PART III.

INTRODUCTION.

WE have at length arrived at the third, and most important division of our work, comprehending the consideration of the principal pleas of the crown, three of which, RAPE, ARSON, and MURDER, are pre-eminently the subjects of Medical Jurisprudence.

It is in the investigation of these crimes that the law derives its greatest support from the lights of science, and that the profession of physic demonstrates the value and extent of her judicial utility. Let the physician then, who approaches the tribunal of justice in order that he may promote by his science the due execution of the laws, fully appreciate the heavy responsibility of his situation; let his evidence be so distinguished by its dispassionate and inflexible character, and his opinions be so matured by study, and fortified by experiment, as not only to ensure for himself the respectful attention of the court, but to afford a practical illustration of the just pretensions and importance of the liberal profession which he represents. The observations which we have already offered on the subject of medical evidence (page 153) render it unnecessary for us to enlarge on this occasion upon the various duties it involves; and yet we cannot forbear from again pressing upon the attention of all those, who are likely to be called upon to assist the ends of justice, the great importance of preparing their minds by preliminary studies; let it be remembered, that it is not during the hurry and anxiety of a coroner’s inquest, nor amid the tumult of popular prejudice and execration, that a medical practitioner should, for the first time, adopt the physiological or chemical opinions by which he is ultimately to decide upon the life of a fellow creature; and yet it would be folly to conceal the unwelcome truth, that such a fact has not unfrequently occurred on several of the more interesting trials, upon which the medical witness has evinced any thing rather than a well grounded acquaintance with the philosophical bearings of the question; and while he has endeavoured to conceal his ignorance under the veil of technical phraseology, he has artfully sought to shun the embarrassments it might create by a display of bold and sweeping assertions, alike hostile to the discovery of truth, and the administration of justice. There is yet another evil to which those who are but imperfectly informed on the question at issue are peculiarly exposed; their opinion is always liable to be warped by extraneous circumstances, and they are in consequence involuntarily apt to bend facts to their first view of the case under consideration, to seize on a few circumstances which suit their preconception, and to neglect or distort those which have a contrary tendency; while, on the other hand, the practitioner who has prepared his mind by study and experience, will, with equal diligence, seek every avenue to truth, and will suspend his conclusions, until the result of each investigation be fairly before him; in delivering to the Court the opinion to which his researches have led him, he will be ever careful to distinguish between the duties of an advocate, and those of an unbiassed witness; he will state whether the conclusion at which he has arrived amounts to certainty, or only to high probability, and will separate the doubts and difficulties with which the question has been encompassed by the sophistry of counsel, from those that belong intrinsically to the subject, and are inseparable from it. And it may be proper on this occasion to observe that the medical practitioner is not to withhold an opinion because it may be involved in doubt; he is to furnish the best evidence which the nature of the case will allow, and when he duly performs this task, he may feel proud in the consciousness that he occupies an important station in the administration of justice; and that he conscientiously discharges a duty, without the due performance of which, the laws of his country would be inoperative.

ARSON.

The charge of _Arson_[602] may occasionally become the subject of scientific research, and the accused individual receive an honourable acquittal at the hands of the chemical philosopher; by whose interposition, the conflagration, unjustly imputed to malice, may be proved to have originated from a spontaneous process of decomposition.

_Spontaneous Combustion_ may be defined, _an inflammation occasioned by the re-action of different bodies upon each other, at the ordinary heat of the atmosphere, without the contact or approach of any other body previously raised to a high temperature_. This definition necessarily excludes that class of substances which evolve gaseous matter of a highly inflammable nature, but which requires the approach of an ignited body to kindle it.

The subject of _spontaneous combustion_ has attracted the attention of many very eminent chemists, and an extensive series of experiments has been instituted in several different countries for its complete investigation, the results of which have thrown considerable light upon the causes which operate in the production of the phenomenon, as well as upon the nature of the substances most liable to such an accension, and the particular circumstances which are essential to its occurrence. The following may be considered as the principal sources from which it may originate, viz.

I. FRICTION.

II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES, as that of _hay_, _oatmeal_, _roasted bran_, _coffee_, _&c._ _rags in paper-mills_, _&c._

III. CHEMICAL ACTION. _Accension of oils, by various animal, vegetable, and mineral substances; accension of vegetable matter by concentrated acids; ignition of lime by the affusion of water; ignition of pyrites._

We shall proceed to consider these subjects more in detail.

1. FRICTION. The kindling of machinery, when not sufficiently greased, from the friction of its various parts, has occurred too frequently to require much illustration, although the immediate cause of the phenomenon involves in its consideration so many recondite points in the theory of Caloric, as at present to elude our attempts at explanation; we must therefore rest upon it as an ultimate fact, and be satisfied with availing ourselves of the advantages to which a knowledge of it may conduce. The original inhabitants of the New World, throughout the whole extent from Patagonia to Greenland, procured fire by rubbing pieces of hard and dry wood against each other, until they emitted sparks, or kindled into flame; some of the people to the north of California produced the same effect by inserting a kind of pivot in the hole of a very thick plank, and causing it to revolve with extreme rapidity: this fact will explain how immense forests have been consumed, from the violent friction of the branches against each other by the wind.

II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES. In order to establish the process of fermentation, the presence of water appears indispensable; we accordingly find that in all the cases of spontaneous combustion which have originated from this source, the substances have either been in themselves imbued with moisture, or they have possessed the power of absorbing a considerable portion of water from the atmosphere. The firing of hay, when stacked in too moist a condition, is a striking exemplification of this fact; the same circumstance occurs from great accumulations of turf, flax, and hemp, heaps of linen rags in paper-mills, &c. provided a sufficient portion of moisture be present to excite the process of fermentation, and the consequent evolution of heat. _Oatmeal_, from the extreme avidity with which it imbibes water,[603] and the heat which is generated by the absorption of it, is necessarily liable to spontaneous combustion; the following well authenticated case[604] may serve as an illustration of this fact: “A gentleman removed with his family from Glasgow to Largs, in May last, and shut up his house, which was not re-opened until the end of August; the house stands on the side of a steep declivity, so that the kitchen which is in the back part, though sunk considerably below the level of the street, is entirely above ground, and is well lighted and ventilated. In an opening of the wall, near the kitchen fire-place, originally intended it is supposed for an oven, there was placed a wooden barrel bound with iron hoops, and filled with _oatmeal_. This meal, which had heated during the absence of the family, at last caught fire, and was totally consumed, together with the barrel which contained it, nothing remaining but the iron hoops and a few pieces of charcoal.” In some cases torrefaction increases the propensity of vegetable substances to spontaneous combustion; _coffee_, roasted _French beans_, _lentils_, &c. are of this description. Some years ago a great fire broke out in the village of _Nauslitz_, which is said to have been occasioned by the application of _roasted_ bran to the necks of some cattle in a wooden cow-house; in consequence of which, _M. Rude_ an apothecary at _Bautzen_, instituted some experiments, by which he found that if rye-bran, roasted until it acquires the colour of coffee, be wrapped up in a linen cloth, it will in a short time take fire. _Montet_ relates[605] that animal substances may also, under certain circumstances of decomposition, kindle into flame; and he tells us that he had himself witnessed the spontaneous accension of a dunghill. We do not believe that the phosphoric appearances that so frequently accompany the process of putrefaction, especially that of fish, are ever connected with actual combustion. Woollen stuffs are said to have taken fire spontaneously; it is related for instance that the article manufactured at Cevennes, and which bears the name of “_Emperor’s Stuff_,” has thus kindled of itself, and burnt to coal; we are, however, very doubtful whether such a material is liable to this process, unless it be impregnated with oily matter; and this doubt will receive considerable strength from the facts which we shall hereafter enumerate.

III. CHEMICAL ACTION. This proves a very frequent cause of _spontaneous combustion_; and there is perhaps no substance that has so frequently performed the part of an incendiary as _fixed oil_, especially when of a drying nature, which with its various accomplices from the animal, vegetable, and mineral kingdoms, has in darkness and secresy consigned ships, houses, and manufactories to the flames. The following interesting occurrence is related in the _Edinburgh Philosophical Journal_: About twenty-five pieces of cloth, each of which contained nearly thirty ells, were deposited upon wooden planks in a cellar at Lyons, on the eighth of July, 1815, in order to conceal them from the armies which then over-ran France; _in the manufacture of the cloth 25lbs of oil were used for a quintal of wool, and the cloth was quite greasy_, each piece weighing from 80lbs to 90lbs; the cellar had an opening to the north, which was carefully shut up with dung, and the door was concealed by bundles of vine-props, which freely admitted the air; on the morning of the 4th of August an intolerable stench was perceived, and the person who entered the cellar was surrounded by a thick smoke, which he could not support; a short time afterwards he re-entered with precaution, holding a stable lanthorn in his hand, and he was astonished to perceive a shapeless glutinous mass, apparently in a state of putrefaction; he then removed the dung from the openings, and as soon as a circulation of air was established, the cloth instantly took fire. In another corner of the cellar lay a heap of stuffs which had been _ungreased_ and prepared for the fuller, _but they had suffered no change_. In this case the agency of the oil was sufficiently evident. In June, 1781, a similar occurrence happened at a wool-combers in a manufacturing town in Germany, where a heap of wool-combings, piled up in a close warehouse seldom aired, took fire spontaneously; this wool had been, by little and little, brought into the warehouse, and from want of room, been piled up very high and trodden down; that this combed wool, to which rape oil mixed with butter had been added in the combing, burnt of itself, was sworn to by many witnesses; one of whom affirmed that ten years preceding a similar fire had happened among the flocks of wool at a clothiers, who had put them into a cask, where they were rammed down hard for facility of carriage, and that this wool burnt from within outwards, and became quite a cinder. Cotton goods, in which linseed oil had been spilt, have burnt in a similar manner, and there is reason to attribute to an accident of this kind the recent loss of a merchant-vessel homeward bound from the East Indies. Many years since, several fires broke out at very short intervals, in a rope-walk, and in some wooden houses in St. Petersburgh; in none of which instances could the slightest suspicion of wilful firing be entertained; there was lying in the rope-walk, where the cables for the navy are made, a great quantity of hemp, amongst which a considerable portion of oil had been carelessly spilt, and the article was accordingly declared to have been spoilt; in consequence of which it was purchased at a low price, and being heaped up together, it had given rise to the conflagration; the inferior inhabitants had also purchased parcels of this spoilt hemp, for closing the chinks, and caulking the windows of their houses, a fact which offered an easy explanation of the origin of the fires that occurred amongst the houses. It was moreover reported that at the above-mentioned rope-walk coils of cable had been frequently discovered so hot, that the people were obliged to separate them to prevent farther danger. In the year 1757, as _Montet_ reports, sail-cloth, _smeared with oil and ochre_, took fire in a magazine at Brest. In the spring of 1780, a fire was discovered on board a frigate lying in the road off Cronstadt, which, had it not been timely extinguished, would have endangered the whole fleet. After the most severe scrutiny no cause of the fire was to be found, and strong surmises existed that some wicked incendiary had occasioned it. In the month of August in the same year, a fire broke out at the hemp magazine in St. Petersburgh, by which several hundred thousand _poods_[606] of hemp and flax were consumed; the walls of this magazine are of brick, the floors of stone, and the rafters and covering of iron; it moreover stands alone on an island in the Neva, on which, as well as on board the ships lying in the river, no fire is permitted. In the same year a fire was discovered in a vaulted shop of a furrier; it merits notice that in these shops, which are all vaulted, neither fire nor candle are ever allowed, and the doors are all composed of iron: at length the cause of the conflagration was discovered; it appeared that on the evening previous to the fire the furrier had purchased a roll of new cere cloth, (an article much in use for covering tables, counters, &c.) and had left it in his vault, where it was discovered almost consumed. After these several instances of spontaneous combustion, we shall relate the celebrated case which led to a satisfactory explanation of their origin, and induced the philosophers of different countries to confirm the Russian Report by an extensive series of well devised experiments. In the night of the 21st of April, 1781, a fire was seen on board the frigate _Maria_ which lay at anchor, with several other ships, in the road off the island of Cronstadt; the fire was, however, soon extinguished, but the severest examination failed in extorting any satisfactory explanation of the manner in which it had arisen; the garrison were threatened with a scrutiny that should cost them dear, and were placed under circumstances of the most cruel suspense; in the midst of this confusion, the wisdom of the Empress gave a turn to the affair, and, in the following order to _Count Chernichet_, pointed out an effectual method to be pursued by the Commissioners of Inquiry. “When we perceived, by the report you have delivered in of the examination into the accident that happened on board the frigate _Maria_, that, in the cabin where the fire broke out, there were found parcels of matting tied together with packthread, in which the soot of burnt fir-wood had been mixed with oil, for the purpose of painting the ship’s bottom, it came into our mind that at the fire which happened last year at the hemp warehouses, the following cause, amongst others, was assigned; that _the fire might have proceeded from the hemp being bound up in greasy mats, or even from such mats having lain near the hemp_; therefore neglect not to guide your farther inquiries by this remark.”

As it appeared upon juridical inquiry that, in the ship’s cabin where the smoke first appeared, there lay a bundle of matting containing Russian lamp-black prepared from fir-soot, moistened with hemp-oil varnish, which was perceived to have ignited sparks at the time of the extinction of the fire, the Russian Admiralty gave orders to institute various experiments with a view to discover whether such a mixture, folded up in a mat, would kindle spontaneously; a number of experiments was accordingly performed, and the result established the fact beyond the reach of controversy. The Russian Admiralty having thus satisfied the public with respect to the self-enkindling property of this compound, transmitted an account of their investigation to the Imperial Academy of Sciences, at whose desire _M. Georgi_ repeated the experiments, by which he not only confirmed the report of the Admiralty, but extended the information which it contained, and deduced an important generalization of its views.

It sometimes happens that in boiling flowers and herbs in oil, which occurs in several pharmaceutic operations, these herbs after being taken out, dried, and pressed, inflame spontaneously; care therefore should be taken, when such substances are thrown aside, that they are not heaped up near other combustible bodies.

Amongst the mineral substances capable of exciting the inflammation of oils, an ore of Manganese, known by the name of the _Black Wad of Derbyshire_, holds a distinguished place; when this substance is pulverised, and moistened with a little linseed oil, it will in the space of an hour take fire, and become red hot, like burning small-coal; it is supposed that the Pantheon, in Oxford-street, was destroyed by the inflammation of a compound of _Derbyshire wad_ and oil, used in painting the scenery.

In these cases of combustion, oxygen seems to act an important part, and by combining with the hydrogen of oil to excite a chemical action which may be considered the immediate cause of the phenomenon. Saw-dust, and other vegetable matter, has been occasionally excited into flame by the action of the concentrated mineral acids; we have been lately informed by _Mr. Parkes_, that a fire took place some years since in his chemical manufactory, in consequence of the leakage from a carboy of nitric acid. Several instances are also on record of fires having been occasioned by the sudden slacking of quicklime; _Theophrastus_ relates an instance of a ship which was loaded in part with linen, and in part with quicklime, having been set on fire by water that was accidentally thrown over the latter, and that the vessel was in consequence entirely consumed. In the _Journal de la Haute Saone_ there is an account of the burning of a barn, one of the partitions of which being wood had caught fire from a quantity of quicklime, intended for the repair of the premises, having been carelessly thrown against it. In this country a similar accident happened in the last winter at Edmonton, near London; the flood, consequent upon a heavy fall of rain, made its way among the quicklime in a bricklayer’s premises, which took fire and were burnt.

There still remains for notice another source of spontaneous burning,—the ignition of _Pyrites_, and that of cinders from the furnaces of glass-works, from exposure to air and moisture; it was in this manner that the ship _Ajax_ was supposed to have been consumed, from the spontaneous combustion of coal, abounding in _Pyrites_.

HUMAN COMBUSTION.

BEFORE we quit the consideration of _spontaneous combustion_, it becomes our duty to offer a few observations upon a subject which appears to be nearly allied to it, and which certainly belongs to medico-judicial inquiry,—_the combustion of human beings_; the phenomenon, however, has been erroneously designated as _spontaneous_, for in every recorded instance, the approach of some burning body, as that of the flame of a candle, or an ignited pipe, appears to have been necessary for its occurrence. “It can no longer be doubted,” says _Dr. Gordon Smith_, “that persons have retired to their chambers in the usual manner, and in place of the individual, a few cinders, and perhaps part of his bones, were found.” Upon this occasion we confess ourselves more sceptical; the phenomenon is contrary to all our preconceived views, and must therefore require more than ordinary testimony for its support, although we are ready to admit, that upon any other less miraculous subject, evidence even less powerful than that produced on the present occasion, would be deemed amply sufficient. _Plouquet_, in his _Literatura Medica_, enumerates twenty-eight cases. _Dr. Trotter_, in his Essay on Drunkenness, adduces a considerable number of instances of persons addicted to the immoderate use of spirits, having undergone such combustion. In Paris, an essay written exclusively on this subject was published by _Pierre Aimée Lair_, entitled “_Essai sur les combustions humaines, produites par l’abus des liq. spirit: Paris 1808_;” and the journals of various nations[607] present us with a great variety of examples, all of which, with some slight shades of difference, appear to have been attended with the same phenomena: a fact which we freely admit affords internal evidence of their authenticity. On the other hand it deserves notice, that amidst all these cases, _only one_[608] is related where the person survived for a short time, and gave an account of the manner in which he was _struck_ with the fire; in none of the others has it ever been known in what way the fire commenced, or proceeded. The following are the circumstances in which all the recorded cases so singularly concur.

1. The persons who have suffered this species of combustion have been long accustomed to drink spirtuous liquors.

2. These persons have been generally females, and advanced in years.

3. The body has not burned _spontaneously_, but accidentally, in as much as it required for its inflammation the contact or approach of some burning body, or that of electric matter.

4. The extremities of the body, such as the feet and hands, have in general escaped.

5. The fire has little injured, and sometimes not at all, those combustible things that were in contact with the body when it was burning.[609]

6. The combustion of these bodies has left a residue of greasy and fœtid ashes and fat, that were unctuous, and extremely offensive and penetrating.

Various theories have been proposed for the explanation of this singular phenomenon; and we may here observe, that if the bodies in question were actually found consumed, in the manner described, it is quite impossible to suppose that they were burnt by ordinary means; nor, even admitting that they had been rubbed over with a highly combustible substance, is the explanation less difficult; at a period when criminals were condemned to expiate their crimes in the flames, it is well known what a large quantity of combustible materials was required for burning their bodies. A baker’s boy, named _Renaud_, being several years ago condemned to be burnt at Caen, two large cart loads of faggots were required to consume the body; and at the end of more than ten hours some remains were still visible. In this country the extreme incombustibility of the human body was exemplified in the case of Mrs. King, who having been murdered by a Foreigner, was afterwards burnt by him; but in the execution of this plan he was engaged for several weeks, and after all did not succeed in its completion.

2. RAPE.

RAPE is the unlawful and carnal knowledge of a woman by force and against her will: a ravishment of the body and violent deflowering her, which is felony by the common and statute law. _Co. Litt._ 190, 124.[610] Formerly it was the law (especially in case of appeals of rape) in order to prevent malicious accusations, that the woman should immediately after, “_dum recens fuerit maleficium_,” go to the next town, and there make discovery to some credible persons of the injury she had received: and afterwards acquaint the high constable of the hundred, the coroners and the sheriff with the outrage. _Glanv. l._ 14. _c._ 6: _Bract. l._ 3. _c._ 28. 1 _Hales P. C._ 632. Afterwards by statute _Westm._ 1. 3. _Ed._ 1. _c._ 13. the time of limitation was extended to forty days. At present there is no time of limitation fixed, for it is punished at the suit of the king, and the maxim of law takes place, that, _nullum tempus occurrit Regi_. The appeal of Rape (for there were formerly several appeals beside that of murder) has been long obsolete; see _Jac. Law Dic. tit. Appeal_, and is now abolished by the statute 59 _Geo._ 3, _c._ 46:[611]. But though there is no time limited, a jury will seldom give credit to a stale complaint. In Scotland it is said the limit was twenty-four hours; the King against Colonel _Charteris, Maclaurin’s Crim. Cases, p._ 66. 69. And in a medical point of view it is yet more necessary that examination should be immediate, many collateral proofs might be observed on an early enquiry, all signs of which would be obliterated in a few hours.[612] This remark applies as well to the supposed criminal as to the sufferer; both should in all possible cases be subjected to immediate surgical examination; the case related by Sir _Matthew Hale_, (_P.C._) furnishes an instance where an innocent man might have been saved from a malicious prosecution, to the hazard of his life, by this precaution. _Foderè_, in his work on Medical Jurisprudence, vol. 4, p. 363, mentions two cases from _Zacchias_, where the falsehood of an accusation was determined by a comparative inspection of both parties. See also the same work, and vol. 4, p. 365. 370.[613]

As this is a crime of which the accusation is peculiarly easy, and the disproof proportionably difficult, more than ordinary acuteness is necessary for its investigation; and this can be best exercised while the event is recent, and before one or other of the parties can have time, deliberately, to frame the account of their injuries or innocence: here, as in some cases of murder, to which we shall have occasion to allude, the medical practitioner is likely to be one of the earliest witnesses to the conduct of the accuser (if not also, of the accused), immediately after the alleged transaction; to him therefore the Court will look, not only for surgical, but also for general observations. The following are among the first that will occur.

1st. What is the age, strength of body and mind, situation in life, and general character of the accuser?

2d. The same of the accused.

3d. Had the parties any, and what previous acquaintance and intimacy?

4th. What external and obvious signs are there of violence?

5th. What surgical proof of coition, whether voluntary or violent?

6th. Is either party tainted by any, and what disease?

Time, place, and circumstances of the alleged offence.

A female infant, under twelve years of age, is in law deemed incapable of consenting to any act, much less to her dishonor; the carnal knowledge of such infant, whether she yield or not, is therefore virtually a rape; but whether, if the child be above ten years of age, it be also a felony, has been questioned: Sir _Matthew Hale_, 1 _P. C._ 631, was of opinion that such profligate actions, either with or without consent, amount to rape and felony, as well since as before the statute of _Queen Elizabeth_; but in his Summary, the learned judge appears to have altered his opinion. And the present practice is, that if the child be under ten years of age, then it is felony by the statute; but if she be above ten and under twelve, then it is no rape if she consented, but only a misdemeanour; _Stat. West._ 1 _c._ 13, see 1 _East’s P. C._ 435.

The abominable wickedness of carnally knowing and abusing any woman child under the age of ten years, in which case the _apparent_ consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion, is felony without benefit of Clergy, 18 _Eliz. c._ 7. It is lamentable to reflect that this crime should have been of very constant occurrence, and that it should not unfrequently have been committed by hypocrites, who had been entrusted with the education of their victims. In 1758, _John Forbes_, chaplain and schoolmaster of Dalkeith,[614] was convicted of a variety of libidinous acts, and also several rapes; and of his having carnal knowledge of a girl (one of his pupils) under twelve years of age. He was sentenced to be whipped and banished: the king’s advocate having “in respect it is known to him, that the evidence of the rape and carnal copulation will be proven only by girls under age,” restricted the indictment to an arbitrary punishment. _Maclaurin’s Crim. Ca. p._ 186. 755.

In 1777, the Rev. _Benjamin Russen_, a puritanical schoolmaster, was convicted and executed for a similar offence, on a girl under ten years of age. See 1 _East._ 438. _Ann Reg._ Many other instances might be cited, if it were necessary here to enforce upon the minds of parents, the expediency of minute enquiry into the habits of those to whom they entrust the custody of their children; and that they should not be deceived by professions of extraordinary sanctity.[615] Nature has this revenge against those who pretend exemption from her frailties, that to sustain their hypocricies, they fall into greater crimes than those which they profess to avoid; assuming to be more than man, they degrade themselves to beasts. See case of _Thomas Weir_ and _Jane_ his sister. _Maclaurin, C. C. p._ 1[616].

The crime of violating a child, under the age of consent, is the more scrupulously to be investigated, as one mode of proof is too frequently excluded; the testimony of the sufferer, if she be of very tender age, is not evidence; the greater therefore the atrocity of the offence, the greater is the difficulty of conviction; “If the rape be charged to have been committed on an infant under twelve years of age, she may still be a competent witness, if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie; nay, though she hath not, it is thought by Sir _Mathew Hale_,” (1 _P.C._ 634) “that she ought to be heard without oath, to give the Court information; and others have held, that what the child told her mother or other relations, may be given in evidence; since the nature of the case admits frequently of no better proof. But it is now settled, by a solemn determination of the twelve Judges; that no hearsay evidence can be given of the declarations of a child, who hath not capacity to be sworn; nor can such child be examined in Court without oath: and there can be no determinate age at which the oath of a child ought either to be admitted or rejected;” but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court. _Brazier’s case_, 1 _Leach’s Crown Law_, 237. _Powell’s case, ib._ 128. _Rex v. Travers_, 2 _Strange_, 700.[617]

A female may suffer violation at any age beyond absolute infancy; and the criminal records also furnish examples of brutality towards women of a very advanced period of life. As to the other sex, it may frequently be necessary to consider, at what age a boy may be capable, or an old man incapable, of committing the offence[618]. No determinate line can be drawn in either case, every instance must therefore rest upon its peculiar circumstances; this may however be allowed as a general rule, an attempt at violation is as extraordinary on the part of extreme youth, as its completion is improbable in advanced old age. Sir _M. Hale_ says (1 _P.C._ 631), “A male infant under the age of fourteen, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies _malitia supplet ætatem_; yet as to this particular species of felony, the law supposes an imbecility of body as well as of mind.” (4 _Bl. Com. c._ 15). This imbecility however is not universal, as we have previously shewn when treating of the age of Puberty.

After having determined the age, the most material examination is as to the relative bodily strength of the parties. It is at all times difficult to believe that in a mere conflict of strength, any woman of moderate power of body and mind, could suffer violation, so long at least as she retained her self possession,[619] All accusation therefore must be viewed with suspicion, if there be not a great disparity of strength in favour of the assailant. But this remark must not be construed to extend to cases, where by long continued violence, intimidation, or other circumstances, the woman is ultimately overcome; for her mental suffering may very considerably exhaust her power of resistance; “and it is no excuse or mitigation of the crime, that the woman at last yielded to the violence; and consented either after the fact, or before, if such consent was forced, by fear of death, or duress,” 1 _Hawk. Pl. c._ 41. _s._ 2. _Co. Lit._ 123. 1 _Hale’s Pl._ 629. The mental power of the sufferer is also to be regarded; if it were considerable, greater power of resistance is to be expected; the contrary, if the woman were weak and timid; and if she were actually imbecile, “A poor innocent that could not say him nay;” the crime varies little or nothing in atrocity from the violation of an infant. We are not aware that any such case is on record, though the late investigations into the conduct of some keepers of mad-houses leave reason to fear that such crimes have been committed.

The external signs of violence ought to be enquired into upon the spot on which the crime is said to have taken place, and that as soon after the alleged commission as possible; that the state of surrounding objects may be determined, as well as the incidental injuries, as bruises, strains, &c. which either of the parties may have received in the struggle; the state of their clothes must be examined, and every circumstance, however minute, carefully noted. The case of _Abraham Thornton_, Warwick assizes, 1817, and the subsequent proceedings on the appeal in the King’s Bench, _Easter T._ 1818, 1 _Bar. & Ald._ 405, will shew how material such examination may prove. Many of the observations to be made on cases of murder equally apply to those of rape; to them we must refer.

It is not necessary that the party violated should be proved a virgin[620] up to the period of the alleged crime; for it may be committed on the person of a married woman, or of a widow; nay more, the law extends its protection against violence to those who have been notoriously unchaste; even a common strumpet is still under the protection of the law, and may not be forced, (1 _Hawk. Pl._ 108.) and it is not certain that she had not repented, and determined to reform. Yet in the case of a person of notoriously bad reputation the strongest possible evidence would be required to warrant a conviction.

“A very considerable doubt having arisen as to what shall be considered sufficient evidence of the actual commission of this offence, it is necessary to enter into an enquiry which would otherwise be offensive to decency. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and consonant to those sentiments of laudable indignation which induced our ancient lawgivers to rank this offence among felonies, if all further enquiry were unnecessary after satisfactory proof of the violence having been perpetrated by the actual penetration of the unhappy sufferer’s body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice _Foster_ has expressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle, or for what rational purpose, any further investigation came to be supposed necessary, the books which record the dicta to that effect, do not furnish a trace.” 1 _East. P. C._ 436.

But on the other hand it must be allowed, that as this is a crime peculiarly easy in accusation, and difficult in defence; and as experience has shewn that prosecutions for this offence are very frequently resorted to from motives of revenge, malignity, disappointment, or extortion; the law has done well to extend its best protection to the possibly innocent, while it reserves its severest punishment for the truly guilty. It has occurred that there has not been the slightest ground for the accusation, that coition has never taken place, or been attempted by the party charged; the ordinary details are easily invented, and very colourable circumstantial evidence is soon obtained by the designing accuser; it is only in the minuter points of examination, to which the present practice gives occasion, that she will trip in her evidence; it is to that only that the accused can look for safety when a well forged tale, artfully compounded of truth and falsehood, is prepared for his destruction. Nor is it uncommon that a woman, who has actually consented to her own dishonor, should, on fear of discovery, or on disappointment, or from jealousy, prefer an accusation of rape against her seducer; here the main fact being true, the coition having taken place, and under the usual circumstances of secresy, the life of a prisoner depends on the mere question of consent or violence; the prosecutrix being the principal, or more generally, the only witness, it is essential that her testimony should be subjected to the most rigid examination, and that all external circumstances should be sought which might tend to confirm or destroy it.

The first and most material point to be proved is, that the venereal congress or coition has actually taken place; but as to the exact legal definition of this act, much difference of opinion has existed; for while some learned authorities have held, that penetration alone is necessary, others have maintained that the crime is not perfected without _emissio seminis_ also. Lord _Coke_, defining “_carnal knowledge_,” says, there must be _penetratio_, that is _res in re_; but the least penetration maketh it carnal knowledge.[621] So in the case of _Russen_ the schoolmaster, it was proved by two surgeons on behalf of the prisoner, and corroborated by four others who had examined the girl, that the Hymen (which _they_ considered an indubitable mark of virginity[622]) was whole and unbroken, and that the passage was so narrow that a finger could not be introduced. But it was admitted that this membrane, the existence or non-existence of which has been strongly controverted,[623] was in some instances situated an inch or an inch and a half beyond the Vagina;[624] and Mr. Justice _Ashhurst_, who tried the prisoner, left it to the jury whether any penetration were proved, for if there were any, however small, the rape was complete in law. The jury found him guilty, and he received judgment of death. But before the time of execution, the matter being much discussed, the learned judge reported the case to the other judges for their opinions, whether his direction were proper. And upon a conference, it was unanimously agreed by all assembled (in the absence of _De Grey_, C. J. and _Eyre_ B.) that the direction of the judge were perfectly right. They held that in such cases, the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity. It was therefore properly left to the jury by the judge; and accordingly the prisoner was executed. This decision appears to be well warranted by physiological observation, for as it is evident from the concurrent testimony of the highest medical authorities, that penetration _in vaginam_, is not necessary to conception, (_vide ante, p._ 203.) it would be absurd to contend that more were necessary to constitute Rape in law, than Generation in nature[625]. The utmost wrong to the one party, and the malignant intent of the other, have been complete; and the injury on the one hand, and malice on the other, are truer criteria for the administration of justice, than the dicta of lawyers, or the etymologies of schoolmen.

Lord _Coke_, (12 _Rep._ 37.) Sir _M. Hale_ in his Summary,[626] and _Hawkins P. C._ say that there must be both _penetratio_ and _emissio seminis_, and this appears to be the law of the present day, as decided by _Skynner_, C. B. _Gould_, _Willis_, _Ashhurst_, _Nares_, _Eyre_, and _Hotham_, against Lord _Loughborough_, _Buller_, and _Heath_, Lord _Mansfield_, though present, having given no opinion of his own; (a circumstance from which we might infer that he agreed with the minority). The argument is stated to have turned on the words _carnal knowledge_, to which the majority contended that _emissio seminis_ was absolutely necessary; if therefore it be true that certain Eunuchs[627] have power of erection, and consequently of penetration, they may morally ravish without incurring the punishment of Rape; for it is certain that they can have no _emissio seminis_;[628] or a man may have perpetrated all the more atrocious parts of his crime, and yet being interrupted in the least voluntary constituent of it, (_Hill’s_ case)[629] escape the well-merited vengeance of the law; while it is evident on the other hand, that the innocent victim has suffered, in body, mind, and reputation, as much, as if the crime had been legally completed.

But admitting the fact of emission to be necessary to the constitution of this crime, it remains to enquire whether the proof of this fact must be specifically made out in evidence, or whether it shall be presumed. In _Matthew Cave’s_ case (Oct. 1747) Chief Justice _Willes_ directed the prisoner to be acquitted for want of proof; but on the other hand, Mr. Justice _Foster_, _Clive_, J. (in _Blomfield’s_ case, A.D. 1758) _Bathurst_, J. and Baron _Smythe_ (in _Sheridan’s_ case, 8 _Geo._ 3) and _Buller_, J. (in _Harmwood’s_ case, Winchester Spring assizes, A.D. 1787) held the contrary; the latter case is the more worthy of consideration, as it was subsequent to the decision in _Hill’s_ case, and tried by one of the judges present at the discussion: “He said, in giving judgment, that he recollected a case where a man had been indicted for a Rape, and the woman had sworn that she did not perceive any thing come from him; but she had had many children, and was never in her life sensible of emission from a man:[630] and that was ruled not to invalidate the evidence which she gave of a Rape having been committed upon her.” 1 _East. P. C._ 440.

A Rape may have been committed on a child too young, or rather too incompetent, to be sworn; yet all the circumstances except this, may be proved by other witnesses; the infant alone could prove _emissio in vaginam_, for no subsequent examination, however immediate, would demonstrate the fact; or when a woman has fainted from the violence committed on her, or has been dishonoured in her sleep,[631] and through the agency of soporific drugs, or has died before the trial,[632] or been murdered by her ravisher, or has been driven to suicide by mental distraction; in all these cases of increased atrocity, this mode of proof becomes impossible.

But emission, it is said, may be presumed from penetration, _Duffin’s_ case, _June_, 1821,[633] but this is not physiologically true in all cases, and as we have stated, that it may be prevented by accident or interruption, so also emission is said to be evidence of penetration; but this is still less reasonable; for it is obvious that it may easily occur in the mere attempt; yet if reliance can be placed on the authorities already quoted,[634] emission alone without any material penetration, but only by injection _inter labia_, will be sufficient to impregnate, and therefore ought in reason to be considered sufficient to constitute the crime of Rape.

When it has been clearly proved that coition has actually taken place between the parties charged[635], the next point to be determined is, whether the woman consented or not. It is not necessary that we should here enter into a detail of all the circumstances which may throw light on this question; but one extraordinary dictum of the more ancient lawyers is worthy of observation, though there is little fear that the error will ever be sanctioned by any tribunal; yet as it is one of the evils of this crime that an unmerited stigma too frequently attaches to the sufferer by it, we are the more anxious to expose the vulgar idea, from which some ignorant persons might still infer that a woman had consented, because she had proved pregnant. “It is said by Mr. _Dalton_, that if a woman at the time of the supposed Rape do conceive with child by the ravisher, this is no rape; for (he says) a woman cannot conceive unless she doth consent. And this he hath from _Stamford_ and _Britton_, and _Finch. Dalt. c._ 160. see also 2 _Inst._ 190.[636] But Mr. _Hawkins_ (_P. C. c._ 41. _s._ 2), observes that this opinion seems very questionable: not only because the previous violence is in no way extenuated by such a subsequent consent; but also, because if it were necessary to shew that the woman did not conceive,[637] the offender could not be tried till such time as it might appear whether she did or not; and likewise because the philosophy of this notion may be very well doubted of. 1 _Hawk._ 108. And Lord _Hale_ says this opinion in _Dalton_ seems to be no law. 1 _H.H._ 131. (see also _Mss. Sum._ 334). That so absurd a notion as that conception evidenced consent, should in modern times have obtained amongst any whose education and intellect were superior to those of an old nurse is indeed surprising: at this day, however, facts and theory concur to prove that the assentation of nature in this respect, is no ways connected with volition of mind.” _Burn’s Just. tit._ Rape.

It is not necessary that the quantum of violence be extreme; it is sufficient that the offence is committed without consent; as where a woman is violated in her sleep, or during a fit, and query if she have been intoxicated for that special purpose, so that in truth she should have no rational power to consent or deny; or if the ravisher imposed himself in the night, on a married woman as her husband.

If a woman be compelled by violence to marry, and carnal knowledge be had by force, it is a rape, 1 _Hale_, 629; but as there is another remedy by _statute_ 3 _Hen._ 7. _c._ 2. for the forcible abduction, it is not necessary to enquire whether an indictment will lie, until the marriage be dissolved.

Nor will a subsequent marriage purge the offence: formerly “it was held for law, that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence, by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.” _Glanv. l._ 14. _c._ 6. _Bract. l._ 3. _c._ 28.; and this was reasonable while the prosecution was at the suit of the party by appeal, for as the king could not pardon, the power of remission might be properly left to the person injured; but that outrages might not be too readily compromised to the injury of public justice, the statue 6 _Rich._ 2 _st._ 1. _c._ 6. enacts, that the woman consenting, and the ravisher, be “disabled to challenge all inheritance, dower, or joint feoffment, after the death of their husbands and ancestors,” and the husband, or if she have none, the father or next of blood shall have the appeal[638]. But Rape having been made felony by _Stat. West._ 2. _c._ 34. and a new appeal given, the option of the woman is now taken away. It would have been unnecessary to have dwelt on this point if a vulgar error did not to this day prevail among the lower orders, that the punishment of Rape might be escaped by the connivance of the nominal prosecutrix, even after judgement.

The party grieved is so much considered as a witness of necessity in this, as in other personal injuries, that in Lord _Castlehaven’s_ case, who assisted[639] another man in ravishing his own wife, she was admitted as a witness against him. The same testimony was received in Lord _Audley’s_ case[640], 1 _East. P.C._ 444. 1 _Hall_, 629: 1 _St._ Tri. 387. 1 _Stra._ 633. _Hutt._ 116.[641]

And if the party be dead “_the deposition_ of the girl taken before the committing magistrate and _signed by him_, may after her death, be read[642] in evidence at the trial of the prisoner, although it was not _signed by her_, and she was under twelve years of age; provided she was sworn, and appeared competent to take _an oath_, and all the facts necessary to complete the crime may be collected from the testimony so given in evidence.” _The King against Fleming and Windham_, A.D. 1779. _Leach’s C.L. p._ 996. But if the declaration be made _in articulo mortis_, the party knowing herself to be dying, then it is not necessary that she be sworn, for the solemnity of the occasion is more than equivalent to the form of an oath, yet it is necessary that the party should have so much sense and discretion, that, if in sound health, she might have been sworn; for if she have not, then even the fear of death and judgment may not have a sufficient impression on her mind. The melancholy case of _Coleman_ will impress every reader with the importance of carefully noticing the circumstances of dying declarations, lest, by receiving as evidence the ravings of delirium, or at least the imperfect impression of impaired faculties, the innocent should be sacrificed to the errors of the dying; and this is the more necessary in those cases where the atrocity of the crime committed creates an immediate prejudice against every party charged or suspected.

END OF VOL. I.

--------------

William Phillips, Printer.

--------------

Footnotes

Footnote 1:

We have preferred this term, as best calculated to express, in the most comprehensive manner, the application of Medical Science to the purposes of the law. Different writers, however, upon this branch of knowledge, have employed various other terms for the same object, such as _Legal_, _Judiciary_, or _Juridical Medicine_; _State Medicine_, _Forensic Medicine_, _Medical Police_. The two latter terms, evidently cannot with propriety be considered synonimous with the former, for they are, strictly speaking, subordinate divisions. Some authors have objected to the term _Medical Jurisprudence_, as implying a knowledge of the laws relating to medical topics, rather than an acquaintance with the medical science necessary for the elucidation of legal subjects. As it is our peculiar object to unite the sciences, and to shew their mutual relevance, the title becomes most applicable to this, although it may have been improperly affixed to former works.

Footnote 2:

Chap. xiii. xiv.

Footnote 3:

So important was this act in the climates of Asia and Africa, that the Mahometan, if unable to obtain water in the Desert, was directed to cleanse his person by frictions with the sand.

Footnote 4:

See _Mill’s_ History of British India.

Footnote 5:

Collection of Voyages, that contributed to the establishment of the East India Company. Vol. i. part i. p. 182.

Footnote 6:

Aristotle proposed the same means of checking the increase of population. _Aristot._ de Republica. lib. vii. c. 16.

Footnote 7:

Institutes of Menu. ch. iii. 6 to 10.

Footnote 8:

Chap. xxii. verse 15.

Footnote 9:

See our Physiological Illustrations of Parturition, vol. i. p. 246.

Footnote 10:

Vol. i. p. 280.

Footnote 11:

Priests were among the earlier chemists, and it is asserted that they frequently instructed the accused, either from a conviction of his innocence, or from less disinterested motives, in some of those means of resisting the action of fire, by which modern jugglers are still enabled to amuse and astonish the vulgar.

Footnote 12:

_Bohn, John._ De Renunciatione Vulnerum, 1689, 4to. Amsterdam.

Footnote 13:

_Valentini._ Pandectæ Medico-Legales, 4to. Francof. 1702.

Footnote 14:

_Boerner, Fred._ Prof. Med. Wirtemburg, 1723. Several Dissertations.

Footnote 15:

_Kannegeiser._ Inst. Med. Leg.

Footnote 16:

_Alberti, Michael._ Prof. Med. Hall.—Systema Jurisprudentiæ Medicæ Schneeberg 4to. 1725. tom. vi.

Footnote 17:

_Zittman._ Medicina Forensis, 4to. Francofurti.

Footnote 18:

_Richter._ Decisiones Medico-Forenses.

Footnote 19:

_Teichmeyer._ Institutiones Med. Leg. 4to. Jenæ 1740.

Footnote 20:

_Stark._ De Medicinæ Utilitate in Jurisprudentia, 4to. Helmont, 1730.

Footnote 21:

_Hebenstreit._ Anthropologia Forensis, 8vo. Lipsiæ, 1753.

Footnote 22:

_Ludwig._ Institutiones Medicinæ Forensis.

Footnote 23:

_Fazellius._ Elementa Medicinæ Forensis.

Footnote 24:

_Plenck._ Elementa Medicinæ et Chirurgiæ Forensis.

Footnote 25:

Vorlesungen über die gerichtliche Arneywissenchaft, 3 v. 8.

Footnote 26:

Bibliothek der Staatsaryneikunde, _i. e._ Bibliotheca of State Medicine.

Footnote 27:

_Sikora._ Conspectus Medicinæ Legalis. Pragæ et Dresdæ, 1792.

Footnote 28:

_Loder._ Anfangsgründe der Medicinischen Anthropologie und der Staatsarzneykunde 8. Werm. 1793.

Footnote 29:

_Metzer._ System der gerichtlichen arzneywissenchaft. 8 Koningsb. 1793. Latin by _Keup._ 8 Stend. 1794.

Footnote 30:

_Muller._ Entwurf der gerichtlichen Arzneywissenchaft 2 vol. 8. Frank.

Footnote 31:

Collectio Opusculorum selectorum ad Medicinam forensem spectanium, curante. F. C. T. Schlegel, Leipsic 1789-1800.

Footnote 32:

Bibliothèque Medicale.

Footnote 33:

Quæstiones Medico-Legales, in quibus omnes materiæ medicæ quæ ad legales facultates videntur pertenere, proponuntur, pertractantur, resolvuntur. Tom. ix. Romæ 1621.

Footnote 34:

Systema Cautel. Medicar. p. 579.

Footnote 35:

“Istituzioni di Medicina Forense di _Giuseppe Tortosa_, Professore Medico della Commissione Dipartimentale di Sanita del Bacchiglione.” Vol. ii. Vicenza, 1809.

Footnote 36:

Traité de Med. Leg. par _Foderé_ Vol. I.

Footnote 37:

Traité de Med. Leg. T. i. Introduct. xxxiv.

Footnote 38:

Recueil periodique de la Société de Médecine, tom. vii, p. 343.

Footnote 39:

Les Lois eclairées par les Sciences Physiques; ou Traité de Médecine Légale, et d’Hygiène Publique, tom. iii. 8vo, Paris.

Footnote 40:

Médecine Légale, et Police Médicale, de _P. A. O. Mahon_, Professeur de Med. Leg. etc. avec quelques notes de _M. Fautrel_.

Footnote 41:

Cours de Médecine Légale, Theoretique et Pratique, de _J. J. Belloc_, Chirurgien à Agen, 1 vol. in 12mo.

Footnote 42:

Manuel d’Autopsie cadaverique Medico-Legale, &c. 2 vol.

Footnote 43:

Traité de Médecine Légale et d’Hygiène Publique, ou de Police de Santé, par _F. E. Foderé_, Docteur en Médecine.

Footnote 44:

Toxocologie Générale considérée, sous les Rapports de la Physiologie, de la Pathologie, et de la Medicine Légale.

Footnote 45:

Leçons faisant Partie du Cours de Médecine Legale, de _M. Orfila_. A Paris, 1821.

Footnote 46:

La Médecine Légale, relative a l’Art des Accouchemens, par _J. Capuron_, Docteur en Médecine, &c. Paris, 1821.

Footnote 47:

“Elements of Medical Jurisprudence, or a succinct and compendious description of such tokens in the human body as are requisite to determine the judgment of a Coroner and Courts of Law, in cases of Divorce, Rape, Murder, &c.; to which are added Directions for preserving the Public Health; by _Samuel Farre_, M.D.” 12mo. p.p. 139.

Footnote 48:

“Elements of Juridical or Forensic Medicine; for the use of medical men, coroners, and barristers,” by _George Edward Male_, M.D. Second edition. London, 1818. The first edition of the above work was published under the title of “Epitome,” in the earlier part of 1816.

Footnote 49:

See Vol. i. p. 125. _Note._

Footnote 50:

For a striking illustration of this truth we have only to refer the reader to the facts detailed in the note at page 102, in the first volume of the present work.

Footnote 51:

_Sir Thomas Browne_ was, upon this occasion, called upon by _Sir Matthew Hale_ to give his judgment; upon which he declared, that “he was clearly of opinion that the fits were natural, but heightened by the devil, co-operating with the malice of the witches, at whose instance he did the villainies,” and he added, “that in Denmark there had been lately a great discovery of witches who used the very same way of afflicting persons by conveying pins into them.” This relation of _Sir Thomas Browne_, says the historian of the case, made that good and great man, _Sir Matthew Hale_, doubtful; but he would not so much as sum up the evidence, but left it to the jury with prayers that the great God of Heaven would direct their hearts in that weighty matter. The jury accordingly returned a verdict of guilty; and their execution was amongst the latest instances of the kind that disgrace the English annals.

Footnote 52:

Sweden is particularly distinguished for the accuracy of its bills of mortality. Exact accounts have been taken of the births, marriages, and burials, and of the numbers of both sexes that died at all ages in every town and district; and also at the end of every period of five years, of the numbers living at every age. At Stockholm a society was established whose business it was to superintend and regulate the enumeration, and to collect from the different parts of the kingdom the registers, in order to digest them into tables of observation.

Footnote 53:

See a memoir in the first volume of the Royal Geological Society of Cornwall, entitled “On the Accidents which occur in the Mines of Cornwall, in consequence of the premature explosion of gunpowder in blasting rocks, and on the methods to be adopted for preventing it, by the introduction of safety bars, by _J. A. Paris_, M.D. &c.”

Footnote 54:

See the author’s Pharmacologia, edit. v. _Hist. Introd._ vol. i, p. 92.

Footnote 55:

Ibid. vol. ii, p. 830. art. _Papaveris Capsulæ_.

Footnote 56:

Ibid. vol i, p. 53, note.

Footnote 57:

See vol. i, p. 260, _note_.

Footnote 58:

The Introductory Lecture of a Course upon State Medicines London, 1821.

Footnote 59:

Chlorine—Eu-chlorine—Muriatic acid—Sulphurous acid—Nitrous oxide—Carbonic acid—Sulphuretted hydrogen—Ammonia—Cyanogen.

Footnote 60:

See the plan proposed by the author, in the Journal of Science and the Arts, no. xxviii, p. 436.

Footnote 61:

The reader must refer to our chapter “on the Physiological Causes of Sudden Death,” p. 23; and to that “on Syncope,” p. 25.

Footnote 62:

The imposition of Urine-casting owed its origin to monastic practice, where the inspection of the urine in the monastery obviated the trouble of a personal communication with the patient.

Footnote 63:

In 1500, _Francis Anthony_ was charged with killing several persons by a medicine, said to have been compounded of Gold and Mercury, which he called his _Aurum Potabile_.—_Goodall, Pro_ 349.

Footnote 64:

See however on this subject a pamphlet published at Oxford in 1721, occasioned by the case of the King _v._ the Bishop of Chester.

Footnote 65:

The exclusion of persons, not being graduates of an English University, formed the subject of a royal letter, for which see Appendix, page 92.

Footnote 66:

See Lord Kenyon’s judgment, 7 Term Rep. 288, and Appendix page 134.

Footnote 67:

_Henry_ himself appears to have added some study of Physic to his other pursuits; among the _Sloane MSS._ in the British Museum there are several receipts invented by the king in conjunction with Doctors _Butt_ and _Chambers_; the familiarity of the former with _Henry_ is shown by _Shakspeare_, _Hen. 8th_, _Act._ 4. _Scene_ 2.

Footnote 68:

_Chambre_ and _Linacre_ were in holy orders, a circumstance which has been cited against the present bye-law of the College, that no priest can be admitted; it must be remembered that it is the policy of the present day to restrain the clerical encroachments, which constituted a leading feature of the Papal usurpation; our Inns of Court observe the same rule.

Footnote 69:

_Jo. Alph. Borellus_, in speaking of the pretensions of _Honoratus Faber_ to this discovery, concludes _Omnes enim sciunt Harveium Anno Dom 1628 Fancofurti typis Gual. Fitzeri suam exertationem primum edidisse_; _scilicet decem annos antequam Fabri sanguinis circulationem docuisset_. _See Goodall’s Proceedings of the College._

His work de _Generatione Animalium_, although eclipsed by his superior discovery, must be considered as a valuable acquisition to the science of Physiology; its luminous reasonings overturned the doctrine of _Equivocal Generation_, that had been maintained in the schools since the days of Aristotle, and established the universal principle “OMNIA EX OVO.”

Footnote 70:

_Henry Marquis_, of Dorchester, who was admitted a Fellow in 1658, left at his death in 1680, a collection of medical and other books to the College which were valued at £4000.

Footnote 71:

This power has however been questioned; the words of the Act 25 _Hen._ 8. are, “All manner of Licences, Dispensations, Faculties, &c. as heretofore hath been used and accustomed to be had at the See of Rome.” The term Degree does not occur in the act, yet in _The King v. the Bishop of Chester_, a degree of Bachelor of Divinity granted by the Archbishop was held a good qualification. 8 _Mod._ 364: _Strange_ 797. This judgment was ably controverted in a pamphlet published at Oxford in 1791; we may say with the author, “As to the Archbishop of Canterbury I have no design to rob his See of any privileges belonging to it. He may give as many titles, and bestow as many honours as the POPE himself does, provided they are not admitted into the same rank with those conferred by the favour of the Crown, and they do not challenge any place in the construction of Charters and Acts of Parliament.” See Serj. _Hill’s_ Law Pamphlets in fol vol. 1. in Lincoln’s Inn, Lib. A recent Act of Parliament, 55th _Geo._ 3. recognises only Physicians licenced by the College and by the Universities of Oxford and Cambridge.

Footnote 72:

Such subsequent Charters would not however annul the original Letters Patent. “A new Charter doth not merge or extinguish any of the ancient privileges of the old Charter. And if an ancient corporation is incorporated by a new name, yet their new body shall enjoy all the privileges that the old corporation had.” _Raym._ 439: 4 _Rep._ 37. For other points as to renewed or substituted Charters, see _The King v. Amery and Monk_, by information in the nature of a _quo warranto_, 1 T.R. 575. _Newling against Francis_ (the election of Mayor of Cambridge) 3 T. R. 189. _The King against Miller_, 6 T. R. 268. And more particularly _Rex v. the Vice-Chancellor &c. of Cambridge_, 3 _Burr._ 1656. “A Corporation already existing are not obliged to accept the new Charter in toto, and to receive either all or none of it. They may act partly under it and partly under their old Charter or Prescription. Whatever might be the notion in former times, it is now most certain, that the Corporations of the Universities are Lay-Corporations; and that the Crown cannot take away from them any rights that have been formerly subsisting in them under old Charters or prescriptive usage.”

Footnote 73:

An alien cannot now be a Fellow of the College, and there is good reason for this, as he may have judicial authority when elected to serve as Censor, &c.

By 9 _J._ 1. _c._ 5. _s._ 8. no Popish Recusant shall practice Law or Physic, or exercise any public office, or the trade of an Apothecary; but this Act is in part repealed by 31 _Geo._ 3. _c._ 32. There is also a considerable distinction in law between a person who is merely a Papist and one who is a Recusant.

Footnote 74:

It is true that the College has no means of punishing the disobedient in the country, because the Statute is not supported by penalties; but it must be remembered that the acting in defiance of a Statute is in itself a misdemeanour. According to the opinion of Chief Justice _Mansfield_, a Doctor’s Diploma does not itself entitle the possessor to practise in the country parts (provinces) of England. He must be an Extra-Licentiate of the Royal College of Physicians, or Medical Graduate of an English University. The provincial physician, unless thus protected, is placed under very humiliating circumstances; he is only a doctor by _courtesy_, and therefore cannot claim rank, or defend himself in courts of law. In a cause tried at Stafford before Judge _Mansfield_, a physician who had graduated in Scotland, having been grossly abused in his professional capacity, sued for redress, but could obtain none, because he had not complied with the act of _Henry_ the 8th. _Middleton v. Hughes. See Harrison’s Address._ 62.

Footnote 75:

To this Act it has been objected that it wants the Royal confirmation, and it was suggested that Cardinal Wolsey for a sum of money, interpolated this among other Acts without the King’s assent. The story, sufficiently improbable in itself, rests on no evidence, and the plea founded on it was overuled by C. Justice _Pemberton_, 2 _Show_ 166. _See also College of Physicians against Huybert. Goodall’s Collect._ 267, where the circumstances are more fully related.

Footnote 76:

This fine is raised to ten pounds by _Stat._ 1 _Mary_, _Ses._ 2. _c._ 9. § 5.

Footnote 77:

Such as “Women’s breasts being sore; a Pin and Web in the Eye; Uncombes of Hands; Burns; Scaldings; sore Mouths; the Stone; Strangury; Saucelim; and Morphew, and such other like diseases.”

The pin and web in the eye is alluded to by Shakespeare in Lear, Act iii. Sc. iv. “_he gives the web and the pin_,” and again, “_wishing all eyes blind with the pin and web_,” Winter’s Tale, Act. i. Sc. ii. With respect to the precise meaning of this expression some doubts have arisen. Hanmer says _the pin_ is a horny induration of the membranes of the eye. Skinner seems likewise to say the same, but Dr. Johnson thinks that it is an inflammation, which causes a pain like that of a pointed body piercing the eye: _Web_ in the eye, is defined by Johnson “a kind of dusky film that hinders the sight.” _Uncombes of Hands_ is an expression still used in the North for _Whitlows_. _Morphew_ signifies a cutaneous eruption in the face, _Saucclim_?

Footnote 78:

See _Cro. Car._ 257.

Footnote 79:

Such penalty has been recovered from the warden of the Fleet. _Goodall’s Pro._ 421.

Footnote 80:

By Statute 10 Geo. 1. c. 20, the College was empowered to examine drugs within seven miles circuit, as well as within the City of London, to which the wording, though probably not the intention, of former acts had confined them; but this Statute, though continued by 13 G. 1. c. 27, has now expired; we shall in another place suggest the policy of reviving and extending its enactments.

Footnote 81:

The punishment of dissection is now added by Act of Parliament to the execution for murder only, but this does not exclude the right of the Crown to the disposal of the bodies of all executed traitors and felons. The words of the grant of Elizabeth, are “_quod jure publico hujus regni furti homioidii vel cujuscumque feloniæ condamnatum et mortuum fuerit_.” Charter 7 Eliz. Goodall’s Collection, p. 35.

Footnote 82:

For the power of Corporations to make reasonable Bye Laws, See _Kyd_ on Corporations; how far they may bind Strangers. ib. 103. _Cowper_, 269; they must not be in diminution of the King’s prerogative, or to restrain suits in the King’s Courts; 19 _Hen._ 7. c. 7. nor to extend to imprisonment or forfeiture of goods. Magna Charta. 2 _Inst._ 47, 54. _Kyd_, 156. But see also 5 _Mod._ 320; but they may inflict a penalty to be recovered by action or distress; 5 _Co._ 64. _Kyd_, 156. And this power to make Bye Laws, is incident to all Corporations, though it be not given by any special clause. _Co. Lit._ 264. _Ld. Hob._ 211. _Carth_ 482. 3 _Leon_ 39. A bye-law, giving a casting vote to the senior, if the charter requires a majority, is bad. _King v. Ginever._ 6 T. R. 732. As to the other points, respecting elections, see _the King against the Mayor of Durham_, in Lord _Kenyon’s Reports_, by _Hanmer_, _p._ 112. And generally, 1 T R 118: 2 T R 2: 6 T R 732, 736: 7 T R 543: 8 T R 356: 1 _H. Blackstone_ 370: 12 _East_ 22: 3 _East._ 186: 3 _Bos and Pull_ 434. A bye law must be reasonable, if not it is bad, 1 _Salk_ 143: 11 _Co. R._ 53: _Moore_ 412, 576: _Ld. Kenyon by Hanm._ 500. As to the mode of making bye Laws _Ld. Raym._ 496: 2 _P Wms._ 209: _Comb._ 269: 1 _Str._ 385, we have been particular in citing authorities on this subject, as it is a continual source of litigation with all Corporations: as respects the College of Physicians, we shall have occasion in another place to refer more particularly to the case of _the King_, (at the instance of Dr. _Stanger_) _against the Coll. of Phys._ T. R. 282, in which this power was very ably argued and determined.

Footnote 83:

The name of Thomas Bonham also occurs about the same period among the signatures of several Surgeons. See Goodall.

Footnote 84:

A degree in either of the Universities is a good addition in pleading within the Statute of Additions. 1 _Hen._ 5. _c._ 5. See 2 _Inst._ 668. 1 _Bl. Com._ 405.

Footnote 85:

This forbidding is not absolutely necessary, but _ex abundanti cautela_ is expedient.

Footnote 86:

This custom of amercing for unlicenced practice appears to have been very commonly adopted by the College: (see Goodall’s Proceedings,) it was undoubtedly erroneous, but as it was less expensive to the parties so fined than a suit for five pounds a month, according to the Statute, of which the defendant must have paid the costs, it was very generally acquiesced in till 1622, when the above trial took place.

Footnote 87:

And this has been determined by subsequent authorities, that the exception of Graduates of the two Universities of Oxford and Cambridge, in the concluding clause, applies to persons practising in all England, except the privileged district of the City of London, and seven miles circuit, which is in the peculiar and exclusive jurisdiction of the College of Physicians, in which no person whatsoever may practise under any pretence whatsoever except by their licence. See _Coll. v. West._ 10 _Mod._ _p._ 353.

Footnote 88:

For the power of punishment for Mala Praxis, Vide Post.

Footnote 89:

The King is _Creditor Penæ_, and therefore all fines for offences belong to him. _Viner. tit_ action _Qui Tam_ (A) 10. The fines are however granted to the College by the Charter of _James_. Vide Supra.

Footnote 90:

But contra, see the opinion of Chief Justice _Holt_.

Footnote 91:

This must be strictly laid in the declaration, for in the case of the College against Bush, 4 Mod. 47, an exception was taken to the Declaration, “that the defendant practised Physic in Westminster,” without stating that Westminster is within seven miles, &c. and the defendant had judgment. See also 12 Mod. 10.

Footnote 92:

For the same case see also Brownlow, part 2. Merrett’s Collec. p. 79.

Footnote 93:

See same case, 5 _Mod._ 327: 2 _Salk._ 451, and cases there cited.

Footnote 94:

See also _the King and the President and College of Physicians against Marchmont Neadham_. _Trin. Ter._ 28 _Car._ 2. B. R. _Goodalls Pro._ 273. _Coll. of Phys. v. Bugge_, 15 _Car._ 1. _Scacc. Mag. Rot._ 23, _Car._ 1; _Goodall_ 259. _Coll. v Bourne_, 24 _Car._ 2: _Coll. v Harder_: _Coll. v Merry_: _Coll. v Stone_, 35 _Car._ 2: _Goodall_ 275. _Coll. v Levett_, 1 _Ld. Raym._ 472: _v Salmon, ib._ 680: _v Talbois. ib._ 153: _v West. ib._ 472: _Coll. v Tenant. Jones_ 262. _Dr. Trigg v the Coll. Stiles Rep._ 329.

Footnote 95:

Doctor Butler was defendant, though first mentioned in this Report, the decision being in the King’s Bench, on error of a judgment in the Common Pleas for the original cause. _Coll. of Phys. v Butler_, See _Sir W. Jones, Rep._ 261: _Littl. R._ 168, 212, 244, 349.

Footnote 96:

The letter of _John Seale_, which induced the College to bring this action, was as follows. “_May_ the _5th_, 1704. These are to certify, that _I, John Seale_, being sick and applying myself to this _Mr. Rose_ the Apothecary for his directions and medicines, in order for my cure; had his advice and medicines from him a year together: But was so far from being the better for them that I was in a worse condition than when he first undertook me; and after a very expensive bill of near £50. was forced to apply myself to the Dispensary at the College of Physicians where I received my cure in about six weeks time, for under forty shillings charge in medicines.” _See a Pamphlet published on this case, London 1704, and other works mentioned in Gough’s Topography._

Footnote 97:

It does not appear to have been made out in evidence that the constant use and practice had been with the Apothecary, on the contrary, they did not commence practice (except indeed the occasional sale of some simple lozenge or electuary which was never objected to) till after the great fire, when the known residences of the Physicians having been destroyed, their patients were unable to find them, and consequently resorted to the Apothecaries, whose open shops were a sufficient guide to those who needed medical assistance. It is probable also that some laxity arose during the preceding years in which the Plague raged in London, for in times of emergency it would be unreasonable to insist on restrictions which it might be impossible and inhuman to enforce. (_Merett’s Short view of Frauds & Abuses, A.D._ 1699).

Footnote 98:

The trial having taken place in the reign of Queen Anne we should have written Queen’s Bench, but the title of the Court in common use is perhaps best adapted to general comprehension.

Footnote 99:

It has been solemnly resolved, that _Mala Praxis_ is a great misdemeanor and offence at common law. 3 _Bl. Com._ 122: 1 Lord _Raym._ 214.; an act of grace will include _Mala Praxis_; for the remedy of the injured party by Action on the Case, _vide post_.

Footnote 100:

See also 1 Lord _Raym_ 454. same Case: _Carth_ 421. 491: _Salk_ 144. 200. 263.

Footnote 101:

But query, as this protecting section has expired, are Patent Medicines now exempted from the examination of the Censors?

Footnote 102:

Modes of election, unless specially pointed out by Statute or Charter, must depend on Bye-laws and usage. See _the King and the Vice-Chancellor of Cambridge_, _ubi supra_, and many other cases of Corporations. The Power of amotion or expulsion is also incident to most Corporate Bodies. See _Rex_ v. _the Mayor, Burgesses and Common Council of Liverpool_, 2 _Burr. R._ 724: _Rex_ v. _Richardson_, 1 _Burr. R._ 517. We do not find that the College has ever been compelled to execute this painful duty.

Footnote 103:

We adopt the apology of the learned reporter both in words and substance; for we are well aware that many of our readers must be heartily tired of this long detail of litigations, which, as we hope, are not again to be required as precedents; yet we have deemed it necessary to give this account of the powers and privileges of those Corporate Bodies, to whom we must at least look for the elucidation of the medical branches of jurisprudence, and from whom we might expect the best execution of the laws respecting the public health, should they ever be in this, as they have been in most other countries, reduced to a regular system of Medical Police.

Footnote 104:

It is said that the College have determined not to interfere for the future with the licensing of Midwives; the policy of this resolution is very questionable, for the examination and licensing of persons in all branches of medicine is a public duty imposed upon them, which they are not at liberty to abandon or execute at their pleasure. It may be urged that this branch is rather Surgery than Physic; but as the College have once assumed the jurisdiction, it is doubtful whether they ought to relinquish it. The Surgeons might also disavow their obstetric brethren, and then the matter must revert, as of old, to the Bishops, who cannot be supposed to be the most competent judges of the necessary qualifications. Archbishop _Abbot_, a very conscientious divine, on a somewhat similar occasion, said “he knew not well how children were made,” and begged time to inform himself on the subject.

Footnote 105:

A writ of certiorari will also be granted on occasion directed to the College. 2 _Hawk._ 406.

Footnote 106:

The unprofessional reader will infer from the rank of the Counsel the importance which was attached to the case; and from their proved ability, that its merits were fully before the Court.

Footnote 107:

For which, at greater length, as also for the arguments of the other Judges, see 4 _Burr._ 2195.

Footnote 108:

A Fellowship is not in itself an office. _Carth._ 478.

Footnote 109:

Query of the Pope and Archbishop of Canterbury _inter alia_? _Vide ante._

Footnote 110:

And in midwifery it is desirable that the practice may be revived.

Footnote 111:

A limited license had been granted to one _Shepheard_ to practise upon Madmen, but with a proviso that a physician should also be called. Being summoned to answer a breach of this limitation, he appeared and submitted to the College censure. _Goodall_ 466.

Footnote 112:

This prophesy, like many others, was the cause of its own fulfilment, as will be seen in the sequel. Lord _Kenyon_ in Doctor _Stanger’s_ case took occasion to lament that it had been made.

Footnote 113:

At the conclusion of all these arguments Lord _Mansfield_ was at great pains to impress upon the College the propriety of enlarging their rules for admission; some alterations consequently were made; but it is more than doubtful whether they have yet satisfied the views of those who would have placed all the colleges of the empire on the same footing as the universities of Oxford and Cambridge, in respect of their prior claims to the honours of the College of Physicians.

Footnote 114:

For some controversial observations on this case see Doctor _Wells’_ letter to Lord _Kenyon_ in his published works.

Footnote 115:

This class was very properly introduced to place the bachelors of Oxford and Cambridge on an equal footing, in certain respects, with the doctors of foreign universities. At Edinburgh a doctor’s degree may be attained in three years, while in England the bachelor’s degree requires five, and the Doctor’s twelve years standing.

We have purposely avoided any discussion on the subject of the Pharmacopœias which have from time to time been published by the authority of the College; the propriety of forming one standard for medical preparations cannot be doubted, and it is equally indisputable that the College have, both by Charter and acts of Parliament, full power to enforce their regulations; in order to give greater publicity to which, His late Majesty in Council was pleased to issue a Royal Proclamation (for which see Appendix) commanding all persons to observe and obey the directions contained in the _Pharmacopœia Londinensis_ of 1819. Technical objections from time to time have been raised against some of the directions of this work; as it would not fall within our limits or intention to canvass these questions, we shall content ourselves for the present with hinting that an extension rather than a diminution of this power is to be wished, and that the three kingdoms should be united in one general form of medical practice.

Footnote 116:

_Vide Post._ p. 72.

Footnote 117:

The Statute of 32nd _Hen._ 8. _c._ 42. continues in force as to the Barbers, notwithstanding that of 18 _Geo._ 2. _c._ 15. which separates them from the Surgeons. See _Sharpe qui tam agst. Law_ 4. _Burr._ 2133.

Footnote 118:

This prohibition under the Letters Patent could have no force till confirmed by Act of Parliament.

Footnote 119:

The munificence of Parliament has been displayed towards this Corporation in the purchase and grant of the Hunterian Collection at the price of £15,000; and in the vote of £25,000 more towards the building of the College and Museum in Lincoln’s-inn-fields.

Footnote 120:

The reader will find much curious and learned research upon the origin and history of Apothecaries, in _Beckmann’s History of Inventions_, _vol._ 2. p. 127.

The word _Apothecary_ originally signified any proprietor, or keeper of store, magazine, or warehouse, (απο τίθημι, _to put off_.) See _Glossarium Manuale_, _vol._ 1. p. 298. From the word _Apotheca_, the Italians have made _Boteca_, and the French _Boutique_. It would therefore be a great error to consider the term _Apothecarius_, as it is met with in the writings of the thirteenth and fourteenth centuries, as denoting a character similar to the Apothecary of the present day. As we learn from the writings of Hippocrates, Theophrastus, Galen, and other authors, that the Greek and Roman Physicians prepared their own medicines, it is evident that in those times the office of the Apothecary was quite unnecessary; the medicinal herbs were purchased of dealers, who after a time very naturally professed a knowledge of the medical properties of the articles which they sold, and accordingly began to deal in compound remedies, and to boast of various nostrums; such were the PIGMENTARII, SEPLASIARII, PHARMACOPOLÆ, and MEDICAMENTARII, of whom we read in ancient authors. That the Pigmentarii dealt in medicines is proved by the law which established a punishment for such as sold poison, to any person, through mistake, viz. “_Alio Senatus consulto effectum est, ut PIGMENTARII, si cui temere Cicutam, Salamandram, Aconitum —— —— —— et id quod lustramenti causa dederint Cantharidas pœna teneantur hujus legis._” Digest. Lib. xlviii. Tit. 8.33. These Seplasiarii appear to have latterly assumed the office of Apothecary, for Pliny (Lib. xxxiv. c. 11.) reproaches the Physicians for not making up their own medicines instead of trusting to these persons. That the PHARMACOPOLÆ carried on the same trade appears evident from their name; but no one seems to have placed any confidence in them; on the contrary, they were despised for their impudent boasting, and the extravagant praise which they bestowed upon their commodities. Μειμειταὶ που καὶ φαρμακοπωλης ἰατρον. “_Pharmacopola imitatur Medicum, Sophista Philosophum, Sycophanta Oratorem._” (_Maximus Tyrius, Dissert. x._ p. 121.) and again, “_Itaque auditis, non auscultatis, tanquam Pharmacopolam; nam ejus verba audiuntur, verum ei se nemo committit, si æger est._” (_Cato in Aulum Gellium_, _Lib._ 1. _c._ 15.) From these words it appears that the _Pharmacopolæ_, even in those days, attempted to practise Physic. Dr. Mohsen, quoting from Anderson (_Geschichte des Handels_ ii. p. 365.) says, that king Edward III. in the year 1345, gave a pension of Sixpence per diem, to one Coursus de Gangeland, an Apothecary in London, _for taking care of, and attending his Majesty, during his illness in Scotland_, and this is the first mention of an Apothecary in the Fœdera. The first legal establishment, however, of such a class as Apothecaries, may be dated from the well known Medicine Edict (see _Lindenbrogii Codex Legum Antiquarum_. _Francof._ 1613. _Fol._ p. 809.) of the Emperor Frederic II, issued for the kingdom of Naples, by which it is required that the CONFECTIONARII should take an oath to keep by them fresh and sufficient drugs, and to make up medicines according to the prescriptions of the Physicians.

Footnote 121:

This Charter is stated in the preamble of the 55th _Geo_ 3, c. 194, to have been in the 15th of _James_.

Footnote 122:

As are also 114 persons who were the first members.

Footnote 123:

See _Goodall_, 439. 466.

Footnote 124:

This proviso was not necessary, for the Charter could in no way alter the authority given by an Act of Parliament.

Certain Apothecaries, and with some reason, object to this power; for as the Apothecaries Company have erected an extensive establishment for the sale and preparation of drugs and medicines, the private Apothecaries deem it unjust, that their competitors in Trade should be made the judges of the quality of the very articles in which both deal; the public, on the contrary, derive considerable benefit from the circumstance, as the lynx-eyed jealousy of rivals is added to other inducements of the public body to do its duty, and of the private individuals to expose their errors if they deviate from it: under such circumstances however the Society of Apothecaries ought not to have an absolute power of condemnation; an appeal should be allowed to the Censors of the College of Physicians, or some other authority competent to the decision of such cases.

Footnote 125:

The words, or party agrieved, might have been properly inserted: as the act stands the patient has no remedy, if the Physician refuse to complain.

Footnote 126:

The latitude of the conclusion as to renewal of certificates, in some degree cures and compensates the otherwise extreme severity of this clause, yet the jurisdiction might have been better given than to any Justice of the Peace; how such Magistrate, ignorant of medicine or chemistry, is to judge of the improper mixing or compounding of medicines, we do not pretend to anticipate, still less how he is to determine what shall be taken as a satisfactory reason, excuse, or justification. The most probable offence, to be committed in the country against this clause, will be, by substitution of cheap for expensive drugs; this is a very ordinary mal-practice which ought to be checked, but if the apothecary have not the expensive drug by some excusable accident, and then substitute another of equal efficacy, he would be held excusable in a case of emergency, by any medical authority competent to judge of the merits of the case; this an ordinary Justice of the Peace evidently cannot be.

Footnote 127:

Quakers to affirm.

Footnote 128:

Query whether the better policy would not have been, to have subjected _all_ persons to examination; a lad may be very stupid and dangerously ignorant even after five years practice in a remote village.

Footnote 129:

These five should also have had the power of searching drugs, &c. under certain restriction, as calling to their assistance one member at least of the College of Physicians, or any Licentiate or regular Graduate being a justice of the peace. It is in the country that the worst drugs, &c. are most likely to be found.

Footnote 130:

An appeal to the President and Censors of the College of Physicians might have been a salutary check on this power of rejection.

Footnote 131:

We do not understand the policy of the exemption: it is surely as necessary to defend the public from unwholesome drugs, &c. whether sold by wholesale or retail, whether bought of a chemist or an apothecary. The censors of the college of physicians may search chemists and druggists wares in London, but as they have no power in the country, this point requires future consideration; for as prescriptions are now very generally prepared by persons who are nominally chemists, though in fact they exercise the ancient business of apothecaries, the public are as deeply interested in the goodness of the drugs kept by the one as by the other.

Footnote 132:

“Memoirs historical and illustrative of the botanic garden at Chelsea, belonging to the Society of Apothecaries of London.”—London, 1820. This memoir was printed at the expense of the society, for distribution amongst its members.

Footnote 133:

The most important covenants contained in this conveyance, are the following, viz.

The release is dated on the 20th of February, 1721, and is made between the Honorable Sir Hans Sloane Baronet, President of the Royal College of Physicians, on the one part, and the Master, Wardens and Society of the art and mystery of Apothecaries of the City of London, on the other part. It recites the original lease from Lord Cheyne, and also the great expense which the society had incurred, in furnishing and carrying on the garden, as a physic garden, ever since that lease was granted. It states, that the fee and inheritance of the ground and premises were then vested in Sir Hans Sloane and his heirs. It further declares, that to the end the said garden may at all times hereafter be continued as a physic garden, and for the better encouraging and enabling the said Society to support the charge thereof, for the manifestation of the power, wisdom, and glory of God in the works of the creation, and that their apprentices and others may better distinguish good and useful plants, from those that bear resemblance to them, yet are hurtful, and other the like good purposes; the said Sir Hans Sloane, grants, releases and confirms unto the said Master, Wardens and Society, and their successors, all that piece or parcel of arable and pasture ground, situate at Chelsea in the County of Middlesex, at that time in their possession, containing three acres, one rood, and thirty-five perches, with the green-house, stores, barge-houses, and other erections thereon, to have and to hold the same for ever, paying to Sir Hans Sloane, his heirs and assigns, the yearly rent of £5, and rendering yearly to the President, Council and Fellows of the Royal Society of London, fifty specimens of distinct plants, well dried and preserved, which grew in their garden the same year, with their names or reputed names; and those presented in each year to be specifically different from every former year, until the number of two thousand shall have been delivered.[134] It is further provided, that if these conditions be not fulfilled, or if the society shall at any time convert the garden into buildings for habitations, or to any other uses, save such as are necessary for a physic garden, for the culture, planting and preserving of trees, plants and flowers, and such like purposes; then it shall be lawful for Sir Hans Sloane, his heirs and assigns, to enter upon the premises, and to hold the same for the use and benefit, and in trust for the said President, Council, and Fellows of the Royal Society, subject to the same rent, and to the delivery of specimens of plants, as above mentioned to the President of the College, or Commonalty or Faculty of Physic in London; and in case the Royal Society shall refuse to comply with these conditions, then in trust for the President and College of Physicians of London, subject to the same conditions as the Society of Apothecaries were originally charged with.

Power is also reserved for the President, or Vice President of the Royal College of Physicians, once or oftener in every year, to visit the said garden, and examine if the conditions above specified are duly observed and complied with.

Footnote 134:

This condition has been long since fulfilled. By an extract from the minutes of the Royal Society, it would appear that the last presentation of Plants took place on the 17th of February, 1774, being the 51st annual presentation, amounting in all to 2550 plants.

Footnote 135:

If however a gentleman of quality, or a physician, officer, &c. be chosen constable, where there are sufficient persons beside, and no special custom concerning it; it is said such person may be relieved in B. R. 2 _Hawk. P. C._ 100. _Jac. L. Dict. tit._ Constable. As to Surgeons see _The King v. Pond. Comyns R._ 312: 2 _Kebl._ 578. 1 _Syd._ 431: 1 _Mod._ 22.

Footnote 136:

But a Physician in the country, though a Fellow of the College, may be chosen, 2 _Keb._ 578; 1 _Mod._, 22.; 1 _Keb._ 439; 2 _Hawk._ 100; 1 _Sid._ 431; 2 _Keb._ 578; 2 _Hale_ 100; _Com. Dig. tit._ Physician. For Surgeons see 18 _Geo._ 2. _c._ 15. §. 10; 2 _Hawk. Pl._ 101; 5 _Hen._ 8. _c._ 6; 1 _Burn._ 387. For Apothecaries 6 _Will._ 3. _c._ 4; 9 _Geo._ 1. _c._ 8. §. 1. See also the Charters. _Comyns_ Rep. 312.

Footnote 137:

In one point counsel have an advantage over physicians in respect of their fees; the attorney or solicitor who can recover his costs at law, is an intermediate agent and he is held professionally liable to the counsel for their payment; and if the attorney have received his costs from his client (including fees) it would appear that the counsel might recover in an action for money had and received to his use. It is to the honor of the profession that we should find no decided case on the subject.

Footnote 138:

A barrister cannot maintain an action for his fees. Chan. Rep. 38.

Footnote 139:

3 Bl. Com. 28. Taciti An. 1. 11.

Footnote 140:

See _Law_ v. _Hodgson_, 2 _Camp._ 147. _Johnson and others_ v. _Hudson_, 11 _East_ 180, and cases cited there. The unprofessional reader must observe that there is considerable difference between the authority of cases determined at _Nisi Prius_, which are decided by a single Judge, and those argued in banco, which are resolved by all the four Justices of that Court in which the action may have been brought.

Footnote 141:

So also if a Farrier kills a horse or pricks him in shoeing; or if he refuse to shoe him whereby he is lamed, _Bull. N. P._ 73, and of trades generally, as, action against a Barber for barbing the plaintiff, _negligenter et inartificialiter_. 2 _Bulst._ 333; I _Danv. Ab._ 177; see also 2 _Bl. Com._ 163.

Footnote 142:

This case is recent, but we believe not reported. The plaintiff was a respectable artisan, and had been employed as engineer and brass-founder in a large manufactory in the city, and by his industry was enabled to earn about four guineas per week; the plaintiff’s right arm was dislocated by a fall from a gig. Mr. _Pettigrew_, the defendant, was sent for, but being unable to attend from illness, his assistant undertook the case, but conducted it so unskilfully, that the plaintiff lost the use of his arm—DAMAGES £800.

Footnote 143:

For other provisions see the act itself. See also two reports from the Select Committee of the House of Commons, on the state of disease and condition of the labouring poor in Ireland. May 17 and June 7, 1819.

Footnote 144:

There is among the _Sloane_ manuscripts in the British Museum, a complaint or remonstrance that the buildings had been appropriated to other purposes than those intended by their pious and benevolent founder.

Footnote 145:

For the regulations in the time of the Plague during the reign of _Elizabeth_, see 2 _Stowe b._ 5. _p._ 450.

Footnote 146:

The case of the _King v. Taunton_, in the King’s Bench, was to this effect. Mr. _Taunton_ vaccinated his own children, was one of the first subscribers to the London Vaccine Institution, and has been constantly on the Board of Managers of that charity. At the same time he felt it his duty to inoculate such for the Smallpox, who through prejudice, or otherwise, refused vaccination. Many of the poor who applied for gratuitous advice, applied also for inoculation for the Cowpox, and some for the Smallpox.

On the 19th June, Mr. _Taunton_ was arrested on the Lord Chief Justice’s warrant. He gave bail, and directed his attorneys to defend the cause, which was to have been tried on Friday, December 8th, in the Court of King’s Bench, where Mr. _Taunton_ attended with his witnesses. Sir _William Garrow_, the Attorney General, and counsel for the plaintiff, stated to the Court, that he should not proceed in the present case, as he learnt that the defendant had given notice, with every inoculation, not to expose their children while the disease was out.

“God forbid,” said he, “that those who have the Smallpox should not be attended in their own houses by any person they choose; but they must not be carried about the street to the destruction of others.”

Mr. _Justice Bayley_.—“I hope it is sufficiently notorious, that the causing persons to pass through the streets, who may have that disorder upon them, although they are going for medical advice to some person in whom they may have confidence, is an indictable offence; and if that person, instead of attending them at their own houses, as he might do, chooses to direct that they shall, from time to time, be brought, or come to him, there is no question that he is liable to an indictment.”

Mr. _Attorney General_.—“The few sentences that your lordship has pronounced now, are of the last importance to the community.”

Mr. _Justice Bayley_.—“Mr. _Taunton_ should intimate that he is ready to attend those persons at their own houses.”

Mr. _Pollock_.—“I understand that is part of the notice, that he is willing to attend such patients at their own houses.”

Footnote 147:

The rise, progress, decline, and cessation, of particular diseases, forms a curious and useful study to the medical jurist: since the laws and habits of mankind will thereby be found to possess more considerable influence on the health and physical strength of a people, than is generally supposed. See _Observations on the Increase and Decrease of different Diseases, by W. Heberden, jun. M.D. F.R.S. London_ 1801. The gradual decline of the Dysentery in this country is a remarkable proof of the benefits which have ensued from our improvements with respect to diet, cleanliness, and ventilation.

The long list of chronic diseases with which our nosology abounds is totally unknown to barbarous nations, and seem to be the natural consequences of arts and civilization; as these again shoot up into luxury and intemperance, their effects may well be expected to become proportionally more conspicuous. Dr. _Rush_ of Philadelphia has reported, with respect to the uncultivated nations of North America, that Fevers, Inflammations, and Dysenteries make up the sum of their complaints, and he remarks, in particular, that after much inquiry, he had not been able to find a single instance of madness, melancholy, or fatuity among them. (_Medical Enquiries and Observations by B. M. Rush, vol. 1. p. 25._) In a subsequent part of his work, the same author, speaking of the pulmonary consumption, declares it to be unknown among the Indians of North America (_vol. 1. p. 159_). Mr. _Park_, in his account of the interior of Africa, says, that notwithstanding longevity is uncommon among the Negroes, their diseases appear to be but few; fever and fluxes being the most common, and the most fatal.

Footnote 148:

The curious reader will not be at a loss to trace the ancient patronage and jurisdiction of the Bishop of Winchester; suppressed among other ecclesiastical establishments, by _Henry_ the 8th.

Footnote 149:

_See part 3._ No sufficient provision is yet made for the speedy removal of prisoners from infected jails; the case hereafter quoted shows that the Crown has an authority on this subject.

Footnote 150:

During the progress of this work we have seen a fatal instance of a child sacrificed to the dirty and penurious system of one of the _very_ cheap schools of the north of England. The author was called in to his assistance on the child’s arrival in town, but he expired a few hours afterwards.

Footnote 151:

Case of the Salt Duties with proofs and illustrations, by _Sir Thomas Bernard_, Bart. London, 1817.

Footnote 152:

In examining the history of Burial in remote ages, we shall find that both among the Jews and Heathens, _the place of interment was usually without the city_. Such was the case with the Athenians, the Smyrnæans, the Sicyonians, the Corinthians, and the Syracusans. The examples of _Numa_ and _Servius Tullus_ prove, that the Romans deposited their dead _without_ the city before the introduction of the twelve tables, which prohibited _burning_ as well as _burial_ within its precincts. The _Lacedæmonians_ afford an exception to this general custom; it had been a notion universally prevalent, that the touch of a dead body conveyed pollution; and _Lycurgus_, the legislator of Sparta, being anxious to remove the prejudice, introduced the custom of burial within the city. Among the primitive Christians, burying in cities and churches was not allowed for several centuries, and _Theodosius_, after the triumph and establishment of Christianity, renewed the prohibition upon the old and reasonable ground that graves _within_ the city were detrimental to the health of the living, and it was ordered that any person who should disobey this law was to forfeit the third part of his patrimony; and that the undertaker who directed a funeral contrary to the prohibition was to be fined forty pounds in gold. The learned _Bingham_, in his _Antiquities of the Church_, has traced the gradual introduction the odious custom of burying in churches. It was from the idea of the protection which would be afforded by consecrated ground, baptized bells, and relics, that bodies were first interred in the vicinity of the church: to this superstition we may ascribe the origin of church-yards, which took place in the eighth century. The reason alleged by _Gregory_ the Great for burying in churches, or in places adjoining to them, was that their relations and friends, remembering those whose sepulchres they beheld, might thereby be led to offer up prayers for them; and this reason was afterwards transferred into the body of the canon law. The practice thus introduced into the Romish church by _Gregory_, was brought over here by _Cuthbert_, Archbishop of Canterbury, about the year 750: and the practice of erecting vaults in chancels and under the altars was begun by _Lanfranc_, Archbishop of Canterbury, when he had rebuilt the cathedral about 1075. Since this period many enactments have been made in different countries to abolish so foul a custom.

Footnote 153:

It is notorious that there are many church-yards in which the soil has been raised several feet above the level of the adjoining street, by the accumulated remains of mortality; and there are others, in which the ground is actually probed with a borer before a grave is opened. The Commissioners for the improvements in Westminster, reported to Parliament in 1814, that St. Margaret’s church-yard could not consistently with the health of the neighbourhood be used much longer as a burial ground, “_for that it was with the greatest difficulty a vacant place could at any time be found for strangers; that the family graves generally would not admit of more than one interment, and that many of them were then too full for the reception of any member of the family to which they belonged_.”

Many examples might be adduced of overloaded church-yards and burial grounds, which have become if not serious nuisances to the health of their neighbourhood, at least highly offensive to comfort and decency. There is one instance in our sister kingdom so flagrant, that we cannot omit noticing it, in the hope that attention may be drawn to this and similar inconveniencies. There is a burial ground at the back of Kilmainham hospital (and consequently under the immediate view of the Commander and Adjutant-General of the Forces), so disproportioned to the number interred in it, that the older coffins are frequently broken and the undecomposed limbs constantly thrown on the surface, to make room for new tenants of this human soil; yet after heavy showers, the earth being washed away, the lids of coffins may be plainly discerned, so slight is the covering which can be afforded them. Immediately below the rising ground on which this cemetery is situated are the Island Bridge Barracks for the Artillery, the wells of which must of necessity be filled with the filtrations from the putrid mass above them. One at least of the principal Tanks at Gibraltar was similarly situated. The present Lieutenant Governor, Sir George _Don_, among the numerous improvements in the regulation of cleanliness and ventilation which he has introduced on the rock, has converted the burial ground into a public garden; to this, among his other measures, the garrison may owe some future exemptions from the diseases which have so often afflicted them.

Footnote 154:

We learn from _Cicero_ (_De Leg._ ii. 22), that of the various modes of disposing of the dead body, _inhumation_ was the most ancient: _burning_ and inclosing the remains in urns, were perhaps never found expedient until national animosities had given rise to inhuman treatment of the dead. The Egyptians, as they held it unlawful to expose the bodies of the dead to animals, embalmed them, lest after interment they might become the prey of worms (_Herod. Thalia_, xvi.); and their mummies remain to this day a lasting satire upon that folly which “contends against corruption, and will not allow the grave its victory.” The custom of _burning_ the dead is of higher antiquity than we may have at first been led to suppose; _Saul_ was burnt at Jabesh, and his bones afterwards buried; and _Asa_ was burnt in the bed which he had made for himself, filled with sweet odours, and divers kinds of spices: but this custom must of necessity have been limited by the quantity of fuel required for the purpose. It may be worthy notice, that according to Mr. _Ward_, the Missionary, who had opportunities of ascertaining the fact in India, the smallest quantity of wood which is sufficient to consume a human body is about three hundred weight.

Footnote 155:

_Tractatus de Peste, Lib._ i. _cap._ viii. _p._ 41.

Footnote 156:

_An Essay on the Disease called_ YELLOW FEVER. London 1811.

Footnote 157:

In less than 30 years, more than 90,000 corpses had been deposited here by the last grave digger!

Footnote 158:

See _Mémoires de la Société Royale de Médecine, tom_ viii _p._ 242; also _Annales de Chimie_, tom v p. 158.

Footnote 159:

_Journal de Physique_, 1791 p. 253.

Footnote 160:

See _Annales de Chimie_, vol. iii, p. 120-v, 154-vii, 146-viii, 17; also _Phil. Trans._ vol. lxxxiv. p. 169.

Footnote 161:

The gases produced by putrefaction, are Carbonic acid, Carburetted Hydrogen, Sulphuretted and Phosphuretted Hydrogen, and Ammonia; the most deleterious of which are the compound gases of Hydrogen.

Footnote 162:

_Chaptal’s Elem. of Chem._ vol. iii.

Footnote 163:

_On Lazarettos_, p. 25.

Footnote 164:

See _Burns’s Ecclesiastical Law_. _Tit. Burial. Watson’s Clergyman’s Law—Gibson—Lindwood._

Footnote 165:

A popular fallacy has long existed upon this point, and it certainly receives a sanction from the usages of antiquity. At Athens those who died in debt had no right to human burial, until satisfaction was made; their bodies belonged to their creditors, whence it is said that _Cimon_ had no other method to redeem the body of his father _Miltiades_, but by taking his debts and fetters upon himself.—_Potter’s Antiq._

Footnote 166:

The peculiar gas to which this destructive quality is owing, is generally _Sulphuretted Hydrogen_, sometimes existing in combination with Ammonia (_Hydro-Sulphuret of Ammonia_). _M. Dupuytren_ has also shewn that the _Plomb_ is sometimes occasioned by _Nitrogen gas_. _Hallé_ in his work entitled “_Recherches sur le Mephitisme des Fosses d’Aisances_” has proposed various methods for securing the _nightmen_ from the dreadful effects of this gas, as by _ventilation_ and _fumigation_. _M. Dupuytren_, however, has satisfactorily proved that Chlorine, by decomposing it, is its true antidote, by which _Hydro-Choloric_ acid (_Muriatic_,) is produced, and _Sulphur_ deposited.

In some cases the Sulphuretted Hydrogen has accumulated to such an extent, that explosions have occurred in privies on the introduction of a light. We have heard that dreadful ones have happened in the _Fosses d’Aisances_ in the Rue St. Antoine, and in those of Gross Caillou, and Petit Bourbon; and very lately in that of the House of Correction at Clermont-oise, in which many lives were lost. A similar accident has happened in London; we copy the following paragraph from the _Morning Advertiser of Friday Feb. 5, 1819_.—“_Singular Explosion_,—A few evenings ago, at the Two Brewers Tavern, Redcross-street, Southwark, a person took a candle into the privy, and laid it upon the seat, the air confined underneath caught fire from the candle, and immediately exploded, the seat was forced up, and the person was burned considerably, but not dangerously.”

Footnote 167:

The writings of Portal, Gériel, Laborie, Parmentier, Alibert, Dupuytren, Cadet de Vaux, and Hallé, contain ample illustrations of this subject. The reader is also particularly directed to an Essay by Dr. Gerand, entitled “_Essai sur la suppression des Fosses d’Aisances. Paris, 1786_.” See also _Dictionnaire de Police_—Art. “_Latrine_.”

Footnote 168:

In the year 1809 a decree was passed in Paris, containing numerous rules to be observed in the future construction of privies, and which fixed upon the householder a very heavy expense. In 1819 the French King issued a Royal Ordinance relative to this subject; it contains thirty-four clauses or articles, thirty of which revive _in their full strictness_, all the statutes by which housekeepers are compelled to undertake most expensive and troublesome building, or repairs of privies. To relieve them, however, from vexatious costs, the 31st article was framed upon the recommendation of the Privy Council, and which liberates those from the obligation, who shall substitute their old privies by a new apparatus invented by _M. Cazeneuve_, entitled _Messrs. Fauche-Borel’s Patent Moveable Inodorous Conveniences_, of whose advantages almost all the learned Societies of Europe have reported most favourably. We have noticed this decree in order to shew our reader what a degree of importance the French Government attaches to the subject. And upon this occasion it is impossible to withhold the expression of those feelings of national pride and exultation which the contemplation of this subject must afford us; we have in our metropolis no less than 200,000 privies, of which 10,000 only are water closets. In Paris the number does not exceed 70,000, and yet with all the cumbrous enactments which that government has passed for their regulation, how far inferior they are in cleanliness, and how far greater are the effects of their effluvia, when compared with similar establishments in our city. The truth is, that the most elaborate system of medical police will never be so effective as the spirit of cleanliness which is so characteristic of this great and free people; and in this truth, so forcibly illustrated by the subject under discussion, we are to seek for the real explanation of that fact which has been so frequently commented upon by medical writers—THE APPARENT INDIFFERENCE OF OUR GOVERNMENT TO THE SUBJECT OF PUBLIC HEALTH.

Footnote 169:

See _Calis on Sewers_.

Footnote 170:

Dr. Ratcliffe being asked the difference between a contagious and epidemic disease, attempted to explain it by the following illustration: “_If you and I are exposed to the rain we shall both get wet, but it does not follow that we shall wet one another._”

Footnote 171:

See _Rees’s_ Cyclopædia, article _Contagion_.

Footnote 172:

Dr. _Wilson Phillip_’s Treatise on Febrile Diseases, vol. i. p. 433.

Footnote 173:

Researches into the Laws and Phenomena of Pestilence. London, 1821.

Footnote 174:

See _Rees’s Cyclopædia, article Plague_. _Hancock on the Laws of Pestilence, London, 1821._ _Mercurialis on the Plague of Venice, in 1576._ _Diemerbroeck on the Plague of Nimeguen, in 1636._ _Mertens on the Plague of Moscow, in 1771._ _Chenot on that of Transylvania, in 1756._ _Riverii Praxis Medica, vol. 2. p. 98._ _Glocenius de Peste, 1611._ _Mead on the Plague of London, 1744._ _Russel on the Plague, London, 1791._ This learned Physician practised at Aleppo during the Plague of 1760-1-2, and his work contains a minute account of the disease with respect to its origin, progress, and decline: it is considered the best medical account of any individual Plague extant. _A History of all the most remarkable Plagues upon record, by Noah Webster, of New York._ _Considerations on the nature of Pestilence, published as periodical papers, by the Freethinker, 1721._ _The City Remembrancer, compiled from the best sources, chiefly from the Papers of Gideon Harvey._ This is the best account of the Plague of London. _Kephale’s Medela Pestilentiæ, 1665._ _Echar’s History of Plagues._ _Gaetan Sotira, Mem. sur la Peste, observée en Egypt._ _Pappon’s Epoques memorables de la Peste_, 1801.

Footnote 175:

_Cullen_ defines _Pestis_ to be “Typhus maxime contagiosa, cum summa debilitate—Incerto morbi die eruptio Bubonum vel Anthracum.” _Nosolog. Method. Gen._ 30.

Footnote 176:

Op. citat.

Footnote 177:

See _Sir Arthur Brooke Faulkener’s Treasise on the Plague_. The remarkable fact, mentioned by Dr. _Samoilowitz_, that all the assistant Surgeons in the hospitals at Moscow took the Plague, while the Physicians who only walked among the sick, but carefully avoided contact, generally escaped, affords a strong proof of the greater facility with which _actual contact_ communicates the infection. This work of Dr. _Samoilowitz_ (_sur la Peste_) has more than a hundred pages filled with proofs of its _contagious_ influence; Dr. Granville also, in his examination before the Committee of the House of Commons, gave some very interesting instances, in which the poison could only have been conveyed by _touch_.

Footnote 178:

_Fomites_, or substances imbued with the contagion from the bodies of the sick, are supposed to retain their infectious quality an indefinite length of time, and even to communicate the disease more readily than the persons of the infected.

Footnote 179:

_Results of an investigation respecting Epidemic and Pestilential Diseases, including Researches in the Levant concerning the Plague. By Charles Maclean, M.D. London, 1817._

Footnote 180:

It is noticed by writers long before Dr. Maclean: see “_Distinct notions of the Plague, 1722. Dale Ingram on the Plagues that have appeared since 1346; and Plague no Contagious Disease._” The following is the story to which these authors allude.—It appears that Pope Paul III, about the year 1747, commissioned his legate, Cardinal Montè, to fabricate some pretext for removing the celebrated Council of Trent, which was then sitting in debate on the abuses of the ecclesiastical power, to some town within the Papal territory. An epidemic fever, it was said, then prevailed at Trent: many of the bishops became alarmed, and fled; some, if not all, on the Emperor’s side, raised their voices against the plot; but Fracastorius, Physician of the Council, aided the imposition with all the zeal of a devoted Catholic, and the Council was accordingly translated to Bologna. From this time, Dr. Maclean asserts, it became almost heretical to doubt of the contagious nature of Plague; and the error, chiefly because it was sanctioned by the sovereign Pontiff’s authority in the first instance, has been propagated in christendom, as a point of medical orthodoxy, and continued down to the present time.—_Maclean, loco citato,—Hancock on Pestilence_, p. 11.

Footnote 181:

_The history of the Plague, as it has lately appeared in the islands of Malta, Gozo, Corfu, Cephalonia, &c. detailing important Facts, illustrative of the Specific contagion of that disease, with particulars of the means adopted for its eradication_,—By J. D. TULLY, Esq. Surgeon to the Forces, late Inspector of Quarantine, and President of the Board of Health of the interior of the Ionian Islands. 8vo. London, 1821.

Footnote 182:

_A Treatise on the Plague, designed to prove it Contagious, from facts collected during the Author’s residence in Malta, when visited by that malady in 1818, with Observations on its prevention, character, and treatment_,—By Sir ARTHUR BROOKE FAULKNER, M.D. London, 1820. This work may be considered as one of the richest classical productions on the subject of the Plague; and we strongly recommend it to the attention of the medical reader on account of the important facts, powerful arguments, and correct judgment, which distinguish it.

See also _Narrative of Facts relative to the repeated appearance, propagation, and extinction of Plague among the British Troops in Egypt, in the years 1801, 1802, & 1803_,—By JOHN WEBB, _Director General of the Ordnance Medical Department_; published in the Medical Transactions of the College of Physicians, vol. vi.

Footnote 183:

In the year 1819, Sir _John Jackson_ moved for a Committee in Parliament to inquire into the expediency of abrogating or modifying the restrictions imposed by the Quarantine laws; in which motion he was supported by the Right Honourable _F. Robinson_, President of the Board of Trade. The principal objects of inquiry on the subjects in question were, _first_, Is the Plague capable of being communicated from person to person, either by immediate contact with those diseased, or intermediately, by contact with infected goods? or _secondly_, Is it an Epidemic depending only on a peculiar state of the atmosphere? The number of medical men examined upon this occasion was nineteen, only two of whom, Dr. _Maclean_ and Dr. _Mitchell_, denied the contagious nature of the Plague.

Footnote 184:

_Observations on the Epidemical Diseases of Minorca. Edit. 3, p. 132._

Footnote 185:

_Observations on Marsh Remittents, p. 39, &c._

Footnote 186:

_Observations on the Diseases which prevail in long voyages to hot countries. Vol. 1, p. 151._

Footnote 187:

_On Simple Fever. Edit. 2, p. 113, and 114._

Footnote 188:

_Essay on the Diseases incidental to Europeans in hot climates. Edit. 5, p. 27, and 221._

Footnote 189:

_Medicina Nautica, vol. 1, p. 456._

Footnote 190:

_Typhus cum flavedine Cutis_ of Cullen. _Typhus Icterodes_ of Sauvages.

Footnote 191:

The chief authorities on the side of its contagious nature are _An Essay on the Malignant Pestilential Fever introduced into the West India Islands from Boulam_, by Dr. C. CHISHOLM. London 1795. _Medical Sketches_, by SIR JAMES MACGREGOR. London 1804. _The Report of the French Commissioners at Cadiz, in 1804_. And the Works of SIR JAMES FELLOWS, Dr. CAILLOT, and Dr. AREJULA of Cadiz. Much valuable matter is also contained in a _Treatise_ by Dr. PYM, Inspector of Hospitals. London 1818. To which may be added _The Travels of_ DON ANTONIO ULLOA and DON JORGE JUAN.

Footnote 192:

RUSH _on Yellow Fever_.

Footnote 193:

_An Essay on the Disease called Yellow Fever_, by EDWARD NATHANIEL BANCROFT, M.D. &c. London 1811.

Footnote 194:

In the year 1817 Dr. _Bancroft_ published a _Sequel_ to his work, in order to shew that the _Bulam Fever_ has no existence as a distinct or contagious disease. This malady _Dr. Chisholm_ supposed to be a peculiar, original, and foreign pestilence, and to have been imported from Bulam, on the coast of Africa, by the ship _Hankey_, to the island of Grenada; an opinion which received the support of Dr. _Pym_.

Footnote 195:

_Medical Logic Edit. 2. p. 219._

Footnote 196:

SPORADIC.—An epithet used in opposition to that of _Epidemic_, and is given to such diseases as have some special or particular cause, and are dispersed here and there, affecting only particular constitutions, ages, &c. σποραδικος, from σπορας, _dispersed_, of σπείρω _I strew_.

Footnote 197:

The most remarkable of these Epidemics on record, are, that of 1647 in Barbadoes; that of 1686 in Martinique; that in the Spanish Main, in 1729, and 1740; and the most general and destructive of all, which broke out at Grenada in the month of March, in 1793, which spread rapidly to the whole Carribean Archipelago, and from thence to North America, and the shores of Europe. The most remarkable, and perhaps the only instances on record of its existence in North America, are that of Boston in 1693, on the arrival of a squadron of English ships of war from the West Indies; that in Carolina, in the years 1732, 1739, 1745, and 1748, all which, by the account of the physicians who describe it, could be traced to importations from the sugar colonies; that of Philadelphia, in 1751 and 1762; and that above-mentioned in 1793. It now remains to give the history of it as it appeared in Europe. It may be chronologically stated as follows: at Lisbon, in 1723; at Cadiz, in 1732, 1733, 1744, 1746, 1764, 1800; at Malaga, in 1741 and 1803; at Gibralter, in 1804. It has since appeared at different times in these cities, as well as at Carthagena, Alicant, and Leghorn. _Extracted from Sir Gilbert Blane’s work._

Footnote 198:

_Remarks on the Epidemic Yellow Fever which has appeared at intervals in the South Coasts of Spain, since the year 1800_, by ROBERT JACKSON, M.D. 8vo. London, 1821.

Footnote 199:

It is probable that the Fomites of Plague are never extinct in Turkey, although various circumstances may render it _Sporadic_, or entirely dormant.

Footnote 200:

_Loimologia._

Footnote 201:

_Op. citat: p. 501._

Footnote 202:

_Page 159._

Footnote 203:

The following account is taken from Quincy: “Dr. _Plott_ observes, the reasons why Oxford is now much more healthful than formerly, to be the enlargement of the city, whereby the inhabitants, who are not proportionally increased, are not so closely crowded together; and the care of the magistrates in keeping the streets clear from filth: for formerly, he says, they used to kill all manner of cattle within the walls, and suffer their dung and offals to lie in the streets. Moreover, about those times, the Isis and Cherwell, through the carelessness of the townsmen, being filled with mud, and the common shores by such means stopped, did cause the ascent of malignant vapours whenever there happened to be a flood. But since that, by the care and at the charge of Richard _Fox_, Bishop of Winchester, in the year 1517, those rivers were cleansed, and more trenches cut for the water’s free passage; _the town has continued in a very healthful condition, and in a particular manner so free from pestilential diseases, that the sickness in 1665, which raged in most parts of the kingdom, never visited any person there, although the terms were there kept, and the Court and both houses of Parliament did there reside_.”—_Plott’s Hist. of Oxfordshire, chap._ ii.

Footnote 204:

See _Dr. Heberden’s Observ. on the Increase and Decrease of different Diseases, and particularly the Plague, p. 71_.

Footnote 205:

The earliest instance of jail infection, communicated in a Court of Justice, appears to be that mentioned by Mr. Anthony _Wood_, as having happened “at the Assize kept in the Castle at Cambridge, at the time of Lent, 13th _Henry_ viii. ann. dom. 1521-2, when the Justices there, and all the gentlemen, bailives, and all resorting thither, took such an infection, that many of them died; and almost all that were present fell desperately sick, and narrowly escaped with their lives.” Then comes the memorable _black assize_ at Oxford, in July 1577, the best account of which is that given in “_The History and Antiquities of the University of Oxford, by Anthony Wood, M. A. of Merton College_”, first published in English from the original MS. in the Bodleian library, by John _Gutch_, A. M. printed at Oxford in 1796. Another instance is mentioned by _Holinshed_, (vol. ii, p. 1547) as occurring at Exeter, during the assizes there in March 1586. From this period no remarkable case of jail infection is recorded for a period of 150 years, when at the Lent assizes, some prisoners who had been removed from Ilchester gaol, to take their trials at Taunton, were said to have infected a part of the court, and produced a contagious disease, of which the Chief Baron _Pengally_, with some of his officers and servants, and Sir James _Sheppard_, knight, and Serjeant at Law, died afterwards at Blandford in Dorsetshire. Twelve years after, viz. in April, 1742, according to Dr. _Huxham_ (_De aëre, &c. vol._ ii, _p._ 82) a putrid fever appeared at Launceston, and occasioned great mortality; this fever, he adds, was generated in the prisons; and widely disseminated by means of the county assize. The next remarkable occurrence of this kind happened at the sessions of the Old Bailey, in the spring of 1750, which proved fatal to the Lord Mayor, and two of the Judges, with several eminent and other persons; this circumstance induced the Magistrates of London to resolve upon attempting to render Newgate more healthy; and they accordingly consulted Dr. _Hales_ and Sir John _Pringle_ about the method which they should follow. Dr. _Hales_ recommended the use of his _Ventilator_, a machine contrived to pump out the air of any place, and thus to occasion a perpetual renovation of it. The machine was accordingly erected, and its salutary effects soon became apparent, the deaths in Newgate having been reduced from 7 or 8 a week to about 2 in a month. Eleven men were employed in erecting this ventilator, of which no fewer than 7 were seized with the disease; a very interesting account of these men, and of the mode of treatment, were drawn up by Sir John _Pringle_, and published in the _Philosophical Transactions for 1753, vol._ xlviii, _p._ 42.

Footnote 206:

_Page 144._

Footnote 207:

_A History of the Epidemic Fever which prevailed in Bristol during the years 1817-18-19_, by J. PRICHARD, M. D.

Footnote 208:

_Medical Report of the Fever Hospital and House of Recovery, Cork street, Dublin, for the year ending the 5th of Jan. 1819._ By RICHARD GRATTAN, M.D. &c.

Footnote 209:

_Medical Report of the Fever department in Stevens’ Hospital, containing a brief Account of the late Epidemic in Dublin, from Sep. to Aug. 1819._ By JOHN CRAMPTON, M.D. &c. Dublin, 1819.

Footnote 210:

QUARANTINE, or Quarantain, a French word signifying the space of forty days; why forty days should have been fixed upon as the period of probation upon these occasions is not very evident. _Beckmann_ observes that it arose from the doctrine of the ancient physicians, in regard to the critical days of many diseases, of which the fortieth seems to have been considered the last, and most extreme, and on which many astrological conceits were formerly maintained. (See _G. Wedelii Exercitatio de Quadragesima die_, in his _Centuria Exercitationum Medico-Philologicarum_, Jenæ 1701.) This explanation however is not quite satisfactory; forty days appear to have been a period fixed upon for various kinds of probation, (probably from the duration of Lent); we have thus _Quarantain_ of the King in France, which denotes a truce of forty days appointed by Saint Louis, during which time it was expressly forbidden to take any revenge of the relations or friends of people who had fought, wounded, or affronted each other in words. So again in the law of England, the word _Quarantine_ denotes a benefit allowed to the widow of a man dying seized of land; by which she may challenge to continue in his capital messuage, or chief mansion house (so it be not a castle) for the _space of forty days_ after his decease; during which time her dower shall be assigned. _Coke upon Lit._ 34, 35.

An account of the various establishments for preventing the plague in different countries, with a reference to the best writers, may be found in _Schleswig Holstein schen Blattern fur Polizey und Cultur_. 1800, 2 _p._ 341.

Legislative enactments for arresting the progress, and preventing the diffusion, of contagious diseases are mentioned in the earliest history: it is, for instance, commanded in the books of the law of Moses, that the priests shall be desired to visit houses infected with the plague of leprosy, which, if necessary, are to be closed, and even pulled down; or the walls are to be scraped and white-washed, and the infected persons to be shut up. (_Leviticus, chap._ xiii, xiv.) The laws of QUARANTINE, however, as directed against the propagation of Pestilential Epidemics have a later origin. In the first centuries of the Christian era, it does not appear to have been known that infection could be communicated by cloathing, and other things used by infected persons. After the plague in the fourteenth century, which continued longer than any other on record, and extended over the greater part of Europe, the survivors found that it was possible to guard against, or to prevent infection, and Governments then began to order establishments to be formed for that purpose. The most ancient of these appear to be those in Lombardy and Milan in the years 1374, 1383, 1399; an account of which may be seen in MURATORI _Scriptores rerum Italic: T._ xvi, _p._ 560, & xviii _p._ 82, and from thence copied into CHENOT, p. 147. See also BOCCACIO _Decam._ The Venetians are entitled to the merit of having improved the establishments formed to prevent infection, and that their example was followed in other countries is generally admitted. MURATORI (_Lib._ i, _cap._ ii, _p._ 65) says that Quarantine was first ordered to be performed by the Venetians in 1484; and HOWARD (_An Account of the principal Lazarettos; London_, 1789, 4_to p._ 12) states that the College of Health was instituted in 1448—see BECKMANN’S _History of Inventions_, vol. ii, p. 153—and _Considerations on the Means of Preventing the communication of Pestilential contagion_, by W. BROWNRIGG, London, 1771. On the Turkish frontiers the period of Quarantine was reduced to _twenty_ days, under the Emperor Joseph II. See MARTINI LANGE _Rudimenta Doctrinæ de Peste_.

Footnote 211:

For an interesting account of the rise and progress of this disease, see Sir A. _Faulkner’s_ work already quoted.

Footnote 212:

Though no punishment is annexed by the Act to any offence against the Order of the King in Council, yet the disobedience of such an order founded on Act of Parliament, is an indictable offence, and punishable as a misdemeanor at common law; _King_ against _Harris_, 4 T. R. 202, which was the case of a pilot who quitted a ship subject to Quarantine contrary to the established regulations.

Footnote 213:

This rule should be extended to vessels meeting at Sea.

Footnote 214:

The signal by day is a yellow flag of six breadths of bunting at the maintopmast-head, and if the vessel have not a clean bill of health, then the flag must have in it a black circular mark or ball, whose diameter must be equal to two breadths.

Footnote 215:

See also 59 Geo. 3. c. 41. which relates to infection in Ireland.

Footnote 216:

_On Hereditary Disease_, (Note 1, p. 46.)

Footnote 217:

The visitation of Lunatic Asylums and Mad-houses by Special Commissioners (_see_ 14 _Geo._ 3, _c._ 49—_Appendix_ 170) may be considered as a branch of Medical Police, for which see the subjects of Idiots and Lunatics in Part II.

Footnote 218:

The local causes to which we would particularly refer, are those connected with humidity of atmosphere, which so generally occurs in the vicinity of the sea. The author speaks from experience, when he ventures to assert that the most efficient extracts soon lose their powers under such circumstances.

Footnote 219:

A bill was recently introduced in the House of Commons on this subject, but did not pass into a law.

Footnote 220:

The first bills containing the ages of the dead were those for the town of Breslaw in Silesia, from which Dr. HALLEY deduced a table of the probabilities of the duration of human life, at every age, see _Philosophical Transactions_ (Abridgement vol. iii, p. 669.) Similar bills were established at Northampton in 1735.

Footnote 221:

We ought to mention that in consequence of the apprehension respecting the plague having subsided, the company soon began to discover that the weekly bills declined in sale; in order therefore to keep alive the public interest, and to preserve for themselves the income which arose from it, they printed on the same sheet, in the year 1735, the regulated prices of bread and salt.—!

Footnote 222:

This society was incorporated by Letters Patent of the 17th Henry iii, in 1239, by the style of the “_Fraternity of Saint Nicholas_;” and they were re-incorporated by charter of the 9th of James i. In 1625, they obtained a decree from the Star chamber, allowing them to keep a press in their hall, for the printing of the weekly and general bills of mortality of the city and liberties of London: and for this purpose the Archbishop of Canterbury appoints a printer. All which privileges were subsequently confirmed by a charter granted by Charles ii.

Footnote 223:

_Strictures on the Uses and Defects of Parish Registers and Bills of Mortality, with suggestions for improving and extending the System of Parochial Registry._ London, 1818.

Footnote 224:

Many of the diseases are absolutely unintelligible under their present designation; such, for instance, as _Headmoldshot_; _horse-shoe head_; _over-grown head_; _rising of the lights_, _&c._ others are barbarous, as _liver-grown_; _twisting of the guts_, _&c._ others again are far too indefinitely expressed to be admitted as specific diseases, of which _aged_; _bed-ridden_; _bile_; _colds_; may serve as examples. “_Fevers of all kinds_” is a little too sweeping and indiscriminate. “_Abortives and still-born_” united, form a large number in the general annual bill, the absurdity of which is apparent. _Child-bed_ is a formidable article in the bill, and is liable to much misinterpretation and error; all women dying within the month after delivery are indiscriminately classed under _child-bed_, whether they die in actual labour, or subsequently of acute fever, consumption, or any other disorder. Infants dying before baptism are not returned by the parish clerks in the bills of mortality. In the old bills they were entered under the denomination of _Chrysoms_, but this title has been long disused. See _Burrows’s_ _Strictures_, p. 53.

Footnote 225:

_Observations on the Increase and Decrease of different Diseases, and particularly of the Plague._ London, 1801.—See also STOWE’S _London_,