Burn says, “By several constitutions, the minister was required frequently to instruct the people, in the form of words to be used in such cases of necessity,” (2 Burn’s Ecc. Law, p. 469,) and the oath administered by the bishops to licensed midwives, (See Appx. 160,) though, it does not command, implies that baptism may be administered by other than a priest. “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:” here the prohibition is to the form not the person.
Whatever may have been the origin of the bishop’s license, his jurisdiction does not appear to have been sanctioned by the law. “If there be a suit in the Spiritual Court against a woman for exercising the trade of a midwife without license of the Ordinary, against the Canons, a prohibition lieth: for this is not any spiritual function, of which they have cognisance. Buskin and Cripes, Tr. 9, Ch. BR and a prohibition was granted accordingly.” (2 Roll Abr. 286. 2 Burn, Ecc. Law, Tit. Midwife.)
In the reign of Charles the first, a Doctor of Physic attempted a project to procure the sole and absolute power, either to license or approve of all the midwives practising in and about London, before their admittance; they presented a petition to the President and College of Physicians, (for which see Goodall’s Pro. 463,) in which it appears that a petition on the same subject having been presented to the King, his Majesty referred the same to the Lord Archbishop of Canterbury and Bishop of London, in whose jurisdictions and by whose authority, it is stated, that they had always been licensed; the object of the petition to the College, was to obtain their certificate of the competent skill of the petitioners, for which purpose they alleged that other practisers in midwifery had been examined upon the like occasion, by command from King James; the physicians by their answer, (for which see Appendix) discouraged the scheme of the would-be licencer, and the matter thereupon appears to have been dropped.
We have before noticed, that there is some probability that both the College of Physicians and the College of Surgeons will decline all future interference with this branch; if so, it will be necessary that some new authority should be instituted for the purpose of examining and licensing candidates for practice; the duty to be performed is by far too dangerous and delicate to be left to the hands of any who would assume it; yet such is at present the case, and not without fatal examples of the errors and imperfections of our lego-medical system.
We do not of course include in this censure, the private Institutions for the instruction of midwives, in which the want of a public provision is endeavoured to be compensated; but the operation of such societies must be of necessity very limited and utterly inadequate, not only to the demands of the empire, but to the magnitude of the metropolis.
OF THE PRESERVATION OF PUBLIC HEALTH.
There is not in England, as in most countries of the continent, a separate code or system of laws for the preservation of the public health; actual nuisances, of which we shall treat under a separate head, are provided against by liability to indictment or action at the information or suit of the parties immediately interested; but except in the enforcement of the Quarantine laws for the prevention of foreign infection, the executive government takes little or no part in securing the bodily health of its subjects. The habits of order and cleanliness, for which the inhabitants of our island are celebrated, and the general salubrity of our climate, may have rendered such care less necessary; while our spirit of liberty and independence might have resisted the encroachments on domestic privacy, and the perpetual intrusion of local authorities, to which our neighbours are subjected. Except in extreme cases we are far from wishing any change; but as there are situations and circumstances, in populous towns, among the lowest order of the people, and in times of contagious or epidemic sickness, in which absolute apathy may be attended with danger, we may be allowed to hint that some prospective enactment would be more politic, than to be obliged to legislate for the evil when its mischiefs had been accomplished. This has been already done as respects Ireland by the statute 59th Geo. 3. c. 41. (see Appendix,) by which it is enacted that Officers of Health should be appointed annually, at vestries of the inhabitants in every city and large town, where the Lord Lieutenant or chief Governor shall think fit to direct.[[143]] Something of this kind might be advantageously extended to the whole of the United Kingdom.
In former times, however, when from the comparatively uncultivated state of the people, contagious diseases were more common, there were several laws and regulations on this head, which have now fallen into disuse. Many cities have still some relics of their Lazar-house, situated at some distance without the walls;[[144]] and there was also an ancient writ De Leproso amovendo, to remove a leper or lazar who thrust himself into the company of his neighbours in any parish, either in the church, or at other public meetings, to their annoyance. Reg. Orig. 237. By the 1st James, c. 31. (now expired) it was made felony if any one having a Plague sore running upon him goes abroad, 1 Hale, P. C. 432.[[145]] And to this day it is an indictable offence for any person to pass through the streets, or cause others to pass through the streets, even for medical advice, while they have the Smallpox upon them.[[146]] Previous to the important discovery of Vaccination, this law would have been attended with very considerable hardship; as it precluded the patient from the best remedy for the disorder—exposure to fresh air; yet there can be no doubt that in this as in all other cases, individual interest must yield to general policy. Had the rule been more carefully attended to, many of the pests to which human nature is subject, might have been checked or even extirpated in the commencement of their progress.
There is one disorder, to check the propagation of which has been singularly neglected, under the curious pretence that any regulation would be an encouragement to immorality; we cannot assent to the validity of this objection, and think that we should find little difficulty in refuting it. But the disease is undoubtedly on the decline both as to its frequency and its virulence.[[147]] The superior mode of medical treatment, by which many cases are arrested in the earliest stage, may have tended greatly to this effect; but we are inclined to attach yet greater importance to a change of habit in the upper and middle classes of society. The mode of life handed down to us by the poets, dramatists, novelists, and essayists from Charles to George the second, unhappily confirmed by the criminal records of the same period, has no existence in modern manners: drunkenness is no longer a fashionable vice; the tavern parties, which even Addison did not blush to describe, no longer disgrace us. From these social improvements, and from increased habits of cleanliness, we may deduce the milder form and more unfrequent occurrence of the disease, which poisons human life at its source. Still we feel some astonishment that the change has not been forwarded by a measure of the police; for though a Parisian system might savour somewhat too much of our own ancient abuses,[[148]] yet it would neither be difficult or immoral for the magistrates, when they occasionally clear the streets for the night, to order the detention of those whose liberty might, on surgical examination, prove dangerous to the unwary; obsta principiis is as good a maxim in law as in physic. One Surgeon attached to each police office, for this, and other evident purposes, would be materially useful and not considerably expensive.
We have observed in another place[[149]] on the attention necessary to be directed to prison discipline, as it respects the health of criminal or unfortunate prisoners; but the subject is so much before the public on this and other points, that we do not think it necessary to enlarge upon it here. It is not so, however, in other cases to which legislative attention might be advantageously directed. Sir Robert Peel’s Bill for regulating the working hours of children in the cotton factories, might in some of its enactments be safely extended to many other branches of trade, more especially when contagious diseases are found to exist in large collections of people confined to a very small space. This observation applies also to infectious diseases breaking out in schools; at present the discretion of the master is the only security to the public: in the higher class we have no doubt that this discretion is well exercised; but there are others where, gain being the only object, the speculator will rather risk the lives of the unfortunate children committed to his charge, than the chance of their being permanently removed from his precarious protection.[[150]]