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MEDICAL
JURISPRUDENCE.

J. A. PARIS, M.D. F.R.S. F.L.S.

FELLOW OF THE ROYAL COLLEGE OF PHYSICIANS;

AND

J. S. M. FONBLANQUE, Esq.

BARRISTER AT LAW.

“Hæc est illa amica Imperantium atque Medentium conspiratio, qua effectum est, ut aliquo veluti connubio Medicina ac Jurisprudentia inter se jungerentur.”

Hebenstreit Anthropolog: Forens:

IN THREE VOLUMES.

VOL. I.

LONDON:

PRINTED & PUBLISHED BY W. PHILLIPS, GEORGE YARD, LOMBARD STREET;

SOLD ALSO BY T. & G. UNDERWOOD, AND S. HIGHLEY, FLEET STREET;

AND W. & C. TAIT, EDINBURGH.

1823.

TO

THE RIGHT HONOURABLE

JOHN EARL OF ELDON,

LORD HIGH CHANCELLOR OF GREAT BRITAIN;

AND TO

SIR HENRY HALFORD, Bart.

PRESIDENT OF THE ROYAL COLLEGE OF PHYSICIANS;

THIS WORK

IS, WITH THEIR PERMISSION,

MOST RESPECTFULLY DEDICATED BY

THE AUTHORS.

TABLE OF CONTENTS.

ERRATA. VOL. I.

Page [176], [note (a)] after Greenstreet and, insert Greenstreet.

Page [177], [note (a)] for majorum read magorum.

Page [235], [note (b)] for primes read primis.

Page [437], line 21, for violation read volition.

VOL. II.

Page 188, line 2, for Nicholls read Mitchell.

Page 362, line 16, for 301 read 303.

Page 347, line 19, for portable read potable.

VOL. III.

Index, for p. 156-184, read 320-348.

INTRODUCTION.

Medical Jurisprudence[^[1]] may be defined, a science by which medicine, and its collateral branches, are made subservient to the construction, elucidation, and administration of the laws; and to the preservation of the public health.

It accordingly resolves itself into two great divisions—into Forensic Medicine, comprehending the evidence and opinions necessary to be delivered in courts of justice; and into Medical Police, embracing the consideration of the policy and efficiency of legal enactments for the purpose of preserving the general health, and physical welfare of the community.

Under no circumstances does medical science assume so imposing and dignified an attitude, as when regarded as a branch of legislation. Disentangled from the web with which worldly caprice, credulity, and empiricism, are ever seeking to embarrass the more ordinary path of her labours, she at once displays her pride and strength in the number and variety of her resources, and in the extent and importance of their applications; while the professor of our art is thus enabled to support additional claims upon the respect of the learned, the confidence of the oppressed, and the gratitude of the public. In the active exercise of his duties as a medical jurist, how exalted and honourable is the occupation of the physician!—there is scarcely a circle of natural science, upon the boundaries of which he does not impinge in some point or other, of his extensive orbit. Trace his progress, for instance, through the subject of poisons, and we shall soon perceive that it involves within its range the departments of anatomy, physiology, botany, mineralogy, zoology, and chemistry. If, again, we follow his steps through the deviating and perplexing course of homicide, in how many new and interesting forms will the principles of physiology present themselves; how frequently shall we find ourselves engaged in the solution of problems connected with the knowledge of pneumatics, hydrostatics, and mechanics? If we attend him in the investigation of nuisances, as affecting the health and comfort of the surrounding inhabitants, we shall perceive that an acquaintance with the various branches of natural philosophy, can alone enable him to appreciate the nature and extent of the evil, or the value of the different plans that may be proposed for its removal. While the intricate and perplexing subjects of quarantine and plague police, will require for their elucidation, the energies of a peculiarly constructed and well disciplined mind, to concentrate the genuine lights into a focus, and to dissipate the many specious, but false appearances, with which the question of contagion has been distorted.

The institution of medicine and jurisprudence, necessarily arose as the consequence of the physical and moral infirmities of our nature, and must, therefore, have been nearly coeval with the origin of society. In the earlier periods, however, of the world, the connection between these sciences could only have been slight, and scarcely, perhaps, perceptible; although we are strongly inclined to believe that Medical Jurisprudence has an origin far more ancient, and an influence far more extensive, than modern writers have been willing to concede; an opinion which we are prepared to support by the authorities of profane as well as sacred writers, and by the history of civilized as well as barbarous communities. It must be admitted, that no inconsiderable a part of the institutions of the great law-giver of Israel, was a wise system of medical police, well adapted for the preservation of the health, and the amelioration of those evils to which the inhabitants of a tropical climate must have been exposed; and we read, that Moses was skilled in all the learning of the Egyptians. In Leviticus,[^[2]] commands are given to the priests to visit the houses infected with the plague of leprosy, or with any contagious disease; to examine the inhabitants; to establish quarantine; to scrape and white-wash the houses; to shut them up, and, in bad cases, to pull them down. If we descend into later times, we shall discover the same policy of associating the institutions of medical police with religious ceremonials; by which the performance of duties, essential to the preservation of the health, was more effectually enforced. The author has observed, in the historical introduction of his “Pharmacologia,” that bathing, which at one period of the world was essentially necessary to prevent the diffusion of leprosy, and other infectious diseases, was wisely converted into an act of religion, and the priests persuaded the people that they could only obtain absolution by washing away their sins by frequent ablution;[^[3]] but, since the use of linen shirts has become general, and every one has provided for the cleanliness of his own person, the frequent bath ceases to be so essential; and, therefore, no evil has arisen from the change of religious belief respecting its connection with the welfare and purity of the soul. Among the religious impurities, and rules of purification of the Hindus, we shall be able to discern the same principle, although distorted by superstition.[^[4]] So, again, it is easy to perceive, that the dangers consequent upon vinous inebriation in a hot climate, suggested the Mahometan prohibition of wine. The religious ceremonial observed by the ancients, whenever they proposed to build a town, or to pitch a camp, was evidently an act of legislation, founded on a just principle of physiology; they offered a sacrifice to the gods, when the Soothsayer declared, from the appearance of the entrails, whether they were propitious or not to the design. What was such an inspection but a philosophical inquiry into the salubrity of the district, and the purity of the waters by which it was supplied?—for it is well known that in unwholesome situations, especially if swampy, the viscera of the cattle will universally present an appearance of disease, which an eye experienced in such dissections, would easily distinguish.

But, in order to shew the universality, as well as the antiquity, of the policy which we are endeavouring to establish, we propose to furnish the reader with an illustration, afforded by the superstitions of an uncivilized race of modern times. The pearl-diver in the East-Indian fisheries is constantly exposed, during his dangerous occupation, to the attack of the Ground-Shark, a common and terrible inhabitant of all the seas in those latitudes. In order to avoid falling in with this foe, the adventurous Indian seeks for safety in supernatural means. Before he begins diving, the priest, or conjurer, or, as he is termed in the Malabar language, the Pillal Karras, or Binder of Sharks, is always consulted, whose directions upon these occasions are received with confidence, and followed with the most implicit obedience. The advice which is given them, under the imposing weight of a religious ordinance, has, for its sole object, the maintenance of the health of the diver, and the adaptation of his body for the arduous occupation in which he is engaged; and it is not a little curious to observe that in the performance of this duty, the Pillal Karras appears to display a judgment, which the most enlightened views of modern physiology could not improve. The diver, for instance, is enjoined to abstain from all food for some time previous to his descent; a practice, the value of which will be duly appreciated by those who read our chapter on the physiology of Suffocation, vol. ii. p. 34.

In those countries, where it becomes necessary to check the increase of population, we again find that ecclesiastical institutes are made subservient to state policy; thus the religion of the Island of Formosa[^[5]] prohibits women becoming mothers before the age of thirty-five years; and, should they become pregnant before that time, the priestess procures abortion by violence[^[6]].

In the book of sacred law of the Hindus,[^[7]] the rules for the choice of a wife are formally and minutely detailed, and will be found remarkably conformable with our physiological notions respecting the transmission of disease and deformity.

The knowledge of Forensic Medicine, if not as ancient and universal as the Institutes of Medical Police, may still boast of an early origin, and a very extensive influence; thus in Deuteronomy[^[8]] in cases of doubtful virginity, the Elders are to be consulted, in order that they may deliver their judgment from the physiological evidence of the case. In ancient nations the assistance of the philosopher and physician was universally required for the prevention, as well as detection of crime; thus was Archimedes consulted by the king of Sicily, when a workman was suspected to have fraudulently alloyed the gold in his crown. The Romans, especially in the reign of Severus, Antonine, Adrian, and Aurelius, constructed several laws, and reformed some others, in conformity with the sentiments inculcated in the works of Hippocrates and Aristotle; the capital crime of procuring abortion was accordingly limited to those cases wherein the fœtus exceeded forty days; and the Emperor Adrian passed a decree upon the subject of legitimacy, as connected with the period of utero-gestation, according to the physiological opinions with respect to the possibility of retarded delivery;[^[9]] while Numa Pompilius prohibited the burial of a pregnant woman, or of one supposed to be pregnant, until the fœtus should have been extracted, or the state of the uterus ascertained by dissection.[^[10]].

The trials by ordeal in the dark ages of modern Europe, when the decision of the most important questions was abandoned to chance or to fraud, when carrying in the hand a piece of red hot iron, or plunging the arm in boiling water,[^[11]] was deemed a test of innocence, and a painful or fraudulent experiment, supplanting a righteous award, might consign to punishment the most innocent, or save from it the most criminal of men, have ever been deemed a shocking singularity in the institutions of our barbarous ancestors. We are ready to admit the justice of this charge generally; and yet we fancy that, upon some occasions we are enabled to discern through the dim mist of credulity and ignorance, a ray of policy that may have been derived from the dawning of a rude philosophy. Trials by ordeal, as we are informed by Mr. Mill, hold a high rank in the institutes of the Hindus. It appears that there are no less than nine different modes of trial, but that by water in which an idol has been washed, and the one by rice, are those which we shall select as well calculated to illustrate the observations which we shall venture to offer. The first of these trials consists in obliging the accused person to drink three draughts of the water in which the images of the Sun and other deities have been washed; and if within fourteen days he has any indisposition, his crime is considered as proved. In the other species of ordeal alluded to, the persons suspected of theft are each made to chew a quantity of dried rice, and to throw it upon some leaves or bark of a tree; they, from whose mouth it comes dry, or stained with blood, are deemed guilty, while those who are capable of returning it in a pulpy form, are at once pronounced innocent. When we reflect upon the superstitious state of these people, and at the same time, consider the influence which the mind, under such circumstances, is capable of producing upon the functions of the body, it is impossible not to admit that the ordeals above described are capable of assisting the ends of justice, and of leading to the detection of guilt. The accused, conscious of his own innocence, will fear no ill effects from the magical potation, but will cheerfully acquiesce in the ordeal; whereas the guilty person, from the mere uneasiness and dread of his own mind, will, if narrowly watched, most probably discover some symptoms of bodily indisposition, before the expiration of the period of his probation. In the case of the ordeal by rice, a result, in correspondence with the justice of the case, may be fairly anticipated on the soundest principle of physiology. There is perhaps no secretion that is more immediately influenced by the passions than that of saliva. The sight of a delicious repast to a hungry man is not more effectual in exciting the salivary secretion, than is the operation of fear and anxiety in repressing and suspending it. If the reader be a medical practitioner, we refer him for an illustration to the feelings which he experienced during his examination before the medical colleges; and if he be a barrister, he may remember with what a parched lip he gave utterance to his first address to the jury. Is it then unreasonable to believe that a person under the influence of conscious guilt, will be unable, from the dryness of his mouth, to surrender the rice in that soft state, which an innocent individual, with an undiminished supply of saliva, will so easily accomplish?

These few examples will suffice to shew that Medical Jurisprudence had an early origin; and yet we are ready to admit that its applications were extremely desultory, and often, from the infant state of the sciences upon which it rested, not only imperfect but erroneous; indeed the question may be very fairly maintained, whether on many occasions the evidence of the physician has not embarrassed where it should have enlightened, and misled where it was called upon to direct the steps of justice. Forensic medicine, however, could scarcely be considered as constituting a branch of legislation, until its utility was publicly recognised, and its assistance legally required. This admission will compel us to assign to Germany the honour of its origin, for the Medical jurist is first acknowledged, and his services formally required, in the celebrated criminal code framed by Charles the Fifth, at the Diet of Ratisbon, in the year 1532, known by the name of the “Constitutio Criminalis Carolina,” and which still constitutes the basis of the criminal proceedings of the German courts. In the code it is enacted, that medical men shall be consulted whenever death has been occasioned by violent means, whether criminal or accidental, by wounds, poisons, hanging, drowning, or the like; as well as in cases of concealed pregnancy, procured abortion, child-murder, &c. The publication of such a code very naturally awakened the attention of the medical profession, and summoned numerous writers from its ranks. The first of whom were Bohn[^[12]], Valentini[^[13]], Boerner[^[14]], Kannegeiser[^[15]], and Struppe; Alberti[^[16]], Zittman[^[17]], Richter[^[18]], Teichmeyer[^[19]], and Stark[^[20]]; some years after whom came Hebenstreit[^[21]], Ludwig[^[22]], and Fazellius[^[23]].

The first German work of any authority is that of John Bohn, published in 1689, and entitled “De Renunciatione Vulnerum,” in which the author attempts to shew what wounds are necessarily fatal. In 1704, the same Professor presented to the profession a forensic work of greater range, for the purpose of giving rules for the conduct of physicians in attending the sick, and in delivering evidence before a court of judicature; it is entitled “De Officio Medici, duplici, clinico et forensi.” At about, or rather previous to the publication of this latter work, the celebrated Pandects of Valentini appeared, which form a compendious retrospect of the opinions and decisions of preceding writers on Juridical Medicine. In his preface Valentini endeavours to enforce the necessity of cultivating this branch of Medical Science; and although more than a hundred and twenty years have elapsed, how aptly will his rebuke apply to the medical witnesses of the present age—“Evenit sæpe ut etiam illi qui magno Archiatrorum Practicorumque felicissimorum titulo superbiunt, in publicis hujuscemodi occasionibus facultatibus, ut Mus in pice, hæreant, ineptisque relationibus facultatibus Academicis non tantum risum moveant, sed et omnem, qua prius gaudebant estimationem protinus amittant.” This was followed by the works of Kannegeiser, and of Frederic Boerner, medical professor of Wirtemburg, on various subjects connected with Legal Medicine. The system of Alberti of Halle, in six volumes quarto, appeared in 1725. Amongst the numerous questions elucidated by this laborious author, we may particularize those relating to conception and utero-gestation; and the reader will perceive that we have frequently availed ourselves of his opinion upon these points. Nearly cotemporary with Alberti, were Zittman, Richter, and Teichmeyer, from whose writings we have also had frequent occasion to extract some valuable observations. In 1730 the progress of Medical Jurisprudence was very considerably advanced by the publication of the argumentative work of Storck, in which the utility of medical knowledge in assisting the operation of the laws, is very ably and warmly advocated. The Anthropologia Forensis of Hebenstreit, from which we have so frequently derived useful information, did not appear until 1753, and was followed by the Institutes of Ludwig, and the Elements of Fazellius. In 1781, Plenck[^[24]] published his Elementary work on Forensic Medicine and Surgery; and in the following year the first volume of Haller’s[^[25]] celebrated Lectures on Juridical Medicine, in the execution of which he takes the Institutes of Teichmeyer as his text, correcting his errors, and amplifying his opinions. This work was subsequently completed in three volumes. In 1784, Daniel, by the title of his work[^[26]] published at Halle, first introduced the term of State Medicine, as expressive of that branch of medical science of which we are now treating. The annals of the close of the eighteenth century are enriched by several important productions; amongst which may be particularized Conspectus of Sikora[^[27]], the First Lines of Loder[^[28]], the System of Metzer[^[29]], and the Delineations of Muller[^[30]]. If the reader be desirous of further information respecting the German literature of State Medicine, at this period, we must refer him to the great works of Schlegel[^[31]] and Plouquet[^[32]]; Struvius likewise in his Bibliotheca Juris, (vol. i. p. 172) refers to the work of Andreas Otto Goellicke, Frankfort, 1723, for an enumeration of the numerous medico-legal writers of the earlier part of this age.

During the present century we have received two volumes from the pen of Metzger; and in the year 1806, Knappe and Hecker commenced at Berlin, a periodical publication, under the title of “Critical Annals of State Medicine;” some years after which a similar work appeared under the superintendance of Professor Kopp of Hanau. In speaking of the periodical works of Germany, we must not omit to mention that conducted by Dr. Scherf, Aulic Counsellor at Detmold, under the title of “Contributions to the Archives of Medical Police,” which extended to eight volumes, and was afterwards continued under the appellation of “Isis,” or “Journal of Medical Jurisprudence and Police.” To the catalogue of writers already enumerated, we might add many more; but having cited the most celebrated works we consider it unnecessary to adduce farther demonstration of the indefatigable and laborious industry of the German literati.

The middle of the sixteenth century may be stated as the epoch at which the subjects of Medical Jurisprudence first excited much attention in the schools of Italy. The earlier writers, however, would appear to have studied the science rather with casuistical, than physiological views. Fortunatus Fidelis, who has been regarded as the father of the Medico-legal literature of Italy, first published his work “De Relationibus Medicorum,” at Palermo, about the period above stated; it was afterwards republished at Venice, and lastly at Leipsic, under the care of Paul Amman, Professor of Botany and Physiology in that University. It consists of four books, of which the following may be received as an outline of the contents, viz. I. On Public Food; the Salubrity of the Air; Pestilence. II. Wounds; Pretended Diseases; Torture; Injuries of the Muscles; Medical Errors. III. Virginity; Impotence; Hereditary Diseases; Pregnancy; Moles; the Vitality of the Fœtus; On Birth; Monsters. IV. Life and Death; Mortality of Wounds; Suffocation; Death by Lightning and Poisoning.

Amongst the earliest dissertations which appeared on questions connected with the subject of Jurisprudence, and which merits notice on this occasion, is one by Frederic Bonaventura, an eminent scholar and physician of Urbino, in Italy, who flourished in the early part of the seventeenth century, entitled, “De Natura partus octomestris, adversus vulgarem opinionem, libri decem.” Francof. 1601; an enormous folio volume, containing upwards of one thousand pages, on this uninteresting subject; in which he has introduced the opinions of different writers, and an account of all the controversies that have been held on the legitimate period of utero-gestation. The most celebrated however of all the Italian works which have descended to us, is that of Paul Zacchias,[^[33]] physician to Pope Innocent the Tenth, who was long considered as the only arbiter of questions relating to any of the subjects of Juridical Medicine. The estimation in which this work was universally held may be easily discovered, from the expressions with which it is mentioned by all cotemporary writers. Zacutus Lusitanus, in alluding to its value, exclaims “Emi,—vidi—legi—obstupui”! When we consider the period at which it was written, it must certainly be acknowledged as a very extraordinary work; that it should be overrun with casuistical subtleties cannot be a matter of surprise; the style too is entirely scholastic, full of digression, and prolix passages of erudition, but such was the taste of the age in which it was composed. We are also to remember that at this period, the philosophy of Aristotle alone directed the schools, and the doctrines of Galen, illustrated by a thousand servile commentators were, according to the judgment of that æra, the only sources from which medical opinions could be legitimately deduced. The study of Anatomy had only then commenced under the guidance of Vesalius, Columbus, Fallopius, and Eustachius; while Surgery, notwithstanding the labours of Paré, Arceus, Andrew Dalla Croce, Aqua Pendente, and other masters, was in its mere infancy. Chemistry too was as yet full of conceit and uncertainty; and Pharmacy was absolutely without any acknowledged principles. As the great work of Zacchias was composed at different periods, with considerable intervals between each, we find numerous repetitions, and contradictions. It is therefore evident, that although the “Quæstiones Medico-legales” may afford much instruction to the learned physician, it can be of no service to the student; this opinion is justly expressed by “Camerarius[^[34]]—Quisquis Pauli Zacchiæ opus legere cum fructu voluerit, insigni jam rerum medicarum notitia instructus sit oportet; eo magis quod alia sit modernæ Medicinæ facies; ditissimus enim thesaurus est liber iste, supplendus tamen subinde ex aliis fontibus recentioribus.”

Barnardin Ramazzini, having been struck with the numerous accidents which had occurred to Nightmen, was induced to direct his attention to the causes and nature of the asphyxia by which they perished, and to extend his investigation to the maladies to which the artisans in every profession were more peculiarly subjected. He accordingly, in the year 1700, published at Padua, an excellent treatise on these affections, entitled “De Morbis Artificum Diatriba,” a work which has retained its credit as a standard production, and to which all subsequent works on the same subject have been very largely indebted. It was translated by Fourcroy, who also enriched it with many valuable notes in 1777. It has also been presented to the public in many other countries, at different periods, and under various forms; as by M. Hecquet, 1740; Skragge, in 1764; Bertrand, in 1804; Gosse of Geneva, in 1516; and Patissier, in 1822.

In 1749, Professor Beccaria, of Bononia, published his work entitled Scriptura Medico-Legalis, and Bononi in his Istruzioni Teorico pratiche di Chirurg: entered with considerable minuteness into the subject of Forensic Surgery, especially in its relations to wounds. The later production however, of Giuseppe Tortosa[^[35]], the disciple of Caldani, must be considered as the most elaborate and scientific of all the Italian works on Medical Jurisprudence. The reader will find that we have frequently referred to this author; and it is just to state, that during the progress of our labours we have derived from him no inconsiderable assistance, in ascertaining the sentiments of the Medical Jurists of the Italian school, upon various casuistical as well as physiological doctrines. The work is professed to have been written with the sanction of his master, Caldani, and under the auspices of Franck of Pavia, and of Plouquet of Turin. He includes in his plan such subjects only as relate to Forensic Medicine, excluding those which belong more correctly to the department of Medical Police. The work is divided into three parts, viz. 1. Comprehending all the principal objects of Ecclesiastical jurisdiction. 2. Subjects relating to the Civil courts. 3. Those which relate to the Criminal courts. The subdivisions of each part are arranged in the following order. Part I.—Conjugal Impotence.—Conjugal Rites.—Monstrous Births.—Hermaphrodites.—Magic.—Of Persons possessed of Spirits.—Miracles.—Ecclesiastical Fasting. Part II. Age.—Pregnancy.—Birth.—Superfœtation.—Cæsarean Operation.—Simulated and Dissimulated Diseases. Part III. Of Deflowering.—Sodomy.—Torture.—Legal Examination of Wounds, and Dead Bodies.—Poisoning.—Infanticide.—Homicide by wounding.—Fœticide.—Accidental Death.

The application of Medical science to jurisprudence may, practically considered, be said to have commenced in France about the time of Francis I; but it was not until after the publication of the Constitutio Criminalis Carolina, that the French government, unwilling to allow their criminal code to remain less perfect and refined than that of their continental neighbours, decreed that the assistance of physicians and surgeons should be legally required; and which was at length rendered still more peremptory by letters patent granted by Henry IV, in 1606, conferring upon his first physician the privilege of nominating surgeons in every town to the exclusive exercise of this important duty; and Louis XIV. in 1667, after having formally declared, that all Reports which had not received the sanction of such an officer should be invalid, ordered by a decree, in 1692, that a physician shall always be present with the surgeon, at the examination of a body[^[36]]; the surgeons, however, of those times were not distinguished by the knowledge which they now possess; hence, in every thing that did not directly involve surgical discussion and practice, their reports were frequently defective. Magistrates were consequently induced to summon the more learned physician to the assistance of the Juridical Surgeon, long before it was enforced by the law; a practice, which like many others, acquired force and regularity from repetition.

Ambrose Paré is acknowledged as the first French writer on the subject of Juridical Medicine, and his treatise on Reports, published in 1575, was, for nearly a century, regarded as the only standard authority upon these occasions; it was, however, at length, to a great degree, superseded by the more accomplished treatises of Gendri of Angers, in 1650, of Blegni of Lyons, in 1684, and of Deveaux of Paris, in 1693. This latter work is one of very considerable merit, especially as it regards the diagnosis and prognosis of wounds.

The eighteenth century, says Foderé[^[37]], an æra remarkable for the conversion of the human mind from the enthusiasm of poetry and the fine arts, to the cultivation and study of the exact sciences, must be considered as the auspicious dawn of medico-legal knowledge in France. The spirit of emulation which animated the rival schools of Surgery and Medicine, produced men, who enlightened by their talents every department of the science of Medicine. Professor Louis, Secretary to the Academy of Surgery, taught publicly in the schools the art of resolving different questions in medical jurisprudence, which previous to his time had never been practised. Numerous memoirs on its various branches appeared in succession; eloquence allied itself to science, and their combined efforts were displayed in this novel mode of benefiting mankind. Upon the great principles of justice and humanity which presided at the reform of the penal code, chairs of medical jurisprudence were established in all the faculties of medicine. In 1788, Louis published at Paris his letters on the certainty of the signs of death, in answer to the dissertations of Winslow and Bruhier; and of whose judicious remarks we have availed ourselves in the discussion of the subjects of “Real and Apparent Death.” (Vol. II. p. 15). To the same author we are also indebted for memoirs on Drowning, and on the means of distinguishing Suicide from Assassination in cases of death by suspension. His Consultations on the celebrated causes of Monbailly, Syrven, Calas, Cassagneux, and Baronet, which are recorded in the “Causes Célébres,” must serve to exalt him still higher in our estimation. Winslow engaged his talents in the investigation of the Cæsarean Operation, including its moral, political, and religious relations. Petit and Bouvart entered the field as controversialists, and disputed the opinions of Louis on protracted pregnancy, with considerable ability. The former of these philosophers wrote also several memoirs on the phenomena of suspension and strangulation; he, moreover, examined the question relative to the signs of death from abstinence. Lorry discussed the question of survivorship with great acuteness and judgment. Salin attempted to deduce from the character of the organic lesions, an inference with respect to the nature of the poison that inflicted them; and he illustrated this opinion in an elaborate memoir on the research of the traces of poison on the body of Lamotte, sixty-seven days after it had been deposited in the earth; in which he decides that the death was occasioned by corrosive sublimate.[^[38]] And although the nice distinctions which this ingenious writer laboured to establish never had any existence but in his own imagination, yet the agitation of so important a question was by no means unprofitable; it directed the attention of the physician to the state of the organic lesions, and has ultimately led to some useful conclusions. While Salin was thus engaged on the subject of poisoning, Lafosse sought to distinguish the phenomena produced by death, from the traces of violence inflicted during life upon the body. He, moreover, developed the unequivocal signs of pregnancy and parturition. Professor Chaussier, in the year 1789, by a memoir, to the Academy of Sciences at Dijon, on the great importance of the study of juridical medicine, excited a spirit of emulation which was productive of the highest advantage. At about this period also the memorable “Encyclopédie Méthodique,” was undertaken, in which the celebrated authors already named contributed their powerful assistance, in conjunction with Professor Mahon, in compiling the elaborate articles upon Medical Jurisprudence. Such were the materials, says M. Foderé, which enabled me to publish my first systematic work[^[39]] on this science in the year 1796.

In the first few years of the present century the science of juridical medicine received numerous contributions from the French physicians. M. Vigné, of Rouen, published in 1805 his humane and enlightened reflections upon its practical applications; a work which bears internal evidence of the science as well as the judgment of its author. In the year 1807, the system of Professor Mahon appeared, not, however, until after the death of its author; M. Fautrel having undertaken the charge of arranging the manuscript, of illustrating it with notes, and of giving it to the world.[^[40]] Nearly at the same time the small, but useful work of Belloc[^[41]] was published; and in the following year Marc[^[42]] translated the German manual of Rose on juridical dissection, and enriched it with original observations; to which he also subjoined two memoirs on the obscure subject of the “Docimasia Pulmonaris.” We have deemed it necessary to introduce to our readers this slight sketch of the literary history of Medical Jurisprudence in relation to its progress in the several countries of Germany, Italy, and France; for much of the information thus afforded we are indebted to the elaborate system of Professor Foderé,[^[43]] published in six volumes, in the year 1813, and which must be regarded as a new work, rather than the republication of that already noticed, as having appeared in 1796. From this voluminous treatise we have frequently, in the progress of our present undertaking, made copious extracts. It becomes our duty therefore to present our reader with some account of the extent of its objects, and the order of their arrangement. The author divides his work into three parts, viz. the First comprehending subjects of a mixed nature, or those which admit of application to civil as well as criminal cases, “Médecine Légale mixte.” The Second exclusively relating to criminal jurisprudence, “Médecine Légale Criminelle;” and the Third, to medical police, “Médecine Légale Sanitaire.”

The work opens with a learned introduction, in which the importance of the science is fairly examined, and its history pursued with much detail, from its origin, to the period at which the author wrote. The qualifications of the forensic physician are also considered, and the different circumstances opposed to the success of his labours, enumerated and appreciated. Then follow in succession the subjects of the first division, viz. the different ages of human life, puberty, minority, majority, with the anomalies to which the natural growth and developement of the body are liable. Personal identity and resemblance. The relative and absolute duration of life. The grounds of prohibition in testatorship, such as habitual, periodical, and temporary insanity; suicide; deaf and dumb state; somnambulism; intoxication. The qualifications of testators and witnesses. Marriage and divorce. Pregnancy, true and false. Parturition, and the signs denoting the death of the fœtus in utero. Paternity and filiation. Premature and retarded births. Monsters. Hermaphrodites. Survivorship. Signs of real and apparent death. Treatment of the different varieties of Asphyxia. Certificates of exemption, and diseases which exempt. Feigned, dissimulated, and imputed maladies.

The Second division commences with the third volume, and includes, in their respective order, chapters on the examination of bodies found dead. The distinction of assassination from suicide. Wounds. Poisoning. Rape. Abortion. Concealment and substitution of the offspring; and Infanticide.

The Third division, with which the fifth volume commences, successively treats of the preservation of the human species, and of the means of remedying its physical degeneracy. Contagious, hereditary, and epidemic diseases, and the precautions to be adopted against them. The medical police of cities, with regard to aliment, arts, manufactures, and attention to the sick. Military and naval hygiène; and, lastly, the medical police of hospitals and prisons.

No work of similar calibre had been previously published, and its execution is a sufficient proof of the profound erudition and sterling ability of its author; but it is by no means calculated to assist the inquiries of the English physician. It is often unnecessarily prolix and minute, and is adapted only to the judicial courts of the continent. Since its publication numerous writers on detached questions have sprung up, and thrown much additional light on their obscurer points. The subject of poisons has been very ably elucidated by the researches of Professor Orfila[^[44]], and in a work[^[45]] still more recently published by that distinguished professor, the applications of Toxicological Science to Forensic inquiries have been more minutely considered.

The subjects of conception and delivery, with the various questions to which they have given origin, have been very ably discussed by M. Capuron;[^[46]] from whose work it will be perceived we have derived much satisfactory information.

After the historical view which we have taken of the continental literature of the subject, we fear that the labours of our own countrymen, in this department of science, will suffer a disparaging comparison; and yet we trust that any temporary feeling of inferiority and humiliation thus excited, will easily yield to the just conception of the circumstances to which the neglect of the subject is to be attributed.

Although numerous questions connected with objects of forensic inquiry had been discussed and illustrated in the various periodical journals of Great Britain, yet no work, professing to treat of Medical Jurisprudence, appeared previous to the small and imperfect production of Dr. Farre in 1788, entitled “Elements of Medical Jurisprudence,”[^[47]] and which was rather an abstract of a foreign work, than an original essay. The next in succession was a “Treatise on Medical Police,” by Dr. Robertson, in two volumes, published in 1808. In 1815 Dr. Bartley, of Bristol, presented us with “A Treatise on Forensic Medicine,” than which it is impossible to conceive any production more meagre or imperfect. Dr. Male[^[48]] is undoubtedly entitled to the grateful notice of the medical historian, as the author of the first respectable English book on forensic medicine.

The last, and by far the most comprehensive and instructive work that has appeared in this country, is by Dr. Gordon Smith, entitled “The Principles of Forensic Medicine, systematically arranged, and applied to British Practice.” London, 1821.

In addition to the above writings, we may record the “Medical Ethics” of Dr. Percival; which, although not intended, nor indeed calculated for practical instruction, contains some interesting allusions to our subject. Nor must we omit to enumerate the several valuable monographs with which different English physicians have sought to advance the progress of medico-legal inquiry; as, for instance, the celebrated paper of Dr. Hunter, “On the Uncertainty of the Signs of Murder in the case of Bastard Children;” Dr. Haslam’s intelligent and judicious essay “On Medical Jurisprudence, as it relates to Insanity, according to the Law of England;” and Dr. Hutchinson’s laborious “Dissertation on Infanticide.”

Some of the more important subjects of Public Health, received also early notice, and were very ably investigated by our physicians. The plan of ventilating the holds and lower decks of ships, as proposed by Sutton in 1739, must have fallen into total neglect, through the unaccountable prejudice of the Admiralty, had it not received the powerful support of Dr. Mead, by whose advice experiments were publicly made, the success of which was, in the year 1741, acknowledged in an order of his Majesty that all vessels belonging to the Navy should be provided with ventilators. About the same period Hales published his celebrated memoir on the various causes which influence the health of seafaring men, and on the precautions necessary to be taken to prevent those maladies which frequently display themselves in ships and other confined situations; among which modes of safety the most important was a plan of ventilation by means of very ingenious bellows, and which were used with much success in the prisons of Porchester castle, Winchester, and Newgate;[^[49]] and in the several hospitals of London, Bristol, and Northampton.

In the year 1803, on the presentation of a memorial to his late Majesty’s ministers, urging the expediency of a Professorship of Medical Jurisprudence, in the University of Edinburgh, a Chair was endowed, and Dr. Duncan, junior, appointed to fulfil its duties; which, for many years he has continued to perform, with infinite credit to himself, and with equal advantage to the University and to the public. In the schools of England we continue to suffer from the want of such an establishment; Dr. Harrison, a few years since, read some lectures on the subject in the Medical Theatre of Windmill street; and Dr. Gordon Smith, has announced his intention of devoting himself to the duties of a public lecturer on Medical Jurisprudence. Dr. Elliotson has also lately published his “Introductory Lecture of a Course upon State Medicine,” which he proposes to deliver in the Anatomical Theatre in Southwark.

But it has been demanded, and in a tone, as it would seem, suggested by the feelings of mortified pride and disappointment, how it can have happened that in Britain, a country distinguished above all others for the unceasing jealousy and circumspection with which every thing that even remotely interests the life and comfort of the subject is scrupulously regarded, a science so peculiarly calculated to control the disorders of the social system, to rescue innocence from infamy or death, and to lead to the detection and punishment of crime, should for so long a period have been imperfectly appreciated, and utterly neglected?

The answer to the charge is obvious, and, we trust, satisfactory. The progress of medical knowledge, including its collateral branches of science, can only within a few years be said to have rendered its applications available to the laws; while the spirit of British liberty and independence not only resists the perpetual intrusion of authorities, so necessary in other countries for the preservation of the public health, but insures, without the aid of legal enactments, all the benefits which can accrue from domestic cleanliness and attention.[^[50]] But upon each of these points it will be necessary to offer some farther remarks.

That the evidence afforded by an improving, but still precarious and imperfect physiology, should have been indiscriminately received at the tribunals of those countries where the decision of questions of justice is too often influenced, and even directed by the subtleties of casuistry, may be regarded as a subject of regret, but can scarcely excite the feeling of astonishment. Nor can we, on the other hand, be surprised to find, that the extreme jealously of the British courts of judicature should have resisted testimony which admits of being depreciated, or in any degree rendered questionable, by the doubtful controversies of science. So rapid, however, has been the progress of the leading branches of medical knowledge during the last ten years; and so successfully have they disentangled themselves from the many fatal fallacies with which they were encompassed, that the general prejudice against their practical utility, in advancing the administration of justice, must gradually subside, and the study of forensic medicine become universally popular. To strengthen our conviction upon this point we have only to compare the evidence of medical men, as delivered in the courts of justice during the last, and present century. Even so late as the period of Sir Thomas Browne, we find that learned physician bearing public testimony to the reality of diabolical illusions, and occasioning, by his evidence, the conviction and condemnation of two unfortunate persons, who were tried at Bury St. Edmonds before the Lord Chief Baron Sir Mathew Hale, on the capital charge of bewitching the children of a Mr. Pacey, and causing them to have fits![^[51]] In examining the chemical evidence in cases of poisoning, let us only compare that which was given by Dr. Addington on the trial of Mary Blandy, at Oxford in 1752, (see Appendix, p. 236) with that which has been delivered on any of the trials of the present day. Compare again the nature of the physiological evidence which has been received as satisfactory and conclusive, in cases of infanticide, with that which is acknowledged by the most distinguished physicians of our own times to be wholly inadequate to establish even a presumption of guilt.

With regard to the next point under consideration, viz. the expediency of an extended system of medical police in a free country like Great Britain, we have only to observe that, if we examine the extent of such institutions in the different states of Europe, we shall find it universally conformable with the genius, circumstances, and necessities of each government. Sweden, for instance, a country which from position, climate, and population, is relatively feeble, has found it necessary, for its very existence, to cultivate with assiduity the few resources which nature has bestowed upon it; and, hence, by a well digested system of medical statistics,[^[52]] it has been enabled to achieve extraordinary and brilliant actions, and to repair immense losses which it would otherwise have been unable to survive.

In Paris there exists a complete system of “Assainissement,” or police for the preservation of the public health. Its administration devolves upon M. le Préfet de Police, who for some years resorted to chemists and physicians for advice upon the different questions that might arise; upon such occasions, however, it is evident that he could only obtain that isolated advice, which, for want of having been properly discussed, was frequently arbitrary and weak; he had indeed sometimes temporary commissions, which were formed when any important problem was to be solved. In the year 1802 a council of health was, on the recommendation of M. Cadet de Gassicourt, permanently established. At first it only consisted of four members; but the new avocations required day by day, so multiplied their labours, that they were compelled in 1807 to increase the number of members composing it to seven; and the particular attention necessary to be paid to epidemical diseases determined M. le Préfet to add to it two physicians. The duties of this council of health were, to watch over all insalubrious manufactories and workshops; to collect observations on epidemics, and on the sources from whence they arose. They had, moreover, the charge of superintending the cleansing of the markets, rivers, slaughter-houses, butchers offal, burying-places, sewers, &c. and also of inspecting the public baths; the manufactories of the artificial, and the depots of the natural mineral waters; the amphitheatres for dissection; of making statistical researches on the bills of mortality; on the means of rendering the theatres, hospitals, and other public places more salubrious; on the best system for heating and lighting; on the composition of secret remedies; suspected vessels, &c. When this council received its definite organization, it was composed of the following persons, whose names are a sufficient guarantee of the ability with which the duties of the establishment must have been performed—M. D’Arcet, M. Le Chevalier Cadet de Gassicourt, MM. Deyeux, Berard, Huzard, Leroux, Dupuytren, Pariset, Petit, Marc, and Girard.

An establishment similarly constituted in this country, that should from time to time report its labours to the home department, would without doubt be attended with much advantage, and might suggest many police regulations highly conducive to the health and welfare of the community.

Of the severity of the French system of police, “Pharmaco-legale,” the reader may form some idea, when we inform him that, during the progress of the present work through the press, an apothecary of Verdun has been fined three thousand francs, for selling sulphuric acid to a woman who had poisoned herself with it. We are very far from objecting to such a system, especially where the respectability and knowledge of the vender are not guaranteed by an adequate power vested in some medical corporation. In Germany a mistaken policy exists of regulating every thing connected with health by the law, and which has led to the formation of a cumbrous code of contradictory, and often, injurious enactments.

The legislature of Britain has been accused of apathy upon all subjects in which the prosperity of commerce is not involved, and upon such occasions it is said to display a morbid vigilance and activity; “so truly mercantile are the English,” observes Professor Raynal, “that they mix up commerce with their philosophy, and even with their religion;” as a proof of this, he instances Mr. Locke, who, amongst his arguments for converting the Indians, adds that, “by being thus induced to cover their naked bodies, they would add to the consumption of British manufactures.” We do not admit the allegation, and may be allowed to ask, in what country the fruits of commerce are more liberally devoted to the encouragement of science, or to the promotion of religion? In truth, the benefits which are enforced by the legal enactments of other countries, are in England the spontaneous consequence of individual liberality; and what is that repose which the jealousy of our rival neighbours has denominated apathy, but the placid expression of satisfaction experienced by the whole community at the active liberality of the numerous individuals of which it is composed? We are, nevertheless, willing to admit that occasions do exist in which the interference of the legislature might be made subservient to the preservation of the public health; and, in the course of our work, we have not felt any hesitation in directing the attention of the reader to their several merits. We have, in particular, recommended some enactments in cases of epidemic disease. Under such circumstances of public calamity the people naturally look for the sympathy and support of their government; and the general confidence inspired by a public act, however unimportant in itself, will always be attended with advantage; it will have the tendency to diminish the susceptibility of the people, and to limit the ravages of disease. The sages of ancient Rome were deeply sensible of this important fact in the œconomy of the people; whenever, therefore, their city was threatened with pestilence, a dictator was elected with great solemnity, for the sole purpose of driving a nail into the wall of the temple of Jupiter; and thus, while they imagined that they propitiated an offended deity, they diminished the susceptibility to disease, by appeasing their own fears.

Much benefit might also be conferred on the operative classes of society, by some judicious enactments that should ensure the adoption of the various plans of safety and protection, which science has from time to time discovered for the advantage of those who are engaged in the more dangerous occupations and manufactories; but which, from the apathy of some, and the prejudice of others, have been either heedlessly neglected, or illiberally and insolently repulsed. The blind opposition, which such inventions meet with, is well illustrated in the history of the safety lamp of Sir Humphry Davy, an instrument which has completely succeeded in use, and yet such is the obstinacy of the miners, that many of them continue to expose their own lives, and those of their companions, by carrying open lanterns about the galleries of the mines. The author of the present work has personally experienced the same mortifying insensibility and opposition, in his attempts to prevent the awful accidents that so frequently occur in the mines of Cornwall, from the premature explosion of gunpowder,[^[53]] in the operation of blasting rocks.

In the processes of needle-pointing and dry-grinding, the artisans rarely live many years, in consequence of the organic mischief produced in the pulmonary organs, from the fine metallic particles that are inhaled during the operation; to obviate such a source of danger, the Society of Arts offered a premium for any invention that might afford security, and their gold medal was, in consequence, presented to Mr. Abraham, of Sheffield, for his “magnetic guard.” Notwithstanding the expediency of this apparatus, we understand that the greatest opposition has been manifested by the workmen to its introduction. From the extreme danger of the process their wages are very high, and they fear that the adaption of any system that may diminish the risk will be followed by a corresponding reduction in their pay.

Surely such a subject well deserves the attention of the legislature. In France the Prefet de Police would prohibit the carrying on of such arts, unless every means of safety were applied. Such a measure was adopted in the case of the water-gilders in Paris, who hesitated to employ the means of ventilation suggested by M. d’Arcet for their security. It is not our intention to recommend a jurisdiction so absolute and summary, but some enactments should be framed that might secure the safety of the artisan, without infringing upon the liberty of the subject.

Wherever governments have interfered for the purpose of encouraging and rewarding, or of prohibiting and restraining, particular medical opinions or practices, the inexpediency of such interference has generally been soon discovered and demonstrated. What could have been more absurd than the attempt of the French parliament to proscribe the use of antimony,[^[54]] or the sale of poppy oil;[^[55]] or the enactments of the different governments of Europe to restrain the custom of smoking tobacco.[^[56]] The pension conferred by the French government upon M. Sigault[^[57]] for the invention of a new mode of facilitating delivery, in cases of difficult parturition; and the medal which was struck to commemorate it, were measures not less inconsiderate and absurd than the vote, by our own parliament, of five thousand pounds to Mrs. Stephens for the supposed discovery of a medicine that could dissolve a calculus in the bladder. But it may be said that we are reasoning against the propriety of a practice from its abuse—That may be very true; but our object is to shew that such a practice is pre-eminently exposed to fallacy and abuse. We profess ourselves, generally, hostile to the policy of remunerating medical discoveries, as they have been termed, by grants of money; although we cheerfully tender our homage and thanks for the great service rendered this country and the world, by the liberal support which the government has afforded to the cause of vaccination; and were the minister even now to withdraw the necessary supplies for the continuance of the vaccine board, the consequences that would, under such circumstances, ensue, afford a subject of the most awful consideration.

According to the view which we have taken of the subject of medical police, as necessary to the welfare of this country, our attention is necessarily directed to the Royal College of Physicians, as the only legitimate source from which the government is to derive its information, and the public their protection. No apology therefore can be necessary for the minute research by which we have endeavoured to ascertain and establish their existing rights and privileges. Under any circumstances it must be an object of the first importance to the profession, but at the present period the inquiry would seem to be marked with a more than ordinary degree of interest, as the anticipated removal of the College, and the increased attention which has been recently drawn to the subject, appear to promise considerable improvements not only in the interior arrangement of that learned body, but also in their public relations.

His present Majesty has afforded an early instance of his regard for our principal medical corporation, by an act of favour no less important to the institution, than honourable to the learned and distinguished physician who presides over its rights and interests, as will appear by the following

ROYAL LETTER.

“The King desires Sir Henry Halford, as President of the Royal College of Physicians, to announce to the College assembled, that it is the King’s pleasure in future, that the President for the time being, should always hold the office of Physician in Ordinary to His Majesty. The King has great pleasure in making this communication during Sir Henry’s Presidency, from the sincere regard He entertains for him, and the very high estimation in which He holds his character and abilities.

“Signed. G. R.

“Carlton House,

Jan. 18th, 1822.”

To which the College voted the following Address.

‘TO THE KING’S MOST EXCELLENT MAJESTY.

‘Sire,

‘We, the President, Elects, and Fellows of the Royal College of Physicians, humbly approach your Majesty with our most grateful acknowledgments for the mark of Royal favour with which your Majesty has been pleased to distinguish us by an order written and signed by your Royal hand, addressed to Sir Henry Halford, Bart. our President, commanding him to declare to the College assembled your Majesty’s Royal will and pleasure that every future President of the College of Physicians, for the time being, shall hold the office of one of your Majesty’s Physicians in Ordinary.

‘We associate, Sire, with this mark of your Royal kindness the pleasing remembrance of the circumstances of our original foundation by your Majesty’s illustrious predecessor King Henry the VIII, and dare to presume from so gracious a proof of your confidence in us, that your Majesty entertains a favourable opinion of our institutions and discipline, as calculated to make our profession respected in this country, above what it is in any other part of Europe, and most capable of forming a Physician worthy to be placed near the sacred person of the King.

‘To our President, Sire, we entrust this expression of our dutiful thanks, our loyalty, our attachment, and devotion to your Majesty, and we pray that no weight of cares which your Majesty’s great office imposes upon you may prove injurious to your health; and that Providence in His infinite goodness, may continue to watch over a life so highly important to the welfare, and happiness of your kingdoms.’

It now only remains for us to offer some observations upon the plan and execution of the work before us.

The classification of the various topics of forensic medicine has ever been a fertile source of controversy; and we will venture to assert that, from the diversity, as well as versatility of the numerous subjects involved in the study of medical jurisprudence, no arrangement can ever be constructed which shall vie, in perspicuity and precision, with that of most branches of natural science, the objects of which, however numerous, maintain a mutual relationship, and admit of being displayed in a striking and natural order of connection. If an arrangement be attempted to meet the legal view of the subject, such, for instance as that proposed by Professor Plenck, of Vienna, and adopted by Tortosa and many others, viz. of distributing the subjects according as they relate to the criminal, civil, or ecclesiastical court, we shall immediately perceive that the same subject will frequently belong with as much propriety to one division, as to another, and may require to be considered under all; thus, insanity must come before a civil court when the person is supposed incapable of managing his own affairs; and before a criminal tribunal, when the soundness of a murderer’s intellect is disputed. Professor Foderé, it must be admitted, escapes from this difficulty by creating, under the term “Medecine Lègale mixte,” a division that comprehends subjects appertaining at once to the civil and criminal law; but it will be immediately perceived that such a scheme is far too general and indefinite to ensure the advantages of systematic arrangement, or even to merit the appellation of a classification. If, on the other hand, an arrangement be projected upon purely physiological and pathological principles, such as that adopted by Valentini, in his “Corpus juris Medico-legale,” and which was followed by Roose, and very lately preferred by Dr. Elliotson,[^[58]] we shall find that similar embarrassments will arise, with respect to their legal relations, as we have just stated must attend their physiological bearings, where the basis of the classification has an exclusive reference to the law. The same objections will apply to the divisions of our respected cotemporary Dr. Gordon Smith, who appears to have appreciated all the difficulties of the subject, and, like ourselves, to have despaired of the success of any attempt to surmount them. He arranges the subjects of forensic medicine into three parts, viz. 1. Those which regard the extinction of human life; particularly by unusual or violent means; such are many kinds of sudden death, and all cases of homicide. 2. Injuries done to the person, not leading to the extinction of life; such are disfiguring and maiming, causing diseases, the violation of females, &c. 3. Circumstances connected with the physical system, that disqualify for the discharge of civil offices, or the exercise of social functions; such are mental alienation, the existence of certain diseases, the want of certain organs, &c.

After mature consideration, the arrangement which has been followed on the present occasion, although greatly liable to the many objections which we have so strongly urged against that of other writers, appears to the authors to be the one best calculated to accomplish the mixed objects of the publication. The ample synopsis of this arrangement, as presented in the table of contents prefixed to the present volume, would render any detailed account, in this place, superfluous. We have only to observe that the work is divided into three parts, the first comprehending the enumeration of the different medical corporations, with an account of their charters, powers, and privileges, together with the subjects of medical police. The second, all those subjects connected with medical evidence, as applicable to civil and ecclesiastical suits, in which the order of the subject corresponds with that of the progress of human life from infancy to old age. The third, the inquiries which are necessary to medical evidence, as applicable to criminal cases.

In limiting the boundaries of each division, it will be perceived that we have strictly adhered to the general principle of excluding every topic that had not some direct or constructive relation to the health, life, and physical welfare of the subject. Had we regarded chemistry as synonimous with medicine, and pursued the numerous subjects in which it might be rendered available in the construction, elucidation, and administration of the laws, we should have far exceeded the scope of our labours, and have wandered into a rich and imperfectly explored region, as boundless in its extent, as it is interesting in the novelty and utility of its productions. In this case the subject of patents would have formed a prominent feature in the second division of our work; for so rapid is the progress of chemical science, and so precarious the language by which its growing objects and phenomena are expressed, that, in the present state of the law, it becomes an extremely delicate task to draw the specification of a chemical patent in such terms as to escape the snares which ingenuity is ever ready to invent for its destruction. We cannot, perhaps, better exemplify the truth of this position than by the relation of a case that has lately excited a considerable share of public interest. A patent was granted to Messrs. Hall and Urling, for a new mode of manufacturing lace. The merit of the improvement turned upon the mode of singeing or burning off the raw ends of the cotton by a flame of gas, which was made to play rapidly through the meshes of the lace, instead of the red hot cylinder, over which it is commonly passed. The infringement of this patent by Boote formed the grounds of the action. The defendant stated that he had employed the flame of burning alcohol for this purpose, which not being a gas, but a vapour, could not be said to fall within the meaning of the plaintiff’s specification. Fortunately for the justice of the case, an additional apparatus was required to draw the flame through the meshes of the lace, and, without such a contrivance, the operation whatever might be the nature of the combustible gas, or vapour, employed, could not succeed; and since it is an acknowledged principle that an adoption of any part is an infringement of the whole, a verdict was returned for the plaintiff. But suppose the merits of the case had wholly rested, as had been expected, upon the distinction between gas and vapour; the chemical evidence would no doubt have urged that the one being permanently elastic and incapable of condensation, must be considered as very distinct in its nature from the other which admitted of being condensed into a liquid. Under such a conviction the plaintiff might probably have lost his verdict. But had the same trial, under the same circumstances, been deferred only for a few weeks, the effect of the chemical evidence must have been widely different, Mr. Faraday having, within the last month, succeeded in condensing no less than nine[^[59]] of these gaseous bodies that were universally acknowledged to be permanently elastic! and thus has this ingenious and indefatigable chemist, by a happy generalization, annulled the supposed characteristic distinction between gas and vapour.

The subject of forgery, and of frauds upon banker’s checques, accomplished by the well-known agency of acids in discharging ordinary writing, would upon the same grounds have been considered as a legitimate object of medical jurisprudence; and we should have proceeded to inquire into the different chemical means by which such frauds might be prevented.[^[60]] The subject of nuisances would also have received a more extended notice; and we should not have deemed it necessary to limit our observations upon the detection of fraudulent adulteration to those substances, the purity of which is essential to the health of the community. But it is unnecessary to multiply examples in proof of the latitude of the subject, or of the utter impracticability of any attempt to pursue its ramifications in the present work.

In our physiological illustrations we have, upon all occasions, sought to establish general principles for the solution of the various problems of forensic medicine. It has been said that “it is not so much the knowledge of the laws of physiology, as that of the exceptions to which they are liable, that is required in elucidation of abstruse medico-legal questions.” If this were admitted, the propriety of such scientific applications might be altogether doubted. “Leges fiunt de his quæ vulgo, non de his quæ raro eveniunt”; but, in truth, the exceptions of Nature are but apparent—the mere illusions arising from our imperfect view of her phenomena; and will diminish as our knowledge increases, just as the motions of the heavenly bodies cease to appear irregular as soon as their orbits are submitted to a more extended field of observation.

The second volume of our work commences with a physiological research into the “Causes and Phenomena of Sudden Death.” To the views developed in this chapter we are the more particularly anxious to direct the attention of the student, as they may be said to constitute the centre, and master-key of forensic physiology; while the obvious importance of their applications, in directing the treatment of asphyxia and cases of poisoning, will convey a striking rebuke to those who still deny the practical utility of such researches. We might even extend this remark to the more ordinary duties of the surgical practitioner, and in support of its truth, maintain, that he can neither fully comprehend, nor successfully treat the more important symptoms which attend injuries of the head, without an acquaintance with those mutual relations which subsist between the functions of the brain and heart, and those of the organs of respiration. To an ignorance of such views we may trace the origin of those discordant opinions which have existed with regard to the proper mode of treating concussion, or compression of the brain. Some practitioners, from having observed that the action of the heart frequently becomes enfeebled on these occasions, have unconditionally insisted upon the necessity of cordials; while others, reasoning upon the state of the brain, have with equal confidence advocated the propriety of immediate and copious depletion by the lancet. Let us see how far a knowledge of the physiological doctrines to which we have alluded will reconcile such conflicting opinions, and point out the proper plan which ought to be pursued in such cases of difficulty.

It has been stated,[^[61]] that the first violent impression upon the brain, whether occasioned by an external force, or a “coup de sang,” from hemorrhage within the skull, will be very liable to produce syncope. This effect, when it occurs, ought of course to be distinguished from the more ordinary symptoms of concussion and compression, and which may be said to approach the nature of suffocation, rather than that of syncope, as they depend upon impeded respiration, from a failure in the action of the muscles which are essential to it. In the former case it would be highly injudicious to resort to the lancet, until the action of the heart shall have been restored by cordials; whereas in the latter, prompt and copious blood-letting must be considered as the most effectual of all the resources of art.

For much of the novelty contained in this part of our work, the reader will find that we are greatly indebted to the liberality and friendship of Mr. Brodie, who afforded us the assistance of his Manuscript Notes, from which he delivered his lectures from the anatomical chair of the College of Surgeons.

With regard to the manner in which the subjects have been individually elucidated, we may venture to hope that, in a work of such extensive range, the reader will scarcely expect to find every department equally elaborate in execution; our discretion on this point has been, in great measure, directed by the degree of importance attached to each subject, and the extent and nature of the popular fallacies with which it is surrounded. In dealing with subjects thus embarrassed we have ever deemed it a great point to clear away every adventitious incumbrance, so as to make a naked circle around the object in dispute, and to afford an uninterrupted view of it on every side. We have, therefore, in pursuance of such a principle, endeavoured to bring the leading points of controversy within the scope of a few prominent questions, that we might discuss the merits of each with a share of attention commensurate with our idea of its importance. The advantages of such a plan will receive, we trust, a favourable exemplification in our history of poisons.

For our numerous quotations, if any apology be necessary, we may offer that of the learned Tortosa, deeming it more expedient to incur the charge of scholastic affectation, than to leave our readers in the dark, as to the sources from which we have derived our information, and particularly as we are thus enabled to furnish the student with various references to which he may advantageously apply for more extended information.

Some writers have objected altogether to the science of Medical Jurisprudence, alleging that it is an unnecessary addition to the already too numerous pursuits of the medical student; to their doctrine we cannot assent, even though so high an authority as a dictum of Sir Wm. Blackstone is adduced in its support; the learned commentator says, “for the gentlemen of the faculty of physic, I must frankly own that I see no special reason why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowledge—a character which their profession beyond others has remarkably deserved. They will give me leave, however, to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution.” It is not merely our object to show that, in common with other gentlemen, medical practitioners should have some general knowledge of the law, without which they cannot in any scene of life discharge properly their duty either to the public or themselves; but to demonstrate, that there are many and intricate branches of law, in which the physician or surgeon, by competent knowledge, may not only materially serve himself in reputation, and his patients by advice, but also render important benefit to the community.

It is true that medical practitioners, for reasons hereafter stated, are exempt from serving on juries, and are seldom charged with magisterial duties, at least till they have retired from the more active employment of their profession; it must be remembered, however, that they are charged with important and peculiar jurisdictions; and it is impossible to look at the various litigations which we have enumerated in the first part of our work, without feeling that every member of the medical colleges ought to possess some legal knowledge. Can the President and Censors of the College of Physicians execute their power of fine and imprisonment; can they restrain unlicensed intruders, or punish the bad practices of ignorant pretenders, without some study of the law? can they vindicate their rights without reference to the numerous acts of parliament on which they are founded? can they prove the guardians of the public health, without knowing the enactments by which it is protected? can they advise the legislative or executive power on numerous points submitted to their consideration, (as vaccine inoculation, quarantine, &c.) without understanding the bearings of the question referred to them? can they in fine do or advise any public act, without considering either the existing law as it may stand, or the policy and mode of future enactment? they may indeed state as much of the medical, chemical, or physiological facts of each case as their imperfect view may enable them to take; leaving it to the lawyer, who knows no physic, to correct the errors of the physician who knows no law. That acts of parliament have been framed on this principle of the mutual independence of law and science, it were vain to deny; but that they would have been better framed, if the parties employed in drawing them up had possessed some understanding in common on the subject before them, is equally indisputable. Let us therefore hope that, when our reader shall have considered the many points in which medicine and its branches may become auxiliary to legislation or government, he will feel convinced that legal studies are not useless to medical practitioners in their public capacity.

In considering the use of legal knowledge as applicable to private practice, Sir William Blackstone has mentioned one of many instances; it would be useful if the medical attendant were acquainted with at least the formal part of executing wills; in the moment of danger and distress, when all around the bed of death are confused with fear, or overwhelmed in affliction, the physician, probably a confidential friend, whose duty and habit ensures self-possession, may be the only person competent to advise. How many estates have been lost to the intended heir, by the want of a third witness to a devise of real property? or by an attestation informally signed, because the curtains of the bed were drawn, and the testator could not see the witnesses? From considering the last, let us turn back and enquire whether medical observation may not be necessary in the first scene of life. A midwife, unacquainted with the law of tenant by the courtesey, will scarcely note whether a child, certainly dead within a minute of its birth, did in that period move a limb or open an eye; he will not consider whether a momentary quivering of the lip was a sign of independent vitality, or the expiring remains of uterine life. If after a lapse of ten or twenty years he should be examined in a court of justice on this point in order to determine the right of the father to his estate for life, he will be unable to satisfy his own conscience, or the ends of justice; but once acquainted with the importance of these observations, he will never fail to note the occurrence, whenever he has reason to believe that the circumstances of the case may give rise to legal question.

In cases of impotence, sterility, idiotcy, and lunacy, the confidential medical attendant is the first person consulted on the subject; how often may he refute a groundless accusation, remove a causeless fear, and prevent a public exposure, by forming and demonstrating correct views of the subject? how often too may he aid the oppressed, defeat the guilty, and protect the innocent, by a knowledge of the legal remedies against fraud or coercion?

In many criminal cases too the surgeon is of necessity among the first witnesses of the deed; is it not important that he should know what evidence will be required to prove its perpetration? surrounded by ignorant or prejudiced persons, his calm and accurate view, not only of medical, but of general points, becomes of peculiar importance; yet if he be unacquainted with the forms of judicial enquiry, unversed in the history of criminal courts, he will be as little able to direct his attention to the proper objects, or to divest his mind of undue bias, as the most ignorant of the by-standers.

As we shall have frequent occasion in the course of this work to revert to these points, we do not now dwell on them more minutely, than to repeat our opinion, that a general knowledge of the law is not only becoming to the medical practitioner in his character of a gentleman, but highly useful and necessary to his professional career. We do not expect that medical students shall become special pleaders, or that the bar shall vie in chemistry and physiology with the professors of those sciences; but we shall endeavour to point out to each the sources from which they may draw information if they are desirous of acquiring it; we are of necessity confined within narrow bounds; but if within those limits we enable the two professions of law and physic to understand and appreciate each other, our object is accomplished.

Medical Jurisprudence.

PART I.

1. Of the College of Physicians.—2. College of Surgeons.—3. Society of Apothecaries.—4. Medical Liabilities and Exemptions.—5. Public Health.—6. Quarantine Laws.—7. Medical Police.

1. OF THE COLLEGE OF PHYSICIANS.

It does not appear that the Professors of Physic were in any way classed, or incorporated, in England, until the year 1522, although we learn from the preamble of the Charter of Henry the Eighth, as well as from the petition of the 9th of Henry the Fifth, that other countries had long before that period established Medical Colleges, having considered such a measure not only as necessary for the encouragement of science, but as highly politic for the preservation of the public health.

England, although destined to take the lead in research and discovery at a later period, was in the sixteenth century far behind her continental neighbours in the field of Science. And with respect to the study and practice of physic, it seems probable that, until after the foundation of the College of Physicians, it had not even assumed the character and dignity of a regular profession; for we find that the very few learned men in that branch, which the annals of the period can furnish, had acquired their knowledge in the foreign universities.

Until the auspicious period of the Reformation, various circumstances contributed to retard the progress of medical science; the first and most considerable of which may be traced to the many monastic establishments[^[62]] with which the country was infested; the Monks are known to have practised physic very extensively, and when the superstitious character of these ages is considered, we shall not feel surprised at the vulgar, and perhaps not the lower order alone, having preferred, to every other medical assistance, the aid of those who arrogated to themselves the immediate assistance of heaven in the preparation and administration of their medicines.

The Alchemists[^[63]] were another, and very numerous class to whom we may justly refer the temporary degradation of the science of medicine. Like their lineal descendants, the Empirics of modern times, their attention was directed to the discovery of an universal specific which should be equally applicable to every disease; and as presumption is ever proportionate to incapacity, we need not be surprised that they should have been eagerly followed by the ignorant of their day, as their successors are by the vulgar of our own; under such circumstances there could have been but little encouragement to men of real learning, and as we find by the recital of the act of 5 Hen. 8. c. 6. that there were but twelve regular Surgeons practising in all London, we may safely conclude that the number of legitimate physicians must have been proportionally smaller. The Universities of Oxford and Cambridge had probably from the time of their foundation conferred degrees in medicine, but these do not appear to have carried with them any general privilege or authority; their rights indeed were reserved by the concluding section of the 3d Hen. 8, c. 11, but in what those rights consisted has not been judicially determined, even though the litigation to which the Act and the subsequent Charter of the College gave rise, would naturally have produced some decision on this point, had the extent of those ancient rights ever been legally defined[^[64]]. We shall not consume any farther time upon this question, for although it might be a subject of some antiquarian curiosity, it would furnish but little matter of professional interest, or practical utility. In the present age the Universities of Oxford and Cambridge are firmly united by a communion of sentiment and interest to the College of Physicians, and physicians are rarely admitted as Fellows[^[65]] of this learned body, unless they have previously graduated in one of the English Universities, or at Trinity College, Dublin, but even in this latter case, it is required that the candidate for admission should have been previously incorporated either into the University of Cambridge or Oxford. That a distinction founded on such a basis should have excited an angry and jealous feeling in the excluded party is not extraordinary; and the authors of the present work hope that they shall stand excused for offering a few remarks upon a subject which they consider vitally interwoven with the best interests of the profession. The arguments which have been so repeatedly urged against the justice, as well as policy, of the Bye-law[^[66]] which thus excludes all, but the graduates of an English University, from the honours of the Fellowship, may be easily refuted, and its salutary tendency, in relation to the interests of the public, as well as to the dignity of the profession, very satisfactorily demonstrated. For the complete knowledge of medicine, as a science, all the collateral lights of natural philosophy and erudition, are required; while for its successful practice as an art, the physician should possess those high qualifications of mind, and have received that moral cultivation which a mere technical education can never bestow. We are willing to admit that “the curative art cannot be learnt on the sequestered banks of the Cam or the Isis, as well as amid the distress and sickness of a great city;” but we assert with equal confidence, that the liberal pursuits, and wholesome discipline of an English university, can best prepare the mind for the full and extensive benefits, which the pupil is afterwards to derive from his professional studies in the metropolis; and if it be essential to encourage a liberal education amongst those who are destined to move in the higher walks of physic, we would ask whether any plan could be derived more likely to ensure our object, than that fair and honourable reward which is held out by this unjustly reviled bye-law of the College of Physicians. It has been urged, that the education of a physician is thus rendered materially and unnecessarily expensive; and that the delay of twelve years, which are required for the full completion of the highest medical degree, proves another great and vexatious hardship;—to all this we reply, that we should politically resist any measure that had the least tendency to divest medical education of its pecuniary sacrifices, and to open the temple to a crowd of needy and half-educated adventurers. Tissot seems to have entertained the same sentiment, and he observes that, for these reasons, no person ought to be allowed to study physic in his native city: the operation of this bye-law will therefore furnish the surest guarantee of professional respectability, and the College of Physicians will continue to enroll names distinguished for science and erudition, men who will cast a lustre on the profession, over which they preside: let then the practitioner in medicine beware how he attempts to depreciate the dignity and importance of this ancient institution, or to deny the rights and privileges to which the corporate body is legally and morally entitled, for to the College of Physicians, as it regards the whole profession of physic, we may address the same emphatic words that Cicero applied to Torquatus with reference to the state, “Tibi, nullum periculum esse perspicio, quod quidem sejunctum sit ab omnium interitu.”

Nor is the College singular or invidious, as may at first sight appear, in adopting this rule; by far the greater number, if not all, of the Bishops require a similar qualification for the Church; and the Inns of Court, though they do not exclude others, grant some indulgence to members of the University on entering their respective societies, and remit two years of the usual term of probation to those who have taken the degree of Master of Arts or Bachelor of Laws previously to their call to the Bar.

The College of Physicians in London owes its foundation to Dr. Thomas Linacre of All Soul’s, Oxford, one of the physicians to king Henry the 8th, a man of profound learning and most devotedly attached to his profession; having studied at Rome, Bologna, and Florence, (then under the government of Lorenzo de Medici, by whom he was encouraged), he naturally imbibed an admiration of the medical schools with which Italy then abounded, and appears to have distinguished himself so much both by his general learning and particular science that he was called to Court as physician to the king, and entrusted by Henry the 7th both with the health and education of his son prince Arthur.

The practice of Medicine was about that time, as we have before observed, chiefly engrossed by empirics and monks, who, and especially the latter, easily obtained licences from the bishops in their several dioceses, to whom was committed the authority of examining practitioners in an art of which they could not be competent judges. Linacre, through his interest with Cardinal Wolsey, a man most highly and honorably distinguished for his munificent encouragement of learning, obtained in 1518 Letters Patent (see Appendix, p. 5,) from Henry the 8th,[^[67]], constituting a Corporate Body of regular Physicians in London, with peculiar privileges hereafter to be specified. Linacre[^[68]] (though his name is second in the Letters Patent) was elected the first President of the College, which held its meetings at his house in Knight Rider Street; he was continued in the office during his life, and bequeathed his house to the College at his death; he was distinguished both by his learning and his friendship with learned men, among whom he enjoyed the commendations of Erasmus and Melancthon. He died in 1524, in the sixty-fourth year of his age, and was buried in St. Paul’s, where a monument was erected to his memory by Dr. Caius, one of the most learned and munificent of his successors. See Preface to Goodall’s Proceedings of the College: Biog. Britan.: Aikin’s Biog. Mem. of Medicine: & 6 Aikin’s General Biography.

As it cannot be uninteresting to trace the progress of a society through the medium of its principal ornaments, and as the authors owe to Dr. Caius the foundation of that institution in which they commenced those joint chemical studies which have indirectly induced their present undertaking, they do not apologize to the reader for adding a short notice of his life, and of that of Dr. Harvey, another considerable benefactor to the College of Physicians.

Dr. John Caius, Kaye, or Key, of Gonville-hall, Cambridge, succeeded Linacre in the Presidency; like him he had travelled in Italy for his improvement in the study of Medicine, and having resided in Padua and Bologna, where he took his Doctor’s degree, and was for some years Greek lecturer, he pursued his travels through Germany and France. After his return to England, he was called to Court as Physician to king Edward the 6th; in 1547 he was made a Fellow of the College of Physicians, the rights and privileges of which he most strenuously asserted and augmented. In 1557 and 1558 he obtained from queen Mary, with whom he was a favourite, a licence to advance Gonville-hall into a College, under the name of Gonville & Caius College, on the condition of enlarging the institution at his own expense. Of this college he accepted the mastership in 1569, and in order that he might devote his undivided attention to his favourite project, he resigned the Presidency of the College of Physicians in 1565, and completed his new buildings at Cambridge in 1570, at an expense which was very considerable in those days. The mansion of learning, thus raised by his liberality, became the retreat of his old age, and having resigned the mastership, with a disinterestedness equalled only by his munificence, he continued to reside as a Fellow Commoner until the period of his death, which happened in 1573, in the sixty-third year of his age. The laconic epitaph on his monument in Caius College Chapel, Fui Caius, is well known. For an account of his many learned works see Aikin’s Biog. Memoirs of Medicine: 2 Aikin’s General Biog. and Goodall’s Proceedings of the College.

Dr. William Harvey, of Gonville and Caius College, Cambridge, to whom we are indebted for the important discovery of the circulation of the blood, was another ornament and benefactor of the College. Like his predecessors he visited France, Germany, and Italy, in order to perfect himself in the science of Medicine; at Padua he studied under the most celebrated Professors of that University, then at the height of its reputation, and in the anatomical school of Fabricius caught the first idea of his great discovery, by attributing their true office to the valves of the veins, exhibited, but not explained, by his master. From this circumstance, the envious of his own time and some foreigners to this day, have attempted to deprive our countryman of the honor of his invention[^[69]]. In 1602 Harvey took his Doctor’s degree at Padua, shortly after which he graduated at Cambridge; in 1616 or 1619 he published his discovery in his Lectures before the College, and like many others suffered in his practice from the reputation of his learning, for men would not then believe that the labours of the closet and dissecting-room were the truest roads to professional skill.

He was however appointed Physician extraordinary to James, and subsequently Physician in ordinary to king Charles the 1st; by the latter he was highly esteemed and favoured, having been appointed during the residence of the king at Oxford to the Mastership of Merton College, vacant by the secession of the Warden, Dr. Brent, to the Parliamentary party; this appointment however, he did not hold long, being in turn displaced by his predecessor.

Some time about 1652, the College having removed from their ancient house in Knight Rider Street to one at Amen Corner, Dr. Harvey built them a library and public hall, which he granted for ever to the College, with his library and a valuable collection of instruments. See 1 Stowe’s London, 131.

In 1654 Harvey was unanimously elected President of the College of Physicians, but he excused himself on account of his age and infirmities; such however was his attachment to that body, best evinced by donationes inter vivos, that in 1656 he made over his personal estate in perpetuity for its use. He died in 1658, in the eightieth year of his age; his works were published by the College in 1766, in quarto, to which edition his life is prefixed, to which we refer, as also to Aikin’s Biog. Mem. of Med.; Halleri Bibl. Anat.; Aikin’s Gen. Biog. and the Preface to Goodall’s Proceedings.

We should exceed our limits and wander from our purpose if we entered more fully into the biography of the many celebrated men who have since graced the College[^[70]]; it is enough for us to have directed the reader’s attention by the preceding memoirs to the very rapid improvement which the science of Physic appears to have undergone immediately after its institution. The profession gained much in respectability by their incorporation, which afforded a unity of interest among its legitimate professors, at the same time that it armed them with extraordinary powers against their opponents: it also gave additional means to the learned of mutually communicating their researches and discoveries, at a time when the comparative scarcity of printed books rendered such intercourse doubly valuable. The dissolution of the monasteries, and the consequent dispersion of a host of ecclesiastical empirics, with the destruction of their prejudices and superstitions, as inconsistent with the progress of liberal science, as degrading to religious principle, completed the triumph which the foundation of the College had begun. The consequence is evident. England, which in the beginning of the sixteenth century had been behind all the then civilized world in medical knowledge, finds herself in the commencement of the nineteenth inferior to none in any branch, superior to most in some, and taking a decided lead in all the ramifications into which the science of physic and the sister arts have divided themselves.

This effect however was not produced by the College, without some severe struggles on the part of those who were, or supposed themselves to be, aggrieved by the extraordinary powers granted to the Corporation by the Charter of Henry the 8th; it does not appear whether any of these disputes arose between the granting of the Letters Patent and their confirmation by the statute 14 and 15 Hen. 8. c. 5. at least no cases remain recorded by any sufficient authorities; it is therefore probable that the College did not attempt any exercise of their new powers until they had received the sanction of Parliament; even the king, (and no one will suspect Henry the 8th of any diffidence of royal prerogative) by using the terms “quantum in nobis est,” (see Charter) seems to have been conscious that the powers of fine and imprisonment which he professed to grant, suo jure, could only become effective by the ratification of a superior authority.

The restriction of practice to persons examined and licenced by some supposed competent authority was not new. Sir Wm. Brown in his Vindication of the College from the imputation and misrepresentation of their adversary in the case of Dr. Schomberg, mentions an Act of Parliament or Ordinance of the 9th Hen. 5. (see Appendix, p. 1.) by which the licencing of physicians is confined to the Universities, and of surgeons to persons duly qualified: and the 3d Hen. 8. c. 11. (see Appendix, p. 3.) somewhat strangely confers on the Bishop of London, and in his absence on the Dean of St. Paul’s, the exclusive power or privilege of licencing physicians and surgeons in the City of London, and within seven miles in compass. It can scarcely be doubted that the provisions of this act as relating to physicians, were repealed by the Act 14 and 15 Hen. 8. c. 5. confirming the incorporation of the College, for where a power to do a specific thing is given to two distinct persons or bodies by separate Acts, it is a general rule that the last repeals the former, Quia Leges posteriores Leges priores contrarias abrogant; yet it is said that a Bishop of London has within a few years professed to grant a licence to practise physic in London and within seven miles thereof. Now, independent of the objection before mentioned, it is evident, even on the construction of the 3. Hen. 8. c. 11. from which alone the power is derivable, that such licence, if any such were granted, is bad; for the words of the statute are, “calling to him or them (the Bishop and Dean) four Doctors of Physick, and for Surgery other expert Persons in that Faculty, and for the first Examination such as they shall think convenient, and afterward alway four of them that have been so approved:” Now if the Bishop cannot find four assessors so approved, his authority must cease, for he cannot exercise it without them.

The power of the Archbishop of Canterbury[^[71]] to confer degrees of all kinds (a relic of Papal usurpation transferred to him by statute 25 Hen. 8. c. 21) has induced a belief that the Archbishop has a power of granting licences to practise physic, and several have been granted accordingly; among others Wm. Lilly, the astrologer, was licenced to practise physic, except in London and within seven miles; for his diploma, the wording of which is curious, see the Appendix. Now though the Pope may have had the power of granting degrees and licences in physic, the concluding words of the 14th and 15th Hen. 8. confirmed by 1st Mary, are sufficient to exclude the authority either of the Pope or of the Archbishop, “that no person from henceforth be suffered to exercise or practise in Physic through all England until such time as he be examined at London by the said President and three of the said Elects, and to have from the said President or Elects Letters Testimonials of their approving and examination, except he be a Graduate of Oxford or Cambridge, which hath accomplished all things for his Form without any Grace.” Then as it cannot be pretended that the Archbishop’s licentiate, though he may be a graduate of Oxford or Cambridge, is one who has accomplished all things for his form (subaudi in physic) without any grace, it follows that such degree or licence is void as respects the authority of the College of Physicians.

The provisions of the Act of the 3d Hen. 8. could produce no permanent benefit, and we therefore find within seven years, that the continuance of the abuses which it was intended to remedy, was made the foundation of granting its powers to a Corporation better calculated to exercise them; what these powers are we must now investigate somewhat minutely, for it is an essential branch of Medical Jurisprudence to regulate and define the privileges and office of those who are best able to give effect to its institutions.

It may be necessary to premise that though several subsequent Charters[^[72]] have been prepared for or offered to the acceptance of the College of Physicians (as 15 James and 15 Charles 2. for which see Sir Wm. Brown’s Vindication, Dr. Chas. Goodall’s Collection, and other works, most of which are enumerated in Gough’s Topography of London), yet the Charter and Statute of Henry the 8th is still the subsisting ground of the rights, privileges, and powers of the Corporation. By their Charter recited in, and confirmed by the 14th and 15th Hen. 8. (see Appendix, p. 7) John Chambre, Thomas Linacre, Ferdinando de Victoria,[^[73]] physicians to the king, and Nicholas Halsewel, John Francis, and Robert Yaxley, physicians, and the rest of the faculty in and of London, are constituted a perpetual college or community, with power annually to choose a President, who is to govern and superintend the College, and all men of the faculty and their practice (omnes homines ejusdem facultatis et negotia eorundem,) they are to have perpetual succession and a common seal, with power to hold lands to an amount therein limited (but which has since been enlarged by other Charters) notwithstanding the statute of Mortmain. They may sue and be sued by the name of the President and College or Community of the Faculty of Physic in London (per nomina Presidentis et collegii seu communitatis facultatis medicinæ Lond’); they may hold meetings (congregationes licitas et honestas) and make bye-laws (stat’ et ordinationes) for the good government, superintendance, and correction (pro salubri gubernatione, supervisu, et correctione) not only of the College but of all persons exercising the faculty in the city, or within seven miles thereof, (omnium hominum eandem facultatem in dicta civitate seu per septem miliaria in circuitu ejusdem civitatis exercen’). And it was granted to the College that none should exercise the faculty of physic within the city, or seven miles thereof, unless they had been admitted by the President and College by letters under their common seal, under the penalty of five pounds (centum solidorum) for every month during which such unlicenced person (non admissus) should practice; one half of the said penalty to the King, and one half to the President and College. The Charter further directs that the President and College should every year elect four (censors) who should have the superintendance, correction, and government of all persons exercising the faculty of medicine in any manner (aliquo modo frequentantium et utentium) in the city, or within seven miles thereof; with powers to punish for mal-practice (ac punitionem eorund’ pro delictis suis in non bene exequendo, faciendo, et utendo illa) and with power of superintendance and scrutiny of all medicines and their administration, provided that the punishment should be by fines, amercements, imprisonment, and other reasonable modes (per fines, amerciamenta, & imprisonamenta, corpor’ suor’ et per alias vias rationab’ et congruas.) The Charter then directs (quantum in nobis est) that the president and fellows of the College, and their successors, should be exempt from and should not be summoned to Assizes, Juries, Inquests, Attaints, et aliis recognitionibus, by the Mayor, Sheriffs, or Coroners of the City, even by the king’s writ. It was provided however by the concluding clause that nothing contained in the Charter should prejudice the City of London.

After the recital of the Charter the Statute proceeds to confirm the same “in as ample and large manner as may be taken, thought, and construed,” and directs the election of eight elects, from among whom the president is to be annually chosen.

The concluding section of this act is important, as it evidently repeals so much of the 3 H. 8. as refers to physicians, enacting, “that no person from henceforth be suffered to exercise or practise in physic through England[^[74]] until such time as he be examined at London, by the said President and Three of the said Elects; and to have from the said President or Elects Letters Testimonials of their approving and examination, except he be a Graduate of Oxford or Cambridge, which hath accomplished all Things for his Form without any Grace.”[^[75]]

The next Act which concerns the College is the 32d Hen. 8. c. 40. (see Appendix, p. 14) by which it is enacted that the President, Fellows, and Commons of the College, should be discharged from keeping Watch and Ward in the City or its Suburbs, and that they shall not be chosen to the office of Constable, or to any other office in the City or Suburbs, any Order, Custom, or Law, to the contrary notwithstanding; By the second section of this Act the power and office of the Censors, which had been left somewhat undefined by the 14 & 15 Hen. 8. is more accurately and fully determined. They are empowered to enter the houses of all Apothecaries in the City, for the purpose only of searching and viewing their wares, drugs, and stuffs, and if any be found defective or corrupted, they may cause them to be burnt, or otherwise destroyed, and a penalty of five pounds,[^[76]] to be recovered by any that will sue for it, is inflicted on apothecaries who obstinately or willingly refuse or deny the four Censors to enter into their houses; a penalty of forty shillings is also inflicted on any Censor, who being elected, shall refuse the oath directed to be taken, or neglect the execution of his office. The oath of the censor, is by this act, directed to be administered by the President of the College. The censors are also obliged to take the oaths of allegiance, supremacy, and abjuration in the Court of Exchequer at Westminster, hence the impropriety, if not illegality, of any Papist or Recusant being elected a Fellow of the College.

By the third and concluding section it is declared, that “forasmuch as the Science of Physick, doth comprehend and contain the knowledge of Surgery,” “any of the said Company or Fellowship of Physicians, being able, chosen, and admitted, by the said President and Fellowship of Physicians,” may practice the Science of Physic in all its members, both in London and elsewhere.

The Statute 34 and 35 Hen. 8. c. 8, entitled “A Bill that Persons being no common Surgeons, may minister medicines, notwithstanding the Statute,” refers to the 3d H. 8. c. 11. omitting all mention of the subsequent acts of the 14th, 15th and 32d, which were for the regulation of the Physicians of London, and as this Statute appears to have been directed against the then Surgeons of London, and for the relief of charitable persons, who had ministered to poor people, not taking any thing for their pains and cunning in certain diseases,[^[77]] principally outward, and therefore (in its limited sense) objects of surgery rather than medicine; we shall treat of this act more at large when we enter upon the Charters and Statutes relating to the College of Surgeons. By this act, however, inward medicines are permitted to be administered by persons having knowledge and experience of the nature of herbs, roots and waters, for the stone, strangury or agues.[^[78]] The latter clearly do not come within the description of what would now be called Surgical cases, and therefore so far the exclusive privileges of the physicians are affected by this Statute, yet it appears by the context and interpretation of the act, (See Butler v. Coll. of Phys.) that such administration must be of herbs, roots or waters only, to poor persons, (R. Litt. 351,) and without fee or reward.

The acts of Henry the 8th having been found insufficient in their provisions for the search of apothecaries wares, and other matters, the Statute 1st Mary, sess. 2. c. 9, (See Appx. p. 25,) was enacted, whereby the 14th and 15th Hen. 8. c. 5, is confirmed and declared to be in full force, any Act, Statute, Law, Custom, or other thing made to the contrary notwithstanding; it was further enacted, that whensoever the President of the College, or such (the Censors) as the President and College shall yearly authorise to search, examine, correct, and punish, all offenders and transgressors in the said faculty, within the said city and precinct, shall commit any such offender to prison, (the Tower of London excepted), the warden or gaoler of such prison is to receive and keep such person or persons at the charges of such person or persons, till discharged by the President and such persons as by the said College shall be authorised; under penalty of double the fine[^[79]] such offender be assessed to pay, so that the same fine do not exceed twenty pounds. By the fifth section, it is provided, that it shall be lawful for the wardens of the grocers (now apothecaries) company, or one of them, to go with the Physicians in their search and view of apothecaries wares; but if the wardens refuse or delay to come, the Physicians may proceed without them; and the penalty of resisting such search is raised to ten pounds; By the concluding section, all Justices, Mayors, Sheriffs, Bailiffs, Constables, and other ministers and officers, shall assist the execution of the said acts, upon pain of running in contempt of her majesty.[^[80]]

By these acts of Parliament, the College of Physicians is regulated to the present day; we have before stated that several Charters, some for limited and some for general purposes, have been granted to the College. In 1520, Queen Elizabeth granted by letters patent the bodies of four malefactors who had been executed for felony, to be taken by the College every year for dissection.[^[81]] Charles the second granted six more “provided they be afterwards buried.” Charter 15 Char. 2. Goodall’s Coll. p. 62. This privilege we believe has not lately been claimed, though the present scarcity of bodies for the purposes of instruction would fully justify its revival: nor is there any doubt but that the judges in the exercise of their sound discretion might select some of the more atrocious criminals as proper objects for this additional severity.

In 1562 King James, by letters patent, granted to the College, for the sum of six pounds a year, that moiety of the fines to be inflicted by them to which the crown was entitled according to the several acts which we have before cited. Charter 15 Ja. Goodall’s Coll. p. 37.

We do not think it necessary to trouble the reader with the Statutes and Bye Law[^[82]] which the College have made for their own internal Government, pursuant to the power which all Corporations have of making proper regulations to bind their own members, and according to the Statute 14 and 15 Hen. 8. by which they are specially authorised so to do; these Statutes have been printed, though not under the sanction of the College.

OF THE POWERS OF THE COLLEGE.

One of the first and most material of the powers and privileges granted to the College by the Acts and Charter to which we have referred (and which the reader will find recited in the Appendix,) is that of recovering from all persons who practise physic in London and within seven miles circuit, without their Licence, or Admission, the sum of five pounds for every month during which they have so practised. This power has been most minutely investigated and determined in the case of Dr. Bonham.[^[83]] Coke’s Reports, 123, (see Appendix, p. 62,) which was an action of false imprisonment brought by Thomas Bonham, a Doctor of Physic, of the University of Cambridge,[^[84]] against the then President, Censors and some servants of the College; the Defendants justified under the Statute, (14 and 15 H. 8.) setting forth; that the plaintiff practised physic in London, and within seven miles circuit, not being admitted, &c. that being examined he was found insufficient, and forbid to practise,[^[85]] but notwithstanding such prohibition, he afterwards practised for a month or more, whereupon they amerced him five pounds, to be paid to them at their next assembly, &c.[^[86]] and likewise injoined him to forbear practising any more until he be found sufficient, &c. upon pain of imprisonment; that he continuing still to practise was further fined and ordered to be committed; that being questioned if he would submit to the College, he replied, that he had practised and would practise without leave of the College, and denied that by the Statute they had any authority over him, as having taken his degree of Doctor of Physic within the University regularly, and so thought himself protected by that Clause in the Act; whereupon the Censors ordered him to prison, which was executed accordingly, and for this imprisonment this action was brought. In this case, Mr. Justice Daniel, thought a Doctor of Physic of either University was not within the body of the act, but suppose him to be within the body, yet he was excepted by the last clause. But Mr. Justice Warburton held the contrary upon both points.[^[87]] Chief Justice Coke, (for whose judgment, see Appendix, 26,) said nothing as to either of those points, because all three (who were all the judges present,) agreed, that this action was clearly maintainable for two other points; and they resolved,

1. That the Censors had no power to commit the Plaintiff for any of the causes mentioned in the Bar, because the said clause which gives power to the said Censors to fine and imprison, does not extend to the said clause, viz. That none in the said City, &c. exercise the said faculty, &c. which prohibits every one from practising Physic in London, &c. without licence of the President and College; but extends only to punish those who practise in London, Pro delictis suis in non bene exequendo faciendo et utendo Facultate Medicinæ, so that their power (of fine and imprisonment) is limited to the ill and not to the good use and practice.[^[88]]

2. Admitting that the Censors had power, yet they have not pursued it. 1. Because the Censors alone have power to fine and imprison, whereas here the President and Censors imposed this fine of five pounds. 2. The plaintiff was summoned to appear before the President and Censors, and for not appearing was fined five pounds, whereas the President had no authority.

3. The fines imposed by them by virtue of this act belong to the king and not to them,[^[89]] and yet the fine is limited to be paid to themselves, &c. and for nonpayment they have imprisoned him.

4. They ought to have committed the Plaintiff immediately, though no time be limited in this act.

5. Their proceedings ought not to be by parol, inasmuch as their authority is by patent and act of parliament, and especially it being to fine and imprison.

6. The Act giving a power to imprison until he be delivered by the President and Censors or their successors, shall be taken strictly, or otherwise the liberty of the subject is at their pleasure. And this is well proved by a judgment in Parliament in the same case; for when this act of 14. Hen. 8. had given the Censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, because they had authority to imprison without any Court; and thereupon the Statute 1 Mary, cap. 9, was made to compel the gaoler to receive them under a penalty, and yet none can commit to prison unless the gaoler receives him; but the 14 Hen. 8, was taken so literally that no necessary incident was implied.

And it being objected, the 1 Mar. Cap. 9. had enlarged the power of the Censors, as appeared by the words of the act; it was clearly resolved, that it does not enlarge their power to fine and imprison for any matter not within the 14th Hen. 8. the words of the act of Queen Mary, being “according to the tenor and meaning of the said act.” And further, “shall commit any offender, &c. for his, &c. offence or disobedience, contrary to any article or clause contained in the said grant or act to any ward, gaol, &c.” And in this case, it does not appear by the record, that the plaintiff has done any thing contrary to any article or clause within the grant or act of 14th Hen. 8. and for the two last points judgment was given for the plaintiff, Nullo contradicente as to them. Michss. Term. 6 James.

The Lord Chief Justice, Sir Edward Coke, in the conclusion of his argument, observes these seven rules for the better direction of the President and Commonalty of the said College for the future.

1. That none can be punished for practising Physic within London, but by forfeiture of five pounds a month, which is to be recovered by law.

2. If any practise Physic there for less time than a month that he shall forfeit nothing.

3. If any person, prohibited by the Statute, offend in non bene exequendo, &c. they may punish him according to the Statute within the month.

4. Those whom they commit to prison by the Statute ought to be committed immediately.

5. The fines which they assess according to the Statute belong to the king.

6. They cannot impose fine or imprisonment without making a record thereof.

7. The cause for which they impose a fine and imprisonment ought to be certain, for this is traversable.[^[90]] For though they have Letters Patents and an Act of Parliament, yet inasmuch as the party grieved has no other remedy, neither by writ of error or otherwise, and they are not made judges, nor a court given to them, but have authority only to do it, the cause of their commitment is traversable in action of false imprisonment brought against them.

Chief Justice Holt, in delivering the opinion of the Court, said that notwithstanding the opinion in Dr. Bonham’s case, the charge of male administration of physic is not traversable, and that my Lord Coke’s opinion in that case was but Obiter, and no judicial opinion: besides that he seemed to have been under some transport, because Dr. Bonham was a graduate of Cambridge, his own mother university. And he himself after in the same case says, that if the Censors do convict a man for such offence, they ought to make a record of it; and that, they cannot do unless they are Judges of Record: and then we say their proceedings are untraversable, and they unpunishable for what they do as judges. 12 Mod. 388. Pasc. 12 Will. 3. in the case of Doctor Grenville against the College of Physicians.

That Graduates of the two Universities have no privilege to practise in London, and within seven miles circuit,[^[91]] has been repeatedly decided; see Doctor Levet’s case, Lord Raymond’s Rep. 472; The Coll. of Physicians against West 10, Modd 353 and Appx. That by Graduates is meant Graduates in Physic only. See College Questions. Appx.

The case of Doctor Bonham,[^[92]] which we have been the more particular in citing as it contains much learning on the subject of our enquiries, and is reported by the first authority of his time, having shown that the College cannot fine or imprison for unlicenced practice, but must proceed by action in the ordinary Courts for the statutable penalty of five pounds a month, we must next show by what name the College ought to sue, for upon this point much difference of opinion and practice appears to have prevailed. In the case of The President and College of Physicians v. Talbois, exceptions were taken that the action should be by the President alone. But per curiam, “being a Corporation, it is natural for them to sue by their name of creation.” 1 Lord Raymond, p. 153. Hil. Term 8 & 9, Will. 3. See also The President and College of Physicians v. Salmon, B. R. Trin. Term 13 Will. 3. 1. Ld. Raym, p. 680; 5 Mod. 327; and this appears to be the best rule. In the previous case of The President of the College v. Tenant. Hill. Term. 11 James, Bulstrode’s Rep. Part. 2, p. 185, the action was brought by the President alone, on which the Judges were divided in opinion, Haughton Justice saying, “he may here well bring the action alone in his own name,” but the Declaration being bad in other respects, the rule of the Court was, Quod querens nil capiat per Billam. The Entry in Rastal, p. 426, is in favour of the doctrine that the President may sue alone, as is also the case of Doctor Laughton v. Gardner, 4 Croke, p. 121. Trin. Term. 4 James, and more especially the consequent case of Doctor Atkins v. Gardner, 2 Croke, 169 Pasc 5 James, where Dr. Laughton having brought an action of debt on the Statute, as President of the College obtained judgment Nisi, but dying before execution, his successor Doctor Atkins, brought a scire facias against the defendant to have execution, it was therefore demurred because the scire facias ought to be brought by the executor or administrator of him who recovered and not by his successor; but the Court held that the successor might well maintain the action, for the suit is given to the College by a private Statute, and the suit is to be brought by the President for the time being, and he having recovered in right of the Corporation, the law shall transfer that duty to the successor of him who recovered and not to his executors. 1 Rolle Abr. 515.

The penalties are to be recovered by action of debt in the President and College v. Salmon; I Ld. Raym, p. 680.[^[93]] an exception was taken that the proceeding should be by information at the suit of the king, but the Court decided that where a certain penalty is given by a statute the person to whom, &c. shall have debt by construction of law. Another exception was taken in the same case, that the action ought not to be brought tam quam, no action being given to the king. Sed non allocatur. For per curiam, the precedents are the one way and the other. See Butler v the President Cro. Car. 256. and cases there cited.[^[94]]

The words of the Statute of Henry being strongly prohibitory, none may practise physic under any authority, in London and within seven miles without licence of the College; in the College of Physicians v. Bush. 4 Mod. p. 47. the defendant pleaded letters patents of king Charles the second, by which free liberty is given to French protestants to exercise the faculty of Physic in London and Westminster, &c. and that he was a French protestant. Upon demurrer the plea was held ill. For a Charter or Letters Patent cannot vary an act of Parliament.

The next material point to be considered is, what is a practising of Physic within the meaning of the statutes; this would at first sight appear to be a very simple question, but the act of the 34th Hen. 8. which gives liberty to persons not being Surgeons, to administer outward medicines in certain cases, and drinks for the Stone, Strangury, and Ague, created some difficulties; it was pleaded in the case of Doctor Butler against the President of the College, (Cro. Car. 256,) to which plea the President replied by showing the Statute of the 1 Mary, c. 9. which confirms the Charter and Statute of the 14th Hen. 8. and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary; on this several questions arose; those which relate to the special pleading of the case we omit, but the interpretation of the Statutes is material; it was doubted first whether the 34th Hen. 8. did repeal any part of the 14th as to Physicians, or whether as the preamble recites, it was directed against Surgeons, and next whether if it were in any degree repealed, the Statute 1st Mary did not revive the 14th and repeal the 34th. “Richardson, chief Justice, conceived it was repealed by primo Mariæ, by the general words, any act or Statute to the contrary, of the act of decimo quarto Henrici Octavi, notwithstanding. But I (“loquitur Croke,”) conceived that the act of tricessimo quarto Henrici Octavi, not mentioning the Statute of decimo quarto Henrici Octavi, was for Physicians; but the part of the act of tricessimo quarto Henrici octavi, was concerning Chirurgions and their applying outward medicines to outward sores and diseases, and drinks only for the Stone, Strangury and Ague; that Statute was never intended to be taken away by primo Mariæ. But to this point, Jones and Whitlock, would not deliver their opinions; but admitting the Statute 34 Hen. 8. be in force, yet they all resolved, the defendant’s[^[95]] plea was naught, and not warranted by the Statute; for he pleads, that he applied and ministered medicines, plaisters, drinks, Ulceribus Morbis et Maladiis, Calculo Strangurio, Febribus et aliis in Statuto mentionatis; so he leaves out the principal word in the Statute (Externis), and doth not refer and shew that he ministered potions for the Stone, Strangulation or Ague, as the Statute appoints to these three diseases only and to no other; and by his plea his potions may be ministered to any other sickness; wherefore they all held his plea was naught for this cause, and that judgment was well given against him; whereupon judgment was affirmed.” This case is reported more fully in Brownlow, p. 126. See also Goodall, p. 221 to p. 259.

But though this statute 34 Hen. 8th gave a very considerable latitude to unlicensed practice, the decision of the House of Lords in the case of Rose has rendered it yet more difficult to determine what is a practising of Physic within the statute 14 Hen. 8th.

This case arose on an action in the King’s Bench for practising Physic within seven miles of London without licence; the case upon a special verdict was, that the Defendant being an Apothecary by trade was sent to by John Seale[^[96]], then sick of a certain distemper, and he having seen him, and being informed of the said distemper, did without prescription or advice of a Doctor and without any fee for advice, compound and send the said John Seale several parcels of physic as proper for his said distemper, only taking the price of his drugs; and if this were a practising of physic, such as is prohibited by the Statute was the question: and after several arguments the Court at last unanimously agreed, That practising of Physic within this statute consists, 1st, In judging of the disease and its nature, constitution of the patient, and many other circumstances. 2ndly, In judging of the fittest and properest remedy for the disease. And 3dly, In directing and ordering the application of the remedy to the diseased. And that the proper business of an Apothecary is to make and compound, or prepare the prescriptions of the doctor pursuant to his directions. It was also agreed, That the Defendant’s taking upon himself to send physic to a patient as proper for his distemper without taking ought for his pains, is plainly a taking upon himself to judge of the disease and fitness of the remedy, as also the executive or directing part. Et per tot. Cur. The Plaintiff had judgment. 6 Mod. 44. 16 Vin. Abr. 341. Against this judgment the Defendant Rose brought a Writ of Error to the House of Lords, “That judgment having been given in the Queen’s Bench against the now Plaintiff on a special verdict, he humbly hopes the same shall be reversed for these reasons:

“That the consequence of this judgment will entirely ruin the Plaintiff in his trade, and indeed all other Apothecaries, since they can’t (if this judgment be affirmed) use their professions without the prescript or license of a Physician.

“That the constant use and practice[^[97]] which has always been with the Apothecary, shall as we humbly hope be judged the best expounder of this Charter: and that selling a few lozenges, or a small electuary, to any asking a remedy for a cold, or in other ordinary or common cases, or where the medicine has known and certain effects, may not be deemed unlawful, or practising as a Physician, when no fee is taken or demanded for the same.

“That the Physicians by straining an Act made so long ago, may not be able to monopolize all manner of Physic solely to themselves; and the rather, for that such a construction will not only be the undoing of the Apothecaries, but also,

“1. A tax on the Nobility and Gentry, who in the slightest cases, even for their servants, can’t then have any kind of medicines, without consulting and giving a fee to one of the College.

“2. An oppression to the poorer families not able to go to the charge of a fee; the suppressing of the Apothecaries being to deprive such poor people and families of all manner of assistance in their necessities.

“3. A certain prejudice to all sick persons on sudden accidents, and new symptoms arising, especially in acute diseases, and in the night, wherein if the Apothecary is called, and shall dare to apply the least remedy, he runs the hazard of being ruined, or the Patient the danger of being lost.”

“For all which, and several other errors in the Record, it is humbly prayed,” &c. &c.

It must be observed that these reasons turn on the policy and not on the law of the question, and would have been better addressed to the House of Peers in their legislative, than in their judicial capacity; the hardship of depriving the Apothecaries of all practice, and the inexpediency of too strictly enforcing the statute of Henry 8th, might have justified an application to the Legislature for an alteration of the law, but they could not warrant even the highest tribunal in the land in departing from the law established by Act of Parliament, and gravely decided by the judges; we must therefore conclude that some better arguments were adduced on the hearing than have been handed down to us by the reporters; for if seeing the patient, judging of the complaint, and administering the proper remedies for it, be not a practising of Physic within the meaning of the statute, we must confess ourselves utterly at a loss to define the practice which is. It is a futile and unworthy subterfuge to allege that no fee is taken for advice, and that the sum charged is only the price of the drugs, for the contrary is evident; the poacher might as well pretend (as has been done) that he sells the basket at his own price, and throws the hare into the bargain, as a compliment to the purchaser,—or the vender of nostrums might attempt to avoid the stamp duty by selling the bottles and giving the physic. We are very far indeed from wishing to put unfair restraints on trade, or to deprive any class of men of the free exercise of their professional abilities, but as the Legislature has deemed it necessary to guard the corporeal health of the people, by enacting that only persons who on examination by a competent authority have been found of sufficient ability shall practise, we have thought it our duty to point out the law as it stands, and if in doing so we are occasionally obliged to hint at defects, we do it in the hope that by drawing abler attention to a neglected subject, we may incidentally give rise to some improvements, beneficial not only to the public at large, but ultimately profitable to those who, at the first glance might think themselves injuriously affected by them.

We have noticed that the reasons alleged by Writ of Error against the judgment of the Court of King’s Bench in the case of The College of Physicians against Rose, do not appear to us to have been legally satisfactory, the judgment of the King’s Bench[^[98]] however was reversed, (see 1 Brown’s Parl. Ca. 78. and Appendix, 126), and consequently the greater portion of the practice of Physic has been transferred to the Apothecaries. This was for some time a very serious evil; they who had been educated as mere compounders, suddenly became prescribers of medicine; it is easy to conceive how large a portion of ignorance and empiricism was thus let loose upon the public: the mischief has indeed gradually decreased, as many men of liberal education have entered the field thus enlarged for them, and the natural effect of competition has induced improvement; still something is wanting. In large towns and among the higher and middle classes of society, talent and mediocrity soon find their proper levels; but at a distance in the country, ignorance and imposture may erect their stages at least with impunity, and more than probably with success; we have ourselves heard most lamentable accounts of the mal-practice to which the poor and ignorant have been subjected by low country practitioners and their assistants; for the interpretation of the law which let in the Apothecary to unrestrained practice, could not exclude the apprentice, and we therefore find the shop-boy in cases of emergency visiting and prescribing for his master’s poorer patients.

For these, among other reasons, the Apothecaries’ Company have obtained an Act of Parliament to alter and enlarge the powers of their Charter. “And whereas much mischief and inconvenience has arisen from great numbers of persons in many parts of England and Wales exercising the functions of an Apothecary who are wholly ignorant, and utterly incompetent to the exercise of such functions, whereby the health and lives of the community are greatly endangered; and it is become necessary that provision should be made for remedying such evils; Be it therefore, &c.” This passage, from a Statute solicited by the Apothecaries themselves, will exonerate us from any imputation of illiberal remark; we sincerely hope that the Act will produce the intended benefit, though when we have occasion to treat of it more at large under the head of the Apothecaries Company, we may have occasion to point out some particulars in which we think it might be amended.

We have thus cited the leading cases on unlicensed practice, and the authorities which we have quoted will enable the medical reader desirous of better information, to pursue the enquiry to the fountain head. “Melius est petere fontes quam sectare rivulos.”

The next branch of the jurisdiction of the College is yet more important, as it extends to the control and punishment of Mala Praxis[^[99]], whether by persons licensed or unlicensed. On this head the leading case is that of Groenvelt and Burwell[^[100]], (1 Comyns 76: 1 Salk 396; see Appendix). A complaint having been made to the College of Physicians, informing them that Dr. Groenvelt had administered Cantharides in powder, he was summoned before the Censors and by them committed for mala Praxis; for this imprisonment he brought his action in the King’s Bench, Trin. 12 Will. 3. from which it appears that “The Censors of the College of Physicians in London are impowered to inspect, govern, and censure all Practisers of Physic in Civitate London and seven miles round, so as to punish by fine, amerciament, and imprisonment. Per Holt Ch. J. the Censors have a judicial Power; for a power to examine, convict, and punish, is judicial, and they are judges of record because they can fine and imprison, and being judges of the matter, what they have adjudged is not traversable.”

In mala Praxis it matters not whether the party offending be a member of the College, a Licenciate, or an unlicensed Practitioner, for the Statute gives jurisdiction over all Physicians whatsoever, “habeant supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dictæ civitatis medicorum utentium facultate Medicinæ in eadem civitate ac aliorum medicorum forensicorum quorumcunque facultatem illam medicinæ aliquo modo frequentantium et utentium infra eandem civitatem et suburbia ejusdem sive infra septem miliaria in circuitu ejusdem civitatis,” and Ch. J. Holt says, “Though a person be not one of the College, yet if he practise Physic within their jurisdiction, he ought to subject himself to the law as well as any other.” 12 Mod 393. And for those who are not Physicians but have assumed the character, they must take it cum onere, and will be estopped from pleading the illegality of their practice when punished for the irregularity of their prescriptions: it is to be wished however that the words of the Charter were more explicit in this particular.

Nor are the Censors liable to any action for error in judgment, for “though the Pills and Medicines were really Salubres Pilulæ et bona Medicamenta, yet no action lies against the Censors; because it is a wrong judgment in a matter within the limits of their jurisdiction, and a judge is not answerable, either to the king or the party, for the mistakes or errors of his judgment, in a matter of which he has jurisdiction: it would expose the justice of the nation, and no man would execute the office upon peril of being arraigned by action or indictment for every judgment he pronounces.” (1 Salk, 397).

“Holt Ch. J. said, it seemed to him that the Censors may tender an oath as a necessary consequence of their judicial power; but said he would give no positive opinion.” Dr. Grenville v Coll. of Phys. 12 Mod. 392. 16 Vin. Ab. 345. the general rule is, that where a statute confers a power, the law supplies all necessary incidents required for its execution.

By the 10th Geo. 1. cap. 20. s. 7. Where any person is condemned by the Censors for not well executing, practising, or using the faculty of Physic, he may within fourteen days after notice appeal to the College, and the judgment given on such appeal shall be final. Sect. 3. of the same act gives a similar right of appeal to Apothecaries. But this Act, as we have before observed, has expired; should its enactments ever be revived, this right of appeal should not be omitted, for it is expedient that some control should be exercised over all summary jurisdictions. To the policy of the 3d and 6th sections we cannot so readily give our assent; the one exempts drugs in merchants warehouses from search, and the other enacts that Patentees for the sole making any medicine shall not be prejudiced thereby. By the first of these the Censors are excluded from some known manufactories of factitious drugs, and an important security is taken away from our export trade, for it is evident that foreigners would more readily buy the drugs which have passed through our hands, if they were assured that their quality had been subjected to strict and competent scrutiny. To Patent Medicines we may be allowed to avow our most decided hostility, and as it is notorious that the greater part of them are not made up according to their specifications, we may without charge of illiberal prejudice claim for the public some security that the preparations which they buy as “mild vegetable extracts,” may not be clandestinely poisoned with Antimony, Mercury, and Arsenic. It may be said that the public have a remedy by the forfeiture of the Patent consequent on the falsehood of the specification, but this can only be effected by an expensive process to which the mere purchaser of a phial of trash may not choose to subject himself, even if he have skill enough to detect the fraud practised upon him.[^[101]]

We have thus shown by repeated precedents that none can legally practise Physic in London, or within seven miles circuit of the city, who are not either Fellows or Licenciates of the College, nor can any, except Graduates in Physic of Oxford and Cambridge, lawfully practise in the country, without a similar license; yet, as the Act of Parliament has annexed no specific penalty to the transgression, the only remedy in such case is by indictment for a misdemeanor: for where there is no punishment attached by statute to the violation of a prohibitory clause in an Act of Parliament, this indictment lies. (See 4 Term Rep. 202.)

Unfortunately the history of the College litigations does not cease with their proceedings against unlicensed practitioners; they have also had to contend, on the defensive, with their own Licenciates, who have claimed a full participation in the rights and privileges of the Fellows:[^[102]] we hope most earnestly that the question is now at rest, and that the cases we are about to cite may serve as beacons to avoid past errors, not as precedents for future proceedings.

“It would require a volume,” says Sir James Burrows, vol. 4. p. 2186, “to give a full and particular detail of this long contest between the Fellows and the Licenciates; which was litigated with great spirit and eagerness between several very learned and respectable gentlemen of the faculty on both sides. It must not therefore be attempted within the compass of a collection, already perhaps too faulty in this respect[^[103]], as being in many instances more minute and circumstantial than may appear absolutely necessary, or at all agreeable to some readers.”

“The substance of it ought not however to be omitted, which was as follows.”

“A rule had been obtained upon the application of Doctor Letch for the College of Physicians to shew cause why a mandamus should not issue, directed to them, commanding them to admit John Letch, Doctor of Physic, to be a member of the College.”

“This Rule was made upon the whole body of the College or Community of the Faculty of Physic of the city of London; and also on the President and Censors of the said College.”

“Mr. Yorke against the Rule, Sir Fletcher Norton for it.”

“The short state of the material facts, with respect to this mandamus, was, that Doctor Letch, who practised as a Man-Midwife,[^[104]] was summoned by the College to be examined. He thereupon came in, and was examined thrice at the comitia minora: And after the third of these examinations, he was there balloted for ‘Whether he should be approved of by them or not.’ A dispute arose upon this ballot. The majority of the number of balls appeared to be for approving him: but one of the Censors declared ‘that he had by mistake put in his ball for approbation; which he meant and intended to be against approving him.’ It was proposed to ballot over again, but the President declared this to be an approbation by a majority of votes on the ballot. On Doctor Letch being proposed to the comitia majora, nineteen to three of the members present were against putting the College Seal to his letters testimonial. And he was informed that he was not elected.”

“His Counsel insisted that having been returned sufficient by the comitia minora, he had already acquired an inchoate right to admission, which the Court would enforce the completion of, by mandamus.”[^[105]] For the argument and authorities vide Rex v. Askew ubi supra and Appendix.

“Lord Mansfield in his judgment laid down the following among other rules.”

“The Court (i. e. of King’s Bench) has jurisdiction over Corporate Bodies to see that they act agreeably to the end of their institution.”

“Where a party who has a right has no other specific legal remedy, the Court will assist him by issuing this prerogative writ (i. e. mandamus) in order to his obtaining such right.”

“But it is not a writ that is to issue of course, or to be granted merely for asking.”

“The College are obliged in conformity to the trust and confidence placed in them by the Crown and the public, to admit all that are fit; and to reject all that are unfit.”

“The judgment and discretion in determining on skill, learning, and sufficiency to practise physic, is trusted to the College, and the Court will not interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced; not arbitrary, capricious or biassed; much less warped by resentment or personal dislike.”

“It is possible that other causes of rejection than insufficiency of skill may occur, as badness of morals, for instance; of these the Court will judge.”

“If they should refuse to examine the candidate at all, the Court will oblige them to do it.”

“The power (of admission) remains with the body; and the examination by the President and four Censors is only preparatory, and for the ease of the body at large.”

“Every Fellow may examine and argue with the candidate in the comitia minora though he has no vote there.”

“The delegation to the comitia minora to examine is good.”

“Mr. Justice Aston followed Mr. Justice Yates in saying that Doctor Letch should rather have applied for a mandamus requiring the College to grant him a license to practise within London and seven miles of it, than for a mandamus to admit him as a member.”

“The comitia majora acted with great moderation in admitting him to another examination.

“Mr. Justice Hewit declined giving any opinion (on a point started in argument) whether London Licenciates are members of the College or not; though he hinted, that the more he thought of it, the more he doubted it.”

“We should go a great way if we should say ‘that a Licenciate to practise within London and seven miles round is a member of the College’.”

The Rule was accordingly discharged by the unanimous opinion of the Court.

But the matter did not rest here; the notion that the Licenciates were entitled to be considered as Members of the College, under the term Commonalty or otherwise, gained ground; and accordingly two terms after the original argument and judgment, Sir Fletcher Norton (afterwards Lord Eardly) moved for a Rule upon Dr. Askew and others (the four then Censors), for them to shew cause why an information in nature of a quo warranto should not be granted against them, to shew by what authority they acted as Censors of the College of Physicians.

The objection was, that whereas the election ought to be by the whole body, these gentlemen had been elected only by a select body; namely by the Fellows, exclusive of the Licenciates, who demanded admittance; which was refused them by the Fellows, on pretence of their having no business there, upon that occasion.

After an argument on three several days, during which Sir Fletcher Norton, Mr. Morton, Mr. Wedderburn (afterwards Lord Roslyn,)[^[106]] Serjeant Glynn, Mr. Walker, and Mr. Mansfield (afterwards Chief Justice of the Common Pleas), were heard for the Licenciates, and Mr. Yorke (afterwards Lord Chancellor), Mr. Dunning (afterwards Lord Ashburnham), Serjeant Davy, Mr. Ashurst (afterwards a Judge), and Mr. Wallace for the College, Lord Mansfield delivered his opinion.[^[107]] “The question now before us is singly this, Whether the persons applying for the information are Fellows and entitled to vote in the election of Censors. If they are, the election of these Censors, being made in exclusion of their votes, is not good. If they are not Fellows, and have no right to vote in the election of Censors, then this election stands unimpeached.”

The question is, “Whether these Licenciates are Socii, or Collegæ, or Fellows,” which are synonimous terms.

The facts are not disputed: and there is no doubt about the law. It has been admitted on both sides that there has been a great number of by-laws and long-usages; and the permission of these Licenciates to practise is not disputed. But I doubt whether this permission to practise, and these letters testimonial, can amount to an admission into the Fellowship of the Corporation or College. Nothing can make a man a Fellow of the College without the Act of the College. The power of examining, and admitting after examination, was not an arbitrary power, but a power coupled with a trust. They are bound to admit every person whom upon examination they think to be fit to be admitted, within the description of the Charter and the Act of Parliament which confirms it. The person who comes within that description has a right to be admitted into the Fellowship; he has a claim to several exemptions, privileges, and advantages, attendant upon admission into the Fellowship; and not only the candidate himself, if found fit, has a personal right, but the public has also a right to his service; and that not only as a physician, but as a censor, as an elect, as an officer in the offices to which he will upon admission become eligible.[^[108]] They have power not only by their charter, but by the law of the land, to make fit and reasonable by-laws, subject to certain qualifications. It appears from the Charter and the Act of Parliament, that the Charter had an idea of persons who might practise physic in London and yet not be Fellows of the College. The President was to overlook not only the College, but also “omnes homines ejusdem facultatis.” So when the College or Corporation were to make by-laws, these by-laws were to relate not only to the Fellows, but to all others practising physic within London or seven miles of it.

Then let us see how the usage was.

In 1555 they must have had a probationary license before admission into the College. Afterwards it was to be a probation for four years before admission. The College might grant such probationary licenses, with some reason, and agreeably to their Institution. This shews that some licenses were granted to persons not Fellows of the College. The 3 H. 8 takes away all former privileges.[^[109]] In 1561, a partial license was granted to an occulist. A person may be fit to practise in one branch who is not fit to practise in another. Licenses have also been granted to women.[^[110]] Partial licenses have been given for above 200 years.[^[111]] In 1581 notice is taken of three classes: Fellows, Candidates, and Licenciates. The licenses probably took their rise from that illegal by-law (now at an end) which restrained the number of Fellows to twenty.

This being premised, let us inquire “Who these gentlemen are that are now applying to the Court.”

They are persons who set up a title directly contrary to the sense in which their license is given to them and received by them. They cannot avail themselves of their instruments in this way: it would be a cheat upon the College. And they have acquiesced many years under this license given them by the College, as merely a license to practise.

But even supposing them to have a right to be Fellows, yet, as it is clear that the license does not make them ipso facto Fellows, they could not vote in the election of Censors before their admission to the Fellowship; and therefore the exclusion of their votes cannot impeach this election.

I am of opinion “that this rule ought to be discharged.”

His Lordship (but this was obiter) then made some comment on the statutes and by-laws of the College; and recommended their revisal under the best advice, saying, “I see a source of great dispute and litigation in them as they now stand.”[^[112]]

Mr. Justice Yates concurred with the Chief, as did Mr. Justice Aston on some points; but upon the construction of the Charter and Act of Parliament, he thought that in grants of this kind, the construction ought to be made in a liberal manner; and this grant includes “Omnes homines ejusdem facultatis de et in civitate prædictâ,” and the application to Parliament for the Act of 14 and 15 H. 8. to confirm the Charter is made by the six persons particularly named in it, “and all other men of the same faculty within the City of London and seven miles about.” It seemed to him that the idea was “that all persons duly qualified, who took testimonials under the College seal, were to be of the community.” He should, however, give no opinion, he said, how it might turn out upon a mandamus.

Mr. Justice Willes, confining himself to the subject in question, concluded, “they cannot before their admission maintain this rule.”

Lord Mansfield and Mr. Justice Yates said they gave no opinion how it might be upon a mandamus.

The Court were unanimous in discharging the rule.

The hint thrown out by three of the Judges was followed up by the Licenciates. On Thursday, 17th Nov. 1768, Sir F. Norton and Mr. Norton moved the Court on behalf of Doctor Edward Archer, and Mr. Walker on behalf of Dr. Fothergill, for writs of mandamus, to oblige the College to admit these two Licenciates, with an intention to try the question “whether the Licenciates had a right to be admitted Fellows;” and that litigation lasted till June 1771. But they only came round to the same point which had been already determined, as above; for these two gentlemen had accepted licenses under the by-law of 1737, and the Court were of opinion “that they ought not afterwards to desert it, and treat it as null and void; and set up a right of admission under the Charter, upon the foundation of this very license which they had accepted under the by-law, upon the supposition that the by-law was a bad one.” So that the return was allowed, upon that objection to their claim. And the intended question remained unsettled. See 5 Burr. 2740, where also will be found the form of the mandamus and the return.[^[113]]

The last case on this subject is that of Doctor Stanger. (7 Term Rep. 282, which as the most recent decision, and for the luminous judgment of Lord Kenyon, we have inserted in the appendix.) This, like the cases in Burrows, was argued by the most celebrated lawyers of the day, Mr. Serjeant Adair, Mr. Law, (afterward Lord Ellenborough) Mr. Chambre, (afterward a Judge) Mr. Christian, (now Chief Justice of Ely) having argued in support of the rule; and Mr. Erskine, (afterward Chancellor) Mr. Gibbs, (Chief Justice C. P.) Mr. Dampier, (a Judge) and Mr. Warren, (now Chief Justice of Chester) against it. The rule for a mandamus was discharged;[^[114]] it may therefore now be considered as a resolved point of law, that a Doctor of Physic, who has been licensed by the College of Physicians to practise physic in London and within seven miles, cannot claim as a matter of right to be examined in order to his being admitted a Fellow of the College. The College, who have power by their Charter (confirmed by Act of Parliament) to make by-laws, have made by-laws respecting the qualifications of persons to be admitted; by them it is ordained that no person shall be admitted into the class of candidates before admission into the College, unless he has taken a degree of M. D. at Oxford, Cambridge, or Dublin, except in two cases: in one of those cases the President may propose in every other year a Doctor of Physic of a certain standing, and if he be approved by the College, he may be admitted a Fellow; in the other, any Fellow may propose a Doctor of Physic of a certain age and standing, and if approved at certain meetings he may be admitted a Fellow. And it was ruled that these were reasonable by-laws.

The following may now be considered as the legal classes of Physicians. 1st. The actual members of the College of Physicians, divided into their several denominations of President, Elects, and Fellows.

2d. Those who, being graduates of the universities of Oxford and Cambridge, are licensed to practise by the College in London and within seven miles during their respective periods of probation, previous to becoming Fellows; these are Candidates who, being Doctors of Physic, have undergone their examination for the Fellowship, and at the end of one year are capable of becoming members or Fellows of the College; and inceptor Candidates,[^[115]] who being Bachelors of Physic aspire to the Fellowship.

3d. The medical graduates of our two Universities.

4th. The Licenciates who are admitted by the College to practise in London and within seven miles, and the extra Licenciates who are admitted to practise in the country but not within the privileged district of the College.

These are the laws respecting Physicians as a body Corporate; we have not added their Statutes as they are separately printed, although they have never been published by the authority of the College. It now remains for us to notice their rights as individuals, the exemptions to which they are entitled, and the actions to which they are liable.[^[116]]

2. OF THE COLLEGE OF SURGEONS.

The present College of Surgeons owes its existence to the Act of the 18th Geo. 2. c. 15. (see Appendix, p. 30), by which the Surgeons of London are separated from the Barbers, with whom they had been made one Company and Body Corporate, by the 32nd Hen. 8. c. 40. (see Appendix, p. 14),[^[117]] previous to which period (A. D. 1540) the Surgeons had no incorporation; they had indeed petitioned for and obtained an Act of Parliament under the name of the Wardens and Fellowship of the craft and mystery of Surgeons enfranchised in London, stating their number not to exceed twelve persons, to which number the relief from “quests and other things” granted by the Act (5th Hen. 8. c. 6. see Appendix, p. 5), is limited; but it is evident by the preamble to the 32nd Hen. 8. that they, though called a Company, “be not incorporate nor have any manner of corporation” previous to that period. The examination of Surgeons, as that of Physicians also, had been confided to the bishops (3 Hen. 8. c. 11.), nor does it appear that the subsequent Act of Henry remedied this defect. By the 18th Geo. 2. however they have been made a separate and distinct Body Corporate and Commonalty, under the name of Masters, Governors, and Commonalty of the art and science of Surgeons of London, by which name they may sue and be sued; (Appendix, p. 39). All liberties, privileges, franchises, powers, and authorities, which they might have enjoyed under the united Company and their Act of Parliament, or under the Letters Patent of Charles the 1st, or the other Royal Grants, Charters, and Patents, therein mentioned and referred to, so far as they relate to the science of Surgery, are confirmed to them (§ 8. Appendix, p. 43). Now the Charter of Charles the 1st, as recited in the preamble of this Act, grants that “no person or persons whatsoever, whether a freeman of the said society or a foreigner, or a native of England, or an alien, should use or exercise the said art or science of Surgery within the said cities of London and Westminster or either of them, or within the distance of seven miles of the said city of London, for his or their private lucre or profit, (except such Physicians as are therein mentioned) unless the said person or persons were first tried and examined in the presence of two or more of the Masters or Governors of the mystery and commonalty aforesaid for the time being, by four or more of the said examiners so to be elected and constituted as aforesaid and by the publick Letters Testimonial of the same Masters or Governors under their common seal approved of and admitted to exercise the said art or science of Surgery, according to the laws and statutes of the kingdom of England, under the penalty in the said Letters Patent mentioned.”[^[118]]. (see Appendix, p. 36). The same Charter provides “That no one, whether a freeman of the mystery or commonalty aforesaid, or a foreigner, whether a native of England, or an alien, exercising the art of Surgery within the cities of London and Westminster or the suburbs or liberties thereof, or within seven miles of the said city of London, should go out from the port of London, or send out any apprentice, servant, or other person whomsoever, from the said port, to execute or undertake the place or office of a Surgeon for any ship, whether in the service of the Crown, or of any merchant or others, unless they and their medicines, instruments and chests respectively, were first examined, inspected, and allowed by two such Masters or Governors of the mystery and commonalty aforesaid for the time being, as were skilled, knowing and professors in the same art of Surgery, under the penalty therein mentioned;” (see Appendix, p. 37). And the Act (§ 9. Appendix, p. 44,) following the same principle, enacts “That from and after the said first day of July, One thousand seven hundred and forty-five, the Examiners of the Company of Surgeons established by this Act shall, and they are hereby required, from time to time upon request to them made, to examine every person who shall be a candidate to be appointed to serve as a Surgeon or a Surgeon’s mate, of any regiment, troop, company, hospital or garrison of soldiers in the service of his Majesty, his heirs or successors, in like manner as they do or shall examine any Surgeon or Surgeons to be appointed to serve on board any ship or vessel in the service of his Majesty, his heirs or successors.”

By section 3, (see Appendix, p. 39,) the College is empowered to hold Courts and Assemblies and to make By-laws, Ordinances, Rules, and Constitutions for the government of the Corporation, and those of the united Company concerning Surgery are declared to be in force till repealed. (§ 4. p. 40). By section 11 (see Appendix, p. 45,) it is provided that nothing contained in the Act shall abridge or infringe any of the privileges, authorities, &c. of the College of Physicians.

These are the Acts of Parliament which at present regulate the profession of a Surgeon; it is evident that they are imperfect, as they do not give any power to restrain and punish ignorant pretenders, who without the slightest qualification assume this dangerous and difficult branch of practice, and most especially in the country. We are aware that any attempt of the medical Corporations to obtain an increase of their power, would create much outcry among those who are interested in the perpetuation of existing abuses; but we will hope that the public safety will be preferred to the private views of empirics; and that a due system of examination, license, and restriction of surgical practice throughout England, will shortly receive the sanction of the legislature.

We have only found one reported case of any consequence in which the College of Surgeons have been parties. In Rex v. the Master and Wardens of the Company of Surgeons in London, it was determined that a By-law requiring apprentices to have a competent knowledge of the Latin language, is good and reasonable; (see 2 Bur. 892. and Appendix). Continual attempts have been made to decry the value of classical attainment in the medical professor; the legal authorities however agree that the Corporations have the right of prescribing a due course of education as a necessary preliminary to admission; and we sincerely hope that these learned bodies will never abandon this principle, that none shall be admitted to the higher honors of their profession, who are not possessed of the ordinary acquirements of gentlemen.

In the year 1800 the Surgeons of London obtained a new Charter from his late Majesty, which after reciting the previous Charters and Acts of Parliament which we have noticed, proceeds thus: “And whereas we are informed that the said Corporation of Master Governors and Commonalty of the art and science of Surgeons of London, hath become and now is dissolved,” &c. therefore His Majesty was pleased to incorporate the members of the late Company, and all such persons who, since the dissolution thereof, have obtained Letters Testimonial, &c. and confirmed to such new Corporation all gifts, grants, liberties, privileges, and immunities, possessions real and personal, &c. granted or confirmed by any previous Charter or Act of Parliament.

We confess ourselves at a loss to trace either the mode or date of the alleged dissolution; the Act of the 18th Geo. 2. is explicit as to the creation of a College of Surgeons, and we consequently find them recognised in the character of a Corporation in the cited case Rex v. the Master and Wardens (Appendix p. 153), which was tried in the 33d of Geo. 2.; but as the College have themselves admitted the fact, we must take it for granted that the recital is correct; how far the Charter of Geo. 3. unconfirmed by an Act of Parliament can revive their ancient rights may be a most material question; but as we are of opinion that the rights of this body should rather be increased than diminished we do not at present enter into it, in the hope that the defect, if it exist, will be shortly remedied by the Legislature.[^[119]].

3. OF THE SOCIETY OF APOTHECARIES.[^[120]]

In 1666 the Apothecaries and Grocers were united in one Company by Charter of the 4th of James the First, but this union did not long continue, for in 1615, by Charter of the 13th of the same king,[^[121]] the Companies were again separated (see Goodall’s collect. p. 119. Appendix 71.) This was done upon the representation of some of the Apothecaries, backed by the approval of Doctors Mayerne and Atkins, then the King’s physicians, by whose interest and solicitation this new Charter appears to have been obtained. The Letters Patent, after reciting the Charter of the 4th of the King, and that many empirics and ignorant persons had taken upon themselves the art and mystery of Pharmacoplists, compounding hurtful, corrupt and pernicious drugs, declared that the Apothecaries of and within seven miles compass of the City of London should thenceforth be separated from the Grocers, and be made a Corporation, under the names of the Master, Wardens and Society of the art and mystery of Pharmacopolists in London, to sue and be sued as other Corporations; to have a common seal, and power to purchase and hold lands in fee simple or for years. To be subject however to the magistracy of the City of London, as other City companies. None but natural born subjects to be members. The Company or Society is enabled to elect a Master, two Wardens, and twenty-one Assistants, in the manner prescribed, to have a hall or council house, to keep a court or convocation to consult on statutes, laws, articles, &c. The power of making By-Laws for the government of the society is vested in the Master, Wardens and Assistants, or thirteen of them (of whom the Master must be one), on public summons; provided however that in all orders concerning medicines and their composition they should consult with the President and Censors of the College of Physicians, or with some other physicians named for that purpose by the President. They have power to punish by fines and amercements to the use of the Company, without giving account, but such fines must be moderate and not contrary to law. The first Master (Edm. Phillips), Wardens and Assistants[^[122]] are named in the Letters Patents, with special direction as to the manner in which they are to take their respective oaths of office, and the future election of Master and Wardens is vested in the Assistants, who have also the sole power of filling up vacancies in their own number, whether caused by death, removal or otherwise; with power to administer the oath of office, as well to every Master and Warden as to every newly elected Assistant. No Grocer or other person whatsoever may keep an Apothecaries shop for the compounding medicines, &c. till he have served seven years apprenticeship to some Apothecary, nor can such Apprentice be made free unless allowed by the President of the College of Physicians,[^[123]] or some Physician or Physicians deputed by him, who is or are to be present at the examination by the Master and Wardens (if upon notice such Physician or Physicians shall be unwilling to attend.) The Company have power to enter the shops and houses of all persons following the mystery of Apothecaries, both in the City and suburbs, to search and try medicines, and to burn all unwholesome and hurtful medicines before the doors of the delinquents, in which all civil officers are to give them all necessary assistance; this power is however to be without prejudice to the rights and privileges of the President of the College of Physicians, who are to enjoy all powers and authorities as before[^[124]], and especially to have the same power in their searches to call the Master and Wardens of the Apothecaries Company as of the Grocers. Lastly, the practice of Surgeons is confirmed, so that they do not vend medicines after the manner of Apothecaries.

This Charter was lately confirmed (except as therein altered) by Act of Parliament, 55 Geo. 3. c. 194. By this Statute the Company’s former power of search for unwholesome medicines is repealed, and in lieu thereof the Master, Wardens and Society of Apothecaries, or any of the Assistants, or any other person or persons properly qualified to be by the Master and Wardens assigned, not being fewer in number than two, shall, as often as to the said Master and Wardens may seem expedient, enter in the day time, any shop of any person using the art and mystery of an Apothecary in any part of England or Wales, and search if the medicines, simple or compound, Wares, Drugs, or any thing whatsoever therein contained and belonging to the art or mystery of Apothecaries, be wholsome, meet and fit for the cure, health, and ease of his Majesty’s subjects; and all and every such medicines, wares, drugs, and all other things belonging to the aforesaid art, which they shall find false, unlawful, deceitful, stale, unwholsome, corrupt, pernicious or hurtful, shall and may burn, or otherwise destroy, reporting the name of the offender to the Master, Warden and Assistants, who may impose and levy on such person the following fines; for the first offence five pounds, for the second offence ten pounds, and for the third and every other offence the sum of twenty pounds. No person to be nominated to search drugs, or chosen to the Court of Examiners within the City of London, or thirty miles of the same, unless he be a member of the Society of Apothecaries, of not less than ten years standing; nor in any other part of England and Wales, or to be one of the five Apothecaries hereinafter mentioned, except he shall have been an Apothecary in actual practice for not less than ten years previously to his being so nominated or appointed. “And whereas, it is the duty of every Person using or exercising the art and mystery of an apothecary, to prepare with exactness and to dispense such medicines as may be directed for the sick by any Physician, lawfully licensed to practise Physic by the President and Commonalty of the Faculty of Physic in London, or by either of the two Universities of Oxford or Cambridge; therefore” if any person using the mystery of an Apothecary shall refuse to compound or administer or deliberately or negligently, falsely or unfaithfully mix, compound, or administer any medicines ordered by any lawful Physician by any prescription signed with his initials, such person on complaint made within twenty-one days by such Physician,[^[125]] and upon conviction of such offence before any of his Majesty’s Justices of the Peace, unless such offender can shew some satisfactory reason, excuse, or justification in this behalf, forfeit for the first offence five pounds, for the second offence ten pounds, and for the third offence he shall forfeit his certificate, and be rendered incapable in future of using the art and mystery of an apothecary and shall be deemed incapable of receiving any fresh certificate until he shall faithfully promise and undertake and give good and sufficient security, that he will not in future be guilty of the like offence.[^[126]] The Master and Wardens may from time to time appoint deputies to act for them. The Master, Wardens, and Society of Apothecaries are appointed to carry this act into execution throughout England and Wales, but no act of the Master, Wardens, &c. shall be valid (except the search of drugs, &c. as before mentioned, the acts of the Court of Examiners, and of the five Apothecaries hereinafter mentioned) unless the same be done at some meeting to be holden in the hall of the Society. The powers granted to the Master, Wardens and Society, to be exercised by the Master, Wardens and Assistants for the time being, or the major part of them present; the number present at such assemblies not to be less than thirteen, of which the Master must be one. Twelve persons properly qualified shall be chosen and appointed by the Master, Wardens and Assistants (who may also remove or displace them from time to time as they may deem advisable) and such twelve persons, or any seven of them, shall be and be called the Court of Examiners of the Society of Apothecaries and shall have full power to examine all Apothecaries and Assistants to Apothecaries throughout England and Wales, and to grant or refuse certificates; this Court is to meet once a week at the Halls, a chairman to be appointed who in case of equality (his own vote included) shall have a casting vote. The Master, Wardens or Court of Assistants are to administer a prescribed oath of office[^[127]] to the Examiners. The Examiners remain in office one year (except in cases of removal) and may be reappointed; in case of death the successor remains in office only to such time as his predecessor would have done. After the fifth of August, 1815, it shall not be lawful for any person (except persons already in practice) to practise as an Apothecary in any part of England or Wales, unless he shall have been examined by the said Court of Examiners and have received a certificate of his being duly qualified to practise as such; no person to be admitted to examination until he shall have attained the full age of twenty-one years, nor unless he shall have served an apprenticeship of not less than five years to an Apothecary and shall produce testimonials to the satisfaction of the Court of Examiners, of a sufficient medical education and of a good moral conduct. Persons intending to qualify are to give notice to the Clerk. It shall not be lawful for any person (except persons then acting as Assistants and except persons who have actually served an apprenticeship of five years[^[128]] to an Apothecary) to act as Assistant to any Apothecary in compounding or dispensing medicines without undergoing an examination by the Court of Examiners (or by five Apothecaries hereinafter mentioned) and obtaining a certificate of his qualifications. The Master and Wardens or Court of Examiners may from time to time appoint Five Apothecaries[^[129]] in any county throughout England and Wales (except within the city of London and thirty miles circuit) to act for such county in examining Apothecaries and their Assistants, for which purpose they shall hold monthly meetings in the county town, three to be a quorum and the Chairman in case of equality to have a casting vote. The sums to be paid for Certificates to be as follows; Ten pounds ten shillings to be paid to the Master, Wardens, &c. for Certificate to practise within London or ten miles circuit, and Six pounds six shillings for any other part of England or Wales, in which case the Certificate may be afterwards enlarged to London, &c. on payment of Four pounds four shillings. Any person practising (except persons in actual practice as before mentioned) without a Certificate shall for every such offence forfeit Twenty pounds, and Assistants (except as aforesaid) Five pounds. And no Apothecary shall be allowed to recover any charges claimed by him in any court of law, unless he shall prove that he was in practice on or before the first of August 1815, or that he has obtained his Certificate. Persons refused a Certificate to practise may apply again.[^[130]] The Master, Wardens, &c. are to publish an annual list of all persons who in that year have obtained Certificates. The monies arising from Certificates to be at the disposal of the Master, Wardens, &c.; the penalties, one half to the informer and one half to the Master, Wardens, &c. Fines and penalties above Five pounds to be recovered by action at law in the name of the Master, Wardens and Society of the art and mystery of Apothecaries of the city of London; and if the fine or penalty be less than Five pounds, then the same shall be levied by distress warrant under the hand and seal of any Justice of the Peace acting for the city, county, town, or place where the offence was committed; and the distress is not to be held unlawful for want of forms. But this act is not to affect chemists or druggists,[^[131]] nor in any way to interfere with, lessen, prejudice or defeat any of the rights, authorities, privileges and immunities of the two Universities of Oxford and Cambridge, the Royal College of Physicians, the Royal College of Surgeons, or the said Society of Apothecaries. Actions against any Corporation for any thing done under this act to be brought within six months, and in the county in which the dispute shall arise; defendants may plead the general issue. The jury shall find for the defendants if such action have been brought without twenty-one days notice, and on verdict for the defendants or the plaintiff suffering discontinuance or nonsuit, they the defendants shall have double costs. This act to be deemed a public act.

Such is the general outline of the act under which the Society of Apothecaries have obtained a very considerable addition to their ancient powers (for the act itself we refer the reader to the Appendix); we are convinced that much public benefit may arise from a diligent use and exertion of these authorities, and from what we know of the parties now entrusted with them, we do not anticipate any evil from the mode or motives of their execution.

We do not think it necessary to enter into the details of the By-laws of this Society, nor into their character as a trading Corporation; we may however remark that the quality of the medicines supplied by them to the Navy and East India Company, has been very generally approved; too much care cannot be taken to secure the purity and propriety of the assortments exported for the use of our gallant defenders; nor is there any good reason why the army should not be supplied under the same or a similar system; we do not mean that the Apothecaries Company should have an absolute monopoly of medicines for the public service, for such a grant would defeat the end proposed, but if under a fair and open competition they can furnish the necessary supplies of an equal quality and price with their rivals in trade, there are reasons of public expediency which would turn the scale in favor of a fixed and permanent Corporation, in preference to the individuals however respectable, whose trading may be more subject to accidents and vacillations.

We must not conclude our account of the Society of Apothecaries, without noticing the splendid botanic garden at Chelsea, which, for a period of a century and a half, they have possessed and carefully maintained: and it is worthy of remark, that this is the only depository of exotic and indigenous plants, in the vicinity of the metropolis, which belongs to any public body. From the account of this establishment by Mr. Field,[^[132]] its early history appears to be involved in considerable obscurity; the company however were mere lessees of the ground, until the fee and inheritance of the estate, together with the manor of Chelsea, was purchased from Lord Cheyne by Sir Hans Sloane; when this distinguished naturalist and physician, by deed, containing certain covenants[^[133]] hereafter mentioned, gave the society full possession of, and a permanent interest in, the garden. The society do not appear to have been insensible to the liberal conduct of Sir Hans Sloane; a marble statue of their benefactor, executed by Michael Ryebrach, at the cost of £250, was erected by them in 1737, and it remains as a lasting memorial of his munificence, and of their gratitude.

4 OF THE EXEMPTIONS AND LIABILITIES OF MEDICAL PRACTITIONERS.

Physicians, Surgeons, and Apothecaries have been exempted from the performance of various civil duties by several Acts and Charters, and those exemptions which were at first limited, have by custom become so general, that they may now be considered as legally established.

By the 14 and 15 Hen. 8. c. 5. that part of the Charter of the College of Physicians, which exempts them from being summoned to or placed on any assizes, juries, inquests, inquisitions, attaints, et aliis recognitionibus, even in pursuance of the King’s writ, is confirmed by Statute; and by the 32 Hen. 8. c. 40. they, and as it may appear the Licenciates also, (under the name of Commons,) are discharged from keeping watch and ward, from serving the office of constable,[^[135]] or any other office within the city of London and the suburbs, any order, custom or law to the contrary notwithstanding.[^[136]]

The Corporation of the city of London, however, appear to have been unwilling to acquiesce in these exemptions, grounding themselves probably on their own Charters and Privileges, and on the reservation of their rights in the concluding clause of the Charter of the College. We find, therefore, that the members of the College were frequently harassed by being elected to parochial offices, and being called upon to find arms, and to keep watch and ward.

In 1588, “Being then a time of most imminent and public danger, the Lord Mayor of London and Court of Aldermen charged the College with arms, whereupon they applied themselves to Queen Elizabeth and her Council; upon which Secretary Walsingham wrote a letter to the Lord Mayor and Aldermen of London, that they should no more trouble the College, but permit them to live quietly, and free from that charge. After this they met with no further trouble or molestation till the reign of King James; at which time the College being charged with arms, Sir William Paddy pleaded their privilege before Sir Thomas Middleton, Lord Mayor, and a full Court of Aldermen, and Sir Henry Montague, Recorder.” “The Recorder then perusing every branch of the Statutes recited by Sir William Paddy, with the reasons by him urged; and opening every part thereof at large, did conclude, that the Act of Parliament did extend to give the College as much immunity as in any sort to the Chirurgeons. Hereupon the Court desired a list of the members of the College, which was immediately given them, and an order entered for a dispensation to the College from bearing of arms; and also a precept was then awarded by the Mayor and Court, to commit all other Physicians or Surgeons, refusing to bear or find arms, who were not of the College allowed, or Chirurgeons licensed according to form.”

“About three years after this debate, King James granted the College his Royal Charter, wherein he confirms all former statutes and patents given them by his royal progenitors, and therein granted, To all and every Physician of the College to be wholly and absolutely free from providing or bearing of any armour or other munition, &c. any act or statute to the contrary notwithstanding.”

Charles the Second also by his Charter granted the same exemptions in very full terms, and sent a letter to the Lord Mayor of London (for which see Appendix) commanding the observance of these privileges.

“Thus by the especial grace and favour of the Kings and Queens of England, the College of Physicians have been freed from bearing and providing arms: and though some particular member may of late have been summoned upon that account by the Lieutenancy, yet upon producing his Majesty’s patent and asserting his Sovereign’s natural right in dispensing with a Corporation of men from bearing and providing arms, which was an inherent prerogative in the Crown; and therefore an Act of Parliament was made in 13 Car. 2. 6. positively declaring, That the sole and supreme power, government, command and disposition of all the Militia, and of all forces by sea and land, &c. is, and by the laws of England ever was, the undoubted right of his Majesty and his royal predecessors, they were freed from any further trouble. An instance of which we lately had in the case of Dr. Newell, then candidate of the College of Physicians; who, anno 1680, was summoned to appear before the Lieutenancy of London for not bearing and providing arms. Upon which summons, attending with the Patent 15 Car. Secundi Regis nunc.” The Lieutenancy on debate desired a copy of the exempting part of the patent, that they might consult with their counsel. On the next committee-day they told him they were satisfied that the words of the Patent were sufficient to exempt the members of the College from bearing and providing arms, and desired that a list of them might be given in under the College Seal, which was accordingly done.

Sir Francis Pemberton, Sir Edmund Saunders, and Mr. Holt, lawyers of whose celebrity it is unnecessary to speak, being consulted on the same point, answered.

Sir F. P. I conceive his Majesty may, by his Patent, excuse the College from finding arms if he think fit.

Sir E. S. The Patent doth discharge the Physicians from bearing or providing of arms, notwithstanding the Militia Act.

Mr. H. I conceive by the Patent all the members of the College are exempted from being at any charge towards the Militia.

But in the case of Sir Hans Sloane against Lord William Pawlett, Lord Chief Justice Parker was of opinion, that the King by his prerogative could not dispense with an Act of Parliament which was made for the public good of the whole nation; “but admitting that he could exempt them (the Physicians) from personal duties, yet it cannot be inferred from thence, that he might exempt them from being contributory to others to perform those duties which are required by an Act of Parliament, especially where the subject has an interest that such duties should be performed, or a loss if they should not; and the better opinion seemed to be that the King could not exempt in such cases. That in the principal case, the contribution to be made to the finding a man with arms to serve in The Militia, is a charge upon the lands, as well as on the persons of the owners; and if this charter of exemption should be good, it would encrease the charge on all the lands of persons not exempted, which would be a very great damage to such persons, because the physicians who are exempted are a considerable body of men in every county, for which reason it would be very hard if the King had power to lessen the tax imposed upon one man, and charge it on another. Besides the King cannot exempt in any case where the subject has an interest.” (See 8 Mod. p. 11.) Therefore when it is intended to exempt Medical practitioners from the burthen of any Militia Act, it is necessary that they should be specifically mentioned.

OF ACTIONS BY MEDICAL PRACTITIONERS.

A Physician cannot maintain an action for his fees, for they are honorary, and not demandable of right; “and it is much more for the credit and rank of that body, (the physicians) and perhaps for their benefit also that they should be so considered; and I much doubt, says Lord Kenyon, 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.” Chorley against Bolcot, 4 T. R. 317, see Appendix. It was contended in this case, that there was no authority in the books for placing physicians and barristers fees[^[137]] on the same footing; the regulation with regard to barristers being founded on grounds of public policy, as appears by a passage in Tacitus to which Mr. Justice Blackstone refers; in which passage it is taken for granted that Medici[^[138]] were entitled to a remuneration, because their situation was dissimilar to that of advocates.[^[139]]

But though a physician cannot recover his fees by process of law, yet pro concilio impenso et impendendo is a good and valuable consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And this was formerly a very frequent mode of remuneration for professional services both in law and physic, though at the present day it does not frequently occur.

If a bond, bill, or note were given for medical attendance, the consideration would be good, though the original fees could not have been recovered. A distinction might we think be drawn between the fees of a physician and his travelling expenses, which are frequently considerable; but the case of Chorley and Bolcot, before cited, is against it.

If a medical practitioner passes himself off as a physician, (by no means an unfrequent practice in distant parts of the country) although he has no diploma, and no right to assume that character, he cannot maintain an action for his fees. Lipscombe v. Holmes, 2 Camp. 441. see Appendix. Though as a surgeon he might have recovered compensation: and even if he were no regular surgeon, the doctrine in Gremare v. Le Clerc Bois Valor, 2 Camp. 144. would entitle him to recover in an action of assumpsit. But query the authority of this case.[^[140]]

If there be any promise, a physician may receive on a quantum meruit, Shepherd v. Edwards; Hill 11. Jac. 2. Croke 370. In this case the plaintiff declared that he being a professor of physic and surgery had cured the defendant of a fistula and he had judgment. All physicians may practise surgery; (32 Hen. 8.) though surgeons may not encroach in physic; therefore query whether in this case the plaintiff did not sue as a surgeon; and the disease was one which in this day would clearly be classed as a surgical case. It was not so however in Dale against Copping, (Bulst. part 1. p. 39) when the promise of an infant to pay a certain sum to the defendant for curing him of the falling sickness was held binding, “for that this shall be taken as a contract, and that to be for a thing in the nature of necessity to be done for him, and the same as necessary as if it had been a promise by him made for his meat, drink, or apparel, and in all such cases his promise is good and shall bind him.”

OF ACTIONS AGAINST MEDICAL PRACTITIONERS.

If a Physician, Surgeon, Apothecary, or other medical practitioner, undertakes the cure of any wound or disease, and by neglect or ignorance the party is not cured, or suffers materially in his health, such medical attendant is liable to damages in an action of trespass on the case: but the person must be a common Surgeon[^[141]], or one who makes public profession of such business, as surgeon, apothecary, &c. for otherwise it was the plaintiff’s own folly to trust to an unskilful person, unless such person expressly undertook the cure, and then the action may be maintained against him also. See Bull. N. P. p. 73; 2 Esp. N. P. p. 601.

“And it seems that any deviation from the established mode of practice, shall be deemed sufficient to charge the Surgeon, &c. in case of any injury arising to the patient.” See Slater v. Baker and Stapleton. 2 Wils. 359. which was a special action on the case against a Surgeon and an Apothecary, for unskilfully disuniting the callous of the plaintiff’s leg after it was set, (see Appendix, p. 189) which it appears was done for the purpose of trying a new instrument. The Plaintiff recovered 500l. against the Defendants jointly, and the Chief Justice said he was well satisfied with the verdict. On a motion for a new trial, the judgment was affirmed by the whole Court.

In Seare against Prentice, 8 East. R. 348. it was determined that this action lies against a Surgeon for gross ignorance and want of skill in his profession, as well as for negligence and carelessness, to the detriment of a patient; though if the evidence be of negligence only, which was properly left to the jury, and negatived by them; the Court will not grant a new trial, because the jury were directed that want of skill alone would not sustain the action. See Appendix, p. 194.

In the case of Neale v. Pettigrew, a Surgeon was held responsible in damages for the negligence and unskilfulness of his apprentice or servant[^[142]].

Though the cited cases are surgical, there is no doubt that similar actions would be maintainable against Physicians or other medical practitioners; but as internal injuries are less demonstrable than external, there might be some difficulty in obtaining the necessary evidence. We shall treat in another place of the criminal responsibility of persons undertaking cures in cases where death ensues from their mal-practice.

MIDWIFERY.

“In former times the necessity of Baptism to new born infants was so rigorously taught, that for this reason they allowed lay people and even women, to baptize the declining child, where a priest could not be immediately found; so fondly superstitious in this matter, that in hard labours the head of the infant was sometimes baptized before the whole delivery; this office of baptizing in such cases of necessity was commonly performed by the midwife; and tis very probable, this gave first occasion to midwives being licensed by the bishop, because they were to be first examined by the bishop or his delegated officer, whether they could repeat the form of baptism which they were in haste to administer upon such extraordinary occasions. But we thank God our times are reformed in sense and in religion.” (Watson’s Cler. Law, c. 31, p. 318.) The concluding sentence appears to be somewhat ill placed, for a few lines before the reverend author says, “And Note, that a child baptized with water in the name of the Father and of the Son, and of the Holy Ghost, is sufficiently baptized, although not baptized by a lawful priest, as may be collected from the Rubrick; and so it is if the child be baptized by other form, yet the person baptizing not being a lawful priest is punishable, like as a lawful priest baptizing by other form than is set down by the Book of Common Prayer is punishable;” and a few lines after, he says, that a Clergyman “ought not to bury the corps of any person dying unbaptized:” surely if the baptism of a child by a lay person is good, and the body cannot have Christian Burial without it, there is nothing senseless or irreligious, and we will venture to add nothing morally or legally wrong, in the performance of this provisional ceremony. If there were no other object than to satisfy the anxiety of the mother at a moment when the calmness of her feelings is vitally important, it ought not to be omitted whenever the danger of the child and the absence of a priest appear to render it necessary.

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]]

We are well aware that any adequate remedy for these evils would require the most serious attention of the most experienced ability; but because the task is difficult, we do not think it impracticable; and where human life, in its most interesting and useful forms is at stake, we are assured that labour, however thankless in its outset, will ultimately meet its reward in the approval of society.

Having thus ventured to suggest some measures which seem calculated to secure and promote the public health, we may be allowed to glance at the impolicy of any tax which has a tendency to deprive the lower orders of those articles which are essential to it; the salt duties immediately suggest themselves as a lamentable instance of such impolicy: salt is to the poor an indispensable part of their diet; it is essential to their bodily health, to the preservation or composition of bread, butter, cheese, meat, fish, and almost every article of their food, and its utility is always greater in proportion to the scantiness, and nutritive deficiency of their diet.[^[151]]

The importance of cleanliness in cities, and of purity in the waters by which they are supplied, will more properly fall under consideration in another division of our subject; but we may here generally observe, that no circumstance contributes in a greater degree to the public health than an attention to this branch of medical jurisprudence. The deleterious influence of stagnant waters is too apparent to admit controversy, in which are to be included moats, where the water has no motion, and meadows which are occasionally overflowed; it has accordingly been the policy of every enlightened country to provide adequate resources for its drainage, and those liberal individuals who have encouraged the plans for its accomplishment have ever been distinguished by the gratitude of the people. It has been conjectured, and not without probability, that the patriotism of Marcus Curtius is thus handed down to us in a figurative allusion, and that he probably filled up, at his own cost, some stagnant pools which affected the health of his fellow citizens. Empedocles, a disciple of Pythagoras, delivered the Salentines from the dangerous exhalations with which they were infested, by conducting two neighbouring rivers through their marshes, by which the stagnant waters were carried off; the air was therefore no longer infected, and the diseases which had flowed from this source immediately subsided. In ancient Rome, the physical evils which have since so materially contributed to deprive it of its former salubrity and splendour, were obviated by magnificent aqueducts.

The slaughtering of cattle is another very important object in relation to the public health of a great city, and we cannot but wish that some police regulations were established that might mitigate the serious evils so often experienced from this circumstance, in most of the large towns of the British empire.

There still remains to be noticed one practice connected with the public health, that requires some animadversion from the medical jurist—The Burial of the Dead in the midst of populous towns and cities.—It is certainly extraordinary that a country which has long abjured the errors of the church of Rome, should still retain one of its most absurd superstitions, yet such is the fact in England, as it respects the Burial of the Dead in churches, and church-yards, and in cemeteries, situated in the very heart of our most populous cities.[^[152]] If the health of the people be a primary object of legislation, there is no point which in the present advanced state of population calls more imperiously for its interference; the cemeteries of the metropolis are so crowded[^[153]] that it becomes more difficult to find room for the dead than the living, and yet free as we boast ourselves to be from the prejudices and superstitions of our ancestors, we question whether there is any point upon which more popular clamour would be raised than that of changing the system of burial. It is difficult, in the first place, to overcome those feelings which originate in a principle amiable and useful in itself, however mistaken it may be in its practical applications. Nature appears to have implanted in all mankind a sentiment of veneration for the mortal remains of those whom living we have loved or respected; every nation, whether civilized or barbarous, has accordingly invented and practised some ceremony,[^[154]] generally of a religious character, in the final disposal of the human corpse; it is however the duty of the state to guard the living from those evils to which an ill applied respect for the dead may be likely to subject them.

Although we are disposed to admit with Diemerbroeck[^[155]] and Dr. Bancroft,[^[156]] that the effluvia which issue from putrefying human bodies are not capable of generating the specific contagious matter of Plague, Typhus, or any true pestilential fever, yet, but little reflection is necessary to lead any reasoning mind to the conclusion, that in the decomposition of the human body various noxious principles are developed highly injurious to human life. Dr. Bancroft, in order to establish his position respecting the non-pestilential nature of these effluvia, relates two instances of extensive exhumations, which he says furnish facts on so large a scale as completely, in his opinion, to decide the question. The first relates to those made in the church-yard of St. Eloi, at Dunkirk, in the year 1783; and the other to those made three years afterwards, in the famous cemetrie of the Saint Innocens, at Paris. As the operations and results were similar in both instances, it will be sufficient if we describe only the latter. The church-yard of the Saint Innocens, situated in one of the most populous quarters of the city of Paris, had been made the depository of so many bodies, that, although its area enclosed near two acres of ground, yet the soil had been raised by them eight or ten feet higher than the level of the adjoining streets: and upon the most moderate calculation, considerably more than six hundred thousand bodies had been buried in it, during the last six centuries: previous to which date, it was already a very ancient burial ground;[^[157]] numerous complaints having been made concerning the offensive smells which arose from this spot, and had penetrated into the houses, and the deleterious effects which such emanations produced, having been described in a memoir read before the Royal Academy of Sciences[^[158]] in 1783, by M. Cadet de Vaux, who held the useful office of Inspecteur Général des objects de Salubrité, the Council of State decreed in 1785 that so much of the superstratum should be removed as would reduce the surface to the level of the streets. This work was accordingly undertaken in 1786, under the superintendance of M. Thouret, a Physician of eminence in Paris,[^[159]] and in two years he accomplished it. It does not appear that any epidemic evils were experienced from these extensive exhumations, but it must be remembered that the great mass of bodies had been converted into a harmless and inoffensive substance resembling spermaceti, to which the name of Adipocire[^[160]] has been given; had this change not occurred, it is more than probable that worse consequences would have been experienced from this horrible accumulation: sufficient instances however occurred to prove the dangerous tendency of the mephitic vapours[^[161]] which were emitted; grave-diggers were thrown down suddenly, and deprived of sense and motion, upon breaking open, by their spades, the abdominal viscera; these vapours also, in a more diffused state, produced nausea, loss of appetite, and in the course of time, paleness of countenance, debility, tremors, &c. If farther evidence be required upon this subject, we have only to direct the reader’s attention to the effects occasioned by opening the graves in St. Dennis, and to which no allusion is made by Dr. Bancroft: the National Convention in the year 1793, in the true spirit of revolutionary ferocity, passed a decree upon the motion of Barrère, that the monuments of the Kings in this, as well as in all other places throughout France, should be destroyed. In carrying this decree into effect, the bodies of many of the latter Bourbons were found in a state of decomposition, and when the coffins were opened they are said to have emitted a thick black vapour, which, although vinegar and gunpowder were burnt to prevent ill consequences, affected the wretches employed in this inhuman work with fevers and diarrhæas: so again when the ground of the church of St. Benoit was dug up a few years ago, a nauseous vapour was emitted, and several of the neighbours were affected by it.[^[162]]

We are nevertheless far from believing that such cadaverous impurities, however unwholesome, are capable of generating the specific contagions of Typhus, &c.; nor are we even inclined to assent to that general opinion which supposes that putrid emanations from the bodies of persons who have died of a pestilential disorder are capable of re-exciting the disease, and we are fortified in this conclusion by the powerful testimony of Mr. Howard.[^[163]] We ought not, however, to omit to state, that instances are on record, where the small-pox has suddenly appeared in a village, after opening the grave of a person who had a few months before fell a sacrifice to that disorder.

From the experiments and observations which have been made with respect to the decomposition of animal bodies that are interred in burying-grounds, it appears that they are, in such situations, subjected to very different laws of decomposition, from those which take place in bodies exposed to the open air. In the former case no danger can attend the operation provided the body be buried at a sufficient depth, and that the grave be not opened before its entire and complete decomposition. The depth of the grave ought to be such that the external air cannot penetrate it; that the juices with which the earth is impregnated may be conveyed to its surface, and that the exhalations, vapours, or gases, which are developed or formed by decomposition, should not be capable of forcing the earthy covering which detains them. The nature of the earth in which the grave is dug, influences all its effects. If the stratum which covers the body be argillaceous, the depth of the grave may be less, as this earth affords with difficulty a passage to any gas or vapour; but, as a general rule it may be admitted, that bodies should be buried at the depth of five feet, to prevent any unpleasant consequences. It is also important to remember that the decomposition of the soft parts, according to Mr. Petit, is not terminated until the expiration of three years, in graves of four feet deep; or four years when their depth is six feet. This term, of course, is stated as a medium; it must necessarily vary according to the nature of the soil, and the constitution of the subjects buried in it.

A knowledge of these facts ought to lead to a more rational system of interment. We can scarcely expect to see the fulfilment of the wish expressed by Evelyn in his Sylva, the establishment of a Necropolis without the walls; but much may be effected by judicious regulations; and the law will uphold any parochial officer in the conscientious discharge of the requisite duties; in certain cases it invests him with a considerable latitude of discretion; thus when a body is brought to be buried “it seemeth to be discretionary in the minister whether the corpse shall be carried into the church or not, and there may be good reason for this, especially in cases of infection.”[^[164]] A curious controversy has lately taken place upon the introduction of iron coffins, and chemists have differed widely upon the subject of their relative durability, when compared with those of wood. Sir William Scott (now Lord Stowell) decided, and we think very justly, that under ordinary circumstances the former appear less perishable, and therefore when admitted into burying-grounds, that the parties are to be held liable to extraordinary fees.

Burial must not be delayed or denied, (Lindwood 278) nor hindered for debt,[^[165]] (Burn Ec. L. 238) nor disturbed for purposes of dissection (King v. Lynn, vide Post.) Formerly by 30 C. 2, st. 1, c. 3, all bodies were directed to be buried in woollen, under the penalty of £10; this enactment, which was made with the idea of encouraging the woollen trade, is now repealed.