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 500_l._ 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.

In relation to their effects upon the public health, the arrangement and cleansing of privies deserve some notice in this place. It has been long admitted that the effluvia which issue from these receptacles of human ordure are highly deleterious, and have been known to occasion a species of ophthalmia, diarrhæa, and dysentery, while in a more concentrated form these emanations have proved suddenly fatal,[166] by producing an affection named by the French Nosologists[167] the _Plomb_, or the Asphyxia of privies. _M. Dupuytren_ has given us many particulars respecting this affection; sometimes the patients are strongly asphyxied, and death takes place in a very short period; at others, the symptoms are less intense, and if the patients be carried into the open air, after a short interval, they make deep inspirations, and the breathing is gradually restored, although it continues laborious; the motion of the heart becomes perceptible, nevertheless the pulse is weak and small; the digestive and loco-motive apparatus have lost their contractile force; the functions of the brain are suspended; and if the patient finally recovers, he is a long time in re-establishing his strength. An emetic appears to be the remedy upon which the _nightmen_ rely for relief.

The above observations are sufficient to shew the propriety of placing these establishments under police regulations, especially where the deleterious influence of their emanations are more decidedly remarkable, as in hospitals, prisons, and barracks. The governments of different countries have sought to prevent the evil, by various laws, edicts, and ordinances.[168]

In this country, we apprehend their supervision belongs to the very ancient and extensive jurisdiction of the Commissioners of Sewers,[169] who although not engaged like the Œdiles of ancient Rome, in superintending magnificent aqueducts, are occupied in directing the far more stupendous and wonderful works which extend beneath the foundations of our mighty city, and dispense to its inhabitants the essential requisites for comfort, cleanliness, and health.

OF QUARANTINE, LAZARETTOS, AND OTHER ESTABLISHMENTS OF PLAGUE POLICE.

The histories of different ages and countries furnish numerous records of the occasional prevalence of certain diseases, generally of the febrile class, which at one period have occasioned the most destructive mortality, while at others, they have assumed so mild a form as to have affected only few, and to have destroyed scarcely any of the population. Such diseases, when they attack a great number of individuals about the same time, or in rapid succession, are very properly designated by the term EPIDEMIC (from επὶ _upon_ and δημος _the people_) and whenever their course is attended with considerable mortality, they are moreover said to be _Pestilential_. No fact in the history of medicine has been the subject of more general and anxious enquiry, or of more keen controversy, than that of the origin of Epidemic diseases, and of the immediate cause of their propagation and decline; and although the field has been industriously explored by the most able and experienced philosophers and physicians, the subject still remains involved in considerable obscurity; indeed, such different and even opposite views have been entertained upon the question, that writers have not even agreed upon the exact import of the terms employed in their descriptions, but each author appears to have acknowledged a latitude of acceptation according to the particular theory which he has been anxious to support. The term EPIDEMIC ought in strictness to signify a disease which, as we have before stated, attacks numbers at or nearly the same time, without any reference to the cause from which it may have originated, or be diffused; but this construction has been considerably limited by many writers, who have applied it, exclusively, to denote those maladies which derive their origin solely from a noxious state of the atmosphere, and which are incapable of being communicated from one person to another; distinguishing diseases of the latter kind by the epithet _Contagious_.[170]

A similar ambiguity involves the terms CONTAGION and INFECTION, which are regarded by many authors as synonymous and convertible expressions, signifying the matter or medium by which certain diseases are communicated from one individual to another; while others, on the contrary, confine the term _Contagion_, as its etymology would suggest (_con_ and _tango_) to the communication of those diseases, which can only be transferred by actual contact of the sick, or of the palpable matter from their bodies; and apply the term INFECTION to the communication of those other diseases which spread by means of invisible effluvia. Now we would observe in the first place, that according to the most correct rules of philology, the import of words is not necessarily to be deduced from their derivation, but frequently to be either assumed conventionally according to a definition, or to be adhered to in the sense affixed to it by established usage; in the next place, the distinction which the etymologist would thus establish between the terms _Contagion_ and _Infection_ is not accurate, for in every case of infection, there is an actual contact of morbific matter, whether visible or not, and some diseases, as the _Small-pox_, are communicated both by palpable matter and by imperceptible effluvia.[171] Our best writers[172] have therefore agreed to consider the word _Contagion_ as expressing the morbid poison, or the means of transferring a disease, and _Infection_ as denoting the operation of the poison, or the act of communication of the disease. Dr. _Hancock_[173] very justly observes that in almost all the best Latin writers on medicine, _Contagium_, and _Contagio_ are the only words used to denote the effluvia, or emanations arising in disease, which are capable of infecting the sound, whether _mediately_ by the air, or by infected goods called _Fomites_, or _immediately_ by the touch: to limit contagion therefore to the propagation of disease by contact only, would be to disallow the more comprehensive use of the term in our best authors.

Those diseases which occur among the inhabitants of a particular region or place, are said to be ENDEMIC, or ENDEMIAL; thus _Intermittent_, and _Remittent_ fevers, which are occasioned by the miasmata of marshy grounds are _Endemic_ in low countries: the _Goitre_, or bronchocele, connected with that peculiar intellectual imbecility which characterises the CRETIN, is ENDEMIC among the Alps; in these instances, some _local_ cause obviously exists which produces the disease in the respective districts: the disease therefore belongs to the districts, and affects those that reside there, but extends no farther; and hence the distinction between _Endemic_ and _Epidemic_ diseases is obvious and important.

Having thus determined the value and signification of the terms, as used by different authors, and which must necessarily be introduced on the present occasion, we come to the consideration of that momentous question, which has excited so keen an interest in the political, mercantile, and medical circles of the present age, and which has been farther heightened by the late reference of the subject to the Legislature—WHETHER EPIDEMICAL DISEASES BE EVER PROPAGATED BY CONTAGION?——It is impossible to imagine a question of deeper importance; it not only involves the general safety of mankind, but is intimately connected with the commercial welfare of nations; for, as it has been truly observed, if these diseases be not contagious, Quarantine laws are absurd, and commerce needlessly burthened: the establishment of lines of circumvallation, guarded by cordons of troops, and the appointment of armed police to confine the diseased to their habitations, among their yet uninjured friends and relatives, are perverse and barbarous regulations, and the fears thus unnecessarily induced are as dangerous to the community as they are pernicious in their effects to the common feelings of humanity. But, on the other hand, if the doctrine be true to the extent our most accurate observers have deliberately reported, municipal restraints cannot be too rigidly enforced, nor can the conduct of those speculative theorists be too severely reprehended, who, by lulling the ignorant and unwary into false notions of security, not only deprive them of the obvious means of safety, but render them even the intermediate agents of disease and death, to their families and neighbours.

The term PLAGUE has been applied to various epidemical diseases attended with great mortality; and we find in the Hebrew, Arabic, Greek, Latin, and in all the other ancient languages with which we are acquainted, words having a corresponding import, and signifying, generally, an extensive and destroying malady. It appears, however, that these raging epidemics have consisted of different maladies in different instances, having been sometimes the _Remittent Fever_ originating from marsh effluvia, and sometimes the true _Plague_, modified by circumstances and situations: even in our own times some doubt has existed respecting the true nature of the different pestilences which have raged in Europe.[174] The term PLAGUE is now more correctly limited in its acceptation, and it is exclusively understood to denote “_a contagious and malignant fever, which is accompanied by buboes and carbuncles_.”[175] As the nature of maladies of high degree virtually includes that of all minor affections, the Plague, in its relations to the doctrine of Contagion, may on this occasion be considered as the representative of every species of Typhus; while for the same reason the Pestilential Epidemic which is generally known by the name of the YELLOW FEVER may be regarded as including in its history all the subordinate varieties of _Bilious Remittents_.

It is scarcely necessary to observe that it would be as foreign to the object of this work, as incompatible with the plan of its execution, to enter into any historical details upon the subject of Pestilence, or upon the controversies which have been carried on respecting the manner in which Epidemics are propagated; nor is such a review now required to complete the medical literature of the subject; for Dr. _Hancock_[176] has lately supplied the chasm by a very able critical examination of the principal writers which have appeared at different times on the subject of Epidemic and Pestilential diseases, and to this work we beg to direct the reader’s attention, although as medical Jurists we are not disposed to concur in those half measures of _Quarantine_ which the result of his researches might incline some to adopt. We may state in general terms, that the concurrent testimony of different ages and countries sanctions the opinion that Plague arises from specific contagion—is communicated _immediately_ by contact,[177] or _mediately_ by the agency of infected goods[178] (_Fomites_); and that its progress may be arrested by a vigilant system of Police, cutting off every communication between the infected and the healthy. The contagious nature of Plague has however been denied, and many thousand lives have paid the forfeit of the delusion; it was thus during the Plague of Marseilles in 1720, that in consequence of the physicians in Paris having decided against its contagious nature, a plan, in conformity with that opinion was adopted in the treatment of the sick, and _Sixty Thousand_ people fell victims to the disease in the space of seven months. A similar prepossession induced the faculty of Sicily to declare the Plague which ravaged Messina in 1743, _not_ to be contagious, but the loss of _Forty-three Thousand_ lives gave a practical refutation to the hypothesis.

In our own times, a work characterised by singular arrogance and sophistry, has appeared from the pen of Dr. _Charles Maclean_,[179] the object of which is to shew that “a belief in the contagious nature of the Plague constitutes one of the most destructive errors in the whole circle of human opinions;” in the very commencement of this work he betrays an ignorance which is not uncommonly associated with that species of unbecoming confidence, which so strikingly characterises the writings of this author. “It is unequivocally ascertained,” says he, “that the doctrine of contagion, as the cause of epidemic diseases, was unknown to the ancient physicians; by whom these maladies were expressly attributed to the air:” and he then proceeds to state that the prevalent notion of contagion being an inherent quality of pestilential fever, is derived from a Popish plot of the sixteenth century; an assertion which has not even the merit of originality[180]. _Hippocrates_ and _Celsus_ do not certainly take any notice of the subject of contagion; but _Aristotle_, _Thucydides_, _Livy_, _Virgil_, _Lucretius_, _Ovid_, _Galen_, and _Arctæus_ all contain passages which prove most unequivocally their belief in the contagious nature of Epidemics; the limits of this work will not allow us to be prodigal in illustrations, we must therefore refer the reader to a very interesting memoir upon the subject by Dr. _Yeats_. (_Journal of Science and the Arts._) With respect to the work of Dr. _Maclean_ we would further observe, that he has artfully brought together all those facts which are calculated to afford any support to his doctrine, while he has so ingeniously tortured those that make against it, as to disguise their force and true bearings. Mr. _Tully_[181] has lately furnished the public with some striking instances of the total want of candour with which Dr. _Maclean_ pursued his researches, but the fact is that he determined on the Plague being _non_-contagious long before he ever visited those countries where it prevails; and hence all the advantages which he possessed, and the opportunities of investigation which his residence in the Levant afforded, have not contributed one fact to the elucidation of the subject, but have, on the contrary, thrown additional obstacles in the path of the honest inquirer.—What can be the organization of that man’s mind, who goes into the Greek Pest Hospital at Constantinople, and, according to his own statement, is attacked on the fifth day after he entered it, with the Plague, and yet continues to assert that the malady is _non-contagious_?

To Dr. _Maclean_, however, the medical world are certainly greatly indebted, for had not his _Researches_ been published, it is more than probable that the question of Contagion would not have received the many able elucidations which the experience and science of this country has since afforded it:[182] nor would an opportunity have occurred by which the most eminent physicians, and those practically acquainted with the malady, could have delivered a _viva voce_ opinion before a Committee of the House of Commons.[183] It may be thought extraordinary that a work, so unphilosophical as that to which we allude, should have created so strong a public sensation; but when we consider the eagerness with which mankind seize any circumstance, however weak, that points towards the removal of burdens under which they are suffering, we shall cease to feel surprised that a work of such bold, and promising assertions, should have soon found its way, through commercial channels, to the table of the Privy Council; nor is it strange that government, naturally anxious to relieve commerce of unnecessary burdens, should have instituted an inquiry to ascertain whether Quarantine regulations were actually necessary, and how far they might be relaxed with safety to the country. A report was accordingly requested from the College of Physicians; who, in order to meet the wishes of the government, appointed a committee from their own body to undertake the requisite examination; it is almost unnecessary to state the conclusion at which they arrived; their report is virtually included in that of the Committee of the House of Commons (for which _see Appendix, p. 185_.) With respect to the contagious nature of those fevers which have lately committed their ravages in these dominions, especially in Ireland, the proofs appear to be so satisfactory and evident, that we question the stability of that man’s mind who can doubt, and still more who can deny it. But although the question of contagion as relating to certain epidemics appears to be firmly established, we are by no means insensible to the difficulties and anomalies with which the subject is embarrassed; several of which are so important in relation to Police legislation, that we feel it necessary to offer a few observations upon each of the following questions, and which appear to include all the leading points of controversy.

I. _Are all Epidemic Fevers contagious?_

II. _Does the matter of Contagion require the aid of a certain state of the air (Pestilential constitution) to give effect to its powers, and propagation; and to what causes is the decline and cessation of a contagious pestilence to be attributed?_

III. _Can filth and animal putrefaction generate contagion?_

IV. _Can a Fever produced by fatigue, unwholesome food, &c. be rendered contagious in its career by animal filth, impure air, &c._

I. _Are all Epidemic Fevers contagious?_

It has been maintained by Cleghorn[184], Hamilton[185], Clark[186], and Fordyce[187], that _all_ fevers are naturally contagious; a position which, if less mischievous in its tendency, is equally erroneous in principle, as that which rejects the doctrine of contagion altogether. It is most probable that none of those fevers which are produced by marsh _miasmata_ are ever propagated from one individual to another by contagion; ample evidence of this truth is afforded by the writings of Dr. James _Lind_[188], where it appears that the most malignant and fatal species of fever have been contracted on shore, but which had never been communicated to the ship’s company. Dr. Trotter[189] also says, “in a voyage down the coast of Guinea, in the Assistance, in the year 1762, we had scarcely a man indisposed. We wooded and watered at the island of St. Thomas, and with a view to expedition, a tent was erected on shore, in which the people employed on these services were lodged during the night. On the middle passage every man who slept on shore died, and the rest of the ship’s company remained remarkably healthy.” For similar facts see _Medical Observations and Inquiries, vol._ iv, _p. 156_; _Clarke’s Observations on the Diseases which prevail in long Voyages to Hot Countries, p. 124_; and _Dr. Robertson’s Meterological and Physical Observations, &c. 4to, p. 32, 33, and 98_. And in connection with this subject, it becomes our duty to offer a few remarks upon the nature of that peculiar Epidemic, called THE YELLOW FEVER.[190] Its doubtful affinity with bilious intermittent and remittent fevers, has furnished a subject for keen controversy; and while its contagious quality has been pertinaciously maintained by one set of Physicians,[191] it has been as warmly denied by others. The malady has raged repeatedly as an Epidemic in the United States, and was considered for some time as _Endemic_ to that country. “The interests of humanity,” says Dr. Rush,[192] “are deeply concerned in the admission of the rare and feeble contagion of the yellow fever, and Philadelphia must admit the unwelcome truth sooner or later that the yellow fever is engendered in her own bowels; or she must renounce her character for knowledge and policy, and perhaps with it, her existence, as a commercial city.” In the year 1811, one of the most acute and learned works[193] that has graced the literary annals of our country, appeared from the pen of Dr. _Bancroft_, in order to prove that the yellow fever is no other than an aggravated form of that multifarious disease, which is well known to result from the action of those exhalations commonly denominated _marsh miasmata_, and that, like all fevers from that cause, it possesses _no contagious_ quality; but he adds, “it is indeed probable that the _miasmata_ of particular towns, mostly either sea-ports, or accessible to shipping, in which the aggravated forms of yellow fever have almost exclusively prevailed in the West Indies, the United States of America, and the Southern parts of Europe, differ from the common exhalations of marshes, in _quality_, as well as degrees of concentration: but whether this difference be occasioned merely by the greater heat which, at such times, commonly exists in these towns than in the surrounding country, and which may exalt the powers of such _miasmata_, by perfecting the decompositions which produce them, or whether it be partly the result of a difference in the organized matters decomposed by that excessive temperature, I am unable to determine.” We must refer the reader to Dr. _Bancroft’s_[194] work for farther information upon the subject; and we have little doubt but that, after an attentive consideration of the rich store of facts and observations which this author has presented to us, he will be led to a conclusion in favour of the general non-contagious nature of this malady, although we by no means intend to deny that it never assumes the character of a contagious Epidemic. Sir Gilbert _Blane_, whose testimony upon this subject must necessarily have great weight, has made the following observations. “In that district of the globe in which are situated the islands called the Great and Little Antilles, also in the continental regions round the gulph of Mexico, and along the coast of South America, the fevers which prevail there have certain symptoms peculiar to themselves, and not occurring in any other part of the globe, except when carried from thence, which they sometimes have been, particularly to the sea-port towns of North America, and the South of Europe.

The peculiarities alluded to, consist in a universal yellowness of the skin, and the vomiting of a dark coloured fluid, resembling the grounds of coffee.

Sir Gilbert _Blane_ considers, that the yellow fever may proceed from three remote causes, very distinct in their nature. The _First_, is that which consists in the exhalations of the soil, such as produce the endemic fevers in other countries and climates, and prevailing chiefly in autumn. The _Second_, is that which consists in foul air engendered on board of ships on long voyages, in circumstances of personal filth, and want of ventilation, frequently combined with hardships and privations, and is the same with those stagnated and corrupted effluvia of the living human body, which produce typhus fever. The _Third_ cause is that in which there is no suspicion of foul air, either from the soil, or from the living human body, but merely from circumstances of intemperance, fatigue, and insolation, affecting chiefly, and almost exclusively, new comers from temperate and cold climates.[195] The first of these, he says, may be distinguished by the appellation of the _Endemic_; the second, by that of the _Pestilential_, _Malignant_, or _Typhus Icterodes_; the third, by that of _Sporadic_.[196] And Sir Gilbert adds, that it has been for want of making this distinction, and from classing all these three under one head, that the endless and acrimonious controversies regarding contagion have arisen. There is not the least suspicion in any rational mind, that the endemic and sporadic species are contagious, this is only alleged with regard to the pestilential or typhus species; but it may be asked what proof there is that this last is specifically different from the other two? To this Sir Gilbert answers, that it is a matter of history; that besides the endemic and sporadic fevers prevailing at all times in the above-mentioned regions, there has occurred at various intervals of time, a raging epidemic,[197] which could be traced to the arrival of a ship or ships in the circumstances above recited, and at a season in which the ordinary malignant fevers do not prevail. To those engaged in researches upon this obscure subject we would farther recommend the perusal of a work lately published by that veteran in the cause, DR. JACKSON, on the subject of the Andalusian Fevers[198]; in which he examines the evidence in support of the supposed introduction of the yellow fever into Spain, and of its real or supposed propagation by contagion. The importation of the disease from a foreign country is credited by the authorities and mass of people in Spain, though the author thinks it has never been proved by evidence, or even brought to reasonable probability; the events of the year 1820 stripping the assumption of every claim to credence, as no attempt has been made to trace the disease, in that instance, to foreign origin. The belief universally obtains through Spain, that the disease is personally contagious; that is, capable of propagation from individual to individual, by contact or proximity; Dr. Jackson, however, considers that this opinion, confidently as it is maintained, is invalidated by authentic facts and records; but we must proceed to the consideration of our second problem, viz:

II. _Does the matter of Contagion require the aid of a certain state of the air, (“Pestilential Constitution of the atmosphere.”) to give effect to its powers, and propagation; and to what causes are the decline and cessation of a contagious Pestilence to be attributed?_

It was laid down as a fundamental principle by Dr. _Mead_, that a “_corrupt_” state of the air is indispensable to the diffusion of a plague; and although we are at this day unable to ascertain in what this vitiated state of the air consists, yet there are too many stubborn facts on record to allow us to deny, or even to doubt the necessity of its existence for the propagation of a contagious fever. How are we otherwise to explain the fact of a malady like the plague, which, although it shall never be entirely absent from a city, rages only epidemically and fatally at particular times? Thus it is collected from the bills of mortality of London, that, although there were but four great plagues in this metropolis during the seventeenth century, _viz._ the years 1603, 1625, 1636, and 1665, (in the two first of which about 35,000, and in the last 68,000 died) yet that there were but three years, from the commencement of the bills of mortality in 1603 until 1670, which were entirely free from the plague.[199] _Diemerbroeck_ also remarks, that whenever the plague has been excited out of its proper season it has not spread; a fact corroborated by _Russel_ and _Hodges_.[200] It seems probable that a particular state of the atmosphere, in its relation to temperature and humidity, is one of the conditions, subordinate perhaps, of this “pestilential constitution.” Dr. _Russel_ has observed that, in _winter_, when infected persons have come to places about Aleppo, some of whom have died of the disease in the families where they lodged, the distemper was not by such means propagated. Dr. _Pugnet_ says that the susceptibility of a person for the contagion of plague is greatly increased by a moderately warm and moist atmosphere; and Dr. _Bancroft_[201] has adduced some observations made by himself in proof of the influence of atmospheric heat and cold, in both their extremes, in rendering the contagion dormant. The singular career which a pestilential epidemic runs, having a beginning, height, and decline, can only be explained on the idea of the pestilential constitution of the air undergoing corresponding changes; and it is probable that the return of a plague is a revival of infection that has been latent, or dormant, until a particular state of atmosphere rouses it to action.

III. _Can Filth and Animal Putrefaction generate Contagion?_

We have already made an allusion to some of those facts that must assist us in the solution of this problem, under the head of Public Health (_see page 98_.) “The putrefaction of animal matter,” says Dr. _Bancroft_,[202] “is but a natural separation of organized bodies, previously held together by animal or vegetable life, by which there can be no chance, nor even possibility of thus generating any thing so wonderful, and so immutable as contagion; which resembling animals and vegetables in the faculty of propagating itself, must, like them, have been the original work of our common creator, and must have been continued in existence by the energies of a living principle, exerted successively in the different bodies, through which it has been transmitted from one generation to another; as well might we revive the forever exploded doctrine of equivocal generation, and believe, as formerly, that insects and reptiles are the offsprings of mere corruption, as to believe that a substance so analogous to them, in that most mysterious and essential function of self-propagation, could originate from that cause, or from any operation of chemical agencies alone.” We are not disposed to believe that the specific contagion of typhus can thus be directly generated, but may not typhus be excited by causes independent of contagion, and having been once generated become contagious? If, says Dr. _O’Brien_, the opinion that contagion is the _only_ source of typhus be true, we are at once reduced to the necessity of supposing that all contagious diseases were derived from Adam himself. It is an indubitable fact that the plague has always first appeared, and established its head quarters, in the filthiest parts of crowded, ill constructed, and large cities. _Blackmore_ remarks that the impurity and filth, connected with the galleys and slaves at Marseilles, filled the air with offensive smells easily perceivable by those who passed along the adjoining shore; and in 1720 the plague broke out there; in London, Dr. _Heberden_ also observes, that the plagues of 1626 and 1636 broke out at Whitechapel, a part of the town which abounded with poor, and with slaughter-houses. The importance of cleanliness is also shewn by the exemption of Oxford[203] and other places from pestilential diseases, as recorded by different authorities, in consequence of regulations for ensuring it; while the late dreadful increase of contagious fever in Cork sufficiently demonstrates the evils which arise from deficient ventilation and accumulated filth, and to which causes Dr. _Barry_, in his report, ascribes the awful afflictions to which we allude. _Erasmus_, in a letter to _Franciscus_, Cardinal _Wolsey’s_ physician, ascribes the sweating sickness, which was a species of plague, in a great measure to the incommodious form, and bad exposition of their houses, to the filthiness of the streets, and to the sluttishness within doors.[204] That particular species of typhus, which is called from its origin the _Jail Fever_, is evidently the offspring of filth and deficient ventilation. The Lord Chancellor _Bacon_ has made the following observation upon this subject: “The most pernicious infection next to the plague is the smell of the jail, where prisoners have been long, close, and nastily kept; whereof we have had, in our time, experience twice or thrice, when both the judges that sat upon the jail, and numbers of those who attended the business, or were present, sickened upon it, and died.”[205] Dr. Bancroft, who has dwelt very fully upon the subject of jail fever,[206] considers it as a species of typhus, the contagious essence of which is not generated, but merely lighted up by the filth of prisons.

IV. _Can a Fever produced by fatigue, unwholsome food, &c. be rendered contagious in its career by animal filth, impure air, &c.?_

We have no hesitation in answering this question in the affirmative, and our opinion will receive ample support from the history of the different epidemic fevers which have raged in our own times. Dr. _Prichard_[207] is persuaded that a contagious fever may have a spontaneous origin, that is, that the ordinary sources of derangement may occasion such a kind of disordered action, that the excretions or effluvia from the subject of it shall, under certain circumstances, produce a specific effect upon another. The truth of this position is amply confirmed by comparing the different phenomena which, according to Dr. _Prichard_,[207] are displayed by the epidemic in St. Peter’s Hospital, and the Bristol Infirmary; in the former house the medical wards are very small, having been originally destined, not for the accommodation of the sick, but for the abode of paupers; in consequence of which it became necessary to place the beds very near to each other, and to crowd the rooms with patients; under these circumstances the disease was manifestly contagious, while in the well-ventilated Bristol Infirmary, notwithstanding the indiscriminate manner in which the patients with fever were scattered through the wards, not a single instance occurred of its propagation. The Dublin Reports of Drs. _Grattan_[208] and _Crampton_[209] are equally satisfactory upon this question; atmospheric vicissitudes, intemperance, fatigue, suppressed perspiration, the depressing passions, &c. when excessive, will induce fever; and under these circumstances, the accumulation of animal effluvia, in filthy, crowded, and ill-ventilated dwellings, will generate contagion, which of course accelerates the march of the epidemic.

Having thus, as briefly as the nature of the subject would allow, enumerated the several questions to which the doctrine of contagion has given rise, we now proceed to the consideration of those legislative enactments, by which different nations are enabled to ward off the calamities of Plague. It is generally admitted, that the plague has not originated in this country; and therefore, from its insular situation, the infection can only be introduced through the medium of ships. Egypt, the Levant, and other parts of the Mediterranean are seldom free from it, and hence it is chiefly through the medium of the commerce with these countries that the importation of the contagion is to be apprehended. To guard against this danger, the different governments require all ships sailing from any of these parts, to bring certificates from the magistracy of the port they last came from, declaring their country free from any contagious distemper: these are called “BILLS OF HEALTH,” and are distinguished as _clean_ or _foul_, as the place they come from may be healthy or infected. On the production of these bills it is determined by the Guardians of Health (in England, Custom-house officers) whether the vessel shall be permitted to trade or communicate, or, as it is technically expressed, be permitted to _pratique_ till she has performed a QUARANTINE[210] of as many days as the superintendants may in their judgment or caprice be pleased to direct. A period of _forty_ days (hence the term _Quarantine_) has been generally fixed upon as the maximum of this seclusion, on the expiration of which it is customary abroad for physicians, accompanied by some members of the board of health, who are frequently merchants of the place, to examine the ship’s crew; and strict search is made on board, by persons appointed to see whether the number of sailors and passengers corresponds with those mentioned in the bills of health, and if any difference appears it will be difficult in any country to obtain admission to _pratique_, or at least it will be necessary to perform a full quarantine from the time of such detection.

Such commodities however as are _deemed_ incapable of retaining or communicating the infectious taint, as corn, &c. are permitted to be landed immediately by the mariners themselves, at proper places provided for that purpose, which are generally called LAZARETTOS, some of which in the principal ports of the Mediterranean are of very considerable extent, and as to division and appropriation appear so well calculated for their intended purposes as to be worthy of imitation. The best praise of their regulation is indeed to be found in their success; for though twelve months never elapse but that the plague rages in some part of the Levant and of the coasts of Barbary, the infection has seldom reached the coasts of Italy, France, or Spain. Terrible exceptions may be adduced to this remark, yet they may generally be traced to some clandestine violation of the Quarantine laws, rather than to their imperfect execution, as in the recent instance of the plague[211] at Malta in 1813, when the cupidity of a poor cobler in smuggling some materials from a Greek or Turkish vessel in the harbour of Valetta, introduced the pest into the island, to which he and his family fell the first victims.

The objections to the Quarantine laws, as executed in the Mediterranean, arise more from the indiscriminate and vexatious application of them to cases for which they were not provided, than from any general relaxation or want of vigilance in the officers appointed to enforce them: occasionally indeed the courtesy of these gentlemen will deem a governor or wealthy noble to be incapable of communicating infection, though from the most suspected port, while a whole fleet of merchantmen, arriving with clean bills from the Atlantic, will be detained for some weeks, _ex abundanti cautela_, without admission to _pratique_; from such instances travellers who have been annoyed, and merchants who have been injured, have imbibed a very general prejudice against these laws; nor have they wanted learned authorities to contend with them for their abolition, on the grounds of their abstract inutility in preventing infection (admitting the contagious nature of the disease which some have denied), and the injurious tendency to the general interests of commerce.

We have drawn the readers attention to the regulations of the Mediterranean, because we are convinced that if there be any value in the system it must be made complete in all its parts, and ought to be as much the subject of international as of local legislation; unless all countries, and more particularly those in more immediate contact or communication with the infected regions, concur in the restrictions, it will be vain to enforce them in Great Britain. In the instance of the plague, the want of precaution among the Mahomedans allows the disorder to spread from Constantinople to every part of Greece, from Smyrna to the whole African coast of the Mediterranean, while the European shores are free from its calamitous progress.

By the statute 26 _Geo._ 2, all vessels, persons, and goods, coming from places from whence the plague may be brought, were subject to perform Quarantine in such places as shall be appointed by his Majesty in Council,[212] and notified by proclamation in the London Gazette; this and all other acts relating to Quarantine were repealed by the 45th _Geo._ 3, _c._ 10, by which these laws were more extensively regulated, certain duties are levied for the maintenance of the system, and until they are paid according to the tonnage (see 26 _Geo._ 3, _c._ 60) of the vessel, she cannot be permitted to clear inwards; it is enacted that all ships and vessels, as well his Majesty’s ships of war as all others, coming from or having touched at any place, from whence his Majesty in Council shall have adjudged and declared it probable that the plague or any other infectious disease highly dangerous to the health of his Majesty’s subjects, may be brought; and all ships, vessels, or boats, which may have received any person, goods, letters, &c. from such vessels, &c. shall be considered liable to Quarantine within the meaning of the Act, and to any order of the King in Council, published by Proclamation in the London Gazette. “And whereas certain goods and merchandize are more especially liable to retain infection, and may be brought from places infected into other countries, and from thence imported into Great Britain or the islands aforesaid,” his Majesty is enabled to make special orders as to any particular goods or vessels liable to any alarming or suspicious circumstances. In cases of emergency, the privy council, or any three of them, may make such orders as they shall think necessary; and this not only as to ships and merchandize, but generally in case of infectious disease appearing in Great Britain. This clause deserves very particular attention, for though we have been happily free from any very severe visitation of contagious disease, yet there are instances where local regulations would have been highly expedient, at least to the extent of directing the destruction of the clothes and beddings of persons dying of highly infectious disorders, and securing the purification, fumigation, and ventilation of their rooms or houses; some doubt may indeed arise whether the words of the clause are sufficiently strong to warrant such measures, “and in case of any infectious disease or distemper appearing or breaking out in Great Britain or the islands aforesaid, to make such orders, and give such directions, in order to cut off all communication between any persons infected with any such disease or distemper and the rest of his Majesty’s subjects, as shall appear to the said Lords of his Majesty’s privy council, or any three or more of them, to be necessary or expedient;” nothing is here said of goods.

The Quarantine Laws may also from time to time be mitigated if necessary by the Privy Council. Sec. 12.

Ships liable to quarantine must make signals on meeting other ships within four leagues of the United Kingdoms, or the Islands of Guernsey, &c. under penalty of £200. Sec. 14.[213]

Masters of vessels coming from abroad must give an account to the pilot of the places at which they have laden or touched. Sec. 16. And must answer inquiries made by an appointed officer of the customs, on oath or not as he may be required. Sec. 18.

Pilots are bound to take vessels liable to quarantine into appointed places. Sec. 17. And if the vessel arrive at any other place, she may be forced to repair to that appointed. Sec. 19.

Any Master having touched at infected places, &c. and omitting to disclose the same, or to hoist prescribed signals,[214] shall be guilty of felony without clergy. Sec. 19.

Commanders must deliver up bills of health, manifest log book and journal, under penalty of £100. Sec. 20.

Masters quitting vessels or permitting others to quit them, or for not conveying vessels to the appointed places, subject to a penalty of £500. Persons leaving vessels before they are discharged are subject to a penalty of £200, and six months imprisonment; and any person may use necessary force to compel them to return on board, on their attempting to quit such vessel. Sec. 21.

A penalty of £200 on improperly landing goods from a vessel which has performed quarantine in any foreign Lazaret. Sec. 22.

Disobedience or refractory behaviour in persons under or liable to quarantine, or persons having intercourse with them, may be punished by force, and persons escaping from, or refusing to repair to, a lazaret vessel or place appointed, are guilty of felony, without benefit of clergy. Sec. 23. Persons so escaping may be seized by any one for the purpose of being carried before a Justice of the Peace, who by warrant may direct their conveyance to the vessel or lazaret from which they have escaped, or confine them in such place of custody, (not being any public jail,) and under such restrictions as to having any communication with any other persons, as may in the discretion of such Justice of the Peace or Magistrate, (_calling to his aid, if he shall see fit, any Medical person_,) appear to be proper. Sec. 25.

Goods liable to quarantine shall be opened and aired, as directed by order in council. Sec. 29, 31.

Forging certificates is felony without benefit of clergy. Sec. 30.

In case it shall happen that any part of _Great Britain_, _Ireland_, or the Isles of _Guernsey_, _Jersey_, _Alderney_, _Sark_ or _Man_, _France_, _Spain_, or _Portugal_, or the _Low Countries_, shall at any time be infected with the plague or any other such infectious disease or distemper as aforesaid, it shall be lawful for his Majesty to prohibit and restrain all small boats and vessels under twenty tons, from sailing out of any port until security be first given by the Master in a bond of three hundred pounds, conditioned not to touch at such places; penalty for sailing without giving such security, forfeiture and twenty pounds per man. Sec. 32.

Publication in the London Gazette to be sufficient notice. Sec. 33.

Offences, not being felonies or subject to specific punishments, may be determined before two Justices, who may fine not exceeding fifty pounds, or imprison not exceeding three months. Sec. 38. Offences may be tried in any county. Sec. 42. The general issue may be pleaded to actions brought against persons for any thing done in execution of this act, which action must be commenced within two months, and treble cost shall be recovered on judgment for the defendant. Sec. 43.

For other points see the act itself, which is further extended by the 44th Geo. 3. c. 98; by this act the signal for the plague being actually on board, is appointed to be a flag of eight breadths, divided quarterly of black and yellow by day and two large lanthorns one over the other at the main-topmast-head by night. Sec. 1.

The Privy Council may order ships coming from America or the West Indies when the Yellow Fever, &c. prevails there, to go to certain places without being liable to quarantine, unless it shall be afterwards specially ordered. Sec. 6. For other regulations, see the Stat.

In Ireland the system of quarantine is regulated by the 40th Geo. 3. c. 79, the general outline of which is the same as in the English acts, but with some additional severity towards health officers neglecting their duty, the infliction of which may occasionally be necessary.[215]

It now only remains for us to offer a few remarks upon the practical question to which all our preceeding researches have naturally tended: Whether the regulations of Quarantine might not be relaxed and modified without increasing the hazard of infection? Before this subject can be seriously entertained, or any concessions safely granted in favour of the mercantile interests, it must be upon the perfect understanding, and unreserved admission, that the maladies against which they are directed, are in the most extensive signification of the term, CONTAGIOUS. No claim to indulgence or exemption can be admitted, on the ground of professional scepticism, as it relates to the subject of infection, for notwithstanding the remarks of Dr. _Adams_,[216] and the _male sedula nutrix_ of Ovid, of which he so sarcastically reminds us, we are still unphilosophical enough to maintain that “_one cannot be too cautious_.”

To those who consider our long immunity from plague a sufficient guarantee for our future security, it may be observed, that although the Island of Malta is, from many causes, much more exposed to this infection than Great Britain, yet it was free from plague for _one hundred and thirty-eight_ years, a period which we must remember has been exceeded in our own case by only sixteen years; at the same time we are ready to admit with a periodical writer, that Quarantine regulations might be amended, and rendered less inconvenient to commerce; they might for instance be modified as to the required period of segregation. Dr. _Harrison_, in his examination before the select committee of the house, stated a fact in connection with this subject, that deserves particular notice: that while passengers, who have made a long voyage, are liable to perform quarantine, couriers, who come in the least possible time, are not under such restrictions.

MEDICAL POLICE.

With the exception of the Quarantine laws, which on account of their superior importance have been treated in a separate chapter, and some incidental, rather than direct, aids which the subject receives from the law of nuisances, &c. there is but little of that regulation in England which can be strictly denominated MEDICAL POLICE.[217] We have already expressed our opinion upon the apparent inattention of our Government to this branch of legislation, and have considered it as the necessary consequence of the cleanliness and good order by which this nation is so pre-eminently distinguished; there are, however, some very material points, the value of which is acknowledged by local adoption, while no good reason has been adduced against their general extension; these are the examination of drugs and medicines by the Censors of the College of Physicians; the Irish Health Act; and the weekly Bills of Mortality.

It has been remarked from the Bench, that there might be particular reasons for taking especial care of the health of the Capital; granting this to be true, it still appears extraordinary that no measures of precaution should have been adopted to prevent or restrain the sale of factitious, impure, spoilt, or deleterious drugs or medicines, in any part of England, excepting only the city of London; while it is evident that from various causes, such as greater and more rapid sale, general competition, superiority of purchasers, and facility of detection, frauds or negligences are less likely to happen in the metropolis than in the provinces; where the slowness and uncertainty of demand may in some degree excuse the purchase of originally inferior articles from the wholesale dealers, and will generally account for the subsequent deterioration of the best drugs. It would occupy too much of our reader’s time and attention, and very possibly be considered as irrelevant to the object of the present work, if we were to enter into any details upon this occasion, and to enumerate the different medicinal substances which, although originally genuine, become in a short space of time worse than useless, or whose properties by the operation of local causes are changed or destroyed.[218] This is a loss upon which the country practitioner must calculate; but that the inconvenience and danger may not fall upon his patients, it is surely expedient that some authority should be established to examine and destroy, as in London, all spoilt or deteriorated medicines; for this purpose, provincial censors might be nominated by the College of Physicians, either from among their own members, or from the most eminent Licenciates, whose duty it would be to make frequent visits for the purpose of examination, in market towns; and in all other places, whenever they were called upon by any sufficient occasion, or requisition.

Another equally important restriction is requisite as well in London as in the provinces, against the sale of poisonous, or highly dangerous drugs, to unknown persons. A week scarcely elapses without the relation in the public journals, of some awful case of murder, suicide, or fatal accident; surely this is sufficient to shew the necessity of some new enactment on the subject. We are willing to admit that it would be difficult to frame an act which should comprehend and class all the several articles that negligence, folly, or malice might pervert to the destruction of human life: the desired effect would, however be best attained by giving to some competent authority the power of publishing and enforcing, from time to time, such regulations and restrictions as might be found practically necessary. _Arsenic_, for example, is of all others, the poison most easy to procure, under various pretences; while from its exceeding virulence, insipidity, and other qualities, it is most fatally adapted to the horrible purposes of murder. The general pretext for its purchase is that of the intended destruction of vermin; now if mixed with one hundred times its weight of tallow it would be equally, if not better adapted to the avowed object, while at the same time it would be thus rendered an inapplicable instrument for the perpetration of crime. On other occasions it might be combined with some highly nauseous and colouring material; but it ought never to be sold in a pure form, except to persons who are well known, and whose ordinary trades and occupations justify their application for a supply. _Laudanum_, or _Opium_, from its nauseous taste and smell, is seldom applied to the purpose of murder, except by suicides; against the sale of these drugs it would be most difficult to guard, although many fatal results might have been averted by vigilance and judicious precaution; the Chemist or Apothecary cannot with propriety refuse it, but he is not bound to supply more than a single dose to a stranger, and that should be mixed with some appropriate vehicle, in order to prevent the designing applicant collecting from shop to shop a quantity sufficient for any criminal purpose. And we are of opinion that the master, or principal assistant, should be alone allowed to dispense dangerous medicines. The careless substitution of one drug for another must be also considered as a prolific source of mischief; this frequently happens in the shop of the chemist or druggist, where it is least excusable; at other times it occurs from the negligence of some individual, who leaves a poisonous substance in company with articles that are intended for ordinary use. _Oxalic acid_, to which so many deaths have been lately attributed, may serve as an instance; in its external characters it bears such a resemblance to those of common _Epsom salts_, as readily to deceive the ordinary observer; and as both substances very frequently become articles of retail custom, they are usually kept ready for sale, in parcels of an ounce each, a practice which renders a careless substitution an error of common occurrence; the employment of a particularly coloured paper, that of _yellow_ for instance, if used universally as a wrapper for poisonous articles, upon which also the word _poison_, or _dangerous_, might be legibly printed, would to a certain degree guarantee the safety of the purchaser; but as danger might notwithstanding be apprehended in the night, a paper of a distinct texture might afford additional security; the peculiar roughness of the Dutch filtering paper which is manufactured from woollen would answer such a purpose. The labels of phials should in this particular correspond with the wrappers of dry substances; if the distinction were once generally adopted by the various dealers, it would soon become notorious to indifferent individuals, and many fatal accidents might be prevented, without the aid of legislative enactment.[219]

The College of Physicians, or a mixed Committee of the Medical Bodies, might be best entrusted with the powers of regulation to which we have alluded; while to obviate the jealousy to which such an extension of their authority would be likely to give rise, a clause might be introduced, that no regulation should be binding, until sanctioned by a certain number of the judges, as is done in some other cases of inferior jurisdictions.

It would be also expedient to establish some summary jurisdiction by which fumigation, whitewashing, and other cleansing operations, and the burning of infected clothes, might be effected without delay, whenever the prevalence of a contagious disease required it. The Irish Health Act (59 _Geo._ 3. _c._ 41, _see_ APPENDIX, _p._ 164) might also be extended to such places in England as by authority should be, from time to time, declared infected.

BILLS OF MORTALITY.

Bills of Mortality were instituted in the city of London in the year 1592, in order to collect and exhibit the number of deaths, and to record the progress, diffusion, and decline of the epidemic malady, with which the city was at that time infested; but upon the cessation of the plague, the bills were discontinued. It appears, however, in consequence of the recurrence of the sickness, that they were reestablished by public order in 1603, and on the 29th of October in the same year, being the first of the reign of King James, the establishment of a regular series of weekly bills of death commenced. In 1606 the number of christenings, as well as that of burials, appeared in the returns, and although diseases and casualties were recorded as early as 1604, no public notice was made of either before the year 1629, when another important improvement took place—that of distinguishing between the sexes. In 1728 the ages[220] of all who died from under two years of age and upwards were regularly specified, and this may be considered as the last[221] improvement which the bills of mortality have received; for notwithstanding the rapid march of those arts and sciences with which every branch of statistics is so intimately connected, the contents, arrangement, and language of these bills have remained unchanged. The collating, printing, and publishing these documents, as far as they relate to the metropolis, are placed under the superintendance and jurisdiction of the ancient corporation of parish clerks:[222] a power which it is hardly necessary to observe is wholly inadequate to the accomplishment of the medical, political, and moral objects which these bills are calculated to promote. As to the nature of the diseases of which persons die, much error must necessarily arise from the absurd manner in which the investigation is conducted, as the following statement will clearly demonstrate.—The churchwardens of each parish within the bills of mortality, appoint two old women to the office of _Searchers_, who, on hearing the knell for the dead, repair to the sexton of the parish, to learn the name and residence of the deceased. They demand admittance into the house to examine the body, in order that they may see that there is nothing suspicious about it, and _judge_ of what disease the person died, which they report to the parish clerk. The regular charge for the performance of this office is _fourpence_ to each _searcher_; but if an extra gratuity be tendered, they seldom trouble the domestics with any examination. We entirely agree with Dr. _Burrows_[223] in thinking that the office, as at present filled, should be entirely suppressed; and the attestation of a properly qualified medical practitioner, upon actual knowledge of the disease of which the person died, or upon inquiry and examination of the body, should be substituted. Were competent persons only appointed to report, the nomenclature[224] and classification of diseases, in which there has been little variation since the origin of the bills, would consequently be reformed; and we should then derive from them the elucidation of many important and dubious medical points, as 1. _The causes of many diseases, and their affinity to one another._ 2. _The rise, situation, increase, decrease, and cessation of epidemic and contagious diseases._ 3. _The means of guarding against their extension and effects._ 4. _The comparative healthiness of different countries and places, climates, and seasons._ 5. _The influence of particular trades and manufactures on the human constitution._ Such are the medical advantages which would arise from correct and enlarged bills of mortality. Dr. William _Heberden_[225] has made the following observations upon this subject: “People have fallen into two opposite errors concerning the Bills of Mortality; some have considered their authority as too vague to be made the foundation of any certain conclusions; and others have built upon this foundation, without sufficiently considering its real defects. Both parties are equally wrong. The agreement of the bills with each other does alone carry with it a strong proof that the numbers under the several articles are by no means set down at random, but must be taken from the uniform operation of some permanent cause. While the gradual changes they exhibit in particular diseases, correspond to the alterations which in time are known to take place in the channels through which the great stream of mortality is constantly flowing. That there are, however, many and very great imperfections in these bills cannot be doubted; for, _First_, the births include only those who are baptized according to the rites of the church of England, by which means all Jews, Quakers, and the very numerous body of dissenters are omitted. _Secondly_, of those who are of the church of England, a very large proportion are either buried in the country, or in burial grounds adjacent to London, but without the bills; the burials also in St. Paul’s Cathedral, in Westminster Abbey, the Temple, the Rolls, Lincoln’s Inn, St. Peters in the Tower, the Charter-house, the several hospitals of the metropolis, and other places which are not parochial cemeteries, are for that reason omitted; besides which, the great parishes of Mary-le-bone, and Pancras, have never yet had a place in the bills of mortality. _Thirdly_, many abortives and still-born are noticed in the deaths, but not in the births.” Dr. _Heberden_ proceeds to examine the fluctuation observable in certain diseases, and which he considers under two distinct points of view; the first comprehending their variations in different years; the second those which take place in different parts of the same year; we must refer the reader for much curious matter, and useful information, to his work above cited. Many of the provincial bills of mortality are more perfect than those of London, a superiority for which we are indebted to the eminent physicians who have resided in those districts, in example of which we have only to refer to those of Chester by Dr. _Haygarth_,[226] of York by Dr. _White_,[227] while from the returns of Northampton Dr. _Price_ computed his celebrated tables of the probabilities of life, and in a curious memoir read before the Royal Society he advances strong reasons for believing that there is a prodigious preponderancy in favour of the country above the most healthy cities.[228] We shall conclude this subject with observing, that the metropolitan bills establish beyond all doubt the gratifying fact of the superior healthiness of London, notwithstanding its increase of population, in the present day to what it was during the seventeenth century, when the deaths exceeded the births, by more than one half of the whole number; while in the present age, the sum total of births exceeds that of deaths; the same improvements have taken place also in the provinces, and we are borne out by the concurrent testimony of our best political arithmeticians, in the assertion that the value of human life is increasing in Great Britain, while the diminution in the number of certain diseases, and the total extinction of others, offer the surest proofs of the general amelioration that has taken place in our national habits and manners.

Medical Jurisprudence.

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