Doctor Winterton’s Letter to the President.

My service and best respects remembered.

Master President and my much honoured friend

Whereas I am given to understand that you have heard that the last year I would not give way to two or three for the obtaining a Licence to practise Physick, nor to a Doctor of Leyden to be incorporated with us without giving publick testimony of his abilities, and I further understand that yourself and the whole College are well pleased therewith, I have cause to rejoice: and further thought fit at this time to acquaint you with my real intentions, which I shall eagerly prosecute, if I may have countenance and assistance. I have observed and have grieved to see sometimes a Serving-man sometimes an Apothecary oftentimes Masters of Arts (whereof some have afterwards assumed holy Orders) admitted to a Licence to practice in Physick, or to be incorporated to a Degree without giving any publique testimony of their learning and skill in the Profession. And what hath followed hereupon? The Minister hath neglected his own calling and trespassed upon another’s, not without endangering the Souls of the people of God, and the losse of the Lives of many of the King’s Subjects. The Serving-man and Apothecary upon a Licence obtained have been presently made Doctors by the breath of the people, and Doctors indeed undervalued. Masters of Arts after Licence obtained have taken as I said holy Orders, that if one Profession did faile them another might supply them. And Incorporation being in an instant obtained by a little summe of money which by orderly proceeding (I speake concerning the Doctor’s Degree) would cost 12 years study in the University besides performance of exercises and much expence; It is come to passe, that in the University at this time I doe protest I doe not know any one that intends the study of Physick, and practice thereof according to the Statutes. Chirurgeons and Apothecaries are sought into, and Physicians seldome but in a desperate case are consulted with, when the Patient is ready to dye and in this kind we have too many examples. The consideration of these mischiefs redounding to the Church, Commonwealth, University, and our Profession, hath often troubled me, when I had no power to prevent them. But now seeing it hath pleased God and the King to conferre such power upon me, that without me neither Licence nor Degree in Physick can be obtained at Cambridge (for I have solicited Dr. Nichols and Dr. Allet to joyne with me; and I have prevailed soe farre with them that they will doe nothing without me) I doe intend by the grace of God to give way unto noe man to obtain a Licence or Degree without keeping an Act at the least, &c. unless it shall happen that with some one particular man it shall be dispenced withall by supreme Authority or in some extraordinary case. But all this will be to little purpose, unlesse yourselfe and the College will solicite Dr. Clayton, his Majesties Professor at Oxford, and others of the faculty there, to doe the like; or rather Petition to my Lord’s Grace of Canterbury, who out of his innate goodnesse, and zeale for the good of the Church and Commonwealth, and the honour of the Universities, I am fully perswaded, will grant what you desire, against Apothecaries and Chirurgeons, and all others which without Licence and authority do practise Physick, I could wish there were some course taken; I know there be already good Lawes, if they were put in execution. This much in haste (as you may perceive by my writing) I thought good to signify unto you, out of the grateful respect which I beare unto yourself and the whole College, tending the honour of our common Profession, which I will maintain as much as in me lyes, and vindicate from the invasions of Usurpers and Intruders. I have exceeded I feare the bounds of a Letter, but that you will pardon I hope considering the occasion. And soe with a gratefull acknowledgment of your love and favour towards me and an ingenuous profession of much service I owe unto you, I take my leave, as one that will be ready, upon the least signification, to embrace your commands, and execute them with all alacrity.

Yours in all dutiful respects

Ralphe Winterton.

From the King’s College in Cambridge,

August 25th, 1635.

LILLY’S DIPLOMA.
The License of Dr. Sheldon, Archbishop of Canterbury, granted to William Lilly, the Astrologer, to practise Physic. Dated A. D. 1670.

“Gilbertus providentia divina Cantuariensis Archiepiscopus totius Angliæ Primas et Metropolitanus, dilecto nobis in Christo Gulielmo Lilly in Medicinis professori, salutem, gratiam, et benedictionem. Cum ex fide digna relatione acceperimus te in arte, sive facultate medicinæ per non modicum tempus versatum fuisse, multisque de salute et sanitate corporis verè desperatis (Deo omnipotente adjuvante) subvenisse, eosque sanasse, nec non in arte predicta multorum peritorum laudabili testimonio pro experientia, fidelitate, diligentia et industria circa curas quas susceperis, peragendas in hujusmodi arte Medicinæ merito commendatum esse, ad practicandum igitur, et exercendum dictam artem Medicinæ in et per totam Provinciam nostram Cant: (Civitate Lond’ et circuitu septem millarum eidem prox’ adjacen’ tantummodo exceptis,) ex causis prædictis et aliis nos in hoc per te juste moventibus, præstito primitus per te juramento de agnoscendo Regium supremam potestatem in causis ecclesiasticis et temporalibus ac de renunciando, refutando, et recusando omni, et omni modo jurisdictioni, Potestati, Authontati, et Superioritati, foraneis juxta vim formam et effectum Statui Parlamenti hujus inclyti regni Angliæ liceat et non aliter neque alio modo te admittimus, et approbamus tibique licentiam et facultatem nostras in hac parte, Tenore præsentium quamdiu te bene et laudabiliter gesseris benignè concedimus et elargimur. In cujus rei testimorium sigillum (quo in hac parte utimur) presentibus apponi fecimus. Dat. Undecimo Die Mensis Octobris, Anno Domini 1670 Nostræque Translationis Anno Octavo.”

(LS) Radulph Snowe, et
Edm. Sherman.

Registrarii.

S. Rich. Lloyd, Sur.

Vicarii in Spiritualibus Generalis per provinciam Cantuariensem.

It does not appear in the memoirs of Lilly, as written by himself, that he ever made an attempt to acquire the elements of medical science, but was directed in his prescriptions by his astrological art only: but having procured the above license he began to practise more openly, and every Saturday rode to Kingston, where the poorer sort flocked to him from several parts, and received much benefit by his prescriptions, which he gave them freely, and without money; from those that were more able he now and then received a shilling, and sometimes an half-crown, if they offered it to him, otherwise he demanded nothing.

At the Court at the Queen’s Palace, the 26th of July, 1809. Present,

The King’s Most Excellent Majesty.

Whereas there was this day read at the Board, the humble memorial of Sir Lucas Pepys, baronet, Physician to His Majesty, and President of the College or Commonality of the Faculty of Physic in London, setting forth, that the said President and College have, with great care, pains, and industry, revised, corrected, and reformed a book by them formerly published, intituled Pharmacopœia Collegii Regalis Medicorum Londinensis, prescribing and directing the manner of preparing all sorts of medicines therein contained, together with the true weights and measures by which they ought to be made: which book is now perfected and ready to be published, and, it is conceived, will contribute to the public good of His Majesty’s subjects, by preventing all deceits, differences, and uncertainties in making or compounding of medicines, if, for the future, the manner and form prescribed therein should be practised by Apothecaries and others in their compositions of medicines: the Memorialist therefore most humbly prays, that His Majesty will be graciously pleased to enforce the observance thereof in such manner as to His Majesty shall seem meet:—His Majesty this day took the said memorial into His Royal consideration, and being desirous to provide in all cases for the common good of his people, and being persuaded that the establishing of the general use of the said book may tend to the prevention of such deceits in the making and compounding of medicines, wherein the lives and health of His Majesty’s subjects are so highly concerned, hath therefore thought fit, by and with the advice of His Privy Council, hereby to notify to all Apothecaries and others concerned, to the intent they may not pretend ignorance thereof, that the said book, called Pharmacopœia Collegii Regalis Medicorum Londinensis, is perfected and ready to be published: and His Majesty doth therefore strictly require, charge and command all singular Apothecaries and others, whose business it is to compound medicines, or distil oils or waters, or make other extracts, within any part of His Majesty’s kingdom of Great Britain called England, dominion of Wales, or town of Berwick-upon-Tweed, that they, and every of them, immediately after the said Pharmacopœia Collegii Regalis Medicorum Londinensis shall be printed and published, do not compound or make any medicine or medicinal receipt or prescription, or distil any oil or waters, or make other extracts that are or shall be in the said Pharmacopœia Collegii Regalis Medicorum Londinensis mentioned or named, or in any other manner or form than is or shall be directed, prescribed, and set down in the said book, and according to the weights and measures that are or shall be therein limited, except it shall be by the special direction or prescription of some learned Physician in that behalf. And His Majesty doth hereby declare, that the offenders to the contrary, shall not only incur His Majesty’s just displeasure, but be proceeded against for such their contempt and offences, according to the utmost severity of law.

STEPH: COTTERELL.

33 Geo. 2.—Burrow’s Reports.
Rex vers. Master and Wardens of the Company of Surgeons in London.

This was a cause that stood in the Crown-Paper, upon a Return to a Mandamus directed to the Master and Wardens of the Company of Surgeons of London: Reciting a Custom in the said City, “That every Freeman of the said City, using and exercising the Art, Science, or Mystery of Surgery within the said City, hath a Right, in respect thereof, to have and take Apprentices, of the age of 14 years or upwards, to be educated and instructed in the said Art, Science, or Mystery, for the space of 7 years; which said Apprentices have been used and accustomed to be ADMITTED and BOUND in the presence or with the consent of the Master and Wardens or some of them;” And reciting that Richard Guy, a Freeman of the said City, and also one of the Freemen of the said Company of Surgeons of the said City, being desirous of taking Melmoth Guy, his son, aged 15 years, to be his Apprentice for the Term of 7 years, to be educated and instructed in the said Art, Science, or Mystery of Surgery, had often offered the said Melmoth Guy to be admitted and bound, before the said Master and Wardens or some of them, his said Apprentice for the Term of 7 years, in the said Art, Science, or Mystery, according to the said custom; and that the said Melmoth Guy had also often offered himself to them or some of them, to be admitted and bound before them or some of them, an Apprentice to the said Richard Guy for the said Term, in the said Art, Science, or Mystery; and that the said Master and Wardens had not permitted the said Melmoth Guy to be bound Apprentice to the said Richard Guy, for the Term of 7 years, before them or any of them, but have altogether refused and still refuse so to do; and commanding them, immediately and without delay, in due manner to permit the said Melmoth Guy to be ADMITTED and BOUND, before them or some of them, an Apprentice to the said Richard Guy, for the Term aforesaid, in the said Art, Science, or Mystery according to the said custom, or signify cause to the contrary.

The Return of the Master and Wardens admits the whole of the custom and facts, to be as they are alledged in the Writ. But they further certify and return, That long before the said Richard Guy offered his said son Melmoth, or the said Melmoth offered himself to them or any of them, to be admitted and bound before them or any of them, an Apprentice for the said Term of 7 years, in the said Art, Science, or Mystery of Surgery, according to the custom aforesaid; and after the making of a certain Act of Parliament intitled “An Act for making the Surgeons of London, and the Barbers of London, two separate and distinct Corporations;” to wit, on the 7th day of April in the Year of our Lord 1748, at Stationers-hall in London aforesaid; John Freke, then and there being Master of the said Company of Surgeons, and William Pyle and Legard Sparham, then being two of the Governors of the said Company of Surgeons, before that time duly elected chosen appointed and sworn into their said respective offices; and also John Ranby esq. Cæsar Hawkins esq. William Petty esq. Joseph Sandford, William Cheseldon esq. James Hicks, Peter Sainthill, Noah Roul, John Westbrook, William Singleton, James Phillips, Joseph Webb, Mark Hawkins, Christopher Fullagar, Edward Nourse, John Girle esq. and John Townsend, being then and there Nine and more of the Members of the Court of Assistants of the said Company of Surgeons before that time duly elected chosen appointed and sworn to be of the said Court of Assistants, did hold a Court and Assembly, at Stationers-hall London aforesaid, in order to treat and consult about and concerning the Rule Order State and Government of the said Company of Surgeons; and that the said John Freke, so being then and there Master of the said Company of Surgeons, and the said William Pyle and Legard Sparham, so being then and there two of the said Governors of the said Company of Surgeons, and the said John Ranby esq. Cæsar Hawkins esq. &c. &c. &c. so being then and there nine and more of the Members of the said Court of Assistants of that Company, being all then and there duly assembled as aforesaid, did then and there, according to the Form of the Statute in that case made and provided, make ordain constitute and establish a certain Bye-Law and Ordinance, for the Regulation Government and Advantage of the said Company of Surgeons, in the words following. To wit, Item, It is Ordained “That no Member of the said Company shall take any Person into his Service, as his Apprentice, to be instructed in the Art or Science of Surgery, for any shorter time than 7 years; which person SHALL UNDERSTAND the Latin Tongue; his Ability wherein shall, BEFORE his being bound, be tried by the Governors or one of them. And every Freeman of this Company or Foreign brother shall, within one month next after his entertainment of any Person in order to being his Apprentice, Present such Person before the Governors or two of them, at a Court to be by them held; and there bind such Person to him before the said Governors, by Indenture; upon pain of forfeiting 20l. of lawful money: And the Clerk of the said Company SHALL NOT BIND any Person who has not been so presented and examined, upon pain of forfeiting the sum of 10l. of lawful money and being liable to be removed from his said Office. And no Apprentice shall be turned over from one Master to another, but at a Court in the Presence of the Master and Wardens or one of them: And One Guinea, and no more, shall be paid for the same.”

Which said Ordinance or By-Law, so made as aforesaid, after the making thereof as aforesaid, and long before the said Richard Guy had offered the said Melmoth, or the said Melmoth had offered himself to be admitted and bound before them or any of them, an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, to wit, on the 9th day of the same April in the said year of our Lord 1748, was examined approved and allowed by the Right Honourable Philip Lord Hardwicke the then Lord Chancellor of Great Britain, and by Sir William Lee Knt. the then Lord Chief Justice of His Majesty’s Court of King’s Bench, and Sir John Willes Knt. the then Lord Chief Justice of His Majesty’s Court of Common Bench, according to the Form of the Statute in that Case made and provided.

They further return That the said Ordinance or By-Law, so made examined approved and allowed as aforesaid, hath ever since the making examination approbation and allowance thereof as aforesaid, been, and now is in full force and effect, and in no wise annulled revoked and vacated.

They then return That after the making examination approbation and allowance of the said Ordinance or By-Law as aforesaid, and before the Issuing of this Writ, to wit, on the 3d of May in the Year of our Lord 1759, at a certain Court then holden at Surgeons Hall in the Old Bailey London, by Mark Hawkins then Master, and Christopher Fullagar and Edward Nourse then Governors of the said Company of Surgeons, (They the said Mark Hawkins, Christopher Fullagar and Edward Nourse, having before that Time been duly elected chosen appointed and sworn into their said respective Offices, according to the Form of the Statute in that Case made and provided,) came the said Richard Guy before the said Court, and offered and presented his said Son Melmoth; And the said Melmoth did then and there offer himself to the said Master and Governors then being at that Court, to be admitted and bound, before them, an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery; And that the said Melmoth Guy, being so offered and presented as aforesaid, was then and there examined touching his knowledge in the Latin tongue; And his ability therein, in Pursuance of the Ordinance or By-Law aforesaid, was then and there fairly, candidly, and impartially TRIED by the said Edward Nourse, he the said Edward being then and there one of the Governors of the said Company of Surgeons: And that the said Melmoth Guy, UPON such his Examination, and upon his Ability in the Latin Tongue being so as aforesaid tried by the said Edward Nourse (so being one of the Governors or Wardens of the said Company as aforesaid) was found, NOT to understand the Latin Tongue, but to be WHOLLY IGNORANT thereof; and was then and there so ADJUDGED and declared to be, by the said Edward Nourse, on such Trial.—Wherefore the said Court could not consent, but did then and there refuse to permit the said Melmoth Guy to be admitted and bound an Apprentice to the said Richard Guy, for the Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, Until such Time as the said Melmoth should understand the Latin Tongue, as by the aforesaid Ordinance or By-Law is in that behalf required.

They further return expressly and positively, That the said Melmoth Guy, when he was so presented and offered as aforesaid, before the aforesaid Master and Governors or Wardens of the said Company of Surgeons, at the said Court, by them held for the purpose herein before in that behalf mentioned, DID NOT understand the Latin Tongue: but WAS UTTERLY IGNORANT of the same: And that the said Melmoth Guy hath NOT, at any Time before or since his being so examined and tried as to his Ability in the Latin Tongue as aforesaid, offered himself or been presented to the said Company or Governors thereof, or any one of them for the Time being, to be tried as to his ability in the Latin Tongue.

And therefore they cannot permit the said Melmoth Guy to be admitted and bound before them an Apprentice to the said Richard Guy for the said Term of 7 years, in the said Art Science or Mystery of Surgery, according to the Custom aforesaid, as by the Writ they are commanded.

Mr. Field pro Rege objected and argued “That this was an insufficient Return:” For that the By-Law is a bad one, being made in Restraint of a natural general and common Right.

The first Restriction of the common Right that every Person has of learning and exercising any Art in any Place, except where it happens to be restrained by Custom, is the Act of 5 Eliz. c. 4.

The City of London have indeed, by Custom, a Power over the Youth of their City, and a Power of excluding Foreigners from exercising Trades within their City.

11 Rep. 53. Taylors of Ipswich Case, shews the general Law to be, that a person ought not to be restrained in his lawful Mystery.

Private Companies can not make Laws contrary to the General Law or to the Customs of great Cities: though great Cities and Towns may do so. This distinction is mentioned in 6 Mod. 120.[[176]] Cuddon v. Estwick. And he cited the Case of the City of London v. Vanacker, in 1 Ld. Raym. 496. where Holt Ch. J. said that “if the By-Law was for the Benefit of the City, it would be good.”

This By-Law, therefore, is not good, without a particular Custom to support it: for it restrains a Common-Law Right.

The Return does not aver that the understanding the Latin Tongue is a necessary qualification of a Surgeon: And their Art may certainly be performed without it. At least, ’tis no objection to a young Person’s being put out to learn the Art; whatever it might be to the Admission of a Man to practise it.

Besides, “Understanding the Latin Tongue,” is a very indefinite and vague expression: And a very different idea of it would be conceived by different persons; as by Dr. Bentley (for instance) and by a[[177]] Warden of the Surgeons Company.

Bad consequences too, may arise from this By-Law: And if so, it shall not prevail. Godbolt 254. S. C. with that of the Taylors of Ipswich, (there called The Cloth-workers of Ipswich Case.)

If the By-Law is bad, this young man’s not understanding Latin will not cure or help it. However, the By-Law does not expressly forbid such a Person to be admitted: It is not mandatory, but only directory.

Mr. Serjeant Hewit contra, was rising up, to speak in support of the Return,

But Lord Mansfield said it was too plain to argue.

Whereupon, Per Cur.

Return allowed.

MIDWIFE’S OATH.
The Oath to be administered to a Midwife by the Bishop or his Chancellor, when she is licensed to that office, is said to have been as followeth. 2 Burn Ecc. Law 469.

“You shall swear, first, that you shall be diligent and faithful and ready to help every woman labouring with child, as well the poor as the rich; and that in time of necessity you shall not forsake the poor woman to go to the rich.

“Item. You shall neither cause nor suffer any woman to name or put any other father to the child but only him which is the very true father thereof indeed.

“Item. You shall not suffer any woman to pretend, feign, or surmise herself to be delivered of a child, who is not indeed; neither to claim any other woman’s child for her own.

“Item. You shall not suffer any woman’s child to be murdered, maimed, or otherwise hurt, as much as you may: and so often as you shall perceive any peril or jeopardy, either in the woman, or in the child, in any such wise as you shall be in doubt what shall chance thereof, you shall thenceforth in due time send for other midwives and expert women in that faculty, and use their advice and counsel in that behalf.

“Item. You shall not in any wise use or exercise any manner of witchcraft, charm, or sorcery, invocation, or other prayers, than may stand with God’s laws and the King’s.

“Item. You shall not give any counsel or minister any herb, medicine, or potion, or any other thing to any woman being with child, whereby she should destroy or cast out that she goeth withal before her time.

“Item. You shall not enforce any woman being with child, by any pain or by any ungodly ways or means, to give you any more for your pains or labour in bringing her to bed, than they would otherwise do.

“Item. You shall not consent, agree, give, or keep counsel, that any woman be delivered secretly of that which she goeth with, but in the presence of two or three lights ready.

“Item. You shall be secret, and not open any matter appertaining to your office, in the presence of any man, unless necessity, or great urgent cause do constrain you so to do.

“Item. If any child be dead born you yourself shall see it buried in such secret place, as neither hog, or dog, nor any other beast may come unto it; and in such sort done, as it be not found or perceived, as much as you may: and that you shall not suffer any such child to be cast into the jaques or any other inconvenient place.

“Item. If you shall know any midwife using or doing any thing contrary to any of the premises, or in any otherwise than shall be seemly or convenient, you shall forthwith detect, open, or shew the same to me or my Chancellor for the time being.

“Item. You shall use yourself in honest behaviour unto the woman, being lawfully admitted to the room and office of Midwife, in all things accordingly.

“Item. That you shall truly present to myself or my Chancellor, all such women as you shall know from time to time to occupy and exercise the room of a midwife within my aforesaid diocese and jurisdiction of —— without any licence and admission.

“Item. You shall not make or assign any deputy or deputies, to exercise or occupy under you in your absence the office or room of a Midwife, but such as you shall perfectly know to be of right honest and discreet behaviour; and also apt, able, and having sufficient knowledge and experience to exercise the said room and office.

“Item. You shall not be privy, or consent, that any priest or other party shall in your absence, or in your company, or of your knowledge or sufferance, baptize any child by any mass, latin service, or prayers, than such as are appointed by the laws of the Church of England; neither shall you consent that any child born by any woman who shall be delivered by you shall be carried away without being baptized in the parish by the ordinary minister where the said child is born, unless it be in case of necessity baptized privately according to the Book of Common Prayer: but you shall forthwith, upon understanding thereof, either give knowledge to me the said Bishop, or my Chancellor for the time being.

“All which articles and charge you shall faithfully observe and keep: So help you God, and by the contents of this book.”

(Book of Oaths.)

Certificate of the College of Physicians concerning the Midwives of London.

May it please your Lordships,

Upon consideration taken of this petition hereunto annexed, presented unto the President and College of Physicians by the Midwives, We, the College of Physicians, conceiving the said complaint to be grounded upon just grievance, and to conduce to a general good, in the timely prevention of so growing an inconvenience, have particularly informed ourselves concerning the said business, and do certify that the like project was formerly attempted by another, which is now intended by the doctour, and therefore was referred by K. James, of blessed memory, to the Lords of the Council, and by their Lordships to the College of Physicians, to certify their opinion thereof; who upon mature deliberation made report to their Lordships of the unfitness of the said proposition, there being no such custom ever used either here or in any other kingdom, Wherefore the same was rejected and died. And whereas we understand that the said Doctour doth ground his complaint upon the insufficiency of Midwives, whom he would undertake to teach, though licensed by your Lordship’s officers, whom we do believe to be as careful in admitting of Midwives as they are in other kingdoms; only we are informed that divers do practise without licence, and some are deputies to others, through whom we probably conceive some abuses to grow, because their abilities and honesty of lives and conversation are not testified upon oath as others are who are licenced. But for adding sufficiently to them by the Doctour’s instruction, he is not otherwise able to instruct them than any other the meanest Fellow of our College, unless he understand it by the use of iron instruments, which Physicians and Chirurgeons may practice if they please; and some do and have done with as good success and dexterity as himself, and therefore there is no necessity of a sole dependance upon him. And it being true that is reported by the Midwives, the Doctour doth often refuse to come to the poor, they being not able to pay him according to his demands; and for the rich he denies them his help until he hath first bargained for great rewards; which besides that they are in themselves dishonest, covetous, and unconscionable courses, they are also contrary to the laws and statutes of our College, to which by oath he is bound. We therefore for this and other reasons we can alledge, conceive his suit to be unreasonable and inconvenient. And so do humbly leave the same to your Lordships’ grave judgments, unto whom his Majesty referred the consideration thereof.

(Goodall’s Proceedings of the College against Empiricks, p. 465.)

59 Geo. 3. c. 41.
An Act to establish Regulations for preventing Contagious Diseases in Ireland. 14th June 1819.

Whereas it has become highly expedient to provide for and secure constant attention to the health and comforts of the inhabitants of Ireland, and for the prevention of contagious disease, more especially in the cities and great towns thereof; and that for that purpose officers of health should be annually appointed in all cities and large towns, and that such officers should also be appointed in such towns, parishes, and villages in the country, as shall think it proper or necessary to adopt such a measure; be it therefore enacted by the King’s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That within one calendar month next after the passing of this Act, and within one calendar month after the twenty-fifth day of March in the year one thousand eight hundred and twenty, and in every subsequent year, in every city and town in Ireland, which shall contain one thousand inhabitants, or upwards; and in every city and large town where the Lord Lieutenant, or other Chief Governor or Governors of Ireland, shall think fit to direct that this Act shall be carried into effect, the inhabitant householders of each and every parish in such city or town, assembled in vestry, shall and they are hereby required to elect and appoint any number of persons not less than two, and not more than five, to be officers of health for such parish, for the year ending on the twenty-fifth day of March next after such election, and until new officers of health shall be in like manner appointed for such parish for the year ensuing.

II. And be it further enacted, That such officers of health, so to be elected and appointed, shall act in the execution of this Act without any salary, fee, or reward whatsoever; and that the expenses to be incurred by such officers in the execution of their Duties under this Act, not exceeding such sums as shall be specified and determined on, and limited and directed at the vestry to be assembled for the choice of such officers, or at any subsequent vestry to be called by the said officers, shall be raised and levied on the inhabitants of such parish, in such manner and form as other parochial assessments are raised and levied, and shall by the said officers of health be applied to the purposes of this Act; and the expenditure thereof shall be accounted for by the said officers in such manner as other parochial assessments are accounted for, and either at such times as other assessments are accounted for according to law, or at such other times and periods of the year, and as often from time to time as shall be directed at the vestry to be assembled for the appointment of such officers, or at any other vestry to be called by two inhabitants of such parish; and that copies of all such accounts shall once in every year, before the twenty-fifth day of April in each year, be transmitted by such officers of health to such public officer, or office or place in Dublin, as shall be from time to time directed by the Lord Lieutenant, or other Chief Governor or Governors of Ireland for the time being, or his or their Chief Secretary.

III. And be it further enacted, That it shall and may be lawful for the inhabitant householders of any parish, town, or place whatever, in vestry assembled, in any part of Ireland, to appoint such officers of health for such parish, in case they shall think fit and expedient so to do; and to raise such sum or sums of money, to be levied and accounted as directed by this Act, in like manner as by this Act is required to be done in cities and large towns as aforesaid.

IV. Provided always, and be it enacted, That no person shall be compelled or compellable to act or serve as such officer of health, in any parish or place, for any longer term than one year, nor to act or serve as such officer for any year commencing within three years after the end of any year for which he shall have served as aforesaid.

V. Provided also, and be it enacted, That it shall and may be lawful for the inhabitant householders of any parish in any county, city, town, or place in Ireland, to elect the churchwardens of such parish for the time being to be officers of health under this Act, in case they shall think fit so to do; and it shall be lawful for such churchwardens, and they are hereby authorized and required, to act as such officers of health accordingly, under the present provisions of this Act.

VI. Provided also, and be it enacted, That where any city or town as aforesaid, containing one thousand inhabitants, or where the Lord Lieutenant or other Chief Governor or Governors of Ireland shall direct this Act to be carried into execution, in case the inhabitant householders in any parish or parishes in such city or town shall neglect or refuse to elect and appoint such officers of health, within such time as is required by this Act, or as shall be required by any order of such Lord Lieutenant, or other Chief Governor or Governors, it shall and may be lawful for the Justices of the Peace assembled at the Quarter Sessions, or any adjournment thereof, for the county, city, or town within which such parish shall be situate, and the said Justices are hereby authorized and required, to appoint such officers of health in and for such parish, and also at the same time to appoint and limit what sum shall be raised by assessment on such parish for the purposes of this Act, and such sum shall and may be raised and levied accordingly, in like manner as any other parish assessments, and as if the same had been authorised by the vestries of such parishes, and shall be applied and accounted for in the manner herein before directed.

VII. And be it further enacted, That it shall and may be lawful for any one or more of the persons so to be appointed officers of health, and he and they is and are hereby authorized, empowered, and required to cause and direct all streets and lanes, and all yards and courts adjoining thereto, and all houses let in several tenements and room-keepers, and the yards, gardens, or places belonging to such houses, to be cleansed and purified, and all nuisances prejudicial to health to be removed therefrom; and all public sewers to be cleansed, and where necessary, to be covered over, and all lodgments of standing water to be filled up or drained off; and also to cause and direct all other matters and things to be done for the ventilation, fumigation, and cleansing of any house whatever, in which fever or other contagious distemper shall have occurred, and for the washing and purifying the persons and clothes of the inhabitants of every such house, as shall appear to any such officer of health to be indispensably necessary for the preservation and security of the inhabitants of such parish against the danger of contagion, unless due precautions shall have previously been taken for such purposes by the inhabitants of such house; and it shall be lawful for all constables and peace officers, and they are hereby authorized, empowered, and required, to be aiding and assisting to such officers of health in the doing all matters and things whatsoever in the execution of this Act.

VIII. And be it further enacted, That in any parish or parishes in any city or town where any such officers of health shall be appointed as aforesaid, and where no power or authority is or shall be vested in or given to Magistrates or Corporation of such city or town, to regulate the sweeping and cleansing of the streets therein, and the collecting and disposing of the dirt, dung, and filth of the said streets, and also in any city or town whatever, where the scavengers or other persons who shall be entrusted with or contract for the cleansing and sweeping of the streets, under the direction of the Magistrates or Corporation or not, shall neglect or omit to cleanse and sweep the streets and lanes of such city or town, twice at least in every week, it shall and may be lawful for such officers of health to cause and direct such streets to be swept and cleansed, and the dirt, dung, and filth collected from the same to be sold and disposed of, and the produce thereof to be applied for the purposes of this Act, and in diminution of the charge on the parish for which such officers shall be appointed: provided always, that in all cases where the Magistrates or Corporation of any city or town have or shall have power and authority to regulate the sweeping or cleansing of the streets, or where any scavenger or other person shall be appointed or shall have contracted for that purpose, the said officers of health shall give twenty-four hours notice to the chief magistrate of such city or town, and to the scavenger or other person contracting for the cleansing of such streets, of the neglect or omission to sweep and cleanse the same; and that at the expiration of such twenty-four hours, in case the said streets shall not be duly swept and cleansed, it shall be lawful for the said officers of health to cause the same to be swept and cleansed, and the produce thereof to be disposed of as aforesaid, any act, charter, law, usage or custom to the contrary notwithstanding.

IX. And for the preventing the danger of contagion and other evils, from the unrestrained intercourse of strolling beggars, vagabonds, and idle poor persons seeking relief; be it enacted, That from and after the passing of this Act, it shall and may be lawful for any one Justice of Peace within his jurisdiction, or any churchwarden of any parish in any city, town, or place in Ireland, or for any officer of health appointed in any parish in pursuance of this Act, and they are hereby respectively empowered and required, to apprehend all idle poor persons, men, women, or children, and all persons who may be found begging or seeking relief, or strolling or wandering as vagabonds within any parish or place, and to direct and cause all such idle persons, beggars, and vagabonds to be removed and conveyed out of and from such parish and place, in such manner and to such place as the nature of the case may require; and it shall and may be lawful for any such Justice of the Peace, upon his own view, or upon the complaint of any churchwarden or officer of health to commit any such strolling beggar or vagabond, or idle poor person, to any Bridewell or House of Correction, or other public place of confinement, for any time not exceeding twenty-four hours previous to their removal or departure out of such parish; and it shall and may be lawful for any churchwarden or officer of health in such parish, during such period of twenty-four hours, to cause the persons and clothes of such idle poor persons, beggars, or vagabonds so committed, to be washed and cleansed; and it shall be lawful for the Justices of any county, city, or town assembled at any Quarter Sessions or adjournment thereof, to constitute and appoint any suitable unoccupied building to be a Bridewell or place of confinement for such idle persons, beggars, and vagabonds, with the consent and approbation of the owner of such house or building, and to apply to and agree with such owner for such purpose accordingly; and every beadle, constable, and peace officer within their respective districts or jurisdictions, shall be and are hereby required to be assistant to the said Justices of Peace, churchwardens, and officers of health, in such apprehension, and confinement, and treatment of such idle poor persons, beggars, and vagabonds, pursuant to the provisions of this Act.

X. And be it further enacted, That if any person or persons shall resist or oppose any Justice of Peace, churchwarden, or officer of health, in the execution of the powers of this Act, or in the doing or performing of any matter or thing in the execution of this Act, every such person or persons so guilty of resisting or opposing shall, on conviction thereof before any two Justices of Peace or Magistrates within their jurisdiction, on the oath or affirmation of any one or more credible witness, or on the confession of the party so offending, incur such penalty, not less than ten shillings nor more than five pounds, as such Justices of Peace or Magistrates shall in their discretion think proper to adjudge and inflict; or in failure of making payment of such fine, such offenders shall and may be committed to the Common Gaol or House of Correction for any time not exceeding three calendar months; and no such conviction shall be quashed for informality, nor shall be removed or removable by certiorari or otherwise, nor subject to any appeal whatever.

XI. And be it further enacted, That if any action shall be brought against any person or persons for any thing done in the execution of any of the powers or duties by this act given or required, the defendant or defendants may in every such suit plead the general issue, and give this act and the special matter in evidence; and in every case where the plaintiff or plaintiffs in such suit shall fail, the court in which such suit shall be carried on shall award costs to the defendant or defendants.

14 Geo. 3. c. 49.
An Act for regulating Mad-Houses.

Whereas, many great and dangerous abuses frequently arise from the present state of Houses kept for the reception of Lunaticks, for want of regulations with respect to the persons keeping such houses, the admission of Patients into them, and the Visitation by proper persons of the said Houses and Patients: And whereas the law, as it now stands, is insufficient for preventing or discovering such abuses; may it therefore please your Majesty that it may be enacted; and be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That, from and after the Twentieth day of November One thousand seven hundred and seventy-four, if any person or persons, in that part of Great Britain called England, the dominion of Wales, or town of Berwick upon Tweed, shall, upon any pretence whatsoever, conceal, harbour, entertain, or confine, in any house or place, kept for the reception of Lunaticks, more than one Lunatick, at any one time, without having such Licence for that purpose as is herein-after directed, (except such Lunaticks as are committed by the Lord High Chancellor of Great Britain, or Lord Keeper, or Commissioners for the Custody of the Great Seal for the time being), every such person shall, for every such offence, forfeit and pay the sum of Five hundred Pounds.

And, in order that proper persons may be appointed for visiting such houses as shall be licenced and kept for the reception of Lunaticks, within the cities of London and Westminster, and within seven miles of the same, and within the county of Middlesex, be it further enacted by the authority aforesaid, That the President and Fellows of the Royal College of Physicians in London for the time being, at a general meeting of the said College, to be held upon the last day of September, or if that day falls upon Sunday, then upon the first day of October, in every year, shall elect Five Fellows of the said College for granting such Licences as aforesaid, within the said cities of London and Westminster, and within seven miles of the same, and within the said county of Middlesex, according to the directions of this act; and the said Five Fellows, so elected, shall be and are hereby declared to be, Commissioners for granting such Licences within the limits aforesaid, for the year then next ensuing; provided that two, at least, of the said Fellows, to be so elected, shall be persons who have not acted as Commissioners for the preceding year; and that no person whatsoever shall be capable of being elected, or of acting as a Commissioner, for more than three years successively.

And be it further enacted, That in case, at any time of election there shall not be found a sufficient number of Fellows qualified or willing to act as Commissioners, the said President and Fellows are hereby required, upon every such deficiency, to elect one or more from among the Licenciates to supply the same.

And be it further enacted by the authority aforesaid, That as often as any of the Commissioners, to be elected as aforesaid, shall die, or refuse to act, the said President is hereby required to call a meeting of the said Fellows, within fourteen days next after such death or refusal shall be known to the said President, in order to elect a Commissioner in the room of every Commissioner who shall so die, or refuse to act; and every Commissioner so to be elected, shall be, and is hereby vested with the same power and authority, in all respects whatsoever, as the Commissioner in whose place he shall be chosen was vested with.

And be it further enacted, That every person who shall be elected a Commissioner to act within the cities of London and Westminster, and within seven miles of the same, and within the county of Middlesex, as aforesaid, shall, within ten days after such election, take the following Oath; (that is to say),

I A. B. do swear, That I will faithfully and impartially execute all the trusts committed unto me, by virtue of an Act of Parliament, made in the Fourteenth year of the reign of King George the Third, intituled, An Act for regulating Mad-houses; and that I will not, directly or indirectly, give notice, or cause notice to be given to the Keeper, or person having the care of any house or place licensed for the reception of Lunaticks, of the time of visitation of such house or place.

So help me GOD.

Which Oath it shall and may be lawful for the President of the College of Physicians for the time being to administer to every such Commissioner, so to be elected as aforesaid, upon the day he shall be so elected, or within ten days afterwards: And in case any person who shall be elected a Commissioner as aforesaid, and who shall be summoned by the President of the said College to attend the said President to take the said oath, at such time as shall be mentioned in such summons, shall refuse or neglect to attend, or attending, shall refuse to take the said oath, he shall forfeit and pay the sum of Five Pounds, to be applied to the use of the said College.

And be it further enacted by the authority aforesaid, That the said Commissioners, so to be elected as aforesaid, or any three or more of them, shall meet in the hall, or some other convenient place in the said College, as often as they shall think fit, so as such meetings do not interfere with the meetings of the Board of Censors, nor with any other general meeting of the College of Physicians; and that at all meetings of the said Commissioners to be holden for the purposes of this act, the Commissioner who is of the longest standing in the College shall be Chairman.

And be it further enacted, That the Treasurer of the said College for the time being shall be the Treasurer for the purposes of this act; and that the said Commissioners, or any three or more of them, shall at some meeting, to be holden within fourteen days next after they shall be elected as aforesaid, chuse and appoint a proper person to be their Secretary for the year then ensuing; and such Secretary shall be paid such salary or gratuity, for his trouble and attendance in the execution of his office, by the said Treasurer, as the said Commissioners, or any three or more of them, shall order and direct; and every such Secretary shall, at the next meeting of the said Commissioners after he shall be so appointed, take the following Oath:

I A. B. do swear, That I will faithfully execute all such trusts as shall be committed to my charge, as Secretary to the Commissioners for executing an Act of Parliament, made in the fourteenth Year of the reign of King George the Third, intituled, An Act for regulating Mad-houses; and that I will keep secret all such matters as shall come to my knowledge, in the execution of my office, (except when required to divulge the same by legal authority).

So help me GOD.

And be it further enacted, That the said Commissioners, or any three or more of them, shall meet annually on the third Wednesday in the month of October, or within ten days afterwards, in order to grant Licences to persons for keeping houses for the reception of Lunaticks for one year, from the twentieth day of November then next ensuing, within the said cities of London and Westminster, and within seven miles of the same, and within the said county of Middlesex; but notice of the place, and of the day and hour of every meeting for granting such Licences, shall always be published three several times in the London Gazette, before the day of meeting for granting any such Licences, (which Licences they are hereby required to grant to all persons who shall desire the same); and all Licences to be granted by the said commissioners shall be duly stamped with a five shillings stamp, and shall be under the hands and seals of three or more of the said commissioners, for each of which Licences there shall be paid to the said secretary, by the person applying to take out the same, the sums following; (that is to say), for each and every house wherein there shall be kept any number of Lunaticks, not exceeding ten, the sum of ten pounds; and for each and every house wherein there shall be kept above ten, the sum of fifteen pounds, and no more, over and above what shall have been paid for the said stamp; which money shall be paid over by the said secretary to the treasurer; and the further sum of six shillings and eightpence, and no more shall be paid on every such licence to the said secretary for his fee.

Provided always, That no one Licence shall authorise any person or persons to keep more houses than one for the reception of Lunaticks; nor shall any Licence, to be granted by virtue of this act, continue in force for any longer time than for one year.

And be it further enacted by the authority aforesaid, That no commissioner, to be appointed as aforesaid, shall, directly or indirectly, during the time he shall be a commissioner, be interested in keeping any house for the reception of Lunaticks, upon pain of forfeiting, for such offence, the sum of fifty pounds.

And be it further enacted, That the president of the said College of Physicians for the time being shall, and is hereby required to cause summons to be sent to the said several commissioners, requiring them to attend at the first meeting after they shall be appointed commissioners, as aforesaid; all which summons shall be sent by the beadle, or such other person belonging to the said College, as the said president shall think proper; and shall be left at the respective houses, or usual places of abode, of each commissioner.

Provided nevertheless, That in case any two commissioners shall, at any time or times, think proper to call a meeting of the said commissioners, such two commissioners may themselves cause the like notice to be given, and to be sent, in manner aforesaid, to the other commissioners, requiring their attendance at such time and place as shall be expressed in such notice.

Provided always, That at all meetings of the said commissioners in the execution of this act, in case of an equality of votes, the chairman shall have the casting vote.

And be it further enacted, That the said commissioners, or any three or more of them, either by themselves or with their secretary, as they shall think fit, shall, and they are hereby required, once at least in every year, and whenever required by the Lord High Chancellor, or Lord Keeper, or Commissioners for the custody of the Great Seal, or by the Lord Chief Justice of the Court of King’s Bench, or by the Lord Chief Justice of the Court of Common Pleas, for the time being, to visit and inspect all such houses as shall have been licensed by them, as aforesaid, between the hours of eight and five in the day-time; and may, in like manner, at any other time or times, within the hours aforesaid, visit and inspect all such houses as often as they, or any three or more of them, shall think necessary, and shall have, at all such times, liberty and power to continue in such house, and to examine the persons confined as Lunaticks therein, for such time as they shall think proper.

And be it further enacted, That the said commissioners, or their secretary, shall, at every such visitation, make minutes, in writing, of the state and condition of all such houses which they shall so visit, as to the care of the patients therein, and all such other particulars as they shall think deserve their notice, together with their observations thereupon; all which minutes shall, within one week next after such visitation, be by the said secretary entered, by way of report, in a register to be kept by him in the said College of Physicians for that purpose, and the same shall be read to, and signed by, the said commissioners, or any three or more of them, at their next meeting: but no minute which tends to impeach the character of any house shall be so entered, unless such minute shall have been previously signed by three or more of the said commissioners who shall have been present at such visitation; and in case the commissioners, upon their visitation, shall discover any thing that, in their opinion, shall deserve censure or animadversion, they shall, in that case, report the same: and such part of their report, and no more, shall be hung up in Censor’s room of the College, to be perused and inspected by any person who shall apply for that purpose.

And be it further enacted, That in case the keeper of any house or place for the reception of Lunaticks, within the cities of London or Westminster, or within seven miles distance thereof, or within the county of Middlesex, shall refuse all or any of the said commissioners, at the time of their visitation, admittance into such house or place as aforesaid, with or without their secretary, the master or keeper of such house or place shall, for such offence, forfeit his licence.

And be it further enacted, That the said commissioners, or any three or more of them, shall, from time to time, cause an exact account to be kept of all their proceedings; and all such accounts shall be entered in the same register as the minutes taken at their visitations are directed to be entered as aforesaid; and the said register shall be lodged in the College of Physicians in a strong chest or box, which said chest or box shall be under the care of the beadle or house-keeper belonging to the said College, and shall be carefully locked up, from time to time, by the secretary to the said commissioners, and the key thereof kept by such secretary; which said register shall be deemed to belong to the said commissioners, and the key of the said chest or box shall be delivered over to every succeeding secretary, whenever the former secretary shall go out of office, and be kept by such succeeding secretary in manner aforesaid, for the use of the said commissioners.

Provided always, That the president of the said College shall have liberty to inspect the said register, from time to time, as often as he shall think proper, provided such inspection be made at the College, and in the presence of the secretary to the said commissioners.

And be it further enacted, That if any person shall apply to one of the commissioners, in order to be informed whether any particular person or persons have been confined in any of the said licensed houses, and the said commissioners shall think it reasonable to permit such inquiry to be made, and shall sign an order, directed to the secretary for that purpose; he, the said secretary, is hereby required, upon the receipt of such order, to make search upon his papers: and if it shall appear upon such search, that the person or persons so enquired after have been confined in any of the said houses, the said secretary shall immediately acquaint the persons so applying with the name of the keeper in whose house, and also the names of those by whose direction and advice, such person or persons have been so confined.

And be it further enacted, That the said treasurer shall, and is hereby required to pay to each of the commissioners for every time they shall, in obedience to this act, or any requisition therein contained, visit and inspect any such licensed house or place, as aforesaid, within the limits aforesaid, the sum of one guinea; and shall also pay and discharge all such reasonable expenses of the said commissioners as they shall, from time to time, incur in the execution of this act; and the said treasurer is hereby required, from time to time, to keep an exact and true account of all monies by him received and disbursed in relation to this act, and shall enter such account in a book to be kept for that purpose; which book shall be lodged in the box or chest where the register of the proceedings of the said commissioners is directed to be kept, as aforesaid: which accounts shall be produced to the president of the said college, when required by the said president and elects, to be examined and settled by them; and if, upon such examination, the said accounts shall appear to be just and reasonable, the same shall be allowed and signed by the said president, and at least four of the elects, and shall be by the said president reported, together with the other accounts, at the next General Meeting of the said college; and the said account, being so allowed, signed, and reported, shall be a full discharge to the said treasurer for so much money as shall in such account appear to have been disbursed by him, on account of the execution of this act.

And, in order that the said commissioners may know when any patient is received into any such licensed house or place, as aforesaid, be it further enacted by the authority aforesaid, That the keeper of every such licensed house or place within the said cities of London and Westminster, and within seven miles of the same, and within the said county of Middlesex, is hereby required, within the space of three days after any patient shall be received into any such licensed house or place, (except such pauper lunaticks as shall happen to be sent there by parish officers), to cause notice thereof to be given to the secretary to the said commissioners, which notice shall contain the name of every such person received as a lunatick into such house or place, the name or names, and place or places of abode, of the person or persons by whose direction such lunatick was sent to such house or place, and also the name and place of abode of the physician, surgeon, or apothecary, by whose advice such direction was given; all which notices shall be sent sealed up, directed To the Secretary to the Commissioners for licensing Houses for the Reception of Lunaticks, to be left with the Beadle of the College of Physicians in London; all which notices the said beadle is hereby directed to receive, and to deliver to the said secretary, within two days after the same shall come to his hands; and the secretary is hereby required to file and preserve all such notices, and also to enter, or cause a copy or extract thereof to be entered, in the register, within two days after the receipt of such notices; and every keeper of any such licensed house or place, who shall admit, harbour, entertain, or confine, any person as a lunatick, without having an order, in writing, under the hand and seal of some physician, surgeon, or apothecary, that such person is proper to be received into such house or place as a lunatick, or shall receive any lunatick into any such house or place, having such order, and shall not give notice thereof to the secretary of the said commissioners, within the time, and in the manner aforesaid, shall forfeit and pay the sum of One hundred pounds.

And, in order that such houses or places for the reception of lunaticks as are not situated within the limits aforesaid may be put under some regulation, be it further enacted, That no house, which is not within the said city of London, or within seven miles of the same, or within the said county of Middlesex, shall be kept for the reception of more than one lunatick, unless such house or place shall be licensed by the Justices of the Peace, at some Quarter Sessions of the Peace to be holden for the county or place wherein such house or place shall be situated.

And be it further enacted, That the Justices of the Peace, at any General Quarter Sessions of the Peace, to be holden for any such County or Place, are hereby authorised and required to grant Licenses to such person and persons as shall apply for that purpose, such person or persons paying for each License the sums following; (that is to say), for each and every house, wherein there shall be kept any number of lunaticks, not exceeding ten, the sum of Ten Pounds, and no more; and for each and every house, wherein there shall be kept above the number of ten lunaticks, the sum of Fifteen Pounds, and no more; and that no one License shall authorise any person or persons to keep more houses than one for the reception of lunaticks, nor shall any such License be granted for any longer term than for one year; and the said Justices shall, at the time of granting such Licenses as aforesaid, nominate and appoint two Justices of the Peace for the said County, and also one Physician, to visit and inspect all such houses as shall be licensed by such Justices as aforesaid; and the said Justices and Physicians, so nominated and appointed, or any two of them, whereof the Physician to be one, may, and are hereby authorised and impowered to visit, in the day-time, every house so licensed, within the County where such house or place shall be so licensed, as often as they shall think fit.

And be it further enacted, That the said Justices and Physicians, so nominated, or such of them as shall visit any licensed house as aforesaid, may, at every visitation, if they think necessary, make, or cause to be made, minutes, in writing, of the state and condition of every house which they shall visit, as to the care of the patients therein, and all such other particulars as they shall think deserve their notice, together with their observations thereupon; all which minutes shall be entered, by way of report, in a Register to be kept for that purpose, by the Clerk of the Peace for the County where such house or houses shall be licensed as aforesaid, a copy whereof shall, from time to time, be sent by the said Clerk of the Peace to the Secretary to the said Commissioners, to be by him inserted in a separate Register; which Register shall be kept in the same box, and in the same manner, as the Register belonging to the said Commissioners is herein-before directed to be kept; and the said Clerk of the Peace shall be paid such sum and sums of money for his trouble in the execution of this Act as the said Justices shall order and direct; and all money to be paid for such Licenses as shall be granted by the said Justices of the Peace, as aforesaid, shall be paid to the Clerk of the Peace, as aforesaid, who shall keep an account thereof, in a book or books to be kept for that purpose, and shall account for the same to the said Justices, as often as he shall be required so to do; and all expenses attending the execution of this Act, (except within the cities of London and Westminster, and within seven miles thereof, and also except within the said County of Middlesex), shall be defrayed out of such money as aforesaid, in such manner as the said Justices shall, from time to time, within their respective Counties, order and direct.

And be it further enacted, That at such General Quarter Session, when such Justices and Physician shall be appointed as aforesaid, the Clerk of the Peace shall take the like Oath as is appointed by this Act to be taken by the Secretary of the Commissioners.

And be it further enacted, That in case the keeper of any house or place for the reception of lunaticks, not being within the said city of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall, in the day-time, refuse the said Justices and Physician, on such visitation, admittance, at any time or times, into such house or place as aforesaid, the master or keeper of such house or place shall, for such offence, forfeit his License.

And be it further enacted by the Authority aforesaid, That the keeper of any house or place for the reception of lunaticks, not being within the said city of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall, and is hereby required, to give such notice, as aforesaid, of the receipt of every such lunatick (except such pauper lunaticks as shall happen to be sent there by parish officers) to the Secretary to the Commissioners, at the College of Physicians aforesaid, within the space of fourteen days from the time of such lunatick’s being received into any such house or place; and every keeper of any such licensed house or place, who shall admit, harbour, entertain, or confine, any person as a lunatick, without having an order in writing, under the hand and seal of some Physician, Surgeon, or Apothecary, that such person is proper to be received into such house or place as a lunatick, or shall receive any lunatick into any such house or place, having such order, and shall not give notice thereof to the Secretary of the said Commissioners, within the time, and in the manner aforesaid, shall forfeit and pay the sum of One hundred pounds.

And be it further enacted, That no such License shall be granted as aforesaid, either by the said Commissioners or Justices of the Peace, as aforesaid, unless upon granting such License, the person to whom such License is granted shall enter into recognizance to the king’s Majesty, his heirs and successors, in the sum of One hundred pounds, with two sufficient securities, each in the sum of Fifty pounds, or one sufficient security in the sum of One hundred pounds, under the usual conditions, for the good behaviour of such person during the time for which such License shall be granted.

And be it further enacted by the Authority aforesaid, That the Lord High Chancellor of Great Britain, or Lord Keeper, or the Commissioners for the Custody of the Great Seal, or the Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, for the time being, may, at any time or times, by any written order, directed to the Commissioners appointed by this Act, or to the Justices of the Peace and Physician, appointed Visitors, at any General Quarter Session, require the said Commissioners, or any three or more of them, or the said Visitors, or any two of them, to visit or inspect any house or houses so licensed; and also to make a report to him or them, touching such matters as they shall, in such orders, be directed to inquire into, or as they shall think deserving his or their Lordships notice; and the said Lord High Chancellor, or Lord Keeper, or Commissioners for the Custody of the Great Seal, or Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, may also, at any time or times, by a like order, send for, and inspect the Register or Registers so to be kept as aforesaid; and may summon and examine all or any of the persons concerned in the execution of this Act, as often as shall be thought necessary and proper; and in case they, or any of them, shall not obey all such orders as aforesaid, within two days after the receipt of the same, and shall not shew sufficient cause to the contrary, every person, so offending, shall be deemed guilty of a contempt of the Court of Chancery, Court of King’s Bench, or Court of Common Pleas, as the case may be.

Provided always, and it is hereby declared, That nothing in this Act contained shall extend, or be construed to extend, to any of the publick hospitals within this kingdom.

And whereas it is not intended by this Act to give the keepers of any house or houses, so to be licensed as aforesaid, or any other person concerned in confining any of his Majesty’s subjects therein, any new justification from their being able to prove that the persons so confined have been sent there by such direction and advice as are required by this Act; be it therefore declared and enacted, That in all proceedings that shall be had under His Majesty’s Writ of Habeas Corpus, and in all indictments, informations, and actions, that shall be preferred and brought against any person or persons, for confining or ill-treating any of His Majesty’s subjects, in any of the said houses, the parties complained of shall be obliged to justify their proceedings according to the course of the common law, in the same manner as if this Act had not been made.

And be it further enacted by the Authority aforesaid, That all penalties and forfeitures which shall be incurred within the said cities of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, for offences against this Act, shall and may be sued for and recovered in any of the Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, by the President of the said College for the time being, in the name of the Treasurer belonging to the said College, at any time within six calendar months after the offence committed; and all such penalties and forfeitures, when recovered, shall and are hereby directed to be paid to the said Treasurer; and shall be applied (except such penalties and forfeitures as are otherwise directed to be applied by this Act) in manner following; (that is to say), one moiety of all such penalties and forfeitures shall go to the informer, and the other moiety towards defraying the expenses attending the execution of this Act: And all penalties and forfeitures which shall be incurred for offences against this Act, not within the said cities of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall and may be sued for and recovered by Action of Debt, Bill, Plaint, or Information, by and in the name of the Clerk of the Peace for the County where any such offence shall be committed; and all such penalties and forfeitures, when recovered, shall be applied, one moiety to the informer, and the other moiety for defraying the expenses attending the execution of this Act, within such County.

And be it further enacted, That if any Action or Suit shall be commenced or brought against any person or persons, for any thing done in pursuance of this Act, the same shall be commenced within six calendar months next after the fact committed; and shall be laid or brought in the county, city, or place, where the cause of Action shall have arisen, and not elsewhere; and the defendant or defendants, in every such Action or Suit, shall and may, at his election, plead specially, or the general issue, Not Guilty; and give this Act, and the special matter, in evidence, at any trial to be had thereupon, and that the same was done in pursuance and by the authority of this Act: And if the same shall appear to be so done, or that such Action or Suit shall be brought in any other county, city, or place, or shall not have been commenced within the time before limited for bringing the same; that then the jury shall find a verdict for the defendant or defendants; and, upon a verdict being so found, or if the plaintiff or plaintiffs shall be nonsuited, or discontinue his, her, or their Action or Suit, after the defendant or defendants shall have appeared; or if, upon demurrer, judgment shall be given against the plaintiff or plaintiffs, then the defendant or defendants shall recover treble costs, and have such remedy for recovering the same as any defendant or defendants hath or have in any other cases by law.

And be it further enacted, That this Act shall be deemed and taken to be a Public Act; and be judicially taken notice of as such, by all Judges, Justices, and other persons whomsoever, without specially pleading the same.

And be it further enacted by the Authority aforesaid, That this Act shall continue in force for the term of Five Years, and from thence to the end of the then next Session of Parliament.

REPORT.
The Select Committee appointed to consider the validity of the doctrine of Contagion in the Plague; and to report their observations thereupon, together with the Minutes of the Evidence taken before the House: Have considered the matters to them preferred, and have agreed upon the following Report.

Your Committee being appointed to consider the validity of the received doctrines concerning the nature of contagious and infectious diseases, as distinguished from other epidemics, have proceeded to examine a number of medical gentlemen, whose practical experience or general knowledge of the subject appeared to your Committee most likely to furnish the means of acquiring the most satisfactory information. They have also had the evidence of a number of persons whose residence in infected countries, or whose commercial or official employments enabled them to communicate information as to facts, and on the principle and efficacy of the laws of Quarantine; all the opinions of the medical men whom your Committee have examined, with the exception of two, are in favour of the received doctrine, that the Plague is a disease communicable by contact only, and different in that respect from Epidemic fever; nor do your Committee see any thing in the rest of the evidence they have collected, which would induce them to dissent from that opinion. It appears from some of the evidence, that the extension and virulence of the disorder is considerably modified by atmospheric influence; and a doubt has prevailed whether under any circumstance, the disease could be received and propagated in the climate of Great Britain. No fact whatever has been stated to show, that any instance of the disorder has occurred, or that it has ever been known to have been brought into the Lazarettos for many years: but your Committee do not think themselves warranted to infer from thence, that the disease cannot exist in England; because in the first place, a disease resembling, in most respects, the Plague, is well known to have prevailed here in many periods of our history, particularly in 1665-6: and further, it appears that in many places, and in climates of various nature, the Plague has prevailed after intervals of very considerable duration.

Your Committee would also observe, down to the year 1800, Regulations were adopted, which must have had the effect of preventing goods infected with the Plague from being shipped directly for Britain; and they abstain from giving any opinion on the nature and application of the Quarantine regulations, as not falling within the scope of enquiry to which they have been directed; but they see no reason to question the validity of the principles upon which such regulations appear to have been adopted.

14th June, 1819.

Chorley, M. D. v. Bolcot, executor.
(From 4 T. R. p. 317.)

The plaintiff, who was a physician living at Doncaster, brought this action for fees, for attending a considerable time on the defendant’s testator, who lived at some little distance from the town; and the evidence was, that at Doncaster and its neighbourhood there was no certain rule about fees, but the general practice was for a physician to receive two guineas a week for his attendance. The plaintiff obtained a verdict at the last assizes at York; to set aside which Wood obtained a rule nisi last term, on the ground that no action lay for a physician’s fees any more than for a barristers.

Cockell, Serj. and Chambre, now shewed cause; observing that though this point had been ruled several times at nisi prius against such a claim, yet it had never been solemnly decided, nor was there any authority in the books for putting the claim of a physician’s fees upon the same footing as those of a barrister. In the latter case it might originally have been proper that no temptation should be held out to countenance injustice: but in the former it would be equally impolitic that those who are frequently put to expense in attending patients at a distance, and who are liable to make reparation to those who may suffer by their want of skill, should not be certain of a just and honourable reward. The regulation with regard to barristers is founded on grounds of public policy, as appears by the passage in Tacitus, to which Mr. J. Blackstone refers; but they are totally inapplicable to the case of physicians. And in that very passage in Tacitus it is taken for granted that the latter were entitled to a remuneration, because their situation was dissimilar to that of advocates. Besides in this case there is an additional reason why the plaintiff should recover, as there is understood to be a general stipulated acknowledgment for a physician’s attendance at the place where this transaction arose.

Lord Kenyon, Ch. J. I remember a learned controversy some years ago as to what description of persons were intended by the Medici at Rome; and it seemed to have been clearly established by Dr. Mead, that by those were not meant physicians, but an inferior degree amongst the professors of that art, such as answer rather the description of surgeons amongst us. But at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right. And it is much more for the credit and rank of that honorable body, and perhaps for their benefit also, that they should be so considered. It never was yet heard of that it was necessary to take a receipt upon such an occasion. And I much doubt whether they themselves would not altogether disclaim such a right as would place them upon a less respectable footing in society than that which they at present hold.

Per Curiam.

Rule absolute.

Lipscombe v. Holmes, esq.
(From Campbell.)

This was an action for work and labour as a surgeon, and for curing the defendant and several persons of his family, of divers diseases and maladies, under which they had respectively laboured and languished. The defendant pleaded the general issue, and paid 3l 13s 6d into court.

The first defence set up was, that the plaintiff was a physician, and therefore could not maintain an action for his fees. It appeared that he wrote prescriptions, was called “Doctor,” and signed himself M. D.

Park said he should shew, that at the time when the visits were paid, for which the action was brought, the plaintiff was only a surgeon; and that he had not taken out his diploma as a physician till long after.

Lord Ellenborough.—If a person passes himself off as a physician, he must take the character cum onere. When he brings an action for visits paid by him as a physician, I will give him credit for being so, and tell him he must trust to the honour of his patients. Whether the plaintiff had or had not a diploma when he attended the defendant, is immaterial. Whatever he was, if he at that time wrote prescriptions and added M. D. to his name, he must be nonsuited.

Park then produced the rule for paying money into court, which his lordship thought removed the objection, and admitted the plaintiff’s right to sue as a surgeon.

It was afterwards agreed to withdraw a juror.

Slater v. Baker and Stapleton, C. B.
(From 2 Wils. R. 359.)

Special action upon the case, wherein the plaintiff declares that the defendant Baker being a surgeon, and Stapleton an apothecary, he employed them to cure his leg which had been broken and set, and the callous of the fracture formed; that in consideration of being paid for their skill and labour, &c. they undertook and promised, &c. but the defendants not regarding their promise and undertaking, and the duty of their business and employment, so ignorantly and unskilfully treated the plaintiff, that they ignorantly and unskilfully broke and disunited the callous of the plaintiff’s leg after it was set, and the callous formed, whereby he is damaged. The defendants pleaded not guilty, whereupon issue was joined, which was tried before the Lord Chief Justice Wilmot, and a verdict found for the plaintiff, damages £500. The substance of the evidence for the plaintiff at the trial was, first a surgeon was called, who swore that the plaintiff having broken both the bones of one of his legs, this witness set the same, that the plaintiff was under his hands nine weeks, that in a month’s time after the leg was set, he found the leg was healing and in a good way; the callous was formed, there was a little protuberance, but not more than usual; upon cross examination he said he was instructed in surgery by his father, that the callous was the uniting the bones, and that it was very dangerous to break or disunite the callous after it was formed.

John Latham an apothecary swore he attended the plaintiff nine weeks, who was then well enough to go home, that the bones were well united, that he was present with the plaintiff and defendants, and at first the defendants said the plaintiff had fallen into good hands; the second time he saw them all together the defendants said the same, but when he saw them together a third time there was some alteration, he said the plaintiff was then in a passion, and was unwilling to let the defendants do any thing to his leg; he said he had known such a thing done as disuniting the callous, but that had been only when a leg was set very crooked; but not where it was straight.

A woman called as a witness, swore that when the plaintiff came home he could walk with crutches, that the defendant Baker put on to the plaintiff’s leg an heavy steel thing that had teeth, and would stretch or lengthen the leg, that the defendants broke the leg again, and three or four months afterwards the plaintiff was still very ill and bad of it.

The daughter of the plaintiff swore, that the defendant Stapleton was first sent for to take off the bandage from the plaintiff’s leg; when he came he declined to do it himself, and desired the other defendant Baker might be called in to assist; when Baker came he sent for the machine that was mentioned; plaintiff offered to give Baker a guinea, but Stapleton advised him not to take it then, but said they might be paid all together when the business was done; that the third time the defendants came to the plaintiff, Baker took up the plaintiff’s foot in both his hands and nodded to Stapleton, and then Stapleton took the plaintiff’s leg upon his knee, and the leg gave a crack when the plaintiff cried out to them and said, “you have broke what nature had formed;” Baker then said to the plaintiff You must go through the operation of extension, and Stapleton said we have consulted and done for the best.

Another surgeon was called and swore, that in cases of crooked legs after they have been set, the way of making them straight is by compression and not by extension, and said he had not the least idea of the instrument spoken of for extension; he gave Baker a good character, as having been the first surgeon of St. Bartholomew’s hospital for twenty years, and said he had never known a case where the callous had deossified.

Another surgeon was called who swore, that when the callous is formed to any degree, it is difficult to break it, and the callous in this case must have been formed, or it would not have given a crack, and said extension was improper, and if the patient himself had asked him to do it, he would have declined it, and if the callous had not been hard he would not have done it without the consent of the plaintiff, that compression was the proper way, and the instrument improper; he said the defendant Baker was eminent in his profession. Another surgeon was called who swore, that if the plaintiff was capable of bearing his foot upon the ground, he would not have disunited the callous if he had been desired by him, but in no case whatever without consent of the patient; if the callous was loose it was proper to make the extension to bring the leg into a right line. A servant of the plaintiff swore the plaintiff had put his foot upon the ground three or four weeks before this was done.

The counsel for the defendants at the trial, for Baker, relied upon the good character which was given him, and objected there was no evidence to affect the other defendant Stapleton the apothecary; but the Lord Chief Justice thought there was such evidence against both the defendants as ought to be left to the jury, as the nodding, the advising Baker not to take the guinea offered to him by the plaintiff, besides the apothecary first proposed sending for Baker; the plaintiff was in no pain before they extended his leg, and he only sent to Stapleton to have the bandage taken off: the Lord Chief Justice asked the Jury whether they intended to find the damages against both the defendants, and they found £500 against them jointly, and he said he was well satisfied with the verdict.

It was now moved that the verdict ought to be set aside because the action is upon a joint contract, and there is no evidence of a joint undertaking by both defendants; the plaintiff sends for Stapleton to take off the bandage who declines doing it, and says, I do not understand this matter, you must send for a surgeon; accordingly Mr. Baker is sent for, who enters upon the business as a surgeon unconnected with Stapleton, who, it does not appear, ever undertook for any skill about the leg, so the jury have found him guilty without any evidence. That Baker has been above twenty years the first surgeon in St. Bartholomew’s hospital, reads lectures in surgery and anatomy, and is celebrated for his knowledge in his profession as well as his humanity; and to charge such a man with ignorance and unskilfulness upon the records of this court is most dreadful; all the witnesses agreed Mr. Baker doth not want knowledge, therefore this verdict ought not to stand. 2dly, It was objected that the evidence given does not apply to this action, which is upon a joint contract; the evidence is that the callous of the leg was broke without the plaintiff’s consent; but there is no evidence of ignorance or want of skill, and therefore the action ought to have been trespass vi & armis for breaking the plaintiff’s leg without his consent; all the surgeons said they never do any thing of this kind without consent, and if the plaintiff should not be content with the present damages, but bring another action of trespass vi & armis, could this verdict be pleaded in bar? the court without hearing the counsel for the plaintiff gave judgment for him.

Curia: 1st, It is objected that this is laid to be a joint undertaking, and therefore it ought to be proved, and we are of opinion that it ought; the question therefore is, whether there is any evidence of a joint undertaking; we are of opinion there is; Mr. Stapleton declines acting alone, but in concurrence with Mr. Baker attends the plaintiff every time any thing is done, and assists jointly with Mr. Baker; this appears in evidence, and is sufficient, for there is no occasion to prove an express joint contract, promise or undertaking; when an offer is made to Baker of a guinea, Stapleton says, you had better be paid all at last; they both attended plaintiff together every time, and Stapleton said, we have consulted and done for the best; when the plaintiff complained of what they had done, Stapleton considered himself as one of the persons to join in the cure of the leg, for he put his hand on the knee when Baker nodded, and then the bone cracked; he is the original person aiding in this matter, and there is no ground for this objection. When we consider the good character of Baker, we cannot well conceive why he acted in the manner he did; but many men very skilful in their profession have frequently acted out of the common way for the sake of trying experiments; several of the witnesses proved that the callous was formed, and that it was proper to remove the plaintiff home; that he was free from pain and able to walk with crutches; we cannot conceive what the nature of the instrument made use of is; why did Baker put it on when he said that plaintiff had fallen into good hands, and when plaintiff only sent for him to take off the bandage, it seems as if Mr. Baker wanted to try an expedient with this new instrument.

2dly, It is objected that this is not the proper action, and that it ought to have been trespass vi & armis; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass vi & armis to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers vi & armis; the court will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in England, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons.

Judgment for the plaintiff per totam curiam.

Seare against Prentice.
From 8 East.

This was an action on the case brought by the plaintiff, a shoemaker, against the defendant, whom he employed as a surgeon, for negligently, ignorantly, and unskilfully reducing a dislocated elbow and fractured arm of the plaintiff, of which he had undertaken the cure. The cause was tried before Heath J. at the last assizes at Hertford; and a verdict having been given for the defendant under the direction of the learned Judge; that direction was now impeached, and a rule nisi for setting aside the verdict and granting a new trial was moved for by Gurney, upon the ground that there was evidence laid before the jury of the unskilful treatment of the plaintiff by the defendant; but that they were told by the learned Judge, that unless negligence were proved, they could not examine into the want of skill: and the evidence, he now admitted, did not substantiate the charge of negligence, though it proved the want of skill. And he referred to Slater v. Baker[[178]], to shew that an action lay against a surgeon for ignorance and unskilfulness in his profession: and to Bull, N. P. 73. where the general rule is laid down, that in all cases where a damage accrues to another by the negligence, ignorance, or misbehaviour of a person in the duty of his trade or calling, an action on the case will lie: as if a farrier kill my horse by bad medicines, or refuse to shoe, or prick him in the shoeing.

The Court granted a rule nisi. And now, upon the Judge’s Report being read, the case appeared to be this:

The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of April 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant’s care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. Kingston, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. Pidcock, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. Kingston, the surgeon, then proved that in July 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff’s arm was almost straight; he could not turn his wrist, and had no motion in his elbow. That the witness broke the callous and set it again, and made (what the witness himself described as) a very fine cure, which was spoken of about the country. He imputed the failure of the defendant in his attempt to cure the plaintiff to negligence and carelessness: an apprentice boy (he said) might have known better: that the bone might have been set within five hours after the accident; though he admitted that the swelling, if much, must first be reduced, which might take a fortnight. And he recommended the plaintiff to bring an action. He also spoke to a conversation with the defendant, who considered it as a very difficult dislocation to reduce; and said that he would make a compensation to the plaintiff. The learned Judge told the jury that the gist of the action was negligence; of which direct evidence might be given; or it might be inferred by the jury, if the defendant had proceeded without any regard to the common ordinary rules of his profession, That unskilfulness alone, without negligence, would not maintain the action. And that he was at a loss to state to the jury what degree of skill ought to be required of a village surgeon. But that, whether or not his direction were accurate in this respect, at any rate the witness Kingston imputed only negligence and carelessness to the defendant and Pidcock, in not discovering the fracture of the bone of the arm when they reduced the dislocated elbow; which there was no doubt was properly reduced: and that considering all the circumstances of the case, he did not think that such gross negligence was imputable to the defendant as to make him liable in damages to the plaintiff. The report concluded by stating that the jury found a verdict for the defendant, much to the Judge’s satisfaction; who intimated that the vaunting language of the witness Kingston must have diminished his credit with the jury.

Shepherd Serjt. and Espinasse were now to have shewn cause: but though all the Court seemed to be satisfied, as well now as when the rule was moved for, that the action well lay for unskilfulness in the profession of a surgeon; yet upon a revision of the evidence as reported, they asked of the plaintiff’s counsel what evidence there was of want of skill in the defendant; Kingston, the surgeon, only imputing to him negligence and carelessness; which the learned Judge had stated to be a ground of action, and had left to the jury for their consideration; but which the jury had negatived; as indeed the evidence well warranted them in doing.

Gurney, in support of the rule, said, that it was to be collected from the whole of Kingston’s evidence that he imputed want of skill to the defendant; and that was shewn by the expression used by him, that an apprentice boy might have known better. That so much skill at least was required of a surgeon as to be able to tell whether or not an arm was broken, or an elbow dislocated. But it was enough that the question of want of skill was wholly withdrawn from the consideration of the jury.

Lord Ellenborough C. J. The surgeon who was examined specifically imputed the failure of the cure to negligence and carelessness, whatever other expression he may have used in the manner of giving his evidence, upon which the learned Judge has commented. Therefore, however we may differ from the learned Judge, as I certainly do, in thinking that an ordinary degree of skill is necessary for a surgeon who undertakes to perform surgical operations; which is proved by the case in Wilson, and indeed by all analogous authorities; in the same manner as it is necessary for every other man to have it in the course of his employment; as the farrier who undertakes to cure any horse must have common skill at least in his business, and that is implied in his undertaking: and although I am ready to admit that a surgeon would be liable for crassa ignorantia, and would be justly responsible in damages for having rashly adventured upon the exercise of a profession, without the ordinary qualification of skill, to the injury of a patient: yet the question did not arise upon the evidence in this case; for no want of skill was imputed to the defendant: and therefore the opinion of the learned Judge upon that point does not affect the merits of the verdict upon the evidence in the cause.

The other Judges concurred; and Grose J. referred to 3 Blac. Com. (ch. 9. p. 163, 4.) as confirming the general doctrine.

Rule discharged.

APPENDIX.
PART II.

Mich. Term. 1821, C. B.
Severn v. Olive.

Mr. Serjeant Lens appeared to show cause against a rule obtained in this case. The case arose out of the well-known one of Messrs. Severn, King, and Co., sugar-refiners, against some of the Insurance Companies, for losses sustained in the destruction of their extensive premises, near Whitechapel. It will be recollected, that in the two trials which arose out of that event, a great number of scientific men were examined on both sides as to the result of experiments made by them in the process of boiling sugar by means of heated oil. The verdict in both cases, as is known, was for the plaintiffs. In the bill of costs, sent in to the defendants, charge was made for the attendance of the learned chymists, who gave evidence for the plaintiffs, and also for their loss of time and trouble in making those experiments. Other charges were made for the expense of the experiments themselves. The prothonotary who taxed the costs allowed both the charges in principle, though not to the extent set down in the bill. It was in consequence of having made those allowances that a rule had been granted to show cause why he should not review his taxation of costs.

Mr. Sergeant Lens, in showing cause against the rule, contended that the allowance for loss of time to Dr. Thomson was a very natural and just one. Dr. Thomson was Professor of Chymistry in the University of Glasgow, and had been obliged to come up to London three times, at considerable inconvenience and expense, to give evidence in the case. He had been at great trouble in making and superintending experiments, and the prothonotary, in taking the costs, had allowed a reasonable sum for the whole. It was the same in the cases of the other scientific gentlemen who attended.

The Prothonotary here observed, that he considered the allowance for expenses and loss of time of Dr. Thomson and other gentlemen as very just. It was usual to allow for loss of time in such cases.

The Chief Justice said, that in certain cases allowances were made for loss of time, and the question here was, how far the present case came within the rules of those allowances. As a general principle, allowances to witnesses for loss of time could not be maintained. No doubt it was a great inconvenience, that individuals whose business required their whole time should be obliged to devote part of that time to the concerns of others without reward; but it was an inconvenience to which all were equally subject in turn; and as it was to answer the ends of public justice, it ought to be borne. As to allowance for loss of time, he considered the thing decided by the case of Willis v. Peckkan (4th Moore). An action had been brought in that case to recover 3l. for loss of time whilst giving evidence in a case. It was contended for the defendants that no such action could be maintained, except by medical men and attornies. The court was of the same opinion; but the jury, nevertheless, found a verdict for the plaintiff. In the following term a motion was made to have the verdict set aside and a nonsuit entered. The court, after hearing the arguments on both sides, decided that a nonsuit must be entered; and further held, that only medical men and attornies could charge for loss of time, as witnesses. The matter was settled, before, in the Court of King’s Bench, in the case of “Moore v. Adam.” The court were therefore of opinion, that as far as this allowance for loss of time, the taxation should be reviewed.

Mr. Sergeant Lens then proceeded to other parts of the rule, and contended that the apportioning of the costs between the Phœnix and Imperial Insurance was the fairest mode which could be adopted, as each had two actions, though they were not all tried, and the evidence in each was the same.

The Chief Justice asked how much the expense of the experiments made amounted to.

The Prothonotary said that all the items were so mixed up, that it would be impossible to ascertain at that moment.

The Chief Justice—It is important that the charge for experiments should be known. The opinion of men of science is received as evidence, because it arises from pre-existing science; but surely, as in the present case, they ought not to acquire their knowledge at the expense of the parties against whom their evidence is to weigh.

Mr. Sergeant Vaughan, on the same side with Sergeant Lens, submitted that it could never have been intended that men should not be allowed some recompense for loss of time. It would be not only an injustice, but a cruelty in many cases, if such a principle were to be adopted. Indeed, the principle was constantly departed from, in cases where the time of individuals had been a good deal engaged. In the case of Lopez v. De Tastet, the evidence of a Spanish captain of a ship was taken, and it caused him to delay a considerable time in town, and in the taxing of the costs a round sum was very properly allowed by the prothonotary, which, no doubt, was meant not merely to cover his expenses in town, but to compensate him for the loss of time.

The Chief Justice.—We had a consultation, not long since, in a well-known case, and in another place, whether the profits of a voyage should not be allowed for, and as to whether a certain sum given to a captain of a ship should be looked upon as compensation for loss of time, or in the light of a bribe.

Mr. Sergeant Vaughan said he knew the case to which his lordship alluded. He went on to say, that the prothonotary had not made any specific allowance for loss of time as such, but had mentioned one sum for trouble, expense, and loss of time. As to the costs of the experiments which had been made, he submitted that in a case where the subject was quite new, and as they were not made wantonly or with a view to put a party to unnecessary expense, the costs of them ought to be allowed. They were made bona fide for this case; the materials and apparatus were also provided with reference to the present case alone. Under such circumstances, he submitted that they ought to be allowed; and he ought to add, that their affidavits set forth, that the experiments were made in consequence of its being known that similar experiments were made on the other side.

Mr. Sergeant Taddy followed on the same side, and observed, that while he admitted the general principle that expenses were not allowed for loss of time, except to physicians and attornies, he could not see why scientific men, such as chymists, should not be brought under the same rule as physicians.

The Chief Justice.—For this reason, that to a physician loss of time is considered as loss of profit. A physician cannot visit a patient by deputy, as the patient might not have the same confidence in that person as in that physician, and this I take to be the reason why the loss of time is allowed. For reasons similar in principle the loss is also compensated in the attorney.

Mr. Justice Park.—Suppose a clergyman, living in Cumberland, were summoned to give evidence in a case in London, and that being delayed here for two or three weeks, he was obliged to employ a curate to officiate in his absence, have you any case where that expense would be allowed?

The Prothonotary.—Invariably the expenses would be allowed, my Lord.

Mr. Justice Park.—I am glad to know it, for I was not aware how the case was.

Mr. Sergeant Taddy then proceeded to contend, that with respect to the cost of the experiments, as they were not made for the purposes of general science, but had reference to this case alone, they ought to be allowed. Indeed, they were made by a sort of compact with the other side. They (the defendants) themselves seemed anxious that such experiments should be made. They declared that they would make them, and they invited the plaintiffs to make them also.

The Chief Justice.—How much was the amount of the property insured?

Mr. Sergeant Lens replied that it was upwards of 70,000l.

The Chief Justice.—I think (whether the cost of experiments be allowed or not) it was right, in a case of such importance, that they should have been made; but I wish it could be shewn to me whether there was any compact between the parties for making them.

Mr. Sergeant Hullock, who appeared for the defendants, here observed that he knew of no compact of that nature.

Mr. Sergeant Taddy.—I do not say, my lords, that there was a positive compact; but I remember that, when the motion for a new trial was argued before your lordships, one of the arguments used in support of the motion by the defendants’ counsel was, that a sufficient number of experiments had not then been made. Surely, then, it will not be contended that there was not an inducement to the plaintiffs to make those additional experiments for which they now claim to be allowed.

Mr. Justice Burrough.—There was no contract.

Mr. Sergeant Taddy.—None, my lord; but they challenged us to make the experiments. We have done so; and I submit to your lordships that the verdict being for us, we ought to charge them with the full costs.

Mr. Sergeant Hullock, in support of the rule, contended that the case of Lopez and de Tastet, which had been quoted by his learned brother (Vaughan), was not in point, nor did it bear the interpretation which had been given to it. As to physicians, he had some doubt whether in strict law even they ought to be allowed for loss of time as such, for how was the rule of expenses to be settled? One physician whose practice was extensive, might charge fifty guineas a day, while another might be satisfied to go to Guildhall for five; so that there could be no settled rule. He thought also, though he did not at all mean it invidiously, that the plaintiffs need not have sent to the great distance they had done for witnesses, while they could have got others of equal skill nearer home. If the principle were to be admitted, a man might send to Calcutta for witnesses for scientific purposes, and charge the expenses of the voyage here and back. At the same time he did not mean to object to Dr. Thomson, who he had no doubt was an extremely clever man. The learned Sergeant then went through various items in the bill, several of which, he contended, his clients ought not to be called upon to pay. There was one item of 205l. for a model of the premises. Why, if, as had been suggested, they had built a model of exactly the same size as the original, they might as well charge the price of it, as 250l. for a model. There was another item of 213l. for loss of time, trouble, and expenses, in making experiments, to S. Parkes, esq. Of this the prothonotary had deducted 99l., but then it was not stated what sum was for loss of time, what for the trouble, and what for the expenses. It was the same with the charges to several other gentlemen. Now he objected to any thing being allowed for loss of time, and in that case he was satisfied the case ought to be reviewed. With respect to the costs of the experiments, he apprehended that the best answer had been given by the court. In no case that he heard of before this were they charged.

The Chief Justice asked what was the rule in patent cases.

The Prothonotary said that in all such cases a reasonable sum was allowed.

Mr. Sergeant Hullock proceeded. There was another ground on which he thought the experiments ought not to be charged. Either there had been several experiments made before the new method was adopted, or there had not. If there had, no additional experiments were necessary on the late trials. If there had not, the plaintiffs had rashly made the risk, and ought not to recover now.

The Chief Justice.—You forgot, brother Hullock, that this was a patent.

Mr. Sergeant Hullock.—That, my lord, strengthens my argument, for in that case it must have been so well known, as not to need any additional experiments. The learned Sergeant was proceeding to contend that the division of the costs equally between the two insurance companies was not the most proper one; but the court thought that such an arrangement would best meet the justice of the case. There were two insurance companies in the case, in each of which two policies had been effected, and two actions commenced; and though all the actions were not tried, yet as the same evidence went to all, it was but just that each office should bear a moiety of the costs.

The arguments being closed on both sides, the Chief Justice asked whether physicians were allowed for loss of time as witnesses?

The Prothonotary replied, that they were always allowed.

The Court then wished to be informed, whether there was a particular scale of allowance, for it was not to be supposed that such an eminent physician as Dr. Baillie would be allowed according to the extent of his practice.

The prothonotary said certainly not. There was an average allowance, and by that the most eminent physician received only the same sum as the physician who had got his diploma but the day before.

The Chief Justice.—What sum would you allow?

The Prothonotary.—My lord, since the allowance has been raised to barristers, we have raised physicians to the same rank, and they are allowed the same—two guineas per day.

The Chief Justice.—But do barristers take the allowance?

The Prothonotary.—In some cases, my lord, it is allowed.

The Chief Justice (after consulting for a short time with the other Judges) said we shall not say any thing more upon this, than that it must be referred back to the master to revise the costs, and that the experiments are not to be allowed: nor is allowance to be made for loss of time as such; but let it be understood that physicians are to be allowed as usual.

The Prothonotary begged to know how he was to reckon physicians, was it by diploma?

The Court said by practice. It was not to be expected that a physician was to take his diploma about in his pocket.

The Prothonotary again begged to trouble their lordships. There was another class of persons who were frequently allowed much more than any professional men—he meant surveyors. Sometimes very high charges were made for them. For instance, the late Mr. Rennie, who was summoned as a witness in the present case: his time was of the utmost value, as was that of others of eminence in that branch of science. He wished to know how they were to be allowed.

The Chief Justice.—We can know no distinction here. The time of such gentlemen as the late Mr. Rennie must no doubt be extremely valuable to them, but that of a poor man is equally valuable to him, and perhaps more so; for though the amount might not be as great, yet the support of his family might be depending on it.

Rule made absolute; and it was further ordered, that a moiety of the taxed costs should be paid by each of the Insurance Offices in question.

There was another case of “Severn v. Slade,” turning exactly on the same point, which was not argued, as of course the same decision will apply to it.

Two Notes on the Legal Time for Human Birth.
(From Hargrave’s Jurisconsult Exercitations)

[Lord Coke, in his Commentary upon Littleton, fol. 8. a. considers, who may inherit lands or tenements; and about the close of his remarks on that head, introduces the case of a woman brought to bed of a child, so as to raise a question whether the child was by her deceased first husband or by her second husband. His words are, “If a man hath a wife and dieth; and within a very short time after the wife marries again, and within nine months hath a child, so that it may be the child of the one or the other, some have said that in this case the child may choose his father, quia in hoc casu filiatio non potest probari; and so is the book to be intended: for avoiding of which question and other inconveniencies, this was the law before the conquest, sit omnis vidua sine marito duodecim mensibus, et si maritaverit perdat dotem.” In the margin also of the same book, he thus refers to authorities, “21 E. 8. 39 Pancirollus Nova Rep. 485, &c. Opus eximium, 48. b. Lambard de priscis Anglorum Legibus, 120. 72, &c.” and as to the year-book of E. 3. so cited, it shews, that the doctrine, of allowing the infant to choose which of the two husbands should be his father in the case so put, was attributed to Sir William de Bereford, who was made chief justice of the common pleas early in 2 E. 2.

So far Lord Coke only puts a special case barely involving a consideration of the legal time for a woman’s going with child.

But in a subsequent part of his commentary, Lord Coke brings forward an adjudged case of 18 E. 1. which materially involved considering what was the limit to the time for a woman’s parturition, and for which he refers to Trin. 18 E. 1. Rot. 61. Bedford coram rege; and so Lord Coke was led to giving his own idea of the latest legitimate time pariendi for women. The passages here meant to be adverted to are in Co. Litt. 123. b. and are in these words. “It was found by verdict, that Henry the son of Beatrice, which was the wife of Robert Radwell deceased, was born per undecim dies post ultimum tempus legitimum mulieribus constitutum. And therefore it was adjudged, quòd dictus Henricus dici non debet filius prædicti Roberti secundùm legem et consuetudinem Angliæ constitutus. Now legitimum tempus in that case appointed by law at the furthest is nine months or forty weeks: but she may be delivered before that time. Which judgment I thought good to mention. And this agreeth with that in Esdras: Vade et interroga prægnantem si quando impleverit novem menses suos, adhuc poterit matrix ejus retinere partum in semetipsâ? et dixi non potest, Domine.” In the margin of the last passage of this extract from Co. Litt. 123. b. there is a reference to 4 Esdras 4. 41. and Panciroll. Nova Reporta, pag. 485, &c.

These two extracts from Co. Litt. 8. a. and 123. b. are here given as an introduction to the following article, which consists of two notes by the author in the first part of the 13th edition of the Coke upon Littleton, being the author’s part of that edition, and the first attempt at editing that ever to be valued work with notes.—Both the notes are on the second of the two preceding extracts from the Coke upon Littleton.—The first of the two notes chiefly relates, to the special case of a widow’s marrying a second husband, and being delivered of a child so soon after the death of her first husband, as to raise a doubt, which of the two husbands should be considered as the father: and so far such note applies as well to the case so put in Co. Litt. 8. a. from the year-book of 21 E. 3. 39. as to the case in 18 E. 1. so stated in Co. Litt. 123. b. from the king’s bench record of that year.—The second of the two notes relates to the general point as to the ultimate legitimate time for a woman’s parturition.

Further as to the following article, it is proper to apprize the reader, that, exclusively of what is now added by note at the bottom of the page, it was first published about 30 years ago.]

TWO NOTES, &c.

I. Note as to Lord Coke’s cited Legitimacy Case of Radwell, in 18 E. 1.

Lord Hale, in a manuscript note about legitimacy in Co. Litt. fol. 8. a. gives a fuller extract of this case of 18. E. 1. from the record than is here expressed. His words are these.

“Trin. 18 E. 1. Coram rege, rot. 13. Bedford, et M. 22, 23 E. 1. rot. 2. In assise by John Radwell against Henry son of Beatrice, who was wife of Robert Radwell, quia compertum est, quòd dictus Henricus fuit natus per 11 dies post 40 septimanas, quod tempus est usitatum mulieribus pariendi, ex quo prædictus Robertus non habuit accessum ad prædictam Beatricem per unum mensem ante mortem suam, præsumitur dictum Henricum esse bastardum, ideo judgment for the plaintiff.”

If this state of the case is correct, Lord Coke’s is erroneous in several particulars of consequence.—1. He is short in not expressing, that the record mentions forty weeks, and so leaving it to be deemed an inference of his own, as which it hath been accordingly treated.—2. He exceeds the record, by representing it to stile that time the latest for a woman’s going with child, when the record only calls it the usual period.—3. He wholly omits the husband’s having had no access to his wife for one month before his death; a fact very material, it being very easy to allow eleven days after the usual time, but requiring a strong case to warrant extending such liberality to nearly six weeks.—4. The word præsumitur, which Lord Coke passes over, is of importance; for it indicates, that, notwithstanding the great excess of time, it was conceived to create only a presumption for the bastardy, and consequently, if very cogent circumstances to account for the protraction of the birth, and in favour of the wife’s chastity, had occurred, the judgment might have been for the legitimacy.

So far we had advanced, when on looking into Rolle’s Abridgment, 536. we found the same ancient case of Radwell more at large, than either in Lord Coke or Lord Hale.

But Rolle agrees with Lord Coke, as well in respect to the record’s not mentioning the forty weeks, as to its stating the birth to be eleven days after the latest time in law for a woman’s going with child; and as from Rolle’s particularity he seems to have most minutely attended to the record, his authority, till the whole record appears, seems most decisive.

However the two last particulars, in which Lord Coke differs from Lord Hale, still remain, to which Rolle adds these further circumstances: namely,—that the husband languished of a fever a long time before his death;—that on the taking of an inquisition afterwards in the court of a lord, of whom he held lands by knight’s service, the wife swore she was not pregnant, and to prove it uncovered herself in open court;—and that, in consequence of all this, the lord received a collateral relation as heir. The words describing the wife’s exposure of her person are remarkable; for the record states, that she, being interrogated, juramento asserebat, se non esse prægnantem; et, ut hoc omnibus manifestè liqueret, vestes suas ad tunicam exuebat, et in plená curiá sic se videri permisit. 1 Ro. Abr. 356. pl. 3. and 18 E. 1. rot. 13. in B. R. there cited. It reflects great discredit, on the lord’s court, which permitted such a gross indecency; and still more on the king’s judges, who suffered it to be recorded as one of the grounds for a verdict before them. How laudably contrariant is the proceeding on the writ de ventre inspiciendo? This remedy for the heir against the pretence of pregnancy, so well known to be of earlier date than the reign of Edward the first, as it was framed in the times of Bracton, Britton, and Fleta, delicately requires the widow to be inspected by a jury of her own sex; and though in subsequent times the sheriff was ordered to summon a jury composed both of men and women, yet still the search was to be made by the latter only. Bract. 69. a. Brit. 165. b. Flet. lib 1. c. 15. Reg. Br. Orig. 227. a. What harsh ideas of the times might we be led to adopt, if the early introduction of the writ de ventre inspiciendo did not demonstrate, that the unseemly record we are observing upon was a singularity, and so many other testimonies of a more advanced refinement in judicial proceedings did not concur to rescue the age of our English Justinian from the suspicion of a general practice of such barbarism!

Let us then suppose the record to be as it is in Rolle; which is the more probable to be the truth, because a contemporary judge, who reports its having been produced on a trial of legitimacy, represents it much in the same way. Cro. Jam. 541. But still it will not warrant Lord Coke’s inferring from it, that forty weeks constitute the latest time the law allows for a woman’s going with child. On the contrary, no particular time being mentioned, what period was meant, must be found out through some other medium; and as the record states other unfavourable circumstances besides the excess of time, and that the jury presumed against the child’s being the issue of the deceased husband, it seems fair to suppose, that the law was understood, not to be so strict in the time alluded to, whatever that time might be, as indiscriminately to condemn as illegitimate all children not born within it, but rather to consider every excess, unless very extraordinary indeed, as only raising a presumption against them. This construction is clearly most consistent with the terms of the record in question. In the next note we shall attempt to satisfy the reader, that the rule resulting from it is most conformable to other precedents and authorities, as well as to the reason of the thing.

After the case of Radwell from the Record of E. 1. Lord Hale thus gives the four following cases.

“Rot. Parl. 9 E. 2. M. 4. Gilbert de Clare comes Glouc. obiit 30 Junii 7 E. 2. In parliamento tent. quindena Hil. 9 E. 2. the sisters and coheirs pray livery. Matilda, quæ fuit uxor comitis, pretends to be big by the earl, which was accordingly found per inquisitionem. The coheirs reply, that, si comitissa prægnans esset, tantum tempus elapsum est, ut secundum cursum pariendi non potest dici imprægnari a comite. Yet they could not obtain livery till Pasch. 10 E. 2. but the question hung in deliberation.

“Note 18 R. 2. where a woman in such a case immediately after the death of the first husband took a second husband, and had issue born forty weeks and eleven days after the death of the first husband, and it was held to be the issue of the second husband.

“M. 17. Jac. B. R. Alsop and Stacey. Andrews dies of the plague. His wife, who was a lewd woman, is delivered of a child forty weeks and ten days after the death of the husband. Yet the child was adjudged legitimate and heir to Andrews; for partus potest protrahi ten days ex accidente.

“M. 4. Car. in Cur. Ward, and afterwards P. 5. Car. B.R. Thecar marries a lewd woman; but she doth not cohabit with him, and is suspected of incontinency with Duncomb: Thecar dies: Duncomb within three weeks after the death of Thecar, marries her: two hundred and eighty-one days and sixteen hours after his death she is delivered of a son. Here it was agreed, 1. If she had not married Duncomb, without question the issue should not be a bastard, but should be adjudged the son of Thecar. 2. No averment shall be received that Thecar did not cohabit with the wife. 3. Though it is possible, that the son might be begotten after the husband’s death, yet, being a question of fact, it was tried by a jury, and the son was found to be the issue of Thecar.”

Lord Hale’s case of E. 2. appears very extraordinary, the time from 30 June from 7 E. 2. when the Earl of Gloucester died, to the quindene of Hilary, or 29 Jan. 9 E. 2, when the livery to his sister was further postponed in parliament, being within one day of a year and seven months; which is a much later date for the delivery of a live child, than the most liberal in their calculations have hitherto assigned. However, on reading the printed copy of the original record, in the rolls of parliament lately published, we find Lord Hale’s note quite accurate. See Rot. Parl. v. 1. p. 353.—As to the case of R. 2. it confirms the doubt we have elsewhere stated of the opinion, that, if a widow marries again and has a child within nine months after the death of the first husband, the child may choose his father; and is an authority for deciding according to the proof of the woman’s condition when her first husband died. Ante fo. 8. a. note 7. Terms of the Law, first edit. tit. Bastard, and Cowel Inst. lib. 1. t. 9.—Lord Hale’s two other cases are reported in several books, Alsop and Stacey being in Cro. Jam. 541. Godb. 281. Palm. 9. 1 Ro. Abr. 356. and Thecar’s in Cro. Jam. 685. Winch. 71. Litt. Rep. 177.[[179]]

II. Note on Lord Coke’s Doctrine as to the latest time with Women for Parturition.

If our law was really as strict in point of time as is here represented by Lord Coke, it would not sufficiently conform to the course of nature. The physicians, it is true, generally call nine months, each being of thirty days, the usual period for a woman’s going with child. But then they allow, that, as a delivery may be accelerated by various accidental and other causes, so it is frequently protracted, not only for ten days beyond the nine months, but to the end of the tenth month, and sometimes for a considerably longer time. See Zach. Quæst. Medico-legal, lib. 1. tit. 2. Justice therefore requires, that, in the case of posthumous children, an excess of the usual time should not operate further, than by raising a proportional presumption against the legitimacy.

The Roman law was very liberal in this respect; for the decemviri allowed, that a child may be born in the tenth month; and though a law of the digest excludes the eleventh, yet the emperor Adrian, after consulting with the philosophers and physicians, decreed even for this, where the mother was of good and chaste manners. See Dig. 1. 4. 12. Paul. Sentent. lib. 4. t. 9. s. 5. Nov. 39, c. 2. t. 17. with Gothofred’s learned notes on those two texts of the Roman law. Cod. lib. 6 t. 29. leg. 2. Aul. Gell. lib. 3. cap. 16. Huber. Prælect. in Dig. lib. 1. tit. 6.

A like liberal discretion probably prevails in most countries in Europe; for an instance of which, we refer to a very respectable foreign lawyer, who reports a decision by a majority of judges in the supreme court of Friesland, by which a child was admitted to the succession, though not born till three hundred and thirty-three days from the day of the husband’s death,[[180]] which period wants only three days of twelve lunar months. Sand. Decis. Fris. lib. 4. tit. 8. Definit. 10.

Nor will our own law, notwithstanding what Lord Coke advances, if the authorities are duly collected and considered, be found deficient on this interesting subject. Indeed there is a passage in Britton, which gives countenance to Lord Coke’s limitation of forty weeks; for this writer excludes from the inheritance posthumous children not born within forty weeks from the husband’s death. Britt. 166. a. However, even this writer seems to extend in some degree beyond the forty weeks; unless he meant to make the wife’s conception exactly of equal date with the husband’s death, which surely is not a very reasonable construction. But without dwelling on such a nicety, it is sufficient, that the principal of the few other authorities in our books are against so rigid a rule. Bracton is very cautious, illegitimatizing only the issue born so long after the husband’s death, as to create an improbability of its being his child, without naming any fixed period. Bract. lib. 5. fo. 417. b.

As to the determined cases in our courts, the only authorities of this sort, we meet with, are enumerated in the preceding annotation; and these, duly weighed, will not be found, it is apprehended, to warrant Lord Coke’s conclusion.—In Radwell’s case, the finding against the issue is expressed to have been grounded merely on presumption; and besides, if we construe the record properly, the presumption arose from proof of the husband’s non-access to the wife a month before his death,—The case of 9 E. 2. is an instance of allowing so much time beyond forty weeks, that it seems too strong to have much weight; but so far as it can claim any, it counts against Lord Coke.—The case of 18 Rich. 2. at first seems full for Lord Coke’s rule, the child, though born only eleven days beyond the forty weeks, having been declared not the issue of the deceased husband. But when it is further considered, there will be found nothing to prove a positive general rule; for the case was very special, the widow having married a second husband the day after the death of the first, so that the question was not of legitimacy, but merely to which husband the issue belonged.—One of the two only remaining cases considerably extends the time beyond the forty weeks; for in Alsop and Stacey, the first of them, the issue was found legitimate, notwithstanding the lapse of forty weeks and ten days, and the lewd character of the wife: and even as to Thecar’s case, which is the other of them, the issue having been born two hundred and eighty-two days, there was an excess of the forty weeks, though but a trifling one.

The precedents therefore, so far from corroborating Lord Coke’s limitation of the ultimum tempus pariendi, do, upon the whole, rather tend to shew, that it hath been the practice in our courts, to consider forty weeks merely as the more usual time, and consequently not to decline exercising a discretion of allowing a longer space, where the opinion of physicians or the circumstances of the case have so required.

In the course of our inquiries into the subject of this note, we were curious to know the general sentiments of that eminent anatomist, Dr. Hunter, on three interesting questions. These were, what is the usual period for a woman’s going with child, what is the earliest time for a child’s being born alive, and what the latest. The answer, which he obligingly returned through a friend, we have liberty to publish; and it was expressed in the words following:—1. The usual period is nine calendar months; but there is very commonly a difference of one, two, or three weeks. 2. A child may be born alive at any time from three months; but we see none born with powers of coming to manhood, or of being reared, before seven calendar months, or near that time. At six months it cannot be. 3. I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months, and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception.

[What follows is an extract from Sande’s Decisiones Frisicæ, being his report of the case, which in the preceding article is referred to as a decision by the supreme court of Friesland in 1634, for the legitimacy of a child born in the twelfth month after the husband’s death. It is taken from the fourth book, title 8, definition 10.]

“Partum à muliere, quæ non probabatur impudicè vixisse, editum duodecimo ab obitu viri mense, habitum legitimum et ad viri successionem admissum.

“Vir aliquamdiu valetudinarius, et per quatuordecim dies ante mortem lecto affixus, ex hac vita migravit die decimo Augusti, Anno 1631, relictâ uxore, quæ nono mensis Julii die anno insequenti peperit filiam, ita ut à die obitûs viri effluxerint dies naturales tricenti et triginta tres, qui efficiunt menses solares completos undecim cum tribus diebus, vel lunares ferè duodecim, sive annum integrum lunarem ab eo momento, quo vir animam reddidit. Quæsitum, an hæc filia legitima et ad successionem istius viri admittenda sit.

“Inter Medicos et Physicos constat, quamvis hominis nascendi tempora sint varia, illa tamen ad certos limites revocari. Aristoteles enim lib. 7. histor. animal. ait, soli homini multiplex pariendi tempus datum: nam et septimo mense, et octavo et nono parere potest, et quod plurimum, decimo: nonnullas etiam mulieres undecimum mensem attingere. His conveniunt, quæ Plinius lib. 7. natur. hist cap. 5. scribit, nonnullas etiam mulieres undecimum mensem attingere.

“Secundùm ordinarium igitur naturæ cursum, decimus mensis completus est extremus pariendi terminus. Undè Author libri Sapientiæ cap. 7. v. 2. In utero, inquit, matris figuratus sum raro tempore decem mensium. Et Plautus in Cistelaria refert, puellam compressam exacto decimo mense filiam peperisse. At Authores fidei digni referunt exempla mulierum, quæ undecimo, duodecimo, decimo tertio, et ulteriore mense, pepererunt, ut A Gellius 8. noct. attic. 16. Plinius lib. 7. natur. histor. cap. 5. Avicenna lib. 9. de animal. Et Albericus Gentilis disputat. 1. de nascendi tempore hæc celebris Medici Victoris Trincavelli ex epist. 5. verba recitat. Auctores, inquit, multi et illi quidem viri omni exceptione majores, tam antiqui, quam juniores, attestuntur huic sententiæ, nempe repertas esse mulieres indubitatæ probitatis et pudicitiæ, quæ fœtum in utero gesserint ad undecimum mensem et ultra. Cujus diuturnioris gestationis caussas varias nonnulli Medici reddunt, ut videre est in consilio primo Monsbelianorum Medicorum, quod extat apud Gerard. Maynard. lib. 3. decis. Tholos. 4. Alii tamen Medici non adhihent fidem his exemplis, eaque malunt proficisci ex phantasia et imaginatione mulierum, quæ opinantur ex diversis accidentibus se ultra tempus ordinarium gestare fœtum, cum tamen res aliter se habeat, ut apparet ex concilio Medicorum secundo, quod refertur a Maynardo d. loco. Minimè igitur de hac quæstione convenit inter ipsos Medicos. Illud certum est, casus istos mulierum, quæ post decimum mensem peperisse dicuntur, si veri sunt, esse nihilominus raros et extraordinarios, idcirco eorum non haberi rationem à Legislatoribus, qui contemnunt quæ semel bis aut perraro accidunt, et ad ea jus aptant, quæ frequenter et facilè eveniunt l. nam ad ea 5. et l. seq. ff. de legib. l. ea quæ raro 64 ff. de reg. jur. et idcirco legitimum et extremum pariendi terminum constituunt decimum mensem completum. Quod jus primum proditum est lege 12 Tabularum ubi Decemviri ita ajunt, Ut si qua mulier post viri mortem in decem mensibus proximis pareret, qui quævè ex ea nasceretur, suus suavè in viri familia heres esset. Et Testatores dicere solebant. Si filius et filia intra decem mensium spacium, post mortem meam editi fuerint, heredes sunto l. ult. C. de postum. hered. instit. l. ult. ff. de fideicommiss. libert. l. Gallus 29. in pr. ff. de liber. et postum. Ac Ulpianus ut de jure certo in l. 3 § penult. ff. de suis et legit. hered. respondit his verbis, post decem menses mortis natus non admittetur ad legitimam successionem. Augustinus lib. 1. quæst. Evangelic. ita ait. Quod dicuntur decem menses pregnantis, novem sunt pleni, sed initium decimi pro toto accipitur. Hos decem menses ex instituto Græcorum, a quibus Decemviri leges suas acceperunt, non solares, sed lunares fuisse probat Fr. Hotomannus lib. 9. obs. 9. Nec Ulpiano obloquitur Justinianus in Novell. 39. dum negat sub finem undecimi mensis vel perfecto undecimo natum esse legitimum: nam indé à contrario sensu ad correctionem Ulpianei responsi malè inferretur natum initio undecimi mensis esse legitimum ut animadvertit etiam Albericus Gentilis d. Disp. 1. Sanè in Dicastetrio Wittenbergensi anno 1567. partum pronuntiatum fuisse legitimum, quam mulier, quæ honestè vixerat, post obitum mariti pepererat in initio undecimi mensis, referunt Ioachimus à Beust in tract. de matrimonio cap. 36. in fin. et ad. l. 3. ff. de jurejur. num. 36. ac Andreas Rauchbaert, part. 1. quæst. 24. num. 53. Unde Conradus Riddershusius in comm. ad Novell. Const. part. 4. cap. 13. a Justinianeo jure moribus recessum existimat. Quod non est admittendum. Illud notatu dignum, quod ex Theodoro Zuingero Medico refert Hotomannus d. obs. 9. mulieres nempe dum dimidiatum mensem pro integro computant, sæpe opinari, se undecim menses uterum gestare, cum tamen septem tantum quadragenas dies scilicet 280. compleverint. Jure igitur nostro partus habetur legitimus, qui intra et non post decem menses a morte viri editus est. Confer Iacobum Cujacium ad d. Novell. 39. in tract. de præscript. cap. 19. et lib. 4 recept. sent. Iulii Pauli cap. 9. § 5. Andream Tiraquellum in repetit. l. si unquam 8. in verb. Suscepit liberos C. de revocand. donat. Iacobum Menochium lib. 2. de arbit. judic. cas. 89, num. 47. 48. & 52. Ioachimum Mynsing. cent. 6. obs. 4. Franciscum Hotomannum lib. 9. obs. 9. Gerardum Maynard. lib. 4. decis. Tholos. 3. 4. Iacobum Concennatium, lib. 2. quæst. jur. cap. 9. Casus illos raros et extraordinarios ad facti quæstionem, id est, ad Indicis, ut noni viri arbitrium, redigendos esse dicit Hotomannus d. obs. 9. in fin. Et hanc inter ordinarios et extraordinarios partus differentiam esse ait Gentilis, quòd illi justi habeantur, nisi probentur injusti, hi injusti censeantur, donec justi fuerint approbati.

“In hac specie partitæ erant Iudicum sententiæ. Quidam enim censebant juris definitioni hic esset insistendum, cum partus editus sit mense duodecimo ferè completo, si menses his accipiamus lunares, et vir ante obitum quatuordecim dies graviter decubuerit, ideoque credibile non fuerit eum de vene exercenda cogitasse. Alii (qui numero vincebant) judicabant partum legitimum, quòd mulier esset probatis moribus ac pudicitiâ minimè suspectâ, quòd etiam ex marito quantumvis ægroto concipere potuerit, tardiorisque partus caussam ex Hippocratis sententia esse potuisse, quod viri infirmi semen fuerit humidius et excrementosius eoque minus concoctum. Senatus tamen expedire censuit, ut partes ad transigendum monerentur. Transactione autem non succedente, partus frequentioribus suffragiis declaratus fuit legitimus, et patri heres.[[181]].”

The learned author of these notes, Francis Hargrave, one of the King’s Counsel, died while our work was at press: the profession have lost a most profound and erudite lawyer; the learned, an elegant scholar; and his friends, a man whose amenity of manner and kindness of heart surpassed the ordinary bounds of human benevolence.

APPENDIX.
PART III.

The determination of the College concerning the Questions proposed to them by the King’s Majestie about the death of Joseph Lane.

The College of Physicians in London being lawfully assembled by the command of their Sovereign Lord the King, about certain questions proposed concerning the death of Joseph Lane, reported to be killed by poison, and having made a diligent search, and well considering all circumstances relating; 1. As to the state of the body of the foresaid Lane; 2. As to the disease which (by a long series of violent symptoms) brought him to his end; 3. As to the kind and appearance of his death; 4. As to the observations made upon his dead body by the Physicians and Chirurgeons present; 5. As to the conjectures taken from the strict examination of a bolus extremely suspicious, whose parts were artificially separated, found in Mr. Lane’s house when dead, and after brought into Court before the Judges, and from thence to the Physicians at their College: To whom (by the command and in the name of the King) Letters were wrote from the Right honourable Sir John Cooke principal Secretary of State that they might diligently enquire and give a faithful account to the following Questions, 1 Concerning Lane’s death, whether it was procured from Poison? 2 Their opinion about a purging potion carried the 4th of April, 1632 from Mr. Mathews an Apothecary’s shop to Lane’s House; and taken by Lane the 6th, whether it had any thing of poison in it? The College after very mature deliberation, did humbly present the following Decree to his sacred Majesty as a testimony of their obedience.

1 That the said Joseph Lane did certainly dye of a violent death. 2 That he had taken poison, and that corrosive. 3 That they could determine nothing concerning the Potion sent and given by Mr. Mathews the Apothecary to Mr. Lane without the advice of any Physician, because many of their Medicines were too negligently prepared by their Servants; But if this potion did only consist of those ingredients which he had given an account of, and for which we have solely his word, then there was nothing of poison contained therein. 4. In the remainder of the aforesaid Bolus there was found Mercury Sublimate, not sweet, but the most harsh and highly caustick, which was separated from the rest of the Bolus and shown to the whole College; In testimony whereof the College by the unanimous Consent of the President and Fellows and all present at this consultation, signed this Decree with their own hands, and sealed it with the College Seal, that it might appear more authentick.

And because that from the beginning of the world to this very day good and wholesome Laws have derived their original from evil manners, the whole College of Physicians doe most humbly beseach your most sacred Majesty that as the Father of your Country, you would consult the health and welfare both of your City Subjects and would by your Royal Proclamation strictly command that for the future, No Grocer, Drugster, Apothecary, Chymist, or any other person presume to sell Arsenick, Quicksilver, Sublimate, Precipitate, Opium, Coloquintida, Scammony, Hellebore, or other Druggs either poisonous or dangerous, to poor sorry Women or poor people (which hath been too common) but only to those who are willing to give their names; that if there should be occasion they may give an account of the reason of their buying these dangerous medicines.

May it likewise please your Majesty to issue out your Royal Edict under the most severe penalties, that no Apothecary for the future shall dare to compound for the Well, or administer to the Sick any medicines, especially Vomits, Purges, Opiates, Mercurial or Antimonial remedies without the prescription of Physicians then living; which prescription they shall be bound to produce upon the command or request of the Censors of the College. He that shall act contrary, shall be punished by the Law as a publick enemy to the life of man. Dated from the College of Physicians in London the Last day of May 1632 And subscribed

Dr. Argent President

(and seventeen others)

(See Goodall’s Proceedings)