OF HOMICIDE BY MISADVENTURE OR ACCIDENT.

If a physician gives a person a potion without any intent of doing him any bodily hurt, but with an intent to cure or prevent a disease, and contrary to the expectation of the physician it kills him, this is no (culpable) homicide, and the like of a chirurgeon; 1 Hale, P. C. 429; 4 Bl. Comm. 197. But query if he were not a regular physician or surgeon? on this there appears to be some difference of opinion; it was anciently holden that if one, that is not of the mystery of a physician or surgeon, take upon him the cure of a man, and he dieth of the potion or medicine, this is covert felony. Si un que nest physition ou surgeon emprent sur luy un cure, que murrust in sa main, que cest felonie; Stanford’s Pleas of the Crown, cap. 9; Fitzherbert, tit. coron. p. 311; Briton, fol. 14; Lombard, Eiren. tit. Felonie saith thus; that Thorpe, 43 Ed. 3, 33, saith he knew one to be indicted accordingly. Dalton, p. 470, queries this case, as it is difficult to determine the actual cause of death, and there appeareth no will to do harm, but rather to do good, and “the 34 Hen. 8, c. 8, leaveth so great a liberty of such practice to unskilful persons, that it will be hard now to make it felony.” Now the statute of Henry the eighth applies only to the cure of certain diseases or sores, particularly specified, and others like to the same, by external applications, and to drinks for the stone, strangury, or agues, provided (if the preamble may be relied on) “the said persons have not taken any thing for their pains or cunning, but have ministered the same to the poor people only, for neighbourhood, and God’s sake, and of pity, and charity;” in such sense the act is reasonable even to this day, much more then, when from the scarcity of regular practitioners, the charitable in the country were frequently called upon to administer on emergencies, where no medical aid could be procured; but surely this act can never have been intended to warrant the administration of dangerous medicines, arsenic, corrosive sublimate, or cantharides, such indeed as may be fairly classed as absolute poisons, except when in skilful hands, nor the performance of surgical operations. Dalton indeed adds “But if a smith or other person (having skill only in dressing or curing the diseases of horses or other cattle) shall take upon him the cutting, or letting blood, or such like cure of a man, who dieth thereof, this seemeth to be felony; for the rule is, quod quisque norit, in hoc se (non) exerceat.” And if it were otherwise, great evils might arise; for persons intending to commit murders, need only cover their design by a pretence of administering medicine;[[507]] thus in Vaux’s case, the professed purpose of administering the cantharides, was not illegal, yet the prisoner was found guilty of murder. In Donellan’s case, what would a plea have availed, that the chemical principle of laurel water was, in the prisoner’s opinion, a cure for consumption, with which Sir Theodosius Boughton was threatened, and that it had been administered to cure, and not to kill him; or on the death of Mr. Scawen,[[508]] that his mistress had infused or dissolved corrosive sublimate in all his drinks and medicines, to cure him of an ulcer, with which he was afflicted; and that she had done it secretly, because he had an avowed aversion to mercurial medicines. Yet such pleas would continually be made, if the doctrine of allowing all persons however ignorant and unqualified to tamper with medicines, should be admitted. On the other hand there is very considerable weight of authority; Sir. Wm. Blackstone follows Sir Mathew Hale in his opinion, that this doctrine, that if any die under the hand of an unlicenced physician it is felony, is apocryphal, and fitted to gratify and flatter doctors and licentiates in physic; though it may have its use to make people cautious, and wary, how they take upon themselves too much in this dangerous employment; 1 Hales, P. C. 429, 430; 4 Bl. Com. c. 14, p. 197; it is difficult to imagine how caution is to be enforced by taking away the liability to punishment. Mr. Serjeant Hawkins takes a different ground; “Also it hath been anciently holden, that if a person, not duly authorised to be a physician or surgeon, undertake a cure and the patient die under his hand, he is guilty of felony;” but inasmuch as the books wherein this opinion is holden (Stamford, P. C. 16; Pulton, 22; Crom. 27; 43 Ed. 3, 33; Fitz H. Cor. 163; Britt. c. 5; and 4 Inst. 251) were written before the statutes of 23 Hen. 8, which first excluded such felonious killing, as may be called wilful murder of malice prepense, from the benefit of clergy, it may be well questioned whether such killing shall be said to be of malice prepense within the intent of that statute; however it is certainly highly rash and presumptuous for unskilful persons to undertake matters of this nature; “and indeed the law cannot be too severe in this case, in order to deter ignorant people from endeavouring to get a livelihood by such practice, which cannot be followed without the manifest hazard of the lives of those who have to do with them;” 1 Hawk. P. C. 131. This doctrine does not by any means go as far as Sir Mathew Hale; for as the supposed alteration of the law is referred to the operation of the statute, which takes away the benefit of clergy from murders, that is to say from felonious killing with malice prepense, it does not apply to manslaughter, to which the benefit of clergy was still allowed. But there yet remains a question, whether in the case of a person illegally taking upon himself the administration of dangerous medicines, for profit, (and it must be observed that the greater number of nostrums are, from the powerful nature of their ingredients, highly dangerous) does not subject himself to a charge of murder if any die under his hands; for “if a man does such an act, of which the probable consequence may be, and eventually is, death, such killing may be murder, although no stroke is struck;” 4 Bl. Com. 197. What then if a man for profit administer dangerous preparations of mercury to persons necessarily exposed to change of temperature, and inclemency of weather; nay, delusively hold out to them, that no mercury is employed, by which they are induced to neglect the most ordinary precautions; if death ensue is not this equally murder, in foro conscientiæ, as killing with the sword? Malice may be implied in law, as well as apparent; it may be general, as well as particular; and whenever a man has evinced, whether from avarice, cruelty, or wantonness, such disregard for the lives and safeties of mankind, as warrants the imputation of general malice, it is not necessary that individual malice be proved towards the party who has become his victim.[[509]] 1 Easts. P. C. 231. “So too if a man hath a beast that is used to do mischief, and he knowing it, suffers it to go abroad, and it kills a man, even this is manslaughter in the owner: but if he had purposely turned it loose, though barely to frighten people, and make what is called sport, it is with us (as in the Jewish law) as much murder as if he had incited a bear or dog to worry them;” 4 Bl. Com. 197. And Hale says, 1 P. C. 431, I have heard that the owner was hanged for it. Is there much difference, whether the mischief be done by a dangerous beast, or a poisonous drug? to us it appears that the man who vends or administers the one, is as guilty as he who is convicted of turning out the other. If A give purging comfits to B to make sport and not to hurt him, and B dies thereof, it is a killing by A, but not murder, but manslaughter; 1, II. P. C. 431; Dalt. cap. 93. Here A is not supposed cognisant of the dangerous nature of the comfits.

With every deference therefore to the very high authorities, which have supported a contrary opinion, we cannot but conclude, that the unlawful administration of medicine for profit, by which death ensues, may constitute wilful murder in some cases, manslaughter in most, and a high misdemeanor in all, according to the quantity of general malice, ignorance, and presumption, evidenced in each case; under what class each individual instance may fall, is a proper subject for a jury. If the law be defective on this point it cannot be too soon amended, and we must express our sanguine hope, that the consideration of revenue, as arising from the stamp duties on patent medicines, will not be allowed to influence the legislature in a matter vitally important to the public health, and to the lives of his majesty’s subjects, more especially as the evil principally operates on the class, whose personal vigour constitutes the strength and sinews of the country. And yet in candour we must admit the difficulties and embarrassments with which the subject is beset: the multiplication of restraints in a free country is very naturally regarded with extreme jealousy, and however anxiously we may desire to crush those harpies of society, who scatter poison and death around, under the pretence of affording relief, yet the object must not be purchased by the infringement of civil liberty.

Doctor Goodall, in his historical account of the college’s proceedings against empiricks, published in 1684, mentions many cases in which death has ensued from unlawful administration of medicine; in some of these cases, the college punished the offenders according to their jurisdiction; some by fine and imprisonment, for mala praxis; others they sued at law, for the penalty of five pounds per month for unlicensed practice. But in those instances which appeared to require greater severity of punishment, they consigned the accused to the ordinary course of justice. See Humphrey Beven’s case, Goodall’s Pro. 425—John Hope’s case, for giving two apples of coloquintida to a man as a purge, of which he died. Ibid. 441.

END OF VOL. II.

London: Printed by William Phillips, George Yard, Lombard Street.

Footnotes

[1]. “But there is a particular kind of manslaughter proper to be considered here, from which the benefit of the clergy is taken away by Ja. 1, c. 8.” “Where any person shall stab or thrust any person or persons that hath not then first striken the party which shall so stab or thrust, so as the person or persons so stabbed or thrust, shall thereof die within the space of six months then next following, although it cannot be proved that the same was done of malice forethought.” See 1 Hawk. P. C. This statute was passed in consequence of the numerous murders committed by the Scots, who with their dirks stabbed before an ordinary weapon could be drawn.

For an extraordinary case on this statute, and much learning on the subject, see the trial of William Chetwynd for the murder of Thomas Rickets. 18 How St. Tri. p. 290.

[2]. Od. Lib. v. lin. 757.