who contend that "Life has no value; or, if 
it contains valuable elements, their sum is so far exceeded by the 
worthless ones that the total value falls below zero, and hence, it 
is better not to live than to live." 
We have no time to spare for this question, nor for his next 
chapter on "The Evil, the Bad, and Theodicy" in which he at- 
tempts to justify the existence of evil in the world. 
The chapter on "Duty and Conscience" is of more conse- 
quence to our purpose. There are forty pages of it and it is 
difficult to discuss the matter briefly enough and impossible ade- 
quately to epitomize his presentation of it. 
Conscience. 
Paulsen seeks to explain conscience so as to establish both its 
human and Divine authority without supposing it to be such a 
direct and personal communication or impression of the Divine 
mind to each human mind as the religious view has sometimes 
affirmed, and which would seem necessarily to imply the infallibil- 
ity of conscience, which is impossible to reconcile with the ob- 
served facts of human life and conduct. 
The normal human will, whether of the individual or society, 
aims at the preservation and perfection of individual and social 
life. *"Here, however, we seem to be confronted with a contra- 
diction. Good, we may also say in conformity with popular usage, 
is not what we will to do but what we ought to do. To do good 
means to do our duty, and our duty does not (always) seem to 
coincide with the natural will; hence there is a conflict between 
duty and inclination. * * * We call that phase of our nature 
which opposes inclination and manifests itself in the feeling of 
obligation and duty, conscience " He next examines "the origin 
of the feeling of duty." "How does obligation arise in the willing 
THE ORIGIN OF THE FEELING OF DUTY. 
♦Page 340. MORAL EVOLUTION, DUTY AND CONSCIENCE. 
27 
being? Whence this conflict between natural inclination and 
duty? Is it something supernatural, something breaking into the 
unity of the willing being from without?" "According to the re- 
ligious view it is: for it, conscience is the voice of God." 
"This notion contains a germ of truth, but it has no value 
as an explanation. We have no more right to appeal to God as 
the cause in morals than in physics. Both the natural law and the 
moral law may point to something beyond them, to something 
transcendent. But we cannot assume the transcendent in order 
to deduce from it the facts of experience; we must seek for the 
explanation within the empirical world; and I believe that we can 
find it there." 
I would state this a little differently, and say that we have < 
perfect right "to appeal to God as the cause" in both morals and 
physics. By observation and experience, by the collection of 
numberless facts and the making of countless experiments; by 
the patient construction of theories and formulation of laws which 
correspond to and are consistent with the observations, experi- 
ences, facts and experiments, men have learned very much about 
the will and laws of God as exerted and illustrated in the ma- 
terial world and in physical life. And it does not seem unreason- 
able that observation and experience, the recording of facts in 
sufficient numbers, the making of experiments, and the formula- 
tion of theories and laws that correspond to all these, may teach 
us very much respecting the will and laws of God as exerted 
and illustrated in the development of moral and spiritual powers 
in men and their manifestations in life and conduct. It would be 
as great a mistake, and one of similar kind to suppose that a 
supernatural revelation is the only way in which we can find out 
anything about the laws of God governing the moral conduct of 
men, as to suppose that such a revelation is the only way in which 
we can find out the law of God respecting the atomic weight of 
oxygen. 
THE AUTHORITY OF DUTY. 
Paulsen says: *"The authority of duty springs from the re- 
lation of the will to custom, or, what amounts to the same, of the 
individual to society." "By the term 'custom' I mean the acts 
♦Page 343. 28 
SYSTEM OF ETHICS. 
performed by all the members of a tribe, which corresponds to 
the instincts of animals. The actions of animals are governed by 
three principles: impulse, instinct, and individual experience. 
Impulse regulates the vegetative animal functions-nutrition, res- 
piration, reproduction. The term instinct is applied to uniform 
modes of behavior which solve more complicated problems of 
animal life, like nest-building, migration, etc. * * * They are 
transmitted by heredity, and practiced without knowledge of their 
purposiveness. They have been characterized as the organic in- 
telligence of the species. In addition to these, the animal also 
acquires a small measure of individual intelligence through its 
own experience." 
"The same three principles again meet us in man. The in- 
stincts undergo the most peculiar transformation,-they appear as 
customs. The latter resemble the instincts in that they are stereo- 
typed modes of conduct for the teleological solution of complicated 
life problems as well as in that they are followed without a know- 
ledge of their purposiveness: they represent the intelligence of the 
race, in which the individual participates. But they differ from 
instinct; the individual knows of them; in obeying them, however, 
he is not conscious of their purposiveness, but of their existence 
and obligation. He insists upon their observance by others as 
well as by himself, formulating them into those universal rules 
which begin with a 'thou shalt' or 'thou shalt not.' We may 
therefore define customs as instincts that have become conscious 
of themselves. The difference is, that customs are not, like in- 
stincts, inherited organically as natural characteristics, but trans- 
mitted by conscious activity, through education. Moreover, cus- 
toms are upheld by the conscious action of the community; an 
animal that does not obey its instincts is left to suffer the natural 
consequences of its behavior; a man who acts contrary to custom 
causes a reaction in his surroundings, which may assume many 
forms, all the way from a scarcely perceptible form of disapproval 
to extermination." 
We have not space for Paulsen's illustrative examples. He 
goes on to say: "We can now understand why duty does not 
appear to be rooted in the will of the individual, but seems to be 
something external to him, something opposing him with absolute MORAL EVOLUTION, DUTY AND CONSCIENCE. 
29 
authority. Custom forms the original content of duty. In the 
higher stages of development the relation between duty and cus- 
tom changes; duty gradually assumes a more personal and indi- 
vidual character. But, originally, duty enjoined a life in accord- 
ance with custom. * * * Hence we may say: Duty is invested 
with the authority of custom. In it, the will of parents and edu- 
cators, the will of ancestors, the will of the people, speak to the 
individual will. To these highest human authorities, a still higher 
and final authority, the authority of the gods" (or God), "is in- 
variably added. * * * As religion develops, they uniformly be- 
come the guardians of custom and law. This triple authority of 
parents, people, and gods, reveals itself in the sense of duty: it 
is a feeling of obligation to a higher will, which sets a limit to the 
inclinations. To be sure, this higher will is not supra-powerful, 
like one governing by force or fear; it is acknowledged internally 
by the individual will as one having absolute right to command." 
♦relation between duty and inclination. 
* * * "Custom as such aims at the preservation and welfare 
of the collective body. * * * We may also say that custom aims 
at the preservation and welfare of the individual. And in so far 
as the individual desires the preservation and welfare of his own 
life, he desires exactly what custom desires. Indeed, he cannot 
realize his welfare except as custom prescribes,-on the one hand, 
because this is the most appropriate means of solving a particular 
problem of life,-on the other, because departures from custom 
would produce a conflict between him and the world, which would 
necessarily react unfavorably upon his individual welfare. Hence, 
custom and the individual will, duty, and inclination, really affect 
conduct in the same way. Conflicts between the two are accidental 
and exceptional. * * * But how does it happen that duty and in- 
clination oppose each other in consciousness, if not uniformly, at 
least frequently? I believe this may be explained as follows: 
The individual becomes clearly conscious of custom" (or duty) 
"only when his inclinations are directed towards something con- 
trary to it. So long as they conform to custom" (or duty), "con- 
science has nothing to say to him. * * * It may therefore be said 
♦Page 346. 30 
SYSTEM OF ETHICS. 
that duty uniformly arises as a limitation of impulses, whose exis- 
tence it presupposes; without impulses there would be no duty. 
It is in its origin essentially negative: Thou shalt not is the 
formula with which custom, law, duty, originally oppose the indi- 
vidual when his impulses go too far. The positive formula does 
not read: Thou shalt, but: I will. Only when the natural impulse 
or will is lacking, does the formula of duty make its appearance, 
and change the: I will, into the: Thou shalt." * * * 
CRITIQUE OF THE KANTIAN VIEW. 
"According to Kant, the conflict between inclination and the 
feeling of duty is essential to morality. An act, in his opinion, 
has moral worth only when the feeling of duty determines the 
will, in the absence of all inclinations or in spite of them. Hence, 
he does not regard it as meritorious to do good from inclination. 
* * * This view of Kant's called forth the ridicule of Schiller's 
well-known lines: 'Gladly I serve my friends, but alas! I do it 
from inclination, hence I am plagued with the doubt that I am not 
virtuous' (translation) whereupon he receives the following 
advice: 'Your only resource is to try to despise them, and then 
to do with aversion that which duty enjoins upon you' (transla- 
tion). This ridicule, we must confess, is not undeserved. Ac- 
cording to Kant's theory, a man's worth depends entirely upon 
his ability to eliminate inclinations and impulses from his will, 
and to determine it solely by the feeling of duty. Such a human 
being, doing his duty solely for duty's sake, is the most wooden 
manikin ever constructed by a system builder. Nevertheless, 
there is a germ of truth in the view. The conflict between duty 
and inclination is not the rule, and the suppression of inclination 
by the feeling of duty is not the condition of all moral worth. 
Still, we may say that the true moral character is plainly revealed 
in such a conflict." 
I believe the true view is almost the opposite of Kant's; 
namely: that the best moral quality is attained by the education, 
the restraint, and the exercise of inclinations and impulses in such 
a way that the conflicts between inclination and duty become less 
and less frequent and finally cease altogether. (Which means by 
the formation of good habits of thought and conduct.) MORAL EVOLUTION, DUTY AND CONSCIENCE. 
31 
"The feeling of duty may have prevented much evil in 
the world, but the beautiful and the good have never sprung 
from the feeling of duty, but from the living impulses of the 
heart." 
*"Let me add a remark concerning a few other errors of the 
a-prioristic-intuitionalistic moral philosophy. It asserts that the 
laws of duty are axiomatic formulae, which are recognized with 
immediate and intuitive certainty, like the mathematical axioms. 
We shall have to concede that the moral laws are immediately and 
universally recognized as valid propositions. They are nothing 
but the positive or negative expressions of custom, and every 
member of the community is conscious of custom, if he has any 
part in the life of the community. He knows of custom through 
the countless particular judgments by which others and he himself 
have approved and disapproved of acts; the certainty with which 
he immediately decides in individual cases depends upon practice. 
* * * Finally, it is no less certain that the moral laws arise in 
consciousness as "categorical imperatives." * * * So far, there- 
fore, intuitional ethics asserts facts which cannot be doubted. But 
it is in error when it goes on to claim that these imperatives are 
objectively groundless, and that the sole business of ethics con- 
sists in systematizing the particular commandments and prohibi- 
tions. * * * There is unquestionably an objective ground for 
the existence and validity of the moral laws, which appear in con- 
sciousness in the form of absolute commands and prohibitions; 
their observance is the condition of the welfare of the individual 
and the species. And it is the business of moral philosophy to 
discover this ground, just as it is the business of a philosophy of 
law * * * to prove its teleological necessity by indicating the 
problems of human collective life which it solves." 
•(•"Another error to which intuitional ethics inclines, is the 
error that conscience invariably reveals to everybody, with sub- 
jective certainty and objective infallibility, what duty demands. 
Thus Kant contends that 'the commonest intelligence can easily 
and without hesitation see,' what the moral law requires to be 
done; or 'what duty is, is plain of itself to everyone; but what is 
♦Paulsen, Page 355. 
fPaulsen, Page 357. 32 
SYSTEM OF ETHICS. 
to bring true durable advantage, such as will extend to the whole 
of one's existence, is always veiled in impenetrable obscurity.' 
The latter statement is certainly true; but it is certainly not true 
that no one is ever in doubt as to what duty demands. In many 
cases, of course, our duty seems perfectly clear immediately, but 
by no means in all." 
It is just here, in the determination of what duty requires, 
by a careful consideration of all the circumstances within our 
knowledge, and their relations to our ideal of life and con- 
duct, that conscientious and rightminded people encounter their 
greatest difficulties, make their successes or failures and show 
their wisdom or their foolishness. *"But, it may be retorted, 
this makes all moral questions uncertain and subjects them to 
unbridled casuistry. I do not believe that it makes them un- 
certain, they are uncertain, and will always remain so. The 
matter is really not so simple as those imagine who hold that an 
innate power, called practical reason, or conscience, infallibly regu- 
lates a man's conduct by subsuming each case under a general rule. 
The problem surely does not consist merely in deciding given cases 
according to a ready-made formula." 
It is not necessary to repeat Paulsen's discussions and illustra- 
tions under this head. To feel doubtful and uncertain as to what 
duty requires, or as to which of several alternative courses of con- 
duct we ought to follow, is a not very uncommon experience in 
the lives of most thoughtful and conscientious persons. 
CONSCIENCE. 
"We define conscience as the consciousness of custom or the 
existence of custom in the consciousness of the individual. The 
authority with which it speaks is the authority of all those who 
support and protect custom and law against the particular deviat- 
ing will: first, the authority of parents and teachers, who impress 
custom or objective morality upon the soul of the child; then, the 
authority of the wider circles, which pronounce judgment upon 
the conduct of the individual by the bestowal of praise and blame, 
honor and disgrace; further, the authority of the law and the 
magistracy, which deters the offender by threats and punishments; 
*Paulsen, Page 360. MORAL EVOLUTION, DUTY AND CONSCIENCE. 
33 
finally, the authority of the gods, which surrounds custom and 
law with religious awe. The individual compares his conduct 
with the standard thus sanctioned and protected, and regulates his 
individual will according to the universal will, which, after all, 
is his own general or fundamental will. Hence, arise those 
emotions which are experienced before the deed as the deter- 
rent or impelling conscience, and after the deed as remorse, 
or moral satisfaction. The content of conscience is varied, as 
varied as the customs themselves, which the different tribes 
and nations evolve according to their different natures and 
different conditions of life. The form, however, is universally 
the same: a knowledge of a higher will by which the individual 
will feels itself internally bound. This higher will, is, in the last 
analysis, universally regarded as the will of a superhuman, of a 
divine power." 
"Those who interpret conscience as a voice from above, and 
regard their conception as an explanation of its origin, reject the 
historical psychological explanation, not only as an unsatisfactory, 
but even dangerous theory; supposing it robs conscience of its 
sanctity, and hence also destroys its efficacy. * ♦ ♦ I cannot share 
this view. It does not seem to me that the loss of authority of 
conscience, is either a logical consequence or a necessary psycho- 
logical effect of the anthropological explanation. * * * Why should 
the moral laws lose their validity because we are convinced that 
they express the experience gradually acquired by the race in re- 
gard to what is wholesome and harmful ? On the contrary, what 
stronger proof can we desire than the hereditary wisdom of a 
people? In conscience, we have the subjective reflex of the ob- 
jective natural order of moral life, as it has developed in custom 
and law; surely, this knowledge cannot destroy the validity or the 
teleological necessity of the order. * * * Here let me simply say 
that in my opinion, the time will never come when men will cease 
to regard the morality and holiness which they have evolved from 
their innermost being, as derived from the essence of God or the 
nature of the All-Real. How could these enter into the heart of 
man were they not rooted in the very nature of things? Is man 
an anomaly in the universe? * * * Moral laws are not the acci- 
dental injunctions of an arbitrary being, but are inherent in the 34 
SYSTEM OF ETHICS. 
nature of things, in the nature of man. So teleological ethics con- 
ceives them; and conscience, it conceives as the reflection of the 
objective uniformity of moral life in the consciousness of the in- 
dividual. Hence, it regards conscience as a highly important 
organ for preserving life, which cannot be destroyed by specula- 
tions concerning its origin; any more than the value of language 
can be impaired by abandoning the old superstitions which ex- 
plained it as a direct communication from heaven. *Or do the 
rules of grammar lose their validity as soon as we become con- 
vinced that they originated in a human way? Well, then, neither 
will the moral laws lose their validity. Whoever desires to partici- 
pate in the intellectual life of his people must speak their language 
and obey their laws; Whoever desires to participate in their moral 
life, must follow their customs and obey the dictates of his con- 
science." * * * 
"As Sidgwick admirably says: 'For though the imperfection 
that we find in all the actual conditions of human existence, is 
ultimately found even in morality itself, still, practically, we are 
much less concerned with correcting and improving than we are 
with realizing and enforcing it. The Utilitarian must repudiate 
altogether the temper of rebellion against established morality, as 
something purely external and conventional. * * * He must, of 
course, also repudiate as superstitious, that awe of it as an abso- 
lute or divine code which intuitional moralists inculcate. Still, he 
will naturally contemplate it with reverence and wonder, as a 
marvelous product of nature, the result of long centuries of 
growth, showing in many parts the same fine adaptation of means 
to complex exigencies as the most elaborate structures of physical 
organisms exhibit: he will handle it with respectful delicacy as a 
mechanism, constructed of the fluid element of opinions and dis- 
positions ; by the indispensable aid of which the actual quantum of 
human happiness is being produced; a mechanism which no poli- 
ticians or philosophers could create, yet without which the harder 
and coarser machinery of positive law could not be permanently 
maintained, and the life of man would become-as Hobbes forci- 
bly expresses it-'solitary, poor, nasty, brutish, and short.' " 
♦Page 367. MORAL EVOLUTION, DUTY AND CONSCIENCE. 
35 
INDIVIDUALIZATION OF CONSCIENCE. 
*"Conscience is originally the manifestation of custom or 
objective morality in the consciousness of the individual; it acts 
essentially as an inhibition of particular will impulses which devi- 
ate from the normal. But this is not its final and highest form. 
It exercises a more positive function in that it reflects an ideal of 
the perfect life. * * * In its religious and poetical creations every 
nation produces concrete images of perfection; these take posses- 
sion of the consciousness of the individual, and fashion his nature 
and will. He measures himself and his conduct by the ideal. 
* * * Conscience thus acquires a new meaning: * * * Now it 
measures the actual life by its special ideal. * * * This will not 
be unrelated to custom; still it may differ widely from the 
universal conception and mode of life, so widely, indeed, that it 
may even bring the person into conflict with custom, and that this 
conflict may not arouse pangs of conscience, but be recognized as 
a moral necessity. Objective morality is now opposed by a sub- 
jective morality, a higher form, which applies a new standard to 
things." 
"Whenever the personality whose individual ideal brings it 
into antagonism with the objective morality of the times, and leads 
to a recasting of moral values, is endowed with remarkable powers 
of intellect and will, those conflicts arise which form the dramatic 
climaxes in history. The real heroes of mankind have fought 
such battles. They rebel against the conventional values, against 
the ideals, which have become useless and false, against sham and 
falsehood, against the salt that has lost its savor. They preach 
new truth, point out new aims and new ideals, which instill new 
life into the soul and raise it to a higher plane. Jesus fought this 
fight. He rose above the religion and the customs of his nation; 
he conceived of a different and higher relation to God than that 
recognized by his people; and hence, he was not satisfied with 
the righteousness of his people, with their punctilious and yet scant 
and self-sufficient fulfillment of the law. So he placed himself 
and his disciples outside of the law of his people; he broke the 
Sabbath, he did not fast; he gave them, instead, a new command- 
♦Page 369. 36 
SYSTEM OF ETHICS. 
ment: 'Love ye one another.' And when the established system, 
the objective righteousness, protested against the revolt, he entered 
upon the struggle of annihilation which ended in his death. What 
sustained him in his battles and sufferings and led him to victory 
was his firm conviction that he was sent by the Father to pro- 
claim the new kingdom of love and mercy. 'My meat is to do the 
will of Him that sent me.' Thus Jesus has become the eternal 
prototype of all those who are thirsting after and battling for the 
kingdom of God, for truth and justice, of all those for whom life, 
as they find it, has too little force and spirituality,-too little love 
and freedom,-of all those who from the fullness of their hearts 
reveal their feelings and thoughts, and are then crucified and 
burned by the rabble, high and low." 
The individualized conscience, described by Paulsen, in the 
preceding quotations, is the strongest force in the world to pro- 
mote the moral and spiritual evolution of the human race. Some 
ideal of character and conduct is clearly perceived or imagined, 
and henceforth the person endeavors, more or less steadily and 
consistently, to bring life and conduct into conformity with the 
ideal, and to persuade others to adopt and to strive after similar 
ideals. He is no longer content to measure himself for approval 
or censure against the average conscience, as indicated by the 
customs and expressed opinions of the society in which he lives. 
On the contrary, he measures the customary conduct and standards 
of life by his own ideal. It is true that mistakes are sometimes 
made and some adopt a personal ideal that is worse instead of 
better than the average life and conscience of the community in 
which they live, but this opportunity is inevitable, for the plasticity 
and freedom of life which makes development and growth possible 
must also allow the possibility of degeneracy and even destruction. 
The individualization of conscience and the setting up of 
ideals and standards for one's self therefore call for greater wis- 
dom, self control and courage, than simply to adopt the conscience 
and standards of living prevalent in the society in which one finds 
himself. CHAPTER III. 
EGOISM AND ALTRUISM, VIRTUE AND HAPPINESS, MORALITY AND 
RELIGION, FREEDOM OF THE WILL. 
*"Acts are called egoistic when their motive is individual weal 
or woe,-altruistic, when their motive is the weal and woe of 
others. Some moralists regard these motives as mutually exclus- 
ive, and contend that every act is the product of either egoistic or 
altruistic motives." * * * 
"This view gives rise to two opposing schools. Pure altruism 
sets up the principle: Acts have moral worth only in so far as 
they are determined by purely altruistic motives. Pure egoism 
asserts: It is not only allowable but morally necessary to make 
individual welfare the sole end of action." 
The discussion or controversy between these two schools 
appears to be a waste of time, for actions are never purely altruis- 
tic or egoistic, and it is doubtful if motives ever are, though they 
may sometimes nearly approach it. Paulsen is undoubtedly cor- 
rect when he says: 
f"It is as impossible to distinguish absolutely between egoistic 
and altruistic acts on the ground of their motives as it is to separ- 
ate them according to their effects. Indeed, it is a somewhat 
curious notion, this notion that every act must have one motive. 
Nay, just as many causes co-operate in the physical world to pro- 
duce a movement, so many motives work together to determine 
the will. * * * Is the antithesis between egoism and altruism 
therefore meaningless? * * * 
"I do not, of course, claim that. Cases unquestionably arise, 
in which individual interests conflict, or seem to conflict, with 
foreign interests. Acts doubtless occur in which the individual 
seeks his own advantage at the expense of others' welfare and 
conversely, there are acts in which individual interests and inclina- 
tions are sacrificed for the welfare of others, from which it does 
*Page 379. 
fPage 386. 38 
SYSTEM OF ETHICS. 
not necessarily follow that individual welfare, if we take the 
word in its profoundest meaning, is promoted in the former in- 
stance and retarded in the latter. And it cannot be disputed that 
these facts have great moral significance. The above reflections 
simply desire to show that the opposition between individual and 
general welfare, selfish and altruistic motives, is not the rule, but 
the exception. As a rule, there is harmony in the effects as well 
as the motives. Life is not such an antagonistic affair as some 
moralists make it appear: it is not one constant struggle between 
mine and thine. No human life, perhaps, is wholly free from 
conflict, but there are many lives in which it plays no prominent 
part. Persons who enjoy healthy domestic relations and live in 
well-regulated communities, and pursue honorable and regular 
callings, do not experience many such conflicts, nor do they by 
any means believe that the altruistic settlement of such conflicts 
forms the essential content of their life and determines its moral 
worth." 
A rather important aspect of this question seems to be that 
unless there has been enough of egoism to develop a personality 
having strength, wisdom, and moral and spiritual excellence, altru- 
istic motives and conduct will be impossible since there will be no 
effective personality to exhibit them. There are two important 
practical aspects of the matter: First, in a very large proportion 
of the motives and conduct of life, there is no conflict between 
egoism and altruism: what is good for others is good for myself. 
Second, when there is conflict between one's own interests and 
those of others, the greater or more important interest or welfare 
should decide. We are not always called upon to weigh and 
measure with cold-blooded indifference and disinterestedness the 
value of the various interests to be considered, though even this 
may sometimes be desirable. 
The motive power for altruistic actions is in the feelings and 
sentiments of affection, pity, justice, kindness, philanthropy, 
patriotism, etc., and usually it is the interests and welfare of those 
nearest to us that must take precedence, especially those whom it 
is generally understood to be our duty to provide for and who 
are likely to be neglected if we do not. Doubtless, there have 
been instances, however, in which a service has been rendered for VIRTUE AND HAPPINESS. 
39 
more remote interests of such commanding importance and value 
as to justify the neglect of interests near at hand, that should 
ordinarily be of first importance, even such as a provision for 
one's wife and children. 
VIRTUE AND HAPPINESS. 
*Paulsen's seventh chapter, on "Virtue and Happiness," pro- 
poses two questions: " (1) What influence has virtue upon hap- 
piness? (2) What is the effect of happiness upon character?" 
"First. The first great and fundamental truth to which all 
peoples have been led in their reflections upon moral matters is 
the truth that the good man fares well and the wicked man ill. 
This conviction, which represents the experiences of the race, is 
expressed in countless proverbs. * * * The theoretical develop- 
ment of this thought forms the content of Greek moral philosophy. 
Virtue and happiness are connected, not merely accidentally, 
through the mediation of the gods, but in the very nature of things. 
The conception of happiness, however, is spiritualized; not ex- 
ternal happiness or good fortune, but internal happiness, peace and 
repose of spirit, is directly joined with the exercise of virtue, or 
follows as its necessary effect. External welfare does not always 
fall to the lot of the wise and virtuous man; but virtue tends to 
realize this also; and in case he does not obtain it, he is sure of 
finding happiness in his own heart. This is also the prevailing 
sentiment in modern ethics. * * * Virtue,f welfare, honor, and 
inner peace go together as well as vice, misery, disgrace, and inner 
discord. This is especially true of the two extremes: virtue and 
inner peace, vice and inner discord. The two middle terms of the 
series are not so constant." 
"A pessimistic conception runs parallel with this view of the 
relation of virtue and happiness which may be called the optimistic 
view." According to this view "The evil doer is the very one who 
fares well; fortune favors him; while the good man fares ill. 
* * * Strategy and violence, the latter against the weaker, the 
former against the stronger, are the means by which men rise 
and maintain themselves." * * * 
*Page 400. 
fPage 402. 40 
SYSTEM OF ETHICS. 
"Which of these two views is the correct one? Is the truth 
of the first overthrown by that of the second ? I do not think so. 
The sporadic pessimistic moods which now and then take posses- 
sion of every nation and every individual, may perhaps be ex- 
plained as follows, and reconciled with the optimistic view. 
"It is, of course, an undeniable fact that the good do not 
always fare well outwardly. A man may become sick, even 
though he is temperate and prudent, and, conversely, a man who 
has no regard for his health may remain hale and hearty. An 
able and honest man may fail in spite of all his exertions, and a 
scoundrel may accumulate wealth by dishonest means. * * * But 
the very fact that such occurrences attract so much attention and 
arouse such indignation seems to indicate that they are not the 
rule but the exception. * * * These cases would not cause such 
excitement if they were not contrary to the nature of things. It 
is the rule that honest labor is a surer road to economic welfare 
than fraud and dishonesty; that sincerity and truthfulness arouse 
confidence; that falsehood and deception are poor means of mak- 
ing friends; in short, that virtue is approved before God and man, 
and that vice is despised and condemned." 
♦"There is, however, an important exception to the last rule: 
The vicious do not love the virtuous, but hate them. * * * "This 
explains the awful impulse to lead others into temptation which is 
so common to vice. So, too, the flatterer and place-hunter hates 
the honest and truthful man, who goes through life with his head 
erect; he imagines that the latter watches, sees through and dis- 
pises him." 
"Should vice ever gain the ascendency in society, virtue would 
arouse in most men, if not contempt, at least hatred and aversion. 
And since the vices cannot make those who possess them agreeable 
in the sight of men-for virtue is agreeable to the virtuous, but 
vice is not esteemed by the vicious, especially not social vice-a 
feeling of universal hatred would take possession of society." We 
would have hell on earth. f"We reach the conclusion that for the 
truly good man, for one whose will is completely ruled by virtue, 
virtuous action is always the greatest blessing, even though it 
*Page 404. 
fPage 406. VIRTUE AND HAPPINESS. 
41 
should not bring external happiness, and should prove hard for 
his sensuous nature." * * * 
"He, however, whose will is not ruled by virtue, who does 
good from fear or calculation, may feel disappointed, when the 
outward success which he hoped to realize from his honesty, tem- 
perance, and benevolence, does not appear. To such a person, 
virtue seems to be an unprofitable, or at least uncertain, means of 
happiness, and he utters pessimistic complaints, holding that the 
evil doers fare well and the good fare ill. This, however, does 
not mean that he would have been better satisfied if he had reached 
by crooked means the goal which he complains of having missed 
by fair means. Hence the fact remains that there is a universal 
inner relation between virtue and success or prosperity or happi- 
ness, while the connection between wickedness and unhappiness 
is equally necessary." * * * 
"2. *The second question is: What is the effect of happiness 
upon character? By happiness we here mean external happiness: 
wealth, power, success, fame, honor, health, strength, victory. 
What effect has the possession or pursuit of these upon character ? 
Observation of human affairs has convinced all the more 
highly civilized nations of the second great fundamental truth that 
happiness, or prosperity, or good fortune, is a menace to character, 
and finally also to welfare." 
Prosperity or good fortune, as enumerated above, is usually 
and normally accomplished by rendering some useful service to 
society in following whatever profession or business it may be by 
which success and fortune have been acquired. When the external 
pressure of necessity has been removed there will be temptation 
to cease from efforts for service and usefulness and to spend life 
and fortune for self indulgence and pleasure. This will happen 
unless service and usefulness have been understood as a duty and 
pleasure and have become established as fundamental motives of 
conduct. 
It may also be said f"that real happiness is a proper mixture 
of so-called happiness (good fortune) and misfortune. A man's 
lot is not happy when all his desires are always and fully realized. 
♦Page 407. 
fPage 411. 42 
SYSTEM OF ETHICS. 
-but when he obtains a proper share of joy and sorrow, success 
and failure, plenty and want, struggle and peace, work and rest, 
and obtains it at the right time. * * * And so we may be permit- 
ted to say that life, as we find it, is on the whole adapted to the 
real needs of human nature; it brings to everyone good and evil 
days, successes and trials." 
It seems rather paradoxical to affirm that virtue tends to 
produce happiness, success and prosperity, and then to say that 
these have a tendency to destroy the virtue that produced them. 
Perhaps it may be explained in part by the fact that prosperity 
and success put to the test different elements and qualities of 
character from those previously developed and tested, and offer 
opportunity and temptation to forms of evil for which there had 
been little opportunity or inclination previously. It is true, also 
that virtue is only one of many factors that must co-operate for 
the accomplishment of success or happiness, either of external 
circumstances or inner feelings. It has been said that the virtu- 
ous man is sure of inner peace and satisfaction whatever the 
success or failure of his outward circumstances and this is doubt- 
less true in an important sense, in that he may keep his self-respect 
and steadiness and continuity of character and disposition, but the 
man of even perfect virtue (if there be such a man), is liable to 
have his inner as well as outer peace and satisfaction very much 
disturbed by such things as poverty, hardship, sickness and death, 
as they may affect his family or himself, and still more so if one 
of his children becomes vicious. We all understand that a man's 
virtue and personal character cannot alone preserve him from 
calamity and misfortune, which is the same thing as saying that 
virtue alone cannot procure success, prosperity, and happiness. 
If then, other forces and circutpstance have important influence 
to procure prosperity, it may well be supposed that the peculiar 
and dangerous temptations that prosperity brings with it, may be 
attributed more to these other forces and circumstances than to 
the virtue, which also contributed to the result. It is a general 
rule that results react favorably upon the forces that produce 
them, at least in the moral and spiritual realm,-yes,-in the 
exercise of physical life also. The exercise of strength increases 
strength, and the success, prosperity and happiness which are the MORALITY AND RELIGION. 
43 
normal result of virtue, react upon character to give stimulus, 
confidence and courage to virtue. 
Another matter to be considered is the fact that the evil in- 
fluences of prosperity, especially of wealth, are seen oftener and 
more injuriously in the second and third generation than in the 
persons who have won prosperity for themselves. Inherited 
wealth more frequently results in moral injury to its possessor 
than acquired wealth, always supposing that it was acquired by 
honorable means. 
When considerations such as these and others that may apply 
are given their due weight, it will be seen that the prosperity and 
success won by virtuous character and conduct are not especially 
dangerous to the virtue that won them. 
MORALITY AND RELIGION. 
In Paulsen's Chapter 8: *"The Relation of Morality to Re- 
ligion," he attempts to answer the question: "Is there an inner 
connection-one inherent in the nature of things and therefore in- 
dissoluble-between religion and morality, or are they independent 
of each other, and merely accidentally related?" 
"An historical reflection will prepare us for the answer. It 
is one of the safest propositions of anthropology that a very inti- 
mate relation exists between the religion and the morality of a 
people, at least at a certain stage of its development. The customs 
have the sanction of the gods: the commandments of religion and 
morality form a unified code of laws; piety and morality are re- 
garded as one and the same thing. Let me simply call to mind 
the best known example. In the laws of Moses, religious, moral 
and legal duties appear as wholly homogeneous parts of one law 
of God. * * * The fear of God is the foundation of morality; 
pious and good, godless and bad, are synonymous terms. Christ- 
ianity and Mohammedanism accept this view. We find it also 
among the Greeks and Romans, Hindoos and Persians, Egyptians 
and Assyrians." 
"Morality and religion spring from the same root, the yearn- 
ing of the will for perfection. * * * Morality and religion are 
seen to be two phases of the same thing: the individual is moral 
*Page 415. 44 
SYSTEM OF ETHICS. 
in so far as his willing and acting strive after perfection; pious 
in so far as his feelings, his faith, and his hopes, are inspired with 
the image of the highest." 
The influence of religion on morality is salutary in that the 
Divine authority of moral laws has greatly assisted in the moral 
discipline of men, and the belief in the life after death has been 
greatly beneficial to influence the lives of men. 
THE FREEDOM OF THE WILL. 
*"Let me discriminate, at the outset, between two senses of 
the word; we may speak of freedom of the will in a psychological 
or in a metaphysical sense. The former means the ability to 
cause decisions and acts by one's own will (freedom of choice) ; 
the latter means that the will or the particular decisions them- 
selves have no cause." 
"In popular speech, the term 'free will' is employed solely 
in the first sense. An act is called free when the will of the agent 
is its immediate cause: determined, when it is caused by an ex- 
ternal force, that is, either directly, by physical compulsion, or 
indirectly, by threats, misrepresentations, etc. In the latter case, 
the will is really not the cause of the decision; but here there is 
a wide range between gentle persuasion and irresistible compul- 
sion, and therefore a corresponding gradual transition from com- 
plete freedom to complete determinism." 
"That there is psychological freedom has never been doubted. 
But whether the will can be free in the other sense, is a subject 
of endless debate." 
The question of metaphysical freedom as against fatalism or 
determinism, is not a practical one as related to the conduct of 
life and we need not spend any time in vain efforts at a solution 
of it. "fit belongs to philosophizing theology, or scholasticism." 
We have no need to discuss either the psychological or meta- 
physical problems of 'free will.' Its ethical significance is what 
concerns us and for proof of 'free will' as against 'determinism' 
we need not go farther than universal human consciousness and 
the universal fact that society holds men responsible for their 
conduct. 
*Page 452. 
fPage 454. THE FREEDOM OF THE WILL. 
45 
Paulsen says: *"Everyone has an immediate feeling of cer- 
tainty that he is not moulded into what he is from without, that 
everything would have happened otherwise if he had willed other- 
wise. And he is likewise absolutely sure that the future shaping 
of his life depends upon his will. * * * I could also, and perhaps 
ought to, says self-consciousness, alter my mode of life, my be- 
havour to others, my character. Is this all an illusion?" 
"Certainly not. Self-consciousness does not deceive us. But 
what does it say? Surely this,-that to the influences which have 
determined and will continue to determine my life and character, 
must be added my wishes and inclinations, my convictions and 
resolutions, and particularly these." 
Paulsen goes on in a lengthy discussion of responsibility and 
accountability, especially their practical aspects in the treatment by 
society of offenders and criminals. Then he says: 
f"The expression freedom of the will signifies in popular 
speech a real, positive property of human nature. Animals, too, 
have wills, but we do not attribute free will to them. Wherein 
does the difference consist?" 
"Animals are moved to action by momentary impulses and 
perceptions. * * * Deliberation, hesitation, and choice exist only 
in rudimentary forms among the most highly developed animals. 
Now such processes are characteristic of man. He determines 
his conduct by resolutions. Resolutions are the result of delibera- 
tion; in deliberation several possible courses of action or modes 
of behavior are compared with the ultimate aims of individual 
and social life, and chosen accordingly. Man, therefore, is not 
determined by his impulses, but he determines himself by ideas of 
ends. In his purposes, man comprehends his whole life into a 
unity, as it were, and chooses the particular acts according to their 
relation to this principle. * * * The unity of practical self-con- 
sciousness or conscience, exercises a constant control over the 
particular processes of inner life, feelings, strivings, acts, thought. 
Well, this faculty of regulating and determining the particular 
functions of life by an idea of one's life, is precisely what we 
mean by free will. Hence, we may also say that a person's acts 
*Page 459. 
fPage 467. 46 
SYSTEM OF ETHICS. 
are free, when he is determined, not by present stimuli and the 
momentary desires aroused by them, but by ideas of ends and 
ideals, by duty and conscience; in the former case, he is driven, 
in the latter alone he acts." 
"We may accordingly add that, in a certain sense, the view 
that human will is exempt, or forms a kind of conclave in nature, 
is correct. The animal is a point of transition for natural proces- 
ses; it is itself a part of nature, determined from without by con- 
stantly approaching stimuli and influences. Man, on the other 
hand, in a certain manner, emancipates himself from the course 
of nature; he rises above nature and opposes it as a self, he de- 
termines it and employs it, is not determined by it; man becomes a 
personality. As such, he is able to put his whole self, his ego, 
into every phase of his life, and therefore he is responsible for 
every particular act." 
*"It is apparent that freedom in this sense is not an original 
endowment of human nature, but an acquired characteristic; it 
has been acquired by the entire race in the course of history, and 
must be acquired anew by each individual. The new-born child 
does not bring with it a ready-made freedom; nay, it is driven 
like an animal by momentary cravings. But gradually the rational 
will supported by education, rises above the natural impulses. 
This occurs in a different degree in different individuals; some 
are wholly controlled by these impulses during their entire lives, 
others acquire such a remarkable control over nature in themselves 
that they seem to regulate even the smallest details of their lives 
by rational deliberation, and never do anything or leave anything 
undone, except by choice. It is to be observed, in this connection, 
that though it is vulgar and base to give the impulses complete 
mastery over one's self, yet the complete suppression of them fills 
us with fear and awe. * * * Man seems to be intended as a mean 
between an animal and a purely rational being." 
"Hence, can a man determine himself by his own will?-Can 
he fashion his will by means of his will? Yes and no. Yes, for 
he undoubtedly has the faculty of educating himself; he can 
fashion his outer and inner man with conscious purpose, accord- 
ing to his ideal; he can discipline his natural impulses, nay, even 
♦Page 469. THE FREEDOM OF THE WILL. 
47 
suppress them so that they will no longer move him. To be sure, 
he cannot do this simply by wishing or resolving it; he can do it 
only by constant practice and by employing appropriate means, in 
the same way that he acquires bodily skill." * * * 
"On the other hand, we shall have to say that this forma- 
tive principle itself must be native to him; this he cannot give 
himself by his will, for it is the most innermost will itself. * * * 
*We are everywhere confronted with the notion;-The freedom 
of man means the control of the spirit, the slavery of man means 
the rule of the animal desires." 
"This is the positive significance of the freedom of the will. 
And ethics should not permit the whimsical attempts of a few 
metaphysicians to explain freedom of the will as the causelessness 
of the individual will or volition, to induce her absolutely to reject 
the so fruitful and necessary concept of free will. Freedom of 
will means, according to the popular usage of all men, these meta- 
physicians excepted, the faculty to determine one's life, independ- 
ently of sensuous impulses and inclinations, by reason and con- 
science, according to purposes and laws; and that man has such 
a faculty, that this really constitutes the very essence of man, no 
one has ever doubted." 
An important matter relating to this subject is the fact that 
Tree will' may be lost. We may make the broad generalization 
that freedom is conditioned on obedience to law. It may be said 
that freedom implies the power to disregard or disobey law if one 
chooses to do so. That is true, but disobedience of law results 
in the limitation or loss of the freedom that has been abused. 
Perhaps the most conspicuous and visible loss of freedom of will 
is seen in the victims of habit-forming drugs. Drunkards, opium 
eaters and cocaine addicts often wholly lose the moral power to 
refrain from their habitual indulgence and can only be recovered 
by the help of outside influences, frequently amounting to physical 
restraint. The same thing may be observed less conspicuously 
in every aspect of human life. Transgressions of physiological 
and biological laws are followed by some limitation and diminu- 
tion of physical perfection and activity that might have been at- 
tained by obedience. Disregard or transgression of the customs 
♦Page 471. 48 
SYSTEM OF ETHICS. 
and observances of polite society by vulgar speech, slovenly dress 
and conspicuously bad manners will at once forfeit a man's free- 
dom to associate with people of education and good breeding. 
We all know well enough that we cannot trifle with the law of 
gravitation, the law of fire, or the laws of physical forces. Neither 
can we transgress psychological, or moral, or spiritual laws without 
some loss of the freedom and range of mental, moral and spiritual 
power and usefulness that we might acquire by obedience. 
Freedom of will is not perfect in any of us because none of 
us have perfectly obeyed all the laws which protect and guide such 
freedom. There can be no greater mistake in life than to suppose 
that freedom means the privilege and opportunity to do just what 
we please. CHAPTER IV. 
DOCTRINE OF VIRTUES AND DUTIES. 
SELF-CONTROL, TEMPERANCE, COURAGE. 
introducing his Book Third, "Doctrine of Virtues and 
Duties," Paulsen has this quotation: 
"I possess three treasures; these I guard and prize highly. 
The first is the love of humanity; the second, frugality; the third, 
that I do not presume to be better than any one else. Love of 
humanity-with this I can be fearless; frugality-therefore I can 
give to others; freedom from ambition-hence I have no one above 
me. i 
"Nowadays we despise love of humanity and are insolent; 
we despise economy, and are wasteful; we despise modesty and 
strive to surpass everyone else. These paths lead to death." 
Laotsee, Taoteking 67. 
(After translation of Noack.) 
VIRTUES AND VICES IN GENERAL.* 
"The doctrine of duties and the doctrine of virtues are differ- 
ent modes of presenting the same subject matter. The former 
gives us a system of rules which, as commands or laws, specify 
the modes of conduct essential to the solution of the problem of 
life. The doctrine of virtues describes the system of powers by 
the exercise of which this end is realized. We have already dis- 
cussed the nature of duty. Let us now add a few words concern- 
ing the nature of virtue." 
"Virtues may be defined as habits of the will and modes of 
conduct which tend to promote the walfare of individual and col- 
lective life. Impulses form their natural basis. Virtues are not 
inventions of the moralists; they are natural predispositions. 
Predispositions only, remember; for impulses are not themselves 
virtues: as impulses they have no moral quality. The impulse to 
eat is not good or bad, but it is the foundation of rational self- 
♦Paulsen, Page 475. 50 
SYSTEM OF ETHICS. 
preservation. The sexual impulse is not good or bad, but it is 
the natural basis of the virtues on which family life depends. 
Compassion or sympathy, the impulse to alleviate the pains of 
others, is not good or bad, but it is the natural foundation of the 
virtue of benevolence. Similarly, indignation at wrong and the 
impulse of revenge form the natural basis of the sense of justice. 
Moreover, impulses form the permanent basis of the virtues. 
They cannot, as many moralists are prone to assume, be supplanted 
by rational reflection. A being like Spinoza's sage, who is de- 
termined to action, not by impulse, but by reason alone, does not 
exist and cannot exist; any more than Kant's dutiful man, whose 
will is governed solely by respect for the moral law, without im- 
pulse and inclination. Such a being would not be a human being, 
but a phantom." 
♦"Impulses are fashioned into virtues or moral excellences 
by the reason. We are educated, first, by the reason of others, 
then by our own reason. Human life begins as a purely impulsive 
life; the reason is developed slowly. During the long period of 
youth, the collective reason of the race, as represented by parents, 
educators and teachers, takes the place of individual reason. Fixed 
habits are the result of this education; in them the customs of the 
community become individualized. Acquired habits constitute an 
extremely important part of moral culture; they obtain control 
over life and guide it with automatic certainty. The important 
elementary functions of life, especially, are governed by them. 
Cleanliness, for example, against which the child at first rebels, 
becomes a habit, which acts with the regularity of a natural func- 
tion. Most closely related to it, is shame, which is implanted and 
established by education, and soon acquires the force and certainty 
of an instinct. So, too, aversion to falsehood, or politeness to 
others, becomes a second nature. The formation of such auto- 
matic forms of reaction constitutes a primary and important phase 
of moral education." 
The authority, control and guidance of parents, nurses and 
teachers should firmly establish the habits just mentioned and also 
the habit of eating proper food in a proper way, at regular times 
and none between meals, as nearly as possible exact regularity of 
♦Page 476. DOCTRINE OF VIRTUES AND DUTIES. 
51 
going to bed (and these two habits can usually be pretty well 
established in the first month or two of a baby's life but need 
steadiness and some firmness to maintain them as the child grows 
older). The child who does not receive this sort of care and 
training is defrauded of its birthright, and parents who fail to 
give their children sufficient care and attention to accomplish these 
ends fail in the most important of human obligations. Authority 
and obedience are the important matters in the very early training 
of children, but authority should be exercised for the sympathetic 
understanding and guidance of a child's impulses and wishes and 
as little as may be for restraint and repression. 
As soon as a child begins to ask questions he should be 
answered patiently, according to his understanding and point of 
view, so that his intelligence and reason may help obedience and 
support authority. And thus instruction may gradually be sub- 
stituted for authority and established habits and individual self- 
control may make obedience less irksome or even necessary. A 
child should be allowed to take responsibility as fast as he can 
be trusted with it, and to the extent that he will obey the laws 
of life of his own free will he should be released from authority. 
A youth who has been under authority and minute direction in 
every detail of conduct till the time when he (or she) must leave 
home may have acquired little or no experience in self guidance 
and is sure to make great mistakes and may go to the bad when 
the restraints of home are removed. The parents of such children 
will be astonished as well as grieved to find that their painstaking 
efforts have been of no avail. 
Every one must sooner or later learn to educate himself and 
blessed are they who can do it under the instruction and super- 
vision of wise parents, teachers and companions. 
*"Virtues are normal powers of the will, tending to preserve 
and unfold human mental life. Vices, on the other hand, are 
abnormally-developed powers of the will, which tend to destroy 
individual life and that of the surroundings; or, rather, not really 
powers of the will at all, if we mean by will the rational human 
will, but abnormally-developed natural impulses. Vice always in- 
dicates a lack of will. * * * The fundamental form of vice is 
*Page 478. 52 
SYSTEM OF ETHICS. 
lack of will power to harmonize the impulses; strong natural im- 
pulses gain absolute supremacy, while weak ones entirely dis- 
appear. When the sympathetic impulse or the instinctive faculty 
to anticipate in feeling the more remote consequences of acts, is 
poorly developed, and the defect is not remedied by education and 
self-government, the habit of selfishness and inconsiderateness 
arises. Certain impulses may be hypertrophically developed, and 
may gradually crowd out all others. So for example, in the case 
of the alcoholist, the desire for certain stimulants gradually in- 
creases in strength, and all other impulses die out, such as the im- 
pulse to work and acquire, the love of knowledge and spiritual 
activity. The sympathetic feelings and social impulses are like- 
wise weakened and finally extinguished, and with them shame and 
conscience, which at first reacted against the excesses, disappear. 
In the same way, life is debauched by other abnormally-developed 
impulses, by unbridled sexual impulses, by the impulse to acquire 
and possess property, which is intensified by rapacity and greed, 
by the love of fame and honor, which degenerates into ambition, 
etc.; these monopolize all powers and all strivings, and finally 
render the soul completely insensible to all other interests and con- 
siderations." * * * 
SELF CONTROL. 
*"The chief purpose of all moral culture is to fashion the 
rational will so that it may become the regulative principle of the 
entire sphere of conduct. We call the virtue or excellence which 
regulates our behavior and conduct by the rational will, indepen- 
dently of momentary feelings, self-control. We may also define 
it as the capacity to govern life by purposes and ideals. It is 
the fundamental condition of all moral virtues, the fundamental 
precondition of all human worth, nay, the fundamental charac- 
teristic of human nature. Animals are determined by blind im- 
pulses, but the specific excellence of man consists in his determin- 
ing his life by his will; without self-control, no freedom and no 
personality." 
"The Greeks call the virtue of self-control healthy-minded- 
ness. Senseless, foolish, is the man whom fear, anger, and desire, 
♦Page 483. DOCTRINE OF VIRTUES AND DUTIES. 
53 
control, causing him to act irrationally and to ruin himself;- 
healthy-minded, rational, on the contrary, is the man who keeps 
his wits even in difficult situations, and acts in accordance with 
the law of self-preservation." 
"Self-control assumes different phases, corresponding to the 
different forms of impulsive life. As its two fundamental aspects 
we may, with the Greek moralists, designate temperance and 
courage. Temperance may be defined as the moral power to re- 
sist desires attracted by tempting enjoyment, when the gratification 
of such desires tends to endanger an essential good. Courage is 
the moral power to resist the natural fear of pain and danger 
when the preservation of an essential good demands such re- 
sistance." 
♦"Temperance or moderation, the ability to resist temptation 
to sensuous pleasure, is the precondition of humanization. The 
animal is essentially blind impulse, in the satisfaction of which its 
life consists. Man, too, is endowed with an animal nature, but 
its purpose is to serve as the soil for a higher, spiritual life; this 
soil is prepared by the discipline of the natural impulses. The 
latter are not to be eradicated, that would mean insensibility and 
finally death, but their satisfaction is to be so regulated that they 
not only will not disturb the development of higher life, but 
rather assist it. The relation is reversed in the opposite habit, 
intemperance, which is not merely a relapse into an animal state: 
nay, the higher powers and gifts of man are here subordinated to 
sensuous desire. So in gluttony and the worship of the belly; all 
the arts of civilization are employed to excite and satisfy sensuous 
desires. So pleasure-seeking and also sexual dissipation have 
drawn into their service an entire industry of exquisite enjoy- 
ments." 
"Even the most superficial examination of the facts cannot 
leave us in doubt as to the value and effects of these two contrary 
modes of action. Intemperance, dissipation, inordinate love of 
pleasure, first of all destroy our sense and capacity for higher 
TEMPERANCE. 
♦Page 485. 54 
SYSTEM OF ETHICS. 
things; the will and the intellect are exhausted by excesses; finally 
the sensibility is blunted until at last even the faculty for enjoy- 
ment is lost. All passive enjoyments deaden the sensibilities; 
stronger and more refined excitations are constantly needed to 
procure feelings of pleasure through the exhausted organ, until 
at last the chronic state of dullness which is characterictic of the 
roue is reached; the power of the organism and its irritability are 
exhausted; nothing is left but the repulsive dregs of life. Temper- 
ance has the opposite effect; it makes the entire man healthy and 
vigorous, capable of action and enjoyment." * * * 
*"This virtue, like all habits, is acquired by experience. The 
foundation is laid by a good education. The best way to prevent 
the growth of excessive desires is to satisfy the natural needs in 
an appropriate and orderly manner. This can easily be done in 
a well-regulated household, but is extremely difficult under condi- 
tions of luxury as well as of poverty. Perhaps we can still agree 
with John Locke that an honest farmhouse is the best place for 
rearing a child. Gradually, the child may be encouraged to give 
up little things of its own accord; we cannot begin too soon in 
teaching the child the great art of life; to sacrifice today for to- 
morrow. The child then educates itself. The sense of honor 
may be appealed to as an ally against desire. The ability to bear 
privation with equanimity is so closely related to courage that 
the boy too sees the connection: it is weak and cowardly to yield 
to desire. Greek ethics is full of excellent moral advice on this 
subject. How disgraceful, it says, to be compelled to obey the 
animal or child in us, which is full of needs and desires; how 
beautiful and praiseworthy and in keeping with man's dignity, 
on the other hand, is the freedom and independence which is not 
disturbed by privation and want! Whoever succumbs to his de- 
sires is a slave to objects; they draw him now hither, now thither, 
through pleasure and fear. * * * These are sentiments which the 
youth of all ages can understand. When the sense of honor 
works in the opposite direction, as happens, to a large extent, in 
our times, the relation is an unnatural one. There are two essen- 
tial reasons for such perverseness. The first is the wish of the 
youth to show that he has the means, the second, that he has the 
*Page 487. DOCTRINE OF VIRTUES AND DUTIES. 
55 
power and the courage to indulge himself. The latter motive 
exercises a particularly strong influence upon the young man. He 
is afraid of being looked upon as a baby, standing in awe of the 
rod, or as a "goody-goody" boy, who is afraid of hell and the 
devil. * * * The satisfaction of his cravings becomes a matter of 
show. We are ashamed, to use Augustine's expression, of not 
being shameless." * * * 
*"The most fruitful method of counteracting the growth of 
cupidity and the inordinate love of pleasure is to train the in- 
dividual to efficient action. All successful exercise of natural 
powers and skill in labor and in play is, as Aristotle teaches, ac- 
companied by pleasure. And this pleasure is superior to the 
pleasure of passive enjoyment. It can be procured without the 
sting of desire. It is more independent of external conditions; 
enjoyment consumes, activity creates commodities. It is intensi- 
fied by repetition; for while passive pleasure increases the intensity 
of desire but dulls the faculty of enjoyment, action increases our 
efficiency; and the greater the skill, the greater the pleasure of 
exercising it. As in all cases, the better is here the enemy of the 
good; the pleasure which we derive from action, especially that 
resulting from play, is the most effective means of suppressing 
the pleasures of passive enjoyment." * * * 
or modesty is a modification of temper- 
ance, its inner form as it were. It is a moderation of desire as 
such, the moderation of the desire for wealth, and fame, position 
and pleasure. Unassuming modesty consists in habitually lower- 
ing one's pretensions to the level of one's fortunes. Its effect 
is contentment; and hence it is the safest guide to happiness, just 
as its opposite, covetousness, or cupidity, is the surest means to 
unhappiness." 
"Everybody is complaining of the rarity of contentment and 
of the prevalence of discontent. Although the conception of a 
past golden age of universal happiness is an optical illusion, the' 
growing discontent among the European peoples of the present 
is not an illusion. Discontent increases in direct proportion with 
inordinate desire, for the development of which the conditions are 
*Page 491. 
fPage 491. 56 
SYSTEM OF ETHICS. 
unusually favorable in our age * * * Is there no cure for this dis- 
ease? We are referred to the church and the restoration of its 
power. If by this we mean, not external power, but an inner 
frame of mind, humility and piety, then there can be no doubt 
that the remedy would prove effective. Perhaps nothing but true 
inner religiousness can give us perfect peace in regard to earthly 
things." * * * 
Contentment with what we have or what we can do when we 
might have something better and do something better, by making 
the necessary effort, is a vice and not a virtue. 
*"If you have children, help them. There are two ways of 
looking at life, one of which will certainly make it happy, the 
other unhappy. The first is the habit of regarding everything 
good that life yields as surpassing your expectations, and every 
misfortune as falling below them; the second is the reverse of this. 
You have it in your power to give your child either mood. Grant 
all his wishes, give him everything he sees, let him choose what 
he ought to eat and drink, what he ought to do and to leave un- 
done, remove all obstacles from his path, bear his burdens for him, 
praise his ability and goodness; in short, be all tenderness and 
devotion; and you may be sure that he will, upon entering the 
world, find it hard and niggardly; that he will be discontented and 
unhappy. If you are unwilling that this should happen, steel your 
own heart, and do not be afraid of being called an unnatural 
mother by all educated mothers." 
"Not long ago, I witnessed the following little incident: Once 
there were two little girls, perfectly healthy and cheerful, and 
blessed with the best of appetites. They went to visit an aunt, 
who loved them very much, and did everything she could to 
please them. She used to ask them before each meal what they 
liked to eat, and when the meal was served, what they preferred 
to have. Before two weeks had passed, these two little girls no 
longer enjoyed their food; one of them couldn't eat this, the other 
couldn't eat that; their plates were always half full, and at the 
end of every meal they were discontented and in tears. "How is 
it," asked the aunt, when the mother of the two girls came to see 
her, "that things are so different at home?" "I will tell you," 
♦Page 494. DOCTRINE OF VIRTUES AND DUTIES. 
57 
she answered, "At home I never ask them what they want, and 
never give them as much as they call for." 
"Happy the man whom fate treats in the same way. He 
that is able to choose each day what to do and what not to do, 
he that can have as much as he desires to have, will soon tire of 
life. Hence, be thankful that you do not get everything you ask 
for; learn to desire, so Marcus Aurelius counsels you, not that 
things govern themselves according to your wishes, but that your 
wishes govern themselves according to the things." 
♦courage. 
"By the side of temperance Greek philosophy places courage, 
the ability to resist painful, dangerous, and terrible impressions 
by means of a rational will. The former is the normal conduct, 
in respect of pleasure; the latter, of pain and danger. We may, 
with Aristotle, define both virtues as a mean between two vices: 
temperance is the proper mean between insensitiveness to sensu- 
ous enjoyment and licentiousness; courage the mean between 
abject cowardice and blind foolhardiness." 
"When an animal finds itself threatened by a hostile attack, 
we notice one of two things; either the attack rouses fear and 
impels it to flight; or it produces rage and rouses it to defend 
itself. The latter behavior is peculiar to beasts of prey, the 
former to their victims." * * * 
"Both modes of conduct are also found among men. There 
are men who run away like sheep at the first sign of danger. 
There are others, on the contrary, who, like beasts of prey, are 
straightway impelled to blind and ferocious attacks, when threat- 
ened or injured. Both modes of conduct are condemned by men, 
the former as cowardice, the latter as blind rage or foolhardiness. 
A different kind of behavior is required of man, and that is 
courage. That man is brave who, when attacked and in peril, 
neither blindly runs away nor rushes into danger, but retaining 
his composure, carefully and calmly studies the situation, 
quietly deliberates and decides, and then carries out his resolu- 
tion firmly and energetically, whether it be resistance and attack, 
or defence and retreat. Prudence, therefore, constitutes an essen- 
tial part of valor." * * * 
♦Page 495. 58 
SYSTEM OF ETHICS. 
"The origin of this virtue might be explained biologically, as 
follows: The most dangerous enemy of man is man. In battle 
with this adversary courage has been acquired; it is the means of 
defence against the most fearful weapon of attack, the intellect. 
Against this, neither blind flight nor blind aggression will avail, 
as is seen in the battle of man with animals. Fear carries 
the fleeing ones into his net, while rage brings the ferocious 
ones within range of his sword or gun. Such an enemy can 
be resisted only by means of the same weapon, the intellect; that 
is, by courage, by presence of mind in battle." * * * 
"Martial courage is the first form in which this quality re- 
ceives recognition, perhaps the very first virtue which wins admir- 
ation. Courage is originally the virtue, cowardice the vice, as 
the Greek and Roman usage of language attests. And the youth 
has no sincerer regard for any virtue than for stern and shrewd, 
and especially magnanimous courage." * * * 
*"As civilization advances, other forms of resistance come 
to surpass martial courage in importance. Chief among these I 
mention what might be called civil courage, independence of 
thought, characterful self-assertion against the great pressure 
exerted by superior and inferior forces. Civilization has the 
tendency to create relations of dependence; dependence upon 
men takes the place of dependence upon nature; dependence upon 
superiors and patrons, friends and fellow-partisans, customers 
and voters, society and public opinion. Dependence has the ten- 
dency to pervert the will; it inclines the individual to accommo- 
date himself, to let things take their course, to obsequiousness, to 
cowardly self-denial, to falsehood in every form. So the moral 
duty arises to develop the inner power of resistance which calmly 
and firmly opposes every attempt to subject the individual to 
established customs and authority, which serves and remains loyal 
to truth and justice, regardless of whether such conduct brings 
favor and popularity or disfavor and contempt. To remain true 
to oneself, that is the aim of such ideal courage. No one can 
have it, the center of whose life does not lie within himself; who- 
ever makes external things his ultimate goal cannot attain to inner 
freedom. Spinoza was, in his life and teaching, a great preacher 
of this doctrine of freedom." 
♦Page 498. DOCTRINE OF VIRTUES AND DUTIES. 
59 
Courage means the moral power to face without flinching 
either danger or difficulty which must be overcome in order to 
attain some object that we desire. To follow the line of least 
resistance may occasionally accomplish the result desired, but to 
make that the rule of life will usually end in disaster, physical, 
financial, moral and spiritual. 
Paulsen's assertion of the moral duty "to develop the inner 
power of resistance which calmly and firmly opposes every at- 
tempt to subject the individual to established customs and author- 
ity" does not mean that we may cut loose from authority and 
custom. These have most of them been established in the belief 
that they promote human welfare. We should not be enslaved 
by them, but should remember two things, first, that authority 
and custom are not infallible, and second, that "circumstances 
alter cases" and customs usually valid may occasionally need to 
be ignored or opposed. Very great courage as well as self con- 
trol is often required in young people to resist temptations of 
pleasure and self-indulgence especially when it becomes necessary 
to separate from pleasant companions. 
"Another form of courage is perseverance or persistence, 
the power of will to accept and continuously to endure all kinds 
of hardships and exertions, which are necessary to realize one's 
ends. It is the virtue of the working man. Martial courage was 
the virtue of the heroic age; perseverance is the courage of the 
industrial age. It is in this virtue that the civilized man so im- 
measurably surpasses the savage. The savage is capable of great 
momentary exertions, but not of making a continued effort to 
overcome the small obstacles in which all work consists. A partial 
reason for this is his inability to conceive far-reaching aims. 
Hence, as soon as the momentary pressure of want or of the 
natural impulse ceases, he yields to the law of inertia, which also 
governs living bodies." 
"The love of order may also be regarded as a phase of per- 
severance, the habit of doing everything with businesslike regu- 
larity; a very valuable quality, which procures for us freedom 
and tranquility. The consequence of disorder is confusion, which 
begets fear and trouble. This is especially true of the tendency 
to procrastinate. When our work is done we feel at peace, but 60 
SYSTEM OF ETHICS. 
when we put off our tasks we are constantly fretting about them, 
and are finally forced to perform them hastily and unsatisfactorily 
at an inopportune time." * * * 
I will give you two maxims relating to procrastination and 
advise you to use good judgment which to follow in the varying 
circumstances that arise. 
The lawyer says "Never do anything today that you can put 
off till tomorrow. You may know something about your case 
tomorrow that you do not know today." The business man says 
"Never put off till tomorrow anything you can do today, lest 
your opportunity may be lost." 
"Patience, too, is related to perseverance. It is the ability to 
bear pain and suffering without being overcome by them. We 
may distinguish two aspects of patience: a somewhat passive 
patience which bears sufferings without complaint and opposition, 
and the more active power of the soul, the ability to survive de- 
feats, disappointments, and losses, and to begin life anew. 
Patience is feminine courage. Both forms, especially the former, 
are more characteristic of women than of men; women not in- 
frequently display a remarkable capacity for enduring pain. This 
fact is evidently due to the natural difference of the sexes; women 
are more experienced in all kinds of suffering than men. A man's 
nature is impelled to attack and defence; hence he finds it more 
difficult to yield to the inevitable. But active patience, too, the 
elastic resistance of the soul, is one of the most beautiful and 
valuable qualities of the woman. It is harder for a man to get 
up again after he has met with misfortunes. A woman generally 
finds less difficulty in beginning anew; she soon begins to hope 
and fear again, to work and strive; she has a more flexible nature. 
Man's strength is more unbending and brittle. A woman is also 
better able to battle with long-continued troubles and obstacles; 
when a man impatiently sinks beneath the load, she retains her 
equanimity and even her cheerfulness. For that reason, woman 
is the born guardian of youth, the nurse of the sick, and the 
counselor of old age." 
"Great patience in suffering is the invariable mark of a noble 
character; courage and perseverance may belong even to a selfish 
and malicious will. Patient resignation in suffering is a sign that DOCTRINE OF VIRTUES AND DUTIES. 
61 
the violent natural impulse to life, which rebels against suffering, 
has been broken and silenced by a higher will. This is why 
sufferings which are accepted by the heart and patiently borne 
are expiatory." 
*"A third form of self-control is calmness, the ability to 
control, by the rational will, such emotions as result from dis- 
turbances in our relations with our fellow men; e.g., anger, vexa- 
tion, ill-humor. To the lack of this virtue, and to envy and pride, 
are due most of the disagreeable annoyances which wear out the 
lives of so many men. Without the ability to overcome the in- 
evitable petty collisions, intercourse with human beings becomes a 
constant torture." 
"Indeed, it is very strange. We know that we must always 
adapt ourselves to the nature of the things which we desire to 
subject to our purposes; only when it comes to human beings 
do we seem to forget it. A stone is in my way. I do not scold 
it, but walk around it or push it aside. A watch or a machine is 
out of order; we do not beat it, but inquire into the cause, or 
hand it over to an expert to mend the defect. But when a human 
being fails to do our bidding, when a neighbor displeases us, or 
a friend acts in a manner which we do not consider right, when 
a pupil does not know his lesson, or the soup does not taste right, 
we get angry and scold. As though abuse and anger were the 
panacea for governing human souls! A human soul is of all 
things in the world the most complicated and most difficult to 
handle; and hence the art of governing souls is the hardest of 
all arts. And since it is the most important art for our happiness, 
it surely deserves to be studied with greater care. The most im- 
portant thing in this art, however, is the ability to retain one's 
composure; only calm and prudent investigation will succeed in 
discovering the causes of the trouble, and not until these have 
been found can the proper attempts be made to remedy it. How- 
ever this may be brought about, whether by instruction, example, 
counsel, encouragement, assistance, admonition, entreaty, threats, 
punishment-under all circumstances, Bacon's word will hold 
good that he alone can rule Nature who obeys her. Any one, 
of course, can get angry and scold, but this is merely a confession 
*Page 500. 62 
SYSTEM OF ETHICS. 
of helplessness, and does not tend to improve matters; nay, it is 
apt to make them worse. Even where punishment is the proper 
remedy, it will be all the more effective if administered calmly 
and firmly." 
"The fruit of self-control, which reaches its completion in 
the virtues of temperance and unpretendingness, courage and 
perseverance, patience and tranquility is inner peace and cheer- 
fulness of mind. * * * This is not only in itself the greatest part 
of human happiness, but also the source of real human pleasures. 
The calm and cheerful soul is capable of the quiet pleasures of 
reflection: the forms of things are mirrored best in the tranquil 
lake. The social duties thrive in the contended heart-justice, 
veracity, tenderness, benevolence, faithfulness; and from these in 
turn spring the joys which friendship and domestic happiness 
yield." 
"This is the path which leads to self-preservation and wel- 
fare. Wisdom is needed to find and follow it. Hence, all 
peoples praise wisdom as the great guide of life. The royal sage 
of the Hebrews mingles his praises with those of the Greek phil- 
osophers : "Happy is the man that findeth wisdom, and the man 
that getteth understanding. For the merchandise of it is better 
than the merchandise of silver, and the gain thereof than fine gold. 
She is more precious than rubies; and all the things thou canst 
desire are not to be compared unto her. Length of days is in 
her right hand; and in her left hand riches and honor. Her ways 
are ways of pleasantness, and all her paths are peace. She is a 
tree of life to them that lay hold upon her; and happy is everyone 
that retaineth her. The Lord by wisdom hath founded the earth, 
by understanding hath He established the heavens."* 
♦Proverbs, III, 13-19. CHAPTER V. 
THE BODILY LIFE-FOOD AND DRINK-HABITATION AND CLOTHING 
-REST AND RECREATION. 
THE ECONOMIC LIFE-PROFESSION OR VOCATION FRUGALITY AND 
EXTRAVAGANCE. 
*"The function of the body is to serve as the organ and 
symbol of the soul. There is no difference of opinion concerning 
this practical estimate of the two phases of man's nature. Even 
the materialist, who regards the soul as a passing function of 
matter, will accept our proposition; for him, too, the body is the 
servant of the soul. Every one is likewise agreed as to what 
constitutes a good servant. To accomplish and endure much and 
to demand little-these are the qualities which we all consider 
valuable in a servant. These also determine what is desirable in 
a body; the healthy, strong and hardened body endures much and 
wants little; the sickly, weak, and pampered body does little and 
makes great demands. Hence follows the rule of duty: Do 
what is suited to preserve and increase the health and strength 
of the body; avoid what impairs and weakens it. The other 
function of the body is to express or symbolize psychical life. 
Beauty and grace are the visible corporeal manifestations of a 
good and beautiful soul. Grace is acquired beauty; the quiet 
security of the soul which is master of itself is reflected in quiet, 
steady and appropriate movements. Hence follows the rule of 
duty: Educate the body, so that it may appear in this visible 
world as a pleasing expression of the invisible beauty of the soul." 
"It must be left to dietetics and gymnastics to develop these 
general formulae into a system of rules. * * * I shall merely 
touch upon a few phases of the problem." 
"Let us first consider the question of nutrition. It is charac- 
teristic of human beings to prepare their food artificially and 
they do it universally with the aid of fire. The use of fire for 
♦Paulsen, page 505. 64 
SYSTEM OF ETHICS. 
this purpose plays an important part in the emancipation of man 
from nature. Whereas, the animal is limited to the territory pro- 
ducing the plants or animals upon which it feeds, and is itself 
a product thereof, man has made himself lord of the earth; every- 
where he finds what may, with the help of fire, be converted into 
food. In other respects, also, the use of fire in the preparation 
of food has exercised an important influence upon the develop- 
ment of human life. Wundt calls attention to the fact that by 
necessitating the common preparation of certain foods, it at the 
same time led to their common consumption; to it we owe 
the origin of the common meal at the hearth. With the meal is 
connected the sacrificial worship, growing out of the funeral 
feasts; the hearth becomes the altar. The meal, coming at regular 
intervals and dividing the day, also leads to the first division 
of time. The child still receives its first lessons in the discipline 
of the animal desires by governing its appetite according to the 
meals." 
"Let me add a word or two concerning degeneracy in nour- 
ishment. In emancipating himself from the natural guidance of 
instinct, which controls and likewise preserves the animal, man 
exposes himself to aberrations. The palate is stimulated by 
artificially prepared food, and the reception of food excites 
pleasure even when it is not needed. Gluttony and hoggishness 
are universally characterized by the perversion of the organs of 
nutrition into organs of pleasure. It appears that such abuse 
never occurs among animals, but that among human beings it is 
common to all ages and to all peoples. Travelers bring us hor- 
rible reports of the coarse forms of gluttony practiced by un- 
civilized tribes. All of these seem also to have hit upon the 
manufacture of intoxicating liquors, or to have introduced them 
into their countries from abroad." 
I think Paulsen must be wrong in saying that animals are 
free from gluttony. I think there are many accounts of animals 
gorging themselves to their extreme capacity to contain food, and 
every farmer knows that if horses or cattle get into the corn 
field or grain field or get access to the bin of oats or corn they 
will probably eat enough to kill them if not discovered in time 
to prevent it. THE BODILY AND ECONOMIC LIFE. 
65 
"Everybody knows to what extent the life of modern civilized 
nations is devastated by drunkenness. It seems that the Germanic 
nations have from time immemorial been more predisposed to 
this vice than the Romance peoples, which is, perhaps, to be ex- 
plained by conditions of climate. In certain parts of Germany 
a considerable part of the male population is directly ruined by 
drunkenness, and there is no country in which this vice does not 
cause the most serious disturbances. The immediate effects of 
drunkenness are these: the economic life becomes unsettled, 
family life is neglected and destroyed, the moral-spiritual life is 
brutalized and debauched. Pauperism, crime, a host of diseases, 
insanity, suicide, degeneracy of offspring, follow in its melancholy 
wake." 
"The conviction is growing among earnest and thoughtful 
men that a very serious danger here confronts the future progress 
of civilized peoples. How shall we meet it?" 
Paulsen's book was written in the nineteenth century, his pre- 
face to the American edition, which was translated from the 
fourth German edition, being dated in September, 1898. The 
public sentiment in favor of restraining or preventing intemper- 
ance has somewhat improved since then in Northern Europe as 
well as America. 
Paulsen covers eight pages with a discussion of the drinking 
and tobacco habits in Germany, and some of the other countries 
of Northern Europe, and the laws, and the moral and social in- 
fluences by which it has been sought to diminish the prevalence 
of these evils. 
In this country there has been a constant controversy for 
seventy-five years past between the advocates of a total prohibi- 
tion of the sale of intoxicating liquors and those who advocate 
a more or less severe control and supervision of such sales, by a 
high license, the prohibition of selling liquor to minors or drunk- 
ards, the closing of saloons at midnight or 1 a. m., as in Chicago, 
and other restrictive measures. (I believe there are now but 
few who would openly advocate leaving the sale of liquors as free 
as that of groceries and meats.) The wisest public policy re- 
specting the liquor traffic will vary in different communities, for 
the simple reason that the question of what ought to be done can 66 
SYSTEM OF ETHICS. 
only be answered after finding out what can be done. The 
principle of action should be to adopt the most restrictive laws 
that can be reasonably effective in administration. Every- 
thing should be done that can be done by the enforcement 
of good laws, for the prevention and control of drunkenness, but 
the chief dependence for the prevention or reform of bad personal 
habits of any sort must be upon moral, social and economic influ- 
ences, and these should always be made as potent as possible by 
every right thinking man and woman. 
A potent social influence for evil in this country is the cus- 
tom of "treating", which means that each man in the company in 
succession buys the drinks for all the company, with the implied 
social pressure, if not a recognized obligation, that each shall 
drink each time round. If there is a considerable number in the 
company, excessive drinking is inevitable. It is an absurd custom 
and all right-minded men should refuse to be governed by it, for 
it is every man's right and privilege, and also his duty (and is 
never a breach of really good manners) to control his personal 
habits in respect to food, drink, and clothing, in conformity with 
his own needs and welfare. There is another form of treating 
somewhat prevalent among temperate people to which but little 
serious objection need be made; this is for one person to invite 
the company, or several members of it, to go to the bar and 
drink with him before sitting down to dinner. In this case no 
one drinks but once and each exercises his own choice as to what 
he will drink, and may take a whisky, a cocktail, a beer or ale, 
or a lemonade or mineral water. This custom takes cognizance 
of the fact, which ought never to be forgotten, that intoxicating 
liquors should not be taken except at meal times (if they are to 
be taken at all). There is another matter of importance concern- 
ing the drink habit: It is well known that those who have once 
been slaves of drink and have freed themselves from such bond- 
age, find it necessary ever afterwards to be strict total abstainers 
for the smallest taste of liquor, or sometimes even the smell of 
it, is liable to awaken the old, uncontrollable thirst. It is, there- 
fore, a most urgent duty of everyone knowing about such people 
carefully to avoid putting temptation to drink in their way, and 
if they find such people in places or circumstances subjecting THE BODILY AND ECONOMIC LIFE. 
67 
them to temptation, every effort should be made to get them away 
from it and to support their will power in resisting it. 
The injury from the use of either liquor or tobacco is very 
much greater to growing boys than to mature men. Every boy, 
therefore, who wishes to attain his maximum of growth, health, 
strength and efficiency, should religiously abstain from all sorts 
of liquors, even from beer and wine, and from all forms of to- 
bacco, at least till he is twenty-one years of age. The consump- 
tion in the United States of both liquor and tobacco is enormous 
and most deplorable. Liquor drinking is undoubtedly far more 
injurious and destructive in the aggregate than the use of tobacco, 
but the latter, even if it can be conceded that it is sometimes bene- 
ficial to some individuals (which may admit of doubt), must be 
regarded as doing far more harm than good. Together, the 
liquor and tobacco habits constitute by far the largest part of the 
economic, moral and spiritual waste of which our aggregate popu- 
lation is guilty. 
The preceding paragraphs are somewhat less appropriate 
than when the first edition of this book was written; However, I 
have decided to let them stand. The adoption of the prohibition 
amendment and the passage of appropriate legislation for its en- 
forcement have developed a new aspect of the temperance ques- 
tion by adding to the moral, and social, and economic motives for 
temperance the moral obligation to obey the law of the land. 
There is at present a lamentably widespread disposition to evade 
or disobey the temperance laws and large numbers of people are 
ready to defend it on the plea that these laws are an unwarrantable 
invasion of personal liberty and privilege. It has doubtless hap- 
pened occasionally in the history of the world that it has become 
a conscientious duty to disobey a bad law. There were some 
thousands of people who held that opinion about the fugitive slave 
law in the middle of the last century. I believe there are very 
few people who will maintain that the drinking of intoxicating 
liquor is a conscientious duty in the interest of their own welfare 
or that of their friends. Unless that thesis can be maintained the 
defence for disobedience of the liquor laws on moral grounds 
vanishes. 68 
SYSTEM OF ETHICS. 
♦habitation. 
"The dwelling, originally a protection against heat and cold 
as well as against hostile attacks, has gradually far outgrown its 
original purpose: the cave, the tent, the hut, the house, the burg, 
the city-mark the stages of its evolution. Its mission has been 
enlarged so as to embrace the whole of civilized life. What cloth- 
ing is to the individual, the domicile is to the family. Within the 
walls of the house the family finds protection against all kinds 
of anoyances, and seeks refuge from inquisitive curiosity and in- 
satiate greed. In the home it reveals its character; the occupa- 
tion, the mode of life and thought of the family are expressed in 
the form furniture, and decoration of the house. The memories 
of the past, both joyful and sorrowful, cling to it, and so the 
dwelling becomes the necessary framework of the family history. 
It is no less apparent that the development of great historical 
institutions is closely connected with the evolution of the home; 
without the dividing walls of the individual's own hut, we cannot 
imagine the separation of the particular families from the original 
herdlike unity of the horde. The evolution of property rights is 
doubtless also closely related to the same dividing walls. More- 
over, by the side of the human dwelling erected by the individual 
rises the house of the gods, the temple, which has proved so stim- 
ulating to religion and the arts. The temple has also had a great 
influence, as Wundt remarks, upon the evolution of the sense of 
justice. The peace of God made the temple the refuge for fugi- 
tives. The temple-peace reacted upon the development of the 
house-peace: the gods avenged its breach, whether the offense 
were committed against the host or against the guest. Again; 
the first notions of international law owed their origin to the re- 
verence the tribes felt for the temples of kindred gods." 
"One of the most deplorable results of the recent develop- 
ment of social life is the forced abandonment by larger and larger 
portions of the population of the dwelling as the permanent home 
for the particular family, and the crowding together of great 
masses of people, who are unknown to each other, into the tene- 
ment houses of our large cities. * * * It would be a great bless- 
ing if the modern means of transportation could be so perfected 
♦Page 515. THE BODILY AND ECONOMIC LIFE. 
69 
as again to disperse the crowds of people whom they have poured 
into the large cities. Many families, who are at present living in 
crowded tenement houses, to their great injury, could, even now, 
if they so desired, and ceased regarding a bad habit as a natural 
necessity, occupy their own homes in the suburbs." * * * 
A house should be built with reference to the health, comfort 
and convenience of those who are to live in it, and should be 
furnished with the same ends in view and so arranged as not to 
require unnecessary labor to care for it, the idea being always in 
mind that the house is to be the servant of the family, to make 
easy the culture and development of life upon its higher levels of 
moral and spiritual expression. 
It seems to me usually, (probably not always) a waste of 
money to spend enough to build twenty or thirty comfortable 
houses on one great mansion, to be occupied, perhaps, by two or 
three people besides the servants. On the other hand, the eco- 
nomic pressure that puts so many families in a very few rooms 
in large apartment buildings seems to me very deplorable in the 
case of young people who have, or ought to have, families of 
children. Every man who can possibly afford it is wise if he puts 
his wife and children in a single house with as much ground 
about it as possible. 
♦cLOTHING. 
"The original purpose of clothing was partly to protect, 
partly to decorate the body and to reveal the importance of the 
wearer. Its negative object was to conceal the animal portions 
of the body, leaving only the face, the symbol of the spiritual 
powers, uncovered. Dress has retained this dual nature in the 
vicissitudes of historical life. The costume symbolizes rank and 
office, age and sex, joy and sorrow, temperament and mode of 
thought, time and people. By means of clothing, the historical 
and social position of the individual is constantly impressed upon 
him and his surroundings. Indeed, we may say that dress is so 
essential that historical life and social order cannot be imagined 
without it; naked men are unhistorical men. Sameness of ex- 
*Page 517. 70 
SYSTEM OF ETHICS. 
terior marks brutes as unhistorical beings, dissimilarity in dress 
is the outward manifestation of historical and social beings. 
Hence, historical changes in the life of nations reveal themselves 
in changes of costume; try to imagine Luther in a swallowtail 
coat and a white cravat, or Goethe with a mustache and a cut- 
away, and you will see that dress is as characteristic of man as 
an historical being as its skin is of the animal. The abolition of 
the old class distinctions and the leveling tendency of the nineteenth 
century clearly manifest themselves in the disappearance of class 
costumes. On the other hand, the dress of the state, the uniform 
has become more prominent; distinctions spontaneously created 
by society are giving way to distinctions made by the state. 
Furthermore, the uniform is an excellent means of uniforming 
and controlling the inner man. It compels the wearer to repre- 
sent the office and to obey orders; he cannot retreat, he must seem 
to be what the uniform proclaims him to be, and so becomes it. 
What would an army be without uniforms?" 
"The difference between costume and fashion consists in 
this: the latter is an arbitrary invention of particular individuals 
and lasts only for a short time. Its climax is marked by the 
complete decline of costume. Fashionable attire differentiates 
its wearer, makes a 'distinguished' person of him, not so much 
because it is a sign of taste, wealth or costliness, but because 
it creates the impression that he is a leader in society or that he 
stands close enough to the leaders to notice the changes immedi- 
ately and to keep pace with them; hence, also, the need of rapid 
changes. Fashion is the feminine form of sport or speculation, 
and is, like all sport, capricious and tryannical, stimulating its 
followers to do their best. The health and welfare of many a 
woman, the peace and happiness of many a home, are sacrificed 
to this tryant without a mumur. Should the psychologist succeed 
in inventing a process for the transformation of psychical forces 
-as the physicist has for changing thermal or electrical forces 
into motion-and should the process ever succeed in converting 
but one-half of the energy which the women who obey the dic- 
tates of fashion expend in destroying their comfort, welfare and 
freedom, into other forces of self-sacrifice, the invention would 
presumably produce a greater increase in real happiness among THE BODILY AND ECONOMIC LIFE. 
71 
civilized humanity than all the inventions of this century put to- 
gether." 
There are but few things in life in which individual taste, 
comfort and health should determine conduct independently of 
any minute or slavish conformity to fashion more than in matters 
of dress. Some fashions should be emphatically condemned on 
physiological grounds. Such was the former fashion of tight 
lacing and small waists, now happily obsolete. Such is the pres- 
ent fashion of high heeled shoes, and the exposure of neck, 
shoulders, back and arms without regard to temperature, and 
the bare legs of children except in summer weather. 
No one likes to depart so far from prevailing fashions as to 
be needlessly conspicuous, but if fitness, good taste and beauty are 
accomplished one may be fairly independent of the prevailing 
modes. 
♦exercise. 
"Another part of dietetics is the development and exercise 
of bodily powers. Life is, according to Aristotle, action; the body 
deteriorates when it cannot act. These powers are exercised in 
two ways; in play and in work. Work is the exercise of powers 
for an external end; in play the activity is an end in itself; it has 
no end outside of itself; it is free activity; while work is con- 
strained or unfree action. Play is especially characteristic of 
youth. In the life of the adult it is overshadowed by work; but 
it is not wanting here and cannot be wanting without depriving 
life of an essential element. A country consisting entirely of 
fertile cultivated fields would not wholly please us; we should 
miss the heaths and the forests, the moor and the wilderness; we 
should miss the poetry of freedom. Nor would a life please us 
that consisted wholly of useful work; without play it would be 
without the poetry of freedom." 
"It cannot be denied that with the advance of civilization, 
certain dangers are threatening life from this side. The sphere 
of play is becoming more and more restricted, and work is grow- 
ing more monotonous and mechanical. In primitive stages of civ- 
ilization, work is freer and more varied; it has something of the 
♦Page 519. 72 
SYSTEM OF ETHICS. 
character and charm of play. That this is true may be seen from 
the fact that civilized men indulge in hunting and fishing as a kind 
of play and sport. Agricultural pursuits, too, are quite free and 
full of change; each season yields new forms of action. The 
peasant practices a hundred arts; he handles numberless tools and 
comes in daily contact with a thousand living and lifeless things. 
The work of the mechanic is not so free; he is tied to his work- 
shop; the circle of his activities is narrow; his work consists 
rather in the constant repetition of the same performance, which 
consequently becomes more mechanical. He is not so dependent 
on nature, upon the weather and the seasons, but more dependent 
upon human beings." * * * 
"The greatest sufferers are the young, and those of the higher 
classes perhaps suffer most, because they are subjected to such 
conditions for a greater length of time. The truth that life is 
movement is especially applicable to the young. Their impulses 
are directed towards the exercise of bodily powers; they desire 
to run and to climb, to jump and to dance, to build and to destroy. 
There is neither room nor opportunity for such action in the 'flat.' 
Free and unimpeded play is utterly impossible. * * * In polite 
society the child instead of playing, is taken out for a stroll by 
the governess, or goes to the doll bazaar, or attends a children's 
party. But all these artificial things do not satisfy our children, 
inasmuch as their love of movement and exercise cannot be 
suppressed, they are in the way in the metropolitan household. 
Under these circumstances, the school proves to be a veritable 
refuge: there they are taken care of and kept busy for a number 
of hours each day, and then a few more hours are consumed at 
home in preparing lessons. Among the upper classes a few more 
lessons in music and drawing are deemed indispensable, and after- 
wards a few more hours are devoted to novel-reading and card- 
playing. And so it happens that young people, from fifteen to 
twenty years of age, at a time when the body needs most exercise, 
spend ten, twelve or fourteen hours sitting down, until the body 
gradually becomes accustomed to it, and the desire for exercise 
gives way to a general feeling of torpor. In this way the founda- 
tion is laid, during the period of youth, for the ailments by which 
the members of good society might easily recognize each other THE BODILY AND ECONOMIC LIFE. 
73 
in case all the other characteristics should ever disappear: indiges- 
tion, nervousness, and near-sightedness. And all the physicians 
and watering places in the world cannot restore what nature 
gratuitously bestows upon him who keeps her commandments: 
namely, a state of healthy exhaustion and a sound sleep, a good 
appetite and good digestion." * * * 
RECREATION. 
*"In conclusion, let me allude, in a few words, to the opposite 
of action, to rest and recreation. Activity means expenditure of 
energy; hence nature demands that activity be suspended in order 
that the loss may be restored. Regular, long periods of rest for 
the entire psycho-physical system follow the changes of day and 
night. Jewish tradition has established an additional period of 
rest in the Sabbath. This is a highly beneficial institution: one 
that is so interwoven with our life and feelings as to seem like 
a part of the natural order itself. How was it possible for the 
Greeks and Romans to live without their Sunday? Finally, dur- 
ing more recent years, it has become customary for those engaged 
in the higher pursuits to lay down their work for longer intervals; 
vacations, which were originally confined to schools, have gradual- 
ly extended to other circles. The need for them evidently grows 
as the work becomes more arduous, systematic and monotonous. 
Hence, it is to be assumed that greater portions of the population 
will be affected by the custom." 
"Periods of rest have a double purpose: first, the restoration 
of consumed energy; secondly, the exercise of functions not 
employed in the regular calling. The latter, too, is recreation. 
Those whose calling makes especial demands upon their mental 
powers will find recreation in the proper exercise of their bodily 
powers, in play, in travel, in mechanical activity; those, on the 
other hand, whose work chiefly calls into play physical forces will 
find relief in mental activity, in reading. Social pleasures, music, 
games of all kinds, are excellent means of recreation for all alike." 
"A proper balance between work and recreation is an essen- 
tial condition of health, efficiency, and happiness. An excess on 
either side is equally dangerous. It is now universally admitted 
♦Page 527. 74 
SYSTEM OF ETHICS. 
that the development of industrial production has led to an in- 
tolerable excess of mechanical work. The efforts of the labor 
party to shorten the working time merit our entire approval. 
Work must not make a slave of man, but should enable him not 
only to acquire commodities, but to develop his powers. He 
should not be a mere tool, but a personal end in himself. When 
this becomes impossible, when daily labor leaves only time enough 
for the necessary animal functions of nutrition and sleep, man's 
life ceases to be a human life." 
A very important part of education consists in the formation 
of good habits of living. This training should be begun immedi- 
ately after birth by the regular and proper feeding of the young 
infant, and a fair amount of wisdom and attention on the part 
of parents, nurses, and teachers during the formative period of 
childhood should result, by the time the child is ten or twelve 
years old, in the establishment of a wholesome routine of bodily 
habits and functions that will prove a good foundation upon which 
the youth, between that time, and, say, twenty years of age, may 
consciously acquire such self-control and wisdom in the order- 
ing of his own life as may pretty well insure health and long life, 
except as life may be endangered by what may be called accidental 
diseases or injuries. Good habits of bodily life relate, first, to 
the character and amount of food taken and the manner of taking 
it; the latter especially is very important, and meals should be 
eaten at regular times as nearly as practicable, and food should 
be thoroughly chewed and mixed with saliva before it is swal- 
lowed. The teachings and example of Horace Fletcher in regard 
to the manner of eating have benefited a great number of people, 
and it is much to be desired that the whole population should 
form such habits as he recommends. 
This fundamental requirement of long-continued good health 
makes it imperative that a good chewing apparatus should be 
acquired and preserved, which can only be done in most cases 
by the faithful co-operation of the dentist and the individual 
from childhood. It is very important, also, that food be not 
mixed and contaminated with fermenting or decomposing rem- 
nants of food left over in the mouth from previous meals. It 
is important moreover, to abstain from eating except at meal THE BODILY AND ECONOMIC LIFE. 
75 
times. The much too prevalent habits of taking candy, or sweet- 
meats or almost any sort of food or drink that may happen to 
be convenient (except water, which may be taken freely at almost 
any time) at any hour of day or night is very injurious and pretty 
surely brings its punishment sooner or later, though young people 
are often able to stand a great deal of abuse of this sort without 
evil effects that they become much conscious of, and when the 
evil consequences do manifest themselves so as to force attention, 
such effects are often attributed to the wrong causes. 
Next in importance to eating proper food in a proper manner 
is an abundant supply of pure air and a good habit of breathing 
it. Filling the lungs to their capacity, repeated a number of times 
in succession, and several times every day, in pure outdoor air 
when possible, will do very much to ward off infections of tuber- 
culosis or pneumonia, and to promote the elimination of toxic 
matters, which accumulate in the blood, thus helping to keep the 
mind awake and alert, and the disposition cheerful. The move- 
ments of the diaphragm and abdominal muscles in deep breath- 
ing will also help digestion. The control of a sufficient supply of 
pure air at the right temperature is not so surely or easily under 
individual control as are habits of eating and breathing, but most 
persons can do it at night by opening windows, and when sleeping 
the temperature can be very much lowered without injury or dis- 
comfort. Every one should use such opportunities, influence, or 
authority as he may possess toward procuring proper ventilation 
and heating for himself and others with whom he is associated. 
(This is not the place to discuss Problems of heating and ventila- 
tion.) 
The problem of supplying sufficient moisture in air artificially 
heated is important, also, and practically rather difficult. If air 
at a temperature of 70 degrees F. and saturated with moisture 
be cooled to zero, it will part with a very large portion of its 
water, which will be deposited in dew or rain or snow. The 
capacity of air to absorb moisture is so greatly increased by warm- 
ing it that even a saturated atmosphere at 20 degrees or lower 
will be much too dry for wholesome breathing when heated to 
70 degrees. The colder it is out of doors, the dryer it will be 
in the house, and if the cold air, instead of being saturated, has 76 
SYSTEM OF ETHICS. 
only 60 to 70 per cent of humidity, it becomes correspondingly 
dryer after being warmed. As a matter of fact, in ordinary 
houses and offices, etc., heated by steam or hot-water coils, the 
air all winter is much dryer than the dryest air of the western 
desert plains. It seems pretty certain that the excessive heat and 
dryness, together with the foulness of the air due to imperfect 
ventilation, contrasted with the coldness and moisture of the out- 
of doors air, are chiefly responsible for the much greater preva- 
lence of colds, catarrhs, influenzas, tonsilitis, grippe, and pneu- 
monia in winter and spring as compared with the summer and 
autumn. The solution of the problem how to moisten the warmed 
air sufficiently is not altogether easy, and has in most cases re- 
ceived very little attention. Houses heated by a hot-air furnace 
usually have a pan of water adjacent to the firepot, which may 
evaporate from two to four gallons a day-which helps some- 
but is only a fraction of what is needed. The water pan should 
be much larger exposing greater evaporating surface, or be close 
enough to the fire to boil the water, which would probably in- 
crease the evaporation sufficiently. If heating is by steam or 
hot-water coils, it is still worse, as usually managed. If sufficient 
water can be boiled, allowing the steam to escape into the rooms, 
that will solve the difficulty, or if a small jet of steam can be 
allowed to escape from the coils, not more than will be absorbed 
by the air without condensing in a drip, that would moisten 
the air. 
Cleanliness is, of course, of the utmost importance. The 
morning bath of cold water is hardening and invigorating for 
those who react promptly and find it agreeable, but for cleanli- 
ness, a bath with warm water and soap is needed, perferably at 
bedtime. 
It is an excellent habit, just before retiring to wash face, 
neck, and hands, and to thoroughly clean teeth, mouth, throat and 
nose, and to repeat the same on rising in the morning. Such 
habits of cleanliness are necessary for personal health and com- 
fort. A dentist or physician is so constantly in close proximity 
to other people that scrupulous personal cleanliness and frequent 
changes of underclothing are more necessary from a business 
point of view than for men in many other occupations. And it THE BODILY AND ECONOMIC LIFE. 
77 
is very needful that personal linen, office coats and all towels, nap- 
kins, and similar articles about the office should be as nearly im- 
maculate as possible. 
A sufficient amount of physical exercise is as necessary for 
health and long life as personal cleanliness. The daily routine of 
a dental practice requires a much greater amount and variety of 
physical exertion than that of a lawyer, a banker, a bookkeeper, 
and many other employments that might be named, but it is not 
sufficient unless supplemented by regular or occasional exercise 
of some sort in the open air. Probably the most certain and 
satisfactory way to get it is in the ordinary routine of living; by 
walking back and forth to the office or to trains, taking care of 
the furnace, cutting kindling, shoveling snow, making a garden, 
cutting the lawn, and the other chores and errands which a man 
of family is apt to find waiting for him at night or urging him out 
of bed in the morning. If these are denied to a man, the next best 
things are active outdoor amusements, like golf, tennis, horseback 
riding, or "hiking" about with a camera: anything he takes enough 
interest in that requires active exercise in the open air. If none 
of these are available, gymnastic exercises done with no other 
motive than the exercise itself may answer fairly well, but these 
are better if done in the gymnasium, and the swimming tank, with 
the added interest and stimulation of comradeship and competition, 
than if done in solitude at home. 
Efficiency and usefulness are very closely related to bodily 
health and vigor; therefore, the duty to serve one's family and 
society involves the primary duty to preserve health and strength 
by every available means, to the end that one may be an efficient 
instrument for service. Also, the personal satisfactions derived 
from well-balanced and normal physical powers are very great 
and are proper objects of desire and endeavor. 
THE ECONOMIC LIFE. 
♦"The economic life has its origin in the natural needs which 
man shares with the brute. When the functions engaged in the 
satisfaction of these needs are systematized by reason, two in- 
stitutions arise which form the basis of economic life: labor and 
♦Paulsen, chapter 4, Page 529. 78 
SYSTEM OF ETHICS. 
property. The accumulation of commodities, which is the original 
form of property, enables man to free himself from the slavery 
of momentary needs, to which the animal is subjected. This 
freedom is the pre-condition of all real human life; without it 
there can be no systematic, purposive activity, no mental-historical 
life. Through it, what remains a natural process in the animal 
world is raised to the moral sphere." * * * The acquisition and 
consumption of commodities impose moral duties upon the in- 
dividual. 
"In the more highly developed stages of civilization, labor 
assumes the form of a calling or profession. Professional ef- 
ficiency and fidelity to calling are the virtues peculiar to this 
field. 
"Under healthy conditions, the duties of the calling form the 
center of one's entire life. The boy practices his future profes- 
sion in play; the youth leaves the parental home to learn it, and 
the man devotes his whole energy to it. The vocation determines 
our essential relations to the external world; it brings us into con- 
tact with our colleagues during the periods of work and rest; and 
upon it depends the manner in which we exercise our faculties in 
play. Hence the calling is the guiding principle in life; it gives it 
steadiness and purpose." 
"The teleological necessity of the calling becomes apparent 
when we consider the consequences of its lack. Both rich and poor 
may be without a calling. The individuals without a calling who 
form the lower fringe of society constitute the proletariat. This 
group is composed of those who have no steady work, but wander 
from place to place and beg or steal, or otherwise gain their liveli- 
hood. Aversion to work, dissipation, drunkenness, recklessness, 
vanity, are the vices which draw individuals into this group. More- 
over, this mode of life is transmitted by heredity; degenerate fam- 
ilies raise degenerate offspring." * * * 
"Another group of persons who have no calling is formed at 
the upper fringe of society. I mean the professional idlers who 
live on their interest and absolve themselves of the duty of having 
a calling. Looked at from the outside, their manner of life differs 
from that of the other class; seen from within, however, it shows 
many points of resemblance. Besides, these two classes come into THE BODILY AND ECONOMIC LIFE. 
79 
personal contact with each other; they meet in the demi-monde and 
among the gambling fraternity. Both congregate in large cities, 
both have peculiarly perverse notions of honor, both, above all, 
are restless in disposition and unsettled in their movements. * * * 
Nothing is required of the rich idler, so he takes up now one 
thing, now another, only to abandon it again at the earliest oppor- 
tunity. The ability to will, which simply means the ability to 
persevere, even in the face of temporary distractions, is gradually 
lost when not exercised, and the victim perishes from an incur- 
able softening of the will." * * * 
"Man was not designed by nature merely to enjoy, but to 
work and acquire. However plausible it may at first sight appear, 
the attempt to live a life of enjoyment merely, has invariably 
failed. Toil and pleasure, that is an old law of nature; without 
the former, we cannot obtain the latter." * * * 
"Not only do we owe it to ourselves to pursue a serious call- 
ing, but likewise to society at large. The man who refuses to work 
in some way or other lives at others' expense. This is no less true 
of one who idly spends his inheritance than of the professional 
beggar or thief. From the legal point of view, the former con- 
sumes what belongs to him and does no wrong; from the moral 
standpoint, however,-that is, in reality,-he accepts the products 
of others' labor without making any return; he lives as a parasite 
at the table of the people, without helping to defray the costs." 
* * * 
There are no circumstances and relations of life in which it 
is more necessary to obey the "golden rule" than in economic rela- 
tions, such as those of employer and employed, seller and buyer, 
landlord and tenant, the management of manufacturing in relation 
to combinations of work people, and the mutual relations and 
treatment by each other of professional men and their patients and 
clients. Also there are no circumstances and relations in life where 
it is so difficult to determine what the golden rule requires or to 
achieve even approximate obedience. One of the practical difficul- 
ties in obeying the golden rule is in the fact that its perfect obedi- 
ence must be mutual. You cannot do to another what you would 
wish him to do to you unless he will treat you in the same way. 
To cite an extreme instance. If a man encounters a robber and 80 
SYSTEM OF ETHICS. 
has both power and opportunity it is indispensable that he kill the 
robber or get him shut up in prison, neither of which he would 
wish the robber to do to him. It is true enough that in the ordi- 
nary circumstances and affairs of every day life it is easy 
for people of right character and good habits to determine at once 
what the golden rule requires of them, but if you think it always 
easy, just try it sometime when you are up against a compli- 
cated question of conduct or policy, when many people are in- 
volved and numerous interests and relations will be promoted or 
hindered. You will sometime have to decide how much charity 
work you can afford to do and for whom you will do it, or how 
small a fee you can afford to take from some man or woman whose 
income will not possibly enable them to live in any such circum- 
stances of health and comfort as you do yourself. Sometime you 
will have to decide how large a fee you dare ask from some 
wealthy patient who ought in the first place to compensate you 
liberally and in the second place may rightly be required to help 
you carry the poor people who can pay you less than you ought to 
receive. 
Or suppose you try to tackle some larger question, such as, 
what wages and what conditions of living should be possible; for 
instance for teachers, clerks, mechanics, railroad men, miners and 
laborers, and on the other hand what salaries are fair and just for 
the men whose executive ability and management enable them to 
carry on a great corporation so as to make large profits instead of 
large losses. You will find that such questions are indescribably 
complicated and difficult, far more difficult than they would be if 
all people, instead of only a part, were sincerely trying to obey 
the golden rule. You will find that even approximate observance 
of it will sometimes require every bit of knowledge, experience, 
intelligence and good judgment you can possibly acquire in addi- 
tion to a right character and intention. CHAPTER VI. 
THE SPIRITUAL LIFE AND CULTURE. 
SCIENCE AND ART, HONOR, SELF-KNOWLEDGE 
From the standpoint of religion, and especially of Christian- 
ity, spiritual life implies the knowledge of God and loyalty and 
obedience to His laws, whether they be spiritual laws, or moral, 
physiological, social or economic laws, and the human aspect of 
such loyalty and obedience takes the form of good will and of 
service in all human relations. 
Ethics concerns itself with the moral quality of human char- 
acter and conduct. Paulsen, therefore, in his System of Ethics, 
limits his discussion of the spiritual life to its human aspects. I 
am unable to write it so well and will quote freely. 
*"By culture we mean the perfect development of spiritual 
life. It consists in the capacity, acquired by instruction and prac- 
tice, to take an active part in the spiritual life, first, of a people 
and ultimately of humanity." 
"We note as the two essential phases in the spiritual life of a 
people, knowledge and the creative fancy, philosophy and science, 
art and poetry. Culture, therefore, means for the individual the 
development of the intellect to the end that he may know the truth, 
and of the senses and the imagination, that he may comprehend 
and enjoy the beautiful." * * * "Knowledge has a double 
function. The intellect is, first, the organ of the will; its function 
is to adjust the latter to its environment. As was indicated before, 
the feeling of pleasure and pain may be regarded as the most prim- 
itive form of knowledge. The senses * * * enable the animal 
to understand its more remote surroundings and to adapt itself to 
what is useful or harmful. Sensibility develops into intelligence, 
which may be defined, in a general way, as the faculty to know 
from what is given that which is not given. * * * Man suc- 
ceeds in discovering the ultimate and constant relations * * * 
♦Page 543. 82 
SYSTEM OF ETHICS. 
which are expressed in the formulae which we call laws of nature, 
lhe knowledge of them gives him theoretical and practical con- 
trol of the nature of things: he is able not only to foresee the 
complex processes, which the animal, too, may, in a certain meas- 
ure, foresee, but also to explain them-that is, to deduce them 
from their causes, and, in so far as the causes are in his power, to 
produce them. Thus, the intellect has become the powerful instru- 
ment by which man has made the earth his servant. He has tamed 
the animals or exterminated them, he has selected and formed the 
plants which cover the earth, he has compelled the forces of nature 
to do his bidding. Knowledge is power. 
"But knowledge also has another, an immediate value. In the 
animal it is absolutely subservient to practical needs, in man it 
becomes free; he takes a disinterested interest in contemplation, 
so to speak. This holds even of sense perception. The eye finds 
pleasure in forms and colors, the ear, in notes and their rhythmical 
musical successions; hence arise music and painting. From the 
same pleasure in the contemplation of things springs philosophy. 
Philosophy is purely contemplative knowledge. * * * qqie 
Socratic school, in which it was first used as a technical term, dis- 
tinguishes philosophy, as purely theoretical knowledge, from tech- 
nical knowledge. * * * In this most general sense, philosophy 
is a universal human function; mythology is its most primitive 
form; it universally arises as an attempt to comprehend the whole 
of things into one conception; and to interpret the meaning of the 
universe and especially of life." 
"This estimate of knowledge will furnish us with a standard 
by which to measure the value of particular forms of cognition. 
We shall say that a particular truth has value in so far as it tends to 
increase our practical power, and our theoretical insight into the 
nature of things in general. Knowledge which has no value in 
either sense, which accomplishes nothing for our technics or for 
our philosophy, has no value whatever. The proposition * * * 
Everything that is, is worthy of being known, is not infrequently 
proclaimed in our age as the highest principle of scientific re- 
search. I cannot help regarding this as a meaningless assertion- 
one, however, that is accepted by many as a convenient means of 
silencing the question concerning the value of particular investi- THE SPIRITUAL LIFE AND CULTURE. 
83 
gations. Apparently, however, the true scientist does not adhere 
to this principle. In spite of the assertion that everything that 
exists deserves to be known, no historian has ever undertaken to 
ascertain what such and such a celebrity or "obscurity" has had 
for breakfast or dinner every day of his life. * * * Nor has 
any scientist ever attempted to count the grains of sand on the sea- 
shore, and to describe the forms of the separate grains. Why not? 
Surely because healthy common sense, if not scientific insight, in- 
stinctively recognizes the uselessness of such a task. It must be 
added, however, that we cannot always tell in advance whether 
an investigation will yield results which may have some bearing 
on knowledge in either form or not. In no case, perhaps, has 
healthy common-sense betrayed such shortsightedness as in its re- 
pudiation of scientific research as useless trifling or curiosity." 
There appear to be two rather distinct types of men engaged 
in scientific or philosophical research; those who distinctly and 
avowedly have some utilitarian end in view, and those who disclaim 
any such motive, and are sometimes disposed to make the absence 
of any utilitarian motive the test of true scholarship. Of the first 
type were the old alchemists, seeking to transmute base metals into 
gold; Edison, working out the problems of the telephone, the 
phonograph or the storage battery; and our own Dr. Black deter- 
mining the physical properties of amalgams, of gold, and the 
enamel and dentine of natural teeth. Men of the second type are 
mostly connected with the educational institutions, and much good 
work is being done by some of them. There would seem to be little 
ground for the assumption of superiority of one class of research 
workers over the other, for men of the first sort have often spent 
years of patient work and missed at last the utilitarian end they 
sought, and on the other hand the most important utilitarian ends 
have sometimes been accomplished by men who were not seeking 
for them, and in some instances perhaps did not recognize them 
when they saw them. 
*"The same principle applies when it comes to judging the 
value of knowledge for the individual. Cognitions have no abso- 
lute value for the individual, they have value in so far as they do 
*Page 547. 84 
SYSTEM OF ETHICS. 
something for him, either by solving his practical life-problems, 
or by assisting him in his philosophical reflections, or, in other 
words, in so far as they make him wiser and more prudent. 
Knowledge which does neither one nor the other, which does not 
make him either more efficient in his calling or more skillful in 
contemplation, has no value for him whatever. If we call the 
knowledge upon which profesional efficiency is based professional 
or technical education, and that upon which rests the ability to 
contemplate, to participate in philosophy, literature, and art, gen- 
eral culture, we may say: Only such knowledge is valuable to 
the individual as either serves to give him professional culture, or 
intensifies his general culture, or does both." 
"And this would give us a principle for the guidance of in- 
struction: Everybody ought to acquire such knowledge as will as- 
sist him, on the one hand, in following his special calling to the 
best possible advantage, and, on the other, in understanding the 
world from his position in life." * * * 
*"That school will be best for the individual which, on the 
one hand, is suited to his individual talents and tastes, and, on 
the other, to his future calling and position in life. * * * 
The principle holds absolutely: Knowledge which the individual 
cannot utilize, either on account of natural incapacity, or in con- 
sequence of his external position, is of absolutely no value to him." 
"Yes, we may go further and say it is an evil. This becomes 
self-evident when the individual is lacking in talent. To know 
too much for his capacity makes a man not wiser, but more stupid. 
We must discriminate between stupidity and ignorance. Ignorance 
is a lack of knowledge; stupidity is a lack of judgment, and may 
go with great learning, nay, it may, under certain circumstances, 
be due to this. A good anecdote is told of the Duke of Wellington. 
A young man once applied to him for an office. After conversing 
with him for a while, the Duke refused his application, adding: 
"Sir, you have received too much education for your brains." 
* * * 
*"If a man's inner life is consistently and harmoniously devel- 
oped, if he has digested and, as it were, converted into organic 
♦Page 549. THE SPIRITUAL LIFE AND CULTURE. 
85 
substance and living force whatever opinions and experiences he 
has acquired at school and in the world, he is a well-educated man. 
Not the mass of material, but the inner form is what makes educa- 
tion. Matter without form produces semi-education, over-educa- 
tion, pseudo-education, or whatever we may call this degeneration 
of the soul." 
"Art, like philosophy, is also based, partially at least, on pure 
contemplation. If play is, in distinction from work, the free 
exercise of powers, and not a means to an external end, while in 
work an external effect, or product, is desired, art, as well as phil- 
osophy, belongs in the category of play. All occupation with the 
fine arts is playful or purposeless exercise of sensuous-spiritual 
powers." * * * 
"Art is also partially rooted in feeling and willing. Every 
stronge emotion is accompanied by the desire to express and com- 
municate itself. The joys and pangs of love, martial courage, and 
sadness, yearning and reverence, seek and find relief in poetry and 
song. By the rhythmical-melodious arrangement of words and 
notes, the feelings themselves are aroused. And so the will and 
the mood of a people and an age are expressed and objectified in 
the great creations of epic and dramatic poetry as well as in the 
creations of the plastic arts and architecture. Gothic art mani- 
fests the mood of towering supernaturalism, which contemns and 
repels the earthly sensuous world,-corporeality with its pleasure 
and heaviness. In the Renaissance the opposite mood asserts 
itself; its architecture and fine arts, its costumes and house-fur- 
nishings, its poetry and music, all of them express the determina- 
tion of the age to abandon itself, with the enthusiasm and exhuber- 
ance of youth, to the contemplation and enjoyment of everything 
charming and agreeable, till it seems as if the age felt the need of 
making up for lost time." 
"It is the highest function of art to shape and express the 
ideals which the spiritual life of a nation creates. The ideal world 
reaches its highest expression in a supramundane superhuman 
world, in which perfection has absolute reality for faith. Thus art 
becomes the organ of religion. Its highest function is to realize the 
♦Page 556. 86 
SYSTEM OF ETHICS. 
innermost cravings of a people, to contemplate its ideas of perfec 
tion in concrete forms. So the plastic arts produced concrete 
representations of the Greek gods,-glorious figures in which the 
Greek's ideals of human culture were made visible to him. Simi- 
larly Greek poetry gave to the people in its epics and dramas living 
pictures of divine and human excellences, such as courage, loyalty, 
devotion, magnaminity, prudence, wisdom, piety. Christian art, 
too, has performed the same necessary function of converting the 
realm of faith into a world of concrete intuitions. The entire 
mediseval art, architecture, sculpture, painting, music, and poetry, 
had for its sole object the presentation of the world of Christian 
faith, in the form which this had assumed in the Germanic mind, 
to the senses and the entire man." 
"We may therefore describe the effect of art upon the soul 
as follows: (1) It exercises our sensuous spiritual powers and 
so fills our leisure moments with the purest and most beautiful 
recreation and pleasure. (2) It satisfies and quiets the cravings 
of the emotions to express themselves, by providing them with the 
necessary stimulus and affording relief. (3) It raises the soul 
above the world of work and need, struggle and misery, to a world 
of freedom and ideals, and purifies it from the dust of base feelings 
and passions with which the affairs of daily life cover it. The 
inner uniformity and harmony which constitute the essence of all 
art also bring uniformity and harmony into the soul. Finally 
(4) it binds together and unites the members of the nation, nay, all 
the members of a sphere of civilization; all those who have the 
same faith and the same ideals. Opinions and interests differ and 
produce discord; art presents in sensuous symbols the ideals which 
are cherished by all, and so arouses the feeling, that all are, in the 
last analysis, of the same mind, that all recognize and adore the 
same ultimate and highest things." * * * 
"If this is a correct description of the nature and effect of art, 
it follows that it is a universally human function. Art is not 
something peculiar to a few nations and to a few individuals 
among them, but all nations have an art to express their emotions, 
as they have a language to express their ideas. And just as all the 
members of a people participate in its language, though not 
equally, so all of them, in a measure, participate in its art." THE SPIRITUAL LIFE AND CULTURE. 
87 
*"The love of honor may be regarded as a peculiar modifica- 
tion of the impulse of self-preservation; it aims at the preservation 
of the self in consciousness, in our own consciousness as well as 
in that of others. We may call it the impulse of ideal self- 
preservation" 
By honor in the objective sense we mean the good opinion 
which others have of us. Conversely, by dishonor we mean the 
evil opinion which others may have of us. 
A person's character, manifested by his appearance, manners, 
opinions, speech and conduct generally, as understood, or perhaps, 
misunderstood, forms the basis for the measure of honor or dis- 
honor accorded him by those who know him. 
Personal honor, the estimation in which a man holds himself 
depends upon the degree of his conformity to his own ideal of what 
his character and conduct ought to be. 
"There are as many different kinds of honor as there are 
groups or sets to which a man belongs. As a member of a poli- 
tical community, he has a political honor; it measures his value as 
a citizen. * * * Besides the political honor, there is special 
social honor. Everybody is a member of society; his value as such 
is measured by his social honor." * * * 
"Within these comprehensive groups there are narrower cir- 
cles each having its particular form of honor; we speak of the 
honor of a merchant, the honor of an artist, the honor of an officer, 
the honor of a student, etc. Its possession signifies that the indi- 
vidual satisfies the special demands that are made upon him by the 
particular set to which he belongs." 
"Collective bodies, too, like individuals, have their honor; a 
family has its family honor among other families, * * * a 
profession among other professions, a nation among other nations. 
The individuals have a share in this collective honor; let an Eng- 
lishman's honor be what it may among Englishmen; among 
foreigners he has the honor of an Englishman in general. This 
collective honor is a highly important factor in all collective life; 
it firmly cements the members of a community together. The fam- 
HONOR AND LOVE OF HONOR. 
Page 569. 88 
SYSTEM OF ETHICS. 
ily honor holds the members of a family together, even after they 
have lost their love and respect for each other; all of them would 
have to suffer the disgrace of a single member." 
"The significance of honor for human conduct is obvious. 
* * * As a rule honor is increased by everything that in- 
creases the power and influence of an individual. We may men- 
tion such qualities as strength, skill, courage, military skill; these 
qualities are pre-eminently honorable in primitive society. * * 
♦ Then come wealth, which too means social power; birth and 
rank, which give power, namely through family connections; and 
finally prudence, knowledge of the law, and eloquence, qualities 
which, with the progress of political development, enable their 
possessors to attain to higher positions, either as leaders of the 
people or as officers of the state. The types depicted in the Greek 
epic are the simplest examples of these different forms of fame 
and distinction. Achilles stands for strength and courage; 
Agamemnon, for rank and wealth; Ulysses and Nestor for prud- 
ence and eloquence. Finally, the moral excellences also belong, in 
a certain sense, to the qualities which bring honor and which the 
love of honor impels us to acquire. Intemperance, dissipation, 
and extravagance, bring disgrace, at least after they have ruined 
the person addicted to them, for then friends who once applauded 
him forsake him. The opposite modes of behavior, on the other 
hand, preserve wealth and strength, and so, ultimately at least, 
lead to honor. Falsehood, on account of its kinship with coward- 
ice, if for no other reason, brings disgrace; likewise deceit and 
dishonesty. Veracity, trustworthiness, and uprightness, on the 
contrary, give one a good name. Thus honor becomes the guar- 
dian of morality; the love of honor tends to determine the will to 
develop, first of all, the self-regarding virtues, and then also to 
acquire the social virtues, or at least to avoid injustice, falsehood, 
and crime." 
"No detailed account is needed to show the importance of this 
impulse for the moral education of the race. The development of 
the human virtues in the species: courage, magnanimity, justice, 
veracity,-the development of higher capacities, economic as well 
as mental, is hardly conceivable without this constantly acting 
impulse. * * ♦ THE SPIRITUAL LIFE AND CULTURE. 
89 
*"The proper attitude of the individual towards honor, the 
virtue into which the impulse of honor is fashioned, we call the 
love of honor. We may define it as that habit of will and mode 
of conduct which seeks to gain the recognition of the virtuous and 
good by means of honest and virtuous actions. Perhaps we may 
characterize it suitably, from two points of view, as proper pride 
and proper humility." 
"Pride (which is not to be confused with haughtiness) is the 
antithesis of two degenerate forms of the impulse of honor: vanity 
and ambition." * * * 
The distinction between pride, considered as a virtue (for the 
word "pride" is often misused when vanity, self-conceit, or ambi- 
tion would be appropriate) and vanity and ambition, is that the 
two latter seek for admiration, influence, power, etc., as a first con- 
sideration, and care little or nothing for the quality of character 
and conduct except as a means by which to attain those ends. 
Pride, on the contrary, seeks first the character, and conduct, and 
service, that will merit admiration, honor and power, hoping that 
such rewards may come, but holding fast to character and service 
whether they do or not. The virtuously proud man holds himself 
so far independent of either praise or blame that he will not allow 
himself to be turned aside from either virtue or duty by either. 
f "The other antithesis of the love of honor is proper humility. 
Pride manifests itself in the proper acceptance of honor, humility 
in the proper bestowal of honor." 
"Humility is the opposite of haughtiness. The haughty man 
despises others, he treats them condescendingly. By refusing to 
show them proper respect, he endeavors to keep it for himself, as 
it were, and so to have an advantage over them. He does not seek 
converse with men, indeed he actually shuns it, because he finds 
that his expectations with respect to honor are not realized, and 
because he is not willing to satisfy the claims of others. It is 
evidently for this reason that haughtiness and pride are so easily 
confused. Haughtiness is, moreover, very commonly connected 
with servility. The man who treats those whom he regards as his 
inferiors with brutal haughtiness, crouches before the mighty. He 
♦Page 573. 
fPage 576. 90 
SYSTEM OF ETHICS. 
uses all the arts of subservient flattery toward those who are un- 
questionably richer, more aristocratic, powerful, and influential 
than he, in order thus to rise on the ladder of rank; he revenges 
himself on those below him, and it affords him special satisfaction 
to kick his patron as soon as he has outstripped him. In this way, 
he gets back his capital with interest." 
"Humility, on the other hand, gives everyone the honor which 
is his due. It rejoices at the merit of others, and is ever ready to 
recognize ability, to admire excellence, and to reverence goodness. 
Genuine humility-this is its true sign-and genuine free-minded- 
ness go together. The humble, free-minded man bows before 
what is truly honorable, even when it appears in menial form, and 
refuses to mere external power what belongs to the venerable 
alone. It is with pride that he sides with those who are outraged 
for the sake of truth and justice, and he considers it an honor to 
suffer disgrace and persecution with them. The word of the judge 
on the judgment day applies to him: T was in prison and ye came 
unto me!' 
*"With true pride and true humility, true self-esteem finally is 
joined. The proper estimate of oneself may be defined as a mean 
between pusillanimity and superciliousness. Pusillanimity is 
habitual faint-heartedness in regard to the problems which life 
sets before us; it weakens our capacity to act and to suffer. Super- 
ciliousness springs from underestimating our tasks and overesti- 
mating our powers; it regards exertion as superfluous, and so is no 
less productive of failure than is faint-heartedness. * * * 
True self-esteem, which marks the efficient man, gives him con- 
fidence in his own will and powers, and upon the latter depend 
security in decision and firmness in execution. * * * The 
proper estimate of one's own worth, of one's own powers and 
achievements, knozvledqe of self, constitutes a particularly difficult 
problem of self-culture. * * * How can we learn to know 
ourselves? Never bv contemnlation. but always bv action. Trv 
to do your duty, and you will know at once what is in you."f 
♦ * ♦ 
"Modesty may be defined as the outward form of the love of 
♦Patre 578. 
fGoethe's words in his Sprtiche in Prosa. THE SPIRITUAL LIFE AND CULTURE. 
91 
honor. The modest man shows by his entire behavior that he does 
not despise the opinion of others, but that he desires to make an 
effort to gain their esteem. The opposite demeanor is that of the 
overbearing man; his acts proclaim that he does not care what 
others may think of him. When such conduct is displayed toward 
especially venerable people, we call it insolence and impudence, the 
sign of a low and servile disposition." * * * Chapter vh. 
COMPASSION AND BENEVOLENCE. 
JUSTICE-MAGNANIMITY. 
*"The sympathetic feelings and impulses form the natural 
basis of the social virtues. Such will-impulses are called sympa- 
thetic in distinction from idiopathic impulses, which originate di- 
rectly in the individual-as are aroused in us by transference from 
others, by a kind of contagion. All feelings have the tendency, 
though in different degrees, to spread by sympathy, as for example, 
pleasure and pain, fear and hope, love and hate, contempt and 
admiration, cheerful exhuberance and earnest solemnity. The 
passions aroused by a speech in a large popular gathering are much 
more intense than those which arise when the same persons read 
or hear the same speech separately; it seems as though the feelings 
were reflected from every feeling-center in the meeting to every 
other one, and the rays concentrated in each individual as in a 
burning glass." 
"Blood-relationship is the natural starting point of the sym- 
pathetic feelings. They manifest themselves most intensely and 
directly in the relation between mother and child. * * * 
From this point sympathy extends to the members of the family, 
tribe, people, humanity, to all living creatures." 
"Of all feelings pain seems most capable of arousing sym- 
pathy. Language shows this: we have a term for sympathetic 
pain only, in compassion. No terms have been coined to desig- 
nate sympathetic pleasure or fear.-It is doubtless true that joy 
is not so easily transferred by sympathy." * * * 
"Happiness may produce in others that peculiar form of pain 
which is called envy; unhappiness or misfortune, on the contrary 
may produce in others a malicious pleasure. These are well known 
phenomena which the pessimistic philosophers love to dwell upon." 
♦ * * 
*Page 592. COMPASSION AND BENEVOLENCE. 
93 
It is, however, a mean and ungenerous nature that finds 
pleasure in the misfortunes and griefs of others and is pained 
by their success or good fortune, and I prefer to reverse the above 
rule and to show our confidence in the love and good will of our 
friends by telling them freely of our joys, and successes, and 
prosperity, believing it will give them pleasure without exciting 
their envy. And on the other hand to avoid paining them by a 
recital of our griefs, or misfortunes, or difficulties unless they 
may be able to give us substantial help, or by their sympathy and 
encouragement may strengthen our courage and patience or inspire 
us with hope for the future. 
*"The sympathetic feelings, and especially compassion, evi- 
dently have the same significance for conduct that all feelings have: 
their object is to guide the will in the business of life. Just as 
idiopathic pain impels the individual to remove the evil or the 
disturbance which threatens his own life, so compassion tends to 
determine the will to remove the causes of pain from the lives of 
others." * * * 
"In human life, however, feeling impulses are never adequate 
guides of action, but require the regulative control of reason, * 
* * and to be guided by wisdom. The virtue which thus arises, 
the general fundamental form of the social virtues, may be called 
'benevolence' and defined as that habit of the will and mode of 
conduct which tends to promote the welfare of the surroundings 
by hindering disturbances and producing favorable conditions of 
life." 
"In benevolence, compassion is overshadowed by well-doing 
beneficence. The benevolent and beneficent man prevents or alle- 
viates the sufferings of others without always having to feel com- 
passion himself. Nay, a certain power of resistance is as much a 
part of benevolence as it is a part of courage to be able to resist 
idiopathic pain, or a part of temperance to be able to resist the 
temptations of sense. We do not expect a physician to suffer 
with the patient all the pains which he witnesses or perhaps causes 
himself. On the contrary, a certain obduracy on his part is the 
condition of beneficent action; his compassion would obscure the 
clearness of his judgment and interfere with the steadiness of his 
♦Page 595. 94 
SYSTEM OF ETHICS. 
movements. It is well known that physicians do not like to treat 
their nearest relatives because their pity interferes with their skill. 
But not only is freedom from pity needed to give the physician 
greater security in the practice of his art; it also has a directly 
beneficial influence. The physician enters the sick room and 
makes his examination and gives his orders with business-like 
serenity; he does not pity nor fament. His calmness has the most 
wholesome effect; some of it is communicated to the relations and 
the patient. * * * Qn the other hand, consider the influence 
of visits from relatives and friends! Frightened by the appearance 
of the patient and overwhelmed with pity, they break out into 
tears and complaints, and so increase his sufferings by their com- 
passion and excitement." 
"The same thing happens in other cases. A tender mother 
doubly suffers the pains which her child feels. If the child fall and 
hurt himself, she is overcome with pity. The result is that the 
child now really begins to feel the pain; he does not cry out until 
he has been pitied, when he regards himself as an object of pity. 
And the permanent effect of such treatment is a sort of whining 
nature, which is not a pleasant endowment for life. Another 
mother, who loves her child just as much, bandages the wound if 
necessary, diverts the child's attention from the accident; and lo! 
the pain actually disappears when it is resisted. As a permanent 
consequence, the child, in a measure, becomes hardened to such 
things, and so receives the best possible equipment for life that 
education can give. To love one's children is natural, and neither 
a virtue nor an art, but to educate children is a great and difficult 
art, which demands, first of all, the ability to control one's natural 
tender impulses. We must not let our children know how much we 
love them, says an old wise maxim, which, however, does not suit 
the sentimentalism and vanity of modern mothers." 
It is certainly possible to exercise the self-control and wisdom 
indicated in the preceding quotation without in the least concealing 
from our children the ardor and sincerity of our love for them, and 
this we should strive to accomplish, for the consciousness of the 
unwavering, wise and self-denying love of its parents is the 
strongest influence for good that ever comes into the life of a child. 
"We may therefore say: Compassion is the natural basis of COMPASSION AND BENEVOLENCE. 
95 
the social virtue of active benevolence, but it is by no means a 
virtue itself. * * * Like every phase of impulsive life, it 
must be educated and disciplined by reason; in the rational will it 
is both realized and limited,-realized in so far as it attains its 
end, the furtherance of human welfare, limited in so far as it is 
prevented from doing harm." * * * 
It is sometimes taken for granted that the frequent infliction 
of pain, as is necessary in the practice of dentistry, will result in 
hard-hearted indifference to human suffering. Probably this may 
happen to one having a cruel disposition. (Cruelty means taking 
pleasure in witnessing or inflicting pain and suffering). Such an 
effect upon a dentist's disposition need not and ought not to happen. 
It is true that he must acquire steady control of nerves and muscles 
for all of his operations, however painful, but so far from becom- 
ing indifferent to the pain he causes, he should become skillful to 
do his work with the least pain consistent with good operations, 
and skillful and sympathetic to help his patients to bear such pain 
as is necessary. 
*"We distinguish between two phases of benevolence: a 
negative phase: not to retard welfare; and a positive phase: to 
promote welfare. These two phases, regarded as special virtues, 
give us the virtues of justice and love of neighbor" 
"Justice, as a moral habit, is the tendency of the will and mode 
of conduct which refrains from disturbing the lives and interests 
of others, and, as far as possible, hinders such interference on the 
part of others. This virtue springs from the individual's respect 
for his fellows as ends in themselves and as his coequals. The 
different spheres of interest may be roughly classified as follows: 
body and life; the family, or the extended individual life; prop- 
erty, or the totality of the instruments of action; honor, or the 
ideal of existence; and finally freedom, or the possibility of fash- 
ioning one's life as an end in itself. The law defends these dif- 
ferent spheres, thus giving rise to a corresponding number of 
spheres of rights, each being protected by a prohibition: Thou 
shalt not kill, commit adultery, steal, bear false witness against 
the honor of thy neighbor, and interfere with his liberty. To 
JUSTICE. 
♦Page 599. 96 
SYSTEM OF ETHICS. 
violate the rights, to interfere with the interests of others, is 
injustice. All injustice is ultimately directed against the life of the 
neighbor; it is an open avowal that the latter is not an end in 
itself, having the same value as the individual's own life. The 
general formula of the duty of justice may therefore be stated as 
follows: Do no wrong yourself, and permit no wrong to be done, 
so far as lies in your power; or, expressed positively: Respect 
and protect the right" 
If ideal justice could be accomplished it would mean that no 
one should suffer harm in person, health, property, reputation or 
character, and that every one would be free to develop his own 
life according to his own ideal of life, and conversely that no one 
would harm anybody in any of these particulars. 
The desire and attempt to bring this about has developed the 
whole of our legislative and administrative machinery and our 
courts, judges, lawyers, juries, police force, and prisons, and is 
the only moral justification for armies and navies. 
No legislature has ever tried to command everything that 
ought to be done or to forbid everything that ought not to be 
done. Those things are commanded by law or authorized by 
charters, franchises, etc., that are necessary for the community 
welfare, like schools, roads, bridges, public buildings, water works, 
gas companies, railroads, parks, etc. Those things are forbidden 
by law that threaten the life or the welfare of the community or 
the individuals composing it. The strongest motive for the enact- 
ment and administration of laws is for the self-preservation of 
communities, states and nations. Many pernicious and objection- 
able modes of conduct, like intemperance, dissipation, ingratitude, 
mendacity, and numerous forms of cheating, profiteering, oppres- 
sion, slander, etc., are for the most part outside of any effective 
control by statute law. Such offenses and vices must be dealt 
with by custom, education, spiritual ministration, and the personal 
insight of the individual. 
It is the duty of every one to promote justice not merely by 
living justly himself, but the state may require him to serve as 
witness, juror, soldier or official, or to help the officers of the law 
in the discovery, arrest and conviction of criminals. Many shirk 
this part of a citizen's duty if they can. If they happen to see a COMPASSION AND BENEVOLENCE. 
97 
robbery or a pocket picked they are apt to show about as much 
haste to get away from the place as the criminal, lest they be 
required to lose a little time and take some trouble to appear as 
witnesses. 
Many able men seem to think because we employ police officers 
and sheriffs to hunt and arrest criminals they are absolved from 
all responsibility or duty in the matter. The truth is that officers 
of the law find difficulty enough to find and arrest criminals if 
they receive all the help that private citizens are able to give them. 
*"The jurist properly emphasizes the duty to respect and pro- 
tect others' as well as our own rights by lawful means, and even 
by violent means if necessary. The moralist, on the other hand, 
will insist, with equal propriety, that this duty is not absolute, that 
the duty to respect and protect the right must be limited and sup- 
plemented by the demands of equity and magnanimity" 
"Equity demands that we voluntarily resign claims and acts 
to which we have an undoubted formal right, so that our own inter- 
ests may not be advanced at a relatively greater damage to those 
of others. This is a demand, not of law, but of morality, which, 
it must not be forgotten, is rooted in the very nature of justice. 
* * * To insist rigorously on one's rights would sometimes be 
violating the very spirit of justice, for justice really demands that 
the different interests be fairly apportioned, but it cannot, on 
account of its mechanical nature, wholly adapt itself to the indi- 
vidual cases, and hence can realize its end only imperfectly. It 
appeals to the fairmindedness of the interested parties for help, 
and now and then expressly authorizes the judge to make revi- 
sions in the interest of equity." 
"Magnanimity is the virtue which does not requite personal 
injuries, but overlooks them, and does not embrace the oppor- 
tunity for revenge, even though it present itself. Christianity goes 
so far as to demand love of enemies. Love him who sins against 
you, as a brother, and not only bear him no grudge, but forgive 
him with all your heart, and return good for evil." 
"The command of the Gospel seems difficult and almost un- 
natural. * * * Has not nature herself taught all living crea- 
tures to resist attacks so that they may defend themselves and have 
♦Page 616. 98 
SYSTEM OF ETHICS. 
peace? Certainly, we must admit it; and resistance and resent- 
ment, both private and public, are justifiable in their proper place. 
But they are not in every case the proper means of establishing 
and ensuring peace, and hence the command, 'Resist every infrac- 
tion of the law by all lawful means,' cannot have absolute validity. 
"Spinoza furnishes us with the psychological formula for it: 
'Hatred is increased by hatred, and can, on the other hand, be 
destroyed by love. Hatred which is completely vanquished by 
loves passes into love; and love is then greater than if hatred had 
not preceded it.' Hence, 'The wise man endeavors, so far as he 
can, to render back love and kindness for other men's hatred, 
anger, and contempt.' And with a warmth not usual to him the 
mathematical judge of human affairs adds: "He who chooses to 
avenge wrongs with hatred is assuredly wretched. But he who 
strives to conquer hatred with love, fights his battle in joy and 
confidence; he withstands many as easily as one, and has very 
little need of fortune's aid. Those whom he has vanquished yield 
joyfully, not through failure, but through increase of their 
powers." ■- 
*"If, then, both modes of conduct are justifiable, the question 
arises: How are we to limit the command of forgiveness and the 
command of retaliation? When is the former, when the latter, 
in place? It will not be hard to give a general answer: That 
form of conduct is always appropriate and dutiful, which in each 
case tends to realize the ultimate end, the avoidance of further 
injustice and promotion of lasting peace. If to forget and to for- 
give were the means of hindering theft and of preserving the insti- 
tution of property, we should undoubtedly make exclusive use of 
this means. If retaliation and punishment were the sole and surest 
means of making him peaceful and kind who treats us impolitely, 
unkindly and uncivilly, we should also know what to do. The 
trouble is, different cases require different treatment and it will 
often be impossible to determine with certainty what is the most 
effective, and hence, most appropriate method of procedure in a 
particular instance. It certainly cannot be indicated by moral 
philosophy in universal propositions or categorical imperatives. 
Only experienced moral tact, which takes into account all the 
♦Page 619. COMPASSION AND BENEVOLENCE. 
99 
concrete circumstances, can discover the proper course to pursue 
in each particular case, which, however, does not exclude the pos- 
sibilities of error. Moral philosophy can perhaps merely indicate 
the general points of view from which each case must be con- 
sidered. We may mention the following: (1) Forgiveness is 
possible when the offence is directed against a particular person; 
punishment is necessary when the offence is directed not so much 
against a particular person as against custom and law in general. 
Theft, for example, is not a crime against the particular person 
as such, but against the institution of property. * * * (2) It 
is a fact that we are apt to be reconciled and inclined to forgive- 
ness by remorse. And justly so. Remorse is a sign that the 
offence was not the expression of the offender's permanent will,- 
that it was the result of error, accident, haste, or carelessness. If 
no attention is paid to his remorse, if we react by punishing him 
or taking revenge, a revulsion of feeling is likely to ensue. His 
remorse vanishes, he has expiated his wrong, nay, he is apt to 
feel that he has more than expiated it, and he now has, instead of 
a debt to pay, a claim which he will take up as soon as opportunity 
offers. * * * When, however, remorse is lacking, when a 
conscious and stubborn will, when impudent malice, commits the 
wrong and boasts of it and rejoices in its iniquity, punishment 
is necessary to terrify and to break the wicked will; perhaps the 
nature of the will may even be transformed in this way. * * * 
The criminal authorities, too, endeavor to take these things into 
account, but they cannot, in the very nature of things, easily adjust 
themselves to the particular circumstances, and to this is due 
the inadequacy of public punishment as compared with that em- 
ployed in education. It necessarily somewhat resembles the 
mechanical process of nature, which does not consider the intention, 
but merely the objective facts. Then, again, the judge as a rule, 
has no means of testing the genuineness of remorse." * * * 
"The third item is the following: Wherever persons live 
together in permanent relations, as husband and wife, brother and 
sister, inmates of the same house, relatives, neighbors, etc., the 
command of Jesus, not to forgive your brother seven times, but 
seventy times seven, will be especially in place. Slight collisions 
are always inevitable where persons live close together. Whoever 100 
SYSTEM OF ETHICS. 
insists upon his rights in every instance makes life intolerable for 
himself and his surroundings. A certain measure of toleration is 
an absolute precondition of peaceful intercourse. 'Be not right- 
eous overmuch,' the word of the Preacher, applies here; that is, 
be careful to give everyone his just dues, but do not always rigor- 
ously insist upon your own rights. And also remember the ninth 
commandment and the interpretation put upon it: Speak well of 
thy neighbor and turn all things to good! To good! This is excel- 
lent advice. Your brother is close and rather fond of money,- 
say he is economical and a good manager; he has a tendency to 
express his views somewhat strongly and without regard for the 
feelings of others,-say he is sincere and loves the truth; he is 
fonder of enjoyment and social pleasures than you deem neces- 
sary,-say he is cheerful and light-hearted. The man who cannot 
see the good in things, who always looks at them from the worse 
side, who is constantly finding fault, cannot live with men, and will 
do well to avoid contact with them as much as possible." * * * CHAPTER VIII. 
LOVE THY NEIGHBOR. LIMITATIONS, CHARITY. SELFISHNESS, LOVE. 
LIMITATIONS, CHARITY. 
♦"Besides justice, the negative side of benevolence, we have 
love of neighbor, the complementary, positive side. We may define 
it as that habit of will and mode of conduct which assists those in 
want, and strives to promote the welfare of others by active sym- 
pathy. It is the great commandment of Christianity. In the last 
judgment man's worth will be measured by this standard. 'Then 
shall the King say unto them on his right hand,-I was an hun- 
gered, and ye gave me meat: I was thirsty, and ye gave me 
drink: I was a stranger, and ye took me in: naked, and ye clothed 
me: I was sick and ye visited me: I was in prison and ye came unto 
me.' Three times more these works of mercy are enumerated,- 
a sermon powerful in its grand simplicity." 
"The commandment is so simple and clear that no doubt can 
arise as to its meaning." * * * Questions and difficulties arise 
when we seek to obey the command in every day living. If every 
opportunity to help others, with time or money, were to be 
accepted, most people would soon be without money for their own 
needs or the needs of their families, and without time for their 
own affairs. It is evident, therefore, that there are practical limit- 
ations to the services to be rendered to one's neighbors. 
"(1) The duty to care for the welfare of others is limited 
first, by the duties that grow out of one's own life. The indi- 
vidual's first duty is to develop and exercise the capacities and 
powers which are given him, and to make his own life beautiful 
and good. His own individual life is the field which it is his 
special mission to cultivate. For this work he is especially fitted 
by natural inclination and insight. In the last analysis every man 
knows what is good for him better than anybody else. * * * 
And so we shall be obliged to say: Each person does the most 
♦Page 638. 102 
SYSTEM OF ETHICS. 
for himself and others when he makes the most of him- 
self." * * * 
"We cannot question the validity of the universal proposi- 
tion. The difficulty lies in its application to concrete conditions. 
* * * This cannot be dicided by the general formula of duty, 
but only by a consideration of the concrete circumstances; it will 
ultimately be decided not by the reason but by the heart. And, as 
a rule, we shall feel inclined to applaud the man who obeys his 
heart more than his reason in these things. We admire the hero- 
ism of a woman who resolves to follow her husband into solitudes, 
into exile, or into imprisonment. We respect the sister of charity 
who sacrifices her life and gives up everything to nurse strangers 
upon their sick-beds during the long weary days and nights. We 
say it is altogether possible that such a nature develops and exer- 
cises the gifts with which it is endowed-a warm heart, a skillful 
and tender hand, a consoling courage-most perfectly in such a 
calling, and so realizes the fullest and most beautiful form of life 
possible. But-what is good for one is not good for all." 
"(2) The duty of caring for the welfare of my neighbor must 
be limited in another way; I must guard against destroying his 
independence, * * * for self-reliance is a general precondi- 
tion of a healthy and normal life. The object of all help is, after 
all, to make help superfluous. * * * In education we have 
an example of the most comprehensive and deliberative care for 
others. It is governed solely by the consideration that we must 
train the pupil so that he can take care of himself." * * * 
"(3) There is, finally, a third restriction, or rather narrower 
detrmination, of the universal duty of love of neighbor: that made 
necessary by our special duties toward special neighbors. Every 
man is related to persons who have special claims upon his benevo- 
lence and active sympathy-to children and parents, relatives and 
friends, servants and laborers, neighbors and inmates of the same 
house. His strength and possessions belong to these first of all." 
* * * 
"By these special conditions, the virtue of charity or love of 
neighbor is confined to a fixed channel, as it were, through which 
it flows as a permanent stream and fructifies its banks. Here, 
too, everybody knows with some degree of certainty what is good LOVE THY NEIGHBOR. 
103 
for those nearest to him, but it is much more difficult and often 
impossible to tell how to help strangers. And here, too, we must 
think of the collective bodies to which the individual belongs. The 
community and the nation have legitimate claims upon him, and 
their permanent charitable institutions supply him with a safe 
channel in which to exercise his sympathy with others' welfare." 
"The formula of the love of neighbor: care for the welfare 
of others, must therefore be limited and supplemented as follows: 
In so far as this can be done without neglecting the problems of 
your own life, without violating the special duties which arise 
from your special relations to individuals and collective bodies, 
and, finally, without weakening the self-reliance of others." 
*"Common sense, by beneficence, means above all, so-called 
almsgiving, and popular opinion is to this day somewhat inclined 
to regard almsgiving as absolutely meritorous. * * * Moral 
philosophy cannot subscribe to this view, except to a very limited 
extent. Promiscuous almsgiving perhaps results in more evil than 
good. * * * If a beggar's life is not a good life, then alms- 
giving, which promotes beggary, is not beneficence. * * * If 
the flooding of a country with beggars is a plague, it is evidently 
an offense against the welfare of the country to encourage the 
thing. To be sure, the prohibition of mendicancy and almsgiving 
ought simply to be the other side of organized public charity, 
which finds work for the unemployed and helps those in need. 
* * * A particularly deplorable form of almsgiving has been 
developed of recent years: the charity craze. Misfortune, poverty, 
and misery are made the pretexts for entertainments of all kinds, 
such as concerts, theatrical performances, balls, bazaars-at which 
elegant and beautiful ladies bargain, play, and flirt with elegant 
and rich gentlemen, all for sweet charity's sake. I must confess 
that this union of amusement and 'charity' seems to me an ex- 
tremely sad sign of the times. This playing with distress shows 
how insensitive certain social classes have become to the serious- 
ness and wretchedness of life." * * * 
f"The opposite of love of neighbor is heartless selfishness, 
which seeks its own advantage, regardless of others, or even at 
*Page 642. 
fPage 648. 104 
SYSTEM OF ETHICS. 
the expense of others. The intensification of it is malice, which 
takes pleasure in the distress and sufferings of others even without 
advantage to self. As cruelty it causes physical or mental suffer- 
ings, simply in order to feed upon them." 
"This habit does not commonly express itself in those brutal 
attacks upon the persons and interests of others which the crim- 
inal law pursues, but in the thousand little inconsiderate, malicious 
acts which are observed in our daily intercourse with men. 
* * * A field in which cold-heartedness and malice are par- 
ticularly common is the habit of sitting in judgment upon one's 
neighbor. Everything that the latter says or does is misconstrued 
and spitefully exposed to the ridicule and ill-will of his fellows. 
An evil or base motive is always imputed to him, his prosperity 
is attributed to evil means, his misfortune is regarded as his own 
doing." * * * 
"It is this base tendency in human nature which the Gospel 
attacks with such zeal. Even if your opinion is correct, it is not 
your mission to sit in judgment upon your neighbor. He is not 
accountable to you, but to God, and in His sight you are no less 
guilty than he. Hence, 'Judge not, that ye be not judged; con- 
demn not, that ye be not condemned.' " 
"The opposite of unfeelingness is Love, as Paul described it: 
'It suffereth long and is kind, envieth not, and vaunteth not itself, 
is not puffed up, doth not behave itself unseemly, seeketh not her 
own, is not easily provoked, thinketh no evil, rejoiceth not in 
iniquity, but rejoiceth in the truth; beareth all things, believeth 
all things, hopeth all things, endureth all things.' " 
"The thirteenth chapter of Corinthians has been called the 
Song of Love. Perhaps we may more properly call it the simplest 
description of love in its most modest form, * * * which 
does nothing extraordinary and grand and sensational * * * 
but simply consists in taking and bearing the neighbor as he is, 
which does not court favors from him but meets him every day 
with the same or greater kindness. This is the real, true love of 
neighbor, and when it enters a house it brings happiness, not the 
great happiness of which people speak, but the little work-a-day 
happiness, the true happiness. And this love and happiness as 
gladly abides in modest homes as in proud palaces, or much rather; LOVE THY NEIGHBOR. 
105 
at any rate it desires to dwell in modest hearts alone, not in 
haughty and covetous souls." 
"* * * The immediate effect of active benevolence is that 
it lightens, elevates and promotes the life of him upon whom it is 
bestowed.* It also inspires him with courage and confidence for 
the future. It at the same time fills him with kindly feelings, not 
only toward the benefactor, but towards the whole world; charity 
wants to be passed along, to go from hand to hand, without end. 
* * * Active benevolence, however, also enriches and blesses 
the life of him who practices it. We are not made poorer by 
giving, says an old proverb: ('There is that scattereth and yet 
increaseth; and there is that withholdeth more than is meet, but it 
tendeth to poverty.'-Proverbs 11:24.) Certainly not, we are 
made richer, if not in outward, at least in inner bless- 
ings." * * ♦ 
''And the reverse is also true. There is no surer way to 
unhappiness than a selfish heart. * * * Benevolence brings 
peace and joy; selfishness arouses enmity and unhappiness; love 
is life; selfishness, death." 
Paulsen's discussion of gratitude, and its opposite, ingrati- 
tude; and love of home, of country and humanity, are interesting 
but are too long for quotation and not readily epitomized. 
*Page 652. CHAPTER IX. 
VERACITY. 
"Veracity may be regarded as a form of benevolence; it is 
benevolence manifested in the communication of thoughts."* 
"We may, as in the case of benevolence, distinguish two 
phases of veracity: a negative side and a positive side. The 
former, corresponding to justice, is expressed by the formula of 
duty: Thou shalt not lie; the latter, corresponding to love of 
neighbor, is expressed by the formula of duty: Serve thy neighbor 
with the truth." 
"Let us first discuss the negative side." "To lie, as we are 
accustomed to define it, means willingly and wittingly to tell an 
untruth in order to deceive others. Perhaps it will be unnecessary 
to make the definition a little narrower by taking account of the 
fact that falsehood sometimes shelters itself behind formal 
excuses. In the first place, of course, words, be they spoken or 
written, are not essential to falsehood. We can lie without words, 
by acts and gestures, or even by keeping silent. An absent one 
is slandered in your presence; you know that what is said is not 
true, but you have not the courage to contradict it; * * * 
so you are silent, or smile knowingly. That is lying. Or you 
wish an evil report concerning a third party to be circulated, but 
you are not willing to shoulder the responsibility, and so you begin: 
'Have you heard what is being said of so-and-so?' The news- 
papers, as well as gossiping women, are in the habit of lying in 
this way: 'It is said * * *'; Tn circles which are usually well 
informed it is rumored.' " 
"Equivocation is another favorite trick of the liar. L. Schmidt 
gives a few examples from Greek life: The Locrians made a 
compact with the Sicilians, and swore that they would keep it as 
long as they trod the same earth and carried their heads upon their 
shoulders. Previously, however, they had put earth in their shoes, 
*Page 664. VERACITY. 
107 
and had placed garlic heads upon their shoulders under their 
garments." 
"Another favorite mode of procedure, developed to an art 
by politicians and historians, is to let the facts themselves lie. 
In discussing one side of a question, an historian chooses the 
most venomous speeches and deeds of its extreme supporters, and 
the criticisms and self-reproaches of the moderate wing; in pre- 
senting the other side, he selects the most satisfactory tenets, the 
most commendable or tolerable acts of its friends. Thus, by 
skillfully selecting and arranging, we can make anything out of 
everything. This, too, is the method of the reviewer who does not 
like a book; he tears out a handful of phrases or sentences, sur- 
rounds them abundantly with quotation marks, occasionally inserts 
a word or two, and places the stuffed monster before the eyes of 
the reader, thereby arousing his righteous indignation. There is 
no absurdity that cannot be drawn from a book in this way. A 
particularly favorite trick of recent years is to lie by arranging 
the figures. Figures do not lie, it is said; this is not true; they 
will prove whatever is expected of them." * * * 
"All these things, then, come under the head of falsehood: 
To lie means to influence others to accept views which you do not 
regard as true yourself, by means of speech or silence, by simula- 
tion or dissimulation, and by the selection and arrangement of 
facts." 
"Why is lying wrong? Intuitional ethics answers with com- 
mon sense: Because it is inherently wrong and disgraceful. Kant 
records veracity among the duties to self: he regards falsehood 
as the abandonment of one's dignity as a man, and places it on a 
level with suicide; as the latter destroys the physical life, so the 
former destroys moral life." 
"This view is well fitted for the practical-rhetorical treatment 
of the subject. Indeed, Kant is often an admirable moral 
preacher. But it is the business of moral philosophy to discover 
the objective ground of morality * * * in the effects which 
falsehood naturally tends to leave upon the conduct of human 
life. They are not hard to find. Falsehood directly injures the 
deceived party in so far as false ideas lead to false acts. As a rule, 
this is the purpose of the lie. Thus falsehood is a means of injus- 108 
SYSTEM OF ETHICS. 
tice, and therefore shares in the judgment pronounced upon the 
latter. But falsehood has a specific effect besides. So far as it 
can, it destroys faith and confidence among men, and consequently 
undermines human social life-the foundation of all real human, 
of all mental historical, life. And this explains its particular 
reprehensibleness. We may illustrate the influence of falsehood 
by counterfeiting. * * * The existence of spurious coin 
brings the good money into disrepute. Should spurious coins 
become so numerous as to make it necessary to test every piece 
before accepting it, this would be equivalent to the abolition of 
money as such, for its purpose is to relieve the individual of the 
necessity of testing its value. Lies invalidate the truth, and the 
outcome is universal distrust and isolation. * * * When the 
liar loses the confidence of others, he also loses confidence in them; 
it is psychologically necessary for the man who lies to expect 
others to do the same. There can be no doubt that this dual dis- 
trust is not a favorable condition of life; like a poisoned stratum 
of air, it envelops a life and excludes it from fellowship with 
human beings; the honest and sincere men, especially, are repelled, 
for they cannot breathe an atmosphere of falsehood and distrust." 
* * * 
"Hence, it follows from the very nature of falsehood that it 
poisons speech, undermines confidence, destroys collective life, 
and so attacks the very fibres of human existence." 
"Another factor helps to make the lie still more reprehensible; 
it is a sign of cowardice. It steals upon its victim, instead of van- 
quishing him in open battle. A brave man will not lie. The 
accusation of falsehood always carries with it the charge of cow- 
ardice, hence it wounds a man more deeply than almost any other 
charge. 'You lie' means at the same time: 'You are a cowardly 
knave.' " 
"Everything that makes the lie despicable and base is included 
in calumny. We might rhetorically define it as the murderous 
attack of the assassin upon the ideal self of another. In 'Othello' 
Shakespeare portrays the natural history of calumny with awful 
faithfulness and cruelty. Iago strangles the innocent wife by the 
hands of her husband. Had Iago killed Desdemona with his own 
hand and robbed her as a pirate, he would have been an honest VERACITY. 
109 
man beside the real Iago. The fact that he cannot even be called 
to account before a human judge makes the matter all the worse- 
for what did he do but act in good faith in calling Othello's atten- 
tion to the dangers threatening his honor?" * * * 
"Moreover, we must not forget that two persons are always 
necessary to make a slander possible. Just as the thief needs the 
receiver of stolen goods, the caluminator needs a person to accept 
his words to put them in circulation. And just as stealing would 
be impossible on the large scale without receivers of stolen goods, 
the business of calumny would be impossible if there were not 
so many to delight in it and encourage it." * * * 
♦"Another modified form of the lie is flattery. It is so repul- 
sive because it creeps in under the guise of friendship to defraud 
its victim. However, here again two people are necessary: one 
to do the flattering and one who allows himself to be flattered. 
As a plaster draws blisters, so self-conceit provokes flattery. 
Hypocrisy is a form of flattery. Religious hypocrisy used to be 
common. * * * The effect of hypocrisy is the same as that 
of all lying: as forgery makes us suspect the genuine, hypocrisy 
brings religion into hatred and contempt. Hence, all truly reli- 
gious natures hate hypocrisy, and all sincere persons hate assumed 
'orthodoxy' like death." 
"Falsehood raised to the highest power is perjury. It is the 
lie accompanied by the formal and solemn assurance that it is the 
truth. Perjury has everywhere and always been regarded as one 
of the greatest crimes, as a sign of extreme viciousness and base- 
ness. We can defend ourselves against violence by violence, stat- 
egy, we meet with strategy: these are the means of war, which 
may be followed by an honorable peace after the matter has been 
fought out. But perjury cuts off all possibility of a return of 
friendship. There is no defence, no weapon against perjury; 
helplessly and with a feeling of horror, man appeals to the gods 
when he has been deceived by perjury, to punish such an enor- 
mous crime." * * * 
"The Lie of Necessity.f A problem that has given the moral- 
*Page 670. 
fPage 672. 110 
SYSTEM OF ETHICS. 
ists the greatest trouble is the lie of necessity. Is deception under 
all circumstances morally wrong, or can conditions arise under 
which it is permissible or even morally necessary?" 
"In our actual judgments and actions, we experience no diffi- 
culty in answering this question; everybody acknowledges the 
possibility of the 'necessary lie.' There is not a physician in the 
whole world who does not at times give deceptive answers to the 
questions of his patients, who does not arouse hopes which he does 
not share. He does not reproach himself for doing so; neither do 
others blame him. Indeed, everybody does the same thing under 
similar circumstances. * * * Fire broke out during a per- 
formance in a theatre in Zurich. When the stage manager dis- 
covered it, he appeared before the scenes and announced that, 
owing to the sudden illness of an actor, the performance would 
have to be suspended. The theatre was emptied without any 
trouble, and then burned to the ground. Will anyone dare to con- 
demn this happy idea as a lie? * * *" 
"Only among moral philosophers do we still find persons who 
regard the matter as serious. Kant declares: Falsehood, that is, 
intentional untruthfulness, is under all circumstances, 'by its mere 
form, a crime of man against his own person, and a baseness which 
must make a man despicable in his own eyes.' When a man mis- 
directs a murderer in search of his victim, and dexterously turns 
him into the hands of the police, we cannot excuse him: he has 
told a lie; he has therefore forfeited his dignity as a man! And 
Fichte once said, with his usual rhetorical fanaticism, 'I would not 
break my word even to save humanity.' Let us apply this principle 
in practice. Suppose that I had promised someone to call for him at 
five o'clock for a walk, and on my way to his house I saw a child 
fall into the river. If I followed Fichte, I should say to myself: 
"If you pull it out, you will have to go home and change clothes, 
which will make it impossible for you to keep your engagement; 
hence, you must hurry on, sorry though you may be.' Or would it 
be right for me to assume that my friend would give his consent 
in such a case, and, acting on this belief, to break my engagement ?" 
Whether the friend would consent or not, the obligation to save 
the child is paramount to the obligation to keep the appointment. 
"Practice not only contradicts the theory here, but is even VERACITY. 
1ll 
theoretically correct in its opposition to these theorists. It may 
be that the lie of necessity does not fit into the system of a moral- 
ist, but that merely proves the inability of his system to compre- 
hend moral things. A teleological ethics finds no difficulty in 
explaining the phenomenon in question." 
"Intentional deception is objectively reprehensible, as was 
shown above, because it tends to destroy confidence, and thus 
leads to the disintegration of the social organism. In cases where 
this effect cannot possibly occur, owing to the very nature of 
things, it is not reprehensible. Let us take an example. No rela- 
tion of confidence can be destroyed by deceiving a burglar, because 
absolutely none exists, neither a special relation, nor a universally 
human one. In so far and so long as such lawbreakers follow their 
calling, they stand outside of the pale of confidence, and thereby 
forfeit all claims to the truth, nor will they expect to receive it." 
"The case is somewhat similar in war. * * * Deception is 
one of the rules of war: everybody practices it and expects the 
enemy to do the same. The rules, however, apply only to the 
game. Whenever in war an individual comes in contact with 
another individual not as a foe but as a human being, then the 
universal rule of human intercourse again demands its rights. 
The same is true whenever the game of war is temporarily sus- 
pended by mutual agreement: to break an armistice, to ambush 
the bearer of a flag of truce, is disgraceful and dishonorable." 
* * * 
*"Another case which may make intentional deception per- 
missible or necessary is the inability of the other party to under- 
stand or bear the truth. It may, for example, under circumstances, 
have a quieting effect upon insane persons to enter into their 
delusions. It is often necessary to accommodate oneself to the 
weak-minded. This is true of old people who have grown weak- 
minded; they have lost the faculty of seeing and judging things in 
their true relations but not the faculty of becoming excited by occa- 
sionally misrepresenting them. We are compelled, for example, 
to make certain arrangements contrary to the wishes of our old 
parents. Is it right to conceal our plans, or to deny them? It is 
a hard thing to do; it seems like a breach of old confidential rela- 
*Page 677. 112 
SYSTEM OF ETHICS. 
tions. And yet everyone will at times decide to pursue such a 
course, and justly so, for what good would it do to tell them? 
* * * The case is different in our intercourse with children; 
and here we are often too ready to have recourse to the most con- 
venient form of deception that happens to present itself. The 
deception persists in memory; when the intelligence develops and 
recognizes it as such, it may afterwards seriously undermine the 
child's faith. Besides, another escape is always at hand; we can 
refuse to answer the child's questions by saying: 'You do not 
understand these things yet,' or, 'They do not concern you.' It 
would, however, be wholly impossible to treat old people in this 
way, even if it were proper." 
"But, some one might ask in troubled tones, where, then, 
shall we draw the line? The transition to childish old age is a 
gradual one. Where may one begin to deceive? And if I may 
deceive a weak-minded person, then why not a stupid blockhead? 
And where shall this end? And who is to decide how to classify 
the individuals in question? Only one answer can be made to 
such questions. Such fixed boundaries do not exist in morals. 
The law draws hard and fast, and therefore arbitrary, lines, while 
morality has everywhere to do with gradual transitions. The 
particular case must necessarily be decided by the individual's own 
insight and conscience, and with a view to the concrete conditions. 
Morality cannot give him a scheme which will enable him to settle 
the matter with mechanical certainty. It can merely indicate the 
general points of view from which the decision is to be rendered." 
* * * 
"To the same category belong the conventional half-truths 
and untruths of social intercourse.* We welcome a visitor who 
comes at an inopportune time; at the end of a letter we assure a 
man whom we do not know, or whom we look upon as a thorough 
villain, of our high esteem. The necessity and justification for this 
lies in the fact that smooth and peaceful intercourse is not possible 
among men as they are constituted, without the excuse of some 
constraint. The customary politeness is the oil which prevents, 
so far as possible, the creaking and pulling of the machine. The 
angels in heaven do not need it. Where there are no inner dis- 
♦Page 681. VERACITY. 
113 
cords and outer obstacles, perfect openness is possible; human 
beings as they are constituted cannot endure it. * * * Of 
course, where is the boundary between necessary politeness 
and repulsive flattery and falsehood? No system of morals can 
draw the line; moral tact alone must decide. And the thing is 
not without its dangers. A person who lives much in society easily 
forms the habit of lying, his conscience gradually becomes seared; 
it becomes second nature and finally a necessity for him to lie. 
We are therefore ready to suspect a man who exhibits great skill 
in the art of polite speech. We are more apt to trust one who is 
somewhat awkward and backward in speaking conventional 
untruths. 
"Hence, our conclusion would be: Be truthful; this holds 
unconditionally; but 'speak the truth,' does not hold uncondition- 
ally." 
"How shall we account for this strange 'rigorism' of the 
moralists, which is everywhere contradicted by life? Are they 
perhaps influenced by the curious notion that the 'stricter' their 
systems, the better it will be for the morality of mankind? It 
almost seems so. If our moral systems, they seem to think, leave 
the smallest loophole for falsehood, man's inclination to lie will 
gradually enlarge it, and he will always find an excuse for not 
speaking the truth. * * * We feel the need, in the face of 
our constant danger, of emphasizing to ourselves and to others, 
often in the strongest terms, the value of truthfulness and the dis- 
grace of lying and of trifling with the truth." * * * 
*"We turn now to the positive side of veracity. It corres- 
ponds to love of neighbor, and is expressed in the formula of duty: 
Serve thy neighbor with the truth. Since the conduct of man is, 
to a considerable extent, dependent upon ideas, true ideas are of 
prime importance to his welfare. The universal duty of love of 
neighbor, therefore, includes the duty to assist one's neighbor in 
ridding himself of false ideas and acquiring true ones." 
"This phase of the question has been too much neglected by 
moralists, a fact which accounts for their meager treatment of 
veracity and also explains their inability to do justice to the lie of 
necessity. Whoever lives a life of truth in the main, will have no 
♦Page 685. 114 
SYSTEM OF ETHICS. 
trouble in settling the question of deception whenever it may be- 
come necessary or expedient. But the person whose truthfulness 
consists solely in refraining from telling lies, will be afraid of 
totally destroying his reputation in case he should ever happen to 
say what is not true. Such purely negative veracity is, of course, 
a rather paltry thing; it easily degenerates into the mere art of 
avoiding direct falsehood. 
"Positive veracity, which first gives to negative veracity its 
real meaning and value, manifests itself, first, in the personal inter- 
course with individuals, where it assumes the form of advice, in- 
struction, admonition, and correction; secondly, in the public com- 
munication of the truth, where it takes the form of research, 
teaching, and preaching." 
"According to the first form, it is my duty to help the indi- 
vidual whom I find in search of the right path, according to my 
better lights. This duty, too, must be qualified. Just as the duty 
of love of neighbor cannot mean that every one is to offer his aid 
to everybody he meets, the duty of veracity cannot mean that we 
are at all times to instruct and advise people, to admonish and set 
them right. * * * The duty to instruct and set right pre- 
supposes two things; first, that I am myself sure of the right path; 
secondly, that the interested party is inclined to profit by my ad- 
vice. We are essentially governed by these considerations in our 
actual practice. I see a stranger in the mountains turning into a 
road that leads nowhere; I do not hesitate to call to him and to 
direct him. When, on the other hand, I find a person on the point 
of embarking upon a mercantile or literary venture, which I regard 
as sure to fail, I seriously deliberate before advising him. If the 
man is a stranger to me I let him alone. I do not know enough of 
his situation, his powers, his resources, to know what he can do; 
nor can I assume that he has confidence enough in my judgment 
to accept my advice: Perhaps it would simply confuse or anger 
him." * * * 
"The ability to judge where and when it is proper to aid 
others with advice and instruction may be called 'discretion'. The 
opposite, 'indiscretion', the inability to keep from advising and in- 
structing people, is a quality that will make a person disliked by his 
fellows sooner than anything else, especially when it appears in VERACITY. 
115 
young men. It is particularly necessary for one to be on one's 
guard when it comes to reprimanding or blaming people. Un- 
called-for blame angers a man and strengthens him in his per- 
verseness. The habit of finding fault and speaking evil is a real 
vice. Here the purpose is not to serve the neighbor with the truth, 
but to flatter one's self-love and vanity. The Gospel does not warn 
us so earnestly against fault-finding for nothing. Insinuating it- 
self into our hearts in the guise of sincerity and love of truth, this 
habit becomes a soul-destroying vice. It extinguishes brotherly 
love. * * * It prevents us from being true to ourselves; the 
man who is always beholding the mote that is in his brother's eye, 
at last cannot see the beam that is in his own eye. Hence, the rule 
is: Speak of evil only when the good is promoted thereby; and, 
for the rest, turn all good things to good." 
"The other phase of the problem, the public communication 
of the truth, demands a somewhat more elaborate treatment. To 
know the truth as a whole, as contained in philosophy and science, 
is not a function of the individual mind as such; a people, or, in 
the last analysis, humanity, is the bearer of the truth, the indi- 
vidual shares in it as the member of a people. The little fraction 
which he possesses, he possesses as the heir of the past; he thinks 
with the logical and metaphysical categories which the popular 
mind has developed in the course of thousands of years, and has 
incorporated into grammatical forms. He sees things through the 
ideas and notions which his age places at his disposal, he labors 
upon the solution of problems which it suggests to him. On the 
other hand, it is no less true that the collective mind exercises the 
functions only through individual minds as its organs." 
The public communication of truth is the province of a com- 
paratively few, the teachers, preachers, lecturers, and other public 
speakers, and writers. The great majority of us absorb truth, 
(and not a little of error and falsehood) from these sources and 
from all of our contacts with people and things in life, and make 
no attempt to communicate truth except in private intercourse with 
our families, especially children, and friends and acquaintances, 
whoever we may happen to meet and talk with. Of course it is 
the duty of everyone who talks or writes to acquire such knowl- 
edge as they can and to communicate it with sincerity and an en- 116 
SYSTEM OF ETHICS. 
deavor that those to whom we speak or write letters may receive 
impressions as nearly as possible corresponding to the real truth 
as we understand it. This duty of correct information and sin- 
cerity in imparting it becomes more urgent in the case of public 
speakers and writers in proportion to the greater number of people 
who will hear them or read what they write. 
A smaller number of people, in fact a small number in the 
aggregate are undertaking the task of discovering new truth, or 
of testing the facts or the evidence or authority for ideas, beliefs 
and opinions currently accepted as true. These men are the pio- 
neers and reformers in science, in art, in education, in industry, in 
politics and government. Such inquiries and tests establish on 
firmer foundations such ideas and beliefs, and the customs and 
ways of life and business founded on them as are true, but if 
errors and falsehood are found and injustice and oppression re- 
sulting from them, reformers immediately encounter opposition 
and persecution. 
"The love of truth finds its highest expression in martyrdom. 
We should expect the nations to turn to their great leaders and 
pathfinders in thankful admiration. And so they do, but it is 
only after their death that mortal men are reckoned among the 
gods.* Martyrdom is the great purifier by which humanity tests 
the genuineness of new truths; it is the narrow portal through 
which heroes pass into immortality. This has been the method of 
humanity from times immemorial, and it is not hard to see the his- 
torical necessity of this fact, which is so surprising at first sight." 
No limits are to be set to research. The philosophers may 
push their endeavors into any field of inquiry, but the public de- 
nunciation of error and falsehood and the mistaken conduct re- 
sulting from them may usually be deferred till falsehood can be 
successfully replaced by truth and juster and better habits and 
customs can be successfully substituted for the old. 
It is natural, since the welfare of a people depends upon the 
stability and trustworthiness of its institutions, that the church, the 
state, and society in general should resist and persecute the promul- 
gation of any new truths that threaten to undermine the authority 
or change the organization or the activities of the church, the gov- 
♦Page 690. VERACITY. 
117 
eminent, or of society. It usually happens, therefore, that those 
who promulgate revolutionary ideas meet with persecutions in 
varying forms, and sometimes martyrdom. It is usual for all sorts 
of agitators and would-be innovators, when repudiated by their 
contemporaries, to appeal to posterity, but the appeal is not always 
sustained. A great proportion of those who proclaim doctrines 01 
ideas which they think will overturn or transform existing insti- 
tutions or customs are correctly judged by their contemporaries, 
who repudiate them, and posterity, instead of adopting their ideas, 
will forget them altogether. It is right that society should resist 
changes in institutions and customs, and the beliefs upon which 
they are founded, until the truth of new ideas is well established 
and until the changes in institutions or usages 'founded upon them 
may be fairly expected to promote the welfare of mankind better 
than those which they replace. 
"I shall close the entire discussion with a consideration of the 
question: Does the duty of communicating truth universally de- 
mand the destruction of error wherever and in whatever form it 
may appear? It is one of the great controversies which have al- 
ways moved mankind. We may define it as the controversy be- 
tween the will and the intellect, between the practical and specu- 
lative sides of human nature. The will, turned towards self- 
preservation, demands, as was shown above, stability of institu- 
tions, and therefore also of the conceptions upon which they are 
grounded. The spiritual and temporal authorities, which we may 
term the representatives of the will in history, therefore always 
incline to demand that certain things be fixed once and for all, 
which criticism should not be permitted to disturb. The intellect, 
on the contrary, refuses to close the debate; to hinder the continu- 
ation of the investigation means for it the perpetuation of error. 
The end of all research is the absolute accommodation of know- 
ledge to reality. But this goal is infinitely remote and hence the 
attempt better to adapt the conceptual system to reality must be 
constantly renewed. Nor are the fundamental principles excepted; 
they, too, must be subjected to progressive changes, if only for the 
reason that the constant extension and intensification of particular 
knowledge ultimately demands a rearrangement of the facts." PART SECOND 
PROFESSIONAL ETHICS. 
CHAPTER X. 
ETHICS OF BUSINESS, OF EMPLOYMENT, OF PROFESSIONS. 
All men, whether they will or no, and whether they ac- 
knowledge it or not, are as surely under dominion of moral laws as 
of physical laws and the consequences resulting from obedience or 
disobedience are as sure to follow in the one case as in the other. 
No human being, therefore, who has intelligence enough to be 
responsible for his acts is free from the obligation to be good and 
to do right. It is the province of ethics to discover the principles 
on which a good character may be formed, and to describe the 
rules and methods by which right conduct may be guided. The 
preceding chapters have attempted to do this, in a brief and imper- 
fect way. It remains now to apply these principles and rules to 
the special circumstances, relations and obligations of professional 
life, and to discover and describe, if we can, how these may differ 
from the duties and obligations resting upon men in other walks of 
life. It ought to be recognized as a rule of ethics or morality 
that every man and woman having sufficient health and mental 
capacity should be engaged in some employment or service useful 
to society; and in choosing a profession or business or trade which 
one expects to follow for a livelihood, the question is fundamental 
whether those persons who are served or influenced will be bene- 
fited by it or harmed by it. Probably most people choose their 
employment with little thought of anything except the prospect of 
gaining a livelihood by it, and whether it will be suitable to their 
abilities and congenial to their tastes; and fortunately, most of the 
employments that are open to the choice of young people are more 
or less useful as well as remunerative. Such employments as are 
injurious or useless ought not to be thought respectable. ETHICS OF BUSINESS 
119 
The duty to follow some useful calling is no respector of per- 
sons, but rests upon the rich and the poor, the high and the lowly, 
the learned and the unlearned, the wise and the foolish, the strong 
and the weak, upon men and women. There should be no excep- 
tions except for disability. 
The most important ethical requirement in every business 
transaction is that all the parties to it are benefited by it. Any 
business, like gambling and perhaps some forms of speculation, 
that does not admit of benefit to both parties in the transaction, is 
not a legitimate business and the following of it cannot be defended 
on the grounds of morality. 
In ordinary transactions of buying and selling the parties are 
usually supposed to meet on equal terms, each able to look out for 
his own interest. It is required of the seller to tell the truth about 
what he sells and the best standards of business morality as well 
as the best business policy lead the seller to interest himself in his 
customer's point of view, the use he can make of his purchase, 
whether this article or some other will best serve his needs, and 
other matters that make him satisfied with his purchase and so 
become a continuing customer. In the relation of employer and 
workmen or the merchant and his clerks, the human element comes 
in with more importance than with the seller and buyer, and the 
employer has far greater responsibility for the welfare of his 
employees. His duty is not accomplished by paying them so much 
money for so much work, but he should provide them a safe place 
to work, in pure air and wholesome circumstances, with necessary 
conveniences for personal comfort and cleanliness, and should take 
an interest in their health, pleasure and general welfare. Not all 
employers do these things, in fact so many neglect them that it 
has been found necessary to enact laws making specific require- 
ments for many of them. It has been slowly penetrating into the 
minds of men that the physical health and moral welfare of men 
and women are more important than the profits of business. How- 
ever, in business and manufacturing, the health and welfare of 
employees is not the first or primary consideration. The object of 
the shoe manufacturer, for instance, is to make shoes, and if he did 
not desire to make shoes he would not hire any men at all, nor as- 
sume any interest or responsibility for their health and welfare; he 120 
PROFESSIONAL ETHICS. 
does not make shoes in order that he may provide for the welfare 
of the people he employs, but he employs them and takes good 
care of them in order that he may make shoes. Generally, in all 
business or manufacturing or agriculture, the matters of impor- 
tance and chief consideration are the things produced or manufac- 
tured, or bought and sold. It is true that those engaged in all 
these pursuits may, and should, make their employments and busi- 
ness relations minister to the higher levels of life in moral and 
spiritual development and expression, and these are the best and 
most important fruits of living, to be won individually in what- 
ever circumstance or conditions in life men find themselves. So 
far as business itself is concerned the commodities produced and 
distributed are the things of primary importance. 
In such professions as medicine and dentistry the human 
element comes to the front and becomes of primary and chief im- 
portance. The practice of medicine and dentistry consists in per- 
sonal services to supply personal needs, and the matter of making 
something and selling something takes a subordinate and compara- 
tively insignificant place. It is true there is a business side to den- 
tistry and medicine and there is a bargain and sale of professional 
services, but the difference between selling professional services 
and selling commodities, or even one's time in some mechanical or 
routine employment, is so great that different terms are used to 
describe them. We sell commodities for a price, or time in ordi- 
nary employments, for a wage. We perform a professional service 
for a fee. When you make a gold filling, or make a crown or 
bridge you charge a fee for your services, you do not sell the 
crown or bridge for a price. 
The interests intrusted to practitioners of medicine and den- 
tistry are of the utmost importance, involving personal symmetry 
and beauty, comfort and health, not infrequently life itself. It is 
not surprising therefore that the community should expect, and the 
professions should seek to maintain in their ranks, a higher stan- 
dard of fitness and training, a better education, greater general 
intelligence, and above all, a higher standard of moral excellence 
and more scrupulous conscientiousness than is expected or exacted 
from other classes. 
The relation of a dentist and his patient is not that of seller PRICES AND FEES. 
121 
and buyer, nor that of employer and employee. It is a trust, con- 
fided to the dentist by his patient, who entrusts his future comfort, 
beauty, health, not infrequently the prolongation of life itself, to 
the knowledge, skill, good judgment, sincerity, honesty and disin- 
terestedness of the dentist. The patient does not come as a buyer 
seeking to purchase something the dentist has to sell, so much 
money for a set of teeth or a gold crown or filling; nor as an em- 
ployer seeking to hire a man to do a job of work; so much money 
for cleaning teeth, (prophylactic operation) treating an abscess, or 
removing a pulp and filling a root. The patient expects to receive 
and the dentist should insist upon giving, something more than 
the mere technical skill and craftsmanship that enables him to do 
the work. Professional knowledge and skill implies more than tech- 
nical knowledge and skill. It means the ability to understand pres- 
ent conditions, past history and future probabilities or results, and 
such knowledge, experience and judgment as enable a man to ad- 
vise and frequently to dictate what should be done; and this is a 
very different matter from the mere technical skill to do it. This is 
what makes the dentist's work a professional service instead of 
mechanical or artistic work, and this is what makes it worthy a 
professional fee instead of wages for work or a price for some- 
thing made. 
A price is supposed to bear some pretty definite relation to 
the cost of purchase or manufacture, with the added expense of 
carrying it in stock and making the sale, and some suitable per- 
centage of profit added; and wages or salary have a similar rather 
definite relation to time consumed and the knowledge, experience 
and ability of the person employed. There is much greater flexi- 
bility about fees, and several additional elements come into the 
determination of them. The primary basis for a fee is the same as 
for a price or wages, namely the cost of production, the time con- 
sumed and the knowledge, skill and judgment required for the 
service, but a fee can be influenced to a much greater extent by 
the art, the knowledge and skill, but especially by the judgment and 
wisdom, and reputation for success, than can a wage or a price, 
and more important still in determining a fee is the importance of 
the service, the risks attending it, the amount of benefit that may 122 
PROFESSIONAL ETHICS. 
follow from the success and the extent of injury that may result 
from failure. Added to all this is the ability or inability of the 
recipient to pay for the service. These considerations serve to 
make professional fees exceedingly variable, both as regards the 
men who receive them and the people who pay them. 
In the case of a lawyer, the amount of pecuniary interests at 
stake has more to do with the amount of his fees than any other 
one thing. It is conceivable that a lawyer might at different times 
have two cases involving similar points of law and procedure and 
taking similar amounts of time, in one of which one hundred dol- 
lars was at stake and in the other half a million dollars, and he 
might receive twenty-five dollars for one case and a thousand 
dollars or more for the other. No salaried man or wage earner 
could ever hope to get such different amounts for similar services. 
These considerations will indicate the objections against charging 
for professional services by the hour. A good many dentists 
have not got away very much from the mechanic's point of view, 
and profess to charge their patients in strict relation to the time 
spent. Many years ago a well-known man, in a paper before the 
American Dental Association or in one of the principal dental 
journals, said that for operations of filling teeth he charged three 
dollars an hour for the time spent in preparing the cavities and 
finishing the work and seven dollars an hour for the time spent in 
introducing the gold, the inference being that the additional charge 
would pay for the gold he was using. 
Another man told how he had an hour-glass which he set 
going on his operating table when he seated his patient in the 
chair and turned down upon its side if he were interrupted during 
the sitting by the need to see other patients or attend other mat- 
ters. In this way his patients were able to see that he did not 
charge them for any time he did not give them. In dentistry, time 
is the most important of the circumstances which determine the 
fee, but it should never be allowed to constitute the only thing that 
determines it. In the practice of medicine and surgery, time has 
a much smaller influence in determining fees. A doctor in a place 
where the standard fee for a house visit is two dollars, charges 
that amount whether he is in the house five minutes or a whole 
hour, and a surgeon whose fee for removing an appendix is three PRICES AND FEES. 
123 
hundred dollars, if it usually takes half an hour, does not charge 
six hundred dollars if it happens to take an hour. 
The difference between a fee and wages or price is not merely 
arbitrary, a means by which certain classes of men seek to make 
a distinction where there is no difference, but the word fee is ap- 
plied to a different kind of service, and implies different stan- 
dards of estimation or determination. CHAPTER XI. 
PROFESSIONAL ADVERTISING WINNING A PRACTICE-DUTIES TO 
PATIENTS. 
The attitude of the dental, medical and legal professions to- 
ward advertising is based upon the differences 1 have been trying 
to explain between profesional services and business, manufactur- 
ing and agricultural employments. 
A man may advertise things, commodities, with the utmost 
freedom if he does not misrepresent them, but there is almost uni- 
versal opinion in the professions of dentistry, medicine, law, and 
some others, that the public, paid advertisement of personal quali- 
fications or character, professional ability, fees for service, etc., 
etc., is improper, in bad taste, and not consistent with personal self- 
respect or professional dignity. A man may advertise his profes- 
sional occupation and the location of his office, but can scarcely go 
beyond that. There are some men in both the dental and medical 
professions who are impatient under these restrictions and fail to 
comprehend the reasonableness and necessity of them, because they 
have no clear idea of the difference between the professions and 
commercial or manufacturing pursuits. 
So deeply rooted and universal among professional men is the 
conviction that public advertising of the commercial sort is incon- 
sistent with professional self-respect that nothing else will so 
quickly and certainly cause a man to be ostracised by his profes- 
sional associates and cut off from all professional societies. 
Moreover, the advertisements themselves are so commonly un- 
truthful or misleading and the practice they represent so often in- 
competent and unscrupulous that advertising has come to be looked 
upon as the badge of quackery by the community as well as by 
the profession, and the man who descends to it must expect to find 
the better classes of people shunning him. That is to say, such 
advertising is quite as sure to repel the most desirable patients 
as it is to attract a less desirable class of people. 
It is important that you understand the distinctions and differ- PROFESSIONAL ADVERTISING. 
125 
ences 1 have tried to make clear, and that you pass over from 
the attitude and standpoint of workmen, technicians, or even 
artists, to that of professional men, and take upon yourselves the 
additional responsibilities and duties of professional men, asso- 
ciate yourselves with professional men in places where you live and 
practice, and make your patients respect you and treat you as pro- 
fessional men and not merely as workmen whom they can hire to 
do a job. The importance of these discriminations and of culti- 
vating the professional instead of the commercial spirit is greater 
than you can at present fully realize. 
Signs and announcements are for the purpose of directing to 
your office such persons as may be seeking for you. Their style 
and wording should be simple, to the point, in good taste, and 
conformable to the custom of the best men in your neighborhood. 
The object in view is not to have people linger in contemplation of 
the beauty of your signs, but to command their attention upon the 
way to get to your office. Conspicuous, unusual or very large 
signs may well be left for the advertising quacks who use them 
so commonly that they are generally understood to indicate a 
quack office. The same may be said of glass cases containing spec- 
imens of sets of teeth, crowns, bridges, etc. Hanging out a big 
gilded molar tooth is not objectionable on ethical grounds perhaps, 
but to most men it seems in very bad taste. 
The conventional rules in regard to signs and announcements 
are matters of etiquette rather than ethics. "In New York it 
would be deemed unbecoming to insert card with residence and 
office hours; or notice of removal, in a medical journal, much more 
in a newspaper, etc., but in some other cities such notices are not 
considered improper." 
"In Paris a professional doorplate is a deviation from pro- 
priety. In New York a modest doorplate or sign is the rule." 
The above conventions or fashions apply primarily to physi- 
cians, but most dentists conform to them with equal strictness. 
In some of the smaller towns it is not uncommon for the pro- 
fessional men, lawyers, physicians and dentists, to keep their pro- 
fessional cards standing in the local newspaper. This may often 
be done more with a view to give loyal support to the town paper 
than for any benefit that may be expected from the advertisement. 126 
PROFESSIONAL ETHICS. 
In view of the restrictions which the code of ethics imposes 
upon advertising, I am sure the question often arises in the minds 
of young men how they may make their professional ability 
known to a sufficient number of people to win a living practice. It 
must be said that it is likely to take time. A practice, like many 
other things, is not born full grown, but must have time in which 
to develop. There are many influences that may help that are 
perfectly proper and allowable by the code of ethics, and consistent 
with professional and gentlemanly conduct. First in importance 
is the skill and wisdom with which the few patients that may come 
are treated. Second in importance, though usually first in imme- 
diate results, is the favorable impression made by the personality 
of the young man, both upon his patients and all those whom he 
meets in any of the circumstances and relations of life. It is con- 
temptible to "work for business" a man's church, or lodge, or club, 
and a man who does so is pretty likely to be recognized and meet 
the contempt he deserves. A man should join a church or lodge 
or club for the sake of promoting the ends for which such organ- 
izations are maintained. If he does that the acquaintances and 
friendships so acquired will inevitably react favorably upon his 
business and it is perfectly right that business should be benefited 
in that way. As a practical fact, most young men of good profes- 
sional ability and attractive personality do find these two sets of 
influences sufficient to develop their practice as fast as is good for 
them. If a good opportunity can be found, a good way of begin- 
ning practice is to go into the office of some established practi- 
tioner as his assistant. It will give the opportunity to get those 
first few patients that are to act as drummers (if we may use such 
a term) for his future practice; but it gives opportunity to observe 
and absorb very much that will be to his advantage, about the 
arrangement and conduct of an office, the management of patients, 
the keeping of records and accounts and collection of bills, and 
numberless other things which help to make a practice efficient, 
successful and easy, and of which little can possibly be learned in a 
dental school. The custom of a pupilage before entering the dental 
school is obsolete, but the desirability of spending some time in 
close contact with some wise and experienced man is as great as WINNING A PRACTICE. 
127 
ever it was, and after graduation is a much better time to do it than 
before entering dental school. 
Much help in winning a practice may come from having the 
office well located, thoroughly equipped for the best services and 
for all probable emergencies, conveniently arranged for doing 
work without loss of time, in good taste and attractive in appear- 
ance, above all things scrupulously clean. There should be ar- 
rangements for the comfort and convenience of patients, and they 
should be seated in the operating chair so as to be comfortable, and 
to permit physical and nervous and mental relaxation instead of 
tension. 
The primary object in the practice of dentistry, that for which 
the profession of dentistry exists, is the welfare of the patients 
committed to our care. This is paramount and if other duties and 
obligations conflict with this one they should yield to a greater 
extent than this one. A different object of practice has been pro- 
posed by some and pursued by many, namely: "Get the money"; 
and a very well known man, in a paper before a great dental 
society characterized the ethical attitude which makes the duty to 
patients paramount over selfish considerations as "bunk". Of 
course, it is necessary for the dentist to get money for his services 
and unless he gets enough of it to provide comfortably for himself 
and his family, and keep his office in first class condition, and meet 
the social and public expenses that necessarily fall to his share, he 
cannot give his patients the best possible service as he ought. A 
man's interests and those of his patients are not antagonistic, but 
mutual. What is good for one is good for both. It is a question 
of relation and comparison. As soon as a man's skill and success 
make him independent enough to do so he should establish a stan- 
dard of fees high enough to allow him to serve some of his patients, 
who are needy, for fees much less than his standard. When a 
patient is examined and the service needed is planned and ar- 
ranged for, the attitude of the dentist should not be to obtain the 
patient's consent to the plan by which he can get the most money 
for the easiest service, but it should be "how can I render the best 
services to this patient that he can afford, or, if well to do, can be 
induced to pay for, and I can afford to render." That is what I 128 
PROFESSIONAL ETHICS. 
mean by putting the welfare of the patient first and the interest of 
the dentist second. 
Patients will often require instruction, advice and persuasion 
as to the treatment they need, sometimes several alternative 
methods of treatment will present themselves to your mind as prac- 
ticable, and it may require full consultation with the patient in ad- 
dition to your own study of the mouth before determining on the 
wisest course to be pursued, for although you ought to be a far 
better judge than the patient as to the conditions present, the fu- 
ture prospects and the most desirable plan to pursue, the informa- 
tion the patient may give as to financial ability, the command of 
time and opportunity, and the past history of particular teeth or of 
the mouth generally, may prove of indispensable assistance in de- 
termining what is practicable and can be wisely undertaken. 
Professional, and still more, financial success depend almost 
as much upon a man's manners and bearing and conversation with 
his patients as upon his knowledge and skill. This works more or 
less injustice sometimes to those who have given their best efforts 
to perfecting themselves in their profession and have neglected to 
cultivate the pleasing manners and facility of intelligent conversa- 
tion, the tact and quick apprehension of fitness and appropriate- 
ness to time and circumstances, which are the current coin of 
society. It is not surprising that a man's personality should make 
a stronger impression upon his patient than his professional skill, 
for people are usually good judges of personal appearance, man- 
ners and conversation, and very poor judges of the quality of pro- 
fessional services. 
Almost all patients and especially all children should be care- 
fully instructed in the care they ought to take of their teeth and 
mouths. Such directions should be plain and specific, and care 
should be taken to require nothing that should be impracticable 
for them in the special circumstances in which they live. It is 
usually necessary to show them how to handle the tooth brush 
and floss silk, and they should be told what tooth powders, pastes 
and mouth washes, etc., to use, if any. Many people and all chil- 
dren should be urgently persuaded to chew their food thoroughly, 
and to use plenty of food that is hard enough to require chewing. 
Chewing gum would be useful if it could be restricted to a half DUTIES TO PATIENTS. 
129 
hour after meals and the gum is not too much contaminated by 
flavoring and condiments. Many children have their temporary 
teeth so much decayed that it hurts to chew on them and they 
acquire a habit of eating without chewing which persists later after 
they get permanent teeth which they might use. Many other chil- 
dren are fed so exclusively on soft food that they have little occa- 
sion to use the muscles of mastication with any strength or vigor, 
and thus it happens that many children go to the orthodontist and 
many who do not go ought to, for little other reason besides the 
fact that the muscles of mastication have never been used enough 
to perform their normal function in the growth and development 
of the face and jaws. 
The object to be kept in view and never lost sight of, in the 
case of each individual patient, is the preservation of the teeth and 
mouth in as nearly perfect health as possible, and both the dentist 
and his patient should use their best efforts for its accomplishment. 
Be sure to have your patients understand that your profes- 
sional services are the chief element of value in your fees. "No 
trouble to show goods" is a maxim of trade only. You are not 
selling goods; and "consultations and examinations free" is the 
brand of a quack. I believe that carpenters, masons and builders 
often consult about jobs and make estimates without charging for 
the service if they do not get the contracts. Physicians and law- 
yers seldom do that, and dentists should not any oftener than phy- 
sicians. If a patient is seated in your chair and you make an ex- 
amination and consult about what is needed to be done, charge a 
fee for it, whether you do anything more for that patient or not. 
For heaven's sake, don't let anyone who ever comes into your 
office acquire there any suspicion that she can go round to a dozen 
men and get an examination and an estimate of cost from each 
one and never pay a cent to any of them. Such a custom is lament- 
ably common in some places. 
Magnify the professional aspects of your services and make 
vour patients pay you fully as well for removing deposits, prophy- 
lactic treatments, removal of pulps and filling root canals, treating 
diseased teeth and gums, etc., as for fillings, inlays, crowns, bridges 
and sets of teeth, and in all these latter operations put the emphasis 
on the professional services rendered and not on the labor and 
material. CHAPTER XII. 
THE DUTY OF THE DENTIST TO OTHER DENTISTS AND TO THE DENTAL 
PROFESSION. PAPERS READ AT SOCIETY MEETINGS. FEES. 
The code of ethics requires that all reputable practitioners are 
to be upheld and defended in every possible way with their patients 
and the public, save only when the welfare of the patient makes it 
unavoidable to condemn an operation that has been made or some 
mode of practice that has been advocated. There will occasionally 
arise awkward discrepancies between your opinion of certain 
cases and the opinion of some other man whom a patient may 
quote to you, which may prove irreconcilable and may require tact 
and a careful speech and manner to avoid injustice to the other 
man. You will often be very liable to form unjust opinions of the 
skill and honesty of other practitioners, especially in the first years 
of practice before your observations of the patients in your own 
care have extended over a long enough time to make you realize 
the great number and variety of causes that may shorten the dura- 
bility of operations or cause them to fail, besides the want of skill 
and thoroughness in making them. You must remember, too, that 
operations of other men which you find defective or useless may 
have been made under difficulties too great to be overcome and of 
which the present appearance and behavior of the patient give no 
indication. 
The code of ethics of the Illinois State Dental Society says 
(Section 4), "One dentist should not disparage the services of an- 
other to a patient. Criticism of work which is apparently defec- 
tive may be unjust through lack of knowledge of the conditions 
under which the work was performed. The duty of the dentist 
is to remedy any defect without comment." 
Patients will sometimes complain to you of the treatment they 
have received at the hands of some other dentist, and in a large 
proportion of cases you will have the pleasure to make such ex- 
planations as will (or ought to) restore their good opinion of him, DUTY OF THE DENTIST. 
131 
and show them that the unsatisfactory result is a misfortune in- 
stead of a fault, or that it may be due to their own neglect. 
There is no safety for you as regards the treatment of other 
practitioners unless kindness and charitableness are rooted in your 
character and find constant illustration in your conduct. Patients 
will hold you in higher esteem if they find you careful of the good 
name and professional reputation of others. Selfish and envious 
men are tempted to disparage others in the hope to exalt them- 
selves in the minds of their patients; the effect being usually the 
reverse, or it may be only serving to lower the patient's estimation 
of the entire profession. 
There may be cases brought to your notice occasionally in 
which incompetence or dishonesty are so surely apparent as to 
admit of no excuse or palliation. Usually it is wisest to pass them 
in silence, but you are under no obligations to do so if the welfare 
of your patient, or of other patients, or the community, may be 
promoted by expressing your opinion in plain terms. Dishonesty 
has no claims upon your charity or forbearance, to restrain you 
from warning others who might become its victims. 
Patients who come to you because their regular dentist is 
absent or sick or for any reason is inaccessible, require especially 
careful treatment. Nothing should be done for them beyond what 
is strictly necessary for their welfare till they can return to their 
own dentist, and particular watchfulness should be exercised not 
to discredit or excite suspicion of anything that has been done for 
them. Of course fees may be taken for what is done, though it is 
common for many men to perform trifling services without a fee, 
as a courtesy to the other dentist. The courtesy, however, is more 
to the patient than to the other dentist, for if you take no fee for 
what you do, neither does the other man. A good rule is to treat 
such patients as you would your own patients. If the service is 
such that you would do it without a fee for one of your own 
patients, then charge no fee. If the service is such that you would 
charge a fee to one of your own patients, then charge a fee to the 
patient of another dentist. 
It is not necessary, if it were possible, to give many rules in 
detail for the treatment of other dentists. The basis for them all 
is justice and kindness, having regard to both the patient and 132 
PROFESSIONAL ETHICS. 
dentist, and those qualities of character acting freely will be nearer 
right than if we attempt to follow arbitrary rules. The same gen- 
eral rule holds good for the patients of other dentists as for your 
own: the patient's good is the first consideration. 
The dental profession of the present day has fallen heir to a 
great accumulation of professional knowledge, skill and experience, 
as well as a vast number of ingenious instruments, appliances and 
apparatus, the free use of which makes us all large debtors to our 
profession, both to the living and the dead, whose efforts, observa- 
tions, studies, successes and failures have gradually established the 
standards of practice for the present generation. 
How can this large debt be discharged? The first thing to 
say is that it cannot be discharged. The benefits have been freely 
given and freely received. No man may hope to give to his pro- 
fession as much as he has received from it. No children do as 
much for parents (if the parents are everything they ought to be) 
as the parents have done for them. The only way that debt can be 
discharged is by giving to the next generation a similar care, in- 
struction, guidance and affection. No generation of men can add 
so much to the permanent possessions of the world as they have 
received from their long lines of ancestors. What is required of 
each generation is that it use its heritage received from the past 
wisely, without wasting it, and also add its own contribution to 
the permanent possessions of the world instead of consuming 
everything it receives and produces for its own use and pleasure. 
The best acknowledgment and the highest honor a man can pay to 
his predecessors in the profession is to make himself as well qual- 
ified as possible to discharge its duties, and to conduct his practice 
upon the highest level of ability and disinterestedness. The man 
who does his whole duty to his patients has gone more than half 
way in the discharge of his duty to his profession, but this is not 
enough. The profession would degenerate very rapidly if every 
man isolated himself in his own practice; read no professional 
books or journals and did not cooperate in any way with his pro- 
fessional brethren. It is indispensable that you belong to one or 
more dental societies, attend their meetings and interest yourself in 
their affairs. You must take and read several dental journals. 
One is not enough. The time has long passed when every paper PAPERS. 
133 
of importance read anywhere was published in all the journals. 
They now do very little reprinting from each other except in the 
forms of digests and brief extracts. The Cosmos, The Items 
of Interest, The Digest and the Dental Summary and Oral 
Hygiene are any of them likely sometimes to have articles 
you cannot well afford to miss, but would miss unless you take 
the journals that publish them. You cannot ignore dental jour- 
nals and dental societies for five years without becoming a "back 
number" in your profession. And probably you would not have 
the least idea that you were behind the times. It is very bad policy 
to have your patients give you the first information you have of 
new things and new methods of practice that are being brought 
into use. 
PAPERS READ BEFORE DENTAL SOCIETIES. 
Papers to be read before dental societies or published in the 
journals should be considered of importance enough to give time 
for their preparation, and careful study and thought sufficient to 
make them as good as your ability and resources for information 
will permit. A man ought to think himself disgraced who comes 
before a dental society and says that he was unable to make any 
preparation for his paper and had to write it within the last few 
days before the meeting, or on the way coming there, and therefore 
could not send copies of it to the men who have been appointed to 
discuss it. An exception must of course be made in the case of a 
man who, from a few notes, gives an extemporaneous lecture 
about matters which he has made a close study for fifteen or twenty 
years. 
Direct quotations should always be in quotation marks, and 
usually, though not always, the authorship should be indicated in 
the reading, and if thoughts or ideas have been consciously re- 
ceived from known sources, credit should be given even though 
the phraseology is not quoted. Papers read before societies be- 
come the property of the societies before whom they are read, un- 
less the author stipulates to retain the ownership. If a man reads 
the same paper before some other society he should do so by the 
permission of the society that first heard it, and the right of publi- 
cation goes with the ownership of the paper. It sometimes happens 134 
PROFESSIONAL ETHICS. 
that several societies, occasionally many societies, desire to hear 
some important paper, and I believe that men often read such 
papers in several places without going through the formality of 
asking permission from the society that first heard it. Probably 
they do so on the presumption that there would not be the least 
likelihood that permission would be refused, but the society that 
first heard the paper has the exclusive right to publish it. Some 
men in such cases rewrite their papers and make changes sufficient 
to destroy the identity, and then, of course, the new paper is pub- 
lished by the society before which it is read. 
If an invitation to read a paper or take part in a discussion 
before a dental society is accepted, every reasonable effort should 
be made to keep the appointment. If unforeseen circumstances 
arise that make it quite impossible to do so, immediate notice 
should be sent to the proper officer of the society, and if prac- 
ticable, the paper should be prepared and sent to the meeting so 
that it may be read by someone instead of the author. The same 
duty to fulfill the engagement applies with equal force to those 
who accept invitations to appear as operators or demonstrators in a 
clinic. In a list of fifty or sixty clinicians there are usually several 
who fail to appear and neglect to send any word of explanation 
or apology. Such men justify the suspicion that their only motive 
in accepting the appointment was to obtain the notoriety of having 
their names published in the announcement of the meeting and feel 
no sense of obligation to fulfill their promise. It would be proper 
if the society were to call such men to account for unethical con- 
duct and punish them in some suitable way unless they were able 
to give satisfactory explanation and apology. The executive and 
administrative officers of a society should consider it their duty to 
attend its meetings, and should make much greater efforts to do so 
than is to be required of the unofficial members. 
FEES. 
The ethical requirements in respect to fees, so far as stated in 
the code of ethics of the American Dental Association are found 
in Article II, section 4, as follows: "When general rules have 
been adopted by members of the profession practicing in the same 
localities in relation to fees, it is unprofessional and dishonorable FEES. 
135 
to depart from those rules, except when variation of circumstance 
requires it. And it is ever to be regarded as unprofessional to 
warrant operations as an inducement to patronage." 
No maximum fee bill should ever be adopted by any society, 
but I am convinced that in some localities the incomes of all the 
dentists could be somewhat increased and, what is of much more 
importance, the average excellence of operations would be raised, 
by an agreement among all of the dentists in the town or neigh- 
borhood upon a minimum scale of fees considerably higher than 
the average fees the men are getting now. It seems pretty evident 
that in some places men are getting incomes too small for their 
education and their abilities, and in order to get these inadequate 
incomes they are obliged to hurry through too many operations 
in a day to have it possible to make them as well as they should. 
If the standard of average excellence of dental operations in any 
community can be raised it will be worth far more to that com- 
munity than the increased amount of money they will have to pay 
for them. No minimum fee bill should prevent any man from 
doing charity work for needy persons to the extent that he can 
afford and is willing, as occasion may arise, but it is right to exer- 
cise some care not to be imposed upon by persons not really needy. 
It is rather mortifying to find, after cutting a bill heavily to some 
one you suppose to be needy, that they have been round to half 
a dozen offices to find out who they could get down to the lowest 
figure. One remedy for "shopping" is for every dentist to charge 
a fee for examinations and consultations that such people will be 
unwilling to pay it to half a dozen different men. Your standard 
of fees should be high enough so that when you are busy in a 
fairly good practice (good in number of patients) you can take 
time enough for each operation to do it the best you are able to, 
and can have a reasonable amount of time for charity work, and 
receive money enough to keep your office in first class shape, well 
furnished and cared for, above all things, clean, and equipped 
with everything needful for the most perfect operations and the 
most efficient service, provide for your family in at least moderate 
comfort, educate your children, give something to a few of the 
calls for charity and philanthropy, and provide for your old age. 
I believe the questions about fees are sometimes, for con- 136 
PROFESSIONAL ETHICS. 
scientious men, among the most difficult matters they have to 
decide. For a good many the matter is comparatively simple. 
Their practice is such and the competition of other practitioners 
effective enough so that the only matter they need to consider is 
how much they can charge without losing their practice. If they 
are good men there is no danger that they will get more than they 
ought to receive. If a man is really successful, and serves his 
patients well, (it is unfortunate, but some men are successful in 
obtaining large incomes who do not serve their patients well) the 
time will come when most of his patients will willingly pay him 
larger fees than they think they would have to pay any one else. 
When that time comes a man is usually independent enough to 
make his fees correspond to his necessities as previously suggested. 
I believe it can hardly be denied that a few dentists, a few 
physicians, especially a few surgeons, and a few lawyers, are re- 
ceiving larger fees than is just or reasonable, though it is rather 
difficult to see how a very wealthy man can reasonably object to 
paying his dentist or surgeon or lawyer such fees as would enable 
them, (if all their practice were equally remunerative) to live at 
least approximately as well as themselves. Of course the question 
may be raised whether the man with the larger income is giving 
a more valuable service to society and so earns it. 
It is sometimes said that the surgeon who makes an operation 
that saves a man's life, or the dentist who cares for a pulpless 
tooth, for instance, so that it will be safe from danger of causing 
systemic disturbance at some future time, has rendered a service 
that to the patient is priceless beyond any estimation of money 
value and therefore no matter how extravagant a fee may be 
charged, it will still be less than it is worth to the patient. That 
sort of reasoning may possibly do from the patient's point of view. 
The proverb says, "skin for skin, yea all that a man hath will he 
give for his life," but that does not justify the man who saves his 
life in taking all he has got for doing it. The fees of a profes- 
sional man may properly take into account, in addition to the mat- 
ters already referred to, such as the obligations he has to meet and 
the demands made upon him, the time and expense of his educa- 
tion and training, the number of times he has made similar oper- 
ations without fee or for a nominal fee before acquiring his pres- FEES. 
137 
ent skill and reputation, and the demands of charity, which make 
it necessary that people who can shall pay him more than the peo- 
ple who cannot. 
From the standpoint of the professional man the things that 
determine the value of his service and the fee he should demand 
for it are not the same as, from the standpoint of the patient, the 
things that determine the value of the service to him and the fee 
he is willing or able to pay for it. CHAPTER XIII. 
SPECIALISTS. 
It is only in comparatively recent times that the profession 
and the public have given sufficient encouragement to any special 
lines of practice in dentistry to develop and maintain any very 
large number of them. The man who announces himself as a 
specialist assumes in so doing to claim a very special knowledge 
and skill in his special line of practice, and the law requires of him 
complete (at least reasonably complete) knowledge and expert skill 
in his particular field, whereas a general practitioner is only re- 
quired by law to possess ordinary skill and knowledge such as is 
possessed usually by competent practitioners. Too many ambi- 
tious young men have appeared to think that all they had to do 
was to announce a special practice and limit themselves to it, ignor- 
ing the ethical and legal requirement of intensive study and com- 
plete mastery of all the knowledge and technical skill relating to it, 
or appearing to believe that a week or two of instruction would 
answer, under some one going about the country for this purpose. 
The short post-graduate courses in the schools are a little better, 
but a real specialist in the more important lines of special practice 
ought to have a full year of graduate work in a good school and 
receive a graduate degree. The requirement of a diploma and the 
necessity to get by a State Board of Examiners constitute a fairly 
effective check upon dental quackery, but there is no check upon 
quack specialists except the experience of their patients and the 
knowledge of their lack of qualification by dentists who might send 
them patients. 
When a man who has for several years limited his practice to 
the treatment of pyorrhea, (which is a disease of the peridental 
membrane) confesses that he never saw a microscopic slide of the 
peridental membrane, it is a pretty fair inference that he has never 
made any intensive scientific study of its structure, its functions, or 
diseases. His special and expert attainments are probably limited 
to the technical operations required, and to the empirical use of a SPECIALISTS. 
139 
few drugs which may have helped, or possibly may have hindered 
the efforts of nature, in such cases as have been successful. 
Again there are a good many men practicing orthodontia 
whose special knowledge and skill does not go very far beyond the 
mechanical technic of appliances and their adjustment, and not the 
most modern and efficient appliances at that. These are important 
enough but strictly subordinate to an intensive study and accurate 
knowledge of the structure, functions, growth and development of 
all parts of the jaws, face and throat. And such knowledge of 
the laws of life, health and growth, and habits, of children, as are 
indispensable for the most successful choice and application of 
mechanical appliances and especially for the proper limitations of 
their use, for the orthodontist should not undertake to do what 
only nature can accomplish. 
These two illustrations may serve to show what I understand 
to be the ethical and legal requirements for a special practice. 
It is necessary that a man who announces a special practice 
shall limit himself to it strictly; otherwise he will violate Section 
2 of the code of ethics of the American Dental Association, which 
declares unprofessional the "calling attention to special methods of 
practice or claiming excellence over other practitioners"; both of 
which are necessarily implied in the announcement of a special 
practice. 
It is my belief that forty years ago there was but one specialist 
in Chicago. That was Dr. Slonaker, who did extracting, usually 
with nitrous oxid gas. He told me once that after a compara- 
tively short time he was but little dependent upon other dentists, 
three-fourths or more of his practice coming to him direct. 
There were oral surgeons in those days, men medically edu- 
cated, professors of oral surgery in the dental schools, but they 
were general practitioners of dentistry, and did not announce them- 
selves as specialists. Many dentists sent their surgical cases to 
these men and gradually their surgical work increased till finally 
they relinquished their general practice and limited themselves to 
diagnosis and surgical treatment. If some of these men continued 
to care for a few of their families whom they had served for many 
years, and who expressed great unwillingness to go elsewhere, it 
is impossible to find fault with them for doing so, provided they 140 
PROFESSIONAL ETHICS. 
accepted no new patients for general practice. That is one case in 
which the spirit of the code of ethics implies some freedom of 
action outside of the strict letter of it. 
The attempt has sometimes been made to make the spirit of 
the code stricter and narrower than its letter. This may be as good 
a place as any to say that our codes of ethics have not been written 
with reference to any supposition that professional men will be 
dishonest or unfair unless restrained by the commands and prohi- 
bitions of a code of ethics. They have been made rather for in- 
struction and for the standardizing of professional conduct. 
An article appeared in the number for Oct. 24th, 1922, of the 
Bulletin of the Chicago Dental Society entitled "Our Code of 
Ethics," from which I will quote two or three paragraphs. 
"Sec. 3 of the Code of Ethics: It is unprofessional for den- 
tists to pay or accept commissions on fees for professional serv- 
ices, or on prescriptions or other articles supplied to patients by 
pharmacists or others." 
It means that a specialist, self-announced, and acknowledged 
and accepted as such by the profession at large, who practices 
nothing but his specialty himself, but who has in his office a man or 
men who practice general dentistry, the patients being furnished 
by the specialist, he, the specialist, is guilty of a violation of sec- 
tion 3 in that he receives a portion of the fee for work referred 
by him to another practitioner, the fact that the practitioner is in 
the specialist's own office having no influence on or excuse for this 
offense." 
"We know that this has been done for over twenty-five years 
and is being done today by some of the 'top notchers' of the 
profession, but nevertheless, it is splitting fees-splitting fees as 
effectually as is done by the x-ray man who sends 25 per cent of 
his fee to some inconsequential little fellow in the outlying districts 
of the city for work referred to him." 
The essential thing about a commission or a split fee is that 
some one receives a part of the fee who does not give any part of 
the professional service. 
If a specialist has a general practitioner in a business part- 
nership with him all the fees of the specialist and all from the 
general practice go into the partnership account, no fees are split SPECIALISTS. 
141 
and no commissions are paid. Such an arrangement is probably 
very bad business policy and few specialists are willing to do it, 
but it is a question of business policy and not of the code of ethics. 
In such an arrangement each partner may take the professional 
responsibility for his own practice, but of course each must as- 
sume legal and financial responsibility for his partner as well as 
himself. 
If a specialist hires an assistant to do his general practice 
the case is different. He then assumes both professional and 
financial responsibility to his patients, in fact he continues his gen- 
eral practice. This is not splitting fees or paying commissions 
but it violates section 2 of the code. 
Some men, both general practitioners and specialists, appear to 
be rather more sensitive than necessary about the diversion of 
patients by specialists from the men who have sent them. The 
phrase "stealing patients" is sometimes used, and does not apply. 
Patients are not property and cannot be stolen or transferred by 
one dentist to another. Patients change or continue the dentist 
whom they employ by their own choice and no dentist has any 
authority over them. It is true enough, however, that undue and 
improper influences may be used and sometimes are used and it is 
undeniable that there may often be the opportunity and tempta- 
tion to do so. Of course all honorable men carefully guard the 
rights and the reputation of other practitioners, and it would be 
very sad if we could not believe that a very large majority of 
dentists are fair and honorable, at least in their intentions. It is 
not to be expected that any man would send a patient to a specialist 
if he suspected that his patient would be influenced to leave him, 
and I heard one specialist say that if a man had not sufficient con- 
fidence in him to feel sure that he and his patient would both 
receive honorable treatment he did not want any patients that 
such a man could send him. 
A code of ethics cannot be written that will specify every 
detail of circumstance and relation that will arise in the practice of 
either a specialist or a general practitioner. It does state clearly 
the motives and principles and some of the details that should 
guide professional practice, either general or special. 
It is sometimes indispensable that the dentist who sends a 142 
PROFESSIONAL ETHICS. 
patient to a specialist should cooperate with him in order that the 
specialist's work can be successful. This is best illustrated by cases 
that actually occurred. An orthodontist sent a little patient to the 
family dentist with a request that he fill some temporary teeth that 
it was necessary to preserve in order that the jaws, and the occlu- 
sion of the permanent teeth might develop normally. The dentist 
refused to fill them, saying their preservation was of no conse- 
quence. In such a case, if the refusal were persisted in after 
proper consultation and explanation by the specialist, he would be 
obliged to advise the patient to seek another dentist. 
In another case the normal occlusion had been restored by 
the orthodontist and a broken down molar was restored by the 
patient's dentist with the cusps so badly made as to render inev- 
itable a relapse from the orthodontist's successful treatment. Here 
again there was no alternative except to persuade the dentist to do 
over his work or ask the patient to go to some one else. Such 
cases as these will serve to show that the spirit of the code of ethics 
may sometimes require some deviation from the letter of it. 
The code itself, however, does provide for these deviations 
by its insistence that the welfare of patients shall always take 
precedence of all other considerations. 
It seems desirable to say something about the fees of spe- 
cialists. No objection need to be made to the amount of them, 
provided they bear a reasonable relation to the services rendered, 
take proper account of the ability to pay them, and provide oppor- 
tunity for some generous treatment of the needy. 
It is not this aspect of the question that I wish to discuss here. 
I wish to suggest that dentists generally, and specialists very par- 
ticularly, ought to distinguish between services that are truly pro- 
fessional and those that are merely technical. The professional 
service deserves a better fee than the technical. To illustrate: in 
the replacement of a broken tooth on a plate the professional ele- 
ment is negligible, and it is often done by a non-professional man. 
Most things that a dentist does involve both technical and profes- 
sional elements, in varying gradations until we come to the study, 
diagnosis and determination of what the patient needs, which is 
purely professional until we begin to operate. 
This will sufficiently illustrate what I mean by a distinction SPECIALISTS. 
143 
between a professional service and one that is purely technical, in- 
volving no professional responsibility. 
An orthodontist oftener than any other specialist requires the 
help or co-operation of other orthodontists because the cases are 
usually of long duration, some of the children are in schools in 
distant places, and many of them go away with their parents in 
the summer vacation. If a patient is away for half a year in one 
place it may be necessary for the man nearby to take professional 
charge of the case during the time, and of course a professional 
fee should be charged. 
The cases are much more frequent in which an appliance be- 
comes loose and needs to be refastened or broken and needs repair, 
in either case a purely technical operation. It is true that the pro- 
fessional man must do the technical work, and may fairly ask a 
larger fee than a watchmaker or plumber for the same amount 
of time, but he should remember that his fee is for a technical 
service and not for a professional service. An instance could be 
given in which an orthodontist charged so large a fee for such a 
merely technical service that the patient and the man who referred 
him both regarded it as robbery. Such services when small are 
often given without fees and called a professional courtesy to a 
brother practitioner. CHAPTER XIV. 
COMMISSIONS AND SPLIT FEES CODES OF ETHICS. 
The Principles of Medical Ethics, article VI, section 3, is as 
follows: "It is detrimental to the public good and degrading to the 
profession, and therefore unprofessional, to give or receive a com- 
mission. It is also unprofessional to divide a fee for medical ad- 
vice or surgical treatment, unless the patient or his next friend is 
fully informed as to the terms of the transaction." 
"The patient should be made to realize that a proper fee 
should be paid the family physician for the service he renders in 
determining the surgical or medical treatment suited to the condi- 
tion, and in advising concerning those best qualified to render any 
special service that may be required by the patient." 
The Code of Ethics of the Illinois State Dental Society, sec- 
tion 3, has this to say about commissions: "It is unprofessional 
for dentists to pay or accept commissions on fees for professional 
services, or on prescriptions or other articles supplied to patients 
by pharmacists or others." 
There is some reason to fear that some men of otherwise 
reputable standing do not observe these rules with strictness. It 
has been intimated that some surgeons ask the physician who 
brings them a patient to assist in the operation, and while the as- 
sistance may be only nominal, it furnishes the excuse for splitting 
the fee, and more than one extracting specialist and more than one 
orthodontist in the beginning of his special practice has sought to 
induce other dentists to refer patients to him by offering them some 
certain percentage of the fees he received from such patients. 
Such transactions have been defended with some show of plausi- 
bility, for the dentist or physician who recommends a patient to 
go to some particular specialist, whose skill and wisdom he knows, 
performs a real service to his patient, and the more so if he goes 
with the patient to the specialist and consults with him about the 
case, and in the latter case, especially, he is entitled to render his 
own bill to the patient for such services. He also renders a real COMMISSIONS AND SPLIT FEES. 
145 
service to the specialist, for he wins the patient for him and in 
many cases is the real salesman of the specialist's services (if 
such an expression may be allowed in regard to such a trans- 
action), instead of the specialist having to win the patient himself, 
as he would have to do if the patient came of his own initiative 
solely. One fundamental objection to commissions and split fees is 
that usually neither of the parties feels at all willing to have the 
patient know anything about it. The only honorable and straight- 
forward course is for each to render his own bill to the person 
who is expected to pay it. This leaves the general practitioner and 
the specialist quite free each to set his own estimate of value upon 
the service he has rendered to the patient. If it is objected that 
the specialist's fees are usually much greater than those of the 
general practitioner, and patients are often less willing to pay the 
physician or dentist a proper fee for his services in advising and 
sending them to the specialist than they are to pay the specialist's 
large fee for making the operation, it must be replied that an 
honorable man ought not to wish a fee for which he is unwilling to 
render a bill. And if it is further objected that the general prac- 
titioner has rendered to the specialist a service of real value and 
importance, for which he receives no pecuniary reward, it is 
answered that a fee or commission paid under such circumstances 
subjects the practitioner to the temptation to send patients where 
he can get the best commission instead of where they can get the 
best treatment, and if he is not in the least influenced by such a 
consideration, he will surely fall under the suspicion of it, and he 
can better afford to do without the commission. The right way 
is to charge a proper fee for consultation and advice, and if 
time and money are spent in going with the patient to the 
specialist, charge a fee and expenses for that, but so far as the 
mere telling the patient what specialist to go to, call it an act of 
good will and neighborliness and let it go at that. You would not 
listen very patiently to a patient who came and asked you to pay 
him a commission for sending you a patient, and the case would not 
be so very different from what it would be for you to ask a com- 
mission for sending a patient to a specialist, or, if we put it the 
other way and say that it is the new patient who is served or 
benefited by the man who tells him what dentist to go to, you 146 
PRINCIPLES OF MEDICAL ETHICS. 
never heard of a man who was asked if he could recommend a 
good dentist replying: "If you will give me a couple of dollars I 
will tell you of a first-class dentist." The truth is, a great many 
important services are done, and must be done, without any pay- 
ment for them in money. 
The most important and fundamental thing to say about giv- 
ing and receiving commissions and splitting fees is that it is not 
right. There is no difference of opinion on that point among 
conscientious and right thinking professional men. That is the 
reason for the language used in the "Principles of Medical Ethics." 
"It is detrimental to the public good and degrading to the pro- 
fession, and therefore unprofessional." The sufficient reason for 
this statement is because it is morally wrong. There is probably 
need in certain places of some moral awakening in regard to this 
matter and it seems probable that a few expulsions from dental 
societies of some who are giving, and, quite equally important, of 
some who are receiving commissions might clear the moral at- 
mosphere of the profession beneficially. 
*Resolution (preceded by a long preamble-six "Where- 
ases") offered by Dr. H. J. McKellops and adopted by the Amer- 
ican Dental Association, 1880: 
"Resolved, That this Association discountenance in a formal 
and emphatic manner the pernicious practice of members of the 
profession, but more especially those holding high positions in our 
schools, of allowing their names to appear in advertisements as 
indorsing either any special material or compound for filling teeth 
or any therapeutic agent whatsoever." 
Dr. McKellops sent to the secretary's desk a dental journal 
containing the advertisement of a material for filling teeth, with 
the recommendations of seven professors in dental colleges 
attached. 
Dr. Buckingham, in discussion, said he had refused to give 
recommendation if the formula was unknown to him. 
Dr. Morgan said: "Regular physicians are not found to 
recommend an article in this way. * * * If a physician knows 
an article or preparation to be good, the pages of the medical jour- 
nals are open to him. The whole matter appears to be in direct 
*Cosmos, 1880, p. 538. FLINT'S COMMENTARY. 
147 
violation of the code of dental ethics. It is no matter if the 
components and methods of preparing are generally known, the 
tendency of the practice of giving testimonials of this character 
is held to be to lower the dignity of the profession." 
The unwritten Law of Dental Ethics read before American 
Dental Association, 1880. Cosmos, 1880, page 639. Last para- 
graph but one: 
"What I am urging is the creation of a goal towards which we 
shall press. In our personal relations that goal is the cultivation 
of mutual consideration; in professional work, the highest good of 
those committed to our care; in professional conversation, the clear 
expression of positive ideas; in professional life, the maintenance 
of personal honor; in professional study, the securing of valuable 
information; in society relations, the devotion of one's best ener- 
gies to the promotion of the general good; in the labor of scientific 
research, the exercise of that calm, persistent, wise discrimina- 
tion that digs and tests, that gathers and sifts, so that golden grain 
and not weightless chaff may be the product." 
CODE OF ETHICS OF THE AMERICAN MEDICAL 
ASSOCIATION. 
flint's COMMENTARY-INTRODUCTION. 
"In various points of view, the practice of medicine when 
contrasted with other pursuits, is peculiar. The medical practi- 
tioner does not deal with facts and laws having the exactness of 
those pertaining to physics. In employing means for certain ends, 
he cannot calculate results with mathematical precision. The 
problems of disease * * * offer a wide scope for the exercise 
of judgment in the practical application of medical knowledge. 
It is by no means easy in all cases for the practitioner himself to 
judge correctly of the results of his practice, and for those not 
versed in the study of disease it is an impossibility; hence he is 
often blamed undeservedly, and as often, perhaps, he receives 
praise not strictly his due. People cannot judge with certainty of 
the merits of a physician by the character of his work." 
"Hence the choice of a family doctor is often determined by 
other circumstances than his knowledge and skill. * * * In no 148 
PRINCIPLES OF MEDICAL ETHICS. 
other profession or calling are extrinsic means available for com- 
petition to the same extent as in the practice of medicine (or 
dentistry) and in no other pursuits are the opportunities so great 
for ungenerous and unscrupulous advantages. Under these cir- 
cumstances it is not to be wondered at that physicians (and den- 
tists) are peculiarly sensitive respecting their professional rela- 
tions and rival practitioners. * * * 
"It is, perhaps, a common impression that the objects of a 
code of ethics have exclusive reference to the interests of the pro- 
fession. So far from this, the objects are of far more im- 
portance to the public welfare than to physicians. The truth of 
this will be apparent to all who read the code. * * *" 
"Prior to 1847 the codes of medical ethics which existed in 
this country were instituted in State or local societies, and in 
many, probably in most of the States of the Union there were 
none. At the convention which resulted in the organization of 
the American Medical Association in 1847 a committee of which 
Dr. Isaac Hays was chairman was instructed to report a code of 
ethics. The code which they reported was adopted unanimously 
and has since been recognized as the national code throughout this 
country. In his report Dr. Hays says: 'On examining a great 
number of codes of ethics adopted by different societies in the 
United States it was found that they were all based on that pre- 
pared by Dr. Thomas Percival (of England) and published in 
1803, and the phrases of this writer were preserved to a consider- 
able extent in all of them. Percival's code was prepared for a son 
who was about to engage in medical practice, and who died before 
its publication. It was dedicated to another son who was studying 
medicine." 
"The following is quoted from this dedication: 'The rela- 
tions in which the physician stands to his patients, to his brethren 
and the public are complicated and multifarious, involving much 
kuowledge of human nature and extensive moral duties. The 
study of professional ethics, therefore, cannot fail to invigorate 
and enlarge your understanding, while the observance of the duties 
which they enjoin will soften your manners, expand your affec- 
tions, and form you to that propriety and dignity of conduct which 
are essential to the character of a gentleman.' " FLINT'S COMMENTARY. 
149 
Article 1, Secs. 1 and 2. 
Sec. 2. "The physician does not compromise his self-respect 
by submitting patiently to rudeness, or even to insults from a sick 
patient, to which he would be by no means bound to submit quietly 
if the patient were well. 
"The ethical rule is not, at least to the same extent, applicable 
to the friends of patients, but allowance is often to be made for 
the disturbance of mind arising from anxiety and apprehension. 
* * * 
"On the part of the physician (or dentist) it is a gross im- 
propriety to require the forbearance of his sick patients and their 
friends. * * * Roughness and lack of courtesy are inexcus- 
able, and brutality toward patients or their friends is a grievous 
offence against the medical (or dental) profession. It is especially 
reprehensible toward hospital or infirmary or charity patients, be- 
cause they have not the privilege to change their physician (or 
dentist) if dissatisfied with him, hence it is taking a mean advan- 
tage not to treat such patients with attention and humanity." 
"The binding force of secrecy as regards all information ob- 
tained in connection with professional relations, whenever it is 
desired, or desirable on the part of the patients or their friends 
* * * is not sufficiently appreciated by many members of the 
medical profession and still less by the public. * * * A more 
judicious reserve than is now practiced by not a few physicians 
would soon lead to a better understanding of the ethical duty of 
secrecy on the part of the public, * * * but the ground is by 
no means to be taken that nothing is to be communicated to 
friends, acquaintances or the public respecting cases of disease. 
It would be simply absurd to take this ground. The condition of 
the patient in respect of danger and, in some instances, the prob- 
able duration of disease, may properly be made known. * * * 
In respect of the knowledge of criminal acts the physician is not 
to play the part of a detective or informer. * * * A criminal 
has a right to medical services in sickness." 
"In England the law makes the divulging of professional 
secrets compulsory when called upon as a witness in court. The 
law in France recognizes the obligations of secrecy." 150 
PROFESSIONAL ETHICS. 
CODE OF ETHICS OF THE ILLINOIS STATE DENTAL 
SOCIETY. 
Adopted May, 1909. 
Section 1.-In his dealings with patients and with the pro- 
fession, the conduct of the dentist should be in accordance with 
the Golden Rule, both in its letter and its spirit. 
Sec. 2.-It is unprofessional for a dentist to advertise by 
handbills, posters, circulars, cards, signs, or in newspapers or 
other publications, calling attention to special methods of practice, 
or claiming excellence over other practitioners, or to use display 
advertisements of any kind. This does not exclude a practitioner 
from using professional cards of suitable size, with name, titles, 
address and telephone number printed in modest type, nor having 
the same character of card in a newspaper. Ne'ther does it pre- 
vent a practitioner who confines himself to a specialty from merely 
announcing his specialty on his professional card. 
Sec. 3.-It is unprofessional for dentists to pay or accept 
commissions on fees for professional services, or on prescriptions 
or other articles supplied to patients by pharmacists or others. 
Sec. 4.-One dentist should not disparage the services of 
another to a patient. Criticism of work which is apparently de- 
fective may be unjust through lack of knowledge of the conditions 
under which the work was performed. The duty of the dentist 
is to remedy any defect without comment. 
Sec. 5.-If a dentist is consulted in an emergency by the 
patient of another practitioner who is temporarily absent from 
his office, the duty of the dentist so consulted is to relieve the pa- 
tient of any immediate disability by temporary service only, and 
then refer the patient back to the regular dentist. 
Sec. 6.-When a dentist is called in consultation by a fellow- 
practitioner he should hold the discussions in the consultation as 
confidential, and under no circumstances should he accept charge 
of the case without the request of the dentist who has been attend- 
ing it. 
Sec. 7.-The dentist should be morally, mentally and phys- 
ically clean, and honest in all his dealings with his fellow-men, as 
comports with the dignity of a cultured and professional gentle- 
man. CODE OF ETHICS. 
151 
CODE OF ETHICS OF THE AMERICAN DENTAL 
ASSOCIATION. 
Adopted at Los Angeles in 1922.* 
Section 1.-In his dealings with patients and with the profes- 
sion, the conduct of the dentist should be in accordance with the 
Golden Rule, both in its letter and in its spirit. 
Sec. 2.-It is unprofessional for a dentist to advertise by 
handbills, posters, circulars, cards, signs, or in newspapers or 
other publications, calling attention to special methods of practice 
or claiming excellence over other practitioners, or to use display 
advertisements of any kind. It is also unprofessional to publish 
reports of cases on certificates in the public prints. This does not 
exclude a practitioner from using professional cards of suitable 
size with name, titles, address and telephone number, printed in 
modest type, nor having the same character of card in a news- 
paper. Neither does it prevent a practitioner who confines him- 
self to a specialty from merely announcing his specialty on his 
professional card. 
Sec. 3.-It is unprofessional for dentists to pay or accept 
commissions on fees for professional services, or for radiograms, 
or on prescriptions or other articles supplied to patients by phar- 
macists or others. 
Sec. 4.-One dentist should not disparage the services of an- 
other to a patient. Criticism of operations which are apparently 
defective may be unjust through lack of knowledge of the condi- 
tions under which they were performed. But the welfare of the 
patient is paramount to every other consideration, and should be 
conserved to the utmost of the practitioner's ability. If he finds 
indisputable evidence that a patient is suffering from previous 
faulty treatment, it is his duty to institute correct treatment at 
once, doing it with as little comment as possible and in such a 
manner as to avoid reflection on his predecessor. 
Sec. 5.-If a dentist is consulted in an emergency by the 
patient of another practitioner who is temporarily absent from his 
*New Code of Ethics of the American Dental Association adopted at 
the Los Angeles session.-Jour. A. D. A., October, 1922. 152 
PROFESSIONAL ETHICS. 
office, or by a patient who is away from home, the duty of the 
dentist so consulted is to relieve the patient of any immediate 
disability by temporary service only, and then refer the patient 
back to the regular dentist. 
Sec. 6.-When a dentist is called in consultation by a fellow 
practitioner, he should hold the discussions in the consultation as 
confidential, and under no circumstances should he accept charge 
of the case without the request of the dentist who has been attend- 
ing it. 
Sec. 7.-The dentist should be morally, mentally and phys- 
ically clean. He should be honest in all his dealings with his fel- 
low men, as comports with the honor and dignity of a cultured 
and professional gentleman. CHAPTER XV. 
PATENTS. 
The medical code of ethics expressly declares that it is un- 
professional for any practitioner of medicine to hold a patent on 
any surgical instruments or appliances, or upon any medicine or 
pharmaceutical preparation. It is believed that no similar clause 
is to be found in any code of dental ethics hitherto adopted by 
any dental society. There has been strenuous effort, however, on 
the part of some to hold the dental profession to the same rule. 
The argument in favor of it is that anything used for the healing 
of the sick or the cure of deformities and the replacement or 
restoration of lost members is so important to the welfare of 
humanity that its use should not be restricted or its price increased 
by a patent monopoly. It is true that the benefits of the healing 
art in all its branches and applications should be available as nearly 
as possible to the whole population, but no one objects to the cus- 
tom of individual practitioners receiving compensation from the 
individual patients whom they serve, and it is difficult to discover 
any ethical principle which does not apply with equal force to the 
man who, through the invention of some valuable instrument or 
appliance or apparatus, or the development and introduction of 
some better process or mode of procedure serves all patients by 
helping all practitioners to become more efficient. 
Such patents as those upon automatic mallets, dental chairs, 
dental engines, fountain cuspidors, Donaldson broaches and almost 
innumerable other articles have encountered no appreciable ob- 
jection or opposition from the dental profession so long as the 
price of the purchased article included the compensation to the 
inventor, or the owner of the patent; but when the owner of a 
patent has sought to collect money directly for the use of an in- 
vention, as for instance, the oppressive yearly license fee collected 
by the Goodyear Dental Vulcanite Co., the similar one attempted 
by the Crown & Bridge Co., and the moderate single fee de- 
manded by Dr. Taggart for the use of his inventions during the 
whole term of his patents, the profession has shown intense an- 
tagonism and much irritation and bitterness toward such patents 
and the owners of them. It is probable that in the case of Dr. 154 
PATENTS. 
Taggart, whose great services to the profession few or none have 
seriously questioned, the opposition is due, in part at least, to the 
attitude and habit of mind carried over from the experiences with 
the Vulcanite Company and the Crown Company, both of which 
the profession generally regarded as little better than robbers. In 
the case of the Goodyear Dental Vulcanite Co. it was universally 
believed that the Cummings patent was not valid and that Cum- 
mings was not the inventor or originator of the process of mak- 
ing artificial teeth on rubber plates, and nobody had any reason 
to suppose that any of the vast sum of money collected from the 
dentists ever benefited anyone who had ever rendered any serv- 
ice to the dental profession or the patients they served. The same 
things were true of the Crown & Bridge Co., except that their 
attempts to collect royalties or licenses were prevented by the 
Dental Protective Association under the leadership of Dr. J. N. 
Crouse. 
It has been sought to make a distinction between patents for 
things that can be manufactured and sold to the dentists and 
patents upon things to be made by the dentist for individual 
patients, like crowns, bridges and inlays, and these latter have 
been called "process patents". Dr. Crouse used to say that all 
patents are "process patents," and he was pretty nearly right, for 
the first class named above are patents upon the "process" of 
making hundreds or thousands of like things in a shop or factory, 
while the latter class of patents are for making hundreds or 
thousands of similar things which are not alike, but each adapted 
to an individual place or use. Whether it is practicable to frame 
a law which will discriminate clearly enough these different uses 
of invented processes to grant patents upon one class and refuse 
them to the other class, or whether it would be good public policy 
to do so if it could be done, I will not attempt to affirm or deny. 
This much appears to be plain enough, however, that so long as 
the United States grants those so-called "process patents" and up- 
holds them in the courts, it is futile and foolish to ignore or re- 
sist a patent solely on this ground. If there is a probability that 
a patent has been granted to some one who was not the real in- 
ventor, or if for a process or article in such common use when the 
patent was applied for as to be public property, in other words PATENTS. 
155 
if there is a doubt about the validity of the patent, of course it is 
the privilege of any man or association of men to test the validity 
of the patent in the courts. 
In the "Principles of Medical Ethics," chapter second, article 
first, section five reads as follows: "Patents and perquisites.-It 
is unprofessional to receive remuneration from patents for surgical 
instruments or medicines; to accept rebates on prescriptions or 
surgical appliances, or perquisites from attendants who aid in the 
care of patients." There can be no reasonable doubt about the 
impropriety of accepting rebates and perquisites (which has been 
discussed in another place). 
As regards patents there would seem to be room for honest 
difference of opinion. It is difficult to say upon what moral 
grounds a man can be denied any remuneration, except what may 
accrue in his own personal practice, for a discovery or improve- 
ment he may make in the practice of medicine, whether it be some 
new instrument or appliance, or some new medicine. It is true 
that sentiments of philanthropy and also professional duty would 
dictate that the benefits of improvements and discoveries be as 
widely diffused at as little cost as possible, but in some cases this 
can better be done by a monopoly in the manufacture. For in- 
stance, in the case of many instruments and remedies it will be 
easy for one manufacturing plant to supply the whole demand. 
It is evident therefore that if two, or perhaps half a dozen different 
parties incur the expense of providing similar manufacturing fa- 
cilities, the price of the product must be increased if they are all 
to get a fair profit on their cost of manufacture; besides which 
the pressure of competition offers the temptation to cheapen the 
product by deteriorating its quality. Some one has got to manu- 
facture these things and it seems hardly reasonable that the men 
who originated them should be the only ones who are forbidden 
to profit by giving to the manufacture such supervision as may 
insure their perfection. 
Whether the foregoing considerations can be considered 
sound or not, it is nevertheless undoubtedly true that the great 
body of the medical profession are steadfastly loyal to the re- 
strictions laid down in their "Principles of Medical Ethics," in 
respect to patents and remedies, the ingredients or mode of manu- 156 
PATENTS. 
facture of which are kept secret. Probably this loyalty rests not 
so much upon grounds of strict justice and equity as upon motives 
of philanthropy and humanity, for there is no other class of men 
who respond so freely and generously, both individually and col- 
lectively, to the appeal of the suffering and the needy as do the 
physicians, and they take the attitude, and dentists should also, 
that everything within reason that they can do for the advance- 
ment or success of their profession is due from them in acknowl- 
edgement of what they have received from their profession. 
A vast fund of knowledge, skill and experience has been 
accumulated by the medical profession through hundreds of years, 
-and by the dental profession also, though it is far less ancient,- 
and all these acquirements are freely available to the present gen- 
eration, the only limitation being the individual capacity to acquire 
and use it. Having received so great a gift, it would be shameful 
for any man to seek to exploit the giver financially for any return 
benefits he might be able to confer. 
When a man has made such great personal sacrifices in con- 
ferring some great benefit upon his profession and humanity as to 
impoverish himself and his family there ought to be some provision 
by which he can be rewarded and taken care of, but it is scarcely 
possible to have any rule or law applicable to human affairs that 
will not work some injustice or hardship in a few instances, and 
it is believed that the exploiting for gain of every new thing in 
the practice of medicine, as is done, rightly enough in industrial 
and commercial affairs, would work so much inconvenience, hard- 
ship, and actual damage to life and health as would far outweigh 
the occasional injustice and hardship to a few individuals that 
are caused by the present rule. 
The absence from the codes of dental ethics of any prohi- 
bition similar to that in the "Principles of Medical Ethics" leaves 
the dental profession freer, and we may, and should by force of 
public opinion, establish as firmly as possible the custom of the 
medical profession in respect to patents, while we are also free 
to recognize the propriety, in rare instances, for some man who 
has made great sacrifices, and conferred great benefits, to compel 
from a reluctant profession by means of a patent some adequate 
remuneration for great services. CHAPTER XVI. 
PRINCIPLES OF MEDICAL ETHICS OF THE 
AMERICAN MEDICAL ASSOCIATION.* 
CHAPTER I. 
THE DUTIES OF PHYSICIANS TO THEIR PATIENTS. 
THE PHYSICIAN'S RESPONSIBILITY. 
Section 1.-A profession has for its prime object the service 
it can render to humanity; reward or financial gain should be a 
subordinate consideration. The practice of medicine is a profes- 
sion. In choosing this profession an individual assumes an obliga- 
tion to conduct himself in accord with its ideals. 
PATIENCE, DELICACY AND SECRECY. 
Sec. 2.-Patience and delicacy should characterize all the acts 
of a physician. The confidences concerning individual or domestic 
life entrusted by a patient to a physician and the defects of dis- 
position or flaws of character observed in patients during medical 
attendance should be held as a trust and should never be revealed 
except when imperatively required by the laws of the state. There 
are occasions, however, when a physician must determine whether 
or not his duty to society requires him to take definite action to 
protect a healthy individual from becoming infected, because the 
physician has knowledge, obtained through the confidences entrust- 
ed to him as a physician, of communicable disease to which the 
healthy individual is about to be exposed. In such a case, the 
physician should act as he would desire another to act toward one 
of his own family under like circumstances. Before he determines 
his course, the physician should know the civil law of his common- 
wealth concerning privileged communications. 
Sec. 3.-A physician should give timely notice of dangerous 
manifestations of the disease to the friends of the patient. He 
should neither exaggerate nor minimize the gravity of the patient's 
condition. He should assure himself that the patient or his friends 
PROGNOSIS. 
♦Reprinted by permission from the pamphlet published by the American 
Medical Association. 158 
PRINCIPLES OF MEDICAL ETHICS. 
have such knowledge of the patient's condition as will serve the 
best interests of the patient and the family. 
PATIENTS MUST NOT BE NEGLECTED. 
Sec. 4.-A physician is free to choose whom he will serve. 
He should, however, always respond to any request for his assist- 
ance in an emergency or whenever temperate public opinion ex- 
pects the service. Once having undertaken a case, a physician 
should not abandon or neglect the patient because the disease is 
deemed incurable; nor should he withdraw from the case for any 
reason until a sufficient notice of a desire to be released has been 
given the patient or his friends to make it possible for them to 
secure another medical attendant. 
CHAPTER II. 
THE DUTIES OF PHYSICIANS TO EACH OTHER AND TO THE 
PROFESSION AT LARGE. 
Article I.-Duties to the Profession 
UPHOLD HONOR OF PROFESSION. 
Section 1.-The obligation assumed on entering the profes- 
sion requires the physician to comport himself as a gentleman 
and demands that he use every honorable means to uphold the 
dignity and honor of his vocation, to exalt its standards and to 
extend its sphere of usefulness. A physician should not base his 
practice on an exclusive dogma or sectarian system, for "sects 
are implacable despots; to accept their thraldom is to take away 
all liberty from one's action and thought." (Nicon, father of 
Galen.) 
MEDICAL SOCIETIES. 
Sec. 2.-In order that the dignity and honor of the medical 
profession may be upheld, its standards exalted, its sphere of use- 
fulness extended, and the advancement of medical science pro- 
moted, a physician should associate himself with medical societies 
and contribute his time, energy and means in order that these 
societies may represent the ideals of the profession. PHYSICIANS AND THEIR PATIENTS. 
159 
DEPORTMENT. 
Sec. 3.-A physician should be "an upright man, instructed 
in the art of healing." Consequently, he must keep himself pure 
in character and conform to a high standard of morals, and must 
be diligent and conscientious in his studies. "He should also be 
modest, sober, patient, prompt to do his whole duty without anxi- 
ety ; pious without going so far as superstition, conducting himself 
with propriety in his profession and in all the actions of his life." 
(Hippocrates.) 
ADVERTISING. 
Sec. 4.-Solicitation of patients by physicians as individuals, 
or collectively in groups by whatsoever name these be called, or 
by institutions or organizations, whether by circulars or advertise- 
ments, or by personal communications, is unprofessional. This 
does not prohibit ethical institutions from a legitimate advertise- 
ment of location, physical surroundings and special class-if any 
-of patients acommodated. It is equally unprofessional to pro- 
cure patients by indirection through solicitors or agents of any 
kind, or by indirect advertisement, or by furnishing or inspiring 
newspaper or magazine comments concerning cases in which the 
physician has been or is concerned. All other like self-laudations 
defy the traditions and lower the tone of any profession and so 
are intolerable. The most worthy and effective advertisement 
possible, even for a young physician, and especially with his 
brother physicians, is the establishment of a well-merited reputa- 
tion for professional ability and fidelity. This cannot be forced, 
but must be the outcome of character and conduct. The publica- 
tion or circulation of ordinary simple business cards, being a mat- 
ter of personal taste or local custom, and sometimes of conven- 
ience, is not per se improper. As implied, it is unprofessional to 
disregard local customs and offend recognized ideals in publishing 
or circulating such cards. 
It is unprofessional to promise radical cures; to boast of 
cures and secret methods of treatment or remedies; to exhibit 
certificates of skill or of success in the treatment of diseases; or to 
employ any methods to gain the attention of the public for the 
purpose of obtaining patients. 160 
PRINCIPLES OF MEDICAL ETHICS. 
PATENTS AND PERQUISITES. 
Sec. 5.-It is unprofessional to receive remuneration from 
patents for surgical instruments or medicines; to accept rebates 
on prescriptions or surgical appliances, or perquisites from at- 
tendants who aid in the care of patients. 
MEDICAL LAWS SECRET REMEDIES. 
Sec. 6.-It is unprofessional for a physician to assist un- 
qualified persons to evade legal restrictions governing the practice 
of medicine; it is equally unethical to prescribe or dispense secret 
medicines or other secret remedial agents, or manufacture or pro- 
mote their use in any way. 
SAFEGUARDING THE PROFESSION. 
Sec. 7.-Physicians should expose without fear or favor, be- 
fore the proper medical or legal tribunals, corrupt or dishonest 
conduct of members of the profession. Every physician should 
aid in safeguarding the profession against the admission to its 
ranks of those who are unfit or unqualified because deficient either 
in moral character or education. 
Article II.-Professional Services of Physicians to Each 
Other. 
PHYSICIANS DEPENDENT ON EACH OTHER. 
Section 1.-Experience teaches that it is unwise for a physi- 
cian to treat members of his own family or himself. Consequently, 
a physician should always cheerfully and gratuitously respond 
with his professional services to the call of any physician prac- 
ticing in his vicinity, or of the immediate family dependents of 
physicians. 
COMPENSATION FOR EXPENSES 
Sec. 2.-When a physician from a distance is called on to 
advise another physician or one of his family dependents, and the 
physician to whom the service is rendered is in easy financial cir- 
cumstances, a compensation that will at least meet the traveling PHYSICIANS AND THEIR PROFESSION. 
161 
expenses of the visiting physician should be proffered. When such 
a service requires an absence from the accustomed field of pro- 
fessional work of the visitor that might reasonably be expected 
to entail a pecuniary loss, such loss should, in part at least, be 
provided for in the compensation offered. 
ONE PHYSICIAN TO TAKE CHARGE. 
Sec. 3.-When a physician or a member of his dependent 
family is seriously ill, he or his family should select a physician 
from among his neighboring colleagues to take charge of the case. 
Other physicians may be associated in the care of the patient as 
consultants. 
Article III.-Duties of Physicians in Consultation. 
CONSULTATIONS SHOULD BE ENCOURAGED. 
Section 1.-In serious illness, especially in doubtful or diffi- 
cult conditions, the physician should request consultations. 
CONSULTATION FOR PATIENT'S BENEFIT. 
Sec. 2.-In every , consultation, the benefit to be derived by 
the patient is of first importance. All the physicians interested 
in the case should be frank and candid with the patient and his 
family. There never is occasion for insincerity, rivalry or envy 
and these should never be permitted between consultants. 
PUNCTUALITY. 
Sec. 3.-It is the duty of a physician, particularly in the in- 
stance of a consultation, to be punctual in attendance. When, 
however, the consultant or the physician in charge is unavoidably 
delayed, the one who first arrives should wait for the other for 
a reasonable time, after which the consultation should be con- 
sidered postponed. When the consultant has come from a dis- 
tance, or when for any reason it will be difficult to meet the physi- 
cian in charge at another time, or if the case is urgent, or if it be 
the desire of the patient, he may examine the patient and mail 
his written opinion, or see that it is delivered under seal, to the 
physician in charge. Under these conditions, the consultant's 162 
PRINCIPLES OF MEDICAL ETHICS. 
conduct must be especially tactful; he must remember that he is 
framing an opinion without the aid of the physician who has ob- 
served the course of the disease. 
PATIENT REFERRED TO SPECIALIST. 
Sec. 4.-When a patient is sent to one specially skilled in the 
care of the condition from which he is thought to be suffering, 
and for any reason it is impracticable for the physician in charge 
of the case to accompany the patient, the physician in charge 
should send to the consultant by mail, or in the care of the patient 
under seal, a history of the case, together with the physician's 
opinion and an outline of the treatment, or so much of this as may 
possibly be of service to the consultant; and as soon as possible 
after the case has been seen and studied, the consultant should 
address the physician in charge and advise him of the results of 
the consultant's investigation of the case. Both these opinions 
are confidential and must be so regarded by the consultant and by 
the physician in charge. 
DISCUSSIONS IN CONSULTATION. 
Sec. 5.-After the physicians called in consultation have com- 
pleted their investigations of the case, they should meet by them- 
selves to discuss conditions and determine the course to be fol- 
lowed in the treatment of the patient. No statement or discussion 
of the case should take place before the patient or friends, except 
in the presence of all the physicians attending, or by their com- 
mon consent; and no opinions or prognostications should be de- 
livered as a result of the deliberations of the consultants, which 
have not been concurred in by the consultants at their conference. 
ATTENDING PHYSICIAN RESPONSIBLE. 
Sec. 6.-The physician in attendance is in charge of the case 
and is responsible for the treatment of the patient. Consequently, 
he may prescribe for the patient at any time and is privileged to 
vary the mode of treatment outlined and agreed on at a consulta- 
tion whenever, in his opinion, such a change is warranted. How- 
ever, at the next consultation, he should state his reasons for de- 
parting from the course decided on at the previous conference. PHYSICIANS AND THEIR PROFESSION. 
163 
When an emergency occurs during the absence of the attending 
physician, a consultant may provide for the emergency and the 
subsequent care of the patient until the arrival of the physician 
in charge, but should do no more than this without the consent of 
the physician in charge. 
CONFLICT OF OPINION. 
Sec. 7.-Should the attending physician and the consultant 
find it impossible to agree in their view of a case another con- 
sultant should be called to the conference or the first consultant 
should withdraw. However, since the consultant was employed 
by the patient in order that his opinion might be obtained, he 
should be permitted to state the result of his study of the case to 
the patient, or his next friend in the presence of the physician in 
charge. 
consultant and attendant. 
Sec. 8.-When a physician has attended a case as a con- 
sultant, he should not become the attendant of the patient during 
that illness except with the consent of the physician who was in 
charge at the time of the consultation. 
Article IV.-Duties of Physicians in Cases of 
Interference 
CRITICISM TO BE AVOIDED. 
Section 1.-The physician, in his intercourse with a patient 
under the care of another physician, should observe the strictest 
caution and reserve; should give no disingenuous hints relative to 
the nature and treatment of ths patient's disorder; nor should the 
course of conduct of the physician, directly or indirectly, tend to 
diminish the trust reposed in the attending physician. In em- 
barrassing situations, or wherever there may seem to be a possi- 
bility of misunderstanding with a colleague, the physician should 
always seek a personal interview with his fellow. 
SOCIAL CALLS ON PATIENT OF ANOTHER PHYSICIAN 
Sec. 2.-A physician should avoid making social calls on 
those who are under the professional care of other physicians 164 
PRINCIPLES OF MEDICAL ETHICS. 
without the knowledge and consent of the attendant. Should such 
a friendly visit be made, there should be no inquiry relative to the 
nature of the disease or comment upon the treatment of the case, 
but the conversation should be on subjects other than the physical 
condition of the patient. 
SERVICES TO PATIENT OF ANOTHER PHYSICIAN. 
Sec. 3.-A physician should never take charge of or pre- 
scribe for a patient who is under the care of another physician, 
except in an emergency, until after the other physician has re- 
linquished the case or has been properly dismissed. 
CRITICISM TO BE AVOIDED. 
Sec. 4.-When a physician does succeed another physician 
in the charge of a case, he should not make comments on or in- 
sinuations regarding the practice of the one who preceded him. 
Such comments or insinuations tend to lower the esteem of the 
patient for the medical profession and so react against the critic. 
EMERGENCY CASES. 
Sec. 5.-When a physician is called in an emergency and 
finds that he has been sent for because the family attendant is not 
at hand, or when a physician is asked to see another physician's 
patient because of an aggravation of the disease, he should pro- 
vide only for the patient's immediate need and should withdraw 
from the case on the arrival of the family physician after he has 
reported the condition found and the treatment administered. 
WHEN SEVERAL PHYSICIANS ARE SUMMONED. 
Sec. 6.-When several physicians have been summoned in 
a case of sudden illness or of accident, the first to arrive should 
be considered the physician in charge. However, as soon as the 
exigencies of the case permit, or on the arrival of the acknowl- 
edged family attendant or the physician the patient desires to serve 
him, the first physician should withdraw in favor of the chosen 
attendant: should the patient or his family wish some one other 
than the physician known to be the family physician to take charge 
of the case the patient should advise the family physician of his PHYSICIANS AND THEIR PROFESSION. 
165 
desire. When, because of sudden illness or accident, a patient 
is taken to a hospital, the patient should be returned to the care of 
his known family physician as soon as the condition of the patient 
and the circumstances of the case warrant this transfer. 
A COLLEAGUE'S PATIENT. 
Sec. 7.-When a physician is requested by a colleague to 
care for a patient during his temporary absence, or when, because 
of an emergency, he is asked to see a patient of a colleague, the 
physician should treat the patient in the same manner and with 
the same delicacy as he would have one of his own patients cared 
for under similar circumstances. The patient should be returned 
to the care of the attending physician as soon as possible. 
RELINQUISHING PATIENT TO REGULAR ATTENDANT. 
Sec. 8.-When a physician is called to the patient of another 
physician during the enforced absence of that physician, the pa- 
tient should be relinquished on the return of the latter. 
SUBSTITUTING IN OBSTETRIC WORK. 
Sec. 9.-When a physician attends a woman in labor in the 
absence of another who has been engaged to attend, such physician 
should resign the patient to the one first engaged, upon his arrival; 
the physician is entitled to compensation for the professional serv- 
ices he may have rendered. 
Article V.-Differences Between Physicians. 
ARBITRATION. 
Section 1.-Whenever there arises between physicians a 
grave difference of opinion which cannot be promptly adjusted, 
the dispute should be referred for arbitration to a committee of 
impartial physicians, preferably the Board of Censors of a com- 
ponent county society of the American Medical Association. 
Article VI.-Compensation. 
LIMITS OF GRATUITOUS SERVICE. 
Section 1.-The poverty of a patient and the mutual profes- 
sional obligation of physicians should command the gratuitous 
services of a physician. But endowed institutions and organiza- 166 
PRINCIPLES OF MEDICAL ETHICS. 
tions for mutual benefit, or for accident, sickness and life insur- 
ance, or for analogous purposes, have no claim upon physicians 
for unremunerated services. 
CONTRACT PRACTICE. 
Sec. 2.-It is unprofesional for a physician to dispose of his 
services under conditions that make it imposible to render adequate 
service to his patient or which interfere with reasonable competi- 
tion among the physicians of a community. To do this is detri- 
mental to the public and to the individual physician, and lowers 
the dignity of the profession. 
SECRET DIVISION OF FEES CONDEMNED. 
Sec. 3.-It is detrimental to the public good and degrading 
to the profession, and therefore unprofessional, to give or to re- 
ceive a commission. It is also unprofessional to divide a fee for 
medical advice or surgical treatment, unless the patient or his next 
friend is fully informed as to the terms of the transaction. The 
patient should be made to realize that a proper fee should be paid 
the family physician for the service he renders in determining the 
surgical or medical treatment suited to the condition, and in advis- 
ing concerning those best qualified to render any special service 
that may be required by the patient. 
CHAPTER III. 
THE DUTIES OF THE PROFESSION TO THE PUBLIC. 
PHYSICIANS AS CITIZENS. 
Section 1.-Physicians, as good citizens and because their 
professional training specially qualifies them to render this service, 
should give advice concerning the public health of the community. 
They should bear their full part in enforcing its laws and sus- 
taining the institutions that advance the interests of humanity. 
They should cooperate especially with the proper authorities in the 
administration of sanitary laws and regulations. They should 
be ready to counsel the public on subjects relating to sanitary po- 
lice, public hygiene and legal medicine. PHYSICIANS AND THE PUBLIC. 
167 
PUBLIC HEALTH. 
Sec. 2.-Physicians, especially those engaged in public health 
work, should enlighten the public regarding quarantine regulations; 
on the location, arrangement and dietaries of hospitals, asylums, 
schools, prisons and similar institutions; and concerning meas- 
ures for the prevention of epidemic and contagious diseases. When 
an epidemic prevails, a physician must continue his labors for the 
alleviation of suffering people, without regard to the risk to his 
own health, or life or to financial return. At all times, it is the 
duty of the physician to notify the properly constituted public 
health authorities of every case of communicable disease under 
his care, in accordance with the laws, rules and regulations of the 
health authorities of the locality in which the patient is. 
PUBLIC WARNED. 
Sec. 3.-Physicians should warn the public against the devices 
practiced and the false pretensions made by charlatans which may 
cause injury to health and loss of life. 
PHARMACISTS 
Sec. 4.-By legitimate patronage, physicians should recog- 
nize and promote the profession of pharmacy; but any pharma- 
cist, unless he be qualified as a physician, who assumes to pre- 
scribe for the sick, should be denied such countenance and support. 
Moreover, whenever a druggist or pharmacist dispenses deterior- 
ated or adulterated drugs, or substitutes one remedy for another 
designated in a prescription, he thereby forfeits all claims to the 
favorable consideration of the public and physicians. 
CONCLUSION. 
While the foregoing statements express in a general way the 
duty of the physician to his patients, to other members of the pro- 
fession and to the profession at large, as well as of the profession 
to the public, it is not to be supposed that they cover the whole field 
of medical ethics, or that the physician is not under many duties 
and obligations besides these herein set forth. In a word, it is 
incumbent on the physician that under all conditions, his bearing 168 
PRINCIPLES OF MEDICAL ETHICS. 
toward patients, the public and fellow practitioners should be char- 
acterized by a gentlemanly deportment and that he constantly 
should behave toward others as he desires them to deal with him. 
Finally, these principles are primarily for the good of the public, 
and their enforcement should be conducted in such a manner as 
shall deserve and receive the endorsement of the community. PART THIRD 
DENTAL JURISPRUDENCE. 
CHAPTER XVII. 
THE STATUS OF THE DENTIST-THE RIGHT TO PRACTICE-POWER 
OF THE STATE TO REGULATE PRACTICE RELATION BETWEEN 
DENTIST AND PATIENT. 
a legal definition of Dentistry has not yet been 
formulated. The statutes of some states imply that dentistry is a 
branch of medicine or surgery. Thus the statute of Michigan 
regulating the practice of medicine or surgery provides: 'from 
practicing medicine or surgery' (except dentistry).1 The defini- 
tions in some statutes of 'practice of medicine' are broad enough 
to include the practice of dentistry and vice versa. Thus the act of 
1882 of Mississippi, section 20, provides that the words 'practice 
of medicine' shall mean, to suggest, recommend, prescribe or di- 
rect for the use of any person, any drug, medicine, appliance, or 
other agency, whether material or not material, for the cure, 
relief, or palliation of any ailment or disease of the mind or body, 
or for the cure or relief of any wound, fracture or bodily injury, 
or any deformity.' " It is plain that this definition is broad enough 
to cover the whole field of dentistry. If a Mississippi physician 
were brought into court accused of practicing dentistry without 
a license it would be interesting to hear what the court would say 
to him when he pleaded this statute in defence. 
2"The Mississippi Court of Errors and Appeals has held that 
dentistry is a department of the medical art. In Whitcomb v. 
Reid,3 the question before the court was whether a dentist's instru- 
ments were exempt from execution under a statute exempting 
the 'tools of a mechanic necessary for carrying on his trade.' The 
Court said: 'We do not think that this provision can be extended 
1Mikell, p. 17, chapter I. 
2Mikell, p. 18. 
331 Miss. 567 (1856). 170 
DENTAL JURISPRUDENCE 
to the description of instruments in question. A dentist cannot 
be properly denominated a mechanic. It is true that the practice 
of his art requires the use of instruments for manual operation, 
and that much of it consists in manual operation; but it also in- 
volves a knowledge of the physiology of the teeth, which cannot 
be acquired but by a proper course of study; and this is taught 
by learned treatises on the subject, and as a distinct, though limit- 
ed, department of the medical art in institutions established for 
the purpose. It requires both science and skill and if such per- 
sons could be included in the denomination of mechanics because 
their pursuit required the use of mechanical instruments and skill 
in manual operation, the same reason would include general sur- 
geons under the same denomination, because the practice of their 
profession depends, in a great degree, upon similar instruments 
and operative skill.' 
"Nor could such a pursuit properly be said to be a 'trade'. 
That term is defined to denote the 'business or occupation' which 
a person has learned, and which he carries on for procuring sub- 
sistence, or for profit-particularly a mechanical employment, dis- 
tinguished from the liberal arts and learned professions and from 
agriculture.' (Webster's Dictionary.) It is manifest that a pur- 
suit requiring a correct knowledge of the anatomy and physiology 
of a part of the human body as well as mechanical skill in the use 
of the necessary instruments, could not be properly denominated 
a 'trade'." 
1"There are a few decisions that dentistry is not a branch 
or department of medicine or surgery. In State v. Fisher2, (Mis- 
souri) this conclusion is reached by a bare majority of four judges 
to three; * * * on the question whether the relator, a dental 
surgeon, was exempt from jury duty under the laws of Missouri. 
The statutes provided that persons actually exercising the func- 
tions of a practitioner of medicine were exempt. The majority 
of the Court after pointing out the rule of law that 'privileges and 
exceptions are not favored in the law,' held that the relator was 
not a 'practitioner of medicine and surgery in any of their de- 
partments.' " 
1Page 19. 
2119 Mo., 344 (1893). STATUS OF THE DENTIST. 
171 
"Of course it does not follow that because dentistry is a 
branch or department of medicine or surgery, that a dentist is 
necessarily a 'surgeon' or 'physician' within the meaning of the 
statutes using those terms. It must depend in each case on the 
intent of the legislature." 
1Case of DeFrance on question of being allowed to testify as 
to communications made to him by a patient. A statute forbade 
a surgeon or physician from so testifying. The court held the 
act did not apply to a dentist. 
"The Supreme Court of Michigan has drawn a distinction 
between the mechanical and scientific work of a dentist. In Maxon 
v. Perrott2 the court, in holding that a dentist's instruments were 
exempt from execution under a statute exempting 'mechanical 
tools' said: 'A dentist is in one sense a professional man, but in 
another sense his calling is mainly mechanical, and the tools he 
employs are used in mechanical operations. * * * Of late, 
however, as the physiology of the human system has become better 
understood, and the relations of its various parts and their mutual 
dependence are more clearly recognized, dentistry has made great 
progress as a science, and its practitioners claim, with much jus- 
tice, to be classed among the learned professions. It is, neverthe- 
less, true that the operations of the dentist are still for the most 
part mechanical, and, so far as tools are employed, they are purely 
so; and we could not exclude these tools from the exemptions 
which the statute makes without confining the construction of the 
statute within limits not justified by the words employed. The 
ordinary meaning of 'mechanical tools' it is plain, will include those 
in question, and there is nothing in the context, which will justify 
us in saying that the legislative design would exclude them." 
"Indeed the courts are more concerned in trying to do justice 
and to interpret the legislation well than in making nice distinc- 
tions between 'professions' and 'trades' and 'arts' and 'sciences'. 
They have not hesitated, when justice seemed to demand it, to 
hold that the practice of medicine was a 'trade' and a physician a 
'tradesman'." (The question was on a claim for interest on a bill 
1104 Mich. 563 (1895). 
217 Mich. 332 (1868). 172 
DENTAL JURISPRUDENCE 
for services, the statute providing that accounts of 'merchants, 
tradesmen and mechanics' should have interest.) 
1"The word 'tradesman' does not, perhaps, ordinarily cover 
physicians; but they have a trade, an art, a mystery. They usually 
give it a more dignified name, to wit, profession. One of the 
definitions of trade given by Webster is 'the business a man has 
learned by which he earns his livelihood.' And this at last, is the 
point of the word." 
It will be noticed that one decision quoted refuses to exempt 
the instruments of a dentist from execution for debt under a 
statute exempting "the tools of a mechanic necessary for carrying 
on his trade," while another decision, in another state holds a 
dentist's instruments exempt from execution under a statute ex- 
empting "mechanical tools." Contradictory decisions like these, 
of course, leave the legal questions to which they refer in uncer- 
tainty, but they have really but little relation to what would con- 
stitute a legal definition of dentistry. 
A good many of the dental laws of the different states at- 
tempt a definition of dental practice for the purposes of the law 
in each case. That of the Illinois law is a fair type. "Section 5. 
Any person shall be regarded as practicing dentistry or dental 
surgery within the meaning of this act, who shall treat, or pro- 
fess to treat any of the diseases or lesions of human teeth or jaws, 
or extract teeth or shall prepare and fill cavities in human teeth, 
or correct the malpositions of teeth, or supply artificial teeth as 
substitutes for natural teeth: Provided, that nothing in this act 
shall be so construed as to prevent regularly licensed physicians 
or surgeons from extracting teeth." This does not specifically 
provide for other cases in which the field of the physician or sur- 
geon may overlap that of the dentist, as may sometimes be the 
case in diseases and surgical operations upon the jaws, the mucous 
membrane of the mouth, cases of ranula, etc. The Maryland 
statute is more comprehensive, using the word "mouth" instead of 
"teeth and jaws." "Section 10. Every person shall be said to be 
practicing dentistry, within the meaning of this act, who shall, 
for a fee, salary or other compensation, paid either to himself or 
to someone else for services rendered, perform operations or parts 
M7 Ga. 121 (1872). STATUS OF THE DENTIST. 
173 
of operations of any kind pertaining to the mouth, treat diseases or 
lesions of the human teeth or jaws, or correct malpositions 
thereof." 
Using the word "mouth" instead of "teeth and jaws" en- 
larges the field in which dentistry and medicine or surgery may 
overlap each other, but this is provided for in a subsequent sec- 
tion by the broad provision, "nothing in this article shall be so 
construed as to interfere with the rights and privileges of resident 
physicians and surgeons, etc." 
As a matter of fact, and in a broad definition, it is beyond 
question that dentistry is a branch of the healing art, a specialty 
of medical and surgical practice, but in popular speech, for the 
purposes of the law, and in methods and institutions of education 
dentistry is a separate profession from that of medicine and 
surgery. 
Mr. Leslie Childs, in The Dental Cosmos for June, 1922, 
gives account of four cases the decisions in which have bearing on 
the question of what constitutes dental practice. In the first case, 
"State v Reed, 68 Ark., 331," a student of Dr. Milam filled some 
teeth independently of his preceptor and received the fee for him- 
self and not for his preceptor. "The trial court, among other 
things instructed the jury: 'If the defendant had set up as a 
regular practicing dentist he would be guilty; but if he was there 
learning the business under Dr. Milam, and practicing under his 
direction and advice, he is not guilty.' " The defendant was ac- 
quitted, an appeal was taken and the judgment of the lower court 
reversed on the ground that the work done was independent of 
his pupilage and the fee was received by him and not by his pre- 
ceptor. 
For the next case it is necessary to quote Mr. Childs in full. 
"Another case of this class somewhat similar to the foregoing, 
was State Board of Registration and Examination in Dentistry 
vs. Terry, 73 N. J. L 156. The facts involved being substantially 
as follows: 
"Section 8 of the New Jersey Dental Act provided in sub- 
stance that the act should not prohibit a registered student of a 
licensed dentist from assisting in dental operations, in the presence 174 
DENTAL JURISPRUDENSE. 
of and under the direct and immediate personal supervision of his 
preceptor. 
"An action was brought against the defendant for violation of 
the dental act and the trial court charged, in part, 'That if the 
jury found that the defendant while practicing was doing so as a 
student of a regularly licensed dentist, the verdict should be for the 
defendant.' 
"The trial resulted in a verdict for the defendant. An appeal 
was taken and in passing upon the foregoing charge of the trial 
court the higher court, in part, said: 'We think the charge was 
erroneous. The exception in Section 8 is not an exception of all 
students in all circumstances. It is narrowed to a registered 
student while assisting his preceptor in the preceptor's presence 
and under his direct and immediate supervision. * * * 
There was evidence indicating that the defendant was not an 
assistant, but rather a principal, and that the dental operations 
he performed were performed independently and on his own 
responsibility, and not under the direct and immediate personal 
supervision of the alleged preceptor. The defendant did not bring 
himself within the exception of Section 8 merely by proving 
that he was a student without proving the other qualifications in 
that section.' The judgment of the lower court was thereupon 
reversed and the case remanded for a new trial." 
Mr. Childs gives account of three other decisions in which 
dental practice was affirmed in cases in which it seems rather sur- 
prising that any questions should have been raised. He then cites 
one that is of sufficient interest to be quoted in full. 
"* * * State vs. Faatz, 83 Conn. 300, will serve; the 
facts out of which the action grew were substantially as follows: 
"The defendant, it appears, was a young man employed in the 
office of Dr. Jackson, a duly licensed dentist, in the State of Con- 
necticut. The defendant did not have a license to practice den- 
tistry, but he placed some cotton in a tooth for a patient, and the 
next day he filled the tooth. A charge of $1.50 was made for this, 
and collected by the defendant, not for himself but for Dr. Jack- 
son, his employer. 
"Thereafter an information was filed against the defendant 
charging that he did 'perform dental operations on patients, in the STATUS OF THE DENTIST. 
175 
office of a licensed dentist, without a license from the Dental Com- 
missioners of the State of Connecticut.' 
"The State contended that the performance of the acts de- 
scribed above constituted a violation of the Connecticut dental 
statute. This statute provided in substance that no person should 
practice dentistry without first obtaining a license from the dental 
commissioners, and, further that 'the unlawful practice of den- 
tistry for each week shall be a separate offence.' From a convic- 
tion in the lower court an appeal was taken, and in construing this 
statute, in connection with the charge in the information, the 
higher court, among other things, said: 
" 'A dentist' is one whose business is to clean, extract, or re- 
pair natural teeth, and to make and insert artificial ones. 'Den- 
tistry' is the art or profession of a dentist. The 'practice of den- 
tistry' is the practice of the art or profession of a dentist. En- 
gaging in this practice of dentistry without a license is made a 
crime by this law. 
"This information does not charge the defendant with the 
offense of 'engaging in the practice of dentistry without a li- 
cense.' Quite evidently the public prosecutor did not intend to so 
charge. If he had he would undoubtedly have followed the 
language of the statute. But he does charge that the defendant 
performed dental operations on patients in the office of a licensed 
dentist without a license. The theory of this prosecution is that 
an unregistered assistant or student of a licensed dentist cannot 
perform a single dental operation without becoming liable under 
this act, and that the act forbids this. 
"This view is erroneous. Such dental operations are not in 
terms forbidden, and the language of the act cannot be extended 
by implication. * * * 
"We cannot indorse the position that performing a dental op- 
eration is the same thing as engaging in the practice of dentistry. 
This appears to have been the view of the trial court. In the 
charge to the jury the court makes no distinction between 'en- 
gaging in the practice of dentistry' and 'performing a single 
dental operation.' He treats them as one and the same thing. 
There was error in this and consequent harm to the defendant. 
"A young man may be preparing to enter the dental profes- 
sion, but he cannot, within the meaning of the statute, be said to 
'engage in the practice of dentistry' until he embarks in it, until 
he holds himself out as a dentist, either by a series of continuous 
acts, covert or open, or by advertising himself in some way as a 
dentist or as a doctor of dental surgery. If he holds himself out 176 
DENTAL JURISPRUDENCE 
to the public as a duly qualified dentist, embarked in the profes- 
sion, and offers to practice as such, this would be engaging in the 
practice of dentistry within the true sense and meaning of this 
act, even though his first patient had not yet called. * * * 
This act is intended to protect the dental profession from ignor- 
ant and incompetent practitioners, as well as to protect the public 
against the same kind of ignorance and incompetence in men set- 
ting themselves up as dentists, or in other words 'engaging in the 
practice of dentistry.' 
"The statute is a benign one and its purpose is good, and if 
properly and legitimately enforced, it is a useful one; but it should 
not be strained by construction to include terms and restrictions 
not intended by the legislature, as that intent is manifested by the 
language used. * * * 
"Had the legislature really intended to make it a crime to per- 
form any dental operation without a license, it would and could 
have found language to express that intention with clearness and 
certainty. It had no difficulty in expressing such intention clearly 
in the act relating to the practice of medicine passed at the same 
session. * * * Had the legislature anticipated the case now 
before the court, they perhaps would have employed in this statute 
expressions prohibitory to the act which this defendant is being 
prosecuted for. Such expressions, however, do not appear there, 
and this statute therefore has not been violated. 
"The court reversed the judgment rendered below." 
THE RIGHT TO PRACTICE DENTISTRY POWER OF THE STATE TO 
REGULATE PRACTICE. 
"The state has the right to regulate the practice of dentistry 
within its borders, and to prescribe such reasonable conditions as 
a prerequisite to practice as are calculated to exclude from the 
profession those who are unfitted to discharge its duties."1 
In England, Parliament, being supreme, may prescribe what 
conditions it pleases as a prerequisite to the right to practice. In 
the United States the right to practice is regulated by the State 
Legislatures, and while their power to prescribe conditions is 
large, it is limited by and must be exercised in conformity with 
the Constitution of the State and of the Federal Government. 
As said by the court in Wilkins v. State:2 "The courts must take 
judicial knowledge that it (the dental profession) is a profession 
*State ex rel Smith v. Dental Examiners, 31 Wash., 492 (1903). 
2113 Ind., 514 (1887). STATUS OF THE DENTIST. 
177 
requiring skill, * * * and that one unskilled in the profes- 
sion may injure the person who employs him. As this is so, then, 
the Legislature may prescribe the qualifications of those permitted 
to practice that profession. * * * As it has plenary power of 
the whole subject, it alone must be the judge of what is wise and 
expedient, both as to the qualifications required and as to the 
method of ascertaining those qualifications. The court cannot 
exercise any supervisory power over the Legislature as long as it 
keeps within the limits of the constitution." It is within those 
limits, "if the regulations and conditions it prescribes are adopted 
in good faith, and they operate equally upon all who may desire 
to practice, and who possess the required qualifications, and if 
they are adapted to the legislative purpose of promoting the health 
and welfare of the people by excluding from the practice those 
who are ignorant and incapable."1 * * * 
"The requirement of a diploma as a condition of the right 
to practice does not render the law unconstitutional."2 
"Nor does the fact that it requires the possession of a diploma, 
as a condition of being allowed to practice, by those not practicing 
in the State at the time the law was enacted, while allowing those 
persons to practice without a diploma who were practicing in the 
State at the time the law was enacted, render the law unconstitu- 
tional as conflicting with Section 2, Art. IV, of the Federal Con- 
stitution providing: 'The citizens of each State shall be entitled 
to all the privileges and immunities of citizens in the several states,' 
or with Section 1 of the Fourteenth Amendment of the Consti- 
tution providing: 'No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United 
States.' "s 
It is not necessary to quote the whole of Mikell's second chap- 
ter. All the important provisions of the various dental laws have 
been abundantly sustained by the courts. We may specify the re- 
quirement that those in practice be registered within a specified 
time after the passage of the law, providing for the appointment 
1State v. Creditor, 44 Kansas, 565 (1890). 
2State v. Vandersluis, 42 Minn., 129 (1889). State v. McIntosh, 250 
Mo, 589 (1907). 
3Ibid. 178 
DENTAL JURISPRUDENSE. 
of the State Board of Examiners by the State Dental Associa- 
tion; the requirement that all those desiring to practice shall pass 
examination, and making it a misdemeanor to practice without a 
license from the Board of Examiners; the requirement that legal 
practitioners, if they remove to another state must be examined 
and licensed by the Board of Examiners of the state to which they 
remove; the provision excepting from the operation of the law 
students of dentistry during the period of enrollment in a dental 
college in the state. 
"The statute, however, to be constitutional, must not impose 
special restrictions or burdens on, or grant special privileges to 
some persons over others engaged in the same profession under 
the same circumstances. Under this rule it has been held that a 
statute providing that no person should practice dentistry without 
having obtained a degree from some college, or a license from 
the State Dental Society, and imposing a certain fee, but exempt- 
ing persons who have resided and practiced the profession in the 
town or city of their present place of residence, for a specified 
time, was unconstitutional as unduly discriminating between per- 
sons of the same class."1 
"A statute is not unconstitutional which requires good char- 
acter as a condition to the right to practice, or which lodges the 
power to determine the person's moral fitness in a legally consti- 
tuted body of men learned in the profession."2 
REQUIREMENTS OF STATUTES REGULATING PRACTICE 
1. In General.-Statutes vary in the conditions they impose 
on the right to practice dentistry. The most usual form of statute 
provides as a requisite to the right to engage in practice: (1) The 
possession of a diploma; (2) the passing of a satisfactory exam- 
ination; (3) Proof of good moral character; (4) Receipt of a 
license from the Board of Examiners; (5) Registry of the license 
with the proper officers; (6) Payment of a stated fee. Some 
statutes do not require the passing of an examination if the appli- 
cant possesses a degree; others do not require a degree if the appli- 
cant passes a satisfactory examination. 
iState v. Hinman, (N. H.) 18 Atl., 194 (1889). 
2See State v. State Medical Board, 32 Minn., 324 (1884). STATUS OF THE DENTIST. 
179 
LICENSE TO PRACTICE. POWERS OF THE DENTAL BOARD 
2. Under this head it is not necessary to quote Mikell in 
detail. Of course the powers of the Dental Board are conferred 
and limited by the law in each state. The courts have usually 
been liberal in their interpretation of the dental and medical laws, 
and the dental and medical boards have large powers and much 
discretion. I will make a few quotations. "The function of the 
Dental Board in granting or refusing a license is in whole or in 
part quasi-judicial, involving investigation, judgment and discre- 
tion, therefore an action for damages will not lie against such 
board for refusing to grant, or for revoking a license wrongfully, 
if in so doing they acted without malice."1 
"Where the law provides that the possession of a diploma of 
a 'reputable dental college,' or a 'college in good standing,' shall 
be a requisite to the issuance of a license by the board, the board 
has power to decide what is and what is not a reputable college, or 
a college in good standing, and whether the college whose diploma 
the applicant holds is or is not such a college."2 * * * 
"The determination by the board of the question whether or 
not a dental school is a 'reputable' school or a school 'in good 
standing' is final, and will not be reviewed by the courts unless 
the board is clearly shown to have abused its discretion in the 
matter, or to have been guilty of arbitrary, oppressive or malevo- 
lent conduct." * * * 
"A board of dental examiners may make any reasonable rules 
and regulations they see fit by which to determine whether or not 
a dental school is 'reputable' or in 'good standing.' They cannot 
delegate the right to decide whether a college is reputable or not 
to a dental organization beyond the limits of the State. Thus in 
Dental Examiners v. People,3 the board of examiners refused to 
issue a license to an applicant until his application was approved 
by the National Association of Dental Examiners, an association 
composed for the most part of persons living outside of the state. 
The State board having been shown to have been otherwise satis- 
People v. Dental Examiners, 110 Ill., 180 (1884) ; State v. Chittenden, 
127 Wis., 468 (1906). 
2People v. Dental Examiners, 110 Ill., 180 (1884). 
3123 Ill., 227 (1887). 180 
DENTAL JURISPRUDENCE 
fied with the reputability of the college of which the applicant 
held a degree, the court granted a writ of mandamus to compel 
the State board to issue the license." 
"As the board, however, has power, when no rules are pre- 
scribed by statute for determining the reputability of a college, 
to make any reasonable rules to determine this question, the fact 
that a State board adopts the rules of a dental organization out- 
side of the state, and is in large part governed by its recommenda- 
tions in determining the reputability of colleges, is no ground for 
the interference of the court, when it appears that the board was 
not absolutely bound by the rules of the foreign association, but 
could, in their discretion, require more or less of a college than 
the foreign association demanded."1 
"When the statute makes it a prerequisite to the right to a 
license that the applicant shall be of good moral character, and 
provides that on proof of conviction of a misdemeanor a license 
granted shall be canceled, the board of examiners may refuse to 
grant a license to a person who has been convicted of practicing 
dentistry in the State without a license."2 
"3. Registration.-After the dentist has obtained his license 
from the dental board, the next step required by the law is the 
registration of such license. The language of the statutes provid- 
ing for registration is not identical. Some statutes provide that 
the licenses shall be registered within sixty days from the issuance 
thereof, some within thirty days, and others are silent as to the 
time within which registration shall take place." 
When no time for registration is mentioned in the law it is 
wise to presume that the license is to be registered before begin- 
ning practice, and to act accordingly. 
"The statutes vary, likewise, in their provisions as to the 
place where, and the officer with whom the license must be regis- 
tered. Some provide that it shall be registered in the county in 
which the holder expects to practice; some require it to be regis- 
tered with the judge of probate, others with the clerk of the 
county." 
1Williams v. Dental Examiners, 93 Tenn., 619 (1894). 
2See Battles v. Board of Registry in Dentistry, 16 R. I., 372 (1888). STATUS OF THE DENTIST. 
181 
"Some require separate registration in each county in which 
the holder of the license intends to practice; and provide for 
duplicate, etc., registration. It is not clear always from the word- 
ing of some of the statutes, nor do the decisions make it any 
clearer, whether, under the statute, the license, once registered in 
the proper place, entitled the holder to practice anywhere in the 
State, or whether the license must be registered anew in each coun- 
ty where the holder does any dental work. The statutes generally 
provide that if the license is not registered within the time pre- 
scribed, the license shall be forfeited. Statutes containing this 
provision usually provide that a duplicate may be obtained, in some 
cases with and in others without an additional fee. * * * In 
view of the uncertainty of the law in this regard under the phrase- 
ology of many of the statutes, and the serious consequences in- 
volved in its breach, a dentist should always register in each county 
where he does any dental work, unless the statute clearly provides 
that registry in one place entitles him to practice anywhere in the 
State." 
"4. Revocation of License-Most of the statutes regulating 
the practice of dentistry provide for revocation of the dentist's 
license. In some of the statutes the grounds on which the license 
may be revoked are specifically set out in the statute." 
"In others the grounds of revocation are not set out in detail, 
but it is provided generally that it may be revoked for dishonorable 
or unprofessional conduct. Under similar statutes in relation to 
physicians, it has been held in the United States that 'unprofes- 
sional' means 'dishonorable,' and does not refer to matters of pro- 
fessional ethics only; and that a mere breach of professional ethics, 
such as advertising, etc., is not ground for revoking a license." 
"* * * jn sorne states such statutes have been held to 
be unconstitutional and void for uncertainty."2 * * * 
"Some statutes provide that the license to practice may be 
revoked for 'fraud, deceit, or misrepresentation' in the practice of 
dentistry. Such a statute, it has been held, is not invalid for un- 
certainty." * * * 
'See State v. State Medical Examining Board, 32 Minn., 324 (1884). 
2Czarra v. Board of Medical Supervisors, 25 App. Cas. (D. C.) 443 
(1905). 182 
DENTAL JURISPRUDENSE. 
"A license once granted cannot be revoked without an oppor- 
tunity given the holder, by timely notice, to appear and defend 
himself against the charges preferred against him. 
"But the decision of the board, after a proper hearing, that 
the dentist is guilty of professional misconduct is not reviewable 
by a court, at least if there is any evidence on which the Dental 
Board could reasonably hold that the dentist had been guilty of 
such conduct."3 
Leslie Childs in his "Law for the Dentist", Cosmos, April, 
1922, discusses the revocation of licenses pretty fully. I will quote 
a great part of the article. 
"Without doubt the enforcement of statutes providing for 
the revocation of dental licenses for cause has redounded to the 
benefit of both the general public and the dental profession, and 
while the right of a legislature to enact statutes of this kind has 
been quite generally upheld, the courts are not precisely in accord 
on the question of how the causes for revocation should be 
defined." 
"For example: In some States, and these States are in the 
majority, acts of this kind have been upheld where the grounds 
for revocation have been stated in general terms: as, 'for fraud- 
ulent or misleading statements as to skill,' or 'for dishonorable con- 
duct', etc.; the courts interpreting these general terms according 
to their general meaning, and leaving the question as to whether 
they have been violated or not entirely with the boards that have 
been given power to try such cases, and in jurisdictions where this 
is the rule the judgments of such boards will not, as a general rule, 
be disturbed in the absence of fraud or bad faith." 
"On the other hand, in some States the courts have declined 
to uphold such statutes where the causes for revocation were 
described in general terms, as illustrated in the foregoing para- 
graph." 
"These courts have taken the position that before such a 
serious penalty should be enforced, the statute should clearly in- 
form those amenable just what acts would amount to cause for 
the revocation of their licenses." 
'Hill v. Clifford, Eg. (1907) and others. STATUS OF THE DENTIST. 
183 
"The reasoning of the courts in these respective lines of de- 
cisions may perhaps be best illustrated by the brief review of a 
case from each class, and as an example of the holdings in which 
it is held sufficient to state causes for revocation in general terms, 
Richardson vs. Simpson et al, State Board of Dental Examiners, 
88 Kansas, 684, will serve. The facts and circumstances leading 
up to this action were in the main as follows 
"The Kansas statute upon which the action was predicated 
provided among other things that the State Board of Dental Ex- 
aminers might revoke the licenses of dentists, "who have by false 
or fraudulent representations, obtained, or sought to obtain, money 
or any other thing of value, or have practiced under names other 
than their own, or for any other dishonorable conduct." 
"* * * * cornplaint against Richardson 'specified 
that he had performed services for a customer under promise to 
make needed repairs without charge, and that after receiving 
payment in full he had refused to make repairs that became neces- 
sary by reason of defective work.' " 
"The board investigated the matter and after hearing the evi- 
dence issued an order revoking Richardson's license. The latter 
thereupon brought the instant action in the District Court to en- 
join the board from enforcing its order, and being successful ob- 
tained a permanent injunction. The board then prosecuted an 
appeal to the Kansas Supreme Court." I will not quote the whole 
story, the last paragraph of the quotations from the Supreme 
Court decision will suffice. 
"Doubtless no conduct should be deemed 'dishonorable' in 
such a sense as to warrant a forfeiture of a dentist's right to prac- 
tice, unless it occurs in the exercise of his profession and involves 
moral turpitude. The expression "other dishonorable conduct" may 
be interpreted to mean conduct of the same general character as 
that already specified. * * * Whether or not the conduct of 
Richardson as narrated by Mrs. Brack (the complaining witness 
in the instant case), constitutes what might be technically described 
as obtaining money by false pretenses, it was dishonorable conduct 
af a similar kind. * * * *" 
"In conclusion the Supreme Court reversed the judgment in 
favor of the plaintiff, Richardson the dentist, by the trial court, 
and ordered that judgment be rendered for the defendant board," 184 
DENTAL JURISPRUDENCE. 
"the other side of the question" 
"The foregoing decision was carefully considered, and it is 
believed that it fairly represents the majority of jurisdictions in 
holding that statutes of this kind are not invalid because they state 
the causes of revocation in general terms. On the other hand, as 
noted in the beginning, there is a line of decisions that takes the 
other view of the matter and declines to enforce the terms of revo- 
cation statutes unless the grounds are stated with particularity. As 
an example of the reasoning of this line of cases, Green, et als, 
Arkansas State Board of Dental Examiners vs. Blanchard, an 
Arkansas case reported in 211 S. W. 375, 5A. L.R.84, is worthy 
of examination. The facts in the case in so far as material to this 
article were as follows 
"The Arkansas statute regulating the practice of dentistry 
gave power to the State Board to revoke dental licenses for cause. 
There were a number of grounds upon which revocation might be 
predicated, among them the following: 
"The publication or the circulating of any fraudulent or mis- 
leading statements as to the skill or method of any person or oper- 
ator." Or, "* * * * in any way advertising to practice den- 
tistry or dental surgery without causing pain or advertising in any 
other manner with the view of deceiving or defrauding the public 
or in any way that would tend to deceive the public. * * * *" 
"The State board of dental examiners revoked the license of 
Dr. F. A. Blanchard for alleged violation of the statute quoted 
from above. The evidence upon which the board based its judg- 
ment, it seems, consists of advertisements which Dr. Blanchard 
had used in the conduct of his practice. Among the exhibits of 
this kind appeared the following, which illustrates the nature of 
the advertising matter used." 
"Blanchard's dentists are specialists. Each thoroughly effi- 
cient in his own line. Dental Work is divided into parts at Blan- 
chard's. If a tooth is to be pulled, you are attended by an expert 
extractor who understands this thoroughly. If a crown is to be 
made, an expert laboratory man does this, and so on. You are 
thus assured of work as good as the best." 
"From the order of the board revoking his license Dr. Blan- STATUS OF THE DENTIST. 
185 
chard appealed to the circuit court where a judgment was ren- 
dered setting aside the order of the board. The board thereupon 
prosecuted an appeal to the Arkansas Supreme Court. On this 
appeal the board relied on the power given it under the portions 
quoted from above, contending that the words "deceiving and de- 
frauding" the public included the acts of Dr. Blanchard proved 
by the board. The contention, it seems, being that it would have 
been impossible for the Legislature to have set out in detail all 
acts which these words embrace, and "that their meaning should 
be considered by the common judgment of mankind." In answer 
to this it was contended that the provisions of the statute relied 
upon by the board were "so vague and indefinite as to make the 
statute invalid and inoperative for that reason." Cases were cited 
by both sides in support of their respective contentions, and in 
passing upon the points involved the court referred to the statute 
in question, and, in reaching its conclusion, reasoned, in part, as 
follows 
WHAT THE COURT DECIDED. 
"It does not advise the dentist in advance of what act or acts 
may be in violation of its provisions. Subdivision 2 and the words, 
"deceiving and defrauding the public," have no common law defi- 
nition. They are not defined in the statute and have no generally 
well defined meaning in the decisions of courts. Under the statute 
a dentist might do acts neither violating moral law nor involving 
moral turpitude, and which he regarded as strictly proper, and still 
his acts might, in the opinion of the board, be such as were calcu- 
lated to deceive and defraud the public. Different standards might 
be established by different boards. It is well known that the dif- 
ferent schools of medicine and even of dentistry have widely di- 
vergent views as to the treatment of certain diseases. It must be 
remembered that the statute does not prohibit advertising, however 
unprofessional and unethical we might consider that to be. It only 
prohibits advertising with the view of "deceiving or defrauding the 
public or in any way that would tend to deceive the public." So 
the members of one school of medicine or dentistry might advo- 
cate a certain treatment and in good faith advertise it to the public, 
which might be condemned by the members of another school as 
calculated to deceive and defraud the public. The men of the pro- 
fession are usually men of intelligence and good citizens. We do 
not believe that they would be guilty of such a multiplicity of 186 
DENTAL JURISPRUDENCE. 
wrongful acts that their conduct could not be safely regulated by a 
specified legislative enactment. * * *" 
"However, the court made it perfectly plain that it upheld the 
right of the legislature to enact a statute providing for the revo- 
cation of dental licenses, but it was pointed out that such a statute 
should designate or make clear the acts which would warrant the 
exercise of such powers. On this point it was said 
"It is competent for the legislature to declare for what acts or 
conduct a license may be revoked, and to vest in State boards the 
authority to investigate and try the charges which may be made 
under a statute; but the statute should specifically name or desig- 
nate the offenses or wrongful acts which shall constitute a cause for 
revoking his license, so that the dentist may know in advance 
whether he has violated the terms of the statute. * * *" 
"The court in conclusion, after disposing of other features 
of the case not material to this article, affirmed the judgment of 
the circuit court setting aside the order revoking Dr. Blanchard's 
license, holding, as outlined in the opinion, that the parts of the 
statute relied upon by the board were too uncertain and indefinite 
for enforcement. It should be noted, however, that the opinion 
was rendered by a divided court, Chief Justice McCulloch filing a 
vigorous and well reasoned dissenting opinion, which was con- 
curred in by Justice Smith." 
"It is believed that the two cases reviewed are fairly illus- 
trative of the reasoning of the courts in the respective lines of 
decisions to which they belong. And it seems these holdings may 
be summarized as follows: By the weight of authority statutes 
authorizing the revocation of dental licenses for cause are valid 
even though the causes are stated in general terms. On the other 
hand the minority rule holds that for such statutes to be enforce- 
able they must specifically define the causes for the revocation, so 
that those concerned may know in advance what act or acts may 
constitute grounds for such action."* 
"5. Effect of Fulfillment of Requirements-If the applicant 
for the right to practice dentistry has fulfilled the legal require- 
ments, he is entitled to practice, and it is immaterial, as far as his 
right to practice is concerned, how well he has met the tests pre- 
♦Law for the Dentist. Dental Cosmos, April, 1922. STATUS OF THE DENTIST. 
187 
scribed by the law. The ability shown by him, however, in meeting 
these tests may subsequently become of great importance to him. 
In the case of Wilkins v. Ferrell,2 (Texas) a dentist was sued by 
a patient for malpractice. The dentist had offered evidences to 
prove his skill and learning in his profession. The plaintiff there- 
upon offered to prove by two members of the board of dental 
examiners that the defendant, when he was examined for his 
license a year previous, was unable to answer questions pro- 
pounded to him in anatomy, physiology and chemistry; that he 
could not explain what the superior and inferior maxillary bones 
were, and said, in treating an exposed pulp, he 'would kill the 
damn thing'; that he could not tell the number of bones in the 
head or skull, and could not name the nerves in the head and face. 
The defendant objected to the court's allowing this evidence to 
go to the jury. The court, however, admitted it and, on appeal, 
the supreme court held that the lower court was right."* 
THE RIGHT OF THE PHYSICIAN AND SURGEON TO PRACTICE 
DENTISTRY. 
Mr. Leslie Childs, in the Dental Cosmos for May, 1922, dis- 
cusses this question and cites two cases; one, State vs. Beck, 21 
R. I. 288, in which the right is affirmed; and one, State vs. Tay- 
lor, 106 Minn. 218, in which it is denied. Mr. Childs' summary 
in conclusion will serve our purpose: 
"In the absence of a statute to the contrary one holding a 
license to practice medicine and surgery will also have the right 
to practice dentistry. And in the states which except physicians 
from the operation of their dental acts, either entirely or in part, 
physicians of course have the right to practice dentistry so long 
as they keep within the restrictions, if any, of the Dental Act. 
However, in the states where the practice of dentistry has been 
made a separate profession from medicine, and where physicians 
and surgeons have not been excepted, the court decisions constru- 
ing them are not in accord. In Rhode Island, as we have seen, 
the court construed such a statute as excepting physicians and 
surgeons from its operation. On the other hand, the Minnesota 
TO Tex. Civ. App„ 231 (1895). 
*Mikell Page 39. 188 
DENTAL JURISPRUDENCE. 
court declined to imply an exception, in the absence of express 
terms to that effect, and held that the holder of a license to prac- 
tice medicine and surgery was not entitled to practice dentistry by 
virtue of such license." 
RELATION BETWEEN THE DENTIST AND HIS PATIENT. 
TIME AT WHICH THE RELATION COMMENCES. 
"The mere opening of the dentist's office for practice, or the 
display of his name-plate does not create any duty on the part 
of the dentist or impose any obligation upon him to accept patients. 
He is no more required to accept any person who comes to 
him as a patient than is a physician."1 
"It is not until he accepts a person as a patient that his du- 
ties and the corresponding obligations arise."2 
THE CONTRACT OF EMPLOYMENT. 
The relation between the dentist and his patient is, in gen- 
eral, in the nature of a contract between them. This contract may 
be written or oral, expressed or implied; and in our law there is 
no special sanctity or obligation to written contracts over oral 
ones, and implied contracts are as binding between the parties as 
expressed ones. The greatest advantage of a written contract is 
that its terms are more easily proven, and there is less oppor- 
tunity for variance of understanding, forgetfulness, or misrep- 
resentation. 
The nature of a contract for services makes it subject to the 
implied condition that both of the parties shall be in such a state 
of health as to be able to fulfill their contract at the appointed 
time.3 If too ill to keep an appointment, therefore, a patient 
must be excused. Likewise, the dentist, if too ill to work; the 
patient, however, in that case may go to another dentist if neces- 
sary or if he chooses to do so. 
"2. Contracts Required to be in Writing.-By force of a 
statute passed in England in 1677, known as the Statute of Frauds 
and Perjuries, because it was intended to prevent the commis- 
1Becker v. Jamski, 15 N. Y. Suppl., 675 (1891). 
2Huky v. Eddingfield, 156 Ind., 416 (1900). 
sPowell v. Newell, 95 Minn., 406 (1894). CONTRACTS. 
189 
sion of frauds and perjuries, certain contracts unless in writing 
could not be enforced at law unless there had been part payment 
under them," etc. 
"The statute provided that 'no contract for the sale of any 
goods, wares and merchandise for the price of ten pounds sterling 
or upward, shall be allowed to be good except the buyer shall 
accept part of the goods sold and actually receive the same, or 
give something in earnest to bind the bargain, or in part payment, 
or that some note or memorandum in writing of said bargain 
be made and signed by the parties to be charged by such contract, 
or their agents thereto lawfully authorized.' This statute is still 
in force in England and a substantially similar statute is in force 
in all the American states except Alabama, Arizona, Delaware, 
Illinois, Kansas, Kentucky, Louisiana, New Mexico, North Caro- 
lina, Ohio, Pennsylvania, Rhode Island, Texas, Tennessee, Vir- 
ginia and West Virginia. In the other states, where the statute 
is in force, the amount prescribed by the statute varies in the 
different states." 
Probably the only application this statute would have in 
dental pratice is in relation to artificial teeth and the decisions 
in the different cases and in different states do not agree. 
"In the case of Leo v. Griffin,1 the plaintiff, a dentist, in pur- 
suance of an oral order from his patient, prepared a model for 
her mouth and made for her two sets of false teeth. After the 
teeth were finished and she was notified of the fact, she died 
before she could have the teeth fitted. The dentist sued her es- 
tate through her executor for 21 Pounds, the compensation she 
had agreed to pay for the teeth. If this transaction was a 'sale' 
of teeth by the dentist, then since the contract had not been put 
in writing, he was not entitled to recover under the statutes. If 
it was, on the other hand, a contract to do a certain piece of work, 
to perform certain services, then the plaintiff was entitled to 
recover, for statute only applies to 'sales'." 
"The court held the transaction to be a 'sale' and refused to 
allow a recovery. The court laid down the following test of when 
a transaction is a sale, and required to be in writing: 'If the 
contract be such that, when carried out, it would result in the 
1Eng., Best and Smith, 272. 190 
DENTAL JURISPRUDENCE. 
sale of chattel,' it is a sale; 'but if the result of the contract is 
that the party has done work and labor which ends in nothing 
that can become the subject of a sale,' the party can recovei 
whether the contract is in writing or not. The rule of this case 
has been adopted in Canada and Missouri.1 Tests different from 
the above and differing from each other have been adopted in 
the different American states. It is believed that under none of 
them except in Missouri, would a contract by a dentist to make 
a set of teeth be required to be in writing. * * *" 
In any case, "If the teeth were received and accepted by the 
patient, or if all or part of the price had been paid,2 the contract 
would be binding though not in writing." 
"Even when in the above cases the contract must be in writ- 
ing all the terms of the contract need not appear in the writing. 
It is sufficient if the names of the parties, the price and the sub- 
stance of the agreement appear in the writing, and it is signed by 
the party who is being sued. * * *" 
"Another contract that the law will not enforce unless it is 
in writing, is the contract of one person to answer for the debt 
or default of another." 
If a patient is sent to a dentist by a person who promises to 
pay the bill such promise must be in writing unless the patient 
is one for whose support the one sending is legally responsible, 
as a wife, child or ward. 
"3. Express Contracts.-The dentist may enter into an ex- 
press contract with his patient. Such contracts are becoming 
more common than formerly." An express contract is made when 
the terms of it are expressed and agreed upon between the par- 
ties. It is usually for certain specified operations or services to 
be performed, and for a specified fee, or, in many cases, a mini- 
mum and a maximum fee may be named, in view of the fact that 
the worth of many operations cannot be known by the dentist 
beforehand except approximately. Such contracts may be, but 
need not be in writing unless it be of the sort required by law to 
be in writing, as described previously. Of course a dentist must 
1Williston, Sales, Sec. 54. 
2Some states require this payment to be at the time the contract is 
made if payment is relied on to make the contract valid. CONTRACTS. 
191 
fulfill such contracts in accordance to the terms of them, no matter 
how much of extra or unexpected trouble or time may be required. 
"4. Implied Contracts.-Most contracts between dentists 
and their patients are not express, but are so-called implied con- 
tracts. The patient seats himself in the dentist's chair, the den- 
tist examines his teeth, makes notes of what work is needed, in- 
forms the patient of the extent of such work more or less per- 
functorily, and proceeds to perform the necessary work without 
informing the patient of the length of time necessary to complete 
it, the nature of the materials he proposes to use, how skillfully 
he will perform it, whether it will have the desired result, how 
long it will last, what he will charge for it or when payment will 
be due. In such a case as this where one or more of the terms 
of the contract are not expressly agreed on by the parties, the 
law implies a contract between them. * * ♦" 
Implied contracts involve similar obligations upon both par- 
ties as express contracts, and may be legally enforced. Rehfus 
gives this rule of law in regard to them. 
"The presumption in regard to implied contracts is that 
agreements and stipulations are supposed to have been made be- 
tween the parties such as fair and honest men ought to have made 
under like circumstances." 
"5. Delegation of the Contract.-It is a general rule of law 
that a contract to perform personal services cannot be delegated 
to another by the person contracting to perform them." 
Of course it can be done by the consent of the parties. 
"6. Contracts Made or to be Performed on Sunday.-Since 
1677 in England, and now generally in this country, work done 
in a person's ordinary business or calling is forbidden by statute, 
and contracts therefor are unenforceable. An exception is, how- 
ever, that if the work done be a 'work of necessity', the person 
performing the work may recover for his services. It has been 
held by the courts that the work of a physician in healing the sick 
was a work of necessity." 
Some dental work would ordinarily be so regarded, but the 
larger part of ordinary dental services probably not. Services 
rendered to relieve pain, or to prevent harm likely to happen by 
a delay till the next day would be "work of necessity." 192 
DENTAL JURISPRUDENCE. 
GIFTS BY PATIENT TO DENTIST. 
"The relation between the dentist and patient, like that be- 
tween physician and patient, is a confidential one. It has been held, 
however, that there is nothing in the latter relations that forbids 
the acceptance of a gift by the physician from his patient. The 
same rule would apply in the case of a gift by the patient to his 
dentist." 
LIABILITY OF PATIENT TO DENTIST. 
Mikell goes minutely into detail under each of the headings 
of this chapter. A briefer statement or short quotations will 
answer our purpose in most instances. 
LIABILITY FOR BREACH OF CONTRACT. 
If a patient fails to fulfill his contract with the dentist, 
(whether it be an express contract or an implied contract) he is 
liable for such damages as the dentist may suffer in consequence. 
If the breach of contract is a failure to pay the bill the amount 
of liability is the price agreed upon, or if there were no express 
contract then the amount of the bill rendered, if it be reasonable, 
and in case of a law-suit, the reasonableness of a bill is always 
for the jury to determine, upon the evidence submitted to them, 
"and they may take into consideration the ability of the practi- 
tioner and his standing in the profession."1 
♦"In some jurisdictions it is held that the financial ability of 
the patient should be considered in estimating the worth of the 
services."2 
"In other jurisdictions a contrary rule obtains."3 
A breach of contract may relate to other matters than com- 
pensation, oftenest, probably, to a failure to keep appointments. 
In these cases the dentist has a rightful claim for the amount of 
damage he has sustained. He cannot claim pay for the work he 
would have done, for he has not done the work. If he is idle 
in consequence during the appointed time he may claim tbe 
1Heintz v. Cooper (Cal.) , 47 Pac. 360 (1896) 
♦Mikell, p. 52. 
of Haley, 5 La.Ann., 840 (1898). 
3Robinson v. Campbell, 47 Iowa, 625 (1878). MISSED APPOINTMENTS. 
193 
amount he would have charged if the patient had kept the appoint- 
ment. If he is employed for an equal compensation he may not 
charge anything, for he has suffered no loss. If he is employed 
for a less remuneration than he would have received he may 
charge the difference. The most satisfactory plan is to announce 
on the appointment card that if appointments are not kept a 
reasonable charge will be made unless notice is received the day 
before; or, unless timely notice has been given; or a definite sum 
may be named. That would eliminate all controversy as to what 
the lost time was worth or what the dentist did with it. 
Rehfus cites two cases of claims for missed appointments, 
both of which were allowed. The first that of Dr. D. D. Smith 
of Philadelphia, Magistrate's Court No. 9, July 11, 1891. The 
patient desired the roots of some teeth to be filled with gold, 
which the doctor refused, deeming it impracticable in that case, 
whereupon the patient left the chair, and also failed to keep a 
subsequent appointment which had been made. In the other case, 
"A dentist brought suit against a lady in a Chicago court in 1875. 
The plaintiff charged that the defendant made a series of ap- 
pointments with him and failed to keep them. His claim was for 
eighty dollars, charging at the rate of two dollars and fifty cents 
per hour. The plaintiff secured judgment for the whole 
amount. Rehfus refers in this case to the Dental Cosmos, Vol. 
XIX, p. 110. CHAPTER XVIII. 
LIABILITY FOR COMPENSATION-WIVES, MINORS, PARENTS, 
GUARDIANS, ETC. FOR BREACH OF CONTRACT. 
The most important part of this subject has been already 
covered under the previous head. 
If a patient has just ground to suppose the services of the 
dentist are to be gratuitous, of course no claim for compensation 
can afterwards be made. The legal question is stated by the court 
in Prince vs. McRae,1 "Whether the plaintiff's services shall be 
deemed a gratuity or constitute a claim for compensation must be 
determined by the common understanding of both parties. If they 
were intended to be and were accepted as a gift or act of bene- 
volence, they cannot, at the election of the plaintiff, create a legal 
obligation to pay. But their character is not controlled by the un- 
expressed and revocable intentions of the plaintiff." 
"A dentist has no authority to call in a consulting dentist (or 
physician) without the consent of the patient." 
If, however, the patient receives the services of the consul- 
tant without objection, or requests or consents that he be called, 
he is of course liable for the consultation fee. 
"If the dentist call in another dentist or a physician to assist 
him, as to administer ether, or the like, without the request of 
the patient, the dentist is in the first instance liable to such as- 
sistant for his services."2 
In such cases, however, he can carry over the charge to the 
patient in his own bill for services. 
2. What Persons are Liable-Liability of Infants. 
"In general the contract of an infant, i. e., a person under 
twenty-one years of age, is not binding. The law, however, has 
made an exception to the rule in the case of necessaries. If an 
infant not living at home under the care and support of his par- 
ents, makes a contract for what the law considers a necessary, 
*84 N. C., 674 (1881). 
2Fitzgerald v. Hanson, 16 Montana, 474 (1895). LIABILITY FOR COMPENSATION. 
195 
the infant is bound by such contract, and having obtained the 
benefit of it must pay for it." 
The preceding has practical application chiefly to minors hav- 
ing money or property of their own or to claims against them 
after they become of age for services rendered during their minor- 
ity. There is some confusion and diversity of authorities as to 
the power of a minor living at home to make contracts for him- 
self. In one case cited a minor was sued for services and it was 
shown that he lived at home and paid his wages to his father, who 
was very poor and wholly unable to pay the bill. It was held that 
the father was the only one against whom a claim for payment 
could be made. Two decisions or authorities state the two views. 
"In Murphy v. Holmes1 the Supreme Court of New York 
states that rule as follows: 'The theory upon which an infant 
is made liable for necessaries is that they have been furnished 
and were necessary, and that the person standing in the relation 
of parent has not the ability to respond for the amount thereof. 
Where they have such ability, no liability can attach to the 
infant.' " 
And "Tyler2 states the rule thus: 'An infant when at home 
under the care of his father, and supported by him, cannot be 
made liable for necessaries.' " 
LIABILITY OF PARENT. 
Brothers, in his book,3 states it in this way: "At common law 
the liability of a father for the support, maintenance and edu- 
cation of his minor child, while recognized, was not well defined 
and amounted to little more than an imperfect unenforceable obli- 
gation. The duty was always conceded, but the manner of its 
discharge was exclusively within the discretion of the parent. 
The party who voluntarily supplied the wants of a minor had no 
legal claims against the parent, and all that he did in this respect 
was at his own risk, unless he had the express promise of the 
father to remunerate him, or the circumstances were such that a 
promise of that character would reasonably be implied. In the 
187 App. Div. N. Y. (1903), 73. 
2Infancy and Coverture, 2nd Ed., 108. 
'Dental Jurisprudence, by E. B. Brothers, p. 100. 196 
DENTAL JURISPRUDENCE. 
absence of special legislation, this obligation remains the same as 
at common law, and the general rule prevails that where a person 
furnishes necessaries to a minor without authority from the par- 
ent, he does so at his peril and, in order to recover from the par- 
ent, he must show by preponderance of the evidence either an 
express authority or circumstances from which such authority 
may be implied. The parent is to be the judge of the wants of 
his child and of his ability to supply them, and the extent to which 
he shall respond to this obligation and when no express authority 
has been given to the child to bind the parent, it devolves upon 
the party supplying such necessities to show the neglect or re- 
fusal of the parent to provide the same." 
Mikell1 states the same conclusion in fewer words: "In 
order to hold a parent liable for dental services rendered to his 
minor child, there must be shown either an express contract by 
the father to pay for such services, or circumstances from which 
a contract by the father can be inferred." 
In most cases when minor children come to the dentist 
without either parent accompanying them, they are to be regarded 
as the "special agents" of the parents for making the necessary 
contract for services (either express or implied contracts). 
Brothers2 states it in this way: "Where the child has auth- 
ority to bind the parent it is usually in the nature of a special 
agency, and the party dealing with the minor is bound to know 
the extent of that authority." 
Mikell cites this case in illustration: "In Dumser v. Under- 
wood3, Underwood, a dentist, sued Dumser for $19.00 for dental 
services performed for Dumser's minor daughter. The daughter 
had informed her father that her teeth needed attention, where- 
upon he told her to go to Dr. Whedon, the family dentist, and 
ask him to examine her teeth and make an estimate of the cost 
of the work. This she did and reported to her father that the 
cost as estimated by Dr. Whedon would be $10.00. The father 
then told her to have Dr. Whedon do the work. The daughter, 
however, went instead to Dr. Underwood, who did the work, for 
iMikell's Dental Jurisprudence, p. 57. 
-'Brothers' Dental Jurisprudence, p. 101. 
3168 Ill. App., 121 (1896). LIABILITY FOR COMPENSATION. 
197 
which he charged $19.00. It was admitted that the $19.00 was a 
reasonable sum for the work. On the refusal of the father to 
pay, Underwood sued him for the amount of his bill. The court 
having ruled that the work was not a 'necessary', Underwood next 
contended that as Dumser had given his daughter authority to 
have dental work performed, he had made her his agent to pro- 
cure such work, and was therefore liable for the cost of the same. 
The court said: 'It is insisted that the permission, thus delegated, 
clothed her with such apparent authority as to render him liable 
although she acted contrary to his private instructions. 
"This contention loses sight of the distinction between gen- 
eral and special agencies. 
" 'The agency in this case was special, viz., to have the work 
done by Dr. Whedon. A special agent is one authorized to do a 
specific act in respect to which his power is limited. A party 
dealing with him is bound, at his peril, to ascertain the extent of 
his authority.' " 
LIABILITY OF HUSBAND-FOR SERVICES BEFORE MARRIAGE 
"Before 1870, in England, when a woman married, all her 
property became the property of her husband. The effect of this 
was that the wife could not be liable for any debts contracted by 
her before marriage, for after she became a wife she had no 
property with which to pay them. As, however, a husband on 
the marriage became the owner of what property the wife owned 
before marriage, the law held him responsible for all debts, includ- 
ing debts for dental services, contracted by her before her 
marriage."1 
"In 1870 the first 'Married Woman's Property Act' was 
passed by the British Parliament. This statute was amended by 
the Act of 1874, and in 1882 these two acts were superseded by 
the Act of 1882. This act radically changed the law existing 
before 1870. It first enacted that thereafter the wife, on mar- 
riage, should continue to hold all the property that belonged to 
her at her marriage or that should devolve on her after her mar- 
riage, and then provided that thereafter not only should the wife 
herself be liable for all debts contracted by her before her mar- 
'Blackstone, Comm., bk. 1, chap. 15, p. 443. 198 
DENTAL JURISPRUDENCE. 
riage to the extent of her separate property, but limited the lia- 
bility of the husband for such ante-nuptial debts of the wife to 
such property as he acquired through his wife."1 
Similar statutes are in force in the United States, but as 
they differ in their terms, no general rule can be laid down as to 
the effect of their provisions or the extent of a married woman's 
liability for her contracts, and it is impossible in a work of this 
character to attempt to treat the subject for each State in the 
Union. * * *" 
"For Services During Marriage-Previous to the enactment 
of the statutes above mentioned, a wife was no more liable gener- 
ally for contracts made by her during the continuance of her 
married state than by contracts made by her before her marriage. 
But while the husband was liable for all her debts contracted be- 
fore marriage, he was not liable for all debts contracted by her 
after marriage, but only for debts contracted by her when acting 
as his agent, or under an authority from him, express or implied. 
The Married Woman's Property Acts have in general changed 
the law so as to render the wife herself liable for contracts made 
by her on her own account during the marriage, but have not 
altered the liability of the husband. He remains liable on con- 
tracts made by her when, and only when, she is acting as his 
agent in making the contract." 
"The agency of the wife may be shown in the same way as 
the agency of any other person; by actual authority, by a ratifica- 
tion of the contract, or by a recognition of similar contracts made 
by her. The most usual cases of such agency is in contracts made 
by the wife for necessaries. If the parties are living together, the 
law invests her at the marriage with an irrevocable agency to 
pledge his credit for whatever is necessary to her maintenance, 
unless he provides other means. * * *" 
Bills should be sent to the husband for work done for a mar- 
ried women living at home; if she is to pay it herself from her 
own estate, there must be a definite understanding or contract to 
that effect. 
"For Services During Separation-If the husband and wife 
are not living together the presumption is that she has no authority 
1Smith on Contracts, 337; McQueen's Husband & Wife, 71. LIABILITY FOR COMPENSATION. 
199 
to bind him even for necessaries. To hold her husband liable in 
such case, it must be shown that her absence from her husband 
was for some cause that would justify her absence, i. e., that it 
was not due to fault on her part." 
Mikell has several pages of citations of cases in illustration of 
these propositions, and a few other minor points which it is not 
necessary to quote further. 
"Liability of Third Persons-The liability arising from the 
family relation of one member of the family to pay for services 
rendered to another does not extend beyond the cases of father 
and child and husband and wife. A brother is not liable, as such, 
for services rendered to a brother, even though the brother for 
whom the services were performed was insane at the time,1 nor a 
son-in-law for the services performed for his mother-in-law." 
"Liability of Employer-An employer, as such, is not liable 
to pay for dental services rendered to his employee or servant." 
Unless he has expressly agreed to pay for them or has paid for 
services previously rendered for the same person. 
"Liability of County or State-For Services to Paupers, etc. 
-There are in most, if not all, of our states, laws making it the 
duty of the proper county officers to secure medical attendance 
for the paupers and the insane of the county, and to persons con- 
fined in jails and prisons, at the expense of the county or the 
State. Medical attendance has been held to include surgical serv- 
ice,2 and there can be no doubt that such statutes would be con- 
strued to include at least such dental services as were necessary 
for the health of the paupers, and that the dentist performing 
such services could recover against the county for the same. If 
his compensation was not fixed by his contract with the proper 
officers, he should recover the reasonable value of his services."3 
"In order to recover against the county, however, the den- 
tist must show that the person at whose request he performed the 
services was authorized by law to charge the county for payment 
for the services rendered."4 
1Smith v. Watson, 14 Vt., 332 (1842). 
2Clinton Co. v. Ramsey, 30 Ill. App., 577 (1886.) 
3See Tucker v. Virginia, 4 Nev., 20 (1868). 
4Bay v. Cook, 22 N. J., L. 343 (1850). 200 
DENTAL JURISPRUDENCE. 
"If, however, an officer of the county engage for such serv- 
ices without the requisite authority to bind the county, he is him- 
self personally liable to the dentist for the value of the services."1 
"For Services at Coroner's Inquest-A coroner has authority 
to pledge the county of which he is an officer for the compensation 
for all auxiliary services which are necessary to the proper exe- 
cution of his office, and which he could by no other means com- 
mand." 
It would be seldom that a dentist would be called for any 
other services than as a witness. Oftenest, perhaps, as an expert 
witness to assist in the identification by means of the teeth, and 
his compensation in such cases would be in the nature of witness 
fees. The fees of an expert witness should be, but are not always, 
greater than those of a common witness. 
"3. Liability for Services of Unlicensed Dentist-It seems 
that to entitle the dentist to recover compensation for his services, 
he must show affirmatively his compliance with the law regulating 
the practice of dentistry. His right to practice will not be pre- 
sumed, even from the fact that he has been practicing for a long 
time."2 
Some dental laws expressly provide that illegal practitioners 
cannot recover for their services, while others only state that it 
shall be unlawful to practice until certain specified requirements 
have been fulfilled. The difference is immaterial; in neither case 
can an illegal or unlicensed practitioner collect for his services by 
a suit at law. If a bill is contested on this ground, in most states 
the burden of proving that the dentist is legally disqualified is 
upon the patient. "Some states, however, hold that since the 
possession of a license is a matter peculiarly within the knowledge 
of the person claiming to possess it, the burden of proving such 
possession is on the dentist."3 
These are the essential matters. Mikell cites a number of 
cases and mentions a number of details covering more than three 
pages. 
"4. Effect of Malpractice on Liability-In a suit by a den- 
1Ibid. 
2See North Chicago St Ry. v. Cotton, 140 Ill. 486 (1892). 
3Dow v. Haley, 30 N. J .L., 354 ( 7863) ; Cooper v. Griffin, 13 Ind. 
App., 212 (1895) ; Adams v. Stuart, 5 Harr. Del., 144 (1849). LIABILITY FOR COMPENSATION. 
201 
tist for remuneration for services rendered, the patient may suc- 
cessfully defend by showing that in rendering the services for 
which compensation is demanded, the dentist was guilty of mal- 
practice."1 
"In some states it is held that if the patient proves facts 
which amount to malpractice in the services ,for which remuner- 
ation is claimed, the defense is complete and goes to the whole 
claim, and that the dentist can recover no part of his charges, 
but forfeits all right to compensation.2 In other states, however, 
it is held that though in an action to recover for services the 
patient may defend on the ground of malpractice in rendering 
the services, that proof of malpractice will only be conclusive so 
as to prevent recovery of the whole claim if the malpractice was 
such as to render the services useless, or to make the damage 
suffered by the patient equal to or greater than the value of the 
services or the amount due under the contract; if the injury done 
to the patient is not equal to the value of the services or the 
amount due under the contract, the dentist should recover the 
difference."3 
"5. When Compensation is Due-When the contract be- 
tween the dentist and his patient provides a definite date for pay- 
ment for the dentist's services, payment is, of course, due on that 
date, and on demand for payment and refusal thereof, suit for 
payment may begin immediately." 
"If no time for payment is fixed by the parties, the law im- 
plies that the patient has promised to pay as soon as the services 
are performed." 
"Where it is the custom to send bills at certain times, as 
monthly or quarterly, if the patient knows of such custom, and 
the circumstances show that it was understood by the parties that 
the patient was not to pay until such time arrived, he cannot be 
sued until such time. The mere fact, however, that it is the cus- 
tom of the dentist to send bills to his patients at certain intervals, 
as monthly or quarterly, will not be construed as an agreement 
1Bruloman v. Kursheedt, 84 N. Y« Supp., 575 (1903). 
2Abbott v. Mayfield, 8 Kan. App., 387 (1899) ; Pattern v. Wiggin. 
3Whitesell v. Hill, 101 Iowa, 629 (1897) ; Schofen v. Baldwin, 83. Hun. 
N. Y., 234 (1894) ; Piper v. Menifee. 12 B. Mon. Ky„ 465 (1851). 51 Me., 
594, (1862). 202 
DENTAL JURISPRUDENCE. 
with the patient to extend credit to him until the customary time 
of sending bills has arrived. In the absence of other circum- 
stances showing an agreement to postpone payment, the dentist 
may demand payment as soon as the service is rendered. * * *" 
"6. Interest on Claim-Where interest is allowed generally 
on accounts, it seems that the dentist is entitled to interest on his 
claim for services from the time such claim became due." 
In the case cited the statute of the State provides that: 
"Accounts of merchants, tradesmen and mechanics, which by 
custom become due at the end of the year, should bear interest." 
The court held that "while the statute did not mention physicians, 
yet they were clearly within the equity of the statute. * * * 
The reasoning of the court would, of course, make the act ap- 
plicable to the account of a dentist."1 
"7. Evidence to Establish Liability-There is a general rule 
of law that the evidence brought before the court to establish a 
claim must be the best evidence of which the case, in its nature, 
is susceptible. By this rule is meant that no evidence shall be 
received by the court which is merely substitutionary in its nature, 
so long as the original evidence can be produced." 
"This rule has nothing to do with the amount of evidence 
necessary to establish the claim; nor does it prevent the introduc- 
tion of merely weaker instead of stronger proofs." 
"There is a general exception to this rule, viz.: that if the 
production of the best or primary evidence is not within the power 
of the party, he may introduce secondary evidence to prove his 
claim. It follows from the rule and the exception that if the 
contract between the dentist and the patient is a written one, as 
in some cases it must be, to be enforcible, and as in any case it 
may be, the written contract must itself be produced or its absence 
accounted for or the dentist cannot recover on the contract as 
such. If the contract is in possession of the patient, notice to 
produce it must be given him; if it is lost, proof of the loss must 
first be given." 
"If the non-production of the writing is properly accounted 
for, oral evidence of its terms may be introduced to prove the 
claim." 
*47 Ga„ 121 (1872). LIABILITY FOR COMPENSATION. 
203 
"If the existence of the writing itself be disputed, as where 
the dentist sues on a contract which, under the statute of frauds 
must be in writing, and the patient denies that it was ever put in 
writing, the writing itself must be produced; oral evidence cannot 
be offered as a substitute for it, even after an effort to prove its 
loss."* 
When a dentist is suing for compensation for services, it may 
often be difficult or impossible for him to swear to the various 
items of the services, the times when rendered and the charges 
for each, without reference to his books of account. "At first 
sight, his books of account might seem to be the best evidence 
possible to prove his claim. It must be remembered, however, 
that the law has to deal with the dishonest, the careless, as well 
as the methodical, and to frame its rules so as to do justice in 
the majority of cases; these books are kept by the dentist himself 
and not even seen by the patient; the dentist may be dishonest 
and make any entry he pleases; he may be careless and make an 
error in his entry; he may make it some time after the service is 
rendered and from his imperfect memory of what the service 
was and its value. It is evidence made by himself, for himself. 
These and other considerations have, to some extent, governed 
the courts in framing rules as to the admissibility of books of ac- 
count in evidence." 
"In the first place, it may be said that books of account may 
be used in court for two purposes: (1) Merely to refresh the 
mind of the dentist while he is testifying as to the services and 
charges of which they contain a record; (2) As evidence them- 
selves to prove the claim. The general rule is that books of ac- 
count may be used by the witness merely to assist his memory, in 
any event, provided, after inspecting it, he can testify to the facts 
from his own recollection, and providing the writing was made 
either at the time the service for which suit was brought was 
performed, or shortly afterward."1 
"When the books of account are used not merely to refresh 
the memory of the witness, but are sought to be introduced as 
evidence of the claim itself, the rules of the several states are not 
♦See Greenleaf Evidence, secs. 82 to 88. 
1Greenleaf Evidence, sec. 438. 204 
DENTAL JURISPRUDENCE. 
uniform as to their admissability. In general it may be said, 
however, that the books may be so used when it is shown that 
the book is a book of original entries; that the entries were made 
at the time the services were rendered and by the person whose 
duty it was at the time to make them; that true and honest ac- 
counts were kept; that the entry was reasonably specific and par- 
ticular."1 
Dentists usually keep a personal record of operations and 
other services for each individual patient, but if the books of 
record and account are to be used in court it is desirable, in addi- 
tion to the name of the patient, to have also the name of the 
father, or husband, or other person who is expected to pay the 
bill, if it is not to be collected from the patient individually. 
Dentists are in the habit of using figures, letters or a diagram to 
represent the several teeth, and sometimes they use arbitrary signs 
or marks to designate the various operations upon them or the 
replacement of lost teeth by artificial substitutes. If records and 
accounts are to be used in court, the system of marks and signs 
should be as simple as possible, and at any rate easily understood 
by a jury upon proper explanation. 
"8. Statute of Limitations-Statutes exist generally provid- 
ing that if claims are not sued on within a certain time fixed by 
the statute after they become due, no suit can be maintained to 
enforce them. The general statute applicable to other simple 
contracts applies, it has been held, to contracts of physicians (ex- 
cept in Louisiana, where there is a special statute governing con- 
tracts of physicians and attorneys)2 and would, therefore, be held 
to apply to contracts of dentists, likewise. The period of limita- 
tion differs so greatly in different states that no general statement 
of the law can be given here. A distinction must be made, how- 
ever, in the different kinds of contracts a dentist may make. As 
we have seen, certain contracts of the dentist have been held to 
be contracts of sale, e. g., a contract to make a set of false teeth, 
while other contracts are contracts for services. In most states 
contracts for sale and contracts for services are governed by dif- 
1Greenleaf Evidence, sec. 118; also Wigmore Evidence, secs. 1546 to 
1562. 
225 Cvc., 1032. LIABILITY FOR COMPENSATION. 
205 
ferent statutes, the time within which suit must be brought being 
different in the two cases. * * *" 
"The time prescribed by the statutes begins to run against 
the claim from the day the claim accrues, i. e., from the day on 
which payment of the claim could be legally demanded. * * *" 
"In general, both in England and in the United States, if 
the patient makes a new unconditional promise to pay the debt, 
either while the statute is running against the claim, or even after 
the time fixed by the statute has actually expired, the cause of 
action will revive and the right to sue be extended for a further 
period equal to the time prescribed by the statute for bringing 
the suit in the first instance. So an acknowledgement of the debt 
from which a promise to pay will be implied, will have a like 
effect, as will likewise a conditional promise to pay, if accom- 
panied by a sufficient showing that the condition on which the 
promise was made to depend has been performed. A partial 
payment of the debt by the patient will, in most jurisdictions, 
have the same effect, and the date of such payment mark the time 
from which such statute of limitation begins to run anew."1 
LIABILITY OF DENTIST TO PATIENT FOR BREACH OF CONTRACT. 
A contract, whether express or implied, between the dentist 
and his patient means that both parties assume obligations and 
duties, and a failure of performance by either party may entitle 
the other party to compensation for such actual injury or loss 
as he may have suffered in consequence. If there is agreement or 
contract for a series of operations or other services, the dentist 
must complete the services agreed upon, and if without good cause 
he refuses to do so, he becomes liable for damages, but the patient 
must go to another dentist, if there is one available, to complete 
the treatment or he can recover no damages, and ordinarily in 
such a case the damage would only be the difference between the 
compensation agreed upon and that actually paid to the dentist who 
completed the work. 
Under ordinary circumstances it is the right or privilege of a 
patient to terminate the services of a physician or dentist by noti- 
fying him that he is no longer required, and paying his bill. A 
'25 Cyc, 1325 to 1370. 206 
DENTAL JURISPRUDENCE. 
dentist or physician must have the corresponding privilege or right 
to terminate his service by giving his patient sufficient notice to 
employ someone else. If there is a definite agreement, either 
orally or in writing, the terms of it must be fulfilled, whatever they 
may be. 
FAILURE TO USE PROPER MATERIALS. 
If the nature of the materials to be used for any operations, 
or in making crowns, bridges or sets of artificial teeth is specified 
beforehand, of course the dentist may not substitute other and 
different materials even though they be as good or better. If 
he does so he is liable to lose all compensation for his services, 
and may have to pay damages besides. The same considerations 
apply to the quality of the material used. 
If nothing is specified as to the nature or quality of the ma- 
terials to be used, the dentist must use such as are suitable for the 
work to be done and the circumstances of the case; such as a 
reasonably skilled dentist would use. 
FAILURE TO COMPLETE WORK IN TIME. 
"If the dentist expressly agreed to perform the work under- 
taken in a specified time, he is bound by his promise, and will be 
liable to his patient in damages for breach of contract." This 
may involve entire loss of compensation for his services, and 
damages besides. 
"The liability of the dentist for the loss of the value of his 
services, in addition to damages, is confined to cases where time 
is of the 'essence of the contract,' as the legal expression is. That 
is, where the time within which the service is to be performed is 
an important element of the contract, and is so understood by both 
parties. The mere fact that a time is fixed, as if the dentist should 
say: 'I will have this finished for you by Friday next,' or 'it will 
not take more than three weeks,' will not render the dentist liable 
for the loss of the value of his work, or for damages if the work 
is not completed at the time mentioned." 
"It is believed that the liability of the dentist for the total 
loss of the value of his services in addition to damages is con- 
fined to cases where, for the patient's purposes, the work is prac- LIABILITY FOR COMPENSATION. 
207 
tically valueless to him unless completed within the time specified, 
or where the work is of such a character that the patient can 
refuse to accept or enjoy the benefits of it." 
If time is of the "essence of the contract" in the case of a 
crown or bridge or artificial teeth, if not ready at the time speci- 
fied the patient may refuse to accept them, and may have a claim 
for damages also, but if he accepts the work he must pay for it, 
though he may offset the damage he has suffered against the bill, 
and if greater than the bill, the dentist would have to pay the 
balance instead of the patient. 
"Meaning of the Word 'About.'-Frequently the dentist does 
not make a definite promise to complete the work for the patient 
by a certain date, but informs the patient that it will take 'about' 
such and such a time. Ordinarily in such cases a considerable 
variation from the time mentioned would not affect the obliga- 
tions or duties of either party, but if there were a close relation 
of the time consumed and the amount of the bill it might become 
necessary to determine what the word 'about' signifies. Since 
the very object the dentist has in using the word is to guard 
against binding himself to finish the work at a definite date, it is 
plain that his promise to finish the work in 'about,' say two 
months, will not render him liable for breach of contract if he 
fails to complete it in exactly two months; nor in such a case will 
the patient necessarily be justified in refusing to pay him for such 
services, after the two months have expired, as may be necessary 
to complete the work." If, however, the work consumed three or 
four months, there might arise, under certain circumstances, a 
question for a jury to decide, whether the word "about" could 
be stretched so far. 
BREACH OF WARRANTY OF CURE. 
It is unwise and professionally improper for dentists and 
physicians to warrant cures, or the success or durability of opera- 
tions, or artificial substitutes for lost teeth, and the law does not 
recognize any such obligation or duty on their part: but if any 
dentist or physician is so foolish as to warrant his work, the law 
will require him to make good his warranty. "The rule 'no cure, 
no pay,' governs only where there is an express agreement to 208 
DENTAL JURISPRUDENCE. 
that effect" says the court in Bronson v. Hoffman.1 "All that the 
law requires of him is that he treat the patient in a reasonably 
skillful manner and with due care. * * *" 
"* * * In Wilkins v. Ferrell2 a dentist was sued for 
malpractice in extracting a tooth, whereby the patient's jawbone 
was fractured. On the trial the dentist's counsel asked the trial 
court to instruct the jury that 'a dentist can never insure the result 
and simply engages that he possesses a reasonable degree of skill, 
such as is ordinarily possessed by the profession generally, and 
to exercise that skill with reasonable care and diligence.' The 
trial court refused to give this instruction, and the appellate court 
held that the instructions asked for correctly stated the law, and 
should have been given, and a verdict having been found against 
the dentist, the court reversed the judgment and ordered a new 
trial." 
"There is no legal objection to a dentist and his patient enter- 
ing into a contract that the patient is not to pay the dentist any- 
thing for his services unless the dentist effect a cure." A self 
respecting professional man should, however, never make such a 
contract unless the circumstances are peculiar and unusual. 
"Sometimes a dentist promises to make a plate that will 
'please' or be 'satisfactory' to the patient. That this is a very- 
rash promise to make all courts are agreed. All courts, how- 
ever, are not agreed as to the standard required by such a war- 
ranty." 
Some hold that the patient is the sole judge whether the work 
"pleases" or is "satisfactory" and "if he is not satisfied for any 
cause, no matter how whimsical, the dentist cannot recover for 
his services. These courts leave it to the jury to say whether the 
work is satisfactory to the patient or not. * * *" 
"Other courts have treated such promises more leniently, and 
hold that if the work ought to be satisfactory to the patient the 
dentist may recover whether the work is satisfactory or not." 
Such controversies should very seldom arise between a den- 
tist and his patient, and very few of those that do arise should 
be allowed to get into court. 
J7 Hun. N. Y„ 674 (1876). 
2Wilkins v. Ferrell (Texas), 30 S. W., 450 (1895). LIABILITY FOR COMPENSATION. 
209 
A dentist should use every endeavor possible to make his 
work right, and if it really is right, it will be very seldom indeed 
that a patient cannot be convinced of it. A patient should be made 
to understand, also, if he expresses dissatisfaction after the 
utmost endeavors, that "if a set of teeth is good enough to keep 
and to use, it is good enough to pay for." CHAPTER XIX. 
LIABILITY OF DENTIST TO PATIENT FOR MALPRACTICE* FOR IN- 
FECTING A PATIENT FOR OPERATING WITHOUT CONSENT- 
DAMAGES-STATUTE OF LIMITATIONS DEFINITION OF MAL- 
PRACTICE. 
"Malpractice, in law, as applied to physicians and surgeons, 
means generally, professional misconduct towards a patient which 
is considered reprehensible either because immoral in itself, or be- 
cause contrary to law or expressly forbidden by the law. In a 
more specific sense, it means bad, wrong, or injudicious treatment 
of a patient professionally and in respect to the particular disease 
or injury, resulting in injury, unnecessary suffering or death to 
the patient, and proceeding from ignorance, carelessness, want 
of proper professional skill, disregard of established rules or 
principles, neglect, or a malicious or criminal intent."1 
"This definition of malpractice applies to dentists, the courts 
in suits against dentists for malpractice applying the same prin- 
ciples as in the case of physician and surgeons."2 
Injury to the patient is an essential feature of legal mal- 
practice. No matter how unskillful, incompetent, or careless a 
dentist may be, he is not guilty of malpractice from a legal point 
of view unless the patient suffers injury. It is true, however, 
that unskillful, incompetent, or negligent operating usually does 
injure the patient. The point is that in suits for malpractice the 
injury must be affirmatively proven, and also the neglect or failure 
of professional duty. 
TIME AT WHICH LIABILITY COMMENCES. 
"The liability for malpractice is founded on the duty the 
practitioner owes to the patient. If that relation has not subsisted 
no liability is incurred. Therefore a dentist is not liable for mal- 
♦Mikell, p. 102. 
1Black's Law Diet. (2nd Ed.), 751. 
2See McCracken v. Smathers, 122 N. C., 799 (1898). LIABILITY TO THE PATIENT. 
211 
practice in refusing to treat a patient, even though no other dentist 
is available and the case is urgent."1 
The case cited by Mikell is an extreme one. A patient, alarm- 
ingly ill, sent for the doctor who had been the family physician, 
and the messenger explained that the case was urgent, that no 
other physician could be procured in time, and tendered his fee. 
The doctor had no other patient requiring immediate attention, 
but he refused to go. The patient died, supposedly for want of 
the assistance the doctor might have given, and the administrator 
brought suit "for $10,000.00 damages in wrongfully causing the 
death of his intestate. The trial court dismissed the suit, and the 
administrator appealed." The Supreme Court affirmed the judg- 
ment of the trial court and declared that a physician is under no 
legal obligation to accept and treat a patient, that the license of 
the state to practice medicine is permissive and not compulsory, 
and that the "counsel's analogies, drawn from the obligations to 
the public on the part of innkeepers, common carriers, and the 
like, are beside the mark." 
It is a well established legal proposition that a physician or 
dentist may refuse to accept a patient for treatment, for any 
reason, or for no reason at all, except his personal preference or 
choice. If, however, a patient is accepted and treatment begun 
or promised, it must be continued as long as necessary unless he 
is dismissed by the patient or unless he notifies the patient that 
he will discontinue treatment and gives sufficient time in which 
he may procure the services of someone else. 
LACK OF SKILL OR CARE GIVING RISE TO LIABILITY. 
"1. In General.-In determining the degree of care and 
skill which the physician, surgeon and dentist must exercise in 
order to escape liability for damages that the patient may suffer 
from his treatment, the courts are not entirely agreed. All the 
courts hold that the practitioner cannot be held liable by showing 
that he did not exercise the highest degree of care and skill pos- 
sible.2 All agree that to fasten such liability upon him, it is not 
necessary to show that he was grossly negligent in a given case. 
1Hurley v. Eddingfield, 156 Ind., 416 (1900). 
2See Simonds v. Henry, 39 Me., 155 (1855). 212 
DENTAL JURISPRUDENCE. 
It is certain that he must have treated the patient 'negligently' in 
order to be liable, and that if he exercised 'reasonable' care and 
skill, he is not liable." 
"The negligence which renders a dentist liable in an action 
for malpractice is simply a failure to perform the duty which he, 
as a professional man, owes to his patient. This duty is usually 
expressed in the formula; a physician, surgeon or dentist is re- 
quired to possess and exercise that degree of skill and learning 
ordinarily possessed and exercised by the members of his profes- 
sion in good standing, practicing in similar localities; and it is 
his duty to use reasonable care and diligence in the exercise of his 
skill and the application of his learning, and to act according to 
his best judgment." 
"2. Effect of Locality.-In determining the degree of skill 
and care that must be exercised by the practitioner, some courts 
lay down the rule that he is required to use only such care and 
skill as is ordinarily exercised by practitioners in the particular 
locality or neighborhood in which he practices."1 
"Other courts hold that the practitioner must exercise such 
care and skill as is exercised by those practicing, not in the same 
but in similar localities generally." 
In the case cited by Mikell; McCracken v. Smathers,2 the 
court refused to instruct in accordance with the first of the above 
rules. In affirming the judgment of the lower court, the Supreme 
Court stated the second rule as follows: "The degree of care 
and skill required is that possessed and exercised by the ordinary 
members of his profession. It need not be the highest skill and 
knowledge known to the profession, but it must be such as is 
ordinarily possessed by the average of the profession. It cannot 
be measured simply by the profession in the neighborhood, as the 
standard of measurement would be entirely too variable and un- 
certain. 'Neighborhood' might be construed into a very limited 
area and is generally so understood among our people. It might 
contain but few dentists, in sparsely settled sections, perhaps 
only one or two. Both might be men of very inferior qualifica- 
1Wood v. Wyeth, 106 N. Y. App. Du., 21 (1905) ; Mullen v. Flauders, 
73 Vt., 95 (1900) ; Force v. Gregory, 63 Conn., 167 (1893). 
2122 N. C„ 799 (1898). LIABILITY TO THE PATIENT. 
213 
tions, and to say that they might set themselves up as the standard 
of a learned profession and prove the standing of each by the 
ability of the other, would be equally unjust to the profession and 
to its patients. * * *" 
"3. Effect of the State of the Science.-Manifestly, when 
judging of the degree of care and skill exercised by the prac- 
titioner, regard must be had to the state of the science of dentistry 
at the time the treatment alleged to be negligent was given, and 
such is the doctrine of the cases." 
The rule is not closely defined, as, indeed, it cannot be. It 
does not require that a man attend a graduate school of dentistry 
every few years in order to keep posted upon everything new 
that is introduced or adopted by the best and most advanced men 
of the profession, nor does it require that he buy and read every 
new book or everything that is published in all the dental journals, 
nor that he attend a certain number of dental society meetings. 
But if he never does any of these things that fact would be likely 
to have great weight in the minds of a court and jury in case he 
were accused of negligence. 
"4. Effect of Established Methods of Treatment.-It is gen- 
erally agreed that practitioners are bound by what is universally 
settled in the profession, and when an established practice or a 
particular mode of treatment has been followed for a long time 
and is upheld by the concensus of opinion among the members 
of the profession, any departure therefrom is evidence of negli- 
gence sufficient to render the dentist liable for malpractice, if in- 
jury results."1 
This rule, like the preceding one, cannot be closely defined 
nor strictly applied. On the one hand it is not intended to pre- 
vent all progress of the profession by the introduction of new 
modes of treatment or new methods of practice. But it is in- 
tended to prevent the reckless experimenting upon patients. 
Whenever a man wishes to make an operation or apply a 
mode of treatment not in common use by the profession, he should 
obtain the consent of his patient. A man cannot experiment upon 
his patient without liability if injury results. 
1See Patten v. Wiggin, 51 Me., 594 (1862) ; Carpenter v. Blake, 60 
Barb. N. Y, 488 (1871). 214 
DENTAL JURISPRUDENCE. 
"The rule protects the community against reckless experi- 
ments, while it admits the adoption of new remedies and modes 
of treatment only when their benefits have been demonstrated, or 
when, from the necessity of the case, the surgeon or physician 
must be left to the exercise of his own skill and experience." 
"If it is shown that some practitioners have abandoned the 
established mode of treatment, and applied a new mode, and 
found it to succeed as well or better than the established one, it is 
not negligent to resort to the system thus practically tested. But 
before the new practice can be used, to shield the practitioner 
from the charge of malpractice, it must appear that the cases 
in which it was tested were substantially the same as the case at 
bar, and that the treatment resorted to has been successful in a 
sufficient number of instances to establish satisfactorily the pro- 
priety and safety of adopting it. The practitioner cannot try ex- 
periments on his patient."1 
"The dentist is not liable for malpractice in not following the 
established method of treatment, if the condition of the patient 
was such that this method of treatment would have resulted in 
injury to the patient."2 
"5. Where Services are Gratuitous.-The rule was formerly 
laid down that the practitioner, when his services were rendered 
gratuitously, was liable for gross negligence only.3 Later author- 
ities deny this, and lay down the rule that when one assumes to 
be a dentist and acts as such the fact that he did not charge for 
his services will not affect the rule as to the degree of skill and 
care required of him.4 He is still liable for any injury resulting 
to the patient from lack of ordinary care and skill." 
"Liability for Insufficient or Wrong Diagnosis.-If through 
negligence or the want of ordinary skill, care or diligence, the 
practitioner fails to make such a sufficient examination as would 
enable him to correctly diagnosticate the case, he is guilty of mal- 
practice and liable for any damages resulting therefrom. * * 
* "5 
1Carpenter v. Blake, 60 Barb., N. Y, 488 (1871). 
2Hallam v. Mean, 82 Ills, 379 (1876). 
3Shearman & Redfield on Neg, 2nd Ed, sec. 604. 
4Peck v. Hutchinson, 88 Iowa, 320 (1893). 
6114 Ky, 20 (1902). LIABILITY TO THE PATIENT. 
215 
"It is said that an erroneous diagnosis alone, not followed by 
improper treatment does not render the practitioner liable for 
malpractice."1 
"In that case, however, the erroneous diagnosis did not re- 
sult in injury to the patient, as the treatment followed was equally 
proper whether the injury was as diagnosticated or as claimed by 
the patient." 
The rule means that if injury results from a wrong diagnosis 
either by determining a wrong course of treatment or no treat- 
ment at all, the dentist would be liable for malpractice unless 
ordinary care and skill were used. 
"Liability for Advising Erroneous Treatment.-A dentist is 
liable in a suit for malpractice not only when he negligently per- 
forms work he has undertaken, but for advising a certain course 
of treatment, operation, extraction, etc., if, in his opinion, or in the 
opinion of a dentist of reasonable skill, such treatment is un- 
necessary and unreasonable, and results in injury to the patient, 
even though the actual treatment were skillfully administered; for 
when the patient submits his case to the dentist he has a right to 
rely on the knowledge of the dentist as to the proper course of 
treatment, and his good faith in advising the proper course, as 
well as his skill in performing the actual work. Even though 
the patient does not expressly ask the dentist's advice as to the 
proper treatment in the particular case, but merely requests the 
dentist to perform a certain work, say to extract a tooth, it is the 
duty of the dentist if, in his opinion, extraction is unnecessary, 
to advise the patient to that effect, and the patient would have 
the right, in the absence of contrary advice by the dentist to as- 
sume that the dentist considered the operation proper."2 
"If, however, the dentist advises the patient that the opera- 
tion is unnecessary and improper, if the patient-at least if the 
patient be of mature years and sound mind-insists on the opera- 
tion, and the dentist thereupon performs it, doing the work skill- 
fully, the dentist is not liable to the patient for any damage sought 
on the ground that the operation was improper and injurious." 
The right thing to do in such case is to refuse to make an 
1Tomer v. Aiken, 126 Iowa, 114 (1904), 
2Gramm v. Bocuer, 56 Ind., 497 (1877). 216 
DENTAL JURISPRUDENCE. 
improper or injurious operation no matter how urgently the pa- 
tient may desire it. Even the knowledge that the patient will go 
to someone else who will do it, will not justify a man in his own 
estimation for doing a patient injury. 
"Liability for Erroneous Prescription.-The care and skill re- 
quired of the dentist is not confined to his acts in actually treating 
the patient. The same care is required of him by the law in writ- 
ing prescriptions. If through negligence or ignorance in writing 
a prescription the patient suffers damage, the dentist is liable 
therefor in a civil action."1 
(If the injury were serious enough he would be liable in a 
criminal action also.) 
"Liability for Omission to Give Instructions.-It is the duty 
of the dentist not only to use proper care and skill in the actual 
work done by him for the patient, but to give proper instructions 
to the patient as to the care or use of his teeth or mouth, so far as 
such instructions are necessary to obtain the result desired from 
the treatment. A failure to give any instructions when such in- 
struction should be given, or the giving of erroneous instructions 
will, if injury result, render the dentist liable for malpractice. 
* * *"2 
"Liability for Abandonment of Patient.-It has been decided 
many times by the courts that the physician who undertakes the 
treatment of an ill person, renders himself liable in damages if, 
without the patient's consent, or notice to the patient, he prema- 
turely abandons the case." 
Mikell has several pages under this head but the matters 
of chief importance may be stated in a brief quotation. 
"The obligation of the dentist is only to continue to treat the 
patient unless (1) he notify the patient that he does not propose 
to continue his attendance, in time for the patient to secure the 
services of another dentist; or (2) unless the patient consents to 
the discontinuance of the treatment; or (3) the condition of the 
patient is such as to no longer require treatment." 
Each of these three propositions is elaborated and fortified 
1Murdock v. Walker, 43 III. App., 590 (1892). 
2See Beck v. The German Klinik, 78 Iowa, 696 (1889). LIABILITY TO THE PATIENT. 
217 
by quotations from court decisions, but nothing of much impor- 
tance is added to their meaning. 
"Liability for Communication of Disease to Patient.-It is the 
duty of the practitioner while treating his patient, to use reason- 
able care and employ reasonable skill not to communicate in- 
fectious or contagious diseases to the patient. This rule applies 
not only to the communication of a disease from which the prac- 
titioner himself is suffering, but also to the communication by 
the practitioner from one patient to another. If a dentist, know- 
ing he has such disease, allows the patient to visit him without 
apprising the patient of the danger, and without taking proper 
precautions on his own part, and communicates the disease to the 
patient, he is liable to the patient for any damage the latter suffers 
thereby."1 
"Not only is he liable for damages resulting from thus com- 
municating a disease from which he suffers, but he is also liable 
if he negligently transmits a disease from one patient to another 
as where having treated one patient known to him to have an in- 
fectious or contagious disease, he proceeds to treat another patient 
without warning such patient, and without taking proper pre- 
cautions against the communication of the disease." 
"The same rule applies whether the transmission of the dis- 
ease was effected through the medium of the practitioner him- 
self, or by the use of infected instruments." 
"Liability for Improper Use of Anesthetics.-In the use of 
anesthetics, as in the treatment itself, the dentist is liable for any 
injury, due to lack of proper care and skill, the patient may suf- 
fer. If the particular anesthetic used was such as would not have 
been used by a reasonably skilled and careful practitioner, or if 
it was administered negligently either as to quantity or the length 
of time during which it was used, malpractice may be inferred.2 
It was further held in the case last cited, that the dentist in using 
an anesthetic is only bound to look to natural and probable effects, 
that he is not answerable for negligence for results arising from 
the peculiar temperament or condition of the patient, of which 
he had no knowledge. This doctrine would seem to need qualifi- 
1See Piper v. Menifee, 12 B. Monroe, Ky., 465 (1851). 
2Bogle v. Winslow, 5 Phila., 136 (1863). 218 
DENTAL JURISPRUDENCE. 
cation. It being established at the present day that certain anes- 
thetics are dangerous to persons suffering from certain diseases, 
it would seem incumbent on the dentist to use reasonable care 
and skill to discover whether the patient had such disease before 
administering the anesthetic, and to abstain from using it if it 
would be dangerous." 
1"Where the administration of an anesthetic is necessary or 
advisable for professional purposes, and objection to its adminis- 
tration not appearing or being discoverable by careful and skillful 
diagnosis, he is not liable for resulting damages unless at least 
two facts co-exist, namely: 
"1. That he was guilty of negligence in reference to the ad- 
ministration of the anesthetic; and 
"2. That the injury of which the patient complains was the 
result of this negligence in the use of the anesthetic." 
"The negligence in the administration of the anesthetic may 
have consisted in administering it without sufficient preliminary 
examination, or in administering an unfit and unsuitable drug, or 
in the unskillful or careless manner of administration, or in the 
excessive amount given."2 
"Extreme Responsibility in Fact.-In dealing with anes- 
thetics, the practitioner must know that he is using instrumental- 
ities that are dangerous and deadly, and his care must be in pro- 
portion to the risk involved to his patient. His responsibility 
begins with the examination preceding the administration of the 
drug and carelessness resulting in the determination to use the 
same when clearly it should not have been given, will make him 
liable in malpractice for resulting injuries and, possibly, for man- 
slaughter, where the consequence is death. He cannot trifle with 
the health or life of his patient and not shoulder the responsi- 
bility."3 
*Leslie Childs cites three cases, in two of which a tooth or 
fragment of a tooth escaped into the trachea while the patients 
were unconscious, and in which damages were awarded, and one 
in which there had been a previous injury which was undoubtedly 
1Dental Jurisprudence by E. D. Brothers, p. 63-64. 
2Bogle v. Winslow, 5 Phila., 136-139. 
3State v. Baldwin, 36 Kan., 1. 
*Cosmos, August, 1922. LIABILITY TO THE PATIENT. 
219 
the cause of the ill effects following the operation under chloro- 
form. In the latter case the dentist was acquitted. Mr. Childs 
adds the following summary: 
"So it may be said in summing up: That in administering 
an anesthetic the dentist is bound to exercise the highest degree of 
care, both in his determination to use it and in its use. And an 
injury resulting from his negligence in situations of this kind may 
make him liable in malpractice, and if death should result, he 
may be charged with manslaughter. 
"On the other hand, the dentist is only required to look to the 
natural and probable effects of the administration of an anes- 
thetic upon his patient." 
x"Liability for Treating Patient Without Consent.-Every 
person has the right to the inviolability of his person. This right 
forbids anyone, dentist, physician, surgeon or other as a general 
rule, to do any act involving the physical touching of the patient, 
without the patient's consent. 'The patient must be final arbiter 
as to whether he shall take his chances with an operation or take 
his chances of living without it. * * * Consent, therefore, of 
an individual must be expressly or impliedly given before a sur- 
geon may have a right to operate.' "2 
"If the practitioner operates without the consent of the pa- 
tient when he is in a condition to be consulted, he is liable in 
damages in an action for assault and battery, no matter how im- 
perative the practitioner may deem the operation."3 
The cases cited were in medical or surgical practice. In 
dentistry it will very seldom happen that urgent necessity for an 
immediate operation will arise when the patient is in such condi- 
tion as to make it impossible to consult him. It may happen when 
extracting teeth under an anesthetic, and consent should be ob- 
tained beforehand for such operation as may be necessary. 
"Consent of Relatives.-If the patient himself is of the age 
of discretion, it would seem that his consent is sufficient. It has 
been held in State v. Housekeeper4 that if a married woman con- 
sents to an operation on herself, it is not necessary to obtain the 
1Mikell, p. 124. 
2Kinkead, Torts, sec. 375; State v. Housekeeper, 70 Md., 162 (1888) 
8State v. Housekeeper, 70 Md., 162 (1888). 
470 Md, 162 (1888). 220 
DENTAL JURISPRUDENCE. 
consent of her husband also. Writers are not agreed, however, 
whether in the case of young children, or persons non compos 
mentis, the consent of the parent or guardian is necessary to jus- 
tify a practitioner in performing an operation.1 It has been held 
in one case that the consent of the father is not necessary to jus- 
tify an operation on a child aged seventeen years.2 Certainly such 
consent should be secured whenever possible, and the practitioner 
should never operate without such consent except in extreme cases 
and when he is prepared to take the consequences of a possible 
suit." 
"Consent Presumed.-The consent of the patient to a particu- 
lar act of the dentist need not be express. Such consent may be 
presumed if the facts warrant it, and a consent to the greater 
included a consent to the less if the less is included in the greater. 
Under our law Shylock would have been entitled to draw the 
blood necessary to taking the pound of flesh, if the contract for 
the pound of flesh had been valid. If a patient consents to have 
a tooth drawn, his consent will cover the necessary laceration of 
the gum and consequent spilling of blood. A consent to the ex- 
traction of a specifically designated tooth, however, is not a con- 
sent to the pulling of another tooth, either instead of or in addi- 
tion to the tooth indicated. This is true though the necessity for 
pulling the second tooth was greater than for pulling the first, 
and though that necessity was not discovered until the patient was 
under the influence of an anesthetic and hence unable to be con- 
sulted as to the extraction of the second tooth." 
Under such circumstances a dentist should do what he found 
indispensably necessary, and take his chances. But the proper 
way is to have the terms of consent cover what may be found 
necessary, instead of only some specific thing. 
"Consent may be presumed not only to what is necessary in 
the actual performance of the operation consented to, but to the 
extension of the operation, or even to the performance of another 
operation if the facts warrant the inference of consent. Whether 
they do warrant it is a question for the jury to decide." 
Effect of Admission of Lack of Skill.-So far as malprac- 
1See 1 Kinkead, Torts, sec. 376. 
2Bakker v. Welch, 144 Mich., 632 (1906). LIABILITY TO THE PATIENT. 
221 
tice cases are concerned, a short quotation from Mikell under 
this head will suffice. 
"If, when consulted, the dentist makes known to the patient 
his lack of knowledge and skill, or the patient is in any way fully 
aware of it, the latter cannot complain of the lack of that which 
he knew did not exist."1 
Liability for Malpractice of Others.- 
"1. Assistant.-The dentist is liable for malpractice not only 
for his own negligence, but for the negligent treatment of an 
assistant over whose actions in the premises the dentist has domin- 
ion and control; or for such treatment by a person who, under 
the circumstances, a reasonably prudent person would be justified 
in believing was aiding the dentist in his professional work; or 
who was held out to the public as his assistant; if the patient 
relying on such representations presented himself at the dentist's 
office for treatment, and submitted himself to a dentist in defend- 
ant's office, relying upon the defendant and not upon the indi- 
vidual who, in fact, treated him as the responsible head of the 
business."2 
"2. Partner.-A dentist is liable for the malpractice of his 
partner. It is immaterial whether the partner alone treated the 
patient, or whether he was treated jointly by both partners, or 
whether the defendant first treated the patient skillfully and his 
partner later, in the same, or another case, treated him unskill- 
fully or negligently."3 
"The doctrine is thus expressed by Simpson, C. J., in Hyrne 
v. Erwin:4 Tn a partnership the parties associated are, in one 
sense, agents of each other, and the act of one within the scope 
of the partnership or business is the act of each and all, as fully 
as if each was present and participating in all that is done. And 
each guarantees that within the scope of the common business 
reasonable care, diligence and skill shall be displayed by the one 
in charge. * * *" 
"3. Substitute.-While a dentist is liable for injury caused 
by the malpractice of his assistant, or partner, he is not liable for 
1Lorenz v. Jackson, 88 Hun. N. Y., 200 (1895). 
2Wilkins v. Ferrell, 10 Tex. Civ. App., 231 (1895). 
'Whittaker v. Collins, 34 Minn., 299 (1885). 
423 S. C., 226 (1885). 222 
DENTAL JURISPRUDENCE. 
the malpractice of another dentist whom he has recommended to 
the patient, the latter being in independent practice, and having 
no business connection with the former, and not being employed 
by the former as his agent."1 
"4. Druggist.-The dentist is not liable for the negligence 
of a druggist, over whom he has no control in filling a prescrip- 
tion."2 
"He is, however, liable for his own negligence in giving a 
wrong prescription, and if he has negligently given a wrong pre- 
scription, he is not excused by the fact that the druggist was also 
negligent in filling the prescription, if the prescription was filled 
as written."8 
"Effect of Contributory Negligence of Patients.-It is the 
duty of the patient to co-operate with his professional adviser, 
and to conform to proper and necessary treatment, and if he will 
not, or under the pressure of pain cannot, his neglect is his own 
wrong or misfortune, for which he has no right to hold the prac- 
titioner responsible."4 
"If, therefore, the patient disobeys the reasonable instructions 
of the dentist, he cannot recover damages even though the dentist 
did not exercise proper skill and care, if the patient's disobedience 
directly contributed to produce the injury. * * *"5 
"It is not sufficient to bar recovery that the patient was negli- 
gent, if his negligence only aggravated the effects due to the mal- 
practice of the dentist, but did not bring them about or conduce 
to them; such negligence of the patient merely goes to mitigate 
the damages he can recover, not to bar a recovery."6 
"Effect of Recovery of Fee.-In some states recovery by the 
dentist in a suit at law for his services, bars an action by the 
patient for malpractice founded on the same services. The reason 
for this rule is that the patient, in the suit against him for the 
dentist's fee, might have defended in whole or in part, by showing 
that in rendering the services sued for, the dentist had been guilty 
1Myers v. Holborn, 58 N. J. L., 193 (1895). 
2Stretton v. Holmes, 19 Ont., 286 (1889). 
3Murdock v. Walker, 43 Ill. App., 590 (1891). 
4Shearman and Redfield, Neg. 2nd Ed., sec. 615. 
5Hibbard v. Thompson, 109 Map., 286 (1872). 
6McCracken v. Smathers, 122 N. C., 799 (1898). LIABILITY TO THE PATIENT. 
223 
of malpractice. If he omits to set up his defense and a recovery 
is had against him, he cannot afterward litigate the question of 
malpractice."1 
"In other states it is held that the above rule applied only 
when, in a suit by the dentist for his fees, the patient appears and 
bases his defence on the ground that in rendering the services, the 
dentist was guilty of malpractice. If the patient does not appear 
in answer to the suit for services, or appearing, defends on some 
other ground than that of malpractice of the dentist, he is not 
barred from subsequently suing the dentist for malpractice."2 
The reason assigned for the latter view is that "the plaintiff's 
claim for damages resulting from malpractice constitutes a sepa- 
rate and independent cause of action," and besides that it might 
be unfair to compel the patient to present his claim for damages 
in a justice's court, where the amount in litigation is limited to 
$200.00. 
"Proof of Malpractice.-When a patient has brought suit 
against a dentist for malpractice, the burden of proof is on the 
patient. To establish his case he must prove: (1) The duty of 
the dentist to treat him properly, i. e., that the relation of patient 
and dentist subsisted between them; (2) That the dentist neglect- 
ed his duty; (3) That the patient suffered injury; (4) That the 
injury was caused by the negligence of the dentist. It is not suffi- 
cient to prove that he has not benefited by the treatment; the 
dentist dos not, in the absence of express agreement, undertake 
that his treatment will be beneficial. Nor can he recover by show- 
ing merely that his condition was worse after treatment than 
before; the dentist does not undertake that it shall be better. He 
only undertakes that he will treat the patient with ordinary skill, 
care and diligence. If he does his he is not ordinarily liable for 
the result." 
"While the burden of proving negligence is on the plaintiff, 
he is not required to prove it beyond a reasonable doubt, as in the 
1Bellinger v. Craigne, 31 Barb. N. Y., 534 (1860) ; Ely v. Wilber, 49 
N. J. L., 685 (1887). 
2See Bigelow, Estoppel (2nd Ed.) 98; Goble v. Dillon, 86 Ind., 327 
(1882); Ressequie v. Byers. 52 Wis., 650 (1881). 224 
DENTAL JURISPRUDENCE. 
case where the negligence is made the basis of a prosecution by 
the state, but only by a preponderance of the evidence."1 
"From the nature of the charge against the dentist, generally 
speaking, proof of his negligence can be made only by expert 
witnesses. * * *2 Negligence cannot be presumed." 
"The question whether a surgical operation has been un- 
skillfully performed or not is one of science, and is to be deter- 
mined by the testimony of skillful surgeons as to their opinion, 
founded either wholly on an examination of the part operated 
upon, or partly on such examination and partly on information 
derived from the patient; or partly on such examination, partly on 
such information and partly on facts conceded or proved at the 
trial." McClelland Civil Malpractice, 304 * * *" 
"The injury may be of such nature, however, as itself to show 
negligence, at least prima facie. In such a case the burden of dis- 
proving negligence is on the dentist. In Shockley v. Tusker3 the 
patient was severely burned by X-rays while undergoing treat- 
ment for appendicitis. In an action against the surgeon for mal- 
practice, the court said: 'We think the fact that plaintiff was 
severely burned is some evidence in itself that the treatment was 
improper.' " 
"When sued for malpractice the dentist should go to the 
trial prepared both by his own knowledge and the evidence of 
experts to disprove the charge of negligence. Many verdicts have 
gone against practitioners for lack of this precaution. * * *" 
"Damages for Malpractice.-The damages recoverable in an 
action against a dentist for malpractice may be: (1) Nominal; 
(2) Compensatory; or (3) Punitive. Nominal damages are 
awarded by the jury where negligence of the dentist has been 
proved but it is impossible to dsitinguish between the conse- 
quences of the malpractice and the consequences of the trouble 
the dentist was treating. Nominal damages are usually computed 
at six cents."4 
"Compensatory damages are damages designed to compen- 
sate the patient for the injury suffered by the maltreatment of the 
1Wood v. Wyeth, 106 N. Y., App. Div., 21 (1905). 
246 Kan., 78 (1891). 
3127 Iowa, 456 (1905). 
4Becker v. Janiski, 15 N. Y. Supp. 675 (1891). LIABILITY TO THE PATIENT. 
225 
dentist. They are measured by the loss or injury to the plaintiff 
directly and naturally resulting from the dentist's fault or negli- 
gence, not alone by such loss or injury as an ordinary man might 
have expected would follow from the negligence."1 
"In estimating the damages suffered by the patient, the jury 
should take into consideration all the circumstances of the case, 
the pecuniary loss, resulting from inability to labor, the bodily and 
mental suffering, loss of time, actual expenses incurred by the 
patient, the ephemeral or permanent character of the injury, and 
the circumstances of the injured party, and award the patient such 
a sum of money as will compensate him for what he has suffered, 
or will suffer as the result of the dentist's treatment."2 
"Punitive or exemplary damages are given by way, not only 
of compensation to the patient, but of punishment to the dentist. 
The jury may properly award them when the dentist in treating 
his patient has been guilty of gross negligence amounting to reck- 
less indifference, or where the manner of treatment shows an 
evil motive toward the patient." 
If a dentist is so unfortunate as to be sued for malpractice, he 
should seek carefully to find if there has been any contributory 
negligence on the part of the patient, either in a failure strictly 
to follow instructions, or to take such care as a person of good 
sense ought to take in the circumstances, and he should insist also 
upon a careful discrimination between the harm caused by the 
disease or injury itself (for which, of course, no claim can be 
made) and the pain or injury caused by fault of the dentist. And 
he will need to call in some of his friends as expert witnesses to 
testify to his general character, ability and skill, as well as to his 
treatment of the case in question. 
"Statute of Limitations.-In some states there are statutes 
of limitation expressly applicable to actions for malpractice. In 
those states, if the patient does not bring suit within the time 
prescribed by the statute he cannot, of course, recover. In most 
states there is no statute expressly applicable to actions for mal- 
practice. In these states, however, there are statutes of limita- 
v. Lake, 71 N. H., 90 (1901). 
2330 Cyc., 1590. 226 
DENTAL JURISPRUDENCE. 
tions applying to actions for breach of contract and sometimes a 
different statute applying to actions of tort. As a patient may 
ground his suit for malpractice either on the breach of the con- 
tract of the dentist to treat him with care and skill, or may ground 
it on negligence, what period of limitation will apply will depend 
on the remedy chosen by the plaintiff. The statutes of the differ- 
ent states vary in the length of time they prescribe within which 
the action must be brought." CHAPTER XX. 
LIABILITY OF THE DENTIST TO THE STATE LIABILITY FOR ILLEGAL 
PRACTICE-THE DENTIST AS A WITNESS-PRIVILEGED COM- 
MUNICATIONS-EXPERT TESTIMONY-IDENTIFYING THE DEAD 
JURY DUTY. 
*"1. In General.-The statutes regulating the practice of 
dentistry usually provide that it shall be a misdemeanor to prac- 
tice dentistry without complying with the provisions of the stat- 
utes as to license, registry, etc. Under these statutes it is imma- 
terial how well qualified a person is to practice from the point of 
view of the profession; if he has not strictly complied with the 
law of the state in which he attempts to practice, he is liable to 
criminal prosecution, and payment of a fine ranging from twenty 
to five hundred dollars, and in some cases to both fine and im- 
prisonment." 
"By the statutes of some states not only is the person prac- 
ticing liable to the punishment provided by law if he fails to 
register his license when and where he begins to practice, but he 
is likewise liable if he afterwards removes into another county of 
the same state and there practices, or if, while still practicing 
where he is registered, he practices in any other county."1 
Most of the statutes make some provision for the practice 
necessary by students in obtaining their professional education. 
Some, like that of Illinois, restrict such practice positively 
to the dental school; others allow it under the personal super- 
vision of a preceptor, in his office, and at least one state allows 
this during the interval between sessions of the dental school. 
Under this general head of liability for illegal practice Mikell 
elaborates through six pages. It is not necessary for us to go into 
all those minute details of all the different possibilities of illegal 
practice. "2. Liability for practicing under a false pretence. * 
* * Some statutes make it an indictable offence for an un- 
*Mikell, page 140. 
1The Illinois law requires registry in each county in which one 
practices. 228 
DENTAL JURISPRUDENCE. 
qualified person to use the title 'dentist' or 'dental practitioner' or 
any 'name, title, addition or description implying that he is regis- 
tered, or that he is a person qualified to practice dentistry.' " The 
Illinois law makes practicing under an assumed name one of the 
grounds for refusing a license or revoking a license. It is not 
necessary to go into the details under this head, which occupy two 
pages of Mikell's book. 
"3. Liability for practicing after Revocation of License.- 
The statutes, as a rule, provide for the revocation of the license 
in certain events. As we have seen elsewhere a license once 
granted cannot be revoked without opportunity to the holder to 
be heard in his own defense." 
*"While the statutes generally make it a crime to practice 
without first obtaining a license or certificate, they do not gen- 
erally, in terms, provide that one whose license has been revoked 
shall be guilty of a crime if after revocation he knowingly con- 
tinues to practice. It would seem in reason, however, that such 
person should be in the same position as though he never had 
had a license. Under a rule of the criminal law, however, that 
penal statutes shall be strictly construed, that is, construed in 
favor of one accused of a crime, it has been held that when the 
statute did not in terms make it a criminal offence to practice 
after a license has been revoked, such practice was not indict- 
able."1 
I have been assured by a good lawyer, a man who was for- 
merly an honored judge in one of the Chicago courts, that the 
above is not good law, and he assured me positively that the 
status before the law of a man whose license has been revoked 
is the same as if he had never received a license. 
"4. Burden of Proving Right to Practice.-Where a statute 
makes it an indictable offence to practice without having complied 
with the requirements of the statute, the burden of proving that 
the accused has complied with such requirements is generally on 
the accused."2 
"5. Construction of Statute.-On a prosecution for prac- 
*Mikell, page 148. 
*77 Cal. 164 (1888) ; Williams v. People, 17 Ill. App., 274 (1885). 
2People v. Fulda, 52 Hun. N. Y., 65 (1889) ; Williams v. People, 20 
Ill. App., 92 (1886). LIABILITY TO THE STATE. 
229 
ticing without compliance with the requirements of the statute, the 
statute will be strictly construed in favor of the defendant, and if 
the facts of the case do not bring it clearly within the terms of the 
statute, he cannot be convicted."1 
"6. Statute of Limitation.-In some states a prosecution 
for illegally practicing dentistry is barred if not brought within 
a certain time after the act or acts relied on as constituting the 
practice were done. Where such statutes are in force, the bur- 
den of proving that the offence was done within the time pre- 
scribed by the statute is on the prosecution."2 
*"Assault and Battery consists in any unlawful touching of 
the person of another, and is a crime. If a dentist should without 
the consent of the patient, pull a tooth, or perform any other 
operation on the patient, he would be liable, not only for a civil 
suit for damages, as we have seen, but also to an indictment for 
this crime. A dentist should always, therefore, inform a patient 
what he proposes to do before operating, and procure the patient's 
consent thereto. Such consent may be general or specific. If the 
patient puts himself into the hands of the dentist, telling the den- 
tist to do whatever may be necessary, this will amount to a consent 
by the patient to any act of the dentist which in his honest and 
bona fide judgment is necessary." 
"If, however, the consent of the patient is to a specific act, 
say to the pulling of a certain tooth, and the dentist should de- 
liberately pull another tooth, the dentist would be guilty of as- 
sault and battery. Nor would it be any defence that the extrac- 
tion of the tooth pulled was necessary to the welfare of the pa- 
tient. If the tooth extracted was pulled, not deliberately, but by 
mistake, then whether the dentist would be liable for assault and 
battery would depend on the question whether the mistake was 
an honest one, and one that a cautious and skillful dntist would 
have made under the circumstances. If it were, the dentist would 
not be guilty; but if the mistake were due to negligence it seems 
that the dentist would be guilty. If the tooth wrongfully pulled 
"assault and battery." 
*Mikell, page 151. 
1Robinson v. People, 23 Col. 123 (1876). 
2State v. Newton, Wash. 81 Pac., 1002 (1905). 230 
DENTAL JURISPRUDENCE. 
were a front tooth, the dentist would be guilty of the graver crime 
of mayhem. Mayhem being defined as the violently depriving 
another of the use of such of his members as may render him less 
able, in fighting, either to defend himself or annoy his adver- 
sary."1 
"rape." 
"There have been a number of accusations of rape brought 
against dentists. Rape is the carnal knowledge of a woman by a 
man by force and without her consent. It has long been decided 
that intercourse with a woman while she is unconscious is by 
force and without her consent, and therefore rape."2 
"As said many years ago by a great judge, rape is the crime 
of all others of which it is easiest to accuse and which it is 
most difficult to disprove. Add to this that on a charge of this 
crime the sympathies of a jury are always strongly on the side 
of the woman, that the punishment on conviction is very severe, 
and that even if the charge is disproved, the defendant's reputa- 
tion is seriously injured and his business destroyed, it is readily 
seen that precautions should be taken against even a charge of 
the crime. If possible, the dentist should always, when treating 
a woman, have someone in his office other than himself and his 
patient. He should never, on any acount, place a female patient 
under the influence of an anesthetic without a third person, pre- 
ferably a woman, present during the whole time the patient is 
under the influence of the drug, for it is a well known fact that 
one of the effects of anesthetics is to induce hallucinations of a 
sexual character." 
"homicide."3 
"* * * If the patient should die as the result of negli- 
gence on the part of the dentist, the dentist may find himself 
involved in a charge of manslaughter." 
"Manslaughter is committed in causing the death of a person 
by negligence. The negligence may consist either in doing an act 
or in omitting to do an act. No intent to cause the injury, no ill 
1Blackstone, Conn., 203. 
2Payne v. State, 40 Tex., Cr. R., 202 (1889) 
3Mikell, page 153. LIABILITY TO THE STATE. 
231 
will to the person injured, not even an actual knowledge that 
death is likely to result from the act or omission is necessary to 
constitute the crime. If the death of the patient was the result 
of the negligence of the dentist, his inattention or ignorance, he 
is guilty of manslaughter. By the weight of authority the same 
rules apply whether the dentist is practicing with or without 
authority of law." 
"A dentist is not guilty of manslaughter merely because a 
patient dies from his act in performing an operation or adminis- 
tering an anesthetic, if it is done in good faith, even though the 
dentist made a mistake or did not possess the highest skill. The 
act or omission must be negligent to make him guilty. As to just 
what degree of negligence is necessary, the courts are not agreed. 
It is usually declared that it must be gross negligence."1 
PRACTICING ON SUNDAY. 
"We have seen in treating of contracts that it is generally 
forbidden to labor on Sunday, and that contracts for work on 
that day are void. Many statutes not only make contracts made 
on Sunday void, but also make it a criminal offence to work on 
that day. Under these statutes a dentist is as liable to indictment 
as anyone else, unless he can bring himself within the exceptions 
usually made in the statute as to works of necessity." 
"THE DENTIST AS A WITNESS." 
"SECURING ATTENDANCE." 
"Ever since the statute of Elizabeth enacted in 1562-63, it 
has been recognized as fundamental that the public has a right 
to every man's evidence in a civil suit pending in a court of law, 
and since 1701 that they have the same right in a criminal suit.2 
The dentist is not excepted from this rule and he, like any other 
citizen, is bound to attend the trial of any case in court when 
properly summoned thereto to testify, like any other witness, to 
facts of simple observation of eye and ear. To this end a process 
called a subpoena is issued from the court and served on the wit- 
1See 2 Bishop, New Criminal Law, sec. 664. 
24 Wigmore, Ev., sec. 2190. 232 
DENTAL JURISPRUDENCE. 
ness ordering him to appear at a certain court on a certain day to 
testify what he knows in a cause between certain parties, and to 
attend the court for that purpose until discharged. The service 
should be made a reasonable time before the day specified for his 
attendance, and the witness is usually not held in default unless 
the service of the process conforms to these requirements."1 
"Sometimes expert testimony is as necessary as that of or- 
dinary witnesses. The following quotation from C. J. Biddle in 
Dills v. State expresses the point of view of the state as regards 
both common and expert testimony.* 'The administration of 
justice is the highest duty and crowning excellence of a state, 
and without the power to compel a witness to testify, this duty 
would be embarrassed and this great public good unattained. And 
in this we can perceive no difference whether a witness is called 
as an expert or as to ordinary facts. In judicial trials justice 
demands the truth as to facts in all departments of human knowl- 
edge, and the State has the right to compel witnesses to appear 
and testify concerning all matters within their knowledge be- 
longing to human affairs wherein their testimony is not prohibited 
by law.' " 
Theoretically an expert may be compelled to appear and tes- 
tify, but practically he will rarely be forced to do so unless he is 
willing. Partly because an unwilling expert witness is less likely 
to prove valuable and partly because it is easier to find another 
expert who will be willing. A man should refuse to give expert 
testimony if he feels that he has too little theoretical knowledge 
or practical experience in the particular matters in question to 
enable him to be of use in the promotion of justice in the case. 
EXCUSES FOR NON-ATTENDANCE. 
"The dentist, like other witnesses, is excused from attending 
on court if he cannot do so without direct and serious danger to 
his health or to his family's welfare. In rare cases a witness 
has been excused from attendance where the distance to be trav- 
eled was great, the interruption to his business considerable, and 
his testimony not very important. The general rule is well ex- 
1Wigmore, Ev., sec. 2199. 
♦Mikell, p. 156. LIABILITY TO THE STATE. 
233 
pressed by Cowen, J., in People v. Davis:1 'The process of the 
subpoena demands great and extraordinary efforts on the part of 
the witness to obey. It commands him expressly to lay aside his 
business and excuses. * * * It is not denied that serious 
sickness in his family, such as would prevent a prudent father or 
husband from leaving home on his own important business, would 
save him from the imputation of a contempt and, perhaps, from 
an action. But such a case ought clearly to be shown to the 
court. Above all, where the summons allows him full time, he 
should struggle to get ready as he would to go abroad on his own 
pressing business. If inevitably disappointed, after exhausting 
every reasonable expedient, he ought certainly be excused from 
the payment of a penalty which presupposes some neglect at 
least.' "♦ 
WITNESS FEES. 
"The statute of Elizabeth provided, and ever since that 
statute it has been required, that the witness be tendered in ad- 
vance of the trial, and at the time of the serving of the subpoena, 
the amount of the expense to which he will be put in attending 
the trial, and on demand of such payment, at the time of service 
of process, and refused, the witness is not bound to attend."2 
If he does attend, however, he cannot refuse to testify be- 
cause his expenses have not been paid. "This law of the tender 
of expenses in civil suits differs in the different states. Generally 
the statutes provide for the tender of expenses for one day's at- 
tendance and for travel one or both ways. In criminal cases by 
statute in most jurisdictions, neither the prosecution nor the ac- 
cused is required to tender the witness' expenses in advance."8 
Expenses, in the preceding paragraphs, include one day's pay, 
or witness fee, and the same rules apply to the expert witness as 
to the non-expert, except that as to the amount of the fee de- 
mandable by the expert witness there is much difference of opin- 
ion. 
*15 Wend. (N. Y.) 602, 608 (1836). (Quoted in Wigmore Ev., sec. 
2204.) 
♦Mikell, p. 157. , 
2Wigmore Ev., sec. 2203. Mikell, p. 158. 
3Wigmore Ev., sec. 2201. Mikell, p. 158. 234 
DENTAL JURISPRUDENCE. 
"It is contended on the one side-chiefly by the experts 
themselves-that they should not be required to attend and testify 
on tender of a fee equal only in amount to that demandable by 
non-expert witnesses. It is contended that the professional ex- 
perience and knowledge of the expert are his individual property, 
and that neither the public nor an individual has a right to compel 
him to bestow them without adequate compensation in addition 
to the fee paid the non-expert witness," etc. Mikell quotes a 
court decision in "Buchman v. State"1 upholding this view and 
then quotes Professor Wigmore in opposition to it, as follows: 
" 'The grounds upon which it may be concluded that no dif- 
ferent privileges should be established for expert witnesses than 
for others may be summarized as follows: (1) The expert is 
not asked to render professional services as a physician or chemist 
or engineer; he is asked merely, as other witnesses are, to testify 
what he knows or believes. (2) The hardship upon the pro- 
fessional man who loses his day's fees of fifty or one hundred or 
more dollars is no greater relatively than that upon the store- 
keeper or mechanic who loses his day's earnings of two or ten 
dollars; each loses his all for the day; moreover, though the re- 
coupment of the witness fee of one or two dollars is relatively 
greater for the mechanic, yet his risk of losing continued em- 
ployment by enforced absence is greater than for the professional 
man and more than equalizes the hardship to him. (3) It is only 
by accident and not by premeditation or deliberate resolve with 
reference to the litigation, that either has become desirable as a 
source of evidence; neither the expert in blood stains nor the by- 
stander at a murder has expressly put himself in the way of 
qualifying as a witness, so that no claim based on a special dedi- 
cation of services for the case can be predicated of one rather 
than the other. (4) The practical difficulty of discriminating be- 
tween various kinds of experts and their earnings, and between 
that testimony which they give as such and that which they give 
as ordinary observers, would be serious, and would introduce con- 
fusion and quibbling into the law. (5) Finally, so far as con- 
cerns the policy of doing whatever should attract and not deter 
desirable witnesses, no one will ever refrain from entering a pro- 
159 Ind., 1 (1877). Mikell, p. 158-160. LIABILITY TO THE STATE. 
235 
fessional calling because of the fear of having to spend his time 
gratuitously at trials; and yet an ordinary person is often deterred 
from observing (or disclosing his observation) a street accident 
or the like, because of the apprehension of being summoned as a 
witness; so that the latter sort, if either, should be the one to be 
encouraged by special compensation.' Professor Wigmore adds: 
'It has therefore been generally held that an expert witness is not 
entitled to demand additional compensation, other than the or- 
dinary witness fees, before attending the testimony on the 
stand.' "x 
"While, generally, the expert witness cannot demand before 
testifying, in the absence of a statute, the tender of compensation 
in amount above that of the non-expert witness, statutes have 
been passed in some states providing for the payment of addi- 
tional compensation to expert witnesses. These statutes com- 
monly provide that the amount of such fees shall be fixed by the 
court."2 
If it is necessary for an expert to do any work preliminary 
to his appearance in court, as for instance, to make a postmortem, 
or to examine or dissect a jaw, or make a chemical analysis, he 
may demand a professional fee for such work. 
Sometimes the opinion of an expert is required upon facts 
or opinions brought out in the trial through other testimony than 
his own, which requires his attendance at a part or all of the 
trial besides the giving of his own testimony. When this is de- 
manded of him he may refuse absolutely, or may require extra 
compensation for it. 
"While in most jurisdictions in the United States the ex- 
pert witness cannot demand extra compensation as a witness, it 
is the practice in all important cases to pay him additional com- 
pensation, and such payment is not regarded as against the policy 
of the law." 
The above paragraph indicates the best practical solution of 
the question. An expert witness should have an understanding 
beforehand with the party in whose behalf he is to testify, as to 
the special compensation he is to receive. 
14 Wigmore Ev., sec. 2203. 
2Ibid. 236 
DENTAL JURISPRUDENCE. 
"A promise to pay an expert witness for giving testimony 
on the condition that his testimony leads to a determination of the 
suit in favor of the person making the promise is against public 
policy and void."1 
PRIVILEGED COMMUNICATIONS. 
"Confidential communications between attorney and client, 
priest and penitent, physician and patient, and husband and wife, 
sometimes relate to matters which then are, or subsequently be- 
come the subject of judicial inquiry. When, by law, these com- 
munications are excluded from disclosure in evidence, they are 
termed privileged communications. When the disclosure of such 
communications is forbidden by the law, it is upon grounds of 
public policy on the presumption that 'greater mischief would 
probably result from requiring or permitting their admission than 
from wholly rejecting them.'"2 
Under the common law communications between an attorney 
and his client only were "privileged." Other privileged com- 
munications are so only by statute law, and in most of the states 
such laws have been passed relating to communications between 
patient and physician for professional purposes, between priest 
and penitent in confessional, and between husband and wife. 
Mikell says "it is believed that there is not as yet any statute ex- 
pressly forbidding dentists, eo nomine, to testify as to informa- 
tion acquired by them in their professional capacity." Dentists 
will therefore not be excused from testifying unless the courts 
hold them to be included under the general terms, "physicians 
and surgeons," as used in the statutes. Judging from decisions 
in other matters it seems likely that some courts will so include 
them and others would not. Mikell says he has only been able to 
find one case in point, "People v. DeFrance."3 In this case the 
dentist was required to testify and the Supreme Court upheld the 
lower court, and stated the reasons for it at some length. Mikell 
urges several objections against this decision and evidently be- 
lieves that as regards privileged communications dentists should 
1Pollak v. Gregory, 9 Bosw. (N. Y.) 116 (1861). Mikell, p. 163. 
2Brothers Dental Jurisprudence, p. 165-166. 
3104 Mich., 563 (1895). LIABILITY TO THE STATE. 
be included with phyicians and surgeons. It is desirable that the 
laws be amended to include dentists which would end all uncer- 
tainty about it. 
Leslie Childs, referring to the same case, says: "The fore- 
going case was decided in 1895, and of course the court in its rea- 
soning had in mind the status and field of operation then occu- 
pied by the dental profession. The thought then occurs, that 
in view of the progress and expansion of dental science since 
that time, were the court deciding the question before it at this 
time, might not a different answer be expected?" 
EXPERT TESTIMONY. 
"1. In General.-Ordinarily a witness testifying in a case 
must confine his testimony to facts; he is not allowed to state 
his opinion or judgment from other facts as premises; the jury 
are as capable as he of forming their opinion. When, however, 
due to the special knowledge or special qualifications of a wit- 
ness, his opinion will add something valuable which the jury have 
not and cannot otherwise obtain from a rehearsal of the facts, 
such opinion will be received in evidence."1 
" 'Experts' are persons examined as witnesses in a cause, who 
testify in regard to some professional or technical matter arising 
in the case, and who are permitted to give their opinions as to 
such matter on account of their special training, skill, or familiar- 
ity with it."2 
"The dentist is an expert witness within the definition, and 
therefore may be called upon to give expert as well as ordinary 
evidence. * * * The position of an expert witness is much 
more difficult than that of the ordinary witness. The latter testi- 
fies to facts he has seen. If he testifies truthfully the worst he 
can be convicted of is that of making a mistake in what he thought 
he saw. The former testifies to his professional opinion. His 
opinion is the result of his knowledge of the learning of his 
chosen profession, or that learning plus his observation of the 
dental facts involved in the given case. If he is convicted of error 
in his testimony, it shows either a lack of learning in the profes- 
xSee 1 Wigmore Ev., sec. 557. 
2Black, Law Diet. (2nd Ed.) 466. 238 
DENTAL JURISPRUDENCE. 
sion in which he claims to be an expert, or a lack of care, or 
ignorance in the observation of the dental facts on which his opin- 
ion is based. In either case his reputation as a dentist suffers; 
not to speak of the humiliation he undergoes at the time." 
When a dentist is called upon to give expert testimony he 
should investigate and study with the greatest care all of the facts 
upon which his opinion is to be based, and should consult as fully 
as possible the available authorities on the subject, so that if coun- 
sel asks him if such and such an authority does not hold a differ- 
ent opinion than his own, he may not be taken by surprise and 
unprepared to answer. 
He should remember that other experts of equal or greater 
knowledge and experience may be called by the other side, and 
that the lawyers of both sides may have studied the case and the 
authorities so carefully as to show an unexpected amount of tech- 
nical knowledge in the dentist's own field, and every effort will 
be made to confuse him or induce him to contradict himself. An 
expert witness naturally feels reluctant to appear ignorant about 
anything pertaining to the professional matter upon which he is 
called to give testimony, but it is far better to confess ignorance 
than to pretend to knowledge or experience he does not possess, 
or to guess at answers he is not sure about. The cross examina- 
tion is pretty sure to expose any weak points or uncertainties in 
his testimony, and "the only hope the witness can entertain of 
withstanding these attacks, lies in his having told the simple truth, 
without exaggeration, evasion or reservation, in a simple, straight- 
forward manner after thorough preparation." 
A witness should avoid as far as possible the use of technical 
words, the meaning of which the jury may not understand. 
Taylor1 relates a case in which, on a trial for assault, a sur- 
geon in giving his evidence testified that, on examining the prose- 
cutor, he found him suffering "from a severe contusion of the 
integuments under the left orbit, with great extravasation of 
blood and ecchymosis in the surrounding cellular tissue, which 
was in a tumefied state, and that there was considerable abrasion 
of the cuticle." Judge: "You mean, I suppose, that the man 
1Medical Jurisprudence, 52. LIABILITY TO THE STATE. 
239 
had a black eye." Witness: "Yes." Judge: "Then why not 
say so at once." 
"Use of Books.-In England and in the great majority of 
states in this Union, medical books are not admissible in evi- 
dence to show the opinion of their authors."1 
A man's opinion may be formed or adopted from those ex- 
pressed in books, but it must be his own opinion he testifies to and 
not that of the books. If, however, a witness has referred to 
some book as the authority for his opinion the book may be read 
in court for the purpose of contradicting the witness. 
Probably the most important cases in which dental expert 
witnesses are called are for the purpose of identifying the dead 
who have been mutilated or disfigured or burned so as to make 
identification otherwise difficult or impossible. The correspon- 
dence of the teeth and the operations upon them with the records 
of the dentist who has had charge of them has in a considerable 
number of cases infallibly established identity when all other 
means had failed. A number of Chicago dentists accomplished 
this for some of the victims of the fire in the Iroquois Theatre 
who were otherwise unrecognizable. 
A very important and well known instance of this sort of tes- 
timony occurred in the early fifties in the Webster-Parkman mur- 
der trial. Professor Webster (of the chemical department of 
Harvard University) had killed Mr. Parkman, his landlord, prob- 
ably in a fit of anger, under some provocation, and had consumed 
the body and clothes in his laboratory furnace, in the ashes of 
which were afterward found a lump of gold, some carved blocks 
of porcelain teeth and some fragments of bones, among them part 
of the lower jaw. Dr. Keep, the dentist who had made the teeth, 
had preserved the model, marked with Mr. Parkman's name. 
The carved blocks fitted this model and Dr. Keep was able posi- 
tively to identify them as the ones he had carved for Mr. Park- 
man, and set on gold plates, the gold being melted in the furnace. 
The testimony of Dr. Keep was one of the strongest links in the 
chain of evidence which convicted Professor Webster, who after- 
ward confessed the murder. 
1Contra Iowa and Alabama; See State v. Winter, 72 Iowa, 627 (1887) ; 
Stoudemuier v. Williamson, 29 Ala., 558 (1857). DENTAL JURISPRUDENCE. 
Rehfuss in his Dental Jurisprudence gives several other in- 
teresting examples of expert testimony for identification by means 
of the teeth. 
LIABILITY OF THE DENTIST TO JURY DUTY. 
"The statutes of some states contain a provision expressly 
excusing dentists from serving on juries. * * * Yhe exemp- 
tion is a privilege, however, not a disqualification, and if a dentist 
who has been drawn on a jury chooses to serve he cannot be 
rejected by the parties to the suit merely because of his exemp- 
tion."1 
Physicians are generally exempt by statute and in the states 
where there is no statute specially exempting dentists they would 
be required to serve unless the courts were to class dentists, for 
this purpose, with the medical profession. An increasing number 
of courts seem disposed to do this, but Mikell says "the question 
has arisen once under such a statute in State v. Fisher."2 In 
this case the Supreme Court of Missouri by a bare majority, four 
to three, refused to exempt dentists under the statute exempting 
a "person exercising the functions of a * * * practitioner of 
medicine." Mikell quotes at length the decision of the majority 
of the court and also the dissenting opinion of the minority. 
Leslie Childs relates fully this same case and makes the fol- 
lowing comment: 
"So we have both sides of the question under discussion 
presented in this Missouri case. And while, of course, the ma- 
jority opinion announces the law of the case, there is no gain- 
saying the fact that the reasoning in the dissenting opinion is 
very persuasive. However, in fairness to the majority opinion, 
it should be remembered that the question before it was not 
simply whether a dentist was a practitioner of medicine, but 
rather whether a dentist was a practitioner of medicine within the 
meaning of the Missouri statute exempting such from jury duty. 
With this in mind it is obvious that the court was presented with a 
difficult question as is shown by the disagreeing opinions 
rendered." 
*24 Cyc, 208. 
2119 Mo.. 344 (1893). LIABILITY TO THE STATE. 
241 
Efforts should be made to have specific enactments passed 
in the states that have not yet done so, though it must be admitted 
that since the exemption is made for the benefit of the public 
and not for the benefit of the profession, there is much less urgent 
reason for it in the case of dentists than in the case of physicians. CHAPTER XXL 
INCLUSION OF BOOKS IN POLICY OF INSURANCE. 
It will be useful to refer to a few other matters contained 
in Leslie Childs' "Law for the Dentist." In the Cosmos, Dec. 
1922, he refers to a case that is of sufficient interest to quote in 
full. "The question of whether or not a dental library is included 
within the meaning of the terms of a fire insurance policy, in- 
suring the 'instruments, appliances and material incidental to a 
dental office,' was passed upon in American Fire Insurance Com- 
pany vs. Bell, Tex. Civ. App. 11. And as this decision is probably 
the only authority on the precise point to be found in the books, 
it becomes one of considerable interest to the dental profession, 
and well worth the attention of a brief review." 
"In this case the insured, a dentist, entered into a contract of 
insurance covering the equipment of his office against loss by 
fire. The policy of insurance contained, among other things, the 
following description of the property insured:" 
"Office and sitting room furniture, dental chairs, gas appa- 
ratus, vulcanizers, electric motors, screens, pictures, paintings 
and their frames, at not exceeding cost, ornaments, instruments, 
appliances and materials incidental to a dental office." 
"Thereafter the property insured was destroyed by fire and 
a dispute arose over the settlement under the terms of the policy. 
The matter reached the courts and in denying the claim of the 
dentist, that 350 dental books, which it was alleged had been dam- 
aged in the sum of $800, should be included in the loss by the 
terms of the policy, it was in part said 
"Dental books may be, and doubtless are, very necessary to the 
proper operation of dental offices, but they cannot be classed as 
furniture, chairs, gas apparatus, vulcanizers, electric motors, 
screens, pictures, paintings, 'instruments, appliances and material 
incidental to a dental office.' The word 'appliances' is very com- 
prehensive in its meaning, but has never been so broadened and 
expanded as to comprehend books, and the close conjunction in 
which it is used with the word 'material' shows clearly that it has INCLUSION OF BOOKS IN INSURANCE 
243 
reference to mechanical appliances, in connection with which the 
word is generally used." 
"In the light of the foregoing holding it is clear that where a 
dental library is sought to be included in a policy of insurance 
insuring office equipment, it should be specifically set out. If this 
is done there can be no dispute over this phase of the subject, 
in the event of a loss, and when the value of even a good work- 
ing dental library is taken into consideration, it would seem but 
prudent that it be protected along with the other office equipment." 
If it is desired to insure records, account books, X-rays, 
models and such like the value of which has little or no relation 
to their cost, it might be well to have a definite sum for them 
named in the policy. 
It is better to say "books" and not use the adjective "dental" 
in an insurance policy. 
JUDICIAL CONSTRUCTION OF INDEMNITY INSURANCE POLICY. 
In the Cosmos for November, 1922, Leslie Childs reports a 
case, "Betts vs. Massachusetts Bonding and Insurance Company, 
90 N. J. La. 632." Dr. Betts was sued for the malpractice of his 
assistant and judgment was entered against him, which he paid 
and then sued the insurance company for indemnity under his 
policy, which contained these two clauses. "The defendant com- 
pany agreed to protect him 'against loss from the liability im- 
posed by law upon the assured from damages on account of bodily 
injuries or death suffered by any person or persons in conse- 
quence of any alleged error or mistake or malpractice, by any 
assistant of the assured while acting under the assured's in- 
structions.' " 
The policy also carried certain conditions, among them being 
condition "B," which, to quote the language of the report, pro- 
vided as follows: 
"The company shall not be liable under the policy for any 
claim against the assured or any assistant arising from the viola- 
tion of any law or ordinance on the part of the assured." 
Dr. Betts' assistant, Dr. Snively, who had committed the 
malpractice complained of, had no license to practice in the State 
of New Jersey. Of course this gave the insurance company a 244 
DENTAL JURISPRUDENCE. 
complete defence against the claim of Dr. Betts for indemnity 
under the policy, and it seems strange that Dr. Betts would have 
gone into court at all under such circumstances. However, he 
did obtain a judgment in the lower court against the insurance 
company, which was reversed on appeal, in the higher court. 
OVERLAPPING INTO MEDICINE. 
Leslie Childs, in Cosmos, October, 1922. "The question of 
the limitations upon the practice of dentistry in respect to over- 
lapping into the field of medicine or general surgery, appears to 
be one of interest to dentists in general. Especially does this 
seem true in cases where a dental practitioner is perhaps spe- 
cializing in oral surgery, for example, and does not hold an M. D. 
degree in addition to his D. D. S." 
"But a careful search of the books discloses little authority 
upon the point in question, and the writer has not found even 
one case which contains anything like an exhaustive discussion 
of this feature of dental jurisprudence." 
However, in re Carpenter, 196 Mich., 561, a certain phase 
of the question was up for decision, which entailed a considera- 
tion of whether or not certain acts performed by a dentist would 
amount to the practice of medicine. So while the decision did 
not require the announcement of any broad rules on limitations 
of the practice of dentistry in respect of overlapping into medi- 
cine or general surgery, it did hold that the acts set forth did not 
amount to such an overlapping, and in view of the paucity of 
authority upon the subject, its holding becomes one of consider- 
able interest and value." 
"The case was an incurable cancer of the mouth which was 
treated by the dentist in consultation with and under the direction 
of the attending physician. The dentist's bill, greatly abbreviated, 
was as follows: INCLUSION OF BOOKS IN INSURANCE. 
245 
To treating and cleansing cancer of the mouth three 
times a day, 77 days at $2.00 per day $154.00 
To treating and cleansing cancer four to six times 
a day, 64 days at $3.00 a day 192.00 
April 14, 1915, Cocain and antiseptic 4.00 
June 1, 1915, Cocain and antiseptic 4.00 
June 23, 1915, Cocain and antiseptic 4.00 
$358.00 
"Payments had been made and the dentist sued the estate of 
the patient for a balance of $138.00. The estate refused payment 
on the ground that in treating the case the dentist was practicing 
medicine without the qualifications prescribed by law. The lower 
court allowed the claim in full and the case was appealed. The 
higher court affirmed the award." 
Mr. Childs quotes the decision at considerable length; the 
important part of it is briefly as follows: 
"We are of the opinion that claimant was entitled to recover 
upon either of two theories: First, that the services rendered 
were those of an ordinary nurse under the direction of a compe- 
tent and duly qualified surgeon; and, second, that they were ren- 
dered by claimant as a duly qualified dentist under the provision 
of the law." INDEX 
Acts, responsibility for, 46 
Advertised matters, dentists recom- 
mending, 146 
Advertising, professional, 124 
Altruism and Egoism, 37 
American Dental Association, code 
of ethics of, 151 
American Medical Association, code 
of ethics of, 147 
Announcements to public, 125 
Art, effect of, upon the soul, 86 
"Assault and battery," on patient by 
operating without consent, 219 
Benevolence, 92 
Bodily life, 63 
Body, function of, 63 
Books, as evidence, 239 
Books, insurance of, 242 
Calmness, 61 
Character and happiness, 39, 41 
Children, instruction of, 128 
Christianity and ethics, 14 
Claims, interest on, 202 
Cleanliness, 76 
Clothing as an index of character, 70 
Commissions and split-fees, 144 
Communications, privileged, 236 
Compassion and benevolence, 92 
Compensation, liability for, 194 
Conduct and ethics, 18 
Conduct, based on resolutions, 45 
Conscience, 26, 32 
individual and moral evolution, 36 
individualization of, 35 
Consultations, 161 
Contract of employment between den- 
tist and patient, 188 
Contracts, express, 190 
implied, 191 
Courage, types of, 57 
Criticism, avoidance of, 130 
Crouse, Dr. J. N., on process pat- 
ents, 154 
Culture, 81 
Custom and inclination, 29 
Customs, origin and nature of, 28 
Dead, identification of by teeth, 239 
Deception, intentional, 111 
Dental Jurisprudence, 169 
practice, legal definition of, 172 
Dentist and patient, relations be- 
tween, 121 
legal status of, 169 
skill of in regard to state of sci- 
ence, 213 
Dentistry, development into a profes- 
sion, 5 
license to practice, 179 
overlapping into medicine, 244 
primary object of, 127 
regulation of practice by State, 
169, 176 
right of physician and surgeon to 
practice, 187 
Dentists, disparaging services of 
other, 130 
recommending advertised matters, 
146 
relation to the dental profession, 
130 
Diagnosis, liability for wrong, 214 
Discontent, and temperance, 55 
Discretion, 114 
Drinking, excessive, 65 
Duty, as based on custom, 29 
the feeling of, 26 
Duties to patients, 157 
to profession, 158 
Economic life, 63, 77 
Education and honor impulse, 88 
Egoism and altruism, 22, 37 
Ethics and Christianity, 14 
and Greek philosophy, 13 
and morality, 7 
and types of conduct, 18 
code of American Dental Associa- 
tion, 151 
code of American Medical Asso- 
ciation, 147 
code of Illinois State Dental So- 
ciety, 150 
code of, requirements, 130 
in the ancient world, 12 
intuitional, 31 248 
INDEX 
Ethics 
medical code of, 6 
medical, principles of, 157 
of dentistry, source of, 6 
of treatment of other dentists, 132 
Paulsen's System of, 25 
professional, 8 
professional; general considera- 
tions, 118 
Evidence, books as, 239 
Evolution and morality, 11 
Exercise and recreation as factors 
in conduct and habits, 72, 73 
Expert witnesses, 234, 236 
Falsehood and perjury, 107 
Fee-splitting, 140, 144 
Fees, 134 
and prices, 121, 123 
of specialists, 142 
Flint, Dr., introduction to commen- 
tary on code of ethics, 147 
Food and drink, use and abuse of, 63 
Free will, limitations, 47 
Gifts, by patients to dentists, 192 
God, laws of, 23 
work of man in conjunction with 
purposes of, 23 
Gratuitous service, 214 
Habitation as a factor in morality, 68 
Habits, 50 
Happiness and character, 39, 41 
Highest good, the question of, 25 
Homicide, as result of negligence, 230 
Honor and love of honor, 87 
impulse and moral education, 88 
Humility and pride, 89 
Illinois State Dental Society, code of 
ethics of, 150 
Impulse, relation to virtue, 49 
Infections of mouth, 5 
Insurance, 243 
Interference with the patient of 
another, 163 
Intuitional ethics, 31 
Jurisprudence, dental, 169 
Jury duty, dentists and, 240 
Justice, the social virtue of, 92, 95 
Kant, critique of moral views of, 30 
Knowledge, evil of useless, 84 
necessity of, 82 
value to individual, 84 
Laws of God, natural laws, 23 
Liability, evidence to establish, 202 
for abandonment of patient, 216 
for advising erroneous treatment, 
215 
for "assault and battery" for oper- 
ating without consent, 219 
for breach of contract, 192, 205 
for compensation of dentist, 194 
for compensation of unlicensed 
dentist, 200 
for communicating disease, 217 
for erroneous prescription, 216 
for failure to complete work in 
time, 206 
for failure to use proper mate- 
rials, 206 
for improper use of anesthetics, 
217 
for malpractice, 200 
for missed appointment, 193 
for practicing after revocation of 
license, 228 
for treating patient without con- 
sent, 219 
for wrong diagnosis, 214 
of patient to dentist, 192 
time when it commences, 211 
License, revocation of, 182 
to practice, 179 
Lie of necessity, 109 
Life, object of, 21 
Limitations, statute of, 225, 229 
Locality, effect of, 212 
Love of neighbor, 101, 103 
Lying and falsehood, 107 
Malpractice, damages for, 224 
effect on liability, 200 
of others, liability for, 221 
proof of, 223 
Man, rights of and morality, 24 
Medicine, overlapping of dentistry 
into, 244 
Moral evolution, duty and con- 
science, 21 
ideal, 9 
obligations and duties, 1 
Morality and ethics, 7 
and evolution, 11 INDEX. 
249 
Morality 
and religion, 43 
and rights of man, 24 
Mouth infections, relation of to 
others, 5 
Negligence, contributory of patient, 
222 
homicide resulting from, 230 
Papers, read before Societies, 133 
Patent, process, 154 
Patents, ethics regarding, 153 
Patience, 60 
Patient, dentist's duty to, 157 
Patients, duties to, 128, 129 
insults or rudeness of, 149 
Paulsen, System of Ethics, 25 
Perseverance, 59 
Physician and surgeon, right of to 
practice dentistry, 187 
Practice, winning a, 127 
Prescription, liability for erroneous, 
216 
Prices and fees, 121, 123 
Pride and humility, 89 
Privileged communications, 236 
Process patents, 154 
Profession of dentistry, development 
of, 5 
relation of dentists to dental, 130 
Professional duties to public, 166 
services to other members of pro- 
fession, 160 
secrecy, 149 
Prohibition of liquor and disobe- 
dience to law, 67 
Public, professional duties to, 166 
Rape, 230 
Reason, development and force of, 50 
Recreation, 72, 73 
Regulation of dental practice by 
State, 169, 176 
Religion and morality, 43 
Revocation of license, 182 
of license, practicing after, 228 
Rudeness or insults from patients, 
149 
Secrecy, professional, 149 
Self-control, 52 
fruits of, 62 
Selfishness, 103 
Services, professional, to other mem- 
bers of profession, 160 
Signs and announcements, 125 
Skill of dentist, in regard to state of 
science, 213 
Societies, dental, 133 
dental, papers read before, 133 
Specialists, dental, 138 
fees of, 142 
hiring of assistants, 141 
Spiritual life and culture, 81 
State, power to regulate practice of 
dentistry, 169, 176 
Status of dentist, legal, 169 
Statute of Limitations, 204, 225, 229 
Sunday, practicing on, 231 
Sympathetic feelings, 92 
Teeth, identification of dead by, 239 
Temperance, 53, 55 
Treatment, established modes of, 213 
liability for advising erroneous, 
215 
Truth, duty of communicating, 117 
Unlicensed dentist, liability for com- 
pensation of, 200 
Veracity, 106, 113 
Vices, 49, 51 
Virtue and happiness, 39 
Virtues and Vices, 49, 51 
Warranty of cure, breach of, 207 
Will, freedom of, 44 
Witness, excuse for non-attendance 
as, 232 
expert, 234, 236 
fees, 233 
Work, ethical value of, 79