Footnotes
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 asLegal,Judiciary, orJuridical 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 termMedical 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.
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 asLegal,Judiciary, orJuridical 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 termMedical 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.
2. Chap. xiii. xiv.
2. Chap. xiii. xiv.
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.
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.
4. SeeMill’sHistory of British India.
4. SeeMill’sHistory of British India.
5. Collection of Voyages, that contributed to the establishment of the East India Company. Vol. i. part i. p. 182.
5. Collection of Voyages, that contributed to the establishment of the East India Company. Vol. i. part i. p. 182.
6. Aristotle proposed the same means of checking the increase of population.Aristot.de Republica. lib. vii. c. 16.
6. Aristotle proposed the same means of checking the increase of population.Aristot.de Republica. lib. vii. c. 16.
7. Institutes of Menu. ch. iii. 6 to 10.
7. Institutes of Menu. ch. iii. 6 to 10.
8. Chap. xxii. verse 15.
8. Chap. xxii. verse 15.
9. See our Physiological Illustrations of Parturition, vol. i. p. 246.
9. See our Physiological Illustrations of Parturition, vol. i. p. 246.
10. Vol. i. p. 280.
10. Vol. i. p. 280.
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.
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.
12.Bohn, John.De Renunciatione Vulnerum, 1689, 4to. Amsterdam.
12.Bohn, John.De Renunciatione Vulnerum, 1689, 4to. Amsterdam.
13.Valentini.Pandectæ Medico-Legales, 4to. Francof. 1702.
13.Valentini.Pandectæ Medico-Legales, 4to. Francof. 1702.
14.Boerner, Fred.Prof. Med. Wirtemburg, 1723. Several Dissertations.
14.Boerner, Fred.Prof. Med. Wirtemburg, 1723. Several Dissertations.
15.Kannegeiser.Inst. Med. Leg.
15.Kannegeiser.Inst. Med. Leg.
16.Alberti, Michael.Prof. Med. Hall.—Systema Jurisprudentiæ MedicæSchneeberg 4to. 1725. tom. vi.
16.Alberti, Michael.Prof. Med. Hall.—Systema Jurisprudentiæ MedicæSchneeberg 4to. 1725. tom. vi.
17.Zittman.Medicina Forensis, 4to. Francofurti.
17.Zittman.Medicina Forensis, 4to. Francofurti.
18.Richter.Decisiones Medico-Forenses.
18.Richter.Decisiones Medico-Forenses.
19.Teichmeyer.Institutiones Med. Leg. 4to. Jenæ 1740.
19.Teichmeyer.Institutiones Med. Leg. 4to. Jenæ 1740.
20.Stark.De Medicinæ Utilitate in Jurisprudentia, 4to. Helmont, 1730.
20.Stark.De Medicinæ Utilitate in Jurisprudentia, 4to. Helmont, 1730.
21.Hebenstreit.Anthropologia Forensis, 8vo. Lipsiæ, 1753.
21.Hebenstreit.Anthropologia Forensis, 8vo. Lipsiæ, 1753.
22.Ludwig.Institutiones Medicinæ Forensis.
22.Ludwig.Institutiones Medicinæ Forensis.
23.Fazellius.Elementa Medicinæ Forensis.
23.Fazellius.Elementa Medicinæ Forensis.
24.Plenck.Elementa Medicinæ et Chirurgiæ Forensis.
24.Plenck.Elementa Medicinæ et Chirurgiæ Forensis.
25.Vorlesungen über die gerichtliche Arneywissenchaft, 3 v. 8.
25.Vorlesungen über die gerichtliche Arneywissenchaft, 3 v. 8.
26.Bibliothek der Staatsaryneikunde,i. e.Bibliotheca of State Medicine.
26.Bibliothek der Staatsaryneikunde,i. e.Bibliotheca of State Medicine.
27.Sikora.Conspectus Medicinæ Legalis. Pragæ et Dresdæ, 1792.
27.Sikora.Conspectus Medicinæ Legalis. Pragæ et Dresdæ, 1792.
28.Loder.Anfangsgründe der Medicinischen Anthropologie und der Staatsarzneykunde 8. Werm.1793.
28.Loder.Anfangsgründe der Medicinischen Anthropologie und der Staatsarzneykunde 8. Werm.1793.
29.Metzer.System der gerichtlichen arzneywissenchaft. 8 Koningsb.1793. Latin byKeup.8 Stend. 1794.
29.Metzer.System der gerichtlichen arzneywissenchaft. 8 Koningsb.1793. Latin byKeup.8 Stend. 1794.
30.Muller.Entwurf der gerichtlichen Arzneywissenchaft2 vol. 8. Frank.
30.Muller.Entwurf der gerichtlichen Arzneywissenchaft2 vol. 8. Frank.
31.Collectio Opusculorum selectorum ad Medicinam forensem spectanium, curante. F. C. T. Schlegel, Leipsic 1789-1800.
31.Collectio Opusculorum selectorum ad Medicinam forensem spectanium, curante. F. C. T. Schlegel, Leipsic 1789-1800.
32.Bibliothèque Medicale.
32.Bibliothèque Medicale.
33.Quæstiones Medico-Legales, in quibus omnes materiæ medicæ quæ ad legales facultates videntur pertenere, proponuntur, pertractantur, resolvuntur.Tom. ix. Romæ 1621.
33.Quæstiones Medico-Legales, in quibus omnes materiæ medicæ quæ ad legales facultates videntur pertenere, proponuntur, pertractantur, resolvuntur.Tom. ix. Romæ 1621.
34. Systema Cautel. Medicar. p. 579.
34. Systema Cautel. Medicar. p. 579.
35.“Istituzioni di Medicina Forense diGiuseppe Tortosa, Professore Medico della Commissione Dipartimentale di Sanita del Bacchiglione.”Vol. ii. Vicenza, 1809.
35.“Istituzioni di Medicina Forense diGiuseppe Tortosa, Professore Medico della Commissione Dipartimentale di Sanita del Bacchiglione.”Vol. ii. Vicenza, 1809.
36.Traité de Med. Leg. parFoderéVol. I.
36.Traité de Med. Leg. parFoderéVol. I.
37.Traité de Med. Leg.T. i. Introduct. xxxiv.
37.Traité de Med. Leg.T. i. Introduct. xxxiv.
38.Recueil periodique de la Société de Médecine, tom. vii, p. 343.
38.Recueil periodique de la Société de Médecine, tom. vii, p. 343.
39.Les Lois eclairées par les Sciences Physiques; ou Traité de Médecine Légale, et d’Hygiène Publique, tom. iii. 8vo, Paris.
39.Les Lois eclairées par les Sciences Physiques; ou Traité de Médecine Légale, et d’Hygiène Publique, tom. iii. 8vo, Paris.
40.Médecine Légale, et Police Médicale, deP. A. O. Mahon, Professeur de Med. Leg. etc. avec quelques notes deM. Fautrel.
40.Médecine Légale, et Police Médicale, deP. A. O. Mahon, Professeur de Med. Leg. etc. avec quelques notes deM. Fautrel.
41.Cours de Médecine Légale, Theoretique et Pratique, deJ. J. Belloc, Chirurgien à Agen, 1 vol. in 12mo.
41.Cours de Médecine Légale, Theoretique et Pratique, deJ. J. Belloc, Chirurgien à Agen, 1 vol. in 12mo.
42.Manuel d’Autopsie cadaverique Medico-Legale, &c. 2 vol.
42.Manuel d’Autopsie cadaverique Medico-Legale, &c. 2 vol.
43.Traité de Médecine Légale et d’Hygiène Publique, ou de Police de Santé, parF. E. Foderé, Docteur en Médecine.
43.Traité de Médecine Légale et d’Hygiène Publique, ou de Police de Santé, parF. E. Foderé, Docteur en Médecine.
44.Toxocologie Générale considérée, sous les Rapports de la Physiologie, de la Pathologie, et de la Medicine Légale.
44.Toxocologie Générale considérée, sous les Rapports de la Physiologie, de la Pathologie, et de la Medicine Légale.
45.Leçons faisant Partie du Cours de Médecine Legale, deM. Orfila. A Paris, 1821.
45.Leçons faisant Partie du Cours de Médecine Legale, deM. Orfila. A Paris, 1821.
46.La Médecine Légale, relative a l’Art des Accouchemens, parJ. Capuron, Docteur en Médecine, &c. Paris, 1821.
46.La Médecine Légale, relative a l’Art des Accouchemens, parJ. Capuron, Docteur en Médecine, &c. Paris, 1821.
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; bySamuel Farre, M.D.” 12mo. p.p. 139.
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; bySamuel Farre, M.D.” 12mo. p.p. 139.
48. “Elements of Juridical or Forensic Medicine; for the use of medical men, coroners, and barristers,” byGeorge 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.
48. “Elements of Juridical or Forensic Medicine; for the use of medical men, coroners, and barristers,” byGeorge 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.
49. See Vol. i. p. 125.Note.
49. See Vol. i. p. 125.Note.
50. For a striking illustration of this truth we have only to refer the reader to the facts detailed in the note at page102, in the first volume of the present work.
50. For a striking illustration of this truth we have only to refer the reader to the facts detailed in the note at page102, in the first volume of the present work.
51.Sir Thomas Brownewas, upon this occasion, called upon bySir Matthew Haleto 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 ofSir 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.
51.Sir Thomas Brownewas, upon this occasion, called upon bySir Matthew Haleto 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 ofSir 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.
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.
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.
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, byJ. A. Paris, M.D. &c.”
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, byJ. A. Paris, M.D. &c.”
54. See the author’s Pharmacologia, edit. v.Hist. Introd.vol. i, p. 92.
54. See the author’s Pharmacologia, edit. v.Hist. Introd.vol. i, p. 92.
55. Ibid. vol. ii, p. 830. art.Papaveris Capsulæ.
55. Ibid. vol. ii, p. 830. art.Papaveris Capsulæ.
56. Ibid. vol i, p. 53, note.
56. Ibid. vol i, p. 53, note.
57. See vol. i, p. 260,note.
57. See vol. i, p. 260,note.
58. The Introductory Lecture of a Course upon State Medicines London, 1821.
58. The Introductory Lecture of a Course upon State Medicines London, 1821.
59. Chlorine—Eu-chlorine—Muriatic acid—Sulphurous acid—Nitrous oxide—Carbonic acid—Sulphuretted hydrogen—Ammonia—Cyanogen.
59. Chlorine—Eu-chlorine—Muriatic acid—Sulphurous acid—Nitrous oxide—Carbonic acid—Sulphuretted hydrogen—Ammonia—Cyanogen.
60. See the plan proposed by the author, in the Journal of Science and the Arts, no. xxviii, p. 436.
60. See the plan proposed by the author, in the Journal of Science and the Arts, no. xxviii, p. 436.
61. The reader must refer to our chapter “on the Physiological Causes of Sudden Death,” p. 23; and to that “on Syncope,” p. 25.
61. The reader must refer to our chapter “on the Physiological Causes of Sudden Death,” p. 23; and to that “on Syncope,” p. 25.
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.
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.
63. In 1500,Francis Anthonywas charged with killing several persons by a medicine, said to have been compounded of Gold and Mercury, which he called hisAurum Potabile.—Goodall, Pro349.
63. In 1500,Francis Anthonywas charged with killing several persons by a medicine, said to have been compounded of Gold and Mercury, which he called hisAurum Potabile.—Goodall, Pro349.
64. See however on this subject a pamphlet published at Oxford in 1721, occasioned by the case of the Kingv.the Bishop of Chester.
64. See however on this subject a pamphlet published at Oxford in 1721, occasioned by the case of the Kingv.the Bishop of Chester.
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.
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.
66. See Lord Kenyon’s judgment, 7 Term Rep. 288, and Appendix page 134.
66. See Lord Kenyon’s judgment, 7 Term Rep. 288, and Appendix page 134.
67.Henryhimself appears to have added some study of Physic to his other pursuits; among theSloane MSS.in the British Museum there are several receipts invented by the king in conjunction with DoctorsButtandChambers; the familiarity of the former withHenryis shown byShakspeare,Hen. 8th,Act.4.Scene2.
67.Henryhimself appears to have added some study of Physic to his other pursuits; among theSloane MSS.in the British Museum there are several receipts invented by the king in conjunction with DoctorsButtandChambers; the familiarity of the former withHenryis shown byShakspeare,Hen. 8th,Act.4.Scene2.
68.ChambreandLinacrewere 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.
68.ChambreandLinacrewere 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.
69.Jo. Alph. Borellus, in speaking of the pretensions ofHonoratus Faberto this discovery, concludesOmnes 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 deGeneratione 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 ofEquivocal Generation, that had been maintained in the schools since the days of Aristotle, and established the universal principle “Omnia ex Ovo.”
69.Jo. Alph. Borellus, in speaking of the pretensions ofHonoratus Faberto this discovery, concludesOmnes 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 deGeneratione 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 ofEquivocal Generation, that had been maintained in the schools since the days of Aristotle, and established the universal principle “Omnia ex Ovo.”
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.
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.
71. This power has however been questioned; the words of the Act 25Hen.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 inThe King v. the Bishop of Chester, a degree of Bachelor of Divinity granted by the Archbishop was held a good qualification. 8Mod.364:Strange797. 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 thePopehimself 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’sLaw Pamphlets in fol vol. 1. in Lincoln’s Inn, Lib. A recent Act of Parliament, 55thGeo.3. recognises only Physicians licenced by the College and by the Universities of Oxford and Cambridge.
71. This power has however been questioned; the words of the Act 25Hen.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 inThe King v. the Bishop of Chester, a degree of Bachelor of Divinity granted by the Archbishop was held a good qualification. 8Mod.364:Strange797. 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 thePopehimself 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’sLaw Pamphlets in fol vol. 1. in Lincoln’s Inn, Lib. A recent Act of Parliament, 55thGeo.3. recognises only Physicians licenced by the College and by the Universities of Oxford and Cambridge.
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: 4Rep.37. For other points as to renewed or substituted Charters, seeThe King v. Amery and Monk, by information in the nature of aquo 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 particularlyRex v. the Vice-Chancellor &c. of Cambridge, 3Burr.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.”
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: 4Rep.37. For other points as to renewed or substituted Charters, seeThe King v. Amery and Monk, by information in the nature of aquo 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 particularlyRex v. the Vice-Chancellor &c. of Cambridge, 3Burr.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.”
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 9J.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 31Geo.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.
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 9J.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 31Geo.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.
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 JusticeMansfield, 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 bycourtesy, and therefore cannot claim rank, or defend himself in courts of law. In a cause tried at Stafford before JudgeMansfield, 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 ofHenrythe 8th.Middleton v. Hughes. See Harrison’s Address.62.
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 JusticeMansfield, 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 bycourtesy, and therefore cannot claim rank, or defend himself in courts of law. In a cause tried at Stafford before JudgeMansfield, 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 ofHenrythe 8th.Middleton v. Hughes. See Harrison’s Address.62.
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. JusticePemberton, 2Show166.See also College of Physicians against Huybert. Goodall’s Collect.267, where the circumstances are more fully related.
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. JusticePemberton, 2Show166.See also College of Physicians against Huybert. Goodall’s Collect.267, where the circumstances are more fully related.
76. This fine is raised to ten pounds byStat.1Mary,Ses.2.c.9. § 5.
76. This fine is raised to ten pounds byStat.1Mary,Ses.2.c.9. § 5.
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 saysthe pinis 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:Webin the eye, is defined by Johnson “a kind of dusky film that hinders the sight.”Uncombes of Handsis an expression still used in the North forWhitlows.Morphewsignifies a cutaneous eruption in the face,Saucclim?
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 saysthe pinis 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:Webin the eye, is defined by Johnson “a kind of dusky film that hinders the sight.”Uncombes of Handsis an expression still used in the North forWhitlows.Morphewsignifies a cutaneous eruption in the face,Saucclim?
78. SeeCro. Car.257.
78. SeeCro. Car.257.
79. Such penalty has been recovered from the warden of the Fleet.Goodall’s Pro.421.
79. Such penalty has been recovered from the warden of the Fleet.Goodall’s Pro.421.
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.
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.
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.
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.
82. For the power of Corporations to make reasonable Bye Laws, SeeKydon 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; 19Hen.7. c. 7. nor to extend to imprisonment or forfeiture of goods. Magna Charta. 2Inst.47, 54.Kyd, 156. But see also 5Mod.320; but they may inflict a penalty to be recovered by action or distress; 5Co.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.Carth482. 3Leon39. 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, seethe King against the Mayor of Durham, in LordKenyon’s Reports, byHanmer,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: 1H. Blackstone370: 12East22: 3East.186: 3Bos and Pull434. A bye law must be reasonable, if not it is bad, 1Salk143: 11Co. R.53:Moore412, 576:Ld. Kenyon by Hanm.500. As to the mode of making bye LawsLd. Raym.496: 2P Wms.209:Comb.269: 1Str.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 ofthe 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.
82. For the power of Corporations to make reasonable Bye Laws, SeeKydon 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; 19Hen.7. c. 7. nor to extend to imprisonment or forfeiture of goods. Magna Charta. 2Inst.47, 54.Kyd, 156. But see also 5Mod.320; but they may inflict a penalty to be recovered by action or distress; 5Co.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.Carth482. 3Leon39. 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, seethe King against the Mayor of Durham, in LordKenyon’s Reports, byHanmer,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: 1H. Blackstone370: 12East22: 3East.186: 3Bos and Pull434. A bye law must be reasonable, if not it is bad, 1Salk143: 11Co. R.53:Moore412, 576:Ld. Kenyon by Hanm.500. As to the mode of making bye LawsLd. Raym.496: 2P Wms.209:Comb.269: 1Str.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 ofthe 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.
83. The name of Thomas Bonham also occurs about the same period among the signatures of several Surgeons. See Goodall.
83. The name of Thomas Bonham also occurs about the same period among the signatures of several Surgeons. See Goodall.
84. A degree in either of the Universities is a good addition in pleading within the Statute of Additions. 1Hen.5.c.5. See 2Inst.668. 1Bl. Com.405.
84. A degree in either of the Universities is a good addition in pleading within the Statute of Additions. 1Hen.5.c.5. See 2Inst.668. 1Bl. Com.405.
85. This forbidding is not absolutely necessary, butex abundanti cautelais expedient.
85. This forbidding is not absolutely necessary, butex abundanti cautelais expedient.
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.
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.
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. SeeColl. v. West.10Mod.p.353.
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. SeeColl. v. West.10Mod.p.353.
88. For the power of punishment for Mala Praxis, Vide Post.
88. For the power of punishment for Mala Praxis, Vide Post.
89. The King isCreditor Penæ, and therefore all fines for offences belong to him.Viner. titactionQui Tam(A) 10. The fines are however granted to the College by the Charter ofJames. Vide Supra.
89. The King isCreditor Penæ, and therefore all fines for offences belong to him.Viner. titactionQui Tam(A) 10. The fines are however granted to the College by the Charter ofJames. Vide Supra.
90. But contra, see the opinion of Chief JusticeHolt.
90. But contra, see the opinion of Chief JusticeHolt.
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.
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.
92. For the same case see also Brownlow, part 2. Merrett’s Collec. p. 79.
92. For the same case see also Brownlow, part 2. Merrett’s Collec. p. 79.
93. See same case, 5Mod.327: 2Salk.451, and cases there cited.
93. See same case, 5Mod.327: 2Salk.451, and cases there cited.
94. See alsothe King and the President and College of Physicians against Marchmont Neadham.Trin. Ter.28Car.2. B. R.Goodalls Pro.273.Coll. of Phys. v. Bugge, 15Car.1.Scacc. Mag. Rot.23,Car.1;Goodall259.Coll. v Bourne, 24Car.2:Coll. v Harder:Coll. v Merry:Coll. v Stone, 35Car.2:Goodall275.Coll. v Levett, 1Ld. Raym.472:v Salmon, ib.680:v Talbois. ib.153:v West. ib.472:Coll. v Tenant. Jones262.Dr. Trigg v the Coll. Stiles Rep.329.
94. See alsothe King and the President and College of Physicians against Marchmont Neadham.Trin. Ter.28Car.2. B. R.Goodalls Pro.273.Coll. of Phys. v. Bugge, 15Car.1.Scacc. Mag. Rot.23,Car.1;Goodall259.Coll. v Bourne, 24Car.2:Coll. v Harder:Coll. v Merry:Coll. v Stone, 35Car.2:Goodall275.Coll. v Levett, 1Ld. Raym.472:v Salmon, ib.680:v Talbois. ib.153:v West. ib.472:Coll. v Tenant. Jones262.Dr. Trigg v the Coll. Stiles Rep.329.
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, SeeSir W. Jones, Rep.261:Littl. R.168, 212, 244, 349.
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, SeeSir W. Jones, Rep.261:Littl. R.168, 212, 244, 349.
96. The letter ofJohn Seale, which induced the College to bring this action, was as follows. “Maythe5th, 1704. These are to certify, thatI, John Seale, being sick and applying myself to thisMr. Rosethe 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.
96. The letter ofJohn Seale, which induced the College to bring this action, was as follows. “Maythe5th, 1704. These are to certify, thatI, John Seale, being sick and applying myself to thisMr. Rosethe 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.
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).
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).
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.
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.
99. It has been solemnly resolved, thatMala Praxisis a great misdemeanor and offence at common law. 3Bl. Com.122: 1 LordRaym.214.; an act of grace will includeMala Praxis; for the remedy of the injured party by Action on the Case,vide post.
99. It has been solemnly resolved, thatMala Praxisis a great misdemeanor and offence at common law. 3Bl. Com.122: 1 LordRaym.214.; an act of grace will includeMala Praxis; for the remedy of the injured party by Action on the Case,vide post.
100. See also 1 LordRaym454. same Case:Carth421. 491:Salk144. 200. 263.
100. See also 1 LordRaym454. same Case:Carth421. 491:Salk144. 200. 263.
101. But query, as this protecting section has expired, are Patent Medicines now exempted from the examination of the Censors?
101. But query, as this protecting section has expired, are Patent Medicines now exempted from the examination of the Censors?
102. Modes of election, unless specially pointed out by Statute or Charter, must depend on Bye-laws and usage. Seethe 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. SeeRexv.the Mayor, Burgesses and Common Council of Liverpool, 2Burr. R.724:Rexv.Richardson, 1Burr. R.517. We do not find that the College has ever been compelled to execute this painful duty.
102. Modes of election, unless specially pointed out by Statute or Charter, must depend on Bye-laws and usage. Seethe 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. SeeRexv.the Mayor, Burgesses and Common Council of Liverpool, 2Burr. R.724:Rexv.Richardson, 1Burr. R.517. We do not find that the College has ever been compelled to execute this painful duty.
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.
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.
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. ArchbishopAbbot, 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.
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. ArchbishopAbbot, 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.
105. A writ of certiorari will also be granted on occasion directed to the College. 2Hawk.406.
105. A writ of certiorari will also be granted on occasion directed to the College. 2Hawk.406.
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.
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.
107. For which, at greater length, as also for the arguments of the other Judges, see 4Burr.2195.
107. For which, at greater length, as also for the arguments of the other Judges, see 4Burr.2195.
108. A Fellowship is not in itself an office.Carth.478.
108. A Fellowship is not in itself an office.Carth.478.
109. Query of the Pope and Archbishop of Canterburyinter alia?Vide ante.
109. Query of the Pope and Archbishop of Canterburyinter alia?Vide ante.
110. And in midwifery it is desirable that the practice may be revived.
110. And in midwifery it is desirable that the practice may be revived.
111. A limited license had been granted to oneShepheardto 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.Goodall466.
111. A limited license had been granted to oneShepheardto 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.Goodall466.