You Could Look It Up (15 page)

On the one hand, a law dictionary in use in 1867 defines the word “defalcation” as “the act of a defaulter.” … 1 J. Bouvier, Law Dictionary 387, 388 (4th ed. 1852). See also 4 Oxford English Dictionary 369 (2d ed. 1989)… . Black's Law Dictionary … defines “defalcation” first as “
EMBEZZLEMENT
,” but, second, as “[l]oosely, the failure to meet an obligation; a nonfraudulent default.” Black's Law Dictionary 479 (9th ed. 2009) (hereinafter Black's). See also American Heritage Dictionary 474 (5th ed. 2011) … 4 Oxford English Dictionary,
supra
, at 369 … Webster's New International Dictionary 686 (2d ed. 1954) … Webster's Third New International Dictionary 590 (1986)… . Modern dictionaries often accompany their broad definitions with illustrative terms such as “embezzle,” American Heritage Dictionary,
supra
, at 474, or “fraudulent deficiency,” 4 Oxford English Dictionary,
supra
, at 369.
3

The habit of citing dictionaries has grown markedly in the last twenty years. The
Marquette Law Review
found dictionaries cited in 225 Supreme Court opinions between 2000 and 2010, a fourteenfold increase over the 1960s, and those citations came from a staggering 120 different dictionaries. Not everyone is happy with this development.
The lexicographer Jesse Sheidlower argues that “it's probably wrong, in almost all situations, to use a dictionary in the courtroom… . Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.” Besides, when justices are able to cite more than a hundred dictionaries at will, Sheidlower notes, “It's easy to stack the deck by finding a definition that does or does not highlight a nuance that you're interested in.”
4

Reference works other than dictionaries also occasionally get their chance to testify as expert witnesses. The U.S.
Federal Rules of Evidence
specifies that “the party offering a publication must establish it as a ‘reliable authority.' … The requirement may be satisfied by judicial notice of the reliability of the treatise. Widely accepted publications such as the Merck Index, The Encyclopedia Britannica and the Physician's Desk Reference are examples.”
5
Even works of classical scholarship have had their day in court. In the 1993
Evans v. Romer
, on Colorado's constitutional amendment barring protected status for same-sex couples, part of the case hinged on whether Western attitudes toward homosexuality have always been negative. Someone introduced a passage from Plato's
Laws
as evidence, which describes homosexual intercourse with the word
τόλμημα
(
tolm
ê
ma
)—but what did the word mean when Plato used it? It came from a root meaning
dare
or
have courage
, and one expert witness testified that it meant a “shameless” act or “abomination,” while another insisted Plato was referring to a “daring” deed. The court found itself getting a lesson on the history of the revisions of the Liddell-Scott-Jones
Greek–English Lexicon
in its various editions from 1843 to 1968.
6
And the stakes can be high. In 1994, an American plaintiff who'd had his rights limited because of his homosexuality won a case partly on the basis of the revision of the
Diagnostic and Statistical Manual
: the pre-sentence report, according to a federal court, “improperly included Donaghe's 1968 diagnosis as a homosexual deviant as a factor for departure. Homosexuality is no longer categorized as a psychiatric disorder. Diagnostic and Statistical Manual of Mental Disorders (1987) (DSM-III-R).”
7

American lawyers and judges are especially drawn to reference books, but it happens elsewhere, too. In England, the
Domesday Book
has been
introduced into evidence for centuries (see chapter 4): it's still useful in disputes over historic boundaries. In 1838, two legal scholars advised lawyers that “Domesday-book is the ultimate criterion for determining, what lands are ancient demesne of the crown; a question of practical importance in the present day, especially in regard to the validity of fines, which have been levied of those lands,”
8
and the nine-hundred-year-old book has been cited in an English court as recently as 1982.

CHAPTER
6

LEECHCRAFT

Medieval Medicine

Medicine features in a number of reference works, but medical references constitute their own substantial and specific genre. A rich and international library of these books goes back to antiquity, and they provide invaluable evidence for historians. In India, the
Sushruta Samhita
, probably written in the sixth century
B.C.E.
, became one of the founding works of Ayurveda, or Indian medicine; its collection of more than a thousand diseases and nearly a thousand treatments was rediscovered in the eighth century
C.E.
when it was translated into Arabic. Pedanius Dioscorides wrote a five-volume
Peri hyles iatrikes
(
On Medicine
) in the first century
C.E.
. It lists the healing properties of around six hundred plants and almost a thousand drugs, and it earned the praise of the encyclopedist Cassiodorus. Marcellus Empiricus wrote
De medicamentis
(
On Medicines
) in the fourth or fifth century, and the work was read for a millennium. This chapter focuses on two pioneering works in the field we would classify as medicine, one from Anglo-Saxon England, the other from Persia.

We are not even sure a physician named Bald existed. The sum total of the information we have on him comes from a note in Latin hexameters on sole surviving manuscript: “Bald owns this book, which he ordered Cild to write.” Perhaps that means Cild was the author, and Bald hired
him to write the text. Or it may mean that Bald composed the text and got Cild to work as a scribe, making a clean copy. Or perhaps it was all a fiction. The book mentions two other doctors, Dun and Oxa, who offered advice, but we have no record of them, either. Still, the author, whatever his name, was active in the ninth or tenth century, and the only early surviving copy of his work, the
Læceboc
—
Leechbook
, or
Book of Healing
—is from around the year 950. The name invokes barbarism, though it helps to know that the Old English word
læce
, pronounced something like “
latch
-uh,” meant “physician” before it meant “bloodsucking worm.” In fact, nowhere in Old English medical literature are the annelids mentioned explicitly.
1
The book is a systematic handbook on Old English medical recipes and cures—all part of the field known as
læcedom
‘leechdom’ or
læcecræft
‘leechcraft’.

The ninth century is right in the middle of what have been called the Dark Ages, though things were not quite so dark as they are sometimes made out to be. King Alfred, who died in 899, had worked to build an intellectual culture in England, and Bald may have been part of that movement—though medical historian Malcolm Cameron warns that “we have not enough information to do other than guess.” The
Leechbook
is the oldest medical book we have from England, but most historians believe early medieval English medicine was insular. English authorities quoted only other English authorities, and very little knowledge was coming into England from the Continent. There was also no indication that Anglo-Saxon physicians were familiar with Galen or any of the other major medical writers of ancient Greece or Rome. The
Leechbook
helped to change that. The book had an English audience in mind: it is written in Old English, not in Latin, so the author had no ambition to be read abroad. But while plenty of homespun English remedies appear in it, interspersed among them are treatments proposed by Greek, Roman, and other sources. Some of Bald’s prescriptions are translated directly from Latin works. As Cameron points out, “From the contents of his book it appears that Bald had available to him in one form or another much of the best of Byzantine and Roman medicine from the third to the ninth centuries, either in Latin or in English translation.” The book “shows a conscious effort to transfer to Anglo-Saxon practice what one physician considered most useful in native and Mediterranean medicine.”
2

The book’s two main divisions treat of external and internal maladies, and it may be the only medieval text to start with this fundamental distinction.
3
Within each section, the organization is
a capite ad calcem
—from the patient’s head down to his shoes. There are sixty-six chapters, containing remedies that cover a wide range of conditions from hiccups to “rotten lung.” One proposed cure for a headache is to take a stalk of crosswort (a flowering plant in the family
Rubiaceae
) and bind it to the head with a long piece of warm red flannel. Bald men were encouraged to follow a prescription from Pliny: prepare an ointment out of linseed oil and the ashes of burned bees and apply the result to the scalp overnight. Someone suffering from pain in the lower back was advised to set goat hair on fire and allow the smoke to waft to the afflicted part. There were treatments for both overactive and sluggish libidos (agrimony boiled in ale for the former, agrimony boiled in milk for the latter), inflamed spleen (peas and bread in hot water), and bellyache (take apples, pears, peas, and the flesh of small birds and boil them in water, vinegar, and wine). For a painful spleen, shellfish, half-grown pigs, the meat of goats, and the juice of peas were prescribed, and for diarrhea, cabbage juice soup or, for more serious cases, old cheese boiled in goat’s milk with goat’s grease. A run-of-the-mill lung problem was said to respond to beets simmered in butter, but a case of the dreaded “rotten lungs” called for something fancier: a drink made from bog myrtle, a flowering shrub known to scientists today as
Myrica gale
, boiled with
malt in water, replaced after a while by fresh yeast, mixed with wormwood (a plant in the genus
Artemisia
), woundwort (a plant in the genus
Stachys
, also known as betony), and daisies.

Some of the “cures” have less to do with medicine than with magic—the agate, for instance, is a powerful talisman. As medical historian Debby Banham points out, “Early medieval medicine was not that effective in actually curing anyone.” All of this was long before the advent of evidence-based medicine. Still, that does not mean the prescriptions were useless. Many of the “medicines” probably provided at least some liquid to help the dehydrated, and some calories to give strength to those who had been weakened by some ailment. As historian Audrey Meaney argues, the
Leechbook
“is by far the most comprehensive and best organized of all the Old English medical compilations… . The system used to sort and classify all this material must have been extensive and was usually also very efficient.”
4

These are all things Bald related directly; he also managed to speak indirectly, revealing things about Old English medical practice. As Cameron observes, “we find phrases which give an idea of what was expected of a practising physician. There are recipes which contain remarks such as ‘as physicians know how’ and ‘add a sufficient amount of honey,’ rather than detailing the whole of the preparation of a medicine”—evidence of the expectations of his audience. The book also reveals that Bald was no “slavish copier of the masters of medicine,” as is evident in the book: “he often omitted parts of his sources or added to them, he rearranged, he expressed opinions, he selected with an eye to what was important to his society, he offered substitutes for exotic drugs.”
5