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Title: Medical Jurisprudence, Volume 3 (of 3)
Author: Paris, John Ayrton, Fonblanque, J. S. M. (John Samuel Martin)
Language: English
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Transcriber’s Note
When italics were used in the original book, the corresponding text has
been surrounded by _underscores_. Superscripted characters are preceded
by ^ and when more than one character is superscripted, enclosed in {}.
Some corrections have been made to the printed text. These are listed in
a second transcriber’s note at the end of the text.
MEDICAL
JURISPRUDENCE.
---------------------
BY
J. A. PARIS, M.D. F.R.S. F.L.S.
FELLOW OF THE ROYAL COLLEGE OF PHYSICIANS;
AND
J. S. M. FONBLANQUE, ESQ.
BARRISTER AT LAW.
--------------------------------------------------
“Hæc est illa amica Imperantium atque Medentium conspiratio, qua
effectum est, ut aliquo veluti connubio Medicina ac Jurisprudentia inter
se jungerentur.”
_Hebenstreit Anthropolog: Forens:_
--------------------------------------------------
IN THREE VOLUMES.
VOL. III.
---------------------
LONDON:
PRINTED & PUBLISHED BY W. PHILLIPS, GEORGE YARD, LOMBARD STREET;
SOLD ALSO BY T. & G. UNDERWOOD, AND S. HIGHLEY, FLEET STREET;
AND W. & C. TAIT, EDINBURGH.
1823.
CONTENTS
OF THE
APPENDIX.
---------------------
PART I.
_Statutes_, 9 Hen. 5.—3 Hen. 8, _c._ 11.—5 Hen. 8, _c._ 6.—14 _and_ 15
Hen. 8, _c._ 5, _containing the Charter of the College of
Physicians_.—32 Hen. 8, _c._ 40.—32 Hen. 8. _c._ 42.—34 _and_ 35 Hen. 8,
_c._ 8.—1 Mary, _c._ 9.—6 _and_ 7 Will. 3, _c._ 4.—_Preamble of_ 10 Geo.
1, _c._ 20, (_expired_).—18 Geo. 2, _c._ 15.—55 Geo. 3, _c._
194.—_Charter of the Apothecaries._—_Royal Letter to the College of
Physicians_, (Chas. 2.)—_Royal Letter to the Lord Mayor of London_,
(Chas. 2).—_College Questions_, (1607) _and opinions thereon_.—Dr.
Bonham’s _case_.—Groenvelt _v._ Burwell.—William Rose’s _case_.—Dr.
Stanger’s _case_.—_Return to a_ Habeas Corpus, _and copy of the Censor’s
Warrant_.—Dr. Burgess’ _case_.—Dr. Winterton’s _Letter to the College of
Physicians_.—Lilly’s _Diploma from the Archbishop of Canterbury_.—_Order
in Council_ (1809).—Rex _v. Master and Wardens of the Company of
Surgeons_.—_Midwife’s Oath._—_Certificate concerning Midwives._—_Statute
59_ Geo. 3, _c._ 41.—14 Geo. 3, _c._ 49.—_Report on the Plague_
(1819).—Chorley _v._ Bolcot.—Lipscombe _v._ Holmes.—Slater _v._ Baker
_and_ Stapleton.—Seare _v._ Prentice.
PART II.
Severn _v._ Olive (_cost of experiments_).—Mr. Hargrave’s _notes on the
legal time for human birth_.
PART III.
_Report of the College of Physicians on a case of murder_, (Joseph
Lane’s 1632).—_Case of_ Standsfield; _Report of the Surgeons of_
Edinburgh _on the same_; _Report of the College of Physician’s_ (Edinb.)
_on the same_.—_Extract from the medical evidence in the case of_
Spencer Cowper, Esq.—_Extract from the evidence of_ Drs. Addington _and_
Lewis _in the case of_ Mary Blandy.—_Extracts from the medical evidence
in the case of_ Donellan.—_Extracts from the medical evidence in the
case of_ Donnall.—Eugene Aram’s _defence_.
Medical Jurisprudence.
PART III.
_Introduction_—1. _Of Arson—Human Combustion._—2. _Of Rape, with
Physiological and Medical Illustrations._—3. _Of Homicide
generally._—4. _Of Real and Apparent Death._—5. _Of the Physiological
Causes, and Phenomena of Sudden Death._—6. _Of Syncope._—7. _Of
Suffocation by Drowning, Hanging, and other causes._—8. _Death by
exposure to Cold—Heat—Lightning—Starvation._—9. _Application of the
Physiological Facts, established in the preceding chapters, to the
general treatment of Asphyxia._—10. _Of the Coroner’s Inquest._—11.
_Suicide._—12. _Of Murder generally—by Wounding, or Blows—by
Poisoning._—13. _Of Poisons, Chemically, Physiologically, and
Pathologically considered._—14. _Of Homicide, by Misadventure or
Accident._—15. _A Synopsis of the Objects of Inquiry in Cases of
sudden and mysterious Sickness and Death,—Commentary thereon,
including practical rules for Dissection._—16. _Abortion and
Infanticide—with Physiological Illustrations._—17. _Of Criminal
Responsibility, and Pleas in bar of Execution._—18. _Of
Punishments._—19. _Postscript._
Medical Jurisprudence.
PART III _continued_.
15. _A Synopsis of the Objects of Inquiry in Cases of sudden and
mysterious Sickness and Death,_—_Commentary thereon, including
practical rules for Dissection._—16. _Abortion and Infanticide,_—_with
Physiological Illustrations._—17. _Of Criminal Responsibility, and
Pleas in bar of Execution._—18. _Of Punishments._—19. _Postscript._
A SYNOPSIS OF THE OBJECTS OF INQUIRY IN CASES OF SUDDEN, AND MYSTERIOUS
SICKNESS, AND DEATH.
CASE I.
THE PATIENT IS LIVING, AND MEDICAL ASSISTANCE IS REQUIRED.
Account given by the patient and his friends.—How far their report
deserves credit.—Whether there be any external injuries.—Previous
state of the patient, with respect to bodily health and
strength.—The age and occupation of the individual in
question.—Season of the year.—Present symptoms of the patient; with
the circumstances of their accession, progress, intensity, and
duration.—Whether any similar attack has been experienced by himself
at any previous period, or by any part of his family and friends at
the present time; and whether the latter have felt any degree of
nausea or uneasiness.—What remedies have been employed, by whom
recommended, and by whom administered.—Nature of the food last taken
as to quantity and quality.—Whether the patient had observed any
unusual flavour, or grittiness in his food.—Condition and nature of
the utensils in which it was cooked.—Appearance of the evacuations.
CASE II.
THE PATIENT IS DEAD.—THE ATTENDANTS CAN FURNISH ONLY AN IMPERFECT
ACCOUNT OF HIS DISSOLUTION.
Examination of the attendants.—Circumstances to be investigated.—How
soon the deceased is supposed to have died, after the alleged cause of
his dissolution.—Had the deceased been under the influence of violent
passion.—Was he at the time of death in a state of intoxication.—Plan
of the inquiry to be adopted according to the principles already
explained in CASE I, in combination with those to be developed in the
following still more complicated one.
CASE III.
THE BODY IS FOUND DEAD.—ITS HISTORY IS UNKNOWN.
Plan to be adopted in the investigation of this case.—Four great avenues
of inquiry, viz. 1. _Inspection of the dead body_; 2. _Examination of
surrounding and collateral objects_; 3. _Interrogation of witnesses_;
4. _Anatomical Dissection_.
1. _Inspection of the dead Body._
SITUATION and attitude of the body.—General appearance of the
countenance, as to colour, vascular turgescence, or congestion, and
morbid physiognomy.—Appearance of the eyes, and eye-lids, lips, and
gums.—Whether any, and what discharge issues from the mouth,
nostrils, ears, or any other orifice.—Apparent age of the
deceased.—Description of his person as to bulk, stature, obesity,
muscular powers, &c.—Conformation of the neck, with respect to its
shortness, fullness, and thickness.—Probable period that has elapsed
since the extinction of life.—State of the body, in relation to the
degree of stiffness, or flexibility of its limbs, progress of
putrescence, &c.—Whether any, and what marks, or ecchymoses are
visible upon the throat, or under the ears.—Whether there are any,
and what marks, punctures, wounds, contusions, and ecchymoses,
dislocations, or injuries, on the chest, abdomen, or in any other
parts of the body; and whether their appearance and character lead
to any conclusions respecting the nature of the operation or
instrument by which they were inflicted.—Whether such wounds were
necessarily of a mortal nature, or sufficiently severe to have
caused immediate death.—What is their direction.—Whether they were
inflicted during life.—If during life, whether they resulted from an
act of suicide or otherwise; whether from accident or design.—State
of the linen and clothes of the deceased.—Whether torn, or in any
way disordered.—Whether stained with blood.—Whether they yield the
odour of spirit, sourness, putridity, or that of tobacco.—Whether
any articles have been broken, or injured in the pockets.—Whether
there is reason to believe that the deceased had been robbed.—What
are contained in his pockets.—Whether any soil, or other matter
adheres to the shoes, or dress; and if so, how far it corresponds
with the surrounding soil or herbage.—Whether the hair of the
deceased appears dishevelled.—If the deceased be a female, whether
there be any marks or bruises that would indicate the commission of
a rape.
2. _Circumstances to be learnt by an examination of surrounding and
collateral objects._
Whether the spot in question be of a description to explain the cause of
the deceased having been found there; or how far its retired situation
excites the suspicion of his having been conveyed thither for
concealment, or some other purpose.
Character and condition of different objects surrounding the body.—If in
the open country, whether any indications of a struggle having
happened on the spot are visible upon the ground, or herbage, near the
deceased.—Whether any footsteps can be traced near the body, and if
so, what is their exact shape and dimensions, and what their
direction.—Can the particular spot in which the body was found have
been invested with unwholesome vapour, or with air destructive of
animal life.—Has there been any violent thunderstorm.—or can the
person have been exposed to any extraordinary degree of heat.—Whether
any and what weapons are lying near the body.—If so, what is their
exact position in relation to the body and its members.—If the body is
found in the water, are there any and what reasons for supposing that
he was killed by other means, and subsequently thrown into the
water.—What are the principal local circumstances of the water in
question.—Was the body found floating or otherwise.—What wounds and
contusions are visible on its surface.—If the body were drowned, was
the death accidental or malicious; was it perpetrated by himself or
others.—Whether any footsteps are visible on the margin of the
water.—Whether any soil or herbage be found in the grasp, or under the
nails, of the deceased.—If the deceased be found suspended by the
neck, was it by an act of suicide or otherwise.—Was he killed by
strangulation or by other means, and subsequently suspended.—What is
the nature of the ligature, and the manner in which it is fixed.—Are
the hands tied.—If the deceased be found in an apartment, whether it
be in a house of ill fame, or in one of suspicious character.—If the
deceased be found dead in bed, or chair, or on the floor, what is the
nature of the excrementitious matter in the night-vessels.—What
bottles, and other articles of medicine are in the apartments?
3. _Circumstances to be learnt by the interrogation of competent
Witnesses._
Report of witnesses.—Is the body in the same situation and condition as
when first discovered.—Can the body be identified.—Period at which the
deceased was last seen, by whom, in what place, under what
circumstances, and in whose society.—Are there any moral reasons to
excite the suspicion of his having committed suicide.—What was his
occupation.—Had he lately met with any disappointment or
misfortune.—Had he appeared dejected or melancholy.—Are there any
persons with whom he associated, who had any remarkable interest in
his death.
4. _Circumstances to be learnt by anatomical dissection._
Practical instructions for performing it with success.—_Dissection
of the Brain and its appendages._—Method of opening the
head.—Appearance of the skull-cap, whether fractured or in a state
of disease.—Whether any and what extravasated matter is visible on
the dura mater.—State of the meningeal vessels in relation to
sanguineous congestion.—Substance of the brain.—State of the
ventricles.—Base of the cranium, whether fractured.—Cervical
vertebræ, whether dislocated.
_Dissection of the Thorax, Abdomen, and Uterus._—Manner of opening the
chest.—Whether any fluid be found in that cavity.—Appearance of the
lungs.—Condition of the bronchiæ.—Pericardium, whether it contains
more than a usual proportion of fluid.—General appearance of the
viscera.—Particular condition of the intestines.—The stomach, its
appearance, and contents.—The duodenum, colon, rectum.—State of the
liver.—Gall bladder, and ducts.—The spleen-kidneys.—Organs of
generation.—Uterus.—Fallopian tubes.—Ovaria.—External parts of
generation.
A COMMENTARY
UPON THE
PRECEDING OBJECTS OF INQUIRY:
_With a view to appreciate and explain the relative importance of each,
in enabling the Medical Inquirer and Jurist, to arrive at just
conclusions, in cases of complicated doubt and difficulty._
---------------------
CASE I.
THE PATIENT IS LIVING, AND MEDICAL ASSISTANCE IS REQUIRED.
This is the least complicated case that can occur; the medical inquirer
has not only the advantage of the patient’s testimony, but that also of
his own observations upon the symptoms and circumstances of the case. We
have already stated that the declaration of a person, made under an
apprehended pending dissolution, is by the law of this realm considered
tantamount to an oath, (_see vol. i. p. 165_), and we have also stated
what it becomes our duty to repeat in this place, that in recording such
testimony, we must be prepared to combat various errors and prejudices:
we do not mean to deny that the awful situation in which the patient is
placed will not, in general, secure us against any wilful
misrepresentation, but we contend, that a person acting under the
influence of bodily suffering is very apt to fall into numerous
fallacies respecting the transactions in which he may have been
previously engaged; especially in such cases as usually constitute the
objects of medico-judicial inquiry, where the passions not unfrequently
increase the natural disturbance of the mind, while the eagerness which
is so justly felt for the detection of the author of the injury, will
tend rather to heighten than to correct any hallucinations under which
the sufferer may happen to labour; for on such occasions the imagination
is always ready to supply the want of testimony, and to fill up the
spaces which actual observation may have left vacant.
Patients have not unfrequently laboured under the impression of their
having taken poison, when there can never have existed the least ground
for such a suspicion, and yet their general conduct has been in complete
opposition to the idea of insanity:[1] a curious case of this kind is
related in the _Sepulchretum_ of Bonetus; and even during the progress
of the present work, the author was consulted upon an illness, which the
patient seriously attributed to the operation of a slow poison,
declaring that it had been secretly administered during a philanthropic
visit to one of our public prisons. _Dr. Esquirol_[2] also relates the
case of a lady, twenty-seven years of age, who in the last stage of
phthisis pulmonalis perceived in her room the odour of burning charcoal,
and immediately conceived that there was a design against her life; in
consequence of which she left her lodging, and sought another abode, but
the fumes incessantly pursued her, and she died fully convinced that she
was the victim of some malicious persecution.
But of all the fallacies with which we have to contend, no one is more
dangerous in its effects, or more frequent in its occurrence, than that
which leads them to mistake the identity of the offender; we have
already alluded to this fallacy (_vol._ i. _p._ 440), and we shall
hereafter have occasion to refer to it.
When a medical practitioner is summoned to investigate a case, in which
severe sufferings have supervened, without any apparent or assignable
cause, the following interrogatories are calculated to elicit data for a
just conclusion.
_Previous state of the patient, with respect to bodily health and
strength?_—The knowledge of these facts will materially assist us, not
only in explaining the violence of the present symptoms, but in
estimating their indications, in forming some opinion with regard to
their causes, and in prognosticating their results.
_The age and occupation_ are also to be ascertained. Violent tormina of
the bowels, and other symptoms resembling those of acute poisoning, are
frequently explained at once, by learning that the individual in
question has been engaged in some trade or manufactory, from which he
has been necessarily exposed to metallic exhalations; thus painters,
gilders, smelters, and others, from living almost constantly in an
atmosphere charged with such fumes, are always liable to sudden and
violent attacks, dreadful cholics, paralysis, and premature death. _See
our chapter on the poison of Lead, vol. 2, p. 336, and that on Aerial
Poisons, page 457._
_Present symptoms of the patient._—Having gained the necessary
information with respect to the previous history of our patient, we are
prepared to investigate the symptoms under which he at present labours,
and to inquire into the circumstances of their accession, progress,
order of succession, intensity, and duration. If this investigation be
conducted with skill, we shall be enabled to form some opinion
respecting the origin of the sufferings, and, perhaps, to distinguish
the invasion of a spontaneous disease from the effects of acute
poisoning: upon this latter point, however, we shall require the aid of
much collateral information,[3] as _whether the patient has ever
suffered in a similar manner at any previous period, or whether any part
of his family or friends have experienced a similar attack at the
present time_? If the reply to this latter query be in the affirmative,
we may look for a common cause of the complaint, and be led to suspect
that it may arise from the ingestion of some acrid matter. We should
therefore proceed to discover _the nature of the meals last taken as to
quantity and quality_; the practitioner should, at the same time, pay
particular attention to the state of the different persons affected, and
to the existence or absence of vomitings and stools. The following case,
reported by _Morgagni_, and quoted by _Orfila_ & _Foderé_, may be
introduced as affording good illustrations of those points of inquiry,
whose importance we are anxious to enforce. “In the month of May, 1711,
four persons, that is to say, a priest, two women, one of which was his
sister-in-law, and another person, all in good health, and on a journey,
stopped at an inn to dine. Setting out on their road after dinner, the
priest in a short time felt himself so ill in his bowels, that he was
obliged to dismount from his horse. Notwithstanding the copious
evacuations, both upwards and downwards, the pain increased every
moment, and it was necessary to take the patient back to Céserne, the
place where they had dined, and where the priest arrived half dead. A
medical man who was called in, thinking he had only to deal with an
ordinary cholic, employed a number of fomentations, glysters, purgative
draughts, and anodynes; although he saw that one of the women had also
strong evacuations with pains and faintings, and that the other person
complained of pains and of a weight at the stomach, he never suspected
the presence of a poison, because the other woman had no complaint, and
the landlord protested with many imprecations, that there was nothing
dangerous in his dishes; however, the evacuations saved the patients,
and as they diminished a little next morning, it allowed of their
removing into the neighbourhood of _Morgagni’s_ residence, whom they
immediately called in. This great physician having ascertained whether
there was any dish at the table of which the woman who was in good
health had not eaten, and having found that it was a great dish of rice
which had been first served up, concluded from this circumstance that it
was this dish that contained the poison. The difficulty however, was,
that the priest who had eaten the least, and who had been on the whole
extremely abstemious, was precisely the person who had suffered the
most, and the soonest; that the woman, who had eaten more than the
priest, had been less sick than he; and that the other person, who had
eaten more than all the rest, was the one who was the least incommoded.”
Was there no cheese rasped over this rice? demanded _Morgagni_. They
answered in the affirmative; the priest who had little or no appetite,
ate scarcely any thing but the cheese. In that case, said _Morgagni_,
you understand already that there was arsenic among that cheese, which
had probably been prepared for killing rats, and not having been laid
away with sufficient care, some one had taken it to serve up with your
rice during the time that you were hurrying the landlord to send up your
dinner. These conjectures were verified by the confession of the
landlord himself, who, having learned that the patients were out of
danger, was no longer afraid to acknowledge that such had been the cause
of this unfortunate accident.
The practitioner, says _Orfila_, will not be able to form a correct
judgment in cases of this kind, if he neglect to pay attention, _first_,
to the state of the stomach of the different persons poisoned; in fact,
those who have taken a great quantity of food or drink, would feel in
general less severe symptoms than others; _second_, to the nature of the
dishes and of the drinks, as well as to the quantity that each person
may have eaten or drank; _third_, to the existence or absence of
vomitings and stools. It is evident that it may happen, that some
persons have eaten a tolerably large quantity of a poisoned dish without
any serious symptoms taking place, for this very reason, that the
quantity of the food was considerable, and that it easily produced
copious evacuations, by means of which the poison had been expelled.
Numerous cases of culinary poisoning might be adduced in this place, in
illustration of the important lights which are to be derived from the
investigations which form the subject of the present chapter; but we
have already considered the subject very fully under the head of
poisons; and in the history of the effects of copper and lead, we have
particularly explained the evils that may arise from the careless use of
such metallic utensils in cookery.
_Whether any and what remedies have been used; by whom recommended; and
by whom administered?_—The importance of this part of the enquiry is too
obvious to require explanation; we are to learn from it whether the
administration of the medicines might not have accidentally contributed
to the aggravation of the symptoms they were designed to allay; suppose,
for instance, we were to be told that the patient had resorted to
copious libations of brandy to mitigate the sufferings of the bowels,
which were afterwards found to depend upon _Enteritis_; the inference is
obvious—but in performing this part of our professional duty, the
greatest caution is necessary, and we must take care that our own
medical opinions do not carry us to an unjustifiable extent in our
reprehension of the plan of treatment which has been pursued by others;
a striking instance of this want of propriety occurred in the late
celebrated trial of _Donnell_, and was very properly denounced by the
court, (_see page 161 in the second volume, and Appendix, p. 304_.) But
there still remains another reason why we should cautiously and
attentively examine any medicine that may have been administered, and it
would be right in the practitioner to procure a portion of such
medicine, with a view to its future analysis; for it has happened that
where the assassin has supposed that his first dose would be
insufficient to effect his purpose, he has artfully insinuated an
additional dose in the medicines which are administered for the relief
of his victim, and thus the hand, which is treacherously held out with
promises of succour, adds a stronger poison to the cup; this occurred in
the diabolical case of _Mary Bateman_,[4] better known by the name of
the Yorkshire witch, who having poisoned a family with arsenic, sent a
jar of honey, mixed with corrosive sublimate, _for their relief_.
A knowledge of the nature of the medicines that may have been taken,
will also assist the chemist in his examination of the matter vomited,
as we have fully explained under the history of Poisons.
_Appearance of the evacuations._—This should always be attended to, for
although it can hardly afford, in itself, a satisfactory indication, yet
we have shewn, in the course of our history of poisons, that it may
concur with the facts to heighten the probability of a case. The chemist
will also require them for examination.
CASE II.
THE PATIENT IS DEAD.—THE ATTENDANTS CAN FURNISH ONLY AN IMPERFECT
ACCOUNT OF HIS DISSOLUTION.
In conformity with the plan upon which we have arranged the objects of
inquiry into the causes of sudden sickness and death—that of beginning
with the most simple and plain, and passing in regular gradation to the
more complicated and obscure problems, the present case, in which the
patient is dead, but the attendants are able to furnish some history,
however imperfect, very naturally constitutes the connecting link
between that in which the patient is living, and that in which the great
avenues of information are entirely closed upon us by the death of the
individual, and the total absence of all direct testimony. The plan,
therefore, upon which the investigation of this case is to be conducted,
is in a great measure to be derived from the application of those
precepts which are contained in the other cases; that relating to the
examination of the attendants being collected from the first, and all
that concerns the death, from the third.
There is, however, one object of inquiry which may be mentioned in this
place with peculiar propriety, as the obscure and often erroneous
evidence which is given in cases of sudden death, during an affray,
renders it highly important to learn, _whether the deceased had died
during a paroxysm of passion_. We have little doubt but that many
persons have been convicted of murder, where the death of the individual
in question, was the sole effect of the high state of irritation in
which he had been placed. That life may be suddenly extinguished by the
violent impulse of passion we have already shewn under the consideration
of Syncope (p. 26), and we are farther prepared to assert that
Apoplexy[5], and other fatal diseases may also, in certain states of
predisposition, result from the same powerful cause; violent transports
of the mind may likewise occasion the return of any particular disease
to which the patient had been formerly subject, as epilepsy, and other
spasmodic diseases; they may likewise bring a chronic disease at once to
a fatal crisis, as we have seen in the case related at page 29 of the 2d
volume; the fact has been also well illustrated by _Dr. Gordon Smith_,
in the case which occurred to a surgeon of his acquaintance in one of
the midland counties, of which the following is an outline. “In the
course of an altercation between a man and his wife, the woman died, and
a clamour was raised that the husband had murdered her: an inquest being
held, a verdict was returned against him, and he stood his trial at the
following assizes; he was, however, acquitted, for it appeared in
evidence that he had not even touched his wife during the quarrel. The
deceased was a person of an extremely violent temper, and on opening her
body, it was found that she had been labouring under suppuration of the
liver, and that an abscess had burst into the cavity of the abdomen, in
consequence of the agitation into which she had been thrown.” _Baron
Larey_ describes the case of a person who had been violently wounded in
the thorax by a sword in a duel; but the man was progressively
recovering, when in the fourth month from the period of the injury, he
died suddenly in consequence of a violent fit of anger; upon dissection,
the heart and pericardium exhibited traces of inflammation. We should
also learn, if possible, _whether the deceased had been at the time of
death in a state of intoxication_: for in such a condition a
comparatively slight injury may occasion death. The following case,
related by _Dr. Cheyne_, in which _Mr. Charles Bell_ was concerned, we
quote from _Mr. Shaw’s_ excellent _Manual of Anatomy_[6], (p. 165.) “An
industrious man returning home from his work, found his house empty; the
bed he was to lie upon, and the tools of his trade, sold for liquor by
his wife, whom he found in a gin shop, where she had been drinking and
dancing. He brought her home, and in the passage of his house struck
her, and ordered her to go up stairs; she refused to go; he carried her
upon his shoulders, and the contention continuing up stairs, he struck
her again. There having been no one present, we have only the husband’s
account of her death. He said that whilst sitting on her chair, she fell
down, upon which he threw her on the bed, conceiving that she was in a
fit, such as he had seen her in formerly. Some of her neighbours coming
in, found her dead. _Mr. C. Bell_ was requested to examine the body of
this woman. The man was afterwards tried at the Old Bailey, for murder,
when _Mr. Bell_ deposed, that upon taking out the brain, and tracing the
vessels in the base, the anterior artery of the cerebrum going off from
the internal carotid of the left side, was found torn half way across.
The cause of this woman’s death was the bursting of the blood from the
ruptured vessel; as to the cause of the rupture, _Mr. Bell’s_ opinion
coincided with the best authorities in pathology, that there is a state
of the vessels, in which an external injury or shock is more apt to
produce rupture; and drunkenness may be supposed to be the artificial
state of excitement which most resembles this state of the vessels.
Being asked whether the blows were the cause of the rupture, he said he
conceived it very likely that a shock would rupture the vessel; and
being then asked whether he conceived that this woman was more likely to
have a vessel ruptured, from having been intoxicated—he was of opinion
that intoxication, and the struggle, were likely to produce such a
degree of activity of the circulation in the head, that a less violent
blow might produce rupture, than what, in other circumstances, would
have proved fatal.” The prisoner was acquitted.—At the York assizes in
the year 1820, a somewhat analogous question arose,—whether the deceased
might not have been attacked with apoplexy during the struggle? The
light of anatomical dissection will be required in such a case, and the
remarks which Mr. _Shaw_ has offered upon the subject, appear to us to
be extremely judicious and valuable; if, says he, effusion of blood be
found between the dura mater and scull, and if a bruise on the scalp
corresponds to the part, we may conclude that it has been caused by the
blow; but if blood is found between the dura mater and the brain, though
we should discover the marks of blows, or even fracture of the scull,
still the question may be entertained whether the patient might not have
been attacked with apoplexy during the struggle.
_How soon is the deceased supposed to have died, after the alleged cause
of his dissolution._—This is a very important question, for by learning
the length of the interval between the attack and the death, we shall at
once be enabled to accept as probable, or reject as impossible, the
accounts given by the friends and neighbours. Thus, poisons, in general,
require some time for their operation. Apoplexy does not generally
destroy life under several hours[7].
CASE III.
THE PERSON IS FOUND DEAD, AND THE HISTORY OF HIS DISSOLUTION IS UNKNOWN.
The deep obscurity in which this case is necessarily involved, can alone
be dissipated by the concentrated light of circumstantial evidence,
derived from the inspection of the dead body, in the exact situation and
posture in which it was found, and that of the surrounding objects; from
the information afforded by competent witnesses, respecting the previous
history of the individual in question; and, lastly, from anatomical
dissection.
In conducting such an inquiry the most trifling incidents connected with
the deceased should not pass unheeded, for however unimportant they may
at first, individually, appear, we shall often find that in combination
they will afford the principal data for the solution of our problem.
With how many examples will the history of crime present us where the
more minute circumstances have alone furnished the “damning proofs” of
guilt? Their apparent insignificance in such cases would seem to exempt
them even from the usual precautions of concealment, and more especially
from those artful measures by which the designing assassin seeks to cast
an impenetrable veil over the more direct evidences of his crime.
1. _Circumstances to be learnt by the Inspection of the Body._
That the inspection of the body could furnish the satisfactory means of
discovering the cause of its death, is an opinion which has been very
naturally entertained from the earliest ages; although it is easy to
perceive that the extent and just value of the indications, which such a
practice is capable of affording, could never have been appreciated
until the more advanced periods of physiological knowledge.
As the ancients exposed their sick on the high roads, for the advantage
of receiving from the casual passenger his opinion and experience
respecting the particular malady under which they laboured, so did they
expose the bodies of persons, supposed to have been murdered, in order
that each spectator might candidly observe their appearance, and freely
inquire into the circumstances which attended their decease; thus, as we
are informed by _Pliny_, was the body of _Genucius_, a tribune of the
Roman people, on his being found dead in bed, brought forth to the
assembled multitude, who, unable to discover any external marks of
violence, pronounced his death to have been a visitation of the gods;
and we learn from _Tacitus_, that the remains of _Germanicus_, who was
poisoned by _Piso_, were exposed in the market place of Antioch; thus
too, in conformity with ancient custom, was the bleeding corpse of
_Julius Cæsar_ exposed to public gaze and animadversion. The decisions,
however, which such a custom was intended to facilitate, were generally
perverted by the delusions of credulity and superstition. Among the more
prominent instances of the latter source of fallacy, we may notice a
belief that has extended even into later days—that upon the presence of
the murderer the wounds of his victim will bleed afresh!
“O gentlemen, see, see! dead Henry’s wounds
Open their congeal’d mouths, and bleed afresh!
Blush, blush, thou lump of foul deformity;
For ’tis thy presence that exhales this blood
From cold and empty veins, where no blood dwells;
Thy deed, inhuman and unnatural,
Provokes this deluge most unnatural.”—
_Richard_ III. _act_ 1. _s._ 2.
_Situation and attitude of the body._—It cannot be too generally known
that, upon the discovery of a dead body, its situation and attitude
should never be disturbed until it has been examined by competent
persons. The information which the medical inquirer may obtain from his
observations upon the position of the dead body, is often important and
decisive; it may even, in some cases, furnish data for determining
whether the death was occasioned by accident, suicide, or murder. We
may, for example, find the deceased in a posture which he could never
have himself assumed, whence we should be led to conclude that he had
not fallen by his own hands. In the case of the disputed suicide of the
_Earl of Essex_[8] in the tower, much information was lost by the body
having been stripped and removed before a due examination took place;
the hasty manner in which this was performed, excited on that, as it
necessarily must on all similar occasions, very considerable suspicion
respecting the motives which could prompt so premature and unnecessary
an interference. An attention to the posture of the body is also
important in cases of wounds, which should always be examined with
reference to this circumstance. It has also been very justly observed,
that a person in a fit, or in a state of intoxication, might fall
accidentally into such a posture, as to be actually suffocated by the
pressure of his own hand, or that of any resisting body upon his throat.
If such a case were to occur, all evidence of the fact would be
destroyed by any officious interference that might change the exact
posture in which the body was found.
_General appearance of the countenance, as to colour, vascular
turgescence, or congestion, and morbid physiognomy._—The observation of
the countenance of a deceased person will very frequently furnish the
medical inquirer with a useful hint in the investigation; we have, for
instance, already spoken of the expressive physiognomy of a strangled
person, (_page_ 45) and in the course of our work, the reader will find
ample illustrations of the general importance of the subject.
_Whether any discharge issues from the mouth, nostrils, ears, or any
other orifice._—The appearance of froth about the mouth indicates that
the death of the person has not been instantaneous, but sudden, either
from apoplexy, epilepsy, or any other violent cause, _see Appendix_,
_p._ 273. In drowned persons the mouth and nostrils are covered with
foam. In epileptic paroxysms there is sometimes an involuntary discharge
of fæces, urine, and semen; the evacuation of the fæces very generally
occurs in cases of strangulation, and sometimes in those of apoplexy.
The appearance of blood flowing from the ears would indicate a violent
death from some external cause.
_Apparent age of the deceased._—It is important to notice this
circumstance, as it will not only assist us in identifying the
individual, but, at the same time, point out the diseases of which he
was most susceptible, and those of which he was less liable. In relation
to such an object the question of age was keenly debated on the trial of
_Donellan_, for an account of which we must refer the reader to the
evidence printed in the _Appendix_. Apoplexy rarely occurs except in the
middle or decline of life. _Hippocrates_ says chiefly between the 40th
and 50th year. _Aphor._ _Sect._ vi, 57.
_Description of his person, as to bulk, stature, obesity, muscular
powers, &c._—Many are the reasons which render a full and accurate
investigation of these points an extremely important part of the
inquiry. To say nothing of their use in identifying the individual, they
will point out the diseases to which such a habit of body would render
him liable; and we shall be enabled to deduce a general inference as to
the probable state of his health. If suspicions should exist against any
individual, we shall be thus prepared to arrive at some probable
conclusion with regard to the degree of resistance which the deceased
might be able to offer; by comparing which with the powers of the
supposed assailant, some valuable circumstantial evidence may be
elicited.
_Conformation of the neck as to shortness, thickness, &c._—The
apoplectic conformation may be said to be indicated by a large head, red
face, short and thick neck, broad shoulders, capacious thorax, prominent
abdomen, low stature, robust limbs, and considerable corpulence; this
last indication, however, is liable to many exceptions, for dry and
spare constitutions, if any confidence is to be placed in the
comparative tables of _Rochoux_, are more frequently even attacked with
apoplexy, than the plethoric. Under this subject we may notice that the
habitual use of tight ligatures disposes to the disease. _Portal_ speaks
of an ambassador who was attacked with apoplexy, after having long
employed general compression, for the reduction of excessive corpulence.
_Dr. Donald Monro_ states that he has known soldiers carried off by
apoplexy, in consequence of stricture on the veins of the neck, from
their having been obliged to wear their cravats too tight. _Winslow_ has
made a similar observation in the Memoirs of the Academy of Sciences for
the year 1741.
_Probable period that has elapsed since the extinction of life._—Before
the process of putrefaction has commenced, we can only adduce an opinion
upon this subject from the circumstance of the coldness, rigidity, and
general complexion of the body. Under ordinary circumstances, the body
looses its vital heat in a very short space of time, and cadaverous[9]
stiffness takes place and continues until relaxed by the progress of
putrefaction; but there are many circumstances that appear capable of
controlling and modifying this general result; the heat of the body is
not only abstracted with very different degrees of celerity in different
situations, but even in the same situation, in death from different
causes. _Portal_ and other physiologists have observed, that after death
from apoplexy, the temperature of the body is frequently maintained,
even above the natural standard, to a period beyond that in which it
would be totally abstracted from an inanimate mass under other
circumstances.[10] It has been laid down as a general rule, that the
more sudden the death, the longer is cadaverous stiffness from taking
place, _M. Orfila_ also states, that if the body of a person suffocated,
either by a non-respirable gas, or by strangulation, be cold or stiff,
we may be certain that more than twelve hours have elapsed since the
fatal event, for in death by such causes, the heat of the body is
preserved for at least that period; this statement is corroborated by
_Richerand_, who says that in asphyxia from carbonic acid, the blood
preserves its fluidity, the limbs their flexibility, and the body its
natural heat for some hours after death. When the process of
putrefaction has established itself, we must deduce our conclusions from
the extent of its progress, always taking into consideration the
collateral circumstances which may have operated in retarding or
accelerating its developement, such as the state of the atmosphere in
relation to temperature and humidity, the particular circumstances of
the spot in which the body was found, &c.
The determining, as accurately as possible, the length of time the
individual has been dead, is not only important in cases of murder; it
may be highly essential to the ends of justice in questions of
survivorship; the following curious case, cited by _Dr. Male_,[11] will
not only serve to substantiate this assertion, but it will, at the same
time, afford a triumphant instance of the application of chemical
science in promoting the due administration of the laws. It is well
known that when dead animal fibre is exposed, for a certain period, to
the action of a current of water, it becomes converted into a fatty
substance, resembling spermaceti, and known to chemists under the name
of _adipocire_. The period of time required to effect this change has
been the subject of dispute. At the Lent assizes held at Warwick, in the
year 1805, a cause was tried, in which a gentleman, who was insolvent,
left his own house with the intention, as it was presumed from his
preceding conduct and conversation, of destroying himself. Five weeks
and four days after that period, his body was found floating down a
river. The face was disfigured by putrefaction, and the hair separated
from the scalp by the slightest pull; but the other parts of the body
were firm and white, without any putrefactive appearance. The clothes
were unaltered, but the linen was exceedingly rotten. On examining the
body, it was found that several parts of it were converted into
_adipocire_. A commission of bankruptcy having been taken out against
the deceased a few days _after_ he had left his home, it became a
question of great importance to the interests of his family, to
ascertain whether he was living at that period. From the changes which
the body had sustained, it was presumed that he had drowned himself the
day he left home; and to corroborate this presumption, the evidence of
_Dr._, now _Sir George, Gibbs_, of Bath, was required, as he had lately
been engaged in experiments[12] upon this subject. He stated on the
trial, that he had procured a small quantity of this fatty substance by
immersing the muscular parts of animals in water for a month, but that
it required five or six weeks to produce it in any quantity. Upon this
evidence the jury were of opinion that the deceased was _not alive_ at
the time the commission was taken out, and the bankruptcy was
accordingly superseded.
_Whether any, and what marks, punctures, contusions, echymoses,
dislocations, or other injuries, are to be observed about the face,
neck, chest, or any other parts of the body; and how far their
appearance and character demonstrate the nature of the operation, or
instrument by which they were inflicted?_—Upon the discovery of a dead
body, it becomes one of the first objects to ascertain the nature,
extent, and direction of any wounds, or marks of violence, that may be
observed. Whether they be merely superficial, or extend beyond the local
injury and penetrate the cavities, will be a matter of subsequent
investigation by dissection. The examination of deep wounds, in the
first instance, is comparatively unimportant, for they are not liable to
obliteration by incipient putrefaction; whereas marks and bruises,
unless they be carefully inspected before the body undergoes this
change, will not be easily distinguished from spontaneous
discolouration. This precaution is highly important in those cases in
which we suspect the person to have been strangled; when we shall
generally discover a circular mark about the neck produced by
extravasated blood, or, if the act has been committed by the hand,
irregular patches corresponding in some places with the fingers and
nails of the assailant; traces of violence will be frequently also
discoverable on the chest which will answer to the impression of the
knees. Upon examining the body of _Sir John Dinely Goodere_, who was
murdered on board the _Ruby_ ship of war in 1741, the surgeon’s mate
stated that he found the marks of nails and fingers on his neck; this
testimony was satisfactorily fortified by another witness, who declared
that on looking into the cabin, he had seen a hand on the neck of the
deceased. An accomplice also confessed that after having strangled him
with their hands, they drew a rope tight about his neck.[13] A very
satisfactory instance of the same kind occurred to the author of the
present work, during his residence in the county of Cornwall; and he
feels no inconsiderable satisfaction in reflecting upon the train of
circumstances, through which he was enabled, by his evidence at the
assizes of the county for 1814, to secure the conviction of the
murderer. The evidence was wholly circumstantial, and the relation of it
is well calculated to illustrate the great importance of the particular
line of investigation, which it is the object of the present chapter to
elucidate. For these reasons he is induced to compile from his notes the
following brief sketch of the case. A Cornish peasant, engaged in
attending upon the light-house on the western coast, was found dead in a
field near the public road leading from Penzance to the “Land’s end,” on
Sunday, December the 12th, 1813; he was lying in a dry ditch, with his
stick at a little distance from him; one of his shoes was down at the
heel, and both were smeared with mud; his pockets were empty. The body
was taken to a public house in the village, and the coroner having
received notice of the occurrence, an inquisition was taken, and the
verdict of wilful murder returned against some person or persons
unknown. The body was afterwards buried, but a rumour having arisen that
the anatomical inspection had not been sufficiently minute and
satisfactory, it was, by an order of the magistrates, disinterred; and
the author was desired to assist in the further investigation of the
subject. Upon examining the body, which had not yet advanced so far in
putrefaction as to obliterate the traces of violence, or to confuse the
appearances they presented, patches, arising from extravasated blood,
were seen in different parts of the throat, and distinct abrasions
corresponding with the nails were visible; the face presented the
physiognomy of a strangled man. On the chest, bruises, evidently
occasioned by the pressure of the assailant’s knees, were also noticed.
Upon dissection the brain was found excessively turgid with blood. The
rest of the organs appeared in a perfectly healthy, and natural
condition. It is worthy of remark that the field in which the deceased
was found contained several shafts of abandoned mines; upon visiting the
spot the author observed tracks in the grass, as if it had been scraped,
proceeding in a direction from the hedge next the public road to that in
the opposite part of the field, and under which the body was found; near
the former hedge also some fragments of a glass bottle were discovered.
The deceased, it appeared, had been at Penzance for some medicine, and
it was proved that he had left that town, on his return to the
light-house, with a phial in his pocket. All these circumstances
combined, placed the matter beyond conjecture. He had evidently been
strangled, probably at the spot where the glass fragments were found,
which were undoubtedly the remains of his phial, broken during the
scuffle; besides, it would appear that he had been dragged along the
field from this spot to the opposite hedge, for marks denoting such an
act were visible on the grass, and this received farther confirmation
from the condition in which the shoes of the deceased were found. Who
then committed the murder? From the circumstances of its having been
perpetrated in a field containing several old mines, without any attempt
on the part of the villain to avail himself of the advantage which these
caverns would have afforded for the concealment of the dead body, the
author was convinced that the perpetrator of the deed would be found in
some stranger to the country, for such a one alone could be unacquainted
with the mines to which we allude. The suggestion of this idea very
naturally gave a direction to the line of inquiry. Were any suspicious
strangers in Penzance or its neighbourhood? Had the deceased been seen
in the society of any person unacquainted with the country? He had been
seen, it was discovered, playing at cards in a public house with some of
the privates of the artillery stationed in the Mount’s Bay, amongst whom
was a very powerful and athletic Irishman, of the name of _Burns_, who
had lately landed, and immediately enlisted into the corps. _Burns_ was
accordingly arrested on suspicion, when the purse of the deceased
containing thirty shillings was found on his person. He was, moreover,
unable to shew where he was at the time the deceased left Penzance, in
the evening; and he was subsequently recognised by two witnesses who had
seen him accompanying the deceased on the road towards the Land’s End.
It is only necessary to add that he was convicted and hanged; and it is
not the least satisfactory part of this case to state, that on the
evening previous to his execution he confessed to the author, that all
the circumstances of the case occurred precisely as we have stated, that
he strangled his victim with a pocket handkerchief, but that from the
difficulty of completing the act, he was compelled to press his knees
upon his chest. In the year 1763, a person of the name of _Beddingfield_
was found lying near his bed, with his face on the floor, and with one
hand round his neck. It was argued that he had probably fallen out of
bed in a fit of apoplexy, and that the pressure of his own hand had
occasioned the marks that were visible on his throat; and a verdict was
returned in conformity with such an opinion. Circumstances,[14] however,
arose which excited a strong suspicion against the wife and a
man-servant named _Ringe_, and they were accordingly charged with the
murder, tried at Bury St. Edmonds, and condemned. Before execution the
man confessed that he had strangled the deceased, having seized him
while asleep by the throat, with his left hand.
_Whether the wounds observed in the body were necessarily of a mortal
nature, or sufficiently severe to have caused immediate death?_—It will
be generally impossible to solve this problem without the aid of
dissection, for although such injuries may appear extensive, we have
already in the course of the present inquiries shewn the fallacies to
which such indications are exposed, (_see our chapter on wounds, vol._
ii, _page_ 116) and the practitioner who ventures to give his judgment
on such an occasion, without adequate data, will render himself
contemptible in the eyes of the profession, and dishonest in the opinion
of the public.
_Whether they were inflicted during life?_—In discriminating between a
wound inflicted upon the living body, and one which has been artfully
occasioned after death, for the purpose of embarrassing judicial
inquiry, it will be essential to observe, whether any hemorrhage has
taken place, externally, or internally, and, moreover, to ascertain
whether the blood so effused had coagulated. An instructive illustration
of this point is furnished in the very extraordinary trial[15] of
_Green_, _Berry_, and _Hill_ in the year 1678, for the murder of _Sir
Edmonsbury Godfrey_, a zealous protestant magistrate, during the
pretended popish plots in the reign of Charles the second. It appeared
from the evidence of one _Praunce_, that _Sir Edmonsbury_ was strangled
by a handkerchief in Somerset house, on a Saturday night, and after
remaining concealed until the following Wednesday, he was carried at
midnight into the fields beyond Soho, where he was thrown into a ditch,
and his own sword thrust through his body, in order to excite a belief
that he had committed suicide. Upon the trial, Messrs. _Skillard_ and
_Cambridge_, surgeons, stated that the sword must have been passed
through the body after death, _as there was no evacuation of blood_,
which must have happened had such a wound been inflicted during
life.[15] With regard, however, the fact of hemorrhage being received as
a test of life, a few observations may be necessary; it must be
remembered that extensive wounds may be inflicted on the living body,
with but little or no effusion of blood, but such wounds always belong
to the class of _lacerations_, see _vol._ ii, _p._ 123. On the other
hand, the knife of the anatomist not unfrequently draws considerable
blood from the dead body, and wounds have been known to bleed long after
life has fled; a fact which, as we have already observed, has been
raised by superstition into prophetic importance. The orifice of a vein
that may have been opened during life will sometimes bleed afresh after
death; this occurred to a very considerable extent in the body of the
Prince Royal of Sweden, who had died of apoplexy. _John Lees_,[16] the
subject of the noted inquest at Oldham, bled after he was laid in his
coffin; but, under such circumstances, the blood is _never_ found in the
state of coagulation.
If it be determined that such wounds have been inflicted during life, it
then becomes important to solve the following questions.
_Whether they resulted from an act of suicide or otherwise; whether from
accident or design?_—There are certain acts of violence which we feel no
hesitation in declaring are not likely to be accomplished by the
individual himself; such are incisions, or gun-shot wounds on the back
of the body, and, perhaps, fractures of the skull; with regard to wounds
in the throat, the death of the _Earl of Essex_, during his imprisonment
in the Tower, has given rise to much speculation, and the reader will
find an interesting digression upon the subject in the history of
_Bishop Burnet_. Some stress has, in a late case, been laid upon the
fact of the wound being even and regular, which it was asserted would
not have happened had it been inflicted by the hand of an
assassin—_because any struggle would have made it irregular_. This is
really a refinement that we do not pretend to understand. Is not
convulsive action likely to disturb even the cold and calculating
admeasurements of the suicide? instances have frequently occurred where
even the chin has been cut during the operation, as in the case which
lately occurred near the Serpentine river in Hyde Park, and yet no
grounds existed to excite the least suspicion of murder.
Where the individual has perished by fire arms, the circumstance of his
fingers being found discoloured by the combustion of the powder in the
pan has been alluded to by authors as a proof of suicide, and it
certainly carries some weight with it, although the crafty assassin
might contrive to produce such an appearance. The state of the linen of
the deceased, as indicating the effects of a struggle, may furnish some
evidence upon these occasions; and cases have occurred where bloody
marks have been discovered on parts of the body, which, from their
situation, could not have been produced by the deceased. In _Hargrave’s_
State Trials[17] there is a very remarkable instance of a woman who was
found in bed with her throat cut, and a knife sticking in the floor near
her; three of her relations were in an adjoining room, through which it
was necessary to pass to the apartment of the deceased; the neighbours
were alarmed, and the body was viewed; these relations declared she must
have destroyed herself; but, from a particular circumstance, they were
suspected, and found guilty of the murder; for on the _left_ hand, was
observed the bloody mark of a _left_ hand, which of course could not be
that of the deceased. How often has the left hand[18] of the murderer
betrayed his deeds of blood!
_Whether the cloaths of the deceased betray any odour of spirit,
tobacco, sourness, or putridity?_—In every case of mysterious death it
is an important object to ascertain whether the deceased had been in a
state of intoxication; of which the odour of the clothes may in some
cases furnish a presumptive proof. It will be seen by consulting our
chapter on “Death by exposure to Cold,” that the life of an individual
may, under certain circumstances of intoxication, be extinguished by a
very slight degree of cold; _see vol._ ii, _page_ 60.
_Whether any articles have been broken or injured in the pockets?_—The
case of the Cornish murder related at page 27 affords an example of the
value of this inquiry; but in appreciating the indications which it may
furnish, we must view the circumstance in relation to the other features
of the case, when it may acquire an importance which the fact did not
individually assume; or it may lose by such a comparison the little
value which it appeared to possess.
_Whether there is reason to believe that the deceased had been
robbed?_—We are to derive from this question a probable argument in
support of the fact of suicide, for in such a case it is not reasonable
to expect any evidence of robbery. In the unfortunate case of suicide
lately committed in Hyde Park, a base sixpence was found in the pocket
of the deceased; had he been plundered, the robber would not have left
the base coin, which in the dark and hurry he could not have
distinguished. In the instance of a travelling empiric, of the name of
_Evans_, or _Evando_, as he called himself, for the sake of euphony, who
was found dead in a ditch in Cornwall, the exact sum was discovered in
his pocket, which he had taken in change at the last public house. Any
memorandum found on the person of the deceased, in his own hand-writing
intended to convey directions, or his last wishes, to his friends, is a
strong presumptive proof that he fell by his own hand. The remains of
any poison found about him is one of those facts that is equally
favourable to the suspicion of murder as of suicide. We must be allowed
to observe that upon the occasion of an unknown person being found dead,
some responsible individual should examine the contents of his pockets,
and having, if possible, acquired every information as to his name and
residence, he should carefully enclose every article so found in a
paper, and place his seal upon the packet, and his signature, and the
date of the event, upon the cover.
_If the deceased be a female, whether there be any marks or bruises that
would indicate the commission of a rape?_—The importance of this inquiry
need not be argued, nor is it necessary in this place to point out the
indications which may confirm our suspicions upon this subject. We must
refer the reader to our chapter on rape, _vol._ I, _p._ 416. The
interesting trial of Abraham Thornton, for the murder of _Mary Ashford_,
abounds with curious evidence upon this point.
2. _Circumstances to be learnt by an examination of surrounding and
collateral objects._
The information which may be occasionally derived from the state of the
objects surrounding the body, will be best illustrated by the numerous
cases in which they have furnished the principal means of discovery.
_Whether the spot in question be of a description to explain the cause
of the deceased having been found there; or how far its retired
situation excites the suspicion that the body has been conveyed thither
for concealment, or some other purpose?_—Having examined all the
circumstances which attach to the _person_ of the individual, we should
direct our attention to the spot in which the body is found. The Cornish
case which is related at _page_ 27, offers an admirable illustration of
the utility of such observations. The nature of the place may perhaps
suggest the probability of the person having fallen down from some
height, in which case any appearance of wounds must be examined with
reference to such a suspicion. We may also in the progress of such an
inquiry be led to conclude that the spot may have been infested with
some unwholesome vapour, destructive of life; the various circumstances
which may contribute to the generation of noxious air have been fully
examined under the head of _Suffocation_, _vol._ ii, _p._ 48, and were
we to discover a dead body in the vicinity of a lime-kiln, or in an
unventilated apartment, where charcoal[19] had been burning, or in a
cellar where carbonic acid might probably have accumulated, we should
derive an important clue for the investigation.
_Whether any indications of a struggle having happened on the spot are
visible on the ground, or herbage near the deceased; and whether any
footsteps can be traced near the body?_—The Cornish case presents itself
to us again in illustration of this question. There are also several
cases where impressions upon the snow have led to the detection of the
guilty party. In the case of _Wm. Spiggot_, _Wm. Morris_, _David
Morgan_, _Walter Evans_, _Charles Morgan_, and _David Llewellin_, for
the murder of _Wm. Powell, Esq._ at Glenareth, in Caermarthenshire,
March 30, 1770, footsteps were traced from _Powell’s_ house (a deep snow
having just fallen) to that of _Charles Morgan_, who was in consequence
apprehended, and did not long deny the fact. Some very interesting
evidence was delivered upon the subject of footsteps, on the celebrated
trial of _Abraham Thornton_, for the murder of _Mary Ashford_, at the
Warwick assizes of 1817. _William Lovell_, a workman at Penn’s Mills,
and several other witnesses, spoke as to the presence and direction of
the footsteps of a man and a woman, which approached each other at one
spot; their appearance shewed that the persons had been running, and
dodging each other, “as well from the stride, as the sinking in of the
ground, and the little scrape at the toe of the woman’s shoe.” The
footsteps were afterwards compared with the shoes of _Thornton_, and
found to coincide; the shoes, moreover, had a particular nail, called a
_sparrow bill_, the impression of which was also perceptible. The same
comparison was made with the shoes of the unfortunate _Mary Ashford_,
and with a result which appeared to be equally satisfactory and
conclusive. Instances have also occurred in which the presumption of
guilt against certain persons has arisen from the absence of such marks;
this happened in the murder of _Mr. Jeffries_, by _Elizabeth Jeffries_,
his niece, and _John Swan_, his servant, at Walthamstow, in July 1751;
in which case the perpetrators of the deed were suspected to have been
domestics, from the single circumstance of the dew on the grass
surrounding the house not having been disturbed on the morning of the
murder, which must have happened, had any persons left the premises.
_Has there been any thunder storm?_—For an account of the appearances in
the body of a person, who has been thus suddenly deprived of life, we
must refer the reader to our chapter on “Death by Lightning,” vol. ii,
p. 63. It will, at the same time, be right to consider, whether the
death of the person in question can have arisen from an exposure to the
rays of the sun, which has occasionally happened in the harvest
field—“And Manasses was her husband, of her tribe and kindred, who died
in the barley harvest. For as he stood overseeing them that bound
sheaves in the field, the heat came upon his head, and he fell on his
bed, and died in the city of Bethulia.” _Judith_, _chap._ viii, _v._ 2,
3. _Sauvage_ relates the case of several young persons, who suffered an
asphyxia from sleeping in an open field, exposed to the rays of the sun;
and it may deserve notice in this place, that in such cases, hemorrhage
from the nose is not an uncommon occurrence; the appearance of blood
will thus receive an explanation which might otherwise excite unjust
suspicions of violence.
_Whether any, and what weapons are lying near the body; and what is
their position in relation to it?_—Much light may be thrown upon the
inquiry by an attentive examination of the weapons found near the
deceased; and some interesting cases are recorded, wherein this
circumstance alone led to their developement. In the year 1764, a
citizen of Liege was found shot, and his own pistol was discovered lying
near him; from which circumstance, together with that of no person
having been seen to enter or leave the house of the deceased, it was
concluded that he had destroyed himself; but on examining the ball, by
which he had been killed, it was found to be too large ever to have
entered that pistol; in consequence of which, suspicion fell upon the
real murderers. The wadding of the pistol has also in several instances
offered the means of affixing the accusation on the guilty. The Lord
Chancellor, in a debate in the House of Lords, in November 1820, quoted
a very curious case in which the wadding of the pistol was found to
correspond with a torn letter in the possession of the murderer.
_If the body is found in the water, are there any and what reasons for
supposing that it was killed by other means, and subsequently thrown
into the water?_—This question has upon several occasions been discussed
with great eagerness; see _the Reports of the Edinburgh Colleges in the
case of Sir James Standfield_, in our _Appendix_, _p._ 225; and also
_Extracts from the medical evidence in the case of Spencer Cowper, Esq.
for the murder of Sarah Stout_, _ibid._ _p._ 230. We have already, under
the consideration of the phenomena of drowning, _p._ 35, endeavoured to
appreciate the true value of the several indications which have been
received as physiological evidence upon this subject, such as the
presence of water[20] in the stomach and lungs, the buoyancy of the
body, &c. We have therefore only to observe in this place, that upon
such occasions there will generally exist collateral circumstances to
fortify our judgment; where, for instance, mud, or sand, are found under
the nails, or any grass or weeds are discovered in the grasp of the
deceased, the inference will be strong that the person died under water;
on the contrary, if we discover mortal wounds, or any marks of violence
inflicted upon the body, by weapons, we may very justly suspect that the
deceased was murdered, and subsequently thrown into the water. But in
conducting this enquiry we must be aware of the fallacies to which it is
exposed; a person may in the act of drowning accidentally receive
bruises and lacerations, or he may have been driven against rocks and
stakes by the force of the current. The following case, related by _Dr.
Gordon Smith_, offers a very good illustration of this point. “A few
years ago, a man who had leaped from each of the three bridges into the
Thames with impunity, undertook to repeat the exploit for a wager.
Having jumped from London bridge he sunk and was drowned. When the body
was found, it appeared that both his arms were dislocated, in
consequence of having descended with them in the horizontal, instead of
the perpendicular position.” If we arrive at the conclusion that the
body was drowned, we have next to inquire whether the event was
accidental or malicious? and whether the act was perpetrated by the
deceased or others? The solution of these problems is to be generally
effected by the examination of what may be called the external
circumstances of the case; the locality of the water may be such as to
account for the deceased having accidentally fallen into it, or its
situation may at once preclude the possibility of such an event. The
suspicion of the person having been violently thrown into the water by
the hands of the assassin, will be fortified by the discovery of
footsteps on the brink, and by the indications of resistance on the part
of the deceased, as manifested by the appearance of bruises on the arms
and other members of the body. In the case of _Mr. Taylor_ who was
murdered at Hornsey, in December, 1818, marks of footsteps, deep in the
ground, were discovered near the new river; and on taking out the body,
the hands were found clenched, and contained grass, which he had torn
from the bank. If the person be found in the water tied hand and foot,
there is a strong presumption that he was forcibly placed in such a
situation; and yet there are two instances on record which afford very
extraordinary exceptions to the truth of such a conclusion. The one
occurred in the end of June, 1816, in the case of a gauging-instrument
maker, who had been missing from home for several days. His body was
discovered floating down the Thames; and on being taken out, his wrists
were found tied together, and made fast to his knees, which were in like
manner secured to each other. He had been in a state of mental
derangement for two years. The cord with which he had tied himself was
recognised as one that had hung from the ceiling over his bed, by which
he used to raise himself up, having been confined to his bed for several
weeks; he was a good swimmer, and it was presumed he had taken the
precaution to prevent himself from swimming. The verdict was “_found
drowned_.” The other instance occurred two years afterwards. A man, aged
28, with a wife and children, was reduced to great distress. On a
certain day he took an affectionate leave of his family, declaring he
would not return until he had obtained some employment, by which he
should be able to procure them bread. The following day his body was
taken out of the new river, with his hands and legs tied. A card with
his address was found in his pocket; and also three-pence; when he left
home he had five-pence, and it was supposed that he had purchased the
cord with the deficient sum. The verdict in this case was “_insanity_.”
_If the deceased be found hanging by the neck, whether he was suspended
during life, or hung up after death? Whether it was an act of suicide or
murder?_—In cases where the deceased has been hanged alive, we shall
find the trace of the rope in the neck very distinctly marked by a deep
discolouration; whereas, the effect occasioned by such a ligature upon
the dead body, will be far less striking. We have also to inquire
whether the deceased has any wounds, or whether, upon dissection, the
usual appearances are found which generally occur in hanged persons.
But, should any marks of external violence present themselves upon such
an occasion, we must judge of them with caution. They may perhaps be
purely accidental. _Dr. Male_ supposes a case in which the person, with
the view of speedily destroying life, may have thrown himself off with
violence, broken the rope, and wounded himself by falling upon articles
of furniture, and yet had sufficient fortitude again to suspend himself.
“An apprentice boy, in my neighbourhood,” says this author, “working
alone in an attic, tied one end of a rope loosely round his neck whilst
his master was from home, probably without any intention of destroying
himself, and twisted the other round the projecting part of the top of a
door, the planks of which were irregular and somewhat divided; a small
stool, on which he stood, slipped from under him, when he fell forwards,
striking his temple against the corner of a box which cut him to the
bone; he lay along the floor, his head and shoulders only elevated a few
inches above it; the cord not being tied, had run nearly its whole
length, and then caught between the planks of the door; in this state he
perished. The wound was magnified by popular rumour into many, and
vengeance was denounced against the innocent master, who was accused of
having first killed, and afterwards suspended the boy. On examining the
boy the mark of the cord was found to extend from ear to ear; the
vessels of the brain were turgid, the thyroid cartilage broken; the
nails blue, and the hands firmly closed. From this and other important
circumstantial evidence, the coroner’s jury were convinced that the
charge was unfounded.” _Dr. Smith_ remarks that, except in the instance
of children, or extremely feeble persons, it is very difficult to hang
an individual by force, unless the situation be remote, and no
interruption likely to take place; or the assailants be numerous and
powerful enough, (as in the celebrated case of _Porteus_) to set all
interference at defiance.
Persons have been accidentally hanged, as in the case above cited from
the work of _Dr. Male_, and instances are recorded where the operation
has been resorted to as a mode of exciting passion. In all such cases of
doubt and difficulty, each particular circumstance, however minute, must
be noticed—the nature of the ligature—the manner in which it is
fixed—the state of surrounding objects, are often capable of throwing
light upon the transaction. In the case of _George Hebner_, a tailor,
who was found hanging to the top of a bedstead, in a garret of a house
of ill-fame in Dean Street, East Smithfield, kept by a widow of the name
of _Hughes_, the manner in which the hands of the deceased were tied
behind his back, and his handkerchief was drawn over his face, proved
most decidedly that he had not strangled himself. Upon examining the
rope round his neck, it was found to have been fastened by what is
termed a sailor’s knot; in consequence of which circumstance a sailor
named _Richard Ludman_, together with the aforesaid _Eleanor Hughes_,
were indicted for the murder, found guilty, and executed.
_If the deceased be found in an apartment, whether it be in a house of
ill-fame?_—Although the act of sudden death in a brothel very naturally
excites the suspicion that some act of violence may have been committed,
yet this feeling should not be carried too far; we must remember that
the individual has been thus exposed, in an increased degree, to the
occurrence of several of those natural accidents by which life is so
suddenly extinguished; apoplexy, hæmopthysis, and syncope have assailed
those who might have been predisposed to such diseases, at the moment of
sexual indulgence. In persons advanced in life the trunks of the
internal, carotid, and basilary arteries are frequently diseased, and
are therefore very liable to rupture whenever the blood is accumulated
in any unusual quantity, or the circulation is preternaturally
accelerated.
3. _Circumstances to be learnt by the Interrogation of competent
witnesses._
It is merely necessary to enumerate the facts which it is our duty to
elicit by such an inquiry, in order to shew their importance and
relations; we shall therefore conclude this part of our subject without
any farther comments, and proceed to furnish such directions as may
enable the medical witness to complete his investigation by the
anatomical examination of the body, without which, our preceding
researches can never be received as satisfactory and conclusive.
“_Inspectio ejusmodi cadaveris adeo necessaria est, ut omissa ea, nihil
certi de reo statui possit._”[21]
4. _Circumstances to be learnt by Anatomical Dissection._
After the observations which we have already offered upon the subject of
wounds, it can be scarcely necessary to urge the necessity of a speedy
examination of the more superficial lesions, which are likely to be
effaced, or changed in character by the progress of decomposition;
“_putredo mutat formam cadaveris et lesionem_.” The deeper wounds may at
the same time be inspected, but the greatest care should be taken that
they are not extended during the dissection, for unless they be
preserved, as far as it is possible, in their natural condition, we
shall not be able to establish a satisfactory connection between the
external injury, and the internal lesions with which it may be
complicated. Having complied with these injunctions, we are to proceed
to lay open the cavities. The order in which these operations are to be
performed is not of much moment; but let it be generally understood that
the discovery of what may appear sufficient to account for death in one
cavity, ought never to prevent our proceeding to the investigation of
the rest.
_Dissection of the brain and its membranes._—The body having been placed
on its breast, and the chin raised and supported by a block of wood, the
anatomist must proceed by making an incision over the top of the head,
from the root of one ear to that of the other; and then by dissecting
off the integuments, so as to invert one flap over the face, and the
other over the occiput, he will be able to discover whether the scalp
has sustained any injury, as indicated by the presence of abscesses,
sinuses, contusions, and extravasations; he will, at the same time,
ascertain whether any fissure or fracture exist, or any morbid change
has occurred in the bone, such as sponginess, exostosis, caries, or
exfoliation. In performing this part of his duty, we trust he will not
mistake, as _Hippocrates_[22] confesses he once did, a fracture for a
suture, and vice versa. It is not always easy, however, to determine
whether a fracture discovered in the cranium, was produced during life.
If it should have occurred immediately before the death of the person,
there will be found coagulated blood upon the bone and in the fissures;
if the individual has survived for some time, there will be marks of
inflammation, and perhaps the formation of pus in contact with the
skull; but if a fracture has been occasioned in making the dissection,
an accident which may occur in the most careful hands, the blood in the
fracture will not be coagulated, nor will there be any effusion around
the portions. The skull-cap may be now removed; for which purpose the
cranium is to be sawed in a circular direction, about a finger’s breadth
above the superciliary ridges, and lateral sinuses; the operation must
be conducted with great care, or we shall be in danger of wounding the
_dura mater_; the bone must be then divided by a few slight strokes with
the chissel and mallet. We shall always find a strong adhesion between
the inside of the cranium, and the _dura mater_; partly, in consequence
of the small blood-vessels with which these surfaces are connected, and
partly, from the close application of the fibrous structure of the
membrane to the bone, and which will vary with the age of the subject,
and the form of the skull; the handle of the scalpel carefully
introduced will afford the best instrument for overcoming this
resistance, and will not be liable to lacerate the _dura mater_, or to
injure the brain. In effecting the separation, the _meningeal vessels_
frequently deluge the whole surface with blood, a circumstance that
deserves attention, in as much as their plenitude marks the congestive
state of the brain; it shews also that the blood is in a liquid
condition, a fact to which some importance has been attached, as it is
supposed to occur more particularly in cases of suffocation. The inner
surface of the skull may be inspected with the view of ascertaining
whether it be carious. The _dura mater_, thus brought into view, may
exhibit marks of inflammation; or coagulated blood or pus may be
discovered on its surface, especially in cases where external violence
has been inflicted; and it is particularly worthy of notice that such an
extravasation, or injury, is not necessarily under the fracture, or part
of the cranium upon which the violence that produced it, had been
received; on the contrary it often happens that disorganization occurs
in the hemisphere opposite to that upon which the blow was struck; a
phenomenon to which the term “_contre coup_” has been aptly applied.[23]
The _dura mater_ may now be removed and thrown back, by dividing it all
round the margin of the skull, and separating its attachment to the
_crista galli_ with a pair of scissars; before we part, however, with
this membrane, we should observe whether any osseous deposits,[24] or
other morbid alterations are visible in its texture; for such changes
are not uncommon in the _dura mater_, especially in the falx: the
_tunica arachnoidea_ thus brought into view may present various morbid
appearances; it may be opaque, or water may be found effused under
it.[25]. The _pia mater_ often exhibits its veins turgid with blood,
which indicates that some impediment had existed to the return of the
circulation from the head to the heart. It is very important to
distinguish between this appearance and that which is the result of the
inflammation of the membrane; in this latter case, it should be
remembered, that the small _arterial_ branches are the vessels gorged
with blood;[26] and which are so multiplied as to form, by their
numerous anastomoses, a beautiful network. In true inflammation also the
membrane will be found thickened. There is still another source of
fallacy with which the anatomist may have to contend in his examination
of this organ, a state of vascular congestion, arising after death, from
the effect of gravitation. In attending however to the position of the
head, and to the circumstances above mentioned, it will not be difficult
to establish a just diagnosis upon these occasions. Before cutting into
the brain, we should observe whether the convolutions are furrowed as
usual, for when much fluid is contained in the ventricles, as in
hydrocephalus, the _sulci_ are more or less obliterated. Such a change,
therefore, will offer a precaution to the anatomist, to proceed slowly
in his dissection, so that the accumulated fluid may not escape. Where a
person has been suddenly killed, while in a state of health, the
ventricles will, on examination, appear merely lubricated with a fluid;
but in cases where the patient has died after protracted disease, more
or less serum will be found in these cavities. In our examination of the
substance of the brain, we ought to notice its consistence and tenacity,
for in many recorded cases, a _part_ of the medullary mass has been
found so morbidly soft as to have assumed nearly the consistence of
custard; and it has been said to have occurred in cases of fatuity; it
seems, however, more correct to consider it as the effects of
inflammation: the phenomenon must be carefully distinguished from that
natural deliquescence which the _whole_ of the brain undergoes after
death, when in an incipient stage of putrefaction. In some instances,
the texture of the brain has been found tougher than is natural, and
even to have been dry and friable. (_See our observations upon the brain
in cases of mania_, _vol._ i, _p._ 327.) Scrophulous and encysted
tumours, hydatids, abscesses, and extravasated blood, may also occur,
and its cavities may be distended with fluid. The state of the larger
blood-vessels should be attentively inspected, for in persons advanced
in life there appears to be a strong disposition to disease in the
internal carotid and basilary arteries. The great importance of minutely
inspecting every part of the brain cannot be too frequently, or too
forcibly urged, in cases of forensic inquiry. The instances already
recorded (_page_ 16) are sufficient to sanction this assertion; and to
these, we may add the following illustration which is to be found in the
article _Cas Rares_ of the _Dictionnaire des Sciences Medicales_, by _M.
Fournier_, who was called upon for his opinion in a case of alleged
murder at Brussels.[27] The deceased had quarrelled with another man,
some blows had been interchanged, and he had died a fortnight
afterwards, emaciated and completely exhausted. Two of the lowest order
of practitioners in France, officiers de Santé, as they are called,
inspected the body, and pronounced that death had taken place in
consequence of the blows. _M. Fournier_ discovered an extensive
suppuration in the brain, with a very carious state of the inner surface
of the cranium, and learnt that the deceased had been afflicted with
head-aches for twenty years. He therefore declared it to be his opinion,
that the man had died of a disease of long standing. In this opinion we
concur, but it is not equally clear that the crisis was not accelerated
by the violence which he had sustained.[28]
We ought not to quit the examination of the head, until we have examined
the base of the cranium, in order to determine whether any fracture
exists in that part; a curious case is related by _Mr. Charles
Bell_,[29] of a person who died suddenly some weeks after having
received an injury of the head, when it appeared, on dissection, that
the base of the skull had been fractured, and that the _foramen magnum_
having been thus roughened, a sudden turn of the head had forced a
spiculum of bone into the spinal marrow. The brain has also received
fatal injuries from the introduction of pointed instruments through the
orbits; _Macklin_, the comedian, was tried for killing a brother actor
by the thrust of his cane. _Thomas Dangerfield_, one of the celebrated
and perjured witnesses on the Popish plot, in the reign of Charles II,
was killed by _Mr. Robert Francis_, by the blow of a cane, the end of
which penetrated the orbit.[30] The author also well remembers the case
of an old woman, who, in a fit of intoxication, fell to the ground upon
the stem of the tobacco-pipe with which she was smoking, when it
penetrated the orbit, and occasioned immediate death; the cause of her
dissolution was never suspected until after dissection, as no external
wound was visible. In some cases it may be considered expedient to
extend our anatomical researches into the spinal column, which may be
effected by sawing off the transverse processes. The cervical vertebræ
should always be examined where dislocation of the neck can be
suspected; for in such cases death may be produced without leaving any
external vestige of the injury. This has frequently occurred to coachmen
and others, who have been crushed while driving under low archways, by
which the nerves, necessary for the support of the vital organs have
been compressed or lacerated, and death has in consequence ensued. If
the cervical vertebræ should be dislocated, a general paralysis will
follow, and life can no longer be maintained. _M. Petit_ relates the
case of a boy suspended by the head, who striving to disengage himself
dropped down dead; and _Dr. Monro_ saw a case where four of the cervical
vertebræ were dislocated by a fall, which ended fatally in a few hours.
_Dissection of the contents of the thorax._—An incision must be made
through the integuments, in a straight line from the _os hyoides_ to the
navel; we are then to open into the cavity of the abdomen, for the sake
of affording the anatomist free space for his dissections in the chest;
and this is to be effected by incisions from the navel to each spine of
the ilium, so that we shall have thus described by our dissection a
figure resembling the letter Y inverted, thus [Inverted Y]. In
performing this part of our labour, it is essentially necessary to avoid
puncturing or injuring any of the viscera; where such a blunder has been
committed the dissection has lost much of its value. The integuments of
the breast are then to be carefully dissected so as to expose the
cartilaginous articulations of the ribs, which must be cut through on
both sides; the clavicles should also at the same time be separated from
the sternum, by dividing the loose cartilage which unites them. The
latter bone, together with the cartilaginous portions of the ribs, must
be next turned upwards over the face, so that the cavity of the thorax
shall be brought into view. In some cases it will be found expedient to
make a still more extensive exposure of this cavity; for which purpose a
broader flap must be turned up in front, by extending our dissection of
the parietes of the thorax farther towards the back; and, instead of
cutting through the cartilaginous extremities of the ribs, dividing the
bones themselves with a saw. In bending back the sternum, or flap in
front, we must take care and divide the _mediastinum_ with the scalpel
as near the bone as possible, in order to avoid making any opening into
the _pericardium_, which would otherwise be very apt to happen. As soon
as an opening is effected into the thoracic cavity, the lungs collapse,
unless the adhesions formed between them and the pleura should prevent
it. Our first object will be to observe whether any quantity of fluid is
present in the chest, and whether it be limpid, as in dropsy; turbid and
containing flakes of coagulated lymph, as in cases preceded by much
inflammatory action; or purulent, as in empyema. Having removed the
liquid, should any be present, by the application of a large sponge, we
must proceed to examine the lungs, as to their colour and general
appearance; and, by the introduction of a blow-pipe into the trachea, we
should by means of the mouth or bellows inflate these organs, so as to
ascertain the degree of distention of which they are susceptible. We may
at the same time inspect their structure more minutely by raising each
lobe with the hand, introduced into the cavity of the thorax for that
purpose. We are next to cut into their substance in order to observe
whether they are gorged with blood, and inflamed; whether they are
crepitous and light, or dense like liver; and whether they contain any
tubercles; should these latter bodies be discovered, we have to
ascertain their magnitude, extent, and maturity, and whether any of them
have been developed into _vomicæ_. The anatomist should be cautioned not
to mistake the deep colour, and compact texture which occur in the
depending portions of the lungs, from the mere accumulation of blood in
consequence of gravitation, for an inflamed state of the organs; in
which latter case a crowd of fine vessels injected with blood of a
florid colour furnish a diagnosis that cannot be mistaken.
In cases where a violent effort has preceded death, violet-coloured
spots containing venous blood may be perceived on the surface of the
lungs, and which are true ecchymoses, occasioned by the rupture of some
small vessels. Such phenomena must be carefully distinguished from the
livid, black spots, which have been observed in cases of narcotic
poisoning, and which are characterised by a more dense, and less
crepitating texture. In this stage of the dissection, we may
conveniently extend our examination into the trachea, and bronchiæ, and
observe whether these tubes contain frothy mucus as in drowning;
coagulated blood, as in pulmonary hemorrhage; pus, as in the event of
the rupture of a vomica or impostume; or ropy and tenacious mucus or
lymph, as in croup, tracheal inflammation, and bronchitis; or chyme, as
may occur in cases of intoxication, and diseases of the brain, where
vomiting has taken place during a state of insensibility.[31] We shall
at the same time be enabled to ascertain whether any mechanical
obstruction, from the presence of foreign bodies, exists in the
pulmonary passages, and which might have occasioned death to the
patient, as related under our history of suffocation, vol. ii, p. 57.
The _pericardium_ may now be laid open by a longitudinal incision, and
we should note the quantity of fluid found in this cavity; in that of a
healthy subject there is generally as much as a tea-spoonful of serum.
It is important also that we should observe the quality, as well as
quantity, of this liquor. Blood has occasionally been found in this
situation, when neither a rupture of the heart, or any of its vessels
could be discovered; in such cases _Dr. Baillie_ is of opinion that the
blood has either passed through the coats of the vessels upon the
surface of the heart, by transudation, or been poured out by the relaxed
extremities of the small vessels opening upon the surface of that
portion of _pericardium_ which forms the immediate covering of the
heart.[32] The general appearance of the heart, as to colour,
flaccidity, size, and external character, should be observed before its
cavities are opened; for the energy of the heart may, in some degree, be
inferred from the tension of its fibres, and the red colour of its
substance; on the contrary, the opposite appearances would indicate a
very different condition of this vital organ, as is well illustrated in
the _asphyxia idiopathica_ of _Mr. Chevalier_.[33] It is not very
unusual to find adhesions connecting the heart more or less closely to
the pericardium; and it is perhaps worthy of remark that the length of
these adhesions will furnish, in some measure, an indication of the
interval that has elapsed, since the occurrence of the inflammation by
which they were produced; for they become gradually elongated by the
heart’s motion. _Dr. Baillie_ has noticed in his “Morbid Anatomy” an
appearance which the author has frequently met with in his
dissections,—a white opaque spot, as if from a thickening of the
pericardium; in some cases, it is not broader than a sixpence, at other
times, it equals in size that of a crown piece; it is most commonly
situated on the surface of the right ventricle, and consists of an
adventitious membrane formed on a portion of the pericardium, which
covers the heart, and may be easily dissected off, so as to leave that
membrane entire. The attention of the enquirer is directed to the
subject with a view to remind him, that the appearance is one that ought
not to be considered as morbid in its origin, or dangerous in its
effects. In acute rheumatism a fatal translation of the disease to the
heart sometimes occurs, in which case, its surface will be found
encrusted with coaguable lymph.—The condition of the blood-vessels forms
the next object of research; and they should be examined previous to the
removal of the heart, as to their calibre, and thickness, and whether
any inflammatory indications are observable, or any aneurism; this
latter disease has often existed without exciting any suspicion during
life. In opening the body of George II, the aorta was found callous at
the lower border of its curvature, and so dilated at its upper border,
that it was as thin as the finest paper, in which part the rupture took
place, and which was succeeded by a fatal hemorrhage; and yet the king,
before his death, had not the slightest symptom that appeared to deserve
much attention. In every case of sudden death the heart should be
removed from the body for the purpose of examination, and no anatomical
evidence should be received as conclusive, unless such an operation has
been duly performed. For this purpose, the blood-vessels should be first
secured by ligatures, for it is very essential to prevent the effusion
of blood; and, having then separated it from its attachments, we should
proceed to examine the organ in the following manner. Slit open,
longitudinally, by means of scissars, the right auricle, at its
foreside, then make an incision from the mouth of the pulmonary artery
to the point of the heart, guarding against the accident of injuring the
two sets of valves; now cut open the whole length of the pulmonary
artery, except at its beginning, and at its valves, which ought to be
left entire; lastly, open the pulmonary veins, and then the left auricle
and ventricle, in a similar manner with what was done to the
corresponding parts of the right side.
We beg to direct the attentive consideration of the anatomist to this
important part of the inquiry; he ought to notice the quantity of blood
contained in the cavities of this organ, as well as its colour, and
state of coagulation, especially in relation to the arterial and venous
sides of the heart; the indications which such an examination may afford
will be fully appreciated by referring to our chapter upon “the causes
and phenomena of sudden death,” and that upon “suffocation.” In
examining the cavities of the heart, especially the ventricles, it not
unfrequently happens, that a mass of coagulated lymph, of a yellowish
colour, and of considerable firmness, is found to occupy them; this
phenomenon, from the manner in which its processes extend into the
fasciculi of muscular fibres of the heart, has acquired the name of
“_polypus of the heart_,” and was regarded by the older anatomists as a
very common and fatal disease. It is necessary to observe that the
phenomenon is now better understood, and it is universally admitted to
be the result of slow coagulation after death. The state of the valves
of the heart should be attentively inspected, for a disease in these
parts may have been the cause of the sudden death which we are
endeavouring to discover. The three _semi-lunar_ valves at the origin of
the aorta, and the _mitral valves_, are sometimes in a state of
ossification; those placed at the commencement of the pulmonary artery,
and the _tricuspid_ are less disposed to take on morbid action than the
preceding ones that occupy the arterial side; indeed, there are very few
well authenticated instances of such a change. Such a state of the
valves of the heart necessarily places the life of the individual in
extreme jeopardy, a rupture may be induced, and thus prove instantly
fatal, or the action of the heart may be suddenly arrested, and a fatal
syncope be the result; and from the suddenness with which death takes
place in such cases, there is no doubt that many persons so dying, have
been erroneously included in the list of apoplectic deaths. In certain
diseased states of the valves, the extremities of the body become
gangrenous, as if the heart were unable to propel its blood to the
extreme parts: the author well remembers two females who were admitted
into the Westminster hospital, with a disease of this kind, in which the
gangrene gradually extended upwards, and that, after death, the valves
of the heart were found ossified. The coronary arteries are occasionally
ossified, a circumstance which often accompanies a diseased state of the
valves of the heart, and that of the aorta; a change which has been
regarded as giving rise to the disease, termed _angina pectoris_, but
which would seem to be symptomatic of any morbid state of the heart. In
some cases the heart itself has been found ruptured; we have already
offered some observations upon this event, under the history of syncope,
p. 27. _Dr. Baillie_ has seen only one case, and in that, the blood
escaped into the pericardium, and the person instantly expired.
_Examination of the abdomen._—In proceeding to the examination of this
cavity, and its contents, the first appearance to be noticed, is that of
the _peritoneum_, in which we have to observe whether any marks of
inflammation exist, as displayed by a crowd of very small vessels,
injected with florid blood, and a change in the texture of the membrane,
by which it appears to be thickened, more pulpy, and less transparent.
The existence and character of any fluid in the abdominal cavity should
be noted, for its nature will be found to be immediately connected with
the nature and extent of the disease by which it has been produced; if
the liver be schirrous, the fluid will be tinged with bile, and of a
yellowish colour; if extreme debility accompany the disease, it will
often be of a chocolate colour, from the admixture of blood; should no
disease exist in any of the viscera, it will resemble that of the serum
of the blood. Previous to the removal of the viscera for more minute
examination, it will be proper to observe their general situation and
appearance, and to notice particularly whether the calibre of the
visceral tube be natural, distended, or contracted; in some instances
its diameter is sensibly diminished, as in cases of poisoning by lead.
It sometimes occurs that the intestines are glued together with
extravasated lymph; and, at others, that the abdominal viscera are more
or less joined together by adhesions, which are the effects of former
inflammation; these adhesions become gradually so elongated as to
produce little or no inconvenience. If upon opening the cavity of the
abdomen we should have reason to suspect the existence of any
perforations in the stomach or bowels, the anatomist must proceed with
great caution, so as not to enlarge their diameters, or alter their
appearance. In the case of _Miss Burns_, the medical report lost much of
its value, from the want of due precaution in this particular; _see our
account of the dissection_, _vol._ ii, _page_ 178. Should the contents
of the stomach or intestines have escaped into the general cavity, we
should be careful in collecting such matter, with a view to its future
analysis. The size and appearance of the stomach must be noted, and we
should observe whether any marks of inflammation, or gangrene, are
visible on its external surface; in tracing the intestinal tube through
its course, any appearance of inflammation, or phlogosis, should be
attentively examined; for which purpose a ligature may be passed at some
distance above and below the patch, and the portions of the intestine be
then removed. In many cases it will be essential to remove the stomach,
as where poisoning is suspected; for which purpose double ligatures,
about an inch asunder, must be placed above the _cardia_, and similar
ones in the _duodenum_; the division may then be made by the scalpel in
the space between them. The stomach should be examined without delay,
for no one who has not been engaged in such researches, can form an idea
of the rapidity with which this viscus loses its characteristic
appearances by exposure to air. The stomach is to be slit open with a
pair of scissars, care being taken that none of its contents are lost.
If the deceased had been found in the water, the quantity of that fluid,
found in this viscus, should be noted; and under such circumstances, the
presence of any weed, mud, or other extraneous matter, requires
particular notice. The quantity of alimentary matter will also afford an
object of remark, and it will be right to observe whether, by odour or
inflammability, the presence of any spirit can be detected. Having then
disposed of the contents of the stomach, and referred them to the
chemist for examination, we proceed to examine the viscus itself; in the
first place, we should be careful in ascertaining whether any white, or
shining particles adhere to its coats; if so, the substance must be
preserved for future analysis; the _cardia_ and whole interior of the
stomach is to be carefully inspected, and every indication of
inflammation, ulceration, gangrene, and schirrosity, is to be noted in
reference to its exact situation and appearance; with a view to deduce
an opinion as to the probability of its being the effect of poisonous
ingesta, or of recent, or remote disease. The mucous membrane of the
stomach should be squeezed between the fingers, and the nature of the
matter, if any should ooze out, must be noted, which on some occasions
will furnish a valuable diagnosis; where, for instance, the person had
died of _melæna_, a black matter, similar to that vomited will exude, a
phenomenon which is never visible in cases of acrid or corrosive
poisoning. We have already entered so fully into the history of gastric
perforations, that it will be only necessary to allude to them on this
occasion; _see vol._ i, _page_ 164. The state of the villous coat should
always be minutely inspected, we should however be cautious in
pronouncing every red appearance as indicative of inflammation; it may
in some cases depend upon the presence of colouring matter derived from
the ingesta; (_see the case related in vol._ ii, _p._ 231.) Nor ought
the state of the œsophagus to be overlooked, which in cases of poisoning
will afford an important indication; it should, therefore, be removed
from the body; had this dissection been performed in the case of _Miss
Burns_, the medical witnesses on that memorable occasion, would have
been spared, at least, one great cause of censure. It is not impossible
but that the œsophagus may be ruptured in a violent paroxysm of
vomiting, and thus be the cause of death. _Boerhaave_ relates an
interesting case of this kind, which occurred to _Baron Van Wassener_,
Admiral of Holland.
Rupture of the stomach is an occurrence which sometimes takes place from
the action of vomiting, during the progress of ulceration, when the
membranes of this viscus are nearly perforated. It also occasionally
happens from external violence. In the _Medical Repository_,[34] a case
of ruptured stomach is related by _Mr. Brown_, in which the accident
must have been occasioned by the action of the diaphragm and abdominal
muscles, at the time of exertion, the stomach of the individual having,
from disease, been less capable of sustaining any degree of violence.
The following are the particulars of the case; “A coal-heaver, aged 50,
whilst stooping in the act of lifting some coals, placed his hand
suddenly on the pit of the stomach, and complained of severe pain in
that situation; this was immediately succeeded by two deep sighs, when
he dropped down and expired. On dissection, the parts immediately round
the opening were in a higher state of vascularity than the rest, and put
on a decidedly torn appearance, which was also observable in the
peritoneal coat.”
In pursuing the track of the alimentary canal we have to observe whether
any marks of peritoneal inflammation present themselves; and whether any
signs of inflammation in the muscular or mucous coats are visible
through the transparent parietes of the intestine; and although no
appearance of this kind can be discovered on the external coat of the
bowels, we are not, on that account, to conclude that they have been
free from inflammation; we must persevere in our dissection, and slit
open the intestines in different parts, especially at the entrance of
the _ilium_ into the _colon_; the valve of the latter gut should also be
inspected; nor should the _rectum_ escape our attention, for its
extremity is sometimes inflamed together with the stomach, while the
intermediate portions of the canal are not in the least affected; this
peculiarity occurs in many cases of poisoning, as those, for instance,
in which colocynth or elaterium have been exhibited. An empoisoned
clyster may have been administered; or, as in the case of _King Edward_
II, a hot poker, or some other instrument thrust up the rectum. We
should also in this part of the dissection, ascertain whether any
_intus-susceptio_ has taken place, a derangement not very rare, and
frequently fatal; it consists in a portion of gut passing for some
length within another portion, and dragging along with it a part of the
mesentery; it may take place in any part of the canal, but it more
usually occurs in the small intestines, especially where the ilium
terminates in the _colon_; in the examination of infants an
_intus-susceptio_ is not unfrequently found, which had been unattended
with mischief, and in which the natural peristaltic motion of the
intestines would have easily disentangled them; but, in other cases, an
unrelenting obstruction is established, inflammation follows, and life
is soon terminated, as was exemplified in the case of the infant
Princess Elizabeth of Clarence.
The liver may present several morbid phenomena, which, in a dissection
instituted for the purpose of discovering the cause of death, ought not
to be overlooked. It may also be found ruptured, an occurrence which may
take place where little or no external injury can be perceived, as from
a sudden fall, or from the application of strong pressure applied to the
upper part of the abdomen, such as might be occasioned by the passage of
a heavy carriage over the body. _Morgagni_ relates several instances of
ruptured liver, by mechanical causes, without any considerable injury of
the integuments. In the _Medical Transactions of the College of
Physicians_,[35] a very interesting case is communicated by _Dr. George
Pearson_, of a young man who fell with his _right hypogastrium_ and
_epigastrium_, upon the edge of a pail, which he held in his hand, as
the sixth step of a ladder, upon which he was standing, suddenly broke;
his death happened ten hours after the accident, and upon dissection,
the right lobe of the liver was discovered divided, in an oblique
direction, through its whole substance, from its extremity on the right
side, to the border of the left lobe; the two portions being only
connected by the _vena cava_, and the trunks of the _venæ cavæ
hepaticæ_.
The author has been informed by _Dr. Harrison_ that, while at _Mantua_,
he saw a man who had received a kick on the right _hypochondrium_ from a
horse that he was shoeing; he did not complain of much pain at the time,
but exhibited an anxious countenance, and was attacked with
_coffee-ground_ vomiting. He died on the following day, and upon opening
the abdomen the liver was found ruptured, and the peritoneum
inflamed.[36]
The spleen may be brought into view for our examination by drawing the
stomach towards the right side, when the one viscus will follow the
other. This organ, like the liver, may be ruptured by violence; of which
we have already cited an instance[37].
The _pancreas_ is to be seen by tearing through the great omentum,
between the large curve of the stomach, and the arch of the colon. The
anatomist will proceed to the examination of the remaining structures in
the abdomen with a facility that renders any farther directions
unnecessary; we have only to repeat that in cases of forensic interest,
the inspection cannot be too minute. The appearance of the kidneys,
although not generally an object of dissection, ought to be noticed, as
it is frequently connected with the exhibition of poisons; like the
other solid viscera too, the kidneys may be ruptured by external
violence, and several instances are recorded of sudden death having been
thus occasioned.
_Examination of the uterus and its appendages._—In the case of a female
the organs of generation should always be inspected; very important
conclusions may be deduced from the discovery of an unimpregnated
uterus. In the case of _Miss Burns_, to which we have so frequently
alluded in the progress of our work, this part of the dissection was so
incomplete as to occasion considerable dissatisfaction. The uterus and
its appendages having been carefully removed from the body, we should
proceed to expose the cavity of the former by an incision, from near the
_os tincæ_ to the _fundus_, and by a transverse section at the _fundus_,
between the inner ends of the _fallopian tubes_. This organ is liable,
amongst other diseases, to inflammation, ulceration, schirrus,
tubercles, polypus, dropsy, and organised masses, or _moles_; upon which
we shall offer such observations as appear to connect the dissection
with questions of forensic interest. In an adult and unimpregnated
female its length is about 2½ inches; its thickness, 1 inch; its breadth
at the fundus 1½ or 2 inches, and at the cervix about 10 lines. Although
it returns after parturition to its original size, it never becomes
again so small as it was in the virgin. In women who have borne many
children, the neck of the uterus is generally thicker, and more rounded;
its orifice, or _os tincæ_, is always very gaping, and the lips more or
less irregular, presenting generally one or more grooves, or chops,
separated by what appear like tubercles. The _os uteri_ may, however, be
as regular in its figure in women who have borne children, as in others;
and on the contrary, it may present in the latter, those irregularities
which are more usual in the former; hence the inferences drawn from the
state of this part, in cases where infanticide is suspected, or where
parturition is supposed to have been concealed, cannot be received as
being unexceptionable, although they will add to the weight of evidence,
and assist us, in conjunction with other evidence, in attaining that
high degree of probability, which practically amounts to certainty. The
cavity of the _cervix uteri_ undergoes also a change in form and
appearance, which it is necessary to notice, although we are not
disposed to assign very great importance to its indications. In women
who have never borne children, the figure of the cavity may be said to
resemble that of two cones joined bases to base, more capacious in the
middle than at the two extremities; but, from the time of conception,
that extremity of the canal, which opens into the vagina, is dilated;
and, after parturition has once occurred, it is always found much wider
than before, when it represents a cone with the basis towards the
_vagina_, and the apex towards the _fundus uteri_. By a schirrous
enlargement, the uterus may arrive at a very considerable size. _Dr.
Baillie_ has seen it as large as the gravid uterus at the sixth month;
the cavity may also enlarge and contain a _polypus_, which is a very
common disease at middle or advanced age; it has been defined “a
diseased mass, which adheres to some part of the cavity of the uterus,
by a kind of neck, or narrower portion.” An attempt was made on the
trial of _Charles Angus_ to explain the appearance presented by the
uterus of _Miss Burns_, upon the supposition of an _hydatid_ having been
recently ejected from it, (_see vol._ i, _p._ 254.) Water has been known
to have accumulated in very considerable quantities in the cavity of the
uterus,[38] in some cases to the amount of fifty, sixty, or even a
hundred pints.
If a woman die from hemorrhage, or from any other cause in child-birth,
the appearances that will present themselves on dissection have been
thus clearly described by _Professor Burns_.[39] “The uterus is found
like a large flattened pouch, from nine to twelve inches long; the
cavity contains coagula, or a bloody fluid, and its surface is covered
by the remains of the decidua. Often the marks of the attachment of the
_placenta_ are very visible. This part is of a dark colour; so that the
uterus is thought to be gangrenous by those who are not aware of the
circumstance. The surface being cleaned, the sound substance of the womb
is seen; the vessels are extremely large and numerous; the fallopian
tubes, round ligaments, and surface of the ovaria, are so vascular that
they have a purple colour. The spot where the ovum escaped is more
vascular than the rest of the ovarian surface. This state of the uterine
appendages continues until the womb has returned to its unimpregnated
state. A week after delivery, the womb is as large as two fists; at the
end of a fortnight, it will be found about six inches long, generally
lying obliquely to one side; the inner surface is still bloody, and
covered partially with a pulpy substance like decidua. The muscularity
is distinct, and the orbicular direction of the fibres round the orifice
of the tubes very evident. The substance is whitish. The intestines have
not yet assumed the same order as usual; but the distended cæcum is
often more prominent than the rest. It is a month, at least, before the
uterus returns to its natural state, but the os uteri rarely, if ever,
closes to the same degree as in the virgin state.”
The ovaria are susceptible of very considerable enlargement by diseases,
so as to occasion the appearance of pregnancy, the most common of which
is dropsy; in some cases the whole substance is converted into a capsule
containing fluid, so large as to occupy nearly the whole cavity of the
abdomen. There is one phenomenon, connected with the morbid anatomy of
these organs, that deserves particular notice in this work, as being a
subject in some degree connected with judicial enquiry—the change of
these parts into a fatty substance containing hair and teeth! these
appearances have been often regarded as imperfect ova, in consequence of
impregnation, but it should be generally known that they take place
without any intercourse between the sexes, and appear to depend upon
causes very remote from those to which we allude.[40] In our examination
of the ovaria, it is essential to remark whether any _corpus luteum_ be
present; and upon this subject and the value of its indications, it will
be necessary to offer a few remarks. The _corpora lutea_ are oblong
glandular bodies, found in the ovaria of pregnant animals; they have
been regarded as the _calyces_, from which the impregnated ovum has
dropped;[41] they are largest and most conspicuous in the early state of
pregnancy, and remain for some time after delivery, when they gradually
fade and wither until they disappear. The phenomenon has been eagerly
seized by the juridical physician as furnishing an indication of
pregnancy; and, to a certain degree, the test may be admitted; but cases
have occurred in which a _corpus luteum_ has been found, where
impregnation could not have occurred;[42] it is probable that upon
certain occasions extreme salacity may disengage an ovum, and thus
produce the _corpus luteum_, although the former without sexual
intercourse can never be developed in the uterus; but this is an
exception to the general law of Nature, and the _corpus luteum_ may
still be regarded as a presumptive proof of pregnancy. _Mr. Stanley_, in
a very excellent memoir, published in the _Medical Transactions of the
College_, _vol._ vi, observes that “the _corpora lutea_ in the ovaries
of virgins may, in general, be distinguished from those which are the
consequence of impregnation, by their smaller size.”
After all that has been said, our opinion in a case of supposed
impregnation must, in the earlier stages, be formed from a review of all
the circumstances appertaining to the condition of the uterus, ovaria,
and fallopian tubes; and should these present such appearances as they
usually assume in pregnancy, and the condition of the mammæ should at
the same time agree with them, the proof is strongly presumptive;
although it must fall short of the demonstration which the actual
inspection of the _ovum in utero_ can alone afford.
The external parts of generation ought also to constitute an object of
inspection. We have already considered the degree of evidence which they
are capable of affording upon the subject of virginity, _vol._ i, _p._
203, 429. In examining the vagina, it will be necessary to observe
whether any shining or gritty particles are discoverable, (_see vol._
ii, _p._ 222.) It is also possible that some hard body may have been
introduced into the genital organs, for a felonious purpose; a trial for
a crime of this nature took place at Durham in the year 1781, when
_Magaret Tinckler_ was indicted for the murder of _Janet Parkinson_, by
having inserted wooden skewers into the womb, for the purpose of
producing abortion; it appeared on dissection that there were two holes,
in a gangrenous condition, which these extraneous bodies had occasioned,
and to which the deceased had fallen a victim. _East’s P. C. tit.
Murder._ Had these skewers been introduced after death, the appearances
would have immediately denoted the fact, and could not be mistaken for
the effects of inflammation and gangrene.
Having concluded our dissection, it will be right to preserve those
parts, from whose condition or appearance any legitimate deduction can
be made. In cases of poisoning, the stomach and intestines should be
kept, for we may require them in our subsequent experiments. In the
occurrence of eschars, perforations, and gangrenous, or inflamed
patches, the anatomist should remove such appearances together with a
portion of the surrounding sound parts, and he should carefully preserve
them in alcohol, or in salt and water; and in cases where the state of
the uterine system is involved in the inquiry, the uterus and its
appendages, should be removed. In the case of _Miss Burns_, the
witnesses must have experienced a considerable degree of satisfaction
arising from a precaution of this kind, for they were thus enabled to
obtain a confirmation of their opinion from the most eminent midwives in
London.
After this service has been duly performed, the body must of course be
committed to the grave; but should it not have been satisfactorily
identified, the head ought to be preserved in spirits, in as natural a
state as possible, that it may be recognised by the friends of the
deceased. A curious instance stands on record, where this precaution led
to the detection of the murderers. _Catherine Hayes_, and two
accomplices, _Billings_ and _Wood_, murdered the husband of the former,
cut off his head, and threw it into a dock near the Horseferry,
Westminster. The head was in a few days found, and exposed on a pole in
St. Margaret’s Church-yard, and afterwards preserved in spirits, by
which means the face of the deceased was identified, and the
perpetrators of the crime discovered, for which they were executed at
Tyburn in the year 1726.
EXAMINATION OF THE SKELETON.
It will appear in the course of the present inquiry, that the anatomist
may be called upon to examine a part, or the whole skeleton of a person
supposed to have been murdered; and his evidence upon such occasions
will be of the greatest importance. Convinced of this fact, we are
induced to offer the following observations.
The stature of the human skeleton varies very considerably in different
individuals; in the Museum of the College of Surgeons there is a male
skeleton, the height of which is eight feet two inches; while we are
informed by _Mr. Wilson_,[43] that he has seen a perfectly well formed
skeleton of an adult person which measured only thirty-five inches; and
a dwarf was lately exhibited in London of a still less stature; but in
this latter case, the head was disproportionably large. There may have
been some individuals a few inches taller, and others a few inches
shorter than these, but we have no authentic records of the human
stature exceeding nine, or at most, ten feet. The size and dimensions of
the human figure, notwithstanding the fables of antiquity,[44] appear to
have been much the same in all ages of the world. The Egyptian mummies
of three thousand years standing, exhibit no difference in stature from
the men of our own days; and we read that the Emperor Augustus was
considered by the Romans as a person of middle stature, and his height
is recorded as that of five feet, nine inches, of our measure.
In our general view of the human skeleton, two important problems
present themselves for solution—the _Age_, and _Sex_, of the individual
to whom it belonged. The skeleton of the fœtus, with which we shall
commence our observations, is capable of furnishing more satisfactory
data upon the subject of age than any examination of its softer
textures, which are necessarily less evident and regular in their
progress of developement. _M. Beclard_ has deduced from his examination
of above fifty fœtuses, the following calculations, which it may be
important to record. After two months have elapsed from the period of
conception, the skeleton is about 4 inches and 3 lines in length, that
of the spine being 2 inches. At three months, the former is 6 inches,
and the proportion of the spine as 2⅔ to 6. At four months and a half,
it is 9 inches, and the spine 4. At six months it is 12 inches, the
spine being 5. At seven months and a half, it is 15 inches, the spine
6⅓. At nine months, or at the period of birth, it is ordinarily from 16
to 20 inches in length; or, at a medium, 18 inches, and the spine is in
the proportion of 7¾ to 18.
Ossification does not take place with equal rapidity in every bone; the
ribs and clavicles are completely converted into bone long before birth,
while the bones of the _carpus_, _tarsus_, and more particularly the
_patella_, are not completed until some years afterwards; certain parts
of bones are not formed until after birth, as the _mastoid processes_,
and the projections of the _frontal sinus_; nor are the _epiphyses_
consolidated with the body of the bones, so as to constitute
_apophyses_, until many years. With regard to the general developement
of the skeleton after birth, it may be observed, that the proportion of
cartilage is in an inverse ratio to the age; reckoning from the
twentieth year backwards, the younger the subject the larger is its
head, compared with the trunk and limbs; the smaller the bones of the
face, but the larger the fontanelles; the flatter is the lower part of
the face; the larger the chest, in relation to the pelvis; the shorter
the limbs; the larger the clavicles; the smoother and flatter the broad
bones, but the rounder those that are cylindrical. (_See Albert Durer on
the proportions of the bones_, _Lib._ 1.) The chemical composition of
the bones, in relation to their _phosphate of lime_, and _gelatine_,
varies also very materially at different ages. It may be stated that the
quantity of the former substance deposited in the texture of bones, is
in the direct ratio of the age; the bones of the fœtus are at first
entirely gelatinous; at the time of birth, and during the first years of
life the organic part superabounds; in youth the quantity of each
constituent is nearly equal; in adults the calcareous earth forms almost
two-thirds of their substance; and finally, by gradual accumulation in
old age, its excess obliterates the organized parts; so that the
skeleton of the aged person may be distinctly recognised; besides which,
the sutures of the skull are generally lost, and the absorption of the
alveolar processes again imparts to the face the physiognomy of the
infant.
The male and female skeleton may be said to differ, not only in the
whole combination, or in the general impression, from a comparative
survey, but also in the form and properties of the individual parts. The
bones of the female are generally smaller, more delicate, and the
muscular impressions, and asperities are less distinctly marked on them.
The articulations are smaller, and the shaft or body of each cylindrical
bone is more slender in comparison with the articular ends; the frontal
sinuses are smaller, and the superciliary arches less prominent; all the
bones of the face are more slender; the figure of the alveolar circle is
more elliptical in both jaws; whereas in the male it is more circular.
The differences, however, are in many cases very equivocal, since they
may occur in the male as well as in the female skeleton; in the former,
where the individual has had a feeble constitution, and never used
active exercise; while in the latter, hard labour will frequently confer
upon her bony structure the masculine contour which we have described as
generally belonging to the male skeleton. The only decisive marks,
therefore, by which a female skeleton can at once be distinguished, are
to be found in the structure of the pelvis, and arise from the obvious
cause of the female possessing a proper frame to become a mother. The
pelvis of a female, at and below the _linea innominata_, formed by the
lower part of the inside of the _ileum_, and ridge of the _pubes_, is
much more capacious, from side to side, than in the male. The entrance
or brim of the cavity is also more oval, the greatest diameter being
from side to side. In the male it is more triangular, and the greatest
diameter at the brim is from the fore to the back part; there is not
much difference in the breadth of a male and female pelvis, belonging to
individuals of nearly the same height, if measured from the anterior
part of the spine of the _ileum_ to the corresponding part of the
opposite side; the difference in breadth is chiefly confined to the
basin-like part of the cavity. The _symphysis pubis_ is broader in the
female, and the angle underneath it is much more obtuse, the space
between the descending rami of the pubes is consequently larger. The
_sacrum_ is broader, less curved, and turned more backwards; this also
adds to the capacity of the cavity. The _os coccygis_ is more moveable,
and much less bent forwards so that it does not project so much into the
pelvis. The _tuberosities_ of the _ischia_ are farther distant from each
other, and from the _os coccygis_; and as these three points are farther
asunder, the notches between them are consequently wider, and there is
of course a much greater space between the _os coccygis_ and _pubes_;
and lastly the whole _pelvis_ is less massy, but more capacious and
shallow in the female structure.[45] There are, moreover, some striking
peculiarities to be discovered in the structure of the thorax, which if
not equally satisfactory with that derived from a comparison of the
_pelvis_, deserve serious attention. The whole thorax is shorter in the
female, larger above as far as the fourth rib, narrower below; more
moveable, less conical; more convex in front; more distant from the
_pelvis_, the interval between the last rib, and the _os innominatum_
being greater; less prominent anteriorly, so that when the trunk is
supine, the _symphysis pubis_ is the highest point in the female,
whereas in the male subject, the thorax is the most elevated; the
sternum is also shorter in the female, ending at the plane of the fourth
rib, while it reaches to the plane of the fifth in the male; the
clavicles are likewise less strongly curved, so that the _scapulæ_ are
thrown backwards; the female _scapulæ_ are, moreover, smaller,
slenderer, flatter, and have acuter angles than those of the male.
We have been thus minute in our endeavour to establish rules for
discriminating between the male and female skeleton, because it has been
a question of judicial inquiry. The supposed difficulty of ascertaining
the sex of a skeleton constituted a principal feature in the celebrated
defence of _Eugene Aram_ for the murder of _Daniel Clarke_, and which,
on account of its extreme ingenuity, has been introduced at length in
our _Appendix_, p. 311.
In examining detached and isolated portions of the skeleton, we must
take care not to mistake natural fissures and _foramina_ for the effects
of violence; we have already observed that the _sagittal suture_ has
been pronounced to be a fracture. But the most extraordinary
illustration of such an error that can be adduced, is that presented to
us in the history of a case that occurred at Exeter, and which the
author of this work is enabled to present in an authentic form through
the kind assistance of his friend, _Wm. Tucker, Esq. of Coryton,
Devonshire_, a gentleman, who has been too long known, and too
universally respected, as an active and upright magistrate, to render
any panegyric necessary on the present occasion.
THE CASE OF THOMAS BOWERMAN.
DEVONSHIRE.——_At the Devon Assizes in March, 1800, a Bill was preferred
before the Grand Jury against_ Thomas Bowerman, _for the Murder of_
Mary Gollop, _a Bastard Child of_ Sarah _his Wife, by another man,
previous to her marriage, at the parish of Uffculme, in the said
County_.
_Mary Gollop_ lived with her mother, the wife of _Thomas Bowerman_, in
_Bowerman’s_ house, at Uffculme, and had been often noticed on account
of the ill treatment she was known to experience from _Thomas Bowerman_.
About Michaelmas, 1797, being then about fourteen years of age, she was
reported to have died suddenly in her father’s house, and she was
accordingly buried on the first day of October, 1797, in the church-yard
of Uffculme.
In January, 1800, _Thomas Bowerman_ was committed to the Devon
Bridewell, at the suit of the overseers of the poor of Uffculme, on a
conviction for having ran away and left his children chargeable to the
parish of Uffculme. His wife was at that time dead, and _Elizabeth_, one
of his children, about twelve years old, had been removed to the parish
workhouse, and was there maintained at the expense of the parish.
_Elizabeth Stark_, the mistress of the workhouse, in a conversation with
_Elizabeth Bowerman_, mentioned to her, that on her father’s return from
Bridewell, after the expiration of his sentence, she would be sent to
her father’s house to be by him maintained and clothed. _Elizabeth
Bowerman_ burst into tears, saying she could never again live with her
father if he did return, as she was afraid he would murder her as he did
her sister. She then stated that her father killed her sister, _Mary
Gollop_, by pushing an awl into her head. She saw him do it, and he made
her mother and herself wipe up the blood, and said he would serve her
the same if ever she told of it.
_Mrs. Stark_ remonstrated with _Elizabeth Bowerman_ on the incredibility
of her story; but in spite of all admonition, she persisted in asserting
the truth of her statements, repeated without variance the particulars
of the case, and pointed out the part near the ear where the perforation
had been made. On the prevalence of this report, in the month of
February, 1800, it was judged expedient by the parishioners to consult
the Coroner, who ordered the disinterment of the body of _Mary Gollop_,
and held an inquest, by whom the skull was inspected, on which was found
a small hole of the size of an awl on the side of the head near the ear,
in the place that _Elizabeth Bowerman_ had pointed out.
The Jury thereupon returned against _Thomas Bowerman_ a verdict of
Wilful Murder.
The circumstances of this case excited the attention of the late _Mr.
Sheldon_, then living in Exeter. He obtained access to the skull, and on
viewing it declared his opinion that the hole in the skull, supposed to
have been made by an awl, was a natural perforation, and had not been
effected by an awl or any other instrument; and as proofs of his
position, he pointed out a small bed or channel leading from the hole,
which he said was made by the passage of a vein, and a sort of enamel
round the hole, which could not have been there if made by force or art.
In further illustration of this truth, he produced a dozen or more human
skulls having on them similar perforations variously situated, and each
hole having a small channel, and the rim or edge of the hole smooth and
polished.
_Mr. Sheldon_ attended the Grand Jury at the said assizes on the
investigation of this charge: before whom it is presumed he gave the
same testimony. The Grand Jury returned “No Bill” against _Thomas
Bowerman_ for the murder of _Mary Gollop_.
Another question of forensic interest has arisen upon this subject that
requires some notice. Whether there are not bones in the structures of
inferior animals, that so nearly approach those of the human species in
figure and appearance as to admit the possibility of their being
mistaken for them, by the superficial anatomist? It must be admitted
that there does exist a similitude in the skeletons of different
animals, of which the common observer cannot derive the least notion
from the shape of the parts they sustain, or from the general aspect of
their external form. _Bats_, for instance, appear to have wings, but an
attentive examination demonstrates that they are real hands, the fingers
of which are merely somewhat lengthened; still, however, it is the bones
of quadrupeds that can alone be mistaken for those of man, and of these
the cylindrical ones are the most likely to mislead us; for example, the
_Humerus_ varies little in its form, except perhaps in the proportional
length of the bone, and the elevation of its spines: the _Ruminantia_,
in general, have the _great tuberosity_ very high, and the _linea
aspera_ very prominent. To _Cuvier_ we are much indebted for the marks
of discrimination by which we may determine to what genus of animal the
isolated parts of a skeleton belong; and his researches have changed the
opinion regarding the character of many organic remains. Most of the
labourers in the Gypsum quarries about Paris are firmly persuaded that
the bones which they contain are, in a great part, human remains; but,
after having seen and carefully examined many thousands of them,
_Cuvier_ unequivocally declares that not a single fragment has ever
belonged to our species. Another similar discovery has been made by this
illustrious anatomist, in the history of the extraneous fossil bones
from the island of Cerigo, and deposited by _Spallanzani_ at Pavia as
human remains, but of which he affirms there is not one that ever formed
a part of the human skeleton; the same _tact_, if we may so express this
peculiar merit of _Cuvier_, enabled him to decypher the “_Homo Diluvii
Testis_” of _Scheutzer_, and to restore it to its true genus, the
_Proteus_.
We shall close our remarks upon the fallacies by which the bones of
quadrupeds have been mistaken for those of man, by the interesting
account of the remains which were found by _Belzoni_ in a sarcophagus in
the second pyramid of Egypt, and for a detailed relation of which we are
indebted to _Captain Fitzclarence_, in his overland route from India.
These bones were believed to be no other than the remains of _King
Cephrenes_, who, according to _Herodotus_, is supposed to have built the
pyramid, and to have been buried in its cavern; unfortunately, however,
for the antiquarian’s conjecture, _Mr. Clift_, of the College of
Surgeons, has satisfactorily proved that the bones in question are not
human, but belong to an animal of the genus _Bos_.
ABORTION AND INFANTICIDE.
Although a child _in ventre sa mere_ has for certain purposes civil
rights from the earliest period of conception, yet it was long
undetermined in what rank of crime the killing of a fœtus should be
placed. “It was anciently holden, says _Hawkins_, (_1 P. C._ 121) that
the causing an abortion, by giving a potion to, or striking a woman big
with child, was murder.” But at this day it is said to be a great
misprision only, and not murder, unless the child be born alive, and die
thereof, in which case it seems clearly to be murder, notwithstanding
some opinions to the contrary.[46] And in this respect the common
law[47] seems to be agreeable to the _Mosaical_,[48] which as to this
purpose is thus expressed. “If men strive and hurt a woman with child,
so that her fruit depart from her, and yet no mischief follow, he shall
surely be punished, according as the woman’s husband will lay upon him,
and he shall pay as the judges determine; and if any mischief follow,
then thou shalt give life for life.”
“It seems also agreed, that where one counsels a woman to kill her child
when it shall be born, who afterwards does kill it in pursuance of such
advice, he is an accessary to the murder.” _1 Hawk. P. C._ 121, and
authorities there cited.
By the old law[49] there was this difference between ordinary murder,
and the murder of _bastard_ children, that in the latter case the _onus
probandi_ was in some measure thrown upon the supposed criminal, a
practice totally at variance with our general principles of justice; and
though many fictions and judicial evasions were resorted to for the
purpose of softening the extreme rigor of this statute,[50] as by
supposing that very slight circumstances, as knocking for help when in
labour, providing linen, &c. took away the concealment,[51] yet the law
remained in nominal force till the passing of the stat. 43 _Geo._ 3,
_c._ 58, by which it is enacted that trials of women for the murder of
bastard children should proceed on the same rules of evidence as trials
for murder.[52] This part of our subject, therefore, might have been
considered under the general head of murder; but though the legal
distinctions which marked the crime of infanticide are thus removed,
there are yet so many peculiarities in the physiological mode of
collecting the evidence of its commission, that we have reserved it for
separate consideration, in conjunction with the offence of procuring
abortion to which it bears a close affinity.
The case of the _King_ v. _Phillips_, 3 _Campb. R._ _p._ 73, appears to
have been the first that was tried under the new law.
This was an indictment on the 2d sect. of _Lord Ellenborough’s_ act, 43
_Geo._ 3, _c._ 58, for administering _savin_ to a woman _not_ quick with
child, for the purpose of procuring abortion.[53]
The first count of the indictment charged that the prisoner on the 10th
day of January 1811, and on divers other days and times between that day
and the 20th of March in the year aforesaid, at the parish of St. Mary’s
in the county of Monmouth, wilfully, maliciously, unlawfully and
feloniously did administer to and cause to be administered to and taken
by one _Hannah Mary Goldsmith_, single woman, divers large quantities,
that is to say, 6 ounces of the _decoction_ of a certain shrub called
_savin_, then and there being a noxious and destructive thing, the said
_H. M. G._ on the said 10th day of January in the year aforesaid, and
continually from thence until the said 20th day of March in the year
aforesaid, at &c. aforesaid, being with child, but not quick with child,
to wit, at the respective times of administering such divers large
quantities of the _decoction_ of the said shrub called _savin_ as
aforesaid, with intent thereby to cause and procure the miscarriage of
the said _H. M. G._, against the form of the statute, &c.
It appeared that the prisoner prepared the medicine which he
administered to Miss _Goldsmith_ by pouring boiling water on the leaves
of a shrub: and the medical men examined, stated that such a preparation
is called _an infusion_ not a _decoction_,—which is made by boiling the
substance in the water.
The prisoner’s counsel insisted that he was entitled to an acquittal on
the ground that the medicine was misdescribed.
_Lawrence, J._ This objection will not hold. The infusion and decoction
are _ejusdem generis_, and the variance is immaterial. The question is,
whether the prisoner administered any matter or thing to this woman with
intent to procure abortion.
Witnesses were called for the prisoner to prove that the shrub he used
was not _savin_.
The counsel for the prosecution, insisted, that even in that case the
prisoner might be found guilty upon the last count of the indictment,
which charged that he administered a large quantity “of a certain
mixture to the jurors unknown, _then and there being a noxious and
destructive thing_.”
The prisoner’s counsel objected that unless the shrub was _savin_, there
was no evidence that the mixture was “noxious and destructive.”
_Lawrence, J._ In an indictment on this clause of the statute, it was
improper to introduce these words; and although they are introduced,
there is no necessity to prove them. It is immaterial whether the shrub
was _savin_ or not, or whether or not it was capable of procuring
abortion,[54] or even whether the woman was actually with child. If the
prisoner believed at the time that it would procure abortion, and
administered it with that intent, the case is within the statute, and he
is guilty of the offence laid to his charge.
The prisoner urged that he had given the young woman an innocent draught
for the purpose of amusing her, as she had threatened to destroy
herself, unless enabled to conceal her shame; and the Jury returned a
verdict of _not guilty_.
The prisoner had been previously tried on the _first_ section of the
statute[55] for the capital charge, in administering savin to Miss
_Goldsmith_ to procure abortion, she being then quick with child.[56] In
point of fact, she was in the fourth month of her pregnancy. She swore,
however, that she had not felt the child move within her before taking
the medicine, and that she was not then quick with child. The medical
men in their examinations, differed as to the time when the fœtus may be
stated to be quick, and to have a distinct existence; but they all
agreed that in common understanding, a woman is not considered to be
quick with child till she has herself felt the child alive and quick
within her, which happens with different women in different stages of
pregnancy, although most usually about the sixteenth or eighteenth week
after conception.
_Lawrence, J._ said, this was the interpretation that must be put upon
the words _quick with child_ in the statute; and as the woman in this
case had not felt the child alive within her before taking the
medicine,—he directed an acquittal.
It cannot be necessary here to repeat that the popular idea of quick or
not quick with child is founded in error;[57] yet as Acts of Parliament
are not often drawn, and seldom even reviewed previous to their passing,
by those whose profession, science, trade, or business, would best
enable them to convey their meaning with distinctness; and as penal
statutes must be construed strictly, and according to the ordinary and
obvious meaning of the words, we must be content to recognise a
distinction in law which does not exist in nature. There is, however,
another peculiarity in the two sections which are founded on this
distinction of _quick_ or _not quick_, which calls for immediate
attention; in the first of these, that which applies to women quick with
child, and in which the offence is made a capital felony, there is no
mention of _using any instrument or other means whatever_, but the crime
is confined to _administering_ any deadly poison, or other noxious and
destructive substance or thing; while in the clause against the minor
offence the use of _instruments or other means whatsoever_ is expressly
included. Now we shall have occasion hereafter to show that medicines
internally administered can seldom produce abortion, but that the effect
can be infallibly secured by instruments; the most probable mode
therefore of committing the crime appears to be protected by the most
penal clause.
A case[58] on this point is inserted in the _Edinburgh Medical Journal_
for April, 1810; we entirely concur in the sentiment of the editors; “we
cannot,” they say, “avoid remarking the apparent inconsistency of the
law of England, in having no statute to punish its actual perpetration
by the only certain means of effecting it, while it punishes by death,
without benefit of clergy, the attempting it by means which are very
seldom effectual. Thus _Pizzy_ was tried for attempting to cause _Ann
Cheney_ to abort, by giving her medicines, which had no effect; and his
having actually perpetrated the crime by mechanical violence, was only
brought forward as proving the intention with which the medicines were
given.”[59] The act therefore requires amendment, framed however with
such care, that the necessary practice of procuring premature labour by
qualified practitioners may be defended, while the immoral and criminal
use of instrumental abortion may be adequately punished.
PHYSIOLOGICAL ILLUSTRATIONS.
ABORTION.
Abortion[60] may be procured by the administration of powerful
medicines, or by the application of mechanical violence, such as blows,
or pressure on the abdomen; or by the introduction of sharp instruments
into the uterus, so as to rupture the membranes. We shall offer a few
remarks upon each of these several modes of accomplishing the criminal
object in question. From a very early period attempts have been made to
devise means of procuring abortion by the administration of certain
drugs, which were considered as capable of acting specifically upon the
womb, and of occasioning the exclusion of its contents. It would be idle
to enumerate the various substances which have, at different times, been
employed for such a purpose, not a few of which were derived from the
fertile sources of credulity and superstition; and yet we are bound to
admit, that upon this occasion at least, credulity has proved a blessing
to mankind, by suggesting the substitution of a harmless amulet, or an
inefficacious drug, for an application of extreme violence and danger,
and, perhaps of death. The physicians of the present age disclaim the
existence of any specific class of _abortives_, but we are ready to
admit that the administration of violent medicines, by involving the
uterus in the general shock thus given to the system, will occasion
abortion, provided there exist at the same time, a certain
predisposition on the part of the female; should this latter condition,
however, be wanting, the _poculum abortionis_ may, by the violence of
its operation, destroy the life of the unhappy mother, or very
materially injure her, without accomplishing the object for which it was
administered. In the case of _Mrs. Robert Turner_, one of the persons
poisoned by _Elizabeth Fenning_, notwithstanding the long and violent
sufferings she had experienced during her pregnancy, brought forth a
living child at the natural period. On the other hand, a grocer’s wife
in Edinburgh, having swallowed by mistake a handful of nitre, suffered
abortion in less than half an hour; and in the case of _Mrs. Atwood_, of
Mitcham, who with the rest of her family was poisoned by mushrooms, as
already related, (_vol._ ii, _p._ 431) although rescued from death,
miscarried in consequence of the violence which her general system had
sustained.
The medicines more particularly employed for procuring abortion are
_savine_,[61] and other irritating drugs, especially those which tend to
excite a considerable degree of vascular action; such medicines,
likewise, as exert a violent action on the stomach, or bowels, will be
likely to produce miscarriage, and are often taken for such purpose in
quantities sufficient to produce fatal results. _Mr. Burns_ observes
that it is an old remark that those purgatives which occasion much
tenesmus, will be more likely to excite the expulsion of the ovum. The
strong cathartics, however, which are sometimes taken to promote such an
effect, not only act by exciting tenesmus, but likewise by inflaming the
stomach and bowels, and thus affect the uterus in two ways. It cannot be
too generally known, adds the last mentioned author, that when these
medicines do produce abortion the mother will seldom survive their
effect. It is a mistaken notion that abortion can be more readily
excited by drastic purges, immediately after the woman discovers herself
pregnant; on the contrary, the action of the uterus is then more
independent of that of the other organs, and is therefore not so easily
injured by changes in their condition. Upon the same principle that
violent cathartics or emetics operate upon the pregnant uterus, any
other sudden shock upon the body will occasion a similar effect on that
organ; the extraction of a tooth, for example, has been known to produce
abortion. A thunder-storm, or violent cannonade, has been supposed to
occasion the same result by the concussion of the air; but _Mr. Burns_
considers it more probable that such an effect is owing to mental
trepidation. The influence of the passions upon these occasions, such as
fear and joy, especially if suddenly produced, is too well known to
require a comment, and it has been too often artfully excited for
criminal purposes. The same observation will apply to other violent
impressions upon the body, such as that occasioned by rapid and uneasy
travelling, dancing,[62] walking, &c. Blood-letting also, if carried to
any extent, will be liable to occasion miscarriage. _Belloc_ relates a
case in which these means were criminally used for such a purpose; the
woman was bled by a medical practitioner, when, after his departure, the
bandage was removed, and a farther quantity of blood taken. But all the
modes above related were soon discovered not only to be highly dangerous
to the woman, but extremely precarious in their results; and hence a
practice appears to have early originated of ensuring the exclusion of
the ovum by the more direct and certain method of introducing a stillet,
or some sharp-pointed instrument into the uterus; an allusion to an
instrument of this kind was made on the trial of _Charles Angus_ (_vol._
ii, _p._ 177) and was described as a _silver tube with a slide, at the
end of which was a dart with three points_. _Ovid_[63] appears to allude
to this operation in the following passage.
——“sine crescere nata.
Est pretium parvæ non leve vita moræ.
Vestra quid effoditis subjectis viscera telis;
Et nondum natis dira venena datis.”?
The practice is also reprobated by _Tertullian_,[64] who has described
the instrument with which the operation of penetrating the ovular
membranes was performed, “_est etiam æeneum spiculum quo jugulatio ipsa
dirigitur, cæco latrocinio_ εμβρυοσφακτην _appellant, utique viventis
infantis peremptorium_.”
It is hardly necessary to remark that such an operation, unless
performed by a skilful surgeon, will be very liable to endanger the life
of the female. _Guy Patin_ relates the case of a midwife who was hanged
at Paris for occasioning the death of a lady in that city, by an attempt
to procure abortion by this method. On her trial she said she had
frequently practised it with success; but, in this case it seems, the
instrument had pierced the body of the uterus, instead of passing
through the os internum. We have already noticed a parallel case which
occurred at Durham, see _page_ 72.
In cases of criminal abortion the medical practitioner may be called
upon to deliver an opinion upon the circumstances of the case. The data
from which he is to draw his conclusions have been already fully
investigated in different parts of this work. We must therefore refer
the reader to the Physiological Illustrations of Conception and
Parturition, _vol._ i, _p._ 230, and to our directions for conducting
the dissection of the uterus, _vol._ iii, _p._ 67, for the solution of
the different problems to which the consideration of the subject may
give origin.
INFANTICIDE.
In cases of alleged infanticide, the evidence of the forensic physician
is of the highest importance, and as his opinion upon such an occasion
must necessarily go far to influence the judgment, and direct the
verdict of the jury, he should be fully prepared to appreciate the
difficulties of the case, and to clear away the numerous fallacies, and
popular prejudices with which the subject is embarrassed. To _Dr.
William Hunter_, the profession and the public owe the deepest
obligation, for the philosophical and humane manner in which he examined
the general value of physiological testimony in proof of the commission
of child-murder. Previous to this enlightened dissertation[65] it is to
be greatly feared that many unfortunate women had fallen the innocent
victims of false theory and prejudice. The objections, however, so
forcibly urged by _Dr. Hunter_ against the validity of certain
physiological tests, although well calculated to awaken inquiry, in
order to divest such evidence of its fallacy, were not intended, as some
have imagined, to discard physiological testimony altogether. With this
conviction, we shall proceed to a critical examination of the various
proofs which physiology has been supposed capable of affording, in
support of an accusation of infanticide.
The objects of this inquiry may be conveniently arranged under four
divisions, viz.
1. _To ascertain whether the child was born alive?_
2. _If born alive, whether its death was the result of natural causes;
of wilful murder; or of negligence and abandonment?_
3. _If its death arose from the want of due care, whether such
negligence should be regarded as criminal or accidental?_
4. _Whether the woman accused presents on examination, such
appearances as correspond with her supposed relations to the child?_
Upon each of these heads we shall offer such observations as appear to
us to be essential to ensure the safe judgment of the practitioner.
Several of the questions, involved in the inquiry, have already engaged
our attention in the first volume of the present work, under the history
of conception; while the industry with which the numerous authorities on
the subject of infanticide, and its scientific relations, have been
lately collated by _Dr. Hutchinson_,[66] in England, and _Professor
Capuron_, in France, will justify us in giving to this branch of our
work the character of a commentary, rather than that of a regular
history.
On the discovery of the body of a newly-born infant, it becomes our
first duty to ascertain whether the spark of life be entirely extinct;
if the sensible proofs of absolute death should be absent, no time is to
be lost in subjecting it to those means[67] which are best calculated to
excite it to vigorous life, such as external warmth, frictions,
inflation of the lungs, &c.
Having satisfied ourselves that the child is dead, we are to proceed to
such inquiries, as may enable us to furnish the best possible evidence
on the case, in a court of judicature, viz.
1. _To ascertain whether the Child was born alive?_
In the absence of all direct testimony, our investigation is to be
conducted upon principles very similar to those which we have already
recommended in those obscure cases of death in which “the person is
found dead, and the history of his dissolution is unknown.” See _vol._
iii, _p._ 2. The appearances of the corpse—the character of the spot in
which it was found—the report of competent witnesses—and the phenomena
displayed on dissection, are, in both cases, the circumstances from
which we are to elicit data for the solution of our difficult problem.
A. _The inspection of the body of the infant._ By this we are first to
learn, whether it had arrived at that degree of maturity which is
essential for enabling it to sustain an independent existence—“_etoit il
viable?_”[68] If it can be fairly shewn that the child had not reached
the end of the seventh month of uterine gestation, the charge of
infanticide ought to be withdrawn, although we are well aware that
various opinions might be cited in support of a contrary position. (See
_Physiological Illustrations_, _vol._ i, _p._ 243.) The weight of the
child is a circumstance which should always be ascertained, as being
capable of throwing some light on the question at issue. If the fœtus
has passed the period of seven months, it will generally weigh four
pounds, although upon this point again a difference of opinion has
unfortunately existed.[69]
The length of the fœtus, at the full term, is said to vary less than its
weight. It is generally from nineteen to twenty-two inches. Seventeen
and twenty-six will include the two extremes. _Professor Chaussier_ has
presented us with a scale of relative admeasurements, from which he
thinks we may deduce the age of a child. He asserts that at the full
term of gestation, the middle of the body of the fœtus corresponds
exactly with the umbicus; at the eighth month it is two or three
centimeters higher; that it approaches still nearer the sternum at the
seventh month; and at the sixth falls exactly at the abdominal extremity
of that bone.[70] If this statement is to be relied upon, we should be
able to conclude, says _Dr. Smith_, that when the middle of the length
of the body falls at the cartilago ensiformis, the fœtus must be under
the seventh month, and consequently could not have continued to live
after birth.
The surface of the fœtus will moreover present an appearance, arising
from its great vascularity, which is very characteristic of its
immaturity; the red hue, however, to which we more particularly allude,
is not acquired until the vessels have attained a certain capacity, and
the circulation a considerable degree of vigour; and it is worthy of
remark that the appearance becomes again obscure, as the developement of
the fœtus advances, from the increasing opacity of the integuments, but
in those parts where the deposition of fat in the cellular membrane is
wanting, the redness will remain conspicuous, as in the palms of the
hands, or in the soles of the feet. The head still maintains an unjust
proportion to the rest of the body; the bones of which it consists are
extremely soft and yielding; and, on account of the extent of the
fontanelles, the connection between them is extremely imperfect. The
eye-lids are closed; the hair on the eye-brows and the eye-lashes but
thinly scattered; the pupil is generally closed by a membrane; the nails
are wanting, or scarcely apparent. The sexual organs will also afford
some characteristic appearances. In the male, the testes, between the
sixth and eighth month are in progress towards the scrotum; at the end
of the seventh they are not yet found there. The scrotum is generally of
a bright red colour. In females the vulva is projecting, and the labia
separated by the protuberance of the clitoris.
The general external appearance of a fœtus may, moreover, indicate the
important fact of its having been retained in the uterus after its
death. _Lecieux_ observes that the ordinary term which it remains in the
womb, in this state, is from five to twenty days; and that, according to
the length of this period, the body will have lost more or less of its
consistence and firmness; the limbs become lax, and the muscles are
readily torn; the epidermis may be removed by the slightest friction;
the skin also assumes a purplish, or brownish-red colour; there is often
some bloody serum effused in the cellular tissue, just beneath the skin,
especially about the cranium;[71] the umbilical cord is large in
circumference, soft, infiltrated with serum, livid, and is very readily
torn; the thorax is flattened, the head falls into different shapes, and
becomes flattened from its own weight; the membranes which serve as a
bond of union to the several bones of the cranium, are much relaxed. The
brain is in a nearly fluid state, and emits a fetid odour.
We should next proceed to a more minute and particular inspection of the
external appearances; for which purpose the body should be cleansed from
the dirt and impurities with which it may be invested, taking care to
notice upon this occasion, whether the surface be covered with that
sebaceous matter usually present on the skin of newly-born infants, and
whether any mud or other matter, capable of stopping the mouth and
nostrils be found about them. The head should also be shaved, in order
that the fontanelles and sutures may be carefully examined with a view
to ascertain whether any injury had been committed on the brain through
these avenues. A midwife was executed at Paris for having introduced
fine and sharp wires into these parts, before the heads of the
unfortunate infants were expelled from the vagina, and consequently
before respiration could have taken place. Every appearance of
ecchymosis, or wound, should be inspected with attention, in order that
its true character may be verified; and upon this occasion it will be
important to bear in mind that on the surface of dead bodies, especially
on those parts on which they have lain, superficial livid marks, arising
from stagnation of blood in the small vessels of the skin will very
generally present themselves, and which have received the name of
_sugillations_, in contradistinction to that of _ecchymoses_, which are
produced during the life of the individual. As the people, observes _Dr.
Hutchinson_, are apt to regard the former of these discolourations as
signs of violence, and as such propositions have even been maintained in
courts of judicature, it is highly essential to obviate the possibility
of litigation on this point, by removing a layer of the skin where such
lividness is present, to shew that it is confined to this organ, and is
not attended with infiltration of blood in the cellular tissue.
The appearance of wounds inflicted during life will vary according to
the length of time the subject has survived. If death takes place
immediately, they will present red and bloody surfaces, with ecchymosis.
Should life have lingered for some hours, their edges will be somewhat
tumid and retracted, and the surrounding skin will display a reddish
appearance; clots of blood may also exist in them, and these will be
found to adhere to their surfaces. In those cases in which several days
elapse before death, they may appear bedewed with purulent matter. _Dr.
Hutchinson_ very justly remarks that wounds, made when the circulation
has ceased, and the body become cold; and when the blood has coagulated
in the vessels, and the muscles have become rigid, may be known to have
been inflicted after death by the pallid appearance of their surfaces,
and by the total absence of tumefaction and retraction; such wounds,
moreover, never contain any adherent clots of blood, and there is no
surrounding ecchymosis. These characters may not perhaps be quite so
distinct, where the violence has been effected immediately after death,
while the body is still warm, the blood fluid, and the muscles endowed
with contractility; yet in this latter case there will neither appear
tumefaction, nor ecchymosis; and the blood, which may have oozed from
the divided surfaces, will remain fluid, or form clots not adherent to
them.
_Contusions_, effected during life, are always accompanied with more or
less of ecchymosis; and, if produced by severe external violence, the
skin will necessarily be involved in the injury. When ecchymosis is
superficial, and the subject outlives its course, its progress and
decline present highly characteristic phenomena; at first the injured
surface presents a spot of a red, or bluish colour; this spot which is
formed by the blood infiltrated into the cellular tissue, soon assumes a
deep livid, or leaden hue; it then after a few days becomes,
successively, violet, yellowish, and terminates by a pale citron colour.
It is generally seven or eight days before it disappears. These
characters will always enable the anatomist to distinguish contusions
made during life, from those occurring after death.
The state of the cervical vertebræ should also be carefully examined,
for the death of the infant may have been occasioned by a fatal
luxation, produced perhaps by some sudden contortion of the neck. Any
marks of pressure, or violence about this part should therefore be
carefully noted; and it will be obviously more convenient to examine the
spine, before the large cavities of the bodies are exposed; and which
may be accomplished in the following manner. After dissecting the soft
parts from the vertebræ, the dorsal parts may be readily removed by
scissars, while the apophyses of the true vertebræ can be very easily
cut through. The practitioner will thus be enabled to estimate the
nature and extent of any wound, or laceration, or effusion of blood,
that may be discovered in connection with the spinal marrow. The
appearance and condition of the umbilical cord should also be examined
before any of the great cavities are laid open; for it is obvious where
a ligature has not been properly applied to it, death may have arisen as
the result of hemorrhage from this part. Other reasons also exist which
render such an inspection of the greatest importance.
_Phœnomena displayed on the dissection of the internal parts._
The ample directions which have been already offered upon this subject,
(_vol._ iii, _p._ 45) will in a great degree supersede the necessity of
very minute details on the present occasion. There are, however, some
few phenomena that exclusively relate to the evidence of infanticide,
and must accordingly receive a due share of our attention. Certain
peculiarities, moreover, exist in the mode of conducting the dissection
of an infant, which demand some explanation.
_Cavities of the mouth, œsophagus, larynx, and trachea._
It will be adviseable to commence our incision through the integuments,
from the under lip to the top of the sternum, passing quite through the
former part; another incision is to follow the inferior margin of the
lower jaw; then the triangular portions thus marked out are to be
separated from the parts beneath; the head should be bent back in order
to put the soft parts that are to come under the knife upon the stretch.
The jaw may now be divided at its symphysis, so as to separate it into
two lateral portions, which may be turned aside by dividing with a
scalpel all the parts which adhere to its internal surface. The object
of this arrangement is to bring into view the cavities of the mouth,
œsophagus, larynx, and trachea, the condition of which is so frequently
connected with the death of the child that they ought never to escape
examination. The position of the tongue should be noticed, and the
contents of the mouth, if any, ought to be recorded, for cases have
occurred in which extraneous matters, such as mud, sand, feathers, &c.
have been accidentally, or criminally introduced. It will at the same
time be extremely proper to ascertain the state of the nasal cavities,
and to observe the quantity and consistence of the mucus in these parts,
as well as in the fauces. The tongue may now be gradually pulled
downwards, until the isthmus of the fauces is stretched, when, by
cutting through the arch of the palate, the whole of the pharynx will be
exposed; the dissection should then be extended in order to bring the
commencement of the œsophagus into view, which should be carefully
examined. The position of the epiglottis is the next object of
inspection; and lastly, the interior of the larynx and trachea may be
disclosed by making an incision through the thyroid, crycoid, and
tracheal cartilages, at their anterior parts. Ligatures should be placed
on the lower parts of the œsophagus and trachea.
_Thoracic cavity._ Having accomplished the examination above described,
we may proceed to expose the cavities of the thorax and abdomen, in the
manner already explained, (_vol._ iii, _p._ 52) remembering always that,
by carelessly wounding the thoracic viscera, we shall, in a great
degree, defeat the objects of the dissection; on this account it will be
advisable to make the division of the ribs with scissars, instead of a
scalpel. From the examination of these cavities we shall, in the first
place, derive a confirmation, or refutation, of the opinion respecting
the maturity, or _viabilité_ of the subject, which the external view of
the body had suggested. Previous to the end of the seventh month the
heart will be found exceeding in size its just proportions, and without
much difference of capacity between the auricles and ventricles. The
lungs will appear small, solid, and retracted from the anterior part of
the cavity. In the abdomen we shall find the liver very considerable in
size, and situated near the umbilicus, from which it afterwards
gradually recedes as the fœtus advances. The gall-bladder will be found
to contain a nearly colourless serous fluid, which during the eighth
month gradually becomes yellowish, and acquires a bitter taste. If the
appearances above described be compared with those which are displayed
on the dissection of a full grown fœtus, we shall be able to form a very
just estimate of the value of an anatomical investigation, in
discovering the term of its intra-uterine or fœtal life. But, by the
inspection of the thoracic organs, we endeavour to derive an inference
still more important; the state of the lungs is supposed to be capable
of indicating whether respiration have ever been performed; and,
consequently, whether the child was born alive. It is affirmed that the
lungs of the fœtus are small, not filling the cavities of the chest, or
covering the pericardium; dense; compact; of a deep-red, or chocolate
colour, not unlike that of the liver; carrying but little blood, and
having a specific gravity exceeding that of fresh water, and,
consequently, _sinking_ in that fluid. Upon cutting into them no air
will be emitted, nor will any blood follow the incision. When, however,
respiration has been established, these organs become more voluminous,
present a yielding elastic texture, and assume a florid-red colour;
they, moreover, contain and transmit a larger quantity of blood, and
have a specific gravity less than that of fresh water, and accordingly
_float_ in it. On cutting into the lungs, under these circumstances, the
air contained in their cells will escape, and produce a peculiar
crackling noise, which has been well expressed by the term
_crepitating_; a bloody fluid will at the same time exude.
That a change in the character of the pulmonary structure so important
as that just described should have attracted the notice of the
physiologist, and been eagerly seized, as evidence in proof of the
infant _having respired_, and therefore been _born alive_, cannot be a
matter of surprise; and we accordingly find that the _hydrostatic test_
long enjoyed the unreserved confidence of the profession and the public.
Whenever an infant was found dead, under circumstances of doubt and
suspicion, its lungs were removed from the body, and immersed in water;
if they sank, the subject of the experiment was immediately declared to
have been still-born. If, on the contrary, they floated, it was
concluded without farther enquiry, that the infant had lived after its
birth. The aphorism of _Baglivi_ may be received as an expression of the
general feeling so long entertained upon this subject. “_Pulmones fœtus
mortui in utero matris, si extrahantur, et in aqua ponantur, petunt
fundum; mortui vero extra uterum et aqua injecti innatent in ea. Quod
signum ad infanticidia detegenda est evidentissimum._”[72] The number of
innocent females who may have been thus sacrificed through a
physiological conceit, is a circumstance that must excite the most awful
reflection.[73] It is now well ascertained, and as generally admitted,
that the validity of the _hydrostatic test_, as usually applied, must
afford very unquestionable indications. _Bohn_,[74] _Hoffman_,[75] and
_Heister_,[76] have shewn that the lungs of a fœtus, born dead, will
under some circumstances, to be hereafter explained, float in water;
while those of one that has lived after its birth may sink in the same
fluid. _Dr. Gordon Smith_ is inclined to attribute _some_ of the
uncertainty, by which the minds of medical men have been obscured with
regard to the pulmonary tests, to confusion in the method of conducting
the experiment, for there is, says he, but one order in which the steps
can be taken, and if the anatomist should inadvertently resort to one
stage of the process before another that should have preceded, he will
baffle his own efforts. In commencing an examination of the thoracic
organs, we should, previous to the disturbance of the parts, notice
whether any morbid appearances present themselves, such as adhesions
between the lungs and the pleura costalis, &c. We should at the same
time observe whether the lungs be collapsed, or dilated, and whether
they cover the lateral parts of the pericardium. We then proceed to
separate the pulmonary organs from the body, in order to submit them to
the _hydrostatic test_, to which we have adverted. For the performance
of this dissection, _Dr. Hutchinson_ has given us so many complete and
satisfactory directions, that we shall here introduce them for the
instruction of the forensic physician. “Ligatures must be placed on the
aorta and venæ cavæ, near their attachment to the heart; the trachea is
then to be removed close to the bronchiæ; the vessels cut beyond the
ligatures; and the heart and lungs, attached together, removed from the
cavity of the thorax. If bloody, they should be cleansed with a sponge;
and then the colour of the lungs, their consistence and elasticity, and
their state with regard to healthy structure, be distinctly noticed,
without compressing them forcibly, or lacerating in any way their
structure. If the body generally be in a state of putrid decomposition,
it should be ascertained whether the lungs are also thus affected, and
in what degree. A livid colour from congestion of dark coloured blood in
the minute vessels, should not be mistaken for gangrene; an appearance
of this kind seems often to have the same origin as the lividness of the
surface of dead bodies. The lungs are to be turned with the bronchial
trunks downwards, that any fluid which may be contained in these tubes
may flow out; and whatever escapes from them should be preserved in a
clean vessel. These organs are then to be weighed in conjunction with
the heart. A vessel, of a foot or a little more in diameter, and of at
least a foot and a half in depth, is to be filled to the height of not
less than a foot with pure _fresh_, and if possible, _river_ water, the
temperature of which should be nearly equal to that of the air, unless
this be very cold or very hot. The lungs and heart, still attached
together, are to be placed in a gentle manner in this water. It must
then be remarked, whether they float near the surface, or sink to the
bottom; whether they fall suddenly, or descend slowly; whether the lungs
turn uppermost, and float near the surface of the water, or about the
middle of the fluid.
The heart is now to be separated from the lungs, having previously
applied a ligature to the pulmonary vessels, to prevent the escape of
the blood they may contain; and the weight of the heart alone then
determined, that it may be subtracted from that of the heart and lungs
together, as previously ascertained. The lungs are now to be placed
alone in the water, and great attention must be paid to the position
they assume in it; that is, whether they sink rapidly or slowly, or
float near the surface; whether, by reversing their vertical situation
in the water, they sink more readily or with more difficulty; and, if
any part constantly rises and is drawn under water by the rest, this
part should be particularly marked.
The two lobes must be separated, and the above-mentioned experiment made
with each distinctly, and any difference in the results remarked; if one
lobe float, and the other sink, it should be noticed whether it is the
right or left that floats. Each lobe is then to be cut into several
pieces, taking care not to confuse those of the right with those of the
left.”
Having examined the physiological principles upon which the _hydrostatic
test_ is established, and explained the manner in which it is to be
conducted, it remains for us to enumerate the several objections which
have been urged against its validity.
1. _A fœtus may breathe as soon as its head is without the vagina, and
immediately die._—This is one of the great arguments adduced by _Dr.
Hunter_;[77] “a child,” says he, “will very commonly breathe as soon as
its mouth is born, or protruded from the mother, and in that case may
lose its life before its body be born; especially when there happens to
be a considerable interval of time between what we may call the birth of
the child’s head, and the protrusion of its body. And, if this may
happen when the best assistance is at hand, it is still more likely to
happen where there is none; that is, where the woman is delivered by
herself;” and he adds, “if a child makes but one gasp, and instantly
dies, the lungs will swim in water as readily as if it had breathed
longer, and had then been strangled.” This opinion, however, must not be
received without qualification. We admit that under such circumstances a
portion of the lungs will become inflated, and therefore swim in water;
but it would appear from the more precise and comprehensive views of
later physiologists, that respiration is not completely performed on the
first effort, but that it is a process gradually advancing to
perfection; and that it will be more or less protracted according to the
degree of vigour of which the infant is possessed. _Portal_ has shewn by
experiments[78] that the air enters the _right_ lung sooner than the
left, and that the left lobe is very often not at all dilated for
several days. The same fact was observed by _Blancardi_.[79] _Dr.
Hutchinson_ states that he was informed by a late physician to the
Foundling-hospital at Naples, who opened daily, on an average, the
bodies of ten or twelve infants, which had generally died within
twenty-four hours after birth, that he hardly ever found more than a
very small portion of the lungs dilated by air; this portion was
frequently not larger than a walnut in its green shell, and but rarely
larger than a hen’s egg, and it was commonly situate in the _right_
lung.[80] “I have seen,” continues the author above cited, “a case where
the _right_ lobe, when separated from the left, sank in water, though
this was the most dilated by respiration, and the infant had lived forty
hours, and cried pretty strongly: but it died from suffocation by being
_overlaid_, as it is popularly termed, by the mother, which had produced
such an engorgement of blood in the lungs, as to counterbalance the
influence which the small quantity of air they contained could have
exerted on their specific gravity. A piece somewhat more than a cubic
inch in volume was the greatest portion that in this case floated in
water.”
2. _The lungs may have been artificially inflated._—It is so generally
known, observes _Dr. Hunter_, that a child born apparently dead may be
brought to life by inflating its lungs, that the mother herself, or some
other person, might have tried the experiment. It might even have been
done with a most diabolical intention of bringing about the condemnation
of the mother. There exists not a doubt but that such an operation would
impart buoyancy to the lungs, although the fact has been doubted.
_Camper_, _Jager_, _Schmitt_, and _Buttner_ decided the question by
numerous experiments.
3. _The lungs may float, in consequence of putrefaction._—We have stated
on a former occasion that the buoyancy of the human body is materially
influenced by the putrefactive process, (_vol._ ii, _p._ 40.) _Haller_
procured the lungs of a child that died before its birth. They were of a
dark red colour, and both when entire, and when cut in pieces, sank in
water. A portion being left to putrefy in water, the colour became
brighter, it was covered with air bubbles, ascended gradually as the
process of putrefaction advanced, and at length reached the surface,
where it continued to float. But in answer to the objection which such a
fact would seem to oppose to the validity of the _hydrostatic test_, let
it be remembered that the lungs are particularly unsusceptible of the
putrefactive process, and resist it longer than any of the soft parts.
So that the body must be very far advanced in decomposition before the
lungs are found to participate in it. _Camper_ instituted a number of
experiments upon infants, at Amsterdam, by exposing their bodies to the
action of water, as well as to that of air, and his results fully
confirm the fact we have just stated. _Ballard_ was called upon to
examine a child, the muscles of whose face were reduced to
“_boulli_”—were in a state of solution—and in which putrefaction had
advanced so far as even to prevent discrimination of the sex,
notwithstanding which the lungs immediately sunk. If we make incisions
into these organs, when in a state of advanced putrefaction, we shall
observe air bubbles of a considerable size, and running in lines along
the fissures, between the component _lobuli_ of the lungs; where such
phenomena present themselves we may be assured, says _Dr. Hunter_, that
the air is emphysematous, and not that which has been introduced by
respiration; for, in this latter case, the air bubbles will be hardly
visible to the naked eye. But there still remains another mode by which
we may determine whether the gas diffused in the texture of the
pulmonary organs be the effect of respiration, or decomposition. It
consists in pressing portions of the lungs between the fingers, or
twisting them in a folded cloth, with all the force we can command;
when, should the gas have arisen from putrefaction, the portions thus
treated will sink in water; a change which no force, however powerful,
will effect in those cases where the gaseous distention has arisen from
respiration.
From the view which we have taken of the _hydrostatic_ test, and of the
objections which have been urged against its validity, the practitioner
will be enabled to appreciate its importance. _Plouquet_, desirous of
procuring additional evidence, respecting the existence of respiration,
from the condition of the pulmonary organs, proposed a test founded on
the _absolute_ weight of the lungs compared with that of the body.
Respiration produces two important changes in them—by inflating their
texture it _diminishes_ their _specific gravity_; and by promoting a
determination of blood to their vessels, it increases their _absolute_
weight; upon the former of these changes, the _hydrostatic test_ is
founded, as we have already explained; on the latter, _Professor
Plouquet_ endeavoured to found his “_Nova Docimasia Pulmonaris_,” which
is now very generally known by the name of _Plouquet’s test_, or
_assay_. The blood-vessels, observes this distinguished physiologist,
being collapsed and compressed in the lungs of the fœtus, admit only a
small portion of blood; but after respiration, being dilated, and
extended, and more free in the expanded lungs, they receive a greater
quantity; in consequence of which they become still farther expanded,
and of greater calibre. As this increased capacity of the vessels is
necessarily _permanent_, a greater quantity of blood will remain after
death in the arteries and veins, and more especially in the latter, than
in the lungs of those infants who have never respired, and consequently
the _absolute weight of the lungs must be increased_.
In conformity with these views, _Plouquet_ found on examination, that
the body of a male infant, born dead, and which had not respired,
weighed 53040 grains, the lungs inclusive; and that these latter organs
alone weighed 792 grains; the proportion of the lungs to the body, in
weight, was therefore in this case as 1 to 67. In another infant, under
similar circumstances, he found the proportion as 1 to 70. On examining
an infant, born at the full period, and which had respired, the
proportion was found to be as 2 to 70, so that the weight of the lungs
was absolutely doubled by the act of respiration.
It would be a loss of time to enumerate the different objections which
have been urged against the validity of this test, on various grounds,
many of which admit of an easy answer. It is sufficient to state that
experiments, subsequent to those of _Plouquet_, by _Haartman_,[81]
_Struve_,[82] _Schmitt_, and _Lecieux_,[83] have shewn that no constant
relation between the weight of the lungs and that of the body, under the
circumstances above mentioned, can be established. The reason of which,
as _Dr. Hutchinson_ has justly observed, without considering the
influence of variation in the original construction of the body, is
sufficiently accounted for, by the great diversity in the manner in
which respiration is established in new-born infants. We have already
stated that, in a great proportion of them, it is but gradually and
slowly effected; and that several days even may elapse before the lungs
are fully dilated. _Dr. Gordon Smith_[84] is disposed to believe that
data might be obtained for a just conclusion upon this point, if
practitioners would institute farther inquiry into the subject; and,
with this impression, he has been induced to enter more fully into the
history of the test, than we deem necessary, believing as we do, that it
can never afford evidence sufficiently decisive for practical
application. _Daniel_ has proposed a modification of _Plouquet’s_ test,
but which is more objectionable even than that which he professes to
improve. The same physiologist considers that an inference may be drawn
from the increased circumference of the thorax, and the vaulted
appearance it assumes after respiration. The objections urged by _Dr.
Hutchinson_ to these latter indications appear to us to be unanswerable;
the circumference of the thorax, says he, varies so much in infants of
the same age and sex, both absolutely and in proportion to other parts
of their body, that it cannot be possible to obtain any decisive
evidence from it. The vaulted appearance of the chest is almost equally
fallacious in the generality of cases, or else it is devoid of utility;
because the figure of the thoracic parietes is not much changed until
respiration has been fully established, and then we have other and more
certain means of detecting its existence. Besides which, it appears from
the experiments of _Schmitt_, that the thoracic parietes were distended
outwards by artificial insufflation after death, as much as they are by
actual respiration as it occurs in the new-born infant. With these
remarks we shall dismiss the subject of _Docimasia Pulmonaris_, and
proceed to inquire whether the structure of the heart is capable of
affording any useful indications. There can be no doubt but that, some
time after birth, we shall find on inspecting the heart, evident marks
of the altered course of the circulation. The _foramen ovale_ will be
closed, and in extending our examination, we shall find that the _ductus
arteriosus_ and _canalis venosus_, have collapsed and assumed the
appearance of imperforated ligaments; but it must be remembered that
such changes require some time for their completion, and in cases where
the child has perished shortly after its birth, we do not believe that
the alteration in structure will be sufficiently obvious to afford any
information of practical application. The degree of importance which is
to be attached to the arched state of the diaphragm has been already
appreciated. The empty state of the urinary bladder and intestines has
been alluded to by some authors, as affording a degree of presumptive
evidence, since the evacuation of the urine from the former, and that of
the _meconium_ from the latter, are performed by most living children
soon after birth. We are, however, inclined to attach but very little
importance to such indications; and with regard to the _meconium_, every
practitioner in midwifery knows well that it is frequently evacuated by
the pressure of the maternal parts on the child during its passage
through the pelvis; especially in breech presentations.
The stomach and intestines ought, in every case, to be considered as
important objects of examination. It is possible that the trace of some
aliment may be discovered, if so, no further proof can be required as to
the child having lived. If any thing more than simple mucous fluid exist
in the stomach, it should be examined by chemical tests. This remark,
which we owe to _Dr. Hutchinson_, applies especially to the possibility
of poison having been exhibited; and on this point the mucous membrane
of the stomach will furnish useful evidence. If there should appear any
fluid in this viscus, resembling water, it will be necessary to examine
its nature, and to ascertain if any vegetable matters be present in it,
such as portions of weeds, straw, &c. In our examination we should
always keep in mind the possibility of the child having been destroyed
by _drowning_, _strangulation_, _poisoning_, and the _infliction of
wounds_, subjects which we have already so fully discussed in the second
volume of our work, that we do not consider it necessary to dwell upon
them in this place.
_The cranial cavity._—For the examination of this part _Dr. Hutchinson_
has given us some very minute and valuable instructions, of which we
shall avail ourselves. The cranial cavity, he observes, should be
exposed, by making, in the first instance, an incision through the
integuments of the skull, penetrating to the bone, from the root of the
nose to the spinous process of the second or third cervical vertebra;
another incision of the same kind should extend from one ear to the
other, passing transversely over the summit of the head. Each of the
four triangular portions of integuments thus formed, should then be
detached from the cranium, beginning at their apex and terminating at
their base. The temporal and occipital muscles should then be separated
in a similar manner. After examining the state of the cranium, the bones
may be removed by dividing the membranous connection between the
parietal, frontal, temporal, and occipital bones, with scissars. This,
however, should be done without lesion of the vessels of the brain, or
of the venous sinuses; in order to avoid the lateral sinus which always
contains fluid blood, and which is situated very near the mastoidean
angle of the parietal bone, _Dr. Hutchinson_ directs the anatomist, when
the point just indicated is approached, to deviate a little from the
membrane, and to cut the parietal bone itself near its margin. In the
first place, the view of the brain will afford presumptive evidence of
its age; previous to the termination of the sixth month it will appear
as a soft mass, equally white throughout its whole extent; in the eighth
month the cerebral substance will have acquired more consistence, its
interior will present a reddish colour, although its surface still
remains white. The _pia mater_, which in the earlier stages seemed only
to be over its surface, will now be found adherent to it; and some of
those grooves and undulations become apparent, which afterwards
constitute the circumvolutions. In pursuing the dissection of the brain,
the practitioner must be careful in noting every morbid appearance, such
as congestions, extravasations, &c., for the cause of death may have
arisen from the injured structure of these parts.
C. _The character of the spot in which the body was found_ will often
afford presumptive evidence of considerable weight, but in availing
ourselves of its indications, we must cautiously avoid the fallacies to
which it may give origin; to some of which we shall have occasion to
refer at a future period of the investigation. We next proceed to the
consideration of the several problems involved in the second division of
our inquiry, viz.
II. _Whether, supposing the child to have been born alive, its death was
the result of natural causes, of wilful violence, or of negligence and
abandonment?_
If sufficient proof should have been obtained that the child was born
alive, we have to inquire into the causes of its death; upon which the
anatomical dissection will have thrown some light, and in a great
measure, prepared our decision. Medical writers on the subject of
infanticide have very judiciously considered the modes of violent death
in new-born children, as divisible into two great classes, viz. those of
_omission_, and those of _commission_. It will be convenient for us, on
the present occasion, to arrange our remarks with reference to such a
division.
_Death by omission._—For want of due care the child may perish during,
or immediately subsequent to, the labour. It may die from suffocation
caused by the viscid mucus naturally existing about the pharynx and
glottis in newly-born infants getting into the trachea, especially _if
the infant has lain on its back for some time after its delivery_; or
suffocation may be occasioned by the discharge of blood from the mother,
or by the wet linen over it, collapsing and excluding the air, or by
being drawn close to its mouth and nose by the suction of breathing.
Children are, moreover, often born with a portion of the membranes over
the face, which, if not removed, must impede respiration. In some cases
strangulation is produced by the umbilical cord; the livid circle
therefore round the neck, which without due consideration, might seem to
afford a proof of criminal violence, is to be regarded with reference to
the probability of such an occurrence; it is possible, adds _Dr.
Hutchinson_, that the navel-string may be twisted round the neck of the
infant, but loosely, until the body is nearly expelled; and then, if the
placenta be firmly retained in the uterus, it may become tightened, and
cause suffocation. These circumstances may happen when there is no
person about the woman to render her proper assistance; and, therefore,
careful examination is necessary, in order to ascertain, if, with the
livid circle round the neck, there are marks of nails, or points of
fingers, or excoriation of the skin. The breadth of the mark, also, and
whether or not it makes a complete circle, with the ends exactly
meeting, and without deviating from this circle, should be carefully
noticed; the latter circumstances conjoined cannot arise from a natural
twisting of the navel string. The livid part should be carefully
dissected, in order to ascertain if there are ruptured blood-vessels
corresponding to it, whether the trachea or larynx be flattened, or
their cartilaginous rings laterally compressed; for it is asserted that
such injuries never can occur from the natural twisting of the navel
string. The practitioner will be enabled by the foregoing remarks to
appreciate the value of that indication, upon which the vulgar have ever
laid much stress,—the swollen and red appearance of the countenance.
_Dr. Hunter_ has made the following judicious observation upon the
phenomenon: “when the child’s head or face looks swollen, and very red
or black, the vulgar, because hanged people look so, are apt to conclude
that it must have been strangled. But those who are in the practice of
midwifery know that nothing is more common in natural births; and that
the swelling and deep colour disappear gradually, if the child lives but
a few days. This appearance is particularly observable in those cases
where the navel-string happens to gird the child’s neck, and where its
head happens to be born some time before its body.”
A woman suffering labour alone may have the fœtus escape from her, and
fall to the ground, on its head, and be thus killed; or she may
unexpectedly be seized with pains in situations at once destructive to
the child. In the case of infants being found in privies, this
circumstance ought not to escape our remembrance. A woman was tried at
the Old Bailey for the murder of her child, by dropping it into a privy.
She declared that while there for a natural purpose, an uncommon pain
took her, the child fell, and she sat some time before she was able to
stir. On this occasion, we learn from _Dr. Gordon Smith_, that a
practitioner was examined on the possibility of such an event; who
stated that an instance came within his own knowledge, where, while the
midwife was playing at cards in the room, the woman was taken suddenly,
and the child dropped on the floor. To this the author just cited adds
another illustrative case. It recently happened, says he, in the circle
of my own acquaintance, that a lady who had borne many children, and
must therefore have been alive to the import of uneasiness in the last
hours of pregnancy, was sitting in company at dinner, and perfectly free
from any consciousness of approaching labour, when she experienced an
irresistible impulse to repair to the water-closet. She had scarcely
arrived there when she was delivered: now had the place of retirement
been differently constructed, this infant might have perished. It will
very properly be urged that a woman, on finding what has happened,
ought, if her feelings and intentions were honest, to give immediate
alarm. This is true, but says _Dr. Smith_, we must admit, in the first
place, the possibility of her not being able to do so, in consequence of
the effects of the occurrence on her own person; and, in the next place,
it is but just to allow that, although an alarm, after she has fully
recovered, might secure her in the case of trial, yet as it can be of no
use in restoring the life of the child, the idea of concealment will
more naturally arise.
A very remarkable case, in illustration of the subject under discussion,
is related by _Burnett_, in his _Treatise on the Criminal Law of
Scotland_. “It occurred at Aberdeen in September 1804. The girl had
become pregnant in circumstances peculiarly disastrous; actuated by the
strongest impulse of shame and remorse, she concealed her situation from
every one, and ascribed her appearance to cold she had caught. On the
day of her delivery she had been to market, and in returning home
accidentally slipt her foot, and fell into a mill-pond, where she would
have been drowned had she not obtained immediate assistance. She was
carried all wet into an adjoining malt-kiln, where there was a large
fire, and left under the charge of another woman. The latter having gone
out for a very short time, leaving the girl sitting by the fire, found
on her return that she had been delivered of a child. The infant was in
life, and lying at the extremity of the ashes near the fire. The girl
said that her pains came on unexpectedly while sitting by the fire, and
that she became insensible and could give no assistance to her child. No
violence appeared on the body of the child, but it appeared to have been
scorched by the fire, which occasioned its death a few hours thereafter.
The prosecutor consented to a petition for banishment.”
The next circumstance which deserves notice under the consideration of
the causes of death, by _omission_, is that of _neglecting to divide the
navel-string, and to apply a ligature to the infantine portion of
it_.—With regard to the value of the presumptive proof of criminal
intention which such neglect may offer, there are several very weighty
objections, and which have been enumerated by _Dr. Hutchinson_, in the
following order. 1. The infant may perish during its birth from
hemorrhage from the placenta, or rupture of the navel string, and the
mother may, or may not, have divided the latter. 2. The child may have
lived after its birth, and the mother may have torn or cut asunder the
navel-string, and finding no hemorrhage ensue she has not been led to
put a ligature on the infantine portion, and afterwards hemorrhage has
taken place from it, from which the infant has died. 3. The mother may
discover the hemorrhage in the last mentioned case, and may apply a
ligature to the navel string, but too late to preserve the infant’s
life. 4. The blood of the mother may be artfully placed about the child,
and the navel string left untied; and the mother may wish to have it
appear that the infant perished from hemorrhage occurring unknown to
her, and that she was not aware of the necessity of tying the
navel-string, even though it be found that she had _cut_ it, not _torn
it asunder_ with her hands. In the first three cases we shall find, on
dissection, evidence of extensive hemorrhage, as indicated by the
emptiness of the heart and blood-vessels, paleness of the viscera, &c.
In the last case, the proper fulness of the arterial and venous systems
will betray the imposture. It is impossible, as _Dr. Hutchinson_ very
candidly admits, to trace any rules of general application respecting
the first three cases. The decision must be partially founded on various
collateral moral circumstances, which come especially within the
province of the jury.
_A new-born child may perish from exposure to cold._ This cause of death
will be indicated by the character of the place and circumstances under
which its body was found. The appearance of the corpse, upon such an
occasion, will also assist our judgment; there will generally be a
paleness of the skin, and a vacuity in the superficial vessels. _It may
perish for want of nourishment._ But let it be remembered that new-born
children are seldom, or never, famished to death, within a few days of
their birth; for they require very little nourishment, and it was
formerly the custom to keep them some days from the breast; such an
omission, however, if suspected, may be ascertained by examining the
stomach, and, at the same time, by deducing from the appearance of the
umbilicus,[85] the probable period that has elapsed since its birth.
_Death by commission._—We have already pointed out the various means by
which the death of the newly-born infant is usually accomplished; such
as by wounding, suffocating, strangling, poisoning, &c.; and in the
course of our work we have so fully considered the phenomena of violent
death, that it cannot be necessary, on the present occasion, to expend
farther time on their discussion.
The last object of the inquiry, viz. _the appearance and condition of
the woman’s person_, has been also considered under the history of
_parturition_, and the various questions to which it has given origin,
_vol._ i, _p._ 249.
We have thus then presented to the reader the various avenues of
information, which the sciences of anatomy and physiology are capable of
disclosing; and it will, we trust, appear evident, that the forensic
physician can rarely furnish more than presumptive evidence in the
support of cases of imputed child-murder.
With the moral circumstances of the case the medical-jurist can have
nothing to do; and yet it is impossible not to inquire whether the deed
may not frequently be the result of insanity. Such was the opinion of
_Dr. Hunter_; and we cordially agree with _Dr. Smith_, that a verdict to
this effect might be returned in many cases of this kind with at least
as much truth, as in some of suicide. It must not be urged, continues
the last mentioned author, that the insanity here is not real because
temporary, as long as _temporary insanity_ is so readily admitted in the
other case; and we know well that in many instances of the like state of
mind, where suicide is unsuccessfully attempted, the supposed lunacy
shortly disappears. This plea, however, rarely avails the
child-murderer; and yet if the loss of property, or other misfortunes,
are to be taken into account as presumptive causes of insanity where
there is real evidence of the fact, (the _feelings_ arising from which
being the real goad that stings some men to their fate) are we to give a
modest female,—one that has probably erred through excess of confidence
and attachment—no credit for despair, and distraction, under the
anticipation of the infamy that is approaching her?[86]
It is stated by several authors, that the period at which puerperal
mania and phrenitis supervenes is variable, but that it is seldom, if
ever, sooner than the third day; often, not for a fortnight; and, in
some cases, not for several weeks after delivery. We must be cautious,
however, in not applying this general assertion, to the disparagement of
particular cases; for several instances are recorded which furnish
striking exceptions to the rule. “In the year 1668 at _Aylesbury_, a
married woman of good reputation being delivered of a child, and not
having slept many nights, fell into a temporary phrenzy, and killed her
infant in the absence of any company; but, company coming in, she told
them she had killed her infant, and _there_ it lay; she was brought to
gaol presently, and after some sleep she recovered her understanding,
but marvelled how or why she came thither; she was indicted for murder,
and upon her trial the whole matter appearing, it was left to the jury
with this direction, that if it did appear that she had any use of
reason when she did it, they were to find her guilty; but if they found
her under a phrenzy, though by reason of her late delivery and want of
sleep, they should acquit her; that had there been any occasion to move
her to this fact, as to hide her shame, which is ordinarily the case of
such as are delivered of bastard children and destroy them; or if there
had been jealousy of the husband that the child had been none of his; or
if she had hid the infant, or denied the fact, these had been evidences
that the phrenzy was counterfeit; but none of these appearing, and the
honesty and virtuous deportment of the woman in her health being known
to the jury, and many circumstances of insanity appearing, the jury
found her not guilty, to the satisfaction of all that heard it.” _1 H.
P. C._ _p._ 36. Had this woman been of doubtful character, though
innocent, she might have been executed, for want of medical evidence to
prove the nature and frequency of puerperal insanity.
OF CRIMINAL RESPONSIBILITY, AND PLEAS IN BAR OF EXECUTION.
In the preceding pages we have endeavoured to lay down such rules, and
to draw attention to such points, as may enable medical witnesses to
assist the ends of Justice in detecting the perpetration of crime;
another duty remains: having discovered the guilty, questions may yet
arise, as to whether the criminal is or is not a proper subject for the
severity of the law; 1st, in respect of natural incapacity, as in the
case of infants and idiots _a nativitate_; 2d, of accidental
incapacities, as in lunacy and temporary derangement of intellect. So
also it may be a medical question whether a prisoner stands mute of
malice, or by the visitation of God; and 3dly, of temporary unfitness
for punishment, as where judgment on a female is to be respited, by
reason of her pregnancy; to these we shall add the plea of non-identity,
for though we have already stated that personal identity does not appear
to us to be a subject peculiarly appropriate to medical
jurisprudence,[87] yet as the greater number of writers on this subject
have so considered it, we should not be warranted in omiting all notice
of the subject.
“It is clear that an infant above fourteen and under twenty-one is
equally subject to capital punishments, as well as others of full age;
for it is _præsumptio juris_, that after fourteen years they are _doli
capaces_, and can discern between good and evil; and if the law should
not animadvert upon such offenders by reason of their nonage, the
kingdom would come to confusion.[88] Experience makes us know, that
every day murders,[89] bloodsheds, burglaries, larcenies, burning of
houses,[90] rapes,[91] clipping and counterfeiting of money, are
committed by youths above fourteen and under twenty-one; and if they
should have impunity by reason of such their minority, no man’s life or
estate would be safe. In my remembrance, at _Thetford_, a young lad of
sixteen years old was convict for successive wilful burning of three
dwelling houses, and in the last of them burning a child to death, and
yet had carried the matter so subtilly, that by a false accusation of
another person for burning the first house, an innocent person was
brought in danger, if it had not been strangely discovered: he had
judgment to die, and was executed accordingly.” _1 Hale. P. C._ _p._ 25.
But though above fourteen, criminal incapacity cannot be presumed on the
mere pretence of nonage, children considerably under that age may be
found _doli capaces_, and be tried, and even executed accordingly,
whenever from peculiar evidence it shall appear that by precocity in
vice or intellect they can clearly distinguish right from wrong,
_malitia supplet ætatem_: thus _John Dean_ was executed under the age of
nine for arson and murder; and _William York_, in more modern times, was
tried and condemned for murder at ten.[92] Seven years of age, or the
period of absolute infancy, is probably the limit within which actual
crime or sin cannot be imputed morally or legally; (see _1 H. P. C._
_p._ 19; _1 Hawk. P. C._ _p._ 1; _1 Bl. Com._ _p._ 464); but the law of
England does not appear to have fixed any determinate period;[93]
_Alfred_ decreed that none should be punished capitally for theft under
twelve years of age. _Athelstan_ enlarged the period till fifteen, (see
_notes 1 H. P. C._ _p._ 12, 23); but the old standard of twelve appears
to have prevailed from the time of _Hen. 1_; thus in the time of _Ed.
1_, _Adam de Arnhale_, æt. 12, was committed to the custody of the
marshal for stealing nine shillings at night in the dwelling house;
_postea habito respecto ad imprisonamentum, quod prædictus Adam habuit,
& etiam ad teneram ætatem ejusdem Adæ, eo quod non nisi ætatis 12
annorum, qui talis ætatis judicium ferre non potest, ideo_ de gratia
_regis deliberetur_, _1 P. C._ 24; but he was spared, as _Sir M. Hale_
says, _de gratia regis_, in respect that he was passed the old standard
of twelve years.
If an infant clearly under seven years of age be indicted, the case
ought not to go to the jury; but the prisoner should be discharged by
the court; for “he cannot be guilty of felony, whatever circumstances of
discretion may appear; for _ex presumptione juris_ he cannot have
discretion, and no averment shall be received against that presumption;”
(_1 H. P. C._ p. 28) but if it be not apparent that he is under seven,
and he have sufficient discretion, then, as in the case mentioned
[_note_ [94]] the issue may go to the jury; and with their verdict they
may find, according to the evidence, that he was under seven years of
age; and the court may then discharge him, for it was no felony. _1 H.
P. C._ 27. Also if the prisoner be above seven, and under twelve years
of age, unless there be apparent proof of capacity; but it is safer for
the court to discharge him, for his trial can answer no useful purpose;
and if he once be a felon convict by the verdict of a jury, though
subsequently pardoned, the circumstance will probably give a stamp to
his character which is never likely to be effaced. Therefore if the
humanity of magistrates and prosecutors does not previously interpose to
save children from this peril, and the contamination of a gaol, the
discretion of the judge may; and it is fortunate that, in London at
least, public munificence, in this as in many other cases, has supplied
the want of legislation: the Philanthropic and other similar societies
afford a refuge and prospect of amendment for the infant culprit, to
them therefore he should be committed.
As the fact of absolute infancy may generally be ascertained by the mere
view of the party, and his capacity ascertained by questions propounded
by the court, an infant prisoner may, as before stated, be discharged
without further trial; not so however in cases of idiotcy, madness, or
lunacy, these must be tried by a jury, for they may easily be feigned,
and it is therefore by evidence of previous conduct that the question is
to be determined, rather than by reference to the prisoner’s demeanor in
court, which may probably be counterfeit.
If the prisoner be found to be an idiot, he must be discharged of the
indictment, and handed over to safe custody,[95] but if he be only
lunatic, then other questions arise; first, whether the prisoner is then
in a lucid interval, for if he be not, he should not be arraigned at
that time; “but the judge in his discretion may discharge the jury of
him, and remit him to gaol to be tried after the recovery of his
understanding, especially if any doubt appear upon the evidence touching
the guilt of the _fact_, and this _in favorem vitæ_; and if there be no
colour of evidence to prove him guilty, or if there be a pregnant
evidence to prove his insanity at the time of the fact committed, then
upon the same favor of life and liberty it is fit it should be proceeded
in the trial in order to his acquittal and enlargement.” _1 H. P. C._
35.[96]
Secondly, if he be then in a lucid interval, and therefore fit to be
tried, whether he was so at the time of the act committed, and this must
be tried according to the whole evidence both of the fact and the
lunacy, on a plea of not guilty.[97]
For criminal purposes it is not sufficient that a prisoner have been
previously found idiot or lunatic, or the contrary, by inquisition in
chancery, _1 H. P. C._ _p._ 33, though the circumstance may create a
strong presumption. For there may be a partial insanity which may
disqualify a man from the management of his estate, and therefore render
him a fit subject for the equitable protection, although he may have a
perfect sense of right and wrong in criminal matters, and ought
therefore to be responsible for his acts. Personal antipathies and
fancied injury are constant subjects of limited insanity; but these
ought not to excuse murder; for such a doctrine, by removing the
restraints of fear, would constantly convert the passions of hatred and
revenge, in themselves limited madness, into absolute insanity.
“He that is _non compos mentis_ and _totally_ deprived of all
compassings and imaginations, cannot commit high treason by compassing
or imagining the death of the king; for _furiosus solo furore punitur_;
but it must be an _absolute_ madness, and a total deprivation of
memory.” _Coke_, _P. C._ _p._ 3; but in _Beverly’s_ case, _4 Rep._ 124,
he says “_Mes in ascun cases non compos mentis poit committe haut
treason, comme si il tua, ou offer a tuer le roy_.” “This,” says _Sir
Mathew Hale_, “is a safe exception, and I shall not question it, because
it tends so much to the safety of the king’s person: but yet the same
author (_Coke_ _P. C._ _p._ 6) tells us, that though this was anciently
thought to be law, yet it is not so now; for such a person as cannot
compass the death of the king by reason of his insanity, cannot be
guilty of treason within the statute of _25 Ed._ 3.” Nothing can be more
honourable to the independent impartiality of the English law than such
an interpretation, amply illustrated in the cases of _Hatfield_ (_27
How. St. Tri._) and others, who had attempted the life of his late
Majesty _George_ the 3d; and this more especially, as the king must at
all times be more exposed to this species of attack than any other
person; for beside the sense of supposed wrong, delay or perversion of
justice, exaggerated political feeling,[98] or other causes all pointing
the maniac to the same object, there is no madness more frequent than
fancied greatness; lunatic asylums are filled with imaginary emperors,
kings, princes, and nobles, whose only glimmering of reason is to direct
their vengeance against the supposed usurpers of their dignities.
“He who is guilty of any crime whatever through his voluntary
drunkenness shall be punished for it as much as if he had been sober.”
_1 Hawk. P. C._ 3. “A drunkard,” says _Sir E. Coke_, (_1 Ins._ 247) “who
is _voluntarius dæmon_, hath no privilege thereby.” _4 Bl. Com._ 26. But
if by continual drunkenness he have become absolutely mad, then the
original cause is not referred to, and he may be excused; not so however
if there be only a predisposition to temporary madness, and that madness
be voluntarily excited by drinking. There are many men, soldiers, who
have been severely wounded, in the head especially, who well know that
excess makes them mad; but if such persons wilfully deprive themselves
of reason, they ought not to be excused one crime by the voluntary
perpetration of another.[99]
“He who incites a madman (idiot, infant, or lunatic) to do a murder or
other crime, (as to kill himself) is a principal offender, and as much
punishable as if he had done it himself.” _1 Hawk. P. C._ _p._ 3 _and_
118. _1 H. P. C._ 617.
“It seems agreed at this day, that if one, who has committed a capital
offence, become _non compos_ before conviction, he shall not be
arraigned; and if after conviction, that he shall not be executed.” _1
Hawk. P. C._ 3; _1 H. P. C._ 36. Indeed in the bloody reign of _Henry_
the eighth, a statute was made (_33 H. 8_, _c._ 20) which enacted, that
if a person, being _compos mentis_, should commit treason, and after
fall into madness, he might be tried in his absence, and should suffer
death, as if he were of perfect memory. But this savage and inhuman law
was repealed by the _Stat. 1 and 2 P. and M._ _c._ 10. For as is
observed by _Sir Ed. Coke_, “the execution of an offender is for
example, _ut pœna ad paucos, metus ad omnes perveniat_: but so it is not
when a madman is executed; but should be a miserable spectacle, both
against law, and of extreme inhumanity and cruelty, and can be no
example to others.” _4 Bl. Com._ _p._ 25.
Pregnancy is a good plea in bar of execution; but it does not prevent
trial or sentence; in a recent instance, however, when a woman was
brought to the bar evidently in labour, she was remanded by the court;
and query, whether this discretion ought not to be exercised in all
cases of advanced pregnancy; for the agitation of the trial may be of
more fatal effect than the judgment of the law, and the unfortunate
woman, though acquitted, may perish with her child from the mere effect
of mental distraction.
When the plea of pregnancy is made to stay execution “the judge must
direct a jury of twelve matrons or discreet women to inquire the fact:
and if they bring in their verdict _quick with child_ (for barely _with
child_[100] unless it be alive in the womb, is not sufficient) execution
shall be stayed generally till the next session: and so from session to
session till either she is delivered, or proves by the course of nature
not to have been with child at all. But if she once hath the benefit of
this reprieve, and has been delivered, and afterwards become pregnant
again, she shall not be entitled to the benefit of a further respite
from that cause.[101] For she may now be executed before the child is
_quick_ in the womb; and shall not, by her own incontinence, evade the
sentence of justice.” _4 Bl. Com._ 395; (see also _2 Hawk. P. C._ 658,
and authorities there.) But _Sir M. Hale_ says that though she be
_quick_ a second time she shall have no respite on that account. _1 P.
C._ 369. And yet he afterwards draws a nice distinction _in favorem
prolis_, that if the woman were not quick, or with child at all,[102] at
the time of the first inquest of the matrons, and afterwards become with
child, she shall have her respite; “for the advantage she had at first
was not really by reason of pregnancy, but by a mistake of the jury of
women.” “And therefore as hath been said, in all cases of reprieves for
pregnancy, the judge ought to make a new demand, what the prisoner hath
to say wherefore execution should not be awarded.” _Ib._ And so in all
cases where any time intervenes between the attainder and the award of
execution, for the party may have become insane, or may plead pregnancy,
or a pardon, or an act of grace, or diversity of person, that he is not
the same that was attainted. _1 Bl. Com._ 396.
This brings us to the last of the pleas which we have proposed to treat
upon under this head. The question of Personal Identity may arise in
many ways; as whether a child claiming an inheritance is the same that
he pretends, or is pretended to be, as in the _Douglas_ or _Anglesea_
causes; (vide ante) whether a prisoner is actually the person who
committed a particular offence, when the jury tries the fact and the
identity together; and where a prisoner after conviction escapes and is
retaken, whether he is the same that was convicted.[103] The former
cases we have noticed under the heads of Supposititious Children, vol.
i, p. 220, warning our readers not to be too hasty in determining
identity upon mere resemblance.[104] And in the last case “a jury shall
be impanneled to try the collateral issue, namely, the identity of his
person; and not whether guilty or innocent; for that has been decided
before. And in these collateral issues the trial shall be _instanter_,
and no time allowed the prisoner to make his defence or produce his
witnesses, unless he will make oath that he is not the person attainted:
(_Fors. C. L._ 41) neither shall any peremptory challenges of the jury
be allowed the prisoner; though formerly such challenges were held to be
allowable, whenever a man’s life was in question.” _4 Bl. Com._ 396. And
query whether this is not the better doctrine; the case of _Mr.
Radcliffe_, brother of _Lord Derwentwater_, (_Fors. C. L._ 41) in which
the contrary was held, was for high treason shortly after the rebellion
of 1745; and as _Sir M. Forster_ says, speaking of _Monmouth’s_
attainder, “that was a time of great heat and violence, and few things
then done ought to be drawn into example.” _Ib._ 44. There does not
appear to be any good reason why a prisoner should not have all the
safeguards on a collateral issue or inquest of office, which are allowed
on the main issue; especially when, as in the present instance, his life
depends upon the question.
OF PUNISHMENTS.
Punishments may be divided into three classes; capital, when the death
of the offender is intended to deter others from similar offence;
precautionary, when a noxious individual is removed from general society
by imprisonment or transportation; and correctional, when by some pain
or penalty inflicted on the individual, he is to be deterred from future
crime. Though the subject would admit of much curious detail, our
remaining space will not allow us to trace the different modes or
modifications of legitimate punishment used in various nations or ages;
nor to enter our protest of abhorrence against the many and inhuman
tortures which religious fanaticism or political rancour have invented
for their antagonists; the only point on which we can physiologically
have occasion to observe, as applicable to the capital punishments of
the present times, is, that they should be inflicted with as little pain
as possible to the criminal, lest compassion for the sufferings of the
man, should supersede the salutary horror of his offence; an end which
is really, though not apparently, attained in our ordinary mode of
execution by hanging; the victim does not suffer, though sometimes his
convulsive struggles induce a contrary belief; but the method is
defective in one point, it is not calculated to produce a deep
impression on the minds of spectators, _Pompa mortis magis terret quam
mors ipsa_. The French mode of decapitation, though held in abhorrence
from the outrages with which its very name has become associated, is
equally humane; an instant terminates the mortal sufferings of the
criminal; for this reason it was originally adopted, and when we
consider that it superceded the barbarous punishment of breaking on the
wheel, previously in use, and the clumsy and uncertain method of
decapitation by the sword or axe, we feel ourselves justified, in spite
of popular prejudice, in designating the guillotine[105] an invention of
humanity.
Decapitation is also a punishment known in the law of England, and as a
more dignified and impressive death, is reserved for the execution of
nobles, or distinguished commoners, in cases of high treason, the rest
of the barbarous sentence (now abolished by act of parliament), and the
previous sentence of hanging, being dispensed with by the king’s
authority.
The barbarous punishment of burning, formerly part of the law, is no
longer in use; Catharine Hayes, to whose case we have alluded (vol. ii,
p. 73), was the last who suffered in this manner.
On the subject of imprisonment we have already commented, (vol. ii, p.
112), and from the very general attention now excited, as well by the
discovery of abuses, as by an encreasing spirit of humanity, we may
expect the best results.
Of punishment, not capital, there are two which require medical
consideration; the one is military flogging, the other the novel
invention of the tread-mill. On the first of these, we might have had
more cause to complain, had the old system of the army been continued;
it is however due to the character of the present Commander in Chief to
notice, that under his direction the punishment of flogging has been
much diminished; regimental courts martial, composed of five officers
(possibly _infants_), are now restricted in their sentences to the
infliction of three hundred lashes; formerly double the number was
deemed a moderate punishment; and there is good reason to believe, that
the discipline of a regiment, and the capacity of a commanding officer,
is no longer considered in the direct, but on the contrary, in the
inverse ratio of the number of lashes inflicted:[106] we need not say
that the general state and conduct of troops has proved the policy of
the alteration, we have only to hope that the improvement will be
extended, and that the English army will not long be subjected to a
degrading and barbarous torture, from which less moral men, and much
worse soldiers, are exempted in every other service in Europe. It is
necessary, however, that till this very desirable reform is effected,
some observation should be made on the mode of inflicting this
punishment.
It is generally supposed that the surgeon who is present at a military
execution, is responsible for its consequences; this is not legally
true, and it is physiologically impossible; the punishment is too
uncertain in its operation to allow of any medical assistant’s
ascertaining the boundaries of danger; moral feeling, age, strength,
nervous irritability, climate, previous disease, organic defects, and
other circumstances, many of which it would be impossible for the most
skilful to detect, and least of all by mere view of the culprit tied up
to the halberts, may render a punishment fatal, which had been intended
to be lenient. No surgeon therefore can answer, either for the ultimate,
or immediate consequences of this species of corporal punishment; he may
indeed err on the safe side, by interposing as early as possible,[107]
but there is no criterion by which he can be guided in forming an
absolute opinion on the danger or safety of the punishment.
But though the surgeon cannot be held criminally responsible (except in
cases of gross ignorance or negligence) for the result of such
executions, yet, if the commanding officer permits a single lash to be
inflicted after the medical attendant has interposed, he would be held
guilty of murder should the soldier die from the effects of excessive
punishment; for malice will be presumed from such continuance after due
notice.[108] In the notorious case of Governor _Wall_, who was executed
for the murder of a soldier by excessive and illegal flogging; the
punishment was originally unlawful, having been inflicted without
sentence of a court martial, the mode of infliction was unusual, and the
surgeon was stated to have been so much intimidated, that he was afraid
to interfere, (a poor excuse for neglect of professional duty); under
these circumstances, the plea that the deceased killed himself by
excessive drinking, though the fact was far from improbable under the
climate of _Goree_, was unavailable; the illegal flogging was the
primary cause of the death, and therefore neither the effect of climate,
misconduct, or mismanagement, could remove the original criminality. In
this as in several other cases of death from ill-usage, it is a constant
but unavailing plea that the deceased died not of the wounds or blows,
but of fever, or defective treatment.[109]
On the subject of the tread-mill, we are not enabled to pronounce any
very decided opinion, the invention has not been in use long enough to
determine with any degree of accuracy its merits or defects; that it is
held in considerable dread by offenders is certain, and the fear of
returning to it may operate favourably on that class for which it
appears best calculated, the regular vagabond; but it does not give any
habit of industry, or teach any mode of labour to the merely idle or
casually culpable, and therefore ought not to be indiscriminately
applied to all cases. The punishment too is one of the most unequal in
its operation that can be conceived; a man, who has been accustomed to
running up stairs all his life, with good lungs and muscular legs, will
scarcely suffer by it; while an asthmatic tailor, weaver, or other
sedentary artizan will be half killed by the exercise. For women in
certain stages, whether of menstruation or pregnancy, it is a dangerous
and indecent torture, one which should immediately be forbidden, if not
by the humanity of magistrates, by the wisdom of the legislature.
One very material objection to this machine arises out of the
probability of abuse in the places where it is generally erected; an air
of mystery has been thrown round houses of correction, which has
acquired for some of them the odious name of bastile; even grand juries
have been denied admission to them, on the ground that they are the
prisons of the magistrates, not of the sheriff; we certainly do not
understand either the policy or propriety of this distinction; that they
should not be thrown open to the idle or merely curious we are ready to
admit, but contend that they should be open to all official inspection;
much must in every prison depend on the conduct and discretion of the
jailors—to know that he is open to public animadversion is the best
security for the due exercise of his office: a contrary assurance is
well calculated to produce despotic feeling in ordinary minds; how much
more then is it to be guarded against, when persons of the lower class
are entrusted with extraordinary power of coercion, and are continually
irritated by the refractory conduct of those who are placed under their
authority. In such cases constant inspection, at uncertain times, and by
_uninterested_ persons, is the best guarantee against abuse.
FINIS.
POSTSCRIPT.
While this work was in the press several circumstances have occurred
which it may be necessary to notice; first, as respecting the corporate
medical bodies, His Majesty has been pleased to confer additional honors
on the President of the College of Physicians, for which see the
Preface;—the College itself is about to be removed from their late house
in Warwick Lane to a more convenient site among the new buildings of
Pall Mall East. A new charter has been granted to the College of
Surgeons, but as it is not yet confirmed by Act of Parliament, it does
not materially vary the public right of the College, or supply what was
wanting in their jurisdiction. The Apothecaries’ Company have very
properly exerted their powers under the Act of _55 Geo._ iii, for
punishing illegal practice.[110]
The Marriage Act which is incidentally referred to, vol. i, p. 169, is
in part repealed by an act of the last session, which in turn is about
to be amended or repealed in the present. The _Portsmouth case_, _adhuc
sub judice_, affords some curious illustrations on the subjects of
impotence and insanity.
The impolitic duty on salt has been lowered to one-seventh of its former
amount. An act has been passed to prevent nuisances by gas-water;
(_vol._ i, _p._ 339) and another for regulating the sale of Bread;
(_vol._ i, _p._ 375) to these we must refer our readers for the
modification or correction of our former remarks on the several subjects
connected with them.
INDEX OF CASES.
A.
Aland, Sheldon, _v._, 297
Alberton, Rex, _v._, 217
Alder’s case, II. 122
Aldred’s case, 348
Amery and Monk, the King, _v._, 14
Anderson _v._ Edie, 382
Angus, case of Chas., II. 176, 184—III. 69, 96
Annesly causes, II. 220
Annesly _in re_, 298
Aram, case of Eugene, III. 79
Archer’s case, 50
Archer’s case, II. 129
Armstrong _ex parte_, 296
Arnhale, Adam de, case of, II. 136
Arnold, Lodie, _v._, 340
Askew, Rex, _v._, 42, 44
Atkins _v._ Gardener, 29
Attorney General _v._ Doughty, 340, 348
Attorney General _v._ Parnther, 299
Audley’s case, 439
Avison _v._ Lord Kinnaird, 386
B.
Baker, _ex parte_, 298
Baker, Slater, _v._, 80
Barnsley, _ex parte_, 291
Bateman, case of Mary, III. 13
Beddingfield and Ringe, case of, III. 30
Bellingham, case of, III. 139
Beswick _v._ Hall, 353
Berry, Green, and Hill, case of, III. 31
Bevan’s case, II. 472
Beverly’s case, 292
Birch _v._ Holt, 340
Blandy, Miss, case of, 157, 249
Blisset, Dickenson, &, 292
Bloomfield’s case, 434
Blunt, Want, _v._, 385
Bolcot, Chorley, _v._, 78
Boldero, Goodall, &, 382
Bonham _v._ Coll. of Phys., 23
Bourne, Coll. of Phys., _v._, 30
Bowerman, case of Thomas, III. 80
Braddon & Spake, the King, _v._, III. 20
Brain’s case, III. 122
Brazier’s case, 422
Broughton _v._ Randall, 380
Brown’s case, 352
Brown, Cuthbert, _v._, 217
Brownrigg’s case, II. 112
Bugg, Coll. of Phys. _v._, 30
Burns, case of, III. 29
Burton, Hume, _v._, 300
Burwell, Groenvelt, _v._, 38
Bush, Coll. of Phys. _v._, 28, 30
Butler _v._ Coll. of Phys., 20—30—31
Butler, Coll. of Phys. _v._, 31
Butterfield’s case, 303
C.
Castlehaven’s case, 439
Cambridge, V. C. of, the King, _v._, 14
Canning, Elizabeth, case of, 369
Cave’s case, 434
Chester, King _v._ Bishop of, 3
Chester, B. of, Fox, _v._, 387
Chetwynd’s case, II. 2
Chorley _v._ Bolcot, 78
Chumley _ex parte_, 298
Clarke, Rex, _v._, 294
Clinch, case of, III. 144
Cockayne _ex parte_, 298
Codd and Pizzy, case of, III. 91
Coleman, case of, 440—III. 143
College of Physicians _v._ Huybert, 18
College of Physicians, Butler _v._, 20—30—31
College of Physicians, Bonham _v._, 23
College of Physicians _v._ West, 24
College of Physicians, Grenville _v._, 28
College of Physicians _v._ Talbois, 28
College of Physicians _v._ Salmon, 28
College of Physicians _v._ Bush, 28—30
College of Physicians _v._ Tenant, 29
College of Physicians _v._ Needham, 30
College of Physicians _v._ Bugg, 30
College of Physicians _v._ Bourne, 30
College of Physicians _v._ Harder, 30
College of Physicians _v._ Merry, 30
College of Physicians _v._ Stone, 30
College of Physicians, Trigg _v._, 30
College of Physicians _v._ Butler, 31
College of Physicians _v._ Rose, 32
Cowper, case of, II. 38—III. 39
Cooper _v._ Marshall, 340
Copping, Dale, _v._, 79
Cory and Cory, 293
Coalson _v._ White, 340
Cranmer, _ex parte_, 291
Cuthbert _v._ Brown, 217
Cutt’s case, 296
D.
Da Costa, Sylva, _v._, 296
Dale _v._ Copping, 79
Darwin, Rigeway, _v._, 291
Dean, John, case of, III. 132
Deplock, Taylor, _v._, 391
Dey, John, case of, III. 140
Dewal _v._ Saunders, 339
Dickenson _v._ Blisset, 292
Dickson, Margaret, case of, II. 91—III. 85—110
Dikes, _ex parte_, 298
Donnall’s case, II. 157—246—250
Donellan’s case, II. 130—161—402—467.—_Appx._ 243
Dormer’s case, 298
Douglas cause, 220
Doughty, Attorney General, _v._, 340—348
Duchess of Chandos’ case, 295
Duffin’s case, 435
Dwyer and Edie, 382
E.
East, Giles, case of, III. 132
Edie, Anderson _v._, 382
Edie, Dwyer, _v._, 382
Edwards, Shephard, _v._, 78
Ely, Rochfort, _v._, 297
Essex, Countess of, _v._ Earl of, 177—211
Evans and Munroe, the King, _v._, 351
Eyre _v._ Wake, 295
F.
Fenning, Eliza, case of, II. 188—217—250
Ferne, _ex parte_, 297
Ferrand, the King _v._, II. 98
Ferrers, Earl, case of, III. 140
Fish _v._ Palmer, 225
Fitzgerald’s case, 295
Fleming and Windham’s case, 439
Fletcher, Tyrie _v._, 382
Forbes’ case, 420
Forse and Hembling’s case, 294
Fothergill’s case, 50
Fox, _v._ Bishop of Chester, 386
Foxcroft’s case, 217
Francis, case of, III. 51
Francis, Newling, _v._, 14
Fuller, _v._ Prentice, 154
G.
Gardener, Laughton, _v._, 29
Gardener, Atkins, _v._, 29
Godfrey, Sir E. murder of, III. 31
Goodall, _v._ Boldero, 382
Gore, case of Agnes, II. 129
Gould, Regina, _v._, II. 110
Green, Berry, and Hill, case of, III. 31
Gremaire, _v._ Le Clerk, 78
Grenville, _v._ College of Physicians, 28
Greenwood’s case, 302
Grimstone, _ex parte_, 296
Groenvelt, _v._ Burwell, 38
H.
Hadfield’s case, 299—III. 139
Hall and Warren, 293—299
Hall, _ex parte_, 296
Hamerton, Roebuck, _v._, 229
Harder, College of Physicians, _v._, 30
Harmwood’s case, 434
Harris, King, _v._, 131
Harrison, Rex, _v._, II. 94
Hastings, _ex parte_, 298
Hayes, case of Catharine, III. 73
Hayes, _v._ Jaques, 229
Hembling, Forse &, 294
Herbert, Taynham, _v._, 340
Hill’s case, 434
Hill, Beswick, _v._, 353
Hill, Green, and Berry, case of, III. 31
Holmes, Lipscombe, _v._, 78
Holt, Birch, _v._, 340
Holyland’s, _ex parte_, 300
Hope’s case, II. 472
Huggins, Rex, _v._, II. 113
Hughes, Middleton, _v._, 17
Hume, _v._ Barton, 300
J.
James, Col. case of, 389
Jaques, Hayes, _v._, 229
Johnson, Bowles, _v._, 154
Jones, _v._ Powell, 341
Jones, Tenant, _v._, 351
K.
King, the, _v._ Amery and Monk, 14
King, the, _v._ Bishop of Chester, 3
King, the, _v._ Miller, 14
King, the, _v._ Vice Chancellor of Cambridge, 14
King, the, _v._ Askew, 42—44
King, the, _v._ College of Surgeons, 57
King, the, _v._ Pond, 72
King, the, _v._ Taunton, 86
King, the, _v._ Lynn, 100
King, the, _v._ Harris, 131
King, the, _v._ Munro and Evans, 351
King, the, _v._ Ferrand, II. 98
King, the, _v._ Phillips, III. 56
King, the, _v._ Bradden and Spake, III. 20
Kingston, Duchess of, 160
Kinnaird, Avison, _v._, 386
L.
Lady Marr’s case, 295
Lady Annadale’s case, 295
Lady Cope’s case, 298
Lambe’s case, 439
Laughton, _v._ Gardener, 29
Law, Sharp, _v._, 54
Le Clerc, Lemaire, _v._, 78
Letch’s case, 42
Levet’s case, 28
Lipscombe, _v._ Holmes, 78
Littleton, _ex parte_, 294
Lockyer, _v._ Offley, 386
Lodie, _v._ Arnold, 340
Lord Donegall’s case, 290
Lord Wenman’s case, 296
Lord Audley’s case, 439
Ludlow, _ex parte_, 298
Lund, _ex parte_, 296
Lynn, the King, _v._, 100
M.
Mac Donald, Rex, _v._, 353
Macley, case of, III. 144
Maclin’s case, III. 51
Mac Quirk, case of, III. 151
Mainwaring, Watson, _v._, 385
March, Elizabeth, case of, III. 132
Marshall, Cooper, _v._, 340
Mason and Mason, 391
Merry, College of Physicians, _v._, 30
Middleton, _v._ Hughes, 17
Mildmay, _ex parte_, 298
Mills, Mary, case of, 306
Mordaunt, Welborn, _v._, 353
Morley, _v._ Pragnal, 346
Munroe and Evans, King, _v._, 351
N.
Nairne and Ogilvie’s case, II. 184—185
Neal’s case, 298
Neale, _v._ Pettigrew, 80
Needham, College of Physicians, _v._, 30
Newling, _v._ Francis, 14
Nicholson, case of, III. 140
O.
Offley, Lockyer, _v._, 386
Ogilvie and Nairne’s case, II. 184—185
Ogle, _ex parte_, 295
Olive, Severn, _v._, 157—159
P
Palmer _v._ Poultney, 340
Palmer, Fish, _v._, 225
Parnther, Attorney-General, _v._, 299
Perreaus, case of the, III. 144
Pettigrew, Neale, _v._, 81
Phillips, the King, _v._, III. 86
Phrazier, Prodgers, &, 290
Pitt’s case, 297
Pizzy and Codd, case of, III. 91
Pond, the King, _v._, 72
Poole, Willis, _v._, 384
Poultney, Palmer, _v._, 340
Powel, Jones, _v._, 341
Powel’s case, 422
Pragnal, Morley, _v._, 346
Prentice, Fuller, _v._, 154
Prentice, Seare, _v._, 81
Prior, Rosewell, _v._, 340—354
Prodgers and Phrazier, 290
Q
Quain’s case, II. 123
R
Radcliffe, case of, III. 145
Randall, Broughton, _v._, 390
Ranket’s case, 344
Redman, Joseph, case of, III. 143
Regina _v._ Wigg, 337
Regina _v._ Gould, II. 110
Rex _v._ Alberton, 217
Rex _v._ Harrison, II. 94
Rex _v._ E. Ridley, II. 110
Rex _v._ Clarke, 294
Rex _v._ Rosewell, 340
Rex _v._ Travers, 422
Rex _v._ Mac Donald, 353
Rex _v._ White and Ward, 343—348
Rex _v._ Roupel, 350
Rex _v._ et Regina _v._ Wilcox, 339—341
Ridley, E. Rex, _v._, II. 110
Rigeway & Darwin, 291
Ringe and Beddingfield, case of, III. 30
Roberts, _ex parte_, 296
Roebuck _v._ Hamerton, 229
Rochfort & Ely, 297
Rosewell, Rex, _v._, 340
Rosewell _v._ Prior, 340—354
Rose, College of Physicians, _v._, 32
Roupel, Rex, _v._, 350
Russen’s case, 420—428
S
Salmon, College of Physicians, _v._, 28
Saunder’s case, II. 129
Saunders, Dewal, &, 339
Scawen’s case, II. 468
Schomberg’s case, 12
Scorey’s case, II. 99
Seare _v._ Prentice, 80
Self’s case, II. 110
Sergison _v._ Sergison, 221
Severn _v._ Olive, 157—159
Sharpe _v._ Law, 54
Shelden _v._ Aland, 297
Shepherd _v._ Edwards, 78
Sheridan’s case, 434
Slater _v._ Baker and Stapleton, 80
Smithson’s case, 297
Southcote, _ex parte_, 295
Spake and Braddon, the King, _v._, III. 20
Stapleton, Slater, _v._, 80
Stainsforth, Tarleton, _v._, 385
Stansfield, case of, II. 38—III. 39
Stanwix, General, case of, 388
Stone, College of Physicians, _v._, 30
Stone’s case, 297
Street _v._ Tugwell, 348
Sylva _v._ Da Costa, 296
T
Talbois, College of Physicians, _v._, 28—30
Tarleton _v._ Stainsforth, 385
Taunton, the King, _v._, 86
Taylor _v._ Deplock, 391
Tenant, College of Physicians, _v._, 30
Tenant, Jones, _v._, 351
Teynham _v._ Herbert, 340
Thornton, Abraham, case of, 417—421—436—III. 35—37
Tinckler, case of Margaret, III. 72
Travers, Rex, _v._, 422
Trigg _v._ College of Physicians, 30
Tugwell, Street, _v._, 348
Tyrie _v._ Fletcher, 382
V
Vaux’s case, II. 129—130—467
W
Wake, Eyre, _v._, 295
Walborough, Alice de, case of, III. 132
Want _v._ Blunt, 385
Ward, White &, Rex _v._, 343—348
Ward, _ex parte_, 295—297
Warren, Hall _v._, 293—299
Warren, _ex parte_, 298
Wilson _v._ Mainwaring, 385
Weir, Thomas and Jane, case of, 421
Westborn _v._ Mordaunt, 353
Weston’s case, II. 130
West, College of Physicians, _v._, 24
West, Style _v._, 171
White _v._ Wilson, 293—300
White and Ward, Rex _v._, 343—348
White, Coulson, _v._, 340
Whiting’s case, II. 197
Wigg, Regina, _v._, 337
Willis _v._ Poole, 384
Wilcox, Rex et Regina, _v._, 339
Wilson, White _v._, 293—300
Windham and Heming’s case, 439
Wragg, _ex parte_, 297
X
Xaris Storeghtor’s case, 297
Y
York, William, case of, III. 133
INDEX.
ABATEMENT of nuisances, 333—339—340
ABDOMEN, examination of the, III. 60
ABORTION, II. 379—III. 84
causes of, 269
physiological illustrations of, III. 93
ABSORPTION of mineral poison, II. 187
poison, acting by, II. 208
of arsenic, II. 192—220
ACCESS, when presumed, 217
ACCIDENTAL homicide, II. 466
ACETOMETER, 377
ACIDS, concentrated, poisons, II. 202—207—301
ACID, nitric, death by, II. 147—202—305
sulphuric, II. 202—302
muriatic, II. 202—313
phosphoric, II. 202
arsenious and arsenic, II. 211
oxalic, II. 315
prussic, II. 396
manufactories, nuisances by, 337—343
ACONITE, II. 138—159—203—207—379
poisoning by, II. 380
ACRID poisons, II. 202—207
ACTIONS for nuisances, 340—353
for unlicenced practice, 28
by medical practitioners, 77
for mala praxis, 80
ADIPOCIRE, formation of, 96—III. 25
ADOLESCENCE, 185
ADULTERATIONS of food, 374
of bread, 375
of beer, 377
of milk, 378
of medicines, 380
AERIAL poisons, II. 456
AFFIRMATION of Quakers, 167
AFFUSION, cold, use of, II. 391
warm, II. 393
AGARICUS Muscarius, II. 427
intoxication by, _ib._
AGES, 179
AGE, of consent, 168—170
of puberty, 170—179—185
old, 179
no bar to marriage, 172
children of, 175
determination of, 382
of deceased persons, enquiries respecting, III. 8—22
of criminal responsibility, III. 131
AGUE, jumping, 362
AIR, deprived of oxygen, effects of, II. 48
consumption of, encreased by muscular action, II. 54
hindering the circulation of, 348
tainting, 330—350
revival by fresh, II. 4
its influence on contagion, 120—126
ALBUMEN, an antidote to sublimate, II. 264
ALCHEMISTS, 2
ALCOHOL, poison by, II. 203—207—433—436
physiological action of, II. 437
ALIEN, cannot be a Fellow of the College of Physicians, 15
ALKALIES, caustic, poisons, II. 202—207—218
ALKALINE earths, poisons, II. 202—325
ALMONDS, essential oil of, II. 207—396—402—405
effect of oil and albumen on, II. 404
analysis of, II. 405
ALVINE concretions, supposed or feigned, 367
AMENORRHŒA, 235
AMENTIA acquisita, 310
AMMONIA, II. 323
a poison, II. 202
use of, in detecting arsenic, II. 241—244
effect of, on sublimate, II. 271
on copper, II. 281—287—293
test of, II. 324
poisoning by, II. 324
AMMONIURET of silver, a test for arsenic, II. 244
of copper, II. 245
ANAPHRODISIACS, 209
ANATOMY, bodies for, 21
ANDILUVIAN fever, 120
ANIMAL putrefaction, effects of, 123—126—II. 443
a source of nuisance, 332
ANIMAL poisons, II. 440
ANIMALS, experiments on, not always conclusive, II. 198
see _Appendix_, 272
ANIMATION, suspended, II. 9
ANTIDOTES for arsenic, —
sublimate, II. 263
antimony, II. 281
nitrate of silver, II. 300
sulphuric acid, II. 304
oxalic acid, II. 316
potass, II. 323
baryta, II. 328
hellebore, II. 374
prussic acid, II. 406
mushrooms, II. 433
ANTIMONY, II. 141—201
tartarized, effect on sublimate, II. 274
generally, II. 277
tartarized, II. 279
poisoning by, II. 208
antidotes of, II. 281
physiological action of, II. 282
dissection after, II. 283
tests for, II. 284—285
APHRODISIACS, 209
APOPLEXY, death by, II. 22—24—43
produced by poison, III. 14—17
by compression, III. 23
APOPLECTIC conformation, III. 22
APOTHECARY’S wares, search of, 18—20
APOTHECARY, practice by, 32—37
APOTHECARIES, Society of, 59
their charter, 59
their powers, 60
actions against, 68
malpractice by, 64
court of examination of, 65
who may practice as, 66
or, as assistants, 66
examiners in the country, 66
practicing without certificate, 67
AQUA FORTIS, death by, II. 147
AQUA Tophana, II. 135—141
ARCHBISHOP of Canterbury, licence of, 13—48
ARMS, bearing, 73
ARSENIC, sale of, should be regulated, 140
generally, II. 141—148—207—210
properties of, II. 211
metallic, not poisonous, II. 212
garlic smell of, II. 234
whitens copper, II. 236
imperfect tests of, II. 235—237
poisoning by, confounded with cholera
morbus, II. 156—160—219
putrefaction after, II. 183—229
case of Mitchel, II. 187
absorption of, II. 192
and its compounds, II. 201
poisoning _per vaginum_ by, II. 221
case of accidental poisoning by, III. 9
_See_ cases of _Turner_, _Mitchel_, _Blandy_, _Overbury_,
_Donnell_, _Ogilvie_, & _Nairne_.
ARSENIC acid and its salts, II. 256
effect of tests on, II. 257
sulphurets of, II. 257
tests of, II. 258
ARSENIATES, distinguished from Phosphates, II. 242—245—248
ARSENIOUS acid, or white oxide, II. 212
properties of, II. 213
vapour of, inodorous, II. 213—235
poisoning by, degrees of, II. 216
poisoning by, symptoms of, II. 157—216
poisoning by, lowest degree of, II. 216
second degree of, II. 217
third degree of, II. 218
modes of poisoning by, II. 220—221
death by external application of, II. 220
experiments on external application of, II. 221
internal use of, _ib._
physiological action of, II. 223
dissection of bodies poisoned by, II. 225
disease induced by, II. 229
state of the blood produced by, _ib._
introduced _post mortem_, II. 230
redness of the stomach not a certain proof of, II. 230
chemical tests of, II. 232
solid, how detected, II. 232
how reduced to metal, II. 233
different modes of detecting, II. 234—240
metalized by charcoal, II. 238
by lime, _ib._
effect of nitre on, II. 239
nitrate of silver, II. 239—240
muriates on, II. 242
ammoniuret of silver, II. 244
sulphate of copper, II. 245
ammoniuret of copper, _ib._
sulphuretted hydrogen, II. 248
lime water, II. 249
tests of, errors respecting, II. 246—249
adulterations of, II. 243—249
does not blacken steel, II. 250
does not prevent dough from rising, _ib._
examination of when mixed with food, II. 252
when absorbed by the stomach, II. 254
effect of iodine on, II. 272
ARSENICAL vapour, effects of, 339
ARSON (see Combustion), 402
ASSISTANT, Surgeon liable for the _mala praxis_ of his, 81
ASTHMA, extraordinary treatment of, II. 200
ASPHYXIA, II. 35
of privies, II. 49
treatment of, II. 75—84
ASPHYXIA, idiopathica, II. 30
ASTRINGENT poisons, II. 202
ATROPIA, II. 411
B
BARYTA, II. 202—327
poisoning by, _ib._
muriate of, _ib._—207
physiological action of, II. 328
antidotes to, _ib._
tests of, II. 329
BELLADONNA, II. 203—410
poisoning by, II. 411
physiological action of, II. 412
detection of, II. 413
BATEMAN, Mary, case of, II. 269
BEER, adulterations of, II. 377
BELLAND, or Derbyshire colic, II. 355
BILE acrid, may poison, II. 158—196
BILLS of health, 127
of mortality, 143
BIRTH, legal time of, 248
in France, _ib._
BISHOP of London, licences of, 12
BITES of venomous animals, II. 440
BITTER almonds (_see_ almonds), —
BLACK Assize at Oxford, 125
BLANDY, Mr. case of, II. 218—227—249
BLANE, Sir G. on fevers, 117
BLEEDING, danger of, during pregnancy, III. 95
BLINDNESS, feigned, 358—371
BLOOD, circulation of, discovered, 9
quality of, to support life, II. 19
black, its effects on the brain, II. 32—36—37
state of, in bodies frozen, II. 62
vomiting of, feigned, 365
extraordinary marks of, III. 33
BLOWS, murder by, II. 116—122
BODIES, combustion of human, 412—415
BODY found in the water, examination of, III. 32—62
BONES, examination of, III. 73
of animals, mistakes of, III. 82
BOTANIC Garden, 69
BOUGHTON, case of Sir Theodosius, II. 401
BRAIN, examination of, in cases of insanity, 327
injuries of, II. 23
functions of the, II. 18—20
action of opium on, II. 389
dissection of the, III. 46
BREAD, adulterations of, 375
kinds of, 375
BREWERIES, when nuisances, 333—341
BRINVILLIER, poisons of, II. 135
BRISTOL Infirmary, 126
BRITANICUS, death of, II. 134
BROTHEL, death in a, II. 44
BRUISES, II. 121
BRYONY, II. 203—207
BUILDING, excessive, 349
BULAM Fever, 117
BULLET, murder discovered by examination of, III. 39
BURIAL in cities, 92
at Paris, 95
not to be hindered, 100
nor disturbed, 100
premature, II. 5
of suicides, II. 108
BURNING, (see Combustion), 402
BURNS, Margaret, case of, 254—II. 176
BYE-LAWS, powers of making, &c., 22
of College of Physicians, 47—50—51
of College of Surgeons, 57
C.
CÆSARIAN operation, 226—274
curious case of, 276
CAIUS, Dr. John, 7
CALCUTTA, black hole of, II. 50
CALOMEL, sublimate converted into, II. 274
CAMBRIDGE, degrees at, 3—17
CAMBOGE, _see_ Gamboge, II. 371
CAMPHOR, II. 203—207
CANDIDATES, Inceptor, 52
CANTHARIDES, II. 142—202—207—330
poisoning by, II. 331
mode of detecting, II. 332
CARBONIC acid gas, effects of, II. 49—III. 24—37
given out by plants, _ib._
CARBURETTED hydrogen gas, II. 464
CARDAMOMS, tincture of, produces a red colour in the stomach, II. 23
CARNAL knowledge (_see_ Rape), 427—433
CASTRATION, 200—433
CATAMENIA, _see_ Menses.
CAUSTIC alkalies, II. 318
alkaline earths, II. 325
lunar, II. 299
_see_ Silver.
CENSORS to be elected, 16
their powers, 16—18—24—27—38
their search, 20
provincial proposed, 139
CERTIFICATES of apothecaries, 66
annual list of, 67
CERTIORARI, writ of, 44
CERUSSE, dangerous use of, II. 351—360
CHAMBRE ardente, II. 136
CHAMPIGNONS, II. 426
CHANCELLOR, his jurisdiction over idiots and lunatics, 291
though no commission found, 294
CHARTERS of College of Physicians, 14—21
abstract of, 15
of College of Surgeons, 55—57
of Society of Apothecaries, 59
CHILD, signs that a woman has borne a, 256
CHARCOAL, fumes of, III. 36
CHERRY laurel-water, II. 400
dangerous use of, II. 402
CHILD-BEARING, 172—256
earliest and latest periods of, 256
premature, 257
protracted, 258
_see_ Parturition.
CHILDREN, legitimacy of, 216—246
legitimation of, 218
supposititious, 219
identity of, 222
greatest number at a birth, 259
CHLORINE, II. 464
proposed use of, II. 253—272
CHOLERA, II. 155
spontanea, II. 156
accidentalis, II. 156—160
treatment of, II. 160
CHROMATE of potass, II. 243
CHURCHES, burial in, 92
CHURCH-YARDS overcharged, 93—96
exhumations in, 95
of Paris, 95
Dublin, 93
St. Margaret, 93
Dunkirk, 95
St. Denis, 97
St. Benoit, 97
CICUTA, II. 138
CITIES, cleanliness in, 91
CLASSIFICATION of poisons, II. 199
table, II. 207
CLEANLINESS in cities, 91—123
CLERKS, parish, corporation of, 144
CLIMACTERIC, grand, 182
disease, 193
CLITORIS, 207
enlarged, 286—288
CLOATHS, infected, should be burnt, 142
COCULUS Indicus, II. 203—207—423
effect of, on fish, II. 424
COFFINS, iron, 99
COLD, death by exposure to, II. 13—16—59
cases of, II. 60
effects of, II. 61
on the blood, II. 62
affusion, use of, II. 391
death of, infant by, III. 128
COLIC of Poitou, or saturnine, II. 340—344—346—358
Devonshire, _ib._
Derbyshire, II. 355
miners, _ib._
painters, _ib._
COLLEGE of Physicians, _see_ Physicians.
of Surgeons, 54
its charters, 55—57
its powers, 56
its by-laws, 57
COLOCYNTH, II. 207—377
poisoning by, _ib._
COMBUSTION spontaneous, 402
of hay, 404
by friction, 403
by fermentation, 403—404
by chemical action, 403—406
turf, flax, hemp, rags, oatmeal, 404
bran, 405
of animal matter, 405
woollen stuffs, 406
by fixed oils, 110—406
cases of, 404—405—406—407
of cere cloth, 409
lamp black, 410
by black wad, _ib._
mineral acids, 411
pyrites, _ib._
quicklime, _ib._
spontaneous of human bodies, 412
authorities on, _ib._
cases of, 413—415
COMMISSIONERS of lunatics, 296
COMMISSION of lunacy, 295
misconduct of, 294—296
supercedeas of, 299
COMPOS or non-compos, 290
CONCEPTION, _see_ Impregnation.
phenomena of, 230
false, 254
extra-uterine, 281
CONSANGUINITY, a bar to marriage, 168
physiological reason, _ib._
CONSENT, age of, 168—170
not necessary to impregnation, 436
CONSTABLE, physicians exempt from being, 18
when medical practitioners are exempt, and when not, 72
CONTAGION in factories, 90
from dead bodies, 95
questions on, 114
CONTAGIOUS diseases, 105
CONTUSIONS, II. 121
COPPER, action of, on the stomach, II. 144
and its compounds, II. 202
whitened by arsenic, II. 236
sulphate of, test for arsenic, II. 245
ammoniuret of, II. _ib._
whitened by sublimate, II. 272
generally, II. 285
solubility of, II. 286
culinary precautions on, II. 287—288
oxide of, II. 287
effect of ammonia on, II. 287—293
oxidation and solution of, by oils, II. 287
green carbonate of (verdigris), II. 288
dangerous use of, II. 289
vessels should be tinned, II. 290
sulphate of, II. 291
poisoning by salts of, II. 291
dissection after, II. _ib._
tests of, II. 292
effect of iron on, II. 293
subcarbonate of potass, _ib._
arseniate of potass, _ib._
triple prusiate of potass, effect of on, II. 294
mode of detecting, _ib._
works, when nuisances, 339—347
importance of, 342
CORONER’s inquest, II. 93—112
how to be held, II. 94
return of, II. 97
must be on view, II. 98
may be quashed, II. 98—101
may be traversed, II. 107
_see_ Suicide.
CORONER how to be elected, II. 93
notice of sudden death to be given to, II. 97
may be discharged or removed, II. 101
CORPORA lutea, III. 70
CORROSIVE poisons, II. 154—200—201—207
sublimate, II. 141
_see_ Sublimate.
COSTS of experiments, disallowed, 157
COUP de Soleil, II. 63
COURTESEY, tenant to the, 223
effect of cæsarian operation, 226
CRIMINAL responsibility, III. 131
CRANIUM of infant, examination of, III. 121
CROTON tiglium, II. 203—207
CULINARY poisons, III. 11
CUMMIN, supposed property of, 364
CUTS, II. 119
CYDER, danger of lead in, II. 340
CYMBALARIA, II. 142
D.
DANGEROUS drugs, sale of, 140
DATURA, questions on the herb, II. 138
DEAD body, examination of, III. 18
DEAD, burial of the, 92
disposal of by various nations, 92—94
decomposition of the, 98
DEATH, real and apparent, II. 3
signs of real, II. 3—11—14
apparent after parturition, II. 5
cases of, II. 4—10
causes and phenomena of, II. 16
sudden, II. 16—97
by arsenic, II. 16
cold, II. 13—16
lightning, II. 16—63
apoplexy, II. 22
grief, II. 26—29—30—110
excessive joy, II. 28
fear, II. 29—110
suffocation, II. 32
drowning, II. 35
hanging, II. 42
injury of the nerves, II. 44
manual strangulation, II. 46
smothering, II. 48
noxious air, II. _ib._
cold, II. 59
heat, II. 63
starvation, II. 67—110
wounds, II. 116
blows, II. _ib._
intoxication, II. 437
maggots, II. 453
chlorine, II. 465
_mala praxis_, II. 467
sudden, appearance of the stomach after, II. 174
DEAF and dumb, 171—292
DEAFNESS, feigned, 370
DECLARATIONS of dying men, 165—167—III. 6
DECOMPOSITION of dead bodies, 98
DECREPITUDE, 195
DEGENERATION by intermarriage, 168
DEGREES at Oxford and Cambridge, 3
Dublin, _ib._
DELIRIUM, 300
DELIVERY, recent, proof of, 222—242—249
_see_ Parturition.
pretended, cases of, 249
instrumental, 274
DELUSIONS, III. 7
DETECTION of opium, II. 394
belladonna, II. 413
DEODAND, II. 99
D’EON, Chevalier, 228
DIAMOND dust, II. 145
DIGITALIS, II. 148
DISEASES, feigned, 355
contagious, 105—II. 113
epidemic, 104—107
pestilential, 104
endemic, 106
hereditary, 173—324
DISEASED flesh, II. 444—447
DISLOCATION of cervical vertebræ, III. 52
DISORDERS, _see_ Disease.
DISSECTION of criminals, 12
necessary skill in, II. 163
in cases of insanity, 327—II. 104
of body poisoned by arsenic, II. 225
sublimate, II. 226
tartar emetic, II. 283
copper, II. 291
sulphate of zinc, II. 298
sulphuric acid, II. 304
nitric acid, II. 309
potass, II. 323
soda, II. _ib._
lime, II. 326
cantharides, II. 332
lead, II. 357
nitre, II. 382
opium, II. 393
prussic acid, II. 407
belladonna, II. 412
mushrooms, II. 233
danger of punctures during, II. 448
of the stomach, by Mr. Burns, II. 168
by Dr. Haviland, II. 169
of Margaret Burns, II. 178
of William Mitchell, II. 190
anatomical, instructions for, III. 45
of the brain and its membranes, III. 46
of the thorax, III. 52
of the abdomen, III. 60
of the uterus, III. 67
of the vagina, III. 72
of infants, III. 107
DIVING, II. 33
DIVORCE, 176
propter impotentiam, 177
DOGS meat, poison of, II. 446
DONELLAN, case of, II. 401
DORCHESTER, Marquis of, 10
DOUGH, arsenic does not prevent its rising, II. 250
corrosive sublimate does, II. 250—265
DOWNING, Mrs. case of, II. 241
DROPSY, feigned, 364
DROWNING, II. 35—III. 21—39
death, how produced by, _ib._
signs of death by, II. 37—89
resuscitation after, II. 38—76
DROWNED bodies, buoyancy of, II. 40
DRUGS, search of, 20—63—68—138
poisonous, sale of, 139
DRUNKENNESS, does not excuse, III. 138
DRY-GRINDERS, guard for, II. 457
DUBLIN, Trinity College, degree at, 3
DUEL, surgeon attending, 167
DUMBNESS, feigned, 370
DURESS, murder by, II. 112
DYSENTERY, decline of, 88
E
EARTHS, caustic alkaline, II. 325
EFFLUVIA, putrefactive, 95
contagious, 106
ELATIN, II. 376
ELATERIUM, II. 207—375
ELECTRICITY, death by, II. 63
use of, II. 82
ELECTIONS, how regulated, 41
of Censors, 46
EMBRYULCIA, 279
EMETIC tartar, II. 207
EMISSIO seminis, 203
in cases of rape, 427—433
how to be proved, 434
ENAMEL powder, II. 334
ENDEMIC, distinction of, 106
fever, remarkable, 119
EPIDEMIC, distinction of, 104—107
EPILEPSY, 172—329—III. 21
feigned, 356—361
ERGOT, or spurred rye, II. 204
ESCAPE of persons committed by Censors, 20
ESSEX, case of the Earl of, III. 20—32
EUNUCH, can commit a rape, 433
EUPHORBIUM, II. 111—203—207—377
EVIDENCE, medical, 153—399
mode of giving, 163
in cases of Rape, 421
in cases of Poisoning, II. 153
EXECUTION, pleas in bar of, III. 131
_See_ witness.
EXAMINATION of body found dead, III. 18
of the skeleton, III. 73
EXEMPTIONS of physicians, 16—72
of surgeons, 72
of apothecaries, 72
EXPERIMENTS, cost of, disallowed, 157
EXPULSION, power of, 41
EXTRA-uterine conception, 281
EYE, orbit of the, dangerous wounds of, III. 51
F
FAINTING, II. 25
_See_ Syncope.
FACTORIES, diseases in, 89
FŒTUS, extra-uterine, 282
extraordinary defects in, II. 20
FALLOPIAN tubes, imperfect, 214
FANATICISM, prevalent cause of insanity, 314—363
FASTING pretended, 368
FATIGUE, effects of, 126
FEAR, no legal ground of nuisance, sed. qy., 351
death by, II. 29
FECUNDITY, premature, 257
protracted, 258
multeparous, 258—259
FEES, physicians, cannot be recovered at law, 77
FELLOW of College of Physicians must generally be a graduate of Oxford
or Cambridge, 3
who may be, 42
who may not, 15
who is, 46
FERMENTATION, nuisances by, 330
FEVER, yellow, 109—116—135
generation of, 115
Bulam, 117
Sir G. Blane on, 117
pestilential, 117
sporadic 118
malignant, 117
epidemic, 119
Andalusian or Gibraltar, 120
in Cork, 124
in Jails, 124
in Dublin, 126
feigned, 364
FILTH, whether capable of producing contagion, 122—126
FINES, grant of, to College of Physicians, 22
how to be levied, 24
FIRE, nuisances by action of, 331
FISH, poisonous, II. 449
FLAX, steeping, a nuisance, 332
FLESH, diseased, II. 444—447
FLEXIBILITY of body apparently dead, II. 14
FLOGGING, military, III. 147
FLUX, black, chemical use of, II. 233
FŒTUS, skeleton of the, III. 75
weight of the, III. 101
length of the, III. 101
appearances of, III. 101
FOMITES, 106
FOOD, adulterations of, 74
FOOTSTEPS, importance of tracing, III. 37
FORAMINA, examination of, III. 79
natural, extraordinary case of, III. 80
FOXGLOVE, II. 203
FRACTURE of the skull, examination of, III. 46
FROTH or foam, appearance of, III. 21
FUMIGATION should be enforced, 142
FUNGI, poisonous, II. 425
G
GALVANISM, II. 82
GAMBOGE, II. 203—207—371
GAOL fever, II. 115
_See_ Jail.
infectious diseases in, II. 113—115
GAOLER, to receive persons committed by the College of Physicians,
20—26
GAS, nuisances by, 331
diminution of, 339
GASES, noxious, II. 48
GASTRIC juice, effects of, II. 164—168—171
appearance of solutions by, II. 175
perforations, II. 164—III. 64
GENITALS, examination of the, III. 72
GESTATION, usual period of, 218—230
shortest period, 241
longest period, 242
authorities on, 247
GLASS powdered, II. 146—334
GODFREY, Sir Edmonsbury, II. 95
GOULARD’S extract, II. 350
GRAVES, depth of, 93—98
GRAVEL, feigned, 366
GRIEF, excessive, death by, II. 26—28—30—110
GUNPOWDER, not to be kept in large quantities, 352
GUNSHOT wounds, II. 124
course of, _ib._
H
HABEAS Corpus to bring up a lunatic, 294
HÆMOPTHYSIS, feigned, 365
HAIR, chopped, II. 334
HANGING, death by, II. 42
whether induced by apoplexy, II. 43
signs of death, produced by, II. 45
recovering after, 89
death by, III. 42
accidental, III. 43
murder by, III. 44
HARGRAVE, Francis, his note on the legitimate period of gestation, 218
HARVEY, Dr. William, 8
HEAD, injuries of, 326—II. 25
policy of preserving, III. 73
HEALTH, preservation of the public, 85
in Ireland, 85
HEART, functions of the, II. 17
rupture of, II. 26
_See_ Syncope.
morbid structure of, II. 30
examination of the, III. 56
ruptured, III. 60
of infant, examination of the, III. 119
HEAT, death by, II. 63
application of, II. 81
HELLEBORE, II. 203—207
white, II. 372
poisoning by, II. 373
antidote to, II. 374
black, II. 374
fœtid, II. 375
HEMLOCK, II. 148—203—207—420
water, II. 421
HENBANE, II. 207
black, II. 395
HEREDITARY madness, 325
HERMAPHRODITES, 207—228—283
non-existence of, 284—288
supposed cases of, 285—288
HERNIA feigned, 373
HOMICIDE generally, II. 1
by misadventure, II. 466
HOMO diluvii testis, detected, III. 83
HORN manufactories, a source of nuisance, 338
HOSPITALS, ventilation of, 126
not nuisances, 351
HUMANE Society, system of, II. 77
HUNTERIAN Museum, 58
HYDROGEN, sulphuretted, II. 49
HYDRO-cyanic acid, II. 396
_see_ prussic acid.
HYDROMETER, 377
HYDROSTATIC test of infanticide, III. 109
Dr. Hutchinson’s mode, III. 111
test, objections to, III. 113
HYDROPHOBIA, suggestion on, II. 446
HYMEN, 203
imperforate, 207
as a proof of virginity, 428
authorities on, 430
HYPOCONDRIASIS, 320
HYSSOP, hedge, II. 207
HYSTERIA, feigned, 362
I
IDENTITY of children, 219
how to be proved, 222
mistakes as to, 440—III. 8—142
non, plea of, III. 131
IDIOT, cannot marry, 171
IDIOTS, 289—290
IDIOTCY, medically considered, 308
congenital, 308
general symptoms of, 309
in criminal cases, III. 131
ILLUSION, mental, 301
IMPOTENCE, 176—197
mental, 177—210
corporeal, 197
absolute or relative, 197—215—217
temporary or permanent, _ib._
organic, 197
by phymosis, 204
in females, 206
by adhesion, _ib._
by irritability, 208
functional, 208
by epilepsy, 209
IMPOSITIONS, 355
IMPREGNATION, 203—III. 71
sine penetratione, 203
per urethram, 204
experiments on, 268
consent not necessary to, 436
IMPRISON, power of Censors to, 24
IMPRISONMENT, murder by excessive, II. 112
INCISED wounds, II. 119
INDICTMENT for nuisances, 334—350
INFANT, violation of, 419
_See_ Rape.
dead body of, how to be examined, III. 99
whether born alive, III. 100
dissection of, III. 107
death of, whether natural, III. 122
criminals, III. 131
INFANCY, 188
INFANTICIDE, 249—258—III. 84
physiological illustrations of, III. 98
INFECTION, distinction of, 105
increasing danger of, a nuisance, 352
INJUNCTION, against nuisances, 340
INQUEST, Coroners, II. 93—112
_See_ Coroner.
by Justices of the Peace, II. 98—107
INQUISITION of lunacy, 295
in England does not bind land in Ireland, 295
INQUIRY, medical, synopsis of, III. 1
as to bodily health, III. 8
age and occupation, _ib._
present symptoms, _ib._
meals last taken, III. 9
stools and vomitings, III. 11—13
remedies used, III. 12
paroxysm of passion, III. 14
intoxication, III. 15
body found dead, III. 18
description of person, III. 22
formation of the neck, III. 22
period elapsed since death, III. 23
marks of wounds, III. 25
whether self inflicted, III. 32
smell of cloaths, III. 35
marks of rape, III. 35
surrounding objects, III. 36
marks of struggle, III. 37
thunder storms, III. 38
coup de soleil, III. 38
weapons, their nature and situation, III. 38
on body found in the water, III. 39
on body found hanging, III. 42
INSANITY, medically considered, 307
symptoms of, 312—320—359
sudden, 315
exaggerated ideas of, 316—318
necessity of medical evidence on, 315
questions on, 317
kinds of, 318
excessive coection improper in, 322
recovery from, 323
causes of, 324
hereditary, 324
from injuries of the head, 326
increase of, in France, 326
wine and spirits, dangerous in, 327
women more liable to, 327
appearances on dissection, 327—II. 104
feigned, 358
puerperal, 327—III. 129
INSENSIBILITY, delivery during, 243
INSURANCE on lives, 381
foreign case on, 387
INTOXICATION, suffocation during, II. 58
effect of cold during, II. 60
death by, II. 437
treatment of, II. 439
INTUS-susception, III. 65
IODINE, effect of, on arsenic and sublimate, II. 272
IRISH Health Act, 85
IRON, effect of, on copper, II. 293
J
JAIL fever, 124—II. 115
at Cambridge, 124
Oxford, 125—II. 115
Exeter, 125
Taunton, 125
at Newgate, 125
Dublin, II. 115
JATROPA, curcas, II. 203—207
JAUNDICE, feigned, 365
JOY, excessive, death by, II. 28
JURIES, physicians exempt, 16
JUVENTUS, 192
K
KALI (_see_ Potass)
KIDNEYS, rupture of the, III. 67
L
LABOUR, premature, when to be excited, 271
LACERATIONS, II. 123
LACTOMETER, 377
LAUREL water, II. 396
LAZAR, or Leper, 86
LAZARETTOES, 104—129
LEAD, melted, death by, II. 202
and its compounds, II. 202—336
red, danger of, II. 277—352
detection of, _ib._
melted, death by swallowing, II. 317
action of water on, II. 338
diseases induced by, _ib._—356
in wines and cider, II. 340—344
combined with tin, is safe, II. 348
sugar of, II. 349
Goulard’s extract of, II. 350—359—360
white, II. 350
sub-carbonate of, _ib._
oxide of, II. 351
red, II. 352
symptoms of poisoning by, II. 353
dissection after, II. 357
physiological action of, II. 358
tests of, II. 361
LEADEN utensils, danger of, II. 338
glaze of earthenware, II. 340
LEGITIMACY, 216—246
LEGITIMATION of children, 218
_LEPROSO amovendo_, writ _de_, 86
LETTUCE, II. 207
LEUCORRHŒA, 418
LIABILITIES, medical, 72
LICENTIATES, litigations of, 41—46—50
LICENCE, partial, 48
LIGHTNING, death by, II. 63
returning stroke of, II. 66
precautions during, II. 66
LIKENESS, dangers of trusting to, 221
LILLY, Wm., the Astrologer, licenced, 13
LIME kiln, when a nuisance, 351
a poison, II. 202
vapour of, III. 36
LIME water, effect of, on arsenic, II. 249
effect of, on sublimate, II. 271
tartar emetic, II. 284
quick, II. 325
poisoning by, _ib._
tests of, II. 326
LINACRE, Dr. Thomas, 6
LITHARGE, II. 351—359
adulteration of wine by, II. 346
LIVES, insurance on, 381
LIVER, examination of the, III. 65
ruptured, _ib._
LOCAL circumstances, or habit, when important, III. 27
LOCHIA, 252
LOCUSTA, poisons of, II. 133—139
LONDON, City of, not to be prejudiced, 17
practice in, 16
extent of buildings in, 349
LOURLULARY, or Lourgary, 350
LUCID intervals, 299
difficulty of ascertaining, 322
LUNAR caustic, a test for arsenic, II. 240
LUNACY in criminal cases, III. 131
LUNATIC may contract marriage, and how, 171
LUNATICS, 289
access to, 294
commission, 295
committee of the person, 297
estate, 298
comfort of, the first object, 298
recovery of, 299—323
mode of examining, 318
suicide by, II. 105—107
supposed legal remedy of, 294
asylums, 304
commissions for visiting, 304
LUNGS, examination of the, III. 53
of infant, examination of, III. 109
weight of, III. 117
functions of the, II. 17
appearance of, in cases of narcotic poisoning, II. 394
LUTEA, corpora, III. 70
LUTE, fire, composition of, II. 234
M
MACLEAN, Dr. C. on the Plague, 110
MADNESS, 289
_see_ Insanity.
MAGGOTS, death by, II. 453
_MALA praxis_, punishment of, 38
death by, II. 467
MALTA, plague of 1813, 130
MANHOOD, 193
MANIA, 311
_See_ Insanity.
hereditary, 173—186
MANDAMUS, Dr. _Letch’s_, 42
Dr. _Fothergill’s_, 50
Dr. _Archer’s_, 50
MANNERS, change of its influence on health, 88
MANSLAUGHTER, II. 2
MANUFACTORIES, diseases in, 89
MARRIAGE, 168
who may contract, _ib._
parties to, must be _habiles ad matrimonium_, 170
must be _habiles ad consensus_, 171
idiot cannot contract, 171
deaf and dumb can, _ib._
lunatic may and how, _ib._
ancient laws of, 172
nullity of, 176
MECONIC acid, II. 385—387
MEDICAL practitioners, exemptions and liabilities of, 72
MEDICINES, patent, abuse of, 40
dangerous, sale of, 140
MELANCHOLIA, 312—320
_MELIUS inquirendum_ in lunacy, 296
MEMBERS of the College of Physicians, who are, 41—45
MENORRHAGIA, 255
MENSES, 187—232
peculiarity of the discharge, 187
cessation of, 194
MERCURY, poisoning by, II. 148
and its compounds, II. 201
metallic, II. 258—264
oxymuriate or bichloride of, (_see_ Sublimate).
red oxide of, II. 275
nitric oxide of, II. 276
sulphuret of, II. 276
volatility of, II. 459
metallic, salivation by, II. 459
MERCURIAL vapours, II. 458
MIDWIFE, baptism by, 82
oath of, 83
licence of, by the College, 43
by the Bishops, 83
MIDWIFERY, 82
MILITARY surgery, 355
MILITIA, liability to serve in, 75
MILK, secretion of, how far a proof of delivery, 253
man having, 254
adulterations of, 378
assay of, _ib._
MILREEK, or miner’s colic, II. 355
MINERAL poisons, II. 209
readily detected, II. 186
MINES, accidents in, II. 99
MINIUM, II. 352
MITCHELL and family, case of, II. 187—217
MONKS practised physic, 2
MONOMANIA, 318
MONSTERS, 226—227
not to be destroyed, 228
MORPHIA, II. 385
effect of, II. 387
MORTALITY, bills of, 143
Breslaw, _ib._
Northampton, _ib._—147
London, 143
importance of, 145
imperfections of, 145—146
Chester, 147
York, _ib._
MURDER, II. 2
self, (_see_ suicide), II. 104
generally, II. 110
of infants, (_see_ Infanticide), II. 111
by duress, II. 112
by wounding, II. 116
by blows, II. 116
MURIATIC acid, II. 202—313
poisoning by, II. 313
tests of, II. 314
MUSCLE (_Mytilus Edulis_), II. 449—453
MUSHROOMS, poison of, II. 203
poisonous, II. 425
poisoning by, II. 428
antidotes, II. 433
N
NARCOTIC poisons, II. 141—161—203—207—382
NARROTICO-acrid poisons, II. 203—205—207—410
NARCOTINE, II. 385
NAVEL string, strangulation by, III. 123
neglect of, III. 126
hemorrhage, III. 127
NECK, dislocation of, II. 44
NECROPOLIS, project of, 99
NERVES, injuries of, II. 44
NICOTIN, II. 416
NIGHTSHADE, II. 207—410
NITRATE of silver, a test for arsenic, II. 240
objection to, considered, II. 241
best mode of using, II. 241
poisoning by, II. 300
_See_ silver.
NITRE, poisoning by, II. 381
test of, II. 382
NITRIC acid, II. 305
death by, II. 147—202
poisoning by, II. 306
tests of, II. 312
NITRIC oxide of mercury, II. 276
NOISES, excessive, nuisances by, 331—348—351
NON-COMPOS, (_see_ insanity and lunacy), 290
NOYAU, _creme de_, danger of, II. 404
NUISANCES, 330
various kinds of, 330
by putrefaction or fermentation, 330
by tainting the air, 330
the waters, 331—350—351
by noises, 331—348—351
indictment of, 334
actions for, 340
injunctions against, 340
when allowed, 341
evidence on, 347
by probable danger, 352
whether a new comer can have his action for, 353
continuance of, 353
NUX vomica, II. 203—421
uncertain effects of, II. 422
O
OATH of Censor, 18
allegiance and supremacy, 18
OBSTRUCTIONS, death or disease by, II. 144—145
ŒSOPHAGUS ruptured, II. 63
OFFALS, animal poison in, II. 446
OILS, fixed, dangers of, (_see_ combustion), 406
ONIONS, decoction of, error respecting, II. 246
OPERATION, cæsarian, 226—274
sigaultian, 274—280
OPIUM, sale of, should be regulated, 140—II. 383
poisoning by, II. 142—207
excessive dose of, II. 151
Turkey, II, 384
East Indian, II. 383
eaters, II. 388
symptoms of poisoning by, II. 389
action on the brain, II. 389—390
physiological action of, II. 390
treatment in cases of poisoning by, II. 391
mechanical removal of from the stomach, II. 392
detection of, 394
OPHTHALMIA, feigned, 372
OPTICAL deceptions, II. 247
ORGANIC lesions, and effects of poison, II. 162
ORPIMENT, II. 257
OSSIFICATION, III. 75
OVARIA, absence of, 192—213
essential to puberty, 192
diseased, 213
should be examined, II. 181
examination of the, III. 70
OVERBURY, Sir T. murder of, II. 130—137—222—331
OXALIC acid, II. 315
fatal mistakes of, 141—II. 315
poisoning by, II. 316
tests of, _ib._
antidotes to, _ib._
OXYGEN, requisite for respiration, II. 34
consumption of, increased by action, II. 34—39
death, by air deprived of, II. 42
OXYGENIZED blood, necessary to life, II. 20
OXFORD, University of, degrees in, 3—17
OXYMURIATIC acid gas, II. 464
P
PAINTER’S colic, II. 355
PALSY, feigned, 362
PAPIST, recusant cannot practice, 15
PARIS, cemeteries of, 95
PARISH Offices, physicians exempt, 18
PARR, old, 172
PARTURITION, 241
questions on, 241
during insensibility, 243
recent, signs of, 251
difficulty of determining, 258
diseases resembling, 254
PASSIONS violent, their effect, II. 26
PASSION, effects of, III. 14
PEEL, Sir Robert, cotton factories, 89
PEINE fort et dure, II. 56
PELVIS, distorted, 272—274
PENETRATION, in rape, 427
PENIS, malformation of, 203
excessive, 204
diminutive, 201
mutilated, 205
paralysis of, 205
PERFORATIONS, gastric, II. 164—III. 62
in the stomach, II. 164
appearance of, II. 175
not always a sign of poison, II. 175
PERICARDIUM, examination of, III. 56
PERSONAL identity, III 8—131—142
PHANTOMS of insanity, 321
PHARMACOPŒIA, 52
PHOSPHATES distinguished from arsenic, II. 241
PHOSPHORUS, II. 202—333
poisoning by, II. 333
PHYSICIAN, profession of, 1
College of, founded, 6
powers of, 23
charter confirmed, 13
College of how to sue, 28
classes of, 52
PICROTOXINE, II. 425
PLAGUE, regulations in time of, 86
contagion of, 95
definition of, 108
authorities on, 108—111—112
contagious, 109
Dr. Maclean on, 110
at Marseilles, _ib._
Messina, _ib._
ancient authorities on, 111
report of the College on, 113—Appx. 185
in London, 121
source of the, 127
at Malta, 1813, 130
police, 104
PLOMB or asphyxia of privies, 101
PLOUQUET’S test of infanticide, III. 117
POISON, definition of, II. 142
POISONS generally, II. 131
classification of, 199—207
slow, II. 132—143—149—355
vegetable, II. 138—182—366
narcotic, II. 141—154—161—200—203—381
consecutive, II. 147—149
accumulative, II. 148—149—260—355
absolute, II. 150
relative, II. _ib._
corrosive, II. 154—200—201
astringent, II. 200—202—336
animal, II. 440
septic, II. 200—204—_ib._
aerial, II. 204—456
acrid, II. 200—202—371
mineral, II. 209
mechanical, II. 334
narcotico-acrid, II. 200—203—205
absorption of, II. 208
external application of, II. _ib._
effect of on animals, II. 193
of the toad, II. 139
of the lepus marinus, II. 141
of acrid bile, II. 158
of fishes, II. 204
of vipers, II. 442
POISONING, murder by, II. 128
antiquity of, II. 132—138
fables of, II. 136
evidence of, II. 153
questions on, II. 154
by arsenic, II. 216
sublimate, II. 259
antimony, II. 270
copper, II. 291
muriate of tin, II. 295
sulphate of zinc, II. 297
nitrate of silver, II. —
concentrated acids, II. 301
sulphuric acid, II. 303
oxalic acid, II. 316
potass, II. 202—320—322
soda, II. 323
ammonia, II. 324
lime, II. 325
baryta, II. 327
phosphorus, II. 333
lead, II. 353
white hellebore, II. 373
black hellebore, II. 374
fœtid hellebore, II. 375
elaterium, II. 376
colocynth, II. 377
euphorbium, II. 378
savine, II. 378
aconite, II. 380
nitre, II. 381
opium, II. 388
henbane, II. 395
prussic acid, II. 398
nightshade, II. 411
stramonium, II. 414
tobacco, II. 418
hemlock, II. 421
nux vomica, II. 422
mushrooms, II. 428
alcohol, II. 436
fish, II. 451
POISONOUS drugs, sale of, II. 139
proposed regulation, II. 141
fish, II. 449
POITOU, colic of, II. 340—344—346—350
POLICE plague, 104
medical, 138
POPPIES red, mistake arising from, II. 231
POTASS, II. 319
a poison, II. 202—320
carbonate and subcarbonate, effect on sublimate, II. 271
effect on copper, II. 293
arseniate of, effect on copper, II. 293
triple prussiate of, effect on copper, II. 294
subcarbonate of, II. 322
poisoning by, _ib._
antidotes to, II. 323
POTASSÆ, liquor, II. 320
tests of, _ib._
POTASSA fusa, II. 321
POTASSA cum calce, II. 321
PRACTICE within London and seven miles, confined to College of
Physicians and their Licentiates, 16—41
unlicenced, punishment of, 23—26
action for, 28
what is, 30—35
in the country, 41
PRATIQUE, 128
PREGNANCY, 230
_See_ Gestation.
symptoms of, 233
how to ascertain, 236
mistaken for dropsy, 237
may be coexistent with dropsy, 238
privileges of, 239
feigned, 249
signs on dissection, III. 69
plea of, III. 131—141
PRESCRIPTIONS, 64
PRIAPISM, 205
PRINCE Charles Edward, 223
PRINCES, births of, disputed, _ib._
precautions at, _ib._
PRISON discipline, 89—II. 113
PRISONERS, death of, II. 111—112
PRIVIES, cleansing, 100
asphixia of, 101
explosion in, _ib._
regulation of, 102
in Paris, _ib._
gas of, II. 463
infants found in, III. 124
PRECOCITY of talent, 184
PROLAPSUS uteri, 287
feigned, 373
PROTESTANTS, French, charter to, 30
PRUSSIAN blue, nuisance of manufactory, 337
PRUSSIC acid, II. 207—396
spontaneous generation of, II. 162
properties of, II. 397
poisoning by, II. 398
suicide by, II. 399—401
accidents by, II. 399—401—402
physiological action of, II. 404
antidotes, II. 406
test of, II. 408
PTYALISM, extraordinary case of, II. 461
PUBERTY, age of, 170—185
signs of in males, 185
in females, 187
premature, 188
singular case of, 189
how to ascertain, 190
PUERPERAL insanity, III. 129
PUERITIA, 184
PULMONIC test of Infanticide, III. 109
PULVIS successionis, II. 142
PUNCTURES, II. 120
PUNISHMENTS, III. 147
PUTREFACTION, whether capable of generating contagion, 122
nuisances by, 330
as a test of death, II. 3
in cases of poisoning, II. 155—182
signs of in the stomach, II. 181
should not prevent dissection, II. 185
PUTRESCENT animal matter, II. 443
Q
QUARANTINE, 104—127
origin of, 127
laws, 131
vexatious application of, 131
necessity of, 136
QUICKSILVER, _see_ Mercury.
_QUO warranto_ against the President and Censors of the College of
Physicians, 46
QUICK or not, question of, III. 142
R
RANUNCULI, II. 207
RAPE, 416
accusation of, should be immediate, 416
appeal of abolished, 417
in Scotland, 417
immediate medical examination necessary, 417—424
signs of, 417
accuser and accused to be medically examined, 417
false accusation of, 418—426
general observations, 419—424
on the person of an infant, 419
cases of, 420
evidence of infant, 421
male infant under 14 deemed incapable of—sed q., 422
penetration, whether necessary, 427—433
emissio seminis, 427—433
whether Eunuchs can commit, 433
evidence on, 434—439
REALGAR, II. 259
RECOVERY of drowned persons, II. 78
RECTUM, poison inserted into, II. 222—230
examination of the, III. 64
RESEMBLANCE, personal, 220
animal, 221
RESPIRATION, II. 18
artificial, II. 21—78
cessation of, II. 33
utmost suspension of, II. 33
of infants, III. 113
in utero, 224
RESPONSIBILITY, criminal, III. 131
RHEUMATISM, feigned, 358
RICINUS, II. 203
ROYAL Letters, 3
RYE, spurred, poison of, II. 204
S
SAFETY lamp, II. 100
SAFFRON, meadow, II. 207
SALIVATION by sublimate, II. 261
SALT, spirit of, _see_ muriatic acid.
SALT Tax, impolicy of, 90
SANDARACH, mistake of, II. 210
SATURNINE medicines, danger of, II. 359
SAUSAGES, danger of, II. 445
SAVINE, II. 207—378
administering, III. 86—94
SCAMMONY, II. 203
SCHOOLS, diseases in, 90
SCROFULA, hereditary, 173
SEARCHERS, duty of, 144
inadequacy of, 144
SENECTUS, 194
SEPTIC poisons, II. 204—440
SEX, mistaken, 285—286—288
SEXES, equal births of both, 259
SHEEP skins, steeping, a nuisance, 351
SICKNESS, the sweating, 124
SIGAULTIAN operation, 274—280
SIGHT, defective, feigned, 372
SILVER and its compounds, II. 202
nitrate of, II. 207—299
poisoning by, II. 300
tests of, II. 300
SKELETON, examination of the, III. 73
sex of, III. 76
SKULL, examination of, III. 36
SLAUGHTERING in cities, 92
SLAUGHTER houses, nuisance of, 344
SLOW poisoning, II. 145
SMALL pox, exposure of persons with, 86
contagion of, 98
effect of fresh air on, II. 5
SMELTING houses, when nuisances, 338—341
importance of, 342
evidence on, 348
SMOKE, nuisances by, 331—333
modes of diminishing, 335
SMOTHERING, death by, II. 48
SNUFF, dangerous abuse of, II. 419
SOAP boilers, a nuisance, 338
SODA, poisoning by, II. 202—323
tests of, II. 321
SOLEIL, coup de, III. 24—38
SOMNOLENCY, feigned, 359
SPINE, fracture of, III. 44
SPINAL marrow, functions of, II. 20—24
SPIRITS, effects of, II. 434
SPLEEN, ruptured, II. 123—III. 66
SPONTANEOUS combustion (_see_ combustion), 402
SPORADIC fever, 117
SPURRED rye, II. 204
SQUILL, II. 203—207
STABBING, statute of, II. 2
STARCH, manufactories, 332
STARVATION, death by, II. 67—110
cases of, II. 68
voluntary, II. 69
STATUTES, 51. Hen. 3., 375
17. Edw. 2. c. 9., 291
12. Rich. 2. c. 13., 350
9. Hen. 5., 12
3. Hen. 8., 3
5. Hen. 8., 54
14 & 15. Hen. 8., 12—72
21. Hen. 8. c. 1., 402
22. Hen. 8., II. 128
22. Hen. 8. c. 1., 402
23. Hen. 8., II. 468
32. Hen. 8. c. 38., 18—54—72—169—II. 466
34. & 35. Hen. 8., 19—30
37. Hen. 8. c. 26., 402
1. Mary. c. 9., 18—20—26—31
1. & 2. Ph. & Ma. c. 8., 169
4. & 5. Ph. & Ma. c. 4., 402
1. Edw. 6. c. 12., 402—II. 128
2. Edw. 6. c. 8., 297
2. & 3. Edw. 6. c. 23., 169
5. & 6. Edw. 6. c. 12., 171
1. Eliz. c. 1., 169
5. Eliz. c. 10., 154
43. Eliz. c. 13., 402
1. Ja. 1. c. 31., 86
1. Ja. 1. c. 8., II. 2
9. Ja. 1. c. 5., 15
21. Ja. 1. c. 21., III. 85
21. Ja. 1. c. 27., III. _ib._
22. & 23. Car. 2. c. 7., 402
2. Wm. & Ma. sess. 2. c. 8., 336
7. & 8. Wm. 3. c. 35., 171
8. Ann. c. 18., 375
10. Ann. c. 19., 171
1. Geo. 1. c. 48., 402
9. Geo. 1. c. 22., 402
10. Geo. 1., 21—40
12. Geo. 1. c. 61., 352
13. Geo. 1., 21
4. Geo. 2. c. 10., 290
18. Geo. 2. c. 15., 54
10. Geo. 2. c. 32., 402
15. Geo. 2. c. 30., 171
22. Geo. 2. c. 2., 155
28. Geo. 2. c. 19., 402
31. Geo. 2. c. 29., 375
31. Geo. 2. c. 42., 402
9. Geo. 3. c. 29., 402
14. Geo. 3. c. 48., 381
14. Geo. 3. c. 49., 304—305
18. Geo. 3. c. 19., 156
26. Geo, 3. c. 60., 131
40. Geo. 3. c. 79., 136
43. Geo. 3. c. 58., III. 58
44. Geo. 3. c. 98., 135
45. Geo. 3. c. 10., 131
45. Geo. 3. c. 92., 156
48. Geo. 3. c. 96., 306
55. Geo. 3., 62
56. Geo. 3. c. 69., 306
57. Geo. 3. c. 22., 345
57. Geo. 3. c. 106., 306
58. Geo. 3. c. 28., 379
58. Geo. 3. c. 56., 379
58. Geo. 3. c. 65., 379
59. Geo. 3. c. 41., 85
59. Geo. 3. c. 127., 306
1. Geo. 4. c. 98., 306
1. & 2. Geo. 4. c. 33., 306
STEAM engines, number of, 334
STEEL not blackened by arsenic, II. 250
blackened by corrosive sublimate, II. 250—270
STENCH, noxious, nuisances by, 346
need not be unwholesome, 348
death by, II. 111
STERILITY, 197—212
organic, 212
functional, 214
sympathetic, 215—217
STIFFNESS, cadaverous, II. 13—III. 23
STOMACH, injuries of, by poison, II. 163
changes in, after death, II. 164
solution or digestion of, II. 166—171
vascular appearance of, II. 173
red colour, not always to be attributed to poison, II. 230
suspected to contain arsenic, examination of, II. 254
examination of, for sublimate, II. 274
copper, II. 295
lead, II. 357—365
of infants, examination of, III. 120
examination of the, III. 61
ruptured, III. 63
appearance of, in cases of sudden death, II. 393
STONE, feigned, 366
STRAMONIUM, II. 203—413
poisoning by, II. 414
STRANGULATION, II. 21—24—26—42
death by, II. 46
STRYCHNIA, II. 422
SUBLIMATE, corrosive, II. 141—207
_Suleyman_, the taker of, II. 151
absorption of, II. 187
effect of on dough, II. 250
blackens steel, II. 250—270
properties of, II. 259
smell of vapour, _ib._
poisoning by, _ib._
symptoms of a large dose, II. 260
symptoms of small doses, II. 260
salivation by, II. 261
physiological action of, II. 262
antidotes and treatment of, II. 263
action of albumen on, II. 264
gluten on, II. 265
tests for, II. 267
galvanic test, _Sylvester’s_, II. 268
Archdeacon _Wollaston’s_, _ib._
test by precipitation, II. 269
carbonate of potass, II. 271
subcarbonate of potass, _ib._
ammonia, _ib._
lime water, _ib._
nitrate of tin, II. 272
iodine, II. 272
sublimation, II. 273
mode of detecting, when mixed, II. 273
converted into calomel, II. 273
examination of the stomach for, II. 273
effect of tartarized antimony, II. 274
SUBPŒNA ad testificandum, 154
SUCCESSION, Poudres de, II. 355
SUFFOCATION, II. 32—III. 21—24—36
death by, how produced, II. 32
cases of, II. 49—50—55
by compression, II. 55
by obstruction, II. 57
voluntary, fable of, II. 56
during intoxication, II. 58
SUICIDE, II. 1—104
disputed, III. 20
by idiots or lunatics, II. 105
by an infant, II. 195
forfeiture, II. 106
burial of, II. 108
questions on, III. 32
by drowning, III. 41
SUGILLATIONS to be distinguished from ecchymoses, III. 104
SULEYMAN Yeyen, II. 151
SULPHURIC acid, II. 202—302
poisoning by, II. 303
antidotes to, II. 304
tests of, II. 305
SULPHUROUS acid gas, II. 465
SULPHURETTED hydrogen gas, II. 462
SULPHATE of copper, effect on arsenic, II. 245—291
SULPHURETS of arsenic, II. 257
tests of, II. 258
of mercury, II. 276
SUPERFŒTATION, 247—260
cases of, 261
modern case of, 262
in animals, 266
questions on, 268
circumstances essential to, 269
SUPPOSITITIOUS children, 219
SURGEONS of London, 3
College of, 54
their Charters, 55—57
military and naval, 56
actions against for _mala praxis_, 88
SURVIVORSHIP, 388
according to the Code Napoleon, 392
case of, chemically determined, III. 25
SUSPENDED animation (_see_ animation), II. 9
SWINE keeping in London a nuisance, 336
SYMPATHY, extraordinary effects of, 363
SYNCOPE, II. 25
from hemorrhage, II. 26
feigned, II. 360
SYNOPSIS of objects of enquiry in cases of sudden death, III. 1
T
TALLOW MELTERS, nuisance of, 944—346
TAN YARDS, when nuisances, 332
TANNIN effect of on arsenic tests, II. 248
TARTAR emetic, II. 204—207—274—279—280
TENANT by the courtesy, 225
TESTICLES necessary to puberty, 192
use of, 197
want of, 198
concealed, _ib._
defective, 201—202
wasting of, 202
TESTS, chemical, of arsenic, II. 232
sublimate, II. 267
lead, II. 361
copper, II. 292
nitre, II. 382
THORAX, dissection of, III. 52
TIN and its compounds, II. 202
muriate and oxide of, II. 207
nitrate of, effect on sublimate, II. 272
important use of, II. 290—348
muriate of, poisonous, II. 295
TIPPLE, case of Thomas, II. 117
TOAD, poison of the, II. 139
TOBACCO, II. 414
essential oil of, II. 416
prejudices against, II. 415—416
poisoning by, II. 418
injection of, dangerous, II. _ib._
physiological action of, II. 419
difference between the essential oil and infusion of, II. 420
abuse of, II. 88
poison, II. 203—207
TOPHANA, poisons of, II. 134—141
TOXICOLOGY, _see_ Poisons, II. 131
TRADES dangerous, II. 457—III. 8
TRANCES or apparent death, II. 4—6—25
TRAVERSE, right of, in lunacy, 296
by idiot in person, 297
by lunatic, by attorney, _ib._
TREAD MILL, III. 147
TREATMENT of persons poisoned by opium, II. 390
TRIUMPH, H. M. S., case on board, II. 460
TURNER and family, case of, II. 216—250—III. 94
TWINS, united, 227
TYPHUS, generation of, 98
causes of, 123
danger of in populous places, 352
U
UMBILICAL cord, _see_ Navel string.
ULCERS, feigned, 372
UNIVERSITIES, 3—5—13—23—24—28—68
UPAS Antiar, II. 207
URINE, vomiting, feigned, 365
bloody, feigned, _ib._
incontinence of, feigned, 366
UTERUS examination of the, III. 67
absence of, 192—212
imperforate, 212
polypus in, 213
during gestation, 231
gravid, examination of, 237
double, 265
prolapsus of, 287
necessity of inspecting in doubtful cases of sudden death, II. 181
UTERINUS vagitus, 224
V
VAGINA, adhesions in, 206
imperforate, _ib._
obstructed, _ib._
malformation of, 207
double, 265—266
state of in virgins, 431
poison introduced into, II. 221
examination of the, III. 72
VAGITUS Uterinus, 224
VAPOUR, noxious, nuisances by, 331
VAPOURS, mercurial, II. 458
noxious, III. 36
VARNISH manufactories, nuisances, 338
VEGETABLE fermentation, a source of nuisance, 332—345
poisons, II. 138—182—366
VENEREAL disease, 88
VENOMOUS animals, II. 440
VENTILATION in jails, importance of, 125
VERATRIA, II. 374
VERDEGRIS, II. 207—288—290
VERMILION, detection of, II. 277
VESALIUS, a Spanish physician, case of, II. 6
VESPA, II. 443
VIABILITE, 243
VIABILITY of infant, III. 100—108
VILLOUS coat of the stomach, separation of, II. 163
VINEGAR, action of on opium, II. 392
on prussic acid, II. 406
VIPERS, II. 440
bite of, II. 441
VIRGINITY, signs of, 424
VIRGINS, corpora lutea in, III. 71
VITERBI case of, II. 69
VITRIOL, white, _see_ Sulphate of Zinc.
oil of, _see_ Sulphuric Acid.
VOMITING blood, feigned, 365
urine feigned, _ib._
difficult to excite in cases of poisoning by opium, II. 389—393
W
WADDING, murder detected by the examination of, III. 39
WATCH and WARD, physicians exempt, 18—72
surgeons and apothecaries exempt, 54
WATER, in the stomach or lungs of bodies supposed to have been drowned,
II. 38
boiling, death by, II. 202—316
stagnant, 91
tainting, 330—350—351
WHITING, case of Michael, II. 265
WHITEWASHING infected chambers should be enforced, 142
WILL, incapacity of making a, 293
WINE, action of, II. 434
WINES adulterated with lead, II. 344—345
test of, II. 363
WITNESSES, medical, 153
expenses of, 154
examination of, 158
not privileged, 160
observations on, 161
WOMB and its appendages, III. 69
WOUNDS, classification of, II. 116
examination of, II. 118—III. 45
direction of, II. 119—126
incised, II. 119
gun-shot, II. 124
whether inflicted during life, II. 127—III. 31
whether mortal, III. 30
WOUNDING, murder by, II. 116
Y
YELLOW fever, 109—116—135
Z
ZINC and its compounds, II. 202
sulphate of, II. 207
poisoning by, II. 297
tests of, II. 299
------------------------------------
Printed by WILLIAM PHILLIPS,
George-yard, Lombard-street, London.
APPENDIX
TO
PART I.
STATUTES AND CHARTERS.
STATUTE.
9 _Hen._ 5.
[Cited by Sir Wm. Browne in his Vindication of the College of
Physicians. Quarto, London 1753.]
Ex Bundello petitionum de an^o. 9^o. H. 5. in Parliamento.
HEY and most mighty prince noble and worthy lords spirituelx and
temporelx and worshipfull comunes, for so moche as a man hath thre
things to governe, that is to say soule, body, and worldly goods, the
which ought and shulde ben principaly reweled by thre sciences, that ben
divinitie, fisyk, and lawe, the soule by divinitie, the body by fisyk,
worldly goods by lawe, and those conynges should be used and practised
principally by the most connyng men in the same sciences, and most
approved in cases necessaries to encrese of virtue, long life, and gouds
of fortune, to the worship of God and comyn profit.
But worthi soveraines hit is known to your hey discretion, meny
uncunning and unaproved in the aforesaide science practiseth, and
specialy in fysyk, so that in this realme is every man be he never so
lewed taking upon him practice y suffered to use it to grete harm and
slaughtre of many men, where if no man practiced therein but al only
connynge men and approved sufficiently y learned in art, filosofye, and
fysyk, as it is kept in other londes and roialmes ther shuld many man
that dyeth for defaute of helpe lyve, and no man perish by unconning.
Wherefore pleseth to your excellents wysdomes that ought after your
soule have no entendance to youre body for the causes abovesaid, to
ordaine and make in statute perpetually to be straitly y used and kept.
That no man of no manner, estate, degre, or condition, practice in fysyk
fro this time forward, bot he have long time y used the scoles of fysyk,
having letters testimonialx sufficianty of on of those degrees in the
universite in which he took his degree in, under payne of long
imprisonement and paying XL lb to the king, and that no woman use the
practice of fysyk under the same payne, and that the sherreffs of every
shire make inquisition in their tournes if there be any that forfaiteth
agens this statuit under a payne reasonable, and thenne that they put
this statute in execution without any favoure under the same payne; also
lest that they the which ben able to practise in fisyk ben excluded fro
practise, the which be not graduated. Pleseth to your hey prudency to
send writtes to all the sherriffs of England, that every practysour in
fisyk not graduated in the same science, that wole practise forth be
wythin on of the universities of this lond by a certain day, that thay
that ben able mowe aftre true and strayt examination be received to
their degree, and that they that be not able to cese fro the practise
into the time they ben able and approved, or for to never more entermete
thereof, and that herto also be y set a peyne convenient.
_Dorso._
Responsio hujus petitionis patet in rotulo parliamento dat. 2. dic
maij anno regni regis Henr. 5ti. post conquestum nono.
Rot. Parl. 9. H. 5. p. 1. N^o. 11.
Lordinance encontre les entremettours de fysyk et de Surgerie.
-------
Item pur ouster meschieves et perils qe longement ont continuez dedains
le roialme entre les gentz par my ceux quont usez larts et le practik de
fisik et surgerye pretendantz foi’ bien et sufficeaument apris de mesmes
les arts on de verite non pas estes a grand deceite a le people. Si est
ordeinez et assentuz en ceste parlement qe les seigneurs du counseil du
roy pur le temps esteantz aient poair per anctoritie de mesme le
parlement de faire et mettre tielle ordinaunce et punissement envers
ceux persones qe desore evanant vorrant entremetter et user le practik
des dits arts et ne sont my hables ne approves en ycelles come app’ent
as mesmes les arts cesstasavoir ceux de fisyk en les universities et les
surgeons entre les mestres de cell arte et ceo come semblera as ditz
seigneurs les plus convenables et necessarie en le cas selonc lour bon
advis et discretions pur le surete de le people.
-------
STATUTE.
3. _Hen._ 8. _c._ 11.
An Act for the appointing Physicians and Surgeons.
‘To the King our Sovereign Lord, and to all the Lords Spiritual and
Temporal and Commons in this present Parliament assembled. Forasmuch as
the Science & Cunning of Physick & Surgery (to the perfect knowlege
whereof be requisite both great Learning and ripe Experience) is daily
within this Realm excercised by a great multitude of ignorant Persons,
of whom the great part have no manner of Insight in the same, nor in any
other Kind of Learning; some also can no Letters on the Book, so far
forth, that common Artificers, as Smiths, Weavers, and Women boldly and
accustomably take upon them great Cures, and Things of great Difficulty,
in the which they partly use Sorcery and Witchcraft, partly apply such
Medicines unto the Disease as be very noious, and nothing meet
therefore, to the high Displeasure of God, great Infamy to the Faculty,
and the grievous Hurt, Damage, and Destruction of many of the King’s
liege People, most especially of them that cannot discern the uncunning
from the cunning:’ Be it therefore (to the Security and Comfort of all
manner People) by the Authority of this present Parliament enacted, That
no Person within the City of _London_, nor within Seven Miles of the
same, take upon him to exercise and occupy as a Physician or Surgeon,
except he be first examined, approved, and admitted by the Bishop of
_London_, or by the Dean of _Paul’s_, for the time being, calling to him
or them Four Doctors of Physick, and for Surgery other expert Persons in
that Faculty, and for the first Examination such as they shall think
convenient, and afterward alway Four of them that have been so
appointed, upon the Pain of Forfeiture for every Month that they do
occupy as Physicians or Surgeons, not admitted nor examined after the
Tenour of this Act, of _v. li._ to be imployed the one Half thereof to
the Use of our Sovereign Lord the King, and the other Half to any Person
that will sue for it by Action of Debt, in which no Wager of Law nor
Protection shall be allowed.
II. And over this, That no Person out of the said City, and Precinct of
Seven Miles of the same, except he have been (as is aforesaid) approved
in the same, take upon him to exercise and occupy as a Physician or
Surgeon, in any Diocese within this Realm, but if he be first examined
and approved by the Bishop of the same Diocese, or, he being out of the
Diocese, by his Vicar General; either of them calling to them such
expert Persons in the said Faculties, as their discretion shall think
convenient, and giving their Letters Testimonials under their Seal to
him that they shall so approve, upon like pain to them that occupy the
contrary to this Act (as is above said) to be levied and imployed after
the Form before expressed.
III. Provided alway, That this Act, nor any thing therein contained, be
prejudicial to the Universities of _Oxford_ or _Cambridge_, or either of
them, or to any Privileges granted to them. _Memorand._ That ‘Surgeons
be comprised in this Act like as Physicians, for like mischief of
ignorant Persons presuming to exercise Surgery.’
STATUTE.
5. _Hen._ 8. _c._ 6.
An Act concerning Surgeons to be discharged of Quests and other things.
‘Sheweth unto your discreet Wisdoms, your Humble Orators the Wardens and
Fellowship of the Craft and Mystery of Surgeons enfranchised in the City
of _London_, not passing in number Twelve Persons, that whereas they and
their Predecessors, from the time that no mind is to the contrary, as
well in this noble City of _London_, as in all other Cities and Boroughs
within this Realm or elsewhere, for the continual Service and Attendance
that they daily and nightly, at all Hours and Times, give to the King’s
liege People, for the Relief of the same, according to their Science,
have been exempt and discharged from all Offices and Business wherein
they should use or bear any manner of Armour or Weapon, and with like
Privilege have been intreated as Heralds of Arms, as well in Battles and
Fields, as other places, therefore to stand unharnessed and unweaponed,
according to the Law of Arms, because they be Persons that never used
Feats of War nor ought to use, but only the Business and Exercise of
their Science, to the Help and Comfort of the King’s liege People in the
time of their Need: And in the aforesaid City of _London_, from the time
of their first Incorporation, when they have been many more in number
than they now be, were never called nor charged to be on Quest, Watch,
nor other Office, whereby they should use or occupy any Armour or
defenceable Geer of War, where through they should be unready, and
letted to practice the Cure of Men being in Peril;’ Therefore for that
there be so small Number of the said Fellowship of the Craft and Mystery
of Surgeons, in regard of the great Multitude of Patients that be, and
daily chance, and infortune happeneth and increaseth in the foresaid
City of _London_, and that many of the King’s liege People suddenly
wounded and hurt, for Default of Help in Time to them to be shewed,
perish, and so divers have done, as evidently is known, by occasion that
your said Suppliants have been compelled to attend upon such
Constableship, Watches and Juries, as is aforesaid; be it enacted and
established by the King our Sovereign Lord, and the Lords Spiritual and
Temporal, and by the Commons, in the present Parliament assembled, and
by Authority of the same, That from henceforth your said Suppliants be
discharged, and not chargeable of Constableship, Watch, and of all
manner of Office bearing any Armour, and also of all Inquests and Juries
within the City of _London_: And also that this Act in all things do
extend to all Barber Surgeons admitted and approved to exercise the said
Mystery of Surgeons, according to the Form of the Statute lately made in
that Behalf, so that they exceed not, nor be at one time above the
number of Twelve Persons.
STATUTE.
14 _and_ 15 _Hen._ 8. _c._ 5.
The Privileges and Authority of Physicians in _London_.
‘In the most humble wise shew unto your Highness, your true and faithful
Subjects and liege Men _John Chambre_, _Thomas Linacre_, _Ferdinandus de
Victoria_, your Physicians, and _Nicholas Halsewell_, _John Frances_,
and _Robert Yaxley_, and all other men of the same Faculty within the
City of _London_, and Seven Miles about, that where your Highness (by
your most gracious Letters Patent bearing date at _Westminster_, the
xxiii Day of _September_, in the tenth year of your noble Reign) for the
Commonwealth of this your Realm, in due exercising and practising of the
Faculty of Physick, and the good Ministration of Medicines to be had,
hath incorporate and made of us, and of our Company aforesaid one Body
and Perpetual Commonalty or Fellowship of the Faculty of Physick, and to
have perpetual Succession and common Seal, and to choose yearly a
President of the same Fellowship and Commonalty, to oversee, rule and
govern the said Fellowship and Commonalty, and all men of the same
Faculty, with divers other Liberties and Privileges by your Highness to
be granted for the Common Wealth of this your Realm, as in your said
most gracious Letters Patents more at large is specified and contained,
the Tenour whereof followeth in these Words:—
[_The Charter of Incorporation_].
“Henricus Dei Gratia Rex Angliæ & Franciæ & Dominus Hiberniæ, omnibus ad
quos præsentes literæ pervenerint salutem. Cum regii officii nostri
munus arbitremur ditionis nostræ hominum fælicitati omni ratione
consulere; id autem vel imprimis fore, si improborum conatibus
tempestive occuramus, apprime necessarium duximus improborum quoque
hominum, qui medicinam magis aviritiæ suæ causa, quam ullius bonæ
conscientiæ fiducia, profitebuntur, unde rudi & credulæ plebi plurima
incommoda oriantur, audaciam compescere: Itaque partim bene institutarum
civitatum in Italia, & aliis multis nationibus, exemplum imitati, partim
gravium virorum doctorum Joannis Chambre, Thomæ Linacre, Ferdinandi de
Victoria, Medicorum nostrorum, Nicholai Halsewel, Joannis Francisci &
Rob Yaxley, medicorum, ac præcipuc reverendissmi in Christo patris, ac
domini, dom Thomæ tituli Sanctæ Ceciliæ trans Tiberim sacrosanctæ Romanæ
ecclesiæ presbyteri cardinalis, Eboracencis archiepiscopi & regni nostri
Angliæ cancellarii clarissimi, precibus inclinati, collegium perpetuum
doctorum & gravium virorum, qui medicinam in urbe nostra Londino &
suburbis, intraque septem millia passuum ab ea urbe quaqua versus
publice exerceant, institui volumus atque imperamus. Quibus tum sui
honoris, tum publicæ utilitatis nomine, curæ (ut speramus) erit,
malitiosorum quorum meminimus inscientiam temeritatemque, tam suo
exemplo gravitateque, suis deterrere, quam per leges nostras nuper
editas, ac per constitutiones per idem collegium condendas, punire. Quæ
quo facilius rite peragi possint, memoratis doctoribus Joan Chambre,
Thomæ Linacre, Ferdinando de Victoria, medicis nostris, Nicholao
Halsewel, Joanni Francisco, et Rob Yaxley, medicis, concessimus, quod
ipsi, omnesque homines ejusdem facultatis de & in civitate prædicta,
sint in re & nomine unum corpus et communitas perpetua sive collogium
perpetuum; & quod eadam communitas sive collegium singulis annis in
perpetuum eligere possint & facere, de communitate illa aliquem providum
virum, & in facultate medicinæ expertum, in præsidentem ejudem collegii
sive communitatis, ad supervidend’ recognoscend’ & gabernand’ pro illo
anno collegium sive communitatem præd’ & omnes homines ejusdem
facultatis & negotia eorundem. Et quod idem præsidens & collegium sive
communitas habeant successionem perpetuam & commune sigillum negotiis
dict’ communitatis & præsidentis in perpetuum serviturum. Et quod ipsi &
successores sui in perpetuum sint personæ habiles & capaces ad
perquirendum & possidendum in feodo & perpetuitate terras & tenementa,
reditus, & alias possessiones quascunque.”
“Concessimus etiam eis & successoribus suis pro nobis & hæredibus
nostris, quod ipsi et successores sui possint perquirere sibi &
successoribus suis, tam in dicta urbe quam extra, terras et tenementa
quæcunque annuum valorem duodecim librarum non excedent’, Statuto de
Alienatione ad manum mortuum non obstante. Et quod ipsi per nomina
præsidentis & collegii seu communitatis facultatis medicinæ Lond’
placitari & implaciteri possint coram quibuscunque judicibus in curiis
et actionibus quibuscunque. Et quod præd’ præsidens et collegium sive
communitas, et corum successores, congregationes licitas & honestas de
seipsis, ac stat’ & ordinationes pro salubri qubernatione, supervisu et
correctione collegii seu communitatis præd’ & omnium hominum eandem
facultatem in dicta civitate, seu per septem milliaria in circuitu
ejusdem civitatis exercend’ secundum necessitatis exigentiam, quoties et
quanda opus fuerit, facere valeant licite et impune, sine impedimento
nostri, hæredum, vel successorum nostrorum, justitiariorum, escaetorum,
vicecomitum, & alior’ balivor’ vel ministror’ nostror’ hœred’ vel
successor’ nostror’ quorumcunque. Concessimus etiam eisdem præsidenti &
collegio, seu communitati, et successoribus suis, quod nemo in dicta
civitate aut per septem miliaria in circuitu ejusdem, exerceat dictam
facultatem nisi ad hoc per dict’ præsidentem & communitatem, seu
successores eorum, qui pro tempore fuerint, admissus sit per ejusdem
præsidentis & collegii literas sigillo suo communi sigillatas, sub pœna
centum solidorum pro quolibet mense, quo non admissus eandem facultatem
exercuit, dimidium inde nobis & hœred’ nostris, & dimidium dicto
præsidenti & coll applicandum.”
“Præterea volumus & concedimus pro nobis et successoribus nostris
(quantum in nobis) est quod per præsidentem & collegium præd’
communitatis pro tempore existen’ & eorum successores in perpetum,
quatuor singulis annis eligantur, qui habeant supervisum & scrutinium,
correctionem & qubernat’ omnium & singulor’ dictæ civitatis medicorum
utentium facultate medicinæ in eadem civitate, ac aliorum medicorum
forinsecorum quorumcunque facultatem illam medicinæ aliquo modo
frequentantium & utentium infra eandem civitatem & suburbia ejusdem,
sive intra septem miliaria in circuitu ejurd’ civitatis, ac punitionem
eorund’ pro delictis suis in non bene exequendo faciendo, & utendo illa;
nec non supervisum & scrutinium omnimodarum medicinarum & earum
reception’ per dictos medicos, seu aliquem eorum, hujusmodi ligeis
nostris pro eorum infirmitatibus curandis & sanandis, dandis,
imponendis, & utendis, quoties et quando opus fuerit pro commodo &
utilitate eorundem ligeorum nostrorum; ita quod punitio hujusmodi
medicorum utentium dicta facultate medicinæ, sic in præmissis
delinquent’ per fines, amerciamenta, & imprisonamenta corpor’ suor’ &
per alias vias rationab’ & congruas exequatur.
“Volumus etiam & concedimus pro nobis, hæredibus et successoribus
nostris (quantum in nobis est,) quod nec præsidens, nec aliquis de
collegio præd’ medicorum, nec successores sui, nec eorum aliquis
exercens facultatem illam; quoquo modo in futur’ infra civitatem nostram
præd’ et suburbia ejusdem, seu alibi, summoneantur aut ponantur neque
eorum aliquis summoneatur aut ponatur in aliquibus assisis, juratis,
inquestis, inquisitionibus, attinctis, & aliis recognitionibus infra
dictam civitatam & suburbia ejusdem, imposterum coram majore ac vicecom’
seu coronatoribus dictæ civitatis nostræ pro tempore existend’ capiendis
aut per aliquem officiarium seu ministrum suum, vel officiarios sive
ministros suos summonned’, licet eædem juratæ, inquisitiones, seu
recognitiones summon’ fuerint super brevi vel brevibus nostris, vel
hœredum nostroum, de recto; sed quod dicti magistrati, sive
qubernatores, ac communitas facultatis antidictæ & successores sui, &
eorum quilibet dictam facultatem exercentes versus nos, hæredes, et
successores nostros, ac versus majorem et vicecomites civitatis nostræ
præd’ pro tempore existen’ & quoscunque officiarios et ministros suos
sint inde quieti, & penitus exonorati in perpetuum per præsentes.”
“Proviso quod litteræ nostræ, seu aliquid in eis content’ non cedent in
præjudicium civitatis nostræ Lond’ seu libert’ ejusd’ & hoc absque fine
seu feodo pro præmissis, seu sigillat’ præsentium nobis facienda,
solvenda, vel aliqualiter reddenda, aliquo statuto, ordinatione, vel
actu in contrarium ante hoc tempora facto, edito, ordinato, seu proviso
in aliquo non obstante. In cujus rei testimonium has litteras nostras
fieri fecimus patentes. Teste meipso apud Westmonasterium xxiij. die
Sept’ an’ reg’ nostri x.”
Per ipsum Regem
“Et de data præd’ authoritate Parl. TUNSTALL.
-------
‘And forasmuch that the making of the said Corporation is meritorious,
and very good for the Common Wealth of this your Realm, it is therefore
expedient and necessary to provide, That no Person of the said Politick
Body and Commonalty aforesaid, be suffered to exercise and practice
Physick, but only those Persons that be profound, sad, and discreet,
groundly learned, and deeply studied in Physick.
‘In consideration whereof, and for the further authorising of the same
Letters Patents, and also enlarging of further Articles for the said
Common Wealth to be had and made:’ Pleaseth it your Highness, with the
assent of your Lords Spiritual and Temporal, and the Commons, in this
present Parliament assembled, to enact, ordain, and establish, That the
said Corporation of the said Commonalty and Fellowship of the Faculty of
Physick aforesaid, and all and every Grant, Article, and other Thing,
contained and specified in the said Letters Patents, be approved,
granted, ratified, and confirmed in the present Parliament, and clearly
authorized and admitted by the same, good, lawful, and available to your
said Body Corporate, and their Successors for ever, in as ample and
large manner as may be taken, thought, and construed by the same; and
that it please your Highness, with the assent of your said Lords
Spiritual and Temporal and the Commons in this your present Parliament
assembled, further to enact, ordain, and establish, That the Six Persons
beforesaid in your said most gracious Letters Patents named as
Principals, and first named of the said Commonalty and Fellowship,
choosing to them Two more of the said Commonalty, from henceforward to
be called and cleaped _Elects_; and that the same Elects yearly choose
One of them to be President of the said Commonalty, and as oft as any of
the Rooms and Places of the same Elects shall fortune to be void, by
Death or otherwise, then the Survivors of the said Elects (within Thirty
or Forty Days next after the Death of them or any of them) shall choose,
name and admit One or mo, as need shall require, of the most cunning and
expert Men, of and in the said Faculty in _London_, to supply the said
Room and Number of Eight Persons; so that he or they that shall be so
chosen, be first by the said Survivors strictly examined after a Form
devised by the said Elects, and also by the same Survivors approved.
And where that in Dioceses in _England_, out of _London_, it is not
light to find alway Men able sufficiently to examine (after the Statute)
such as shall be admitted to exercise Physick in them, that it may be
enacted in this present Parliament, That no Person from henceforth be
suffered to exercise or practice in Physick through _England_, until
such time as he be examined at _London_, by the said President, and
three of the said Elects; and to have from the said President or Elects,
Letters Testimonials of their approving and Examination, except he be a
Graduate of _Oxford_ or _Cambridge_, which hath accomplished all things
for his Form, without any Grace.
-------
32. _Hen._ 8. _c._ 40.
For Physicians and their Privilege.
‘In most humble wise sheweth unto your Majesty, your true and faithful
Subjects and liege Men, the President of the Corporation of the
Commonalty and Fellowship of the Science and Faculty of Physick in your
City of _London_, and the Commons and the Fellows of the same, that
whereas divers of them many times having in Cure, as well some of the
Lords of your most honourable Council, and divers Times many of the
Nobility of this Realm, as many other of your faithful and liege People,
cannot give their due Attendance to them, and other their Patients, with
such Diligence as their Duty were, and is to do by reason they be many
Times compelled, as well within the City of _London_ and Suburbs of the
same, as in other Towns and Villages, to keep Watch and Ward, and be
chosen to the Office of Constable, and other Offices within the said
City and Suburbs of the same, as in other Places within this your Realm,
to their great Fatigation and Unquieting, and to the Peril of their
Patients, by reason they cannot be conveniently attended:’ It may
therefore please your most excellent Majesty, with the Assent of your
Lords Spiritual and Temporal, and the Commons, in this present
Parliament assembled, and by Authority of the same, to enact, ordain,
and establish, That the President of the said Commonalty and Fellowship
for the Time being, and the Commons and Fellows of the same, and every
Fellow thereof, that now be, or at any time hereafter shall be, their
Successors, and the Successors of every of them, at all time and times
after the making of this present Act, shall be discharged to keep Watch
or Ward in your said City of _London_, or the Suburbs of the same, or
any Part thereof; and that they or any of them shall not be chosen
Constable, or any other Officer in the said City or Suburbs; and that if
at any time hereafter said President for the time being, or any of the
said Commons or Fellows for the time being, by any Ways or Means be
appointed or elected to any Watch or Ward Office of Constable, or any
other Office, within the said City or Suburbs, the same Appointment or
Election to be utterly void and of none Effect; any Order, Custom, or
Law to the contrary before this Time used in the said City
notwithstanding.
II. And that it may please your most Royal Majesty, by the Authority
aforesaid, That it may be further enacted, ordained and established, for
the common Wealth and Surety of your loving Subjects of this your Realm,
in and for the Administration of Medicines to such of your said Subjects
as shall have Need of the same, That from henceforth the said President
for the Time being, Commons and Fellows, and their Successors may yearly
at such time as they shall think most meet and convenient for the same,
elect and choose four Persons of the said Commons and Fellows, of the
best learned, wisest and most discreet, such as they shall think
convenient, and have Experience of the said Faculty of Physick, and that
the said four Persons so elected and chosen, after a corporal Oath to
them ministered by the said President or his Deputy, shall and may, by
virtue of this present Act, have full Authority and Power, as often as
they shall think meet and convenient, to enter into the House or Houses
of all and every Apothecary, now or at any time hereafter using the
Mystery or Craft of Apothecary within the said City, only to search,
view and see such Apothecary Wares, Drugs and Stuffs, as the said
Apothecaries or any of them have, or at any time hereafter shall have,
in their House or Houses; and all such Wares, Drugs and Stuffs, as the
said four Persons shall then find defective, corrupted, and not meet nor
convenient to be ministered in any medicines for the Health of Man’s
Body, the same four Persons calling to them the Warden of the said
Mystery of Apothecaries within the said City for that time being, or one
of them, shall cause to be brent or otherwise destroy the same, as they
shall think meet by their discretion; and if the said Apothecaries or
any of them at any time hereafter do obstinately or willingly refuse or
deny the said four Persons yearly elected and chosen, as is before said,
to enter into their said House or Houses for the Causes, Intent and
Purpose before rehearsed; that then they and every of them so offending
contrary to this Act, for every time that he or they do so offend, to
forfeit C. _s._ the one Half to your Majesty and the other Half to him
that will sue for the same by Action of Debt, Bill, Plaint or
Information, in any of the King’s Courts, wherein no Wager of Law,
Essoin or Protection shall be allowed; and if the said four Persons or
any of them so elected and chosen as before is said, do refuse to be
sworn, or after his said Oath to him or them administered, do
obstinately refuse to make the said Search and View once in the Year, or
at such time as they shall think most convenient by their Discretions,
having no lawful impediment by Sickness or otherwise, to the contrary;
that then for every such wilful and obstinate Default, every of the said
four Persons making Default to forfeit forty Shillings.
III. And forasmuch as the Science of Physic doth comprehend, include and
contain the knowledge of Surgery, as a special Member and Part of the
same, therefore be it enacted, That any of the said Company or
Fellowship of Physicians, being able chosen and admitted by the said
President and Fellowship of Physicians, may from time to time, as well
within the City of _London_, as elsewhere within the Realm, practice and
exercise the said Science of Physic in all and every his Members and
Parts, any Act, Statute, or Provision made to the contrary
notwithstanding.
STATUTE.
32. _Hen._ 8. _c._ 42.
For Barbers and Surgeons.
‘The King our Sovereign Lord, by the advice of the Lords Spiritual and
Temporal and the Commons, in this present Parliament assembled, and by
the Authority of the same, by all their common Assents, duly pondering
among other Things necessary for the Common Wealth of this Realm, that
it is very expedient and needful to provide for Men expert in the
Science of Physick and Surgery, for the Health of Man’s Body, when
Infirmities and Sickness shall happen, for the due Exercise and
Maintenance whereof good and necessary Acts be already made and
provided; yet nevertheless, forasmuch as within the City of _London_,
where Men of great Experience, as well in Speculation as in Practice of
the Science and Faculty of Surgery, be abiding and inhabiting, and have
more commonly the daily Exercise and Experience of the same Science of
Surgery, than is had or used within other Parts of this Realm; and by
occasion thereof many expert Persons be brought up under them as their
Servants, Apprentices and others, who by the Exercise and diligent
Information of their said Masters, as well now as hereafter, shall
exercise the said Science within divers other parts of this Realm, to
the great Relief, Comfort and Succour of much People, and to the sure
Safeguard of their bodily Health, their Limbs and Lives; and forasmuch
as within the said City of _London_, there be now two several and
distinct Companies of Surgeons, occupying and exercising the said
Science and Faculty of Surgery, the one Company being called _The
Barbers of London_, and the other Company called _The Surgeons of
London_, which Company of Barbers be incorporated to sue and be sued by
the Name of Masters or Governors of the Mystery or Commonalty of the
Barbers of _London_, by Virtue and Authority of the Letters Patents
under the Great Seal of the late King of famous Memory, King _Edward_
the Fourth, dated at Westminster the four and twentieth of _February_,
in the first year of his Reign, which afterward, as well by our now most
dread Sovereign Lord, as by the right noble and virtuous Prince King
_Henry_ the Seventh, Father unto the King’s most excellent Highness now
being, were and be confirmed, as by sundry Letters Patents thereof made,
amongst other things in the same contained, more at large may appear;
and the other Company called the Surgeons, be not incorporate, nor have
any manner of Corporation; which two several and distinct Companies of
Surgeons were necessary to be united, and made one Body incorporate, to
the intent that by their Union and often assembly together, the good and
due Order, Exercise, and Knowlege of the said Science or Faculty of
Surgery should be as well in Speculation as in Practice, both to
themselves, and all other their said Servants and Apprentices, now and
hereafter to be brought up under them, and by their Learnings and
diligent and ripe Informations, more perfect, speedy and effectual
Remedy should be, than it hath been, or should be if the said two
Companies of Barbers and Surgeons should continue severed asunder, and
not joined together, as they before this time have been, and used
themselves not medling together;’ wherefore in consideration of the
Premisses, be it enacted by the King our Sovereign Lord, and by the
Lords Spiritual and Temporal, and by the Commons in this present
Parliament assembled, and by the Authority of the same, That the said
two several and distinct Companies of Surgeons, that is to say, both the
Barbers and the Surgeons and every Person of them, being a Freeman of
either of the said Companies after the Custom of the said City of
_London_, and their Successors from henceforth, immediately be united
and made one entire and whole body corporate and one Commonalty
perpetual, which at all times hereafter shall be called by the name of
_Masters or Governors of the Mystery and Commonalty of Barbers and
Surgeons of London_, for evermore, and by none other name; and by the
same name to implead and be impleaded before all manner of Justices, in
all courts, in all manner of Actions and Suits, and also to purchase,
enjoy, and to take to them and to their Successors, all manner of Lands,
Tenements, Rents, and other Possessions, whatsoever they be; and also
shall have a Common Seal, to serve the business of the said Company and
Corporation for ever, and by the same name peaceably, quietly, and
indefeasably shall have, possess and enjoy to them and to their
Successors for ever all such Lands and Tenements, and other
Hereditaments whatsoever, which the said Company or Commonalty of
Barbers have and enjoy to the Use of the said Mystery and Commonalty of
Barbers of _London_; and also shall peaceably and quietly have and enjoy
all and singular Benefices, Grants, Liberties, Privileges, Franchises
and free Customs, and also all manner of other Things at any time given
or granted unto the said Companies of Barbers or Surgeons by whatsoever
name or names they or any of them were called, and which they or any of
them now have, or any of their Predecessors have had, by Act of
Parliament, Letters Patents, of the King’s Highness, or other his most
noble Progenitors, or otherwise by any lawful means have had at any time
afore this present Act, in as large and ample Manner and Form as they or
any of them have, had, might or should enjoy the same, this Union or
Conjunction of the said Companies together notwithstanding; and as
largely to have and enjoy the Premisses, as if the same were and had
been specially and particularly expressed and declared with the best and
most clearest Words and Terms in the Law, to all Intents and Purposes,
and that all persons of the said Company now incorporate by this present
Act, and their Successors, shall be lawfully admitted and approved to
occupy Surgery, after the form of the Statute in that case ordained and
provided shall be exempt from bearing of Armor, or to be put in any
Watches or Inquests; and that they and their Successors shall have the
Search, Oversight, Punishment, and Correction, as well of Freemen as of
Foreigners for such Offences as they or any of them shall commit or do
against the good Order of Barbery or Surgery, as afore this Time among
the said Mystery and Company of Barbers of _London_ hath been used and
accustomed, according to the good and politick Rules and Ordinances by
them made, and approved by the Lord Chancellor, Treasurer and two chief
Justices of either Bench, or any three of them after the Form of the
Statute in that case ordained and provided.
II. And further be it enacted by the Authority aforesaid, That the said
Masters or Governors of the Mystery and Commonalty of Barbers and
Surgeons of _London_ and their Successors yearly for ever, after their
said Discretions, at their free Liberty and Pleasure, shall and may have
and take without Contradiction four persons condemned, adjudged, and put
to death for Felony by the due Order of the King’s Laws of this Realm
for Anatomies, without any further Suit or Labour to be made to the
King’s Highness, his Heirs or Successors of the same; and to make
Incision of the same dead bodies, or otherwise to order the same after
their said Discretions at their Pleasures for their further and better
Knowledge, Instruction, Insight, Learning and Experience in the said
Science or Faculty of Surgery; saving unto all Persons their Heirs and
Successors all such Right, Title, Interest and demand which they or any
of them might lawfully claim or have in or to any of the Lands and
Tenements with the Appurtenances belonging unto the said Company of
Barbers and Surgeons, or any of them, at any time afore the making of
this Act, in as ample Manner and Form as they or any of them had or
ought to have had heretofore; any Thing in this present Act comprised to
the contrary hereof in any wise notwithstanding.
III. And forasmuch as such Persons using the Mystery or Faculty of
Surgery, oftentimes meddle and take unto their Cures and houses such
sick and diseased Persons as been infected with the Pestilence Great
Pox, and such other contagious Infirmities do use or exercise Barbery,
as washing, or shaving or other Feats thereunto belonging which is very
perilous for infecting the King’s liege People resorting to their Shops
and houses there being washed or shaven: Wherefore it is now inacted,
ordained and provided by the Authority aforesaid, That no manner of
Person within the City of _London_, Suburbs of the same and one Mile
Compass of the said City of _London_, after the feast of the Nativity of
our Lord God next coming, using Barbery or Shaving or that hereafter
shall use any Barbery or Shaving within the said City of _London_,
Suburbs or one mile Circuit of the same City of _London_, he nor they
nor none other for them, to his or their Use, shall occupy any Surgery,
letting of blood, or any other thing belonging to Surgery; drawing of
teeth only except. And furthermore in like manner whosoever that useth
the Mystery or Craft of Surgery within the Circuit aforesaid as long as
he shall fortune to use the said Mystery or Craft of Surgery, shall in
no wise occupy nor exercise the Feat or Craft of Barbery or Shaving,
neither by himself, nor by none other for him, to his use or their use:
And moreover, that all manner of Persons using Surgery for the time
being, as well Freemen as Foreigners, Aliens and Strangers within the
said City of _London_, the Suburbs thereof, and one Mile compass of the
said City of London, before the Feast of _St. Michael_, the Archangel
next coming, shall have an open Sign on the Street side where they shall
fortune to dwell, that all the King’s liege People there passing by may
know at all times, whither to resort for Remedies in Time of necessity.
IV. And further be it enacted by the Authority aforesaid, That no manner
of Person after the said Feast of St. _Michael_ the Archangel next
coming, presume to keep any Shop of Barbery or Shaving within the City
of _London_, except he be a Freeman of the same Corporation and Company.
V. And furthermore at such Times heretofore accustomed, there shall be
chosen by the same Company four Masters or Governors of the same
Corporation or Company, of the which four, two of them shall be expert
in Surgery, and the other two in Barbery; which four Masters, and every
of them, shall have full Power and Authority from Time to Time, during
their said Office, to have the Oversight, Search, Punishment and
Correction of all such Defaults and Inconveniences as shall be found
among the said Company using Barbery or Surgery, as well of Freemen as
Foreigners, Aliens or Strangers, within the City of _London_ and the
Circuits aforesaid, after their said Discretions; And if any Person or
Persons using any Barbery or Surgery at any Time hereafter offend in any
of these Articles aforesaid, that then for every Month the said Persons
so offending shall lose, forfeit and pay _v. li._ the one Moiety thereof
to the King our Sovereign Lord, and the other Moiety to any Person that
will or shall sue therefore by Action of Debt, Bill, Plaint or
Information in any of the King’s Courts, where no Wager of Law, Essoin
or Protection shall be admitted or allowed in the same.
VI. Provided that the said Barbers and Surgeons, and every of them,
shall bear and pay Lot and Scot, and such other Charges as they and
their Predecessors have been accustomed to pay within the said City of
_London_; this Act nor any thing therein contained to the contrary
hereof in any wise notwithstanding.
VII. Provided alway, and be it enacted by Authority aforesaid, That it
shall be lawful to any of the King’s Subjects, not being Barber or
Surgeon, to retain have and keep in his House as his Servant any Person
being a Barber or Surgeon, which shall and may use and exercise those
Arts and Faculties of Barbery or Surgery, or either of them in his
Master’s House, or elsewhere by his Master’s Licence or Commandment; any
Thing in this Act above written to the contrary notwithstanding.
34. 35. _Hen._ 8. _c._ 8.
A Bill that Persons being no common Surgeons, may minister Medicines,
notwithstanding the Statute.
‘Where in the Parliament holden at _Westminster_, in the third year of
the King’s most gracious reign, amongst other things, for the avoiding
Sorceries, Witchcraft, and other inconveniencies; it was enacted, That
no Person within the City of _London_, nor within seven miles of the
same, should take upon him to exercise and occupy as Physician or
Surgeon, except he be first examined, approved and admitted by the
Bishop of London, and others, under and upon certain Pains and
Penalties, in the same Act mentioned: since the making of which Act, the
Company and Fellowship of Surgeons of _London_, minding only their own
lucres, and nothing the profit or ease of the Diseased or Patient, have
sued, troubled, and vexed divers honest Persons, as well Men as Women,
whom God hath endued with the knowledge of the nature, kind and
operation of certain herbs, roots and waters, and the using and
ministering of them to such as been pained with customable Diseases, as
Women’s Breasts being Sore, a Pin and the Web in the eye, Uncomes of
Hands, Burnings, Scaldings, Sore Mouths, the Stone, Stranguary,
Saucelim, and Morphew, and such other like Diseases; and yet the said
Persons have not taken any thing for their Pains or Cunning, but have
ministered the same to poor People only, for Neighbourhood and God’s
sake, and of Pity and Charity; and it is well known, that the Surgeons
admitted will do no cure to any Person, but where they shall know to be
rewarded with a greater sum or reward than the cure extendeth unto; for
in case they would minister their cunning unto sore People unrewarded,
there should not so many rot, and perish to Death for lack or help of
Surgery, as daily do; but the greatest part of Surgeons admitted been
much more to be blamed, than those Persons that they trouble.’
‘For although the most part of the Persons of the said Craft of
Surgeons, have small cunning, yet they will take great Sums of Money,
and do little therefore; and by reason thereof, they do oftentimes
impair and hurt their Patients, rather than do them good.’ In
consideration whereof, and for the Ease, Comfort, Succour, Help, Relief,
and Health of the King’s poor Subjects, Inhabitants of this Realm, now
pained or diseased, or that hereafter shall be pained or diseased.
Be it ordained, established, and enacted, by the Authority of this
present Parliament, that at all time from henceforth, it shall be lawful
to every Person being the King’s Subject, having knowledge and
experience of the nature of Herbs, Roots, and Waters, or of the
operation of the same, by Speculation or Practice, within any part of
the Realm of _England_, or within any other of the King’s Dominions, to
practise, use, and minister in and to any outward Sore, Uncome, Wound,
Apostemations, outward Swellings or Disease, any Herb or Herbs,
Ointments, Baths, Pultess, and Emplasters, according to their Cunning,
Experience and Knowledge, in any of the Diseases, Sores, and Maladies
beforesaid, and all other like to the same, or Drinks for the Stone,
Stranguary or Agues, without Suit, Vexation, Trouble, Penalty, or loss
of their Goods; the foresaid Statute in the foresaid third Year of the
King’s Most Gracious Reign, or any other Act, Ordinance, or Statute to
the contrary heretofore made in anywise notwithstanding.
1. _Mary_, _c._ 9.
An Act touching the Corporation of Physicians in _London_.
‘Whereas in the Parliament holden at _London_, the fifteenth Day of
_April_, in the fourteenth year of the Reign of our late Sovereign Lord,
King Henry the Eighth, and from thence adjourned to _Westminster_, the
last day of _July_, in the fifteenth year of the Reign of the same king,
and there holden, it was enacted, That a certain Grant of Letters
Patents of Incorporation, made and granted by our said late king to the
Physicians of _London_, and all Clauses and Articles contained in the
same Grant, should be approved, granted, ratified and confirmed by the
same Parliament.’
For the consideration thereof, be it enacted, by the Authority of this
present Parliament, That the said Statute or Act of Parliament, with
every Article and Clause therein contained, shall from henceforth stand
and continue in full Strength, Force and Effect; any Act, Statute, Law,
Custom, or any other thing made had or used to the contrary in any wise
notwithstanding.
III. And for the better Reformation of divers Enormities happening to
the Commonwealth, by the evil using and undue Administration of Physick,
and for the enlarging of further Articles for the better Execution of
the things contained in the said Grant enacted;
IV. Be it therefore now enacted, That whensoever the President of the
College, or Communalty of the Faculty of Physick of _London_, for the
time being, or such as the said President and College shall yearly,
according to the Tenor and Meaning of the said Act, authorise to search,
examine, correct and punish all Offenders and Transgressors in the said
Faculty, within the same City and Precinct in the said Act expressed,
shall send or commit any such Offender or Offenders for his or their
Offences or Disobedience, contrary to any Article or Clause contained in
the said Grant or Act, to any Ward, Gaol or Prison, within the same City
and Precinct (the Tower of _London_, except) That then from time to
time, the Warden, Gaoler or Keeper, Wardens, Gaolers, or Keepers of the
Wards, Gaols and Prisons within the City or Precinct aforesaid, (except
before excepted) shall receive into his or their Prisons all and every
such Person and Persons so offending, as shall be so sent or committed,
to him or them, as is aforesaid; and there shall safely keep the person
or persons so committed, in any of their Prisons, at the proper Costs
and Charges of the said Person or Persons so committed, without Bail or
Mainprise, until such time as such Offender or Offenders or Disobedient
be discharged of the said Imprisonment by the said President, and such
Persons as by the said College shall be thereto authorised; upon Pain
that all and every such Warden, Gaoler and Keeper, doing the contrary,
shall lose and forfeit double of such Fine and Amerciament as such
Offender and Offenders or Disobedients, shall be assessed to pay, by
such as the said President and College shall authorise as aforesaid, so
that the same Fine and Amerciament be not at any one time above the sum
of xx li. the Moiety thereof to be employed to the use of our Sovereign
Lady the Queen, her Heirs and Successors, the other Moiety unto the said
President and College: all which forfeitures to be recovered by Action
of Debt, Bill, Plaint, or Information, in any of the Queen’s, her Heirs
and Successor’s Courts of Record, against any such Warden, Gaoler or
Keeper so offending; in which Suit no Essoin, Wager of Law, nor
Protection shall be allowed nor admitted for the Defendant.
V. And further, be it enacted by the Authority aforesaid, for the better
Execution of the Search and view of Poticary Wares, Drugs and
Compositions, according to the Tenor of a Statute made in the xxxii Year
of the Reign of the said late King _Henry_ the Eighth, That it shall be
lawful for the Wardens of the Grocers, or one of them, to go with the
said Physicians in their View and Search, that if the said Warden or
Wardens do refuse his or their coming thereunto, forthwith and
immediately, when the said President or four of his College elect, as
aforesaid, do call upon him or them, that then the said Physicians may
and shall execute that Search and View, and the due Punishment of the
Poticaries for any their evil and faulty Stuff, according to the Statute
last before mentioned, without the Assistance of any of the said
Wardens; any Clause in the aforenamed Statute to the contrary hereof
notwithstanding. And every such Person or Persons as will or shall
resist such Search, shall forfeit for every such resistance Ten Pound;
the same Penalty to be recovered in Form aforesaid, without any of the
delays aforesaid, to be had in suit thereof.
VI. And further, be it enacted, That all Justices, Mayors, Sheriffs,
Bailiffs, Constables, and other Ministers and Officers, within the City
and Precincts above written, upon Request to them made, shall help and
assist the President of the said College, and all Persons by them from
time to time authorised for the due Execution of the said Acts or
Statutes, upon Pain for not giving of such Aid, Help, and Assistance, to
run in Contempt of the Queen’s Majesty, her Heirs and Successors.
6th & 7th _Will._ 3. _c._ 4.
An Act for exempting Apothecaries from serving the Offices of Constable,
Scavenger, and other Parish and Ward Offices, and from serving upon
Juries.
‘Whereas the Act of the Apothecary is of great and general Use and
Benefit, by reason of their constant and necessary Assistance of his
Majesty’s Subjects, which should oblige them solely to attend the Duty
of their Professions; yet by reason that they are compelled to serve
several Parish, Ward, and Leet Offices, in the Places where they live,
and are frequently summoned to serve on Juries and Inquests, which take
up great Part of their Time, they cannot perform the Trusts reposed in
them as they ought, nor attend the Sick with such Diligence as is
required: And whereas, King _JAMES_ the First, by His Letters Patents
under the Great Seal of _England_, did incorporate the Apothecaries
exercising that Art within _London_, and seven Miles Compass, by the
Name of _The Master, Wardens, and Society of the Art and Mystery of the
Apothecaries of the City of London_:’
II. Be it therefore enacted, by the King’s most Excellent Majesty, by
and with the Advice and Consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the Authority of
the same, That all and every Person and Persons, using and exercising,
or that hereafter shall use and exercise, the Art of an Apothecary
within the said City of _London_, and seven Miles thereof, being Free of
the said Society, and who already have been, or hereafter shall be duly
examined of his Skill in the said Mystery, and shall be approved of for
the same, and every of them, for so long as he or they shall use and
exercise the said Art, and no longer, shall and may at all Times
hereafter be freed and exempted from the several Offices of Constable,
Scavenger, Overseer of the Poor, and all other Parish, Ward, and Leet
Offices, and of and from the being put into or serving upon Juries or
Inquests; and if at any Time hereafter any such Person or Persons using
the said Art, and being qualified as aforesaid, shall be chosen or
elected into any of the said Offices, or returned, required, or
appointed to serve in any Jury, Leet, or Inquest, or be disquieted or
disturbed by reason thereof, that then such Person or Persons, producing
a Testimonial under the common Seal of the said Corporation, of such his
Examination, Approbation, and Freedom, to the Person or Persons by whom
he shall be so elected or appointed, or by or before whom he shall be so
summoned, returned, or required to serve or hold any of the said Offices
or Duties, shall be absolutely discharged from the same, and such
Nomination, Election, Return, and Appointment, shall be utterly void,
and of none Effect; any Order, Custom, Law, or Statute, to the contrary
in any wise notwithstanding.
III. And be it further enacted by the Authority aforesaid, That all
Persons using and exercising, or that hereafter shall use and exercise
the said Art of an Apothecary, within any other Parts of this Kingdom,
Dominion of _Wales_, or Town of _Berwick_ upon _Tweed_, and who have
been brought up and served, or hereafter shall be brought up and serve
in the said Art as an Apprentice, by the Space of seven years, according
to the Statute of the fifth of Queen _ELIZABETH_, shall likewise from
henceforth be freed and exempted from all and singular the Offices and
Duties aforesaid, within the several Counties, Cities, and Places, where
they live and inhabit, for so long as he or they shall use and exercise
the said Art, and no longer; and if any Person or Persons so qualified
shall be elected or chosen into any of the said Offices, or returned to
serve in any Jury, Leet, or Inquest, such Nomination, Election, Return,
and Appointment, shall be void, unless such Person or Persons shall
voluntarily consent and agree to hold such Office, or serve upon such
Jury, Leet, or Inquest. Provided always, That nothing herein contained
shall be construed to exempt or excuse any Apothecary that is or shall,
before the commencement of this Act, be elected or appointed to Serve
any of the said Offices, from serving in the said Offices for the usual
Time, for which he was so elected and appointed. Provided always, That
this Act shall continue for the Space of seven Years, and from thence to
the End of the next Session of Parliament, and no longer.
_Continued by_ 1 Ann. st. 1. c. 11.
_Made perpetual by_ 9 Geo. 1. c. 8. § 1.
10. _Geo._ 1. _c._ 20.
An Act for the better viewing, searching and examining of all Drugs,
Medicines, Waters, Oils, Compositions, used or to be used for Medicines
in all places where the same shall be exposed to sale or kept for that
Purpose, within the City of _London_ and Suburbs thereof, or within
seven Miles Circuit of the said City.
[_This Act has expired._]
-------
18. _Geo._ 2. _c._ 15.
An Act for making the Surgeons of _London_ and the Barbers of _London_
two separate and distinct Corporations.
‘Whereas in and by certain Letters Patent, under the Great Seal of
_England_, bearing Date the twenty-fourth Day of _February_ in the first
Year of the Reign of his then Majesty King Edward the Fourth, after
reciting, That the Freemen of the Mystery of Barbers of the City of
_London_, using the Mystery or Faculty of Surgery, had for a long Time,
exercised and sustained, and still continued to exercise and sustain
great Application and Labour, as well about the curing and healing
Wounds, Blows and other Infirmities, as in the letting of Blood, and
drawing of Teeth; and that by the Ignorance and Unskilfulness of some of
the said Barbers, as well Freemen of the said City as of others, being
foreign Surgeons, many misfortunes had happened to divers People, by the
Unskilfulness of such Barbers and Surgeons, in healing and curing
Wounds, Blows, Hurts and other Infirmities; and that it was to be
feared, that the like or worse Evils might thereafter ensue, unless a
suitable Remedy was speedily provided in the Premisses; his said then
Majesty did therefore, at the Supplication of the Freemen of the said
Mystery of Barbers, in the said City of _London_, grant to them, amongst
other Things, that the said Mystery, and all the Men of the said Mystery
of the said City, should be one Body, and one perpetual Community; and
that two Principals of the same Commonalty, of the most expert Men in
the Mystery of Surgery, might with the Assent of twelve, or eight
Persons at the least, of the same Community, every Year elect and make
out of the Community two Masters or Governors, being the most expert in
the Mystery of Surgery, to oversee, rule and govern the Mystery and
Commonalty aforesaid, and all Men of the same Mystery and the Affairs of
the same; and that the aforesaid Masters or Governors, and Commonalty,
and their Successors, might make Statutes and Ordinances for the
Government of the said Mysteries; and that the Masters or Governors for
the Time being, and their Successors, should have the Survey, Search,
Correction and Government of all the Freemen of the said City, being
Surgeons, using the Mystery of Barbers in the same City, and of other
Surgeons whatsoever, being Foreigners, practising and using the Mystery
of Surgery, within the same City and Suburbs of the same, and the
Punishment of them, as well Freemen as Foreigners, for their Offences in
not perfectly executing, performing and using that Mystery; and should
also have the Survey and Search of all Manner of Instruments, Plaisters
and other Medicines, and the Receipts to be given, applied and used by
the said Barbers and Surgeons, for the curing and healing of Sores,
Wounds, Hurts and such like Infirmities; and that no Barber using the
said Mystery of Surgery, within the said City, or Suburbs thereof, or
other foreign Surgeon whatsoever, should be in any Manner thereafter
admitted to execute, perform and exercise the same Mystery of Surgery,
unless he had first been approved of, as well instructed in that
Mystery, by the said Masters or Governors, or their Successors,
sufficiently qualified in that Behalf; and his said Majesty did further
grant, that the said Masters or Governors of the Commonalty of the said
Mystery of Barbers, and their Successors, nor any of them, should in any
Manner thereafter be summoned or put upon any Assizes, Juries, Inquests,
Inquisitions, Attaints or other Recognizances, to be taken within the
said City and Suburbs thereof, before the Mayor or Sheriffs, or Coroners
of the same City for the Time being, or summoned by any of his Officer
or Officers, Minister or Ministers, although such Juries, Inquisitions,
or Recognizances, should be summoned upon a Writ or Writs of Right; but
that the said Masters or Governors, and Commonalty of the aforesaid
Mystery, and their Successors, and every of them, should be thereof
acquitted, and wholly discharged for ever; and his said then Majesty
thereby further granted unto the aforesaid Masters or Governors, and
Commonalty of the said Mystery of Barbers, and to their Successors the
following Liberty; to wit, That they at all Times thereafter should and
might admit Persons able and sufficiently learned and instructed in the
said Mystery of Surgery, and by them approved of in Form, and presented
to the Mayor of the said City for the Time being, and no other Persons,
or in any other Manner, into the said Mystery of Barber Surgeons, and
Liberty of the said City: And whereas by an Act of Parliament made and
passed in the thirty-second Year of the Reign of the late King Henry the
Eighth, intituled, _For Barbers and Surgeons_, after taking Notice that
it was very expedient and needful to provide for Men expert in the
Science of Physick and Surgery for the Health of Man’s Body, when
Infirmities and Sickness should happen; for the due Exercise and
Maintenance whereof, good and necessary Acts had theretofore been made
and provided, and that within the City of _London_, Men of great
Experience, as well in Speculation as in Practice of the Science and
Faculty of Surgery, were abiding and inhabiting, and had more commonly
the daily Exercise and Experience of the same Science of Surgery than
was had and used within any Parts of the Realm; and by Occasion thereof,
many expert Persons were brought up under them as their Servants,
Apprentices and others, who by the Exercise and diligent Information of
their Masters, might exercise the said Science within divers other Parts
of the Realm; to the great Relief, Comfort and Succour of much People,
and to the Safeguard of their bodily Health, Limbs and Lives; and
reciting, That within the said City of _London_ there were then two
several and distinct Companies of Surgeons occupying and exercising the
Science and Faculty of Surgery, the one Company being commonly called
_The Barbers of_ London, and the other Company called _The Surgeons of_
London; and that the said Company of Barbers were incorporated to sue
and be sued by the Name of _Masters or Governors of the Mystery or
Commonalty of the Barbers of_ London, by Letters Patent under the Great
Seal of King Edward the Fourth, dated the twenty-fourth Day of
_February_ in the first Year of his Reign, and which were confirmed by
several subsequent Letters Patents in the said Act mentioned and
referred to; and that the other Company, called _The Surgeons_, had not
any Manner of Corporation; and that the said two several and distinct
Companies of Surgeons were necessary to be united and made one Body
Corporate, to the Intent that by their Union and often Assembly
together, the good and due Order, Exercise and Knowledge in the said
Science or Faculty of Surgery, should be, as well in Speculation as in
Practice, both to themselves and their Servants and Apprentices, and by
their Learning and diligent and ripe Informations, more perfect, speedy
and effectual; it was therefore enacted, That the said two several and
distinct Companies of Surgeons, that is to say, both the Barbers and the
Surgeons, and every Person of them, being a Freeman of either of the
said Companies, after the Custom of the said City of _London_, and their
Successors, should from thenceforth be immediately united and made one
entire and whole Body Corporate, and one Commonalty perpetual, which at
all Times thereafter should be called by the Name of _Masters or
Governors of the Mystery or Commonalty of Barbers and Surgeons of_
London, and by the same Name to implead and be impleaded before all
Manner of Justices in all Courts, in all Manner of Actions and Suits;
and also to purchase, enjoy, and take to them and their Successors,
Lands, Tenements, Rents and other Possessions whatsoever: And it was
also thereby enacted, That they should have a Common Seal to serve for
the Business of the said Company and Corporation; and that they should
by the same Name, peaceably, quietly and indefeazibly, have, possess,
and enjoy, to them and their Successors for ever, all such Lands and
Tenements, and other Hereditaments whatsoever, which the said Company or
Commonalty of Barbers then had and enjoyed, to the Use of the said
Mystery and Commonalty of Barbers of _London_; and should also peaceably
and quietly have and enjoy all and singular Benefits, Grants, Liberties,
Privileges, Franchises and Free Customs, and also all Manner of other
Things at any Time given or granted unto the said Companies of Barbers
or Surgeons, by whatsoever Name or Names they or any of them were
called, or which they or any of them, or any of their Predecessors, then
or theretofore had by Acts of Parliament, Letters Patents or otherwise,
by any lawful Means at any Time before the said Act, in as large and
ample Manner and Form, as they or any of them, had, might or should
enjoy the same, notwithstanding the said Union or Conjunction of the
said Companies, and as if the same were and had been specially and
particularly expressed and declared, with the best and most clearest
Words and Terms of Law, to all Intents and Purposes: And it was thereby
also enacted, That all Persons of the said Company incorporated by the
said Act, and their Successors, that should be lawfully admitted and
approved to occupy Surgery after the Form of the Statute in that case
made and provided, should be exempt from bearing of Armour, or to be put
in any Watches or Inquests; and that they and their Successors, should
have the Search, Oversight, Punishment and Correction, as well of
Freemen as of Foreign, for such Offences as they or any of them, should
commit against the good Order of Barbery and Surgery, as theretofore
among the said Company of Barbers of _London_ had been used and
accustomed, according to the Rules and Ordinances by them made and
approved of, pursuant to the Statute in that Behalf ordained and
provided: And it was thereby further enacted, That no Person within the
City of _London_, Suburbs of the same, and one Mile Compass of the said
City, using any Barbery or Shaving, should occupy any Surgery, letting
of Blood, or any other Thing belonging to Surgery, except Drawing of
Teeth only: and that whosoever should use the Mystery or Craft of
Surgery within the Circuit aforesaid, should, as long as he should use
the said Mystery or Craft, in no wise occupy or exercise the Feat or
Craft of Barbery or Shaving: And whereas in and by certain Letters
Patents under the Great Seal of _England_, bearing Date the fifteenth
Day of _August_ in the fifth Year of the Reign of his late Majesty King
Charles the First, reciting the said Act of Parliament of the
thirty-second Year of the Reign of King Henry the Eighth; and that the
Men of the same Societies, as well from the Time of their said Union and
Incorporation as before, respectively had, held, used and enjoyed divers
Liberties, Franchises, Immunities, Customs and Preheminences, within the
City of _London_, the Suburbs and Liberties thereof, and certain
Villages, and Places thereto adjacent, as well on account of the said
Act of Parliament, and other Acts of Parliament, as by virtue and on
account of divers Charters and Letters Patents made and granted by the
late King James the First, and other Kings and Queens of _England_, his
said Majesty King Charles the First did thereby grant, ratify and
confirm unto the said Masters and Governors of the Mystery and
Commonalty aforesaid, and their Successors, all and singular the Manors,
Messuages, Lands, Tenements, Customs, Liberties, Franchises, Immunities,
Jurisdictions and Hereditaments whatsoever, as well within the City of
_London_, the Liberties and Suburbs thereof, as within the Liberties and
Precincts therein after mentioned, which the Men of the aforesaid
Societies of Barbers and Surgeons, or either of them, then lawfully had,
held, used and enjoyed, by reason of any Letters Patents of any the
former Kings and Queens of _England_, or by Colour of any lawful
Prescription, Use, or Custom, or by any other lawful Means, Rights or
Title theretofore had, used or accustomed: And his said late Majesty
King Charles the First did thereby give Power to the said Company and
Corporation to make Bye-laws for the good Order and Government of the
said Society, in such Manner, and under such Restrictions, as is therein
mentioned; and to make annual Elections of Masters or Governors of the
said Commonalty, whereof two to be Professors in the Art and Science of
Surgery; and also to elect and constitute ten of the Freemen of that
Society to be Examiners of the Surgeons of _London_, during their Lives:
And it was thereby further granted, That no Person or Persons
whatsoever, whether a Freeman of the said Society, or a Foreigner, or a
Native of _England_, or an Alien, should use or exercise the said Art or
Science of Surgery within the said Cities of _London_ and _Westminster_,
or either of them, or within the Distance of seven Miles of the said
City of _London_, for his or their private Lucre or Profit, (except such
Physicians as are therein mentioned) unless the said Person or Persons
were first tried and examined in the Presence of two or more of the
Masters or Governors of the Mystery and Commonalty aforesaid for the
Time being, by four or more of the said Examiners so to be elected and
constituted as aforesaid, and by the publick Letters Testimonial of the
same Masters or Governors under their Common Seal approved of, and
admitted to exercise the said Art Or Science of Surgery, according to
the Laws and Statutes of the Kingdom of _England_, under the Penalty in
the said Letters Patents mentioned; and that all and every of the said
Freemen and Surgeons so examined, approved of, and admitted as
aforesaid, might lawfully use and exercise the same Art and Science of
Surgery, as well within the Cities of _London_ and _Westminster_, the
Liberties and Suburbs thereof, as in any other Cities, Towns, Boroughs
and Places whatsoever of the Kingdom of _England_: And it was thereby
further granted and provided, That the said Masters and Governors of the
Mystery and Commonalty aforesaid, and their Successors, might appoint
and have a publick Lecture for the Art and Science of Surgery in their
common Hall, or other convenient Place, every Week or otherwise, at the
Discretion of the said Masters or Governors and their Assistants, or the
major Part of them for the Time being, to be held for the better
Instruction and Information in the Principles and Rudiments of the Art
and Science of Chirurgery of all and singular as well Freemen as
Foreigners, whether native Subjects of _England_ or Aliens, to be
entered and admitted as is therein mentioned: And it was thereby also
constituted and ordained, That no one, whether a Freeman of the Mystery
or Commonalty aforesaid, or a Foreigner, whether a Native of _England_,
or an Alien, exercising the Art of Surgery within the Cities of _London_
and _Westminster_, or the Suburbs or Liberties thereof, or within seven
Miles of the said City of _London_, should go out from the Port of
_London_, or send out any Apprentice, Servant or other Person
whomsoever, from the same Port, to execute or undertake the Place or
Office of a Surgeon for any Ship, whether in the Service of the Crown,
or of any Merchant or others, unless they and their Medicines,
Instruments and Chests respectively, were first examined, inspected and
allowed by two such Masters or Governors of the Mystery and Commonalty
aforesaid for the Time being, as were skilled, knowing and Professors in
the same Art of Surgery, under the Penalty therein mentioned: And
whereas, since the said Act for Incorporation of the said two Companies,
those of the said Company practising Surgery, have from their sole and
constant Study of and Application to the said Science, rendered the
Profession and Practice thereof of great Benefit to this Kingdom: And
whereas the Barbers belonging to the said Corporation are now, and for
many Years have been engaged and employed in a Business foreign to, and
independent of the Practice of Surgery; and the Surgeons belonging to
the same Corporation being now become a numerous and considerable Body,
and finding their Union with the Barbers inconvenient in many Respects,
and in no Degree conducive to the Progress or Improvement of the Art of
Surgery; and that a Separation of the Corporation of Barbers and
Surgeons, and making two Corporations of the present united Company of
Barbers and Surgeons, will contribute much to the Improvement of
Surgery, and thereby become a Matter of publick Utility, are therefore
desirous that the Surgeons being Freemen of the said Company, may be
made a Corporation separate and distinct from and Independent of the
Barbers of and belonging to the said Company;’ May it therefore please
your most Excellent Majesty that it may be enacted; and be it enacted by
the King’s most Excellent Majesty, by and with the Advice and Consent of
the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the Authority of the same, That the said
Union and Incorporation of the Barbers and Surgeons of _London_, made
and effected by the said recital Act of the thirty-second Year of King
Henry the Eighth, shall from and after the twenty-fourth Day of _June_
one thousand seven hundred and forty-five, be, and the same is hereby
dissolved, vacated and declared to be void and of no Effect, and that
such of the Members of the said united Company or Corporation, who are
Freemen of the said Company, and admitted and approved Surgeons within
the Rules of the said Company and Corporation, and their Successors,
shall from thenceforth be made, and they are hereby made and constituted
a separate and distinct Body Corporate, and Commonalty perpetual, which,
at all Times thereafter, shall be called by the Name of _Masters,
Governors and Commonalty of the Art and Science of Surgeons of_ London;
and by the same Name, shall and may implead and be impleaded before all
Manner of Justices in all Courts and in all Manner of Actions and Suits,
and purchase, enjoy and take to them, and their Successors, any Lands,
Tenements, Rents or Hereditaments, not exceeding the yearly Rent or
Value of two hundred Pounds in the whole, without incurring any of the
Penalties or Forfeitures of the Statutes of Mortmain.
II. And it is hereby further enacted by the Authority aforesaid, That it
shall and may be lawful to and for the said Company or Corporation
herein before established and incorporated, from time to time, in the
Manner herein after mentioned, to elect, choose, and appoint one
principal Master or Governor, two other Governors or Wardens, ten
Examiners of Surgeons, and twenty-one Persons to be the Court of
Assistants of the said Company or Corporation, to be respectively
qualified and admitted in such Manner, and to continue in the said
Offices respectively, for such Time and Times respectively, as by the
By-laws, Rules, Ordinances, and Constitutions of the said Company or
Corporation, shall be, from time to time, ordered, directed, provided
and appointed.
III. And it is hereby further enacted, That it shall and may be lawful
to and for the Master and Governors of the said Company or Corporation
for the Time being, or any two of them, with nine or more of the Members
of the said Court of Assistants of the same Company for the Time being,
when and as often as to two of the said Master and Governors shall seem
meet, to hold Courts and Assemblies, in order to treat and consult about
and concerning the Rule, Order, State, and Government of the said
Company or Corporation herein before established and incorporated as
aforesaid; and also that it shall and may be lawful to and for the said
Master and Governors and Court of Assistants so assembled, or the major
Part of them, to make, ordain, constitute, establish, ratify, confirm,
annul, revoke, or abrogate, from time to time, such By-laws, Ordinances,
Rules, and Constitutions, as to them shall seem requisite, profitable,
and convenient for the Regulation, Government, and Advantage of the said
Company or Corporation; so as such By-laws, Ordinances, Rules, and
Constitutions be examined, approved of, and allowed, as by the Laws and
Statutes of this Realm is provided and required.
IV. Provided always, and it is hereby enacted and declared, That the
several By-laws, Ordinances, Rules, and Constitutions, made and
established for the Regulation and Government of the said United Company
or Corporation, so far as the same relate to, or concern the Art and
Science of Surgery only, and which, on the twenty-third day of _June_
one thousand seven hundred and forty-five, shall be subsisting, and in
Force, and shall not be repealed, annulled, or abrogated by virtue of
this present Act, shall continue and be in Force; and shall be
exercised, observed, and executed by the said Company of Surgeons
established and incorporated by this Act, until such Time and Times
respectively as the same By-laws, Ordinances, Rules, and Constitutions
shall respectively be repealed, annulled, and made void, by virtue and
under the Authority of this present Act.
V. Provided also, and it is hereby further enacted and declared, That
_John Ranby_ Esquire, Principal Serjeant Surgeon to his Majesty, shall
be, and he is hereby constituted and appointed Principal Master or
Governor; and that Master _Joseph Sandford_ and _William Cheselden_
Esquire, two of the present Wardens of the said United Company shall be,
and they are hereby constituted and appointed, the two other Governors
or Wardens of the Company of Surgeons made, established, and
incorporated by this Act; and that they shall continue in, and hold,
enjoy and exercise the said Offices respectively from the said
twenty-fourth Day of _June_, until others shall be elected and appointed
to the said Offices respectively, as herein after is mentioned: And also
that _Ambrose Dickins_ Esquire, Principal Serjeant Surgeon to his
Majesty, _William Petty_ Esquire, _John Shipton_ Esquire, the said
_William Cheselden_, _John Freke_, _William Pyle_, _Legard Sparham_,
_James Hickes_, and _Peter Sainthill_, who are the present Examiners of
Surgeons, together with the said _John Ranby_, shall be, and they are
hereby constituted and appointed Examiners of Surgeons for the said
Company of Surgeons made, established, and incorporated by this Act; and
that they shall respectively continue in, and hold, enjoy, and exercise
the said Office of Examiners for and during their natural Lives
respectively, or until they shall be respectively removed out of the
said Office, pursuant, and according to the By-laws, Rules, and
Constitutions of the said Company of Surgeons, established and
incorporated by this Act; And also that the said _John Ranby_, _Joseph
Sandford_, _William Cheselden_, _Ambrose Dickins_, _William Petty_, and
_John Shipton_, _John Hayward_, the said _John Freke_, _William Pyle_,
_Legard Sparham_, _James Hickes_, and _Peter Sainthill_, _Noah Roul_,
_John Westbrook_, _William Singleton_, and _James Phillips_, and such
five other Persons as shall hereafter be elected and appointed for that
Purpose, in pursuance of this Act, and as is herein after mentioned,
shall be, and they are hereby constituted and appointed the Court of
Assistants of the Company of Surgeons made, established and incorporated
by this Act; and that they shall continue in, and hold, enjoy, and
exercise the said Office during their natural Lives respectively, or
until they shall respectively be removed out of the said Office,
pursuant and according to the By-laws, Rules, and Constitutions of the
same Company.
VI. And it is hereby further enacted, That it shall and may be lawful to
and for the said _John Ranby_, _Joseph Sandford_, _William Cheselden_,
_Ambrose Dickins_, _William Petty_, _John Shipton_, _John Hayward_,
_John Freke_, _William Pyle_, _Legard Sparham_, _James Hickes_, _Peter
Sainthill_, _Noah Roul_, _John Westbrook_, _William Singleton_, and
_James Phillips_, to meet at or in such Place as the said _John Ranby_,
_Joseph Sandford_, and _William Cheselden_, or any two of them, shall
appoint, on the first Day of _July_ one thousand seven hundred and
forty-five, between the Hours of ten and two of the Clock of the same
Day; and then and there to elect, choose, and appoint, out of the
Freemen of the said Company or Corporation of Surgeons established and
incorporated by this Act, by the Majority of Votes of such of the said
sixteen Persons herein before appointed to be of the Court of
Assistants, who shall be present at such Meeting, so many other Persons
to be of the Court of Assistants of the same Company or Corporation, as
will make the Number twenty-one, to continue in the said Office for and
during their natural Lives respectively, or until they shall be
respectively removed out of the said Office.
VII. And it is further enacted, That the Master, Governors, and Court of
Assistants for the Time being, of the said Company of Surgeons made;
established, and incorporated by this Act, shall, upon the first
_Thursday_ in the Month of _July_ in the Year one thousand seven hundred
and forty-six; and on the first _Thursday_ in the Month of _July_ in
every succeeding Year, meet at such Place as the Master and Governors of
the same Company for the Time being, or any two of them shall appoint;
and then and there elect, choose, and appoint, out of their Body, by the
Majority of Votes of such of the said Master, Governors, and Court of
Assistants, who shall be then present, one Person to be Principal Master
or Governor, and two other Persons to be Governors or Wardens of the
said Company or Corporation of Surgeons, established and incorporated by
this Act, for the then succeeding Year; and then and there also, in like
manner, elect, choose, and appoint, out of their own Body, such other
Person or Persons, to be Examiner or Examiners of Surgeons, for the same
Company, in the Place or Stead of such Examiner or Examiners, as shall
have happened to die, or have been removed from the said Office of
Examiner, in the then next preceding Year; and also in like manner,
elect, choose, and appoint, out of the Freemen of the said Company or
Corporation of Surgeons established and incorporated by this Act, such
Person or Persons to be of the Court of Assistants of the same Company
or Corporation, in the Place and Stead of such Person or Persons who
shall have happened to die in, or have been removed from, the said
Office of Court of Assistants, in the then next preceding Year.
VIII. And it is hereby further enacted, That the said Company of
Surgeons made, established, and incorporated by this Act, and their
Successors, and all Persons who shall be Freemen of the same Company or
Corporation, shall and may, from time to time, and at all Times for ever
hereafter, have, hold, and enjoy all and every such and the same
Liberties, Privileges, Franchises, Powers, and Authorities, as the
Members of the said United Company or Corporation, being Freemen of the
said Company, and admitted and approved Surgeons, within the Rules of
the said Company and Corporation, could or might respectively have had,
held, and enjoyed, by virtue of the said recited Act of Union or
Incorporation, and the said Letters Patent of his said late Majesty King
Charles the First respectively, and other the Royal Grants, Charters,
and Patents, therein mentioned and referred to, so far as the same
relate to the Art or Science of Surgery only, and not otherwise; and
that in as full, ample, and beneficial Manner, to all Intents and
Purposes, as if the same had in and by this present Act been expressly
repeated and re-enacted; and that they, and all such who already have
been, or hereafter shall be, examined and approved, pursuant to the
Rules of the said Company, shall be entitled to practice freely, and
without Restraint, the Art and Science of Surgery, throughout all and
every his Majesty’s Dominions; any Law or Custom to the contrary
notwithstanding.
IX. And it is hereby further enacted, That from and after the said first
Day of _July_ one thousand seven hundred and forty-five, the Examiners
of the Company of Surgeons established by this Act shall, and they are
hereby required, from time to time, upon Request to them made, to
examine every Person who shall be a Candidate to be appointed to serve
as a Surgeon, a Surgeon’s Mate, of any Regiment, Troop, Company,
Hospital, or Garrison of Soldiers in the Service of his Majesty, his
Heirs, or Successors, in like Manner as they do or shall examine any
Surgeon or Surgeons to be appointed to serve on Board any Ship or Vessel
in the Service of his Majesty, his Heirs or Successors.
X. And it is hereby further enacted by the Authority aforesaid, That all
and every Person and Persons, being Freemen of the said Company and
Corporation of Surgeons established and incorporated by this Act, and
who already have been, or hereafter shall be, examined and approved
pursuant to the Rules and Orders of the said Company, and every of them,
for so long Time as he and they shall use and exercise the said Art or
Science of Surgery, and no longer, shall and may, at all Times
hereafter, be freed and exempted from the several Offices of Constable,
Scavenger, Overseer of the Poor, and all other Parish, Ward, and Leet
Offices, and of and from the being put into or serving upon any Jury or
Inquest: And if at any Time hereafter any such Person or Persons, using
and Practising the said Art or Science of Surgery, and being qualified
as aforesaid, shall be chosen and elected into any of the said Offices,
or returned, required, or appointed to serve on any Jury, Leet, or
Inquest, or be disquieted or disturbed by reason thereof; that then such
Person or Persons, producing a Testimonial, under the Common Seal of the
said Corporation, of such his Examination, Approbation, and Freedom, to
the Person or Persons by whom he shall be so elected or appointed, or by
or before whom he shall be summoned, returned, or required to serve or
hold any of the said Offices or Duties, shall be absolutely discharged
from the same; and such Nomination, Election, Return, and Appointment,
shall be utterly void, and of no Effect; any Order, Custom, Law, or
Statute to the contrary in any wise notwithstanding.
XI. Provided always, and be it hereby enacted by the Authority
aforesaid, That this Act, or any Thing therein contained, shall not
extend, or be construed or taken to prejudice, abridge, or infringe any
of the Privileges, Authorities, Powers, Rights, Liberties, or Franchises
heretofore granted by any Act or Acts of Parliament, or by any Letters
Patents, Charters or Charter of any of his Majesty’s Royal Predecessors,
Kings or Queens of _England_, to the President and College, or
Commonalty of the Faculty of Physick in _London_.
XII. And it is hereby further enacted by the Authority aforesaid, That
such of the Members of the said United Company or Corporation, who are
Freemen of the said Company, and are not admitted or approved Surgeons,
and their Successors, shall, from and after the said twenty-fourth Day
of _June_ one thousand seven hundred and forty-five, be, and they are
hereby made and constituted, a Body Corporate, and Commonalty Perpetual,
which, at all Times hereafter shall be called by the Name of _The
Master, Governors, and Commonalty of the Mystery of Barbers of_ London;
and by the same Name shall plead and be impleaded before all manner of
Justices, in all Courts, and in all manner of Actions and Suits; and
also purchase, enjoy, and take to them, and their Successors, any Lands,
Tenements, Rents, or Hereditaments, not exceeding the yearly Rent or
Value of two hundred Pounds in the whole, without incurring any of the
Penalties or Forfeitures of the Statute of Mortmain.
XIII. And it is hereby further enacted by the Authority aforesaid, That
Master _Jonathan Medley_, the present first Master or Governor of the
said United Company or Corporation, and Master _Humphrey Negus_, the
present third Master or Governor of the said United Company, and such
two other Persons as shall hereafter be elected and appointed for that
purpose in pursuance of this Act, and as is herein after mentioned,
shall be and they are hereby respectively established and confirmed the
Master and Governors of the Company or Corporation of Barbers of
_London_, established and incorporated by this Act; and shall continue
in, and hold, exercise and enjoy the said Offices respectively, until
others shall be chosen, elected and appointed in and to the same Offices
respectively, pursuant and according to the By-laws, Rules, Orders and
Constitutions of the same Company; and also that the said _Jonathan
Medley_, _Humphrey Negus_, and _William Parker_, _Luke Maurice_, _John
Barnwell_, _John Truelove_, _William Haddon_, _John Negus_, _Edward
Boxley_, _Samuel Rutter_, _Robert Scrooby_, _Richard Swithin_, _Edward
Colebeck_, _Togarmah Jones_, and _John Guerney_, being fifteen of the
present Court of Assistants of the said United Company, and such nine
other Persons as shall hereafter be elected and appointed for that
Purpose in pursuance of this Act, and as is herein after mentioned,
shall be and they are hereby constituted and appointed the Court of
Assistants of the Company of Barbers, made, established, and
incorporated by this Act; and shall continue in, and hold, enjoy and
exercise the said Office during their natural Lives respectively, or
until they shall be respectively removed out of the said Office,
pursuant and according to the said By-laws, Rules, Ordinances and
Constitutions of the said Company of Barbers of _London_.
XIV. And it is hereby further enacted, That it shall and may be lawful
to and for the said _Jonathan Medley_, _Humphrey Negus_, _William
Parker_, _Luke Maurice_, _John Barnwell_, _John Truelove_, _William
Haddon_, _John Negus_, _Edward Boxley_, _Samuel Rutter_, _Robert
Scrooby_, _Richard Swithin_, _Edward Colebeck_, _Togarmah Jones_, and
_John Guerney_, or the major Part of them, to meet at or in the Hall now
belonging to the said United Company, situate in _Monkwell-street_ in
the City of _London_, on the twenty-fifth Day of _June_ one thousand
seven hundred and forty-five, between the Hours of Nine in the Morning
and One in the Afternoon of the same Day, and then and there to elect,
choose and appoint out of the Freedom of the said Company or Corporation
of the Barbers of _London_, established and incorporated by this Act, by
the Majority of the Votes of such of the said fifteen Persons last
mentioned, who shall be present at such Meeting, so many other Persons
to be of the said Court of Assistants of the said Company or Corporation
of the Barbers of _London_, as will make the Number twenty-four, to
continue in the said Office respectively for and during their natural
Lives, or until they shall be respectively removed out of the said
Office; and also that immediately after such Court of Assistants shall
be made up the said Number of twenty-four Persons, the said Court of
Assistants shall then and there, by the Majority of Votes of such of the
said Court of Assistants as shall be then present, elect, choose and
appoint from among themselves, two Persons, to be the third and fourth
Governors of the said Company or Corporation of the Barbers of _London_,
to continue in, hold, exercise and enjoy the said Offices respectively
as aforesaid.
XV. And it is hereby further enacted, That it shall and may be lawful
for the Master and Governors for the Time being of the said Company or
Corporation of Barbers, or any two or more of them, with eleven or more
of the Members of the said Court of Assistants for the Time being, when
and as often as to two or more of the said Master and Governors shall
seem meet, to hold Courts or Assemblies at or in the Hall of the said
Company for the Time being, in order to treat and consult about the
Rule, State, Order and Government of the said Company or Corporation of
Barbers; and also that it shall and may be lawful to and for the said
Master and Governors, and Court of Assistants so assembled, or the major
Part of them, to make, constitute, ordain, establish, ratify and confirm
all or any such By-laws, Ordinances, Rules and Constitutions, as to them
shall seem requisite, proper or convenient for the Regulation,
Government, Profit or Advantage of the said Company or Corporation of
the Barbers of _London_, and the Members thereof, and the same, from
time to time, to alter or repeal; so as the By-laws, Ordinances, Rules
and Constitutions so to be made and established, shall be examined,
approved and allowed, as by the Laws and Statutes of this Realm is
provided and required.
XVI. Provided always, and it is hereby enacted and declared, That the
several By-laws, Ordinances, Rules and Constitutions, made and
established for the Regulation and Government of the said United Company
or Corporation, so far as the same do not relate to or concern the Art
or Science of Surgery, and which on the said twenty-third Day of _June_
shall be subsisting and in Force, and shall not be repealed, annulled or
abrogated by virtue of this present Act, shall continue and be in Force,
and shall be exercised, observed and executed by the said Company of
Barbers established and incorporated by this Act, until such Time and
Times respectively as the same By-laws, Ordinances, Rules and
Constitutions shall respectively be repealed, annulled and made void, by
Virtue and under the Authority of this present Act.
XVII. And it is hereby further enacted by the Authority aforesaid, That
the Master and Governors of the said Company or Corporation of Barbers
of _London_ shall be yearly elected and chosen on the second _Thursday_
in _August_, by the Court of Assistants, or the major Part of them, or
in such Manner as by the By-laws, Rules, Orders and Constitutions of the
same Company or Corporation shall be ordained or provided; and that when
and as often as any Member of the said Court of Assistants of the said
Company of Barbers shall happen to die or be removed, it shall and may
be lawful to and for the surviving Members of the said Court of
Assistants, or the major Part of them, to nominate and elect one other
Person, being a Freeman of the same Company, to be a Member of the said
Court of Assistants, in the Room of the Person so deceased or removed;
and the Person so nominated or elected shall continue in, hold and
exercise the said Office for and during his natural Life, or until he
shall be removed out of the same.
XVIII. And it is hereby further enacted by the Authority aforesaid, That
the Master, Governors and Commonalty of the Mystery of Barbers of
_London_, hereby made, established and incorporated as aforesaid, and
their Successors, and all Persons who shall be free of the same Company
or Corporation, shall and may from time to time, and at all Times for
ever hereafter, have, hold and enjoy all and every such and the same
Liberties, Privileges, Franchises, Powers and Authorities, as the said
United Company or Corporation, with respect to every Thing but Surgery,
and the Members of the said United Company, occupying the Feat or Craft
of Barbery or Shaving, could or might respectively have had, held and
enjoyed by virtue of the said recited Act of Union or Incorporation, and
Letters Patents of his late Majesty King Charles the First, and other
the Royal Grants, Charters and Patents therein respectively mentioned
and referred to, so far as the same do not concern or relate to the Art
and Science of Surgery; and that in as full, ample and beneficial
Manner, to all Intents and Purposes, as if the same had been expressly
repeated, set down, and enacted in and by this present Act.
XIX. And it is hereby further enacted by the Authority aforesaid, That
the Sum of five hundred and ten Pounds now vested in the said United
Company, and which was given and paid to the said United Company by
_Edward Arris_, for the Use of the publick Anatomy Lectures on the
Muscles, and also the Annuity or yearly Rent-charge of sixteen Pounds
given to the said United Company by the Will of _John Gale_ Gentleman,
for one Anatomy Lecture, by the name of _Gale’s Anatomy_, and charged
upon certain Messuages and Tenements at _Snow Hill_, in the Parish of
_Saint Sepulchre_, without _Newgate, London_, shall from and after the
said twenty-fourth Day of _June_ one thousand seven hundred and
forty-five, be vested in, and be deemed the sole Property, Estate and
Effects of the said Company and Corporation of Surgeons established and
incorporated by this Act; and that the said Sum of five hundred and ten
Pounds be accordingly paid by the said Company or Corporation of Barbers
of _London_, out of the Estate and Effects of and now belonging to the
said United Company or Corporation, within three Months next after the
said twenty-fourth Day of _June_; and that the said Sum of five hundred
and ten Pounds, and the said Annuity or yearly Rent-charge of sixteen
Pounds _per Annum_, shall be held and enjoyed by the Purposes intended
by the Donors thereof respectively; and that from and after the Payment
of the said five hundred and ten Pounds by the said Company of Barbers
to the said Company of Surgeons, they the said Master, Governors and
Commonalty of the Mystery of Barbers of _London_, and their Successors,
shall for ever be discharged of and from the said Sum or Gift of five
hundred and ten Pounds, and every Part thereof, and of and from the said
Annuity or Gift of sixteen Pounds _per Annum_, and every Part thereof,
and of and from all Duties and Trusts in respect of the said Gifts, or
either of them; and shall, from time to time, be saved harmless and kept
indemnified by the said Company of Surgeons, of, from and against the
same, and all Actions, Suits, Charges and Expenses which they the said
Master, Governors and Commonalty of the Mystery of Barbers of _London_,
or their Successors, shall or may, from time to time, be put unto or
sustain on account thereof; and all the Rest and Residue of the Real and
Personal Estate and Effects of and belonging to the said United Company
or Corporation, and the Arms or Ensigns Armorial of the same Company or
Corporation, shall from and after the said twenty-fourth Day of _June_
one thousand seven hundred and forty-five, be vested in, and the same
are hereby from thenceforth vested in the said Company or Corporation of
Barbers of _London_, and their Successors, to and for their own sole and
separate Use and Benefit for ever.
XX. And it is hereby further enacted by the Authority aforesaid, That
such of the Books, Papers and Writings which now belong to the said
United Company of Barbers and Surgeons, and relate to or concern the
Surgeons or Surgery only, shall immediately after the said first Day of
_July_ one thousand seven hundred and forty-five, be delivered by the
said Company of Barbers, established and incorporated by this Act, to
the Master and Governors, and Court of Assistants, of the said Company
of Surgeons established and incorporated by this Act, or such other
Person or Persons as they, or the major Part of them shall, by Writing
under their Hands appoint to receive the same, for the use and Benefit
of the said Company of Surgeons: And that the Master, Governors, and
Courts of Assistants of the same Company of Surgeons, or any of them, or
such other Person or Persons as they, or the major Part of them shall,
by Writing under their Hands appoint, shall and may, from time to time,
and at all seasonable Times, upon reasonable Notice, from and after the
first Day of _July_ one thousand seven hundred and forty-five have free
Access to, and Liberty to inspect and peruse, in the Hands of such
Person or Persons as the said Company of Barbers shall appoint to have
the Care and Custody thereof, all the rest of the Books, Papers and
Writings, and also all the Charters and Deeds which now belong to the
said United Company of Barbers and Surgeons; and from time to time to
take such Copies or Extracts of or from the same, or any of them, as the
said Master, Governors, and Court of Assistants of the said Company of
Surgeons, or the major Part of them, or such other Person or Persons so
to be appointed as aforesaid, shall from time to time desire or require;
and also that the said Company of Barbers shall, from time to time, and
at all Times, upon reasonable Notice, from and after the said first Day
of _July_, produce the said last mentioned Books, Papers, Writings,
Charters and Deeds, or any of them, at the Expense of the said Company
of Surgeons, upon any Trial at Law, or Hearing in Equity, or Examination
of Witnesses, or otherwise, where the said Company of Surgeons shall
have Occasion to make use thereof, or of any of them, and permit the
said Company of Surgeons to make use of the same accordingly.
XXI. Provided always, and it is hereby further enacted by the Authority
aforesaid, That every Person who hath been bound Apprentice to any
Member of the said United Company, and by the Laws or Custom of the City
of _London_, or otherwise, is or would be intitled to his Freedom of the
said United Company, and to the Freedom of the said City, in case this
present Act had never been made, shall be intitled and admitted to his
Freedom in the said Company or Corporation of Surgeons, if his Master is
or was an examined Surgeon, or else to his Freedom in the said Company
of Barbers; and in either Case shall be intitled and admitted to his
Freedom in the said City of _London_; any Law, Usage or Custom to the
contrary thereof in any wise notwithstanding.
XXII. And be it further enacted by the Authority aforesaid, That this
Act shall be deemed, adjudged and taken to be a Publick Act; and be
judicially taken Notice of as such by all Judges, Justices, and other
Persons whatsoever, without specially pleading the same.
-------
55. _Geo._ 3. _c._ 194.
An Act, for better regulating the Practice of Apothecaries throughout
_England_ and _Wales_.
Whereas His Majesty King _James_ the First, by Letters Patent, under the
Great Seal of _Great Britain_, bearing date the Sixth Day of _December_,
in the Fifteenth Year of His Reign, did for himself, his Heirs and
Successors, grant unto _William Beese_, and divers other Persons therein
named, and to all and singular other Persons whomsoever, brought up and
skilful ¡n the Art, Mystery, or Faculty of Apothecaries, and exercising
the same Art, Mystery, or Faculty then, being Freemen of the Mystery of
Grocers of the City of _London_, or being Freemen of any other Art,
Mystery, or Faculty in the said City of _London_ (so as they had been
brought up and were expert in the Art or Mystery of Apothecaries), that
they, and all such Men of the said Art or Mystery of Apothecaries of and
in the said City of _London_ and Suburbs of the same, and within Seven
Miles of the said City, might and should be one Body Corporate and
Politic, in Substance, Deed, and Name, by the Name of the Master,
Wardens, and Society of the Art and Mystery of Apothecaries of the City
of _London_; and did ordain and declare, that by the same name they
might have perpetual Succession, and have, purchase, possess, enjoy, and
retain Manors, Messuages, Lands, Tenements, Liberties, Privileges,
Franchises, Jurisdictions, and Hereditaments to them and their
Successors, in fee simple and perpetuity, or for term of year or years,
or otherwise, howsoever. And also Goods and Chattels, and all other
things soever, of what name, nature, kind, quality, or sort soever they
should be. And also, that they might grant, demise, alien, assign, and
dispose of Manors, Lands, Tenements, and Hereditaments, and do and
execute all and singular other Acts and things by the said name. And
that by the said name of Master, Wardens, and Society of the Art and
Mystery of Apothecaries of the City of _London_, they should and might
be able to plead and be impleaded, and might have for ever a common
Seal; and the same Seal at their pleasure from time to time might break,
change, alter, and new make, as to them should seem best. And his said
Majesty did, by his said Letters Patent, ordain and grant unto the said
Master, Wardens, and Society of the Art and Mystery of Apothecaries
aforesaid, certain Ordinances, Rules and Regulations, to be observed,
kept, and maintained by them, as in the said Charter are more fully
expressed.
_And whereas_ some of the Clauses and Provisions contained in the said
recited Charter, so far as the same regard the said Society of
Apothecaries, have been found inadequate for the purposes thereby
intended, and it is therefore expedient that the same should be altered,
varied, and enlarged, and further and other Provisions made;
May it therefore please Your MAJESTY,
That it may be enacted; _And be it Enacted_ by the KING’S Most Excellent
MAJESTY, by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons in this present Parliament assembled, and by the
Authority of the same, that the said recited Charter of the Fifteenth
Year of the Reign of His Majesty King _James_ the First, and all and
every the Powers, Provisions, Penalties, Forfeitures, Regulations,
Clauses, matters and things therein contained (save and except such part
or parts thereof as are hereby altered, varied, or repealed), shall be,
and the same is and are hereby declared to be in full force and virtue,
and shall be as good, valid, and effectual, to all intents and purposes
whatsoever, as if this Act had not been made.
_And be it further Enacted_, That so much of the said recited Charter as
directs, That the said Master and Wardens, and their Successors, or some
or one of them, or some Assistants by the Master and Wardens to be
appointed and assigned, at fit and convenient times, and in manner and
form convenient and lawful, from time to time, as often as to the said
Master and Wardens shall seem expedient, shall and may go and enter into
any Shop or Shops, House or Houses, Cellar or Cellars, of any Persons
whomsoever, using or exercising the Art or Mystery of Apothecaries, or
any Part thereof, within the City of _London_, the Liberties or Suburbs
thereof, or within Seven Miles of the same City, as well within the
Liberty as without, where any Medicines, simple or compound, Wares,
Drugs, Receipts, Distilled Waters, Chemical Oils, Syrups, Conserves,
Lohocks, Electuaries, Pills, Powders, Lozenges, Oils, Ointments,
Plaisters, or any other things whatsoever, which belong or appertain to
the Art or Mystery of Apothecaries as is aforesaid, are likely to be
found; and to search, survey, and prove if the same Medicines, simple or
compound, Wares, Drugs, Receipts, Distilled Waters, Chemical Oils,
Syrups, Conserves, Lohocks, Electuaries, Pills, Powders, Lozenges, Oils,
Ointments, Plaisters, or any thing or things whatsoever belonging to the
Art or Mystery of Apothecaries aforesaid, be and shall be wholesome,
medicinable, meet and fit for the cure, health, and ease of His
Majesty’s Subjects;
_And also_ so much of the said recited Charter as directs, That the
aforesaid Master and Wardens of the Mystery aforesaid, and the said
Assistants for the time being, thereunto nominated and appointed by the
Master and Wardens, and their Successors from time to time, may have,
and by virtue of these Presents, shall have full power and authority to
examine and try all and singular Persons professing, using, or
exercising, or which hereafter shall profess, use, or exercise the Art
or Mystery of Apothecaries, or any part thereof, within the aforesaid
City of _London_, the Liberties or Suburbs thereof, or within Seven
Miles of the same City, as well within Liberties as without, touching or
concerning their and every of their knowledge, skill, and science, in
the aforesaid Art or Mystery of Apothecaries, and to remove and prohibit
all those from the exercise, use, or practice of the said Art or
Mystery, whom hereafter they shall find either unskilful, ignorant, or
insufficient, or obstinate, or refusing to be examined by virtue of
these Presents, in the Art or Mystery aforesaid. And also all and
singular Medicines, Wares, Drugs, Receipts, Distilled Waters, Oils,
Chemical Preparations, Syrups, Conserves, Lohocks, Electuaries, Pills,
Powders, Lozenges, Oils, Ointments, and Plaisters, and all other things
belonging to the aforesaid Art, which they shall find unlawful,
deceitful, stale, out of use, unwholesome, corrupt, unmedicinable,
pernicious, or hurtful, to burn before the Offender’s Doors. And also to
lay, impose, and exact Mulcts, and other Pains and Penalties, by Fines
and Amerciaments, upon such Offenders, according to their sound
discretions, and the Ordinances by them and their Successors so as
aforesaid to be made and appointed, shall be, and the same is hereby
repealed.
_And be it further Enacted_, That in lieu and stead thereof, the said
Master, Wardens, and Society of Apothecaries for the time being, and
their Successors, or any of the Assistants, or any other person or
persons properly qualified, as hereinafter is mentioned, to be by the
Master and Wardens nominated and assigned, not being fewer in number
than Two Persons at the least, shall and may from time to time, and at
all seasonable and convenient times, in the day time, as often as to the
said Master and Wardens it shall seem expedient, go and enter into any
Shop or Shops, of any person or persons whatever, using or exercising
the Art or Mystery of an Apothecary in any part of _England_ or _Wales_;
and shall and may search, survey, prove, and determine, if the
Medicines, simple or compound, Wares, Drugs, or any thing or things
whatsoever therein contained, and belonging to the Art or Mystery of
Apothecaries aforesaid, be wholesome, meet, and fit for the cure,
health, and ease of His Majesty’s Subjects; and all and every such
Medicines, Wares, Drugs, and all other things belonging to the aforesaid
Art, which they shall find false, unlawful, deceitful, stale,
unwholesome, corrupt, pernicious or hurtful, shall and may burn, or
otherwise destroy; and also shall and may report to the Master, Wardens,
and Assistants of the said Society, the Name or Names of such person or
persons as shall be found to have the same in their possession; and the
said Master, Wardens, and Assistants, shall and may impose and levy the
following Fines and Penalties upon each and every person whose Name
shall be so reported to them, as hereinafter mentioned: For the first
offence the Sum of Five Pounds; for the second offence the Sum of Ten
Pounds; and for the third, and every other offence, the Sum of Twenty
Pounds.
_Provided always, and be it Enacted_, That no person to be by the
Master, Wardens, and Assistants for the time being, chosen and appointed
a Member of the Court of Examiners, or to be by the Master and Wardens
nominated and assigned to go and enter into any Shop or Shops, for the
purposes aforesaid, within the City of _London_, the Liberties or
Suburbs thereof, or within Thirty Miles of the same, shall be deemed to
be properly qualified, unless he shall be a Member of the Society of
Apothecaries aforesaid, of not less than Ten Years standing; nor shall
any person be deemed to be properly qualified to be nominated and
assigned to go and enter into any Shop or Shops in any other part of
_England_ and _Wales_ for the purposes aforesaid, or to be appointed one
of the Five Apothecaries hereinafter mentioned, and directed to be
appointed for the purpose of examining Assistants to Apothecaries in
compounding and dispensing Medicines, as hereinafter is mentioned,
except he shall have been an Apothecary in actual practice for not less
than Ten Years at least, previously to his being so nominated, or
assigned, or appointed.
_And whereas_ it is the duty of every Person using or exercising the Art
and Mystery of an Apothecary, to prepare with exactness, and to dispense
such Medicines as may be directed for the sick by any Physician lawfully
licensed to practise Physic by the President and Commonalty of the
Faculty of Physic in _London_, or by either of the two Universities of
_Oxford_ or _Cambridge_; therefore, for the further protection,
security, and benefit of His Majesty’s Subjects, and for the better
regulation of the practice of Physic throughout _England_ and _Wales_,
_Be it Enacted_, That if any Person using or exercising the Art and
Mystery of an Apothecary, shall at any time knowingly, wilfully, and
contumaciously refuse to make, mix, compound, prepare, give, apply, or
administer, or any way to sell, set on sale, put forth, or put to sale
to any Person or Persons whatever, any Medicines, compound Medicines, or
medicinable Compositions, or shall deliberately or negligently, falsely,
unfaithfully, fraudulently, or unduly make, mix, compound, prepare,
give, apply or administer, or any way sell, set on sale, put forth, or
put to sale to any Person or Persons whatever, any Medicines, Compound
Medicines, or Medicinable Compositions, as directed by any Prescription,
Order or Receipt, signed with the initials in his own hand-writing, of
any Physician so lawfully licensed to practise Physic, such person or
persons so offending, shall, upon complaint made within Twenty-one Days
by such Physician, and upon conviction of such offence before any of His
Majesty’s Justices of the Peace, unless such Offender can shew some
satisfactory reason, excuse, or justification in this behalf, forfeit,
for the first offence the Sum of Five Pounds; for the second offence the
Sum of Ten Pounds; and for the third offence he shall forfeit his
Certificate, and be rendered incapable in future of using or exercising
the Art and Mystery of an Apothecary, and be liable to the Penalty
inflicted by this Act upon all who practise as such without a
Certificate, in the same manner as if such party so convicted had never
been furnished with a Certificate enabling him to practise as an
Apothecary; and such Offender so deprived of his Certificate, shall be
rendered and deemed incapable in future of receiving and holding any
fresh Certificate, unless the said party so applying for a renewal of
his Certificate, shall faithfully promise and undertake, and give good
and sufficient Security, that he will not in future be guilty of the
like offence.
_And be it further Enacted_, That each and every of them the said Master
and Wardens for the time being, may, and they are hereby respectively
empowered, by writing under his or their hands, to appoint any one or
more of the said Court of Assistants to act as Deputy Master, or as
Deputy Wardens, as the case may be, in all matters and things done, or
authorized to be done, by the said Master, or the said Wardens, under
and by virtue of the said recited Charter, or of this Act, and to remove
such Deputy Master, or Deputy Wardens so to be appointed from time to
time, as the said Master, or the said Wardens, shall respectively think
proper; and all acts, matters, and things which shall be lawfully done
by the said Deputy Master or Deputy Wardens so to be appointed as
aforesaid, as the case may be, shall be as good, valid, and effectual,
as if the same were done and performed by the said Master and Wardens
respectively.
_And whereas_ much mischief and inconvenience has arisen, from great
numbers of persons in many parts of _England_ and _Wales_ exercising the
functions of an Apothecary, who are wholly ignorant, and utterly
incompetent to the exercise of such functions, whereby the Health and
Lives of the Community are greatly endangered; and it is become
necessary that provision should be made for remedying such evils; _Be it
therefore further Enacted_, That the said Master, Wardens, and Society
of the Art and Mystery of Apothecaries of the City of _London_,
incorporated by the said recited Charter of His Majesty King _James_ the
First, and their Successors, shall be, and they are hereby appointed and
constituted, directed and empowered, for ever to superintend the
execution of the provisions of this Act, and to enforce and carry the
several regulations and provisions thereof, in relation to the several
persons practising the Art or Mystery or Profession of an Apothecary
throughout _England_ and _Wales_, and all other the purposes of this
Act, into full execution.
_And be it further Enacted_, That no Act of the said Master, Wardens,
and Society of Apothecaries, incorporated as aforesaid, for the carrying
any of the powers and provisions of this Act into execution, shall be,
or be deemed to be good or valid (save and except as to such Acts as
shall be done by the said Master, Wardens, and Assistants, or others
appointed by them, or any of them, as hereinbefore is provided, in
pursuance of the Powers and Authorities hereinbefore given to them to
enter into Shops to search for, examine and destroy unwholesome Drugs or
Medicines, and also save and except as to such acts as shall be done by
the said Court of Examiners, or the major part of them present, or by
the Five Apothecaries hereinafter mentioned, or the major part of them
present, in pursuance of the authorities hereinafter given to them),
unless the same be done at some Assembly or Meeting to be holden by the
said Master, Wardens, and Society, in the Hall of the said Society. And
that all the Powers and Authorities by this Act granted to, or vested
in, the said Master, Wardens, and Society as aforesaid, shall and may
from time to time be exercised by the Master, Wardens, and Assistants of
the Art and Mystery of Apothecaries aforesaid for the time being, or by
the major part of them present, who shall attend at any such Assembly or
meeting to be holden as aforesaid (the number present at such Assemblies
or Meetings not being less than Thirteen, of which the said Master for
the time being shall always be one), and all the Orders and Proceedings
of the said Master, Wardens, and Assistants for the time being, or of
such major part as aforesaid, shall have the same force and effect, as
if the same were made or done by the said Master, Wardens and Society of
Apothecaries incorporated as aforesaid.
_And be it further Enacted_, That for the purposes of this Act, so far
as the same regards the Examination of Apothecaries, and Assistants to
Apothecaries, Twelve Persons properly qualified, as hereinbefore is
mentioned, shall be chosen and appointed by the said Master, Wardens,
and Assistants for the time being, (who are hereby authorized and
empowered to choose and appoint such Persons, and to remove or displace
them from time to time, as they the said Master, Wardens, and Assistants
for the time being, shall deem adviseable), and such Persons, when so
chosen and appointed, or any Seven of them, shall be, and be called the
Court of Examiners of the Society of Apothecaries; and such Court of
Examiners, or the major part of them present at any meeting, shall have
full power and authority, and are hereby authorized and empowered to
examine all Apothecaries, and Assistants to Apothecaries, throughout
_England_ and _Wales_, and to grant or refuse such Certificate, as
hereinafter is mentioned. And such Court of Examiners, or the major part
of them, shall, and they are hereby required to meet and assemble in
some convenient Room in the Hall of the said Society, once at least in
every week, for the purpose of such Examination, and then and there to
examine all Persons applying to be examined, and duly qualified so to be
by virtue of this Act.
_And be it further Enacted_, That at any such Meetings of the said
Examiners, a Chairman shall and may be appointed; and when and so often
as it shall so happen that there shall be an equal number of Votes upon
any one question (including the Vote of the said Chairman), then and in
such case, it shall and may be lawful to and for the said Chairman to
give the casting or decisive Vote.
_And be it further Enacted_, That no person shall be capable of acting
as an Examiner, under and by virtue of this Act, until he shall have
taken and subscribed the following Oath:
“I, _A. B._ do solemnly promise and swear (or, being one of the people
called Quakers, do solemnly affirm) that I will faithfully,
impartially, and honestly, according to the best of my skill and
knowledge, execute the trust reposed in me by the Master, Wardens, and
Society of the Art and Mystery of Apothecaries of the City of
_London_, as an Examiner, in the Examination of every person who shall
come before me to be examined, as to his fitness or qualification to
act as an Apothecary, or Assistant to an Apothecary, as the case may
be, and that without favour, affection, prejudice, or malice.
“So help me God.”
which Oath, or Affirmation, the said Master, Wardens, or Court of
Assistants, or the major part of them, are hereby authorized and
required to administer.
_And be it further Enacted_, That all Persons so to be chosen and
appointed Examiners as aforesaid, shall continue in Office for the space
of One Year from the time of their Appointment, (except in case of
Death, or being removed or displaced by the said Master, Wardens, and
Assistants as aforesaid). _Provided always_, That it shall and may be
lawful to and for the said Master, Wardens, and Assistants, to choose
and appoint any such Person or Persons going out of Office, again to be
an Examiner or Examiners, as aforesaid, if they the said Master,
Wardens, and Assistants, shall deem it adviseable so to do.
_And be it further Enacted_, That in case any Person or Persons so to be
chosen, and appointed, shall happen to die during the time he or they
shall continue to be an Examiner or Examiners, or be removed or
displaced as aforesaid, then it shall and may be lawful for the said
Master, Wardens, and Assistants, to choose and appoint any other Person
or Persons properly qualified, to be an Examiner or Examiners as
aforesaid, in the room of the Person or Persons so dying, or removed, or
displaced as aforesaid; and every Person or Persons so chosen and
appointed, shall continue in Office for such time and no longer, as the
Person or Persons in whose room or stead he or they shall be so chosen
and appointed, would have continued in Office.
And to prevent any Person or Persons from practising as an Apothecary,
without being properly qualified to practise as such, _Be it further
Enacted_, That from and after the First Day of August, One Thousand
Eight Hundred and Fifteen, it shall not be lawful for any Person or
Persons (except persons already in practice as such), to practise as an
Apothecary in any part of _England_ or _Wales_, unless he or they shall
have been Examined by the said Court of Examiners, or the major part of
them, and have received a Certificate of his or their being duly
qualified to practise as such, from the said Court of Examiners, or the
major part of them, as aforesaid; who are hereby authorized and required
to examine all Person and Persons applying to them, for the purpose of
ascertaining the skill and abilities of such person or persons in the
Science and Practice of Medicine, and his or their fitness and
qualification to practise as an Apothecary; and the said Court of
Examiners, or the major part of them, are hereby empowered either to
reject such Person or Persons, or to grant a Certificate of such
Examination, and of his or their qualification to practise as an
Apothecary as aforesaid: _Provided always_, That no Person shall be
admitted to such Examination until he shall have attained, the full age
of Twenty-one Years.
_Provided always, and be it Enacted_, That no Person shall be admitted
to any such Examination for a Certificate to practise as an Apothecary,
unless he shall have served an Apprenticeship of not less than Five
Years to an Apothecary, and unless he shall produce Testimonials to the
satisfaction of the said Court of Examiners, of a sufficient Medical
Education, and of a good moral conduct.
_And be it further Enacted_, That every Person intending to qualify
himself under the regulations of this Act to practise as an Apothecary,
in any part of _England_ or _Wales_, shall give notice to the Clerk of
the said Master, Wardens, and Society of Apothecaries as aforesaid, of
his intention so to do, who shall notify the same to the said Master,
Wardens, and Society of Apothecaries as aforesaid; and the Person so
intending to qualify himself, shall present himself at the Meeting held
by the said Court of Examiners next succeeding such Notice, and shall
undergo such Examination by the said Court of Examiners as aforesaid, or
at some other Meeting, as shall or may be appointed and fixed upon by
the said Master, Wardens, and Society of Apothecaries, or by the said
Court of Examiners, or the major part of them, as aforesaid, for that
purpose.
_And be it further Enacted_, That from and after the First Day of
August, One Thousand Eight Hundred and Fifteen, it shall not be lawful
for any Person or Persons (except the Persons then acting as Assistants
to any Apothecaries as aforesaid, and excepting Persons who have
actually served an Apprenticeship of Five Years to an Apothecary) to act
as an Assistant to any Apothecary, in compounding or dispensing
Medicines, without undergoing an Examination by the said Court of
Examiners, or the major part of them, or by Five Apothecaries, so to be
appointed as hereinafter is mentioned, and obtaining a Certificate of
his or their qualification to act as such Assistant, from the said Court
of Examiners, or the major part of them, or from the said Five
Apothecaries, who are hereby authorized and empowered to examine all
persons applying to them for that purpose, and to grant a Certificate of
such fitness and qualification.
_And be it further Enacted_, That for the purposes of this Act, it shall
and may be lawful to and for the said Master and Wardens for the time
being, or to and for the said Court of Examiners, by writing under their
hands, from time to time to appoint Five Apothecaries in any County or
Counties respectively throughout _England_ and _Wales_ (except within
the said City of _London_, the Liberties or Suburbs thereof, or within
Thirty Miles of the same), to act for such County or Counties, or any
other County or Counties near or adjoining, and to remove or displace
them from time to time, as they the said Master and Wardens, or the said
Court of Examiners, shall deem adviseable; and such Five Apothecaries so
to be appointed respectively, as aforesaid, at any Meeting to be held by
them as hereinafter mentioned, shall have full power and authority, and
are hereby authorized and empowered to examine, all Assistants to
Apothecaries throughout the County or Counties in regard of which such
Apothecaries shall have been so appointed as aforesaid, and to grant or
refuse such Certificate to every such Assistant to Apothecaries, as
hereinbefore is authorized in that behalf; and a Meeting of the said
Apothecaries, for the purposes aforesaid, shall be held monthly in the
County Town of some one of the Counties for which they shall have been
appointed to act as aforesaid; and that no act of such Apothecaries
shall be, or be deemed to be good or valid, unless the same be done at
some such Meeting; and that all the Powers and Authorities by this Act
granted to or vested in such Five Apothecaries, shall and may from time
to time be exercised by the major part of them, who shall attend at any
Meeting to be holden as above directed, the number of such Apothecaries
present at any such Meeting not being less than Three; and all the
Orders, Directions, and Certificates of the major part of such
Apothecaries present at any such Meeting, shall have the same force and
effect as if the same were made, done, or signed by all the said Five
Apothecaries for the time being; and at every such Meeting of the said
Apothecaries, a Chairman shall and may be appointed, and when, and so
often as it shall so happen that there shall be an equal number of Votes
upon any one question (including the Vote of the said Chairman) then and
in such case, it shall and may be lawful to and for the said Chairman to
give the casting, or decisive Vote.
_And be it further Enacted_, That the Sum of Ten Pounds Ten Shillings
shall be paid to the said Master, Wardens, and Society of Apothecaries,
for every such Certificate as aforesaid, on obtaining the same, by every
person intending to practise as an Apothecary within the City of
_London_, the Liberties or Suburbs thereof, or within Ten Miles of the
same City; and the Sum of Six Pounds Six Shillings by every person
intending to practise as an Apothecary in any other part of _England_ or
_Wales_ (except the said City of _London_, the Liberties or Suburbs
thereof, or within Ten Miles of the said City:) and no person having
obtained a Certificate to practise as an Apothecary in any other part of
_England_ or _Wales_ (except the said City of _London_, the Liberties or
Suburbs thereof, or within Ten Miles of the said City as aforesaid),
shall be entitled to practise within the said City of _London_, the
Liberties or Suburbs thereof, or within Ten Miles of the said City,
unless and until he shall have paid to the said Master, Wardens, and
Society, the further Sum of Four Pounds Four Shillings, in addition to
the said Sum of Six Pounds Six Shillings so paid by him as aforesaid,
and shall have had endorsed on his said Certificate, a Receipt from the
said Master, Wardens, and Society, for such additional Sum of Four
Pounds Four Shillings; and the Sum of Two Pounds Two Shillings by every
Assistant; and the several Sums of Money arising from the granting of
such Certificates, shall be applied in manner hereinafter directed.
_And be it further Enacted_, That if any person (except such as are then
actually practising as such) shall, after the said First Day of August,
One Thousand Eight Hundred and Fifteen, act or practise as an Apothecary
in any part of _England_ or _Wales_, without having obtained such
Certificate as aforesaid, every person so offending shall for every such
Offence, forfeit and pay the Sum of Twenty Pounds; and if any person
(except such as are then acting as such, and excepting persons who have
actually served an Apprenticeship as aforesaid) shall, after the said
First Day of August, One Thousand Eight Hundred and Fifteen, act as an
Assistant to any Apothecary, to compound and dispense Medicines, without
having obtained such Certificate as aforesaid, every person so
offending, shall for every such offence forfeit and pay the Sum of Five
Pounds.
_And be it further Enacted_, That no Apothecary shall be allowed to
recover any Charges claimed by him in any Court of Law, unless such
Apothecary shall prove on the Trial, that he was in practice as an
Apothecary prior to, or on the said First Day of August, One Thousand
Eight Hundred and Fifteen, or that he has obtained a Certificate to
practise as an Apothecary, from the said Master, Wardens, and Society of
Apothecaries as aforesaid.
_Provided always, and be it further Enacted_, That if the said Court of
Examiners, or the major part of them, having examined any Person or
Persons applying to qualify himself or themselves to practise as an
Apothecary, or if they, or the said Five Apothecaries so to be appointed
for any County or Counties as aforesaid, having examined any Person or
Persons applying to qualify himself or themselves to practise as an
Assistant to an Apothecary, in compounding and dispensing Medicines,
shall see cause to refuse such Certificate as aforesaid, to any such
Person or Persons so applying to qualify himself or themselves as an
Apothecary or Assistant as aforesaid; yet it shall and may be lawful for
such Person or Persons who shall be so refused, to apply at any future
time to be again examined, so that such second application by any Person
or Persons applying to qualify himself or themselves as an Apothecary,
be not within Six Months of such first Examination; and so that such
second application by any person or persons applying to qualify himself
or themselves as an Assistant, be not within Three Months of such first
Examination; and if on such re-examination he or they shall appear to
the persons examining, to be then properly qualified, it shall and may
be lawful for the said Court of Examiners, or to and for the said Five
Apothecaries in any County or Counties as aforesaid, to grant such
person or persons so applying, such Certificate as aforesaid.
_Provided always, and be it further Enacted_, That the said Master,
Wardens, and Society of Apothecaries, do make annually, and cause to be
printed, an exact List of all and every person who shall in that year
have obtained a Certificate to practise as an Apothecary, with their
respective residences attached to their respective Names.
_And be it further Enacted_, That all and every Sum or Sums of Money
which shall be received or arise from the granting of the Certificate of
Examination hereinbefore required, shall belong to, and be appropriated
and disposed of by the said Master, Wardens, and Society of Apothecaries
as aforesaid, in such manner as they shall from time to time direct and
deem most expedient.
_And be it further Enacted_, That all Sum and Sums of Money arising from
Conviction and recovery of Penalties for Offences committed against the
Authorities and Provisions of this Act, shall be applied and disposed of
in manner following, (viz.) One Half thereof to the Informer or
Informers, and One Half thereof to the said Master, Wardens, and Society
of Apothecaries as aforesaid, to be appropriated and disposed of by them
in such manner as they shall deem most expedient.
_And be it further Enacted_, That all Penalties and Forfeitures by
virtue of this Act imposed, (the manner of levying and recovering
whereof is not otherwise hereby particularly directed, shall, if such
Penalties and Forfeitures shall exceed the Sum of Five Pounds, be
recovered by Action or Suit at Law, in the Name of the Master, Wardens,
and Society of the Art and Mystery of Apothecaries of the City of
_London_, in any of His Majesty’s Courts of Record in _England_ or
_Wales_, wherein no Essoign, Protection, or Wager at Law, or more than
one Imparlance shall be allowed); and if such Penalty or Forfeiture
shall amount to less than the Sum of Five Pounds, then the same shall be
levied and recovered by Distress and Sale of the Goods and Chattels of
the Offender, by Warrant under the Hand and Seal of any Justice of the
Peace acting for any County, City, Town, or Place where the Offence
shall be committed (which Warrant such Justice is hereby empowered and
required to grant upon the confession of the Party, or upon the Evidence
of any credible Witness upon Oath; and which Oath such Justice is hereby
empowered to administer); and the overplus (if any), of the Money
arising by such Distress and Sale, shall be returned upon demand to the
Owner of such Goods and Chattles, after deducting the Costs and Charges
of making, keeping, and selling the Distress; and in case sufficient
Distress shall not be found, or such Forfeitures and Penalties shall not
be paid forthwith, it shall be lawful for such Justice, and he is hereby
authorized and required, by Warrant under his Hand and Seal, to cause
the Offender to be committed to the Common Gaol for the County, City,
Town, or Place, where the Offence shall be committed, there to remain
without Bail or Mainprize for any time not exceeding One Calendar Month,
unless such Penalties, and Forfeitures, and Costs, shall be sooner fully
paid and satisfied.
_And be it further Enacted_, That where any Distress shall be made for
any Sum of Money to be levied by virtue of this Act, the Distress itself
shall not be deemed unlawful, nor the Party or Parties making the same
be deemed a Trespasser or Trespassers, on account of any defect or want
of Form in the Notice or Information, Summons, Conviction, Warrant, or
Distress, or other proceeding relating thereto; nor shall the Party or
Parties distraining be deemed a Trespasser or Trespassers _ab initio_,
on account of any irregularity which shall be afterwards done by the
Party or Parties so distraining; but the person or persons aggrieved by
such irregularity, may recover full satisfaction for the special damage
in an Action upon the Case.
_Provided always, and be it further Enacted_, That nothing in this Act
contained shall extend, or be construed to extend, to prejudice, or in
any way to affect the trade or business of a Chemist and Druggist, in
the buying, preparing, compounding, dispensing, and vending Drugs,
Medicines, and Medicinable Compounds, wholesale and retail; but all
persons using or exercising the said trade or business, or who shall or
may hereafter use or exercise the same, shall and may use, exercise, and
carry on the same trade or business in such manner, and as fully and
amply to all intents and purposes, as the same trade or business was
used, exercised, or carried on by Chemists and Druggists before the
passing of this Act.
_Provided always, and be it further Enacted_, That nothing in this Act
contained, shall extend or be construed to extend to lessen, prejudice,
or defeat, or in any wise to interfere with any of the Rights,
Authorities, Privileges, and Immunities heretofore vested in, and
exercised and enjoyed by either of the Two Universities of _Oxford_ or
_Cambridge_, the Royal College of Physicians, the Royal College of
Surgeons, or the said Society of Apothecaries respectively, other than
and except such as shall or may have been altered, varied, or amended in
and by this Act, or of any Person or Persons practising as an Apothecary
previously to the First Day of August, One Thousand Eight Hundred and
Fifteen; but the said Universities, Royal Colleges, and the said
Society, and all such Persons or Person, shall have, use, exercise, and
enjoy all such Rights, Authorities, Privileges, and Immunities, save and
except as aforesaid, in as full, ample, and beneficial a manner to all
intents and purposes, as they might have done before the passing of this
Act, and in case the same had never been passed.
_Provided always, and be it further Enacted_, That no Action or suit
shall be brought or prosecuted against any Person or Persons, Body or
Bodies Politic, Corporate or Collegiate, for any thing done in pursuance
of this Act, after Six Calendar Months next after the fact committed; or
in case there shall be a continuation of Damages, then after Six
Calendar Months next after the doing or committing such Damage shall
have ceased, and not afterwards. And every such Action or Suit shall be
laid and brought in the County where the matter in dispute shall arise,
and not elsewhere; and the Defendant and Defendants in every such Action
or Suit, shall or may, at his, her, or their election, plead specially
the General Issue, and give this Act, and the Special Matter, in
Evidence, at any Trial to be had thereupon, and that the same was done
in pursuance, and by the authority of this Act. And if it shall appear
to have been so done, or if any such Action or Suit shall have been
brought before Twenty-one Days’ Notice shall have been given, or
sufficient satisfaction made or tendered, as aforesaid, or shall be
brought in any other County or Place than as aforesaid, then, and in
every such case, the Jury shall find for the Defendant or Defendants;
and upon such Verdict, or if the Plaintiff or Plaintiffs shall become
Nonsuit, or suffer a discontinuance of his, her, or their Action or
Suit, after the Defendant or Defendants shall have appeared, or if a
Verdict shall pass against the Plaintiff or Plaintiffs, or if upon
Demurrer or otherwise, Judgment shall be given against the Plaintiff or
Plaintiffs, then the Defendant or Defendants shall have Double Costs,
and shall have such remedy for recovering the same, as any Defendant
hath for recovering Costs of Suit in any other Cases by Law.
_And be it further Enacted_, That this Act shall be deemed and taken to
be a Public Act, and shall be judicially taken notice of as such, by all
Judges, Justices, and others, without being specially pleaded.
-------
A Royal Charter granted to the Apothecaries of London 30 Maii 13
Jacobii.
(From Goodall’s Collection, p. 119.)
Rex omnibus ad quos &c. salutem. Cum antehac per Letteras nostras Paten’
sub magno sigillo nostro Anglie confect’ geren’ dat apud Westm’ nono die
Aprilis Anno regni nostri Anglie Francie et Hibernie quarto & Scocie de
gratia nostra speciali voluerimus ordinaverimus & concesserimus quod
omnes et singuli liberi homines mysterii Grocer’ & Pharmacopol’ civitat’
London & Successores sui deinceps in perpetuum pro meliori ordine
gubernatione et regimine hominum myster’ Grocer’ & Pharmacopol’
Civitatis London ac pro utilitate commodo et relevamine bonorum et
proborum ac formidine et correctione malorum dolorosorum et improborum
forent et essent vigore earundem Litterarum Paten’ unum corpus
corporatum et politicum in re facto et nomine per nomen Custod’ &
Communitatis myster’ Grocer’ Civitat’ London et eosdem per nomen Custod’
et Communitat’ myster’ Grocer’ Civitat’ London unum corpus corporatum &
politicum in re facto et nomine realiter & ad plenum pro nobis heredibus
& successoribus nostris per easdem Litteras nostras paten’ adtunc
exereximus fecerimus ordinaverimus constituerimus & declaraverimus &
quod per idem nomen successionem h’erent perpetuam prout per easdem
Litteras nostras Patent’ (inter alia) plenius liquet et apparet. Jam
vero quum nobis sit demonstratum ex parte dilectorum subditorum
Pharmacopol’ Civitat’ nostre London necnon nobis adfirmatum & approbatum
per dilectos nobis Theodorum de Mayerne & Henricum Atkins in Medicinis
Doctores Medicos Nostros discretos et fideles Quod hiisce proximis annis
quamplurimi empyrici et homines ignari & inexperti in Civitate nostra
London ac ejusdem Suburbiis inhabitant et commorantes qui in
Pharmacopoli arte & mysterio hand instituti sed in eadem imperiti &
rudes quamplurima insalubria nociva falsa corrupta perniciosa faciunt &
componunt medicamenta eademque in plurimis hujus regni nostri Anglie
partes vendunt & assidue transmittunt in convitium et opprobrium non
solum Medicine scientie illius colende Medicorumque hujus regui nostri
Anglie literat’ eandem profitentium necnon Pharmacopœiorum Civitat’
nostre London in eadem arte & mysterio educat’ & expert verum eciam in
subditor’ nostror’ pericula et assidua vite discrimina. Cumque ad jura
nostra regia & regimen supremum pro universos subdit’ nostros
singulasque regni nostri partes membra et societates temperamus &
complectimur spectat ut pro bono publico & temporum ratione novas
Societates atque nova Corpora corporat’ et politica creare erigere
instituere & superinducere ad beneplacitum nostrum possumus tam ex
personis que prius plane seperat’ & in null’ corpus redact’ & collect’
fuerunt quam ex membris Corporum corporat’ veter’ ubi hoc ad melius
regimen populi nostri videbitur expedire. Nos igitur considerantes
officii nostri Regii munus esse subditorum nostrorum saluti et bono
publico omnibus viis & modis providere & consulere ac nobiscum
perpendentes quomodo improborum istorum hominum conatibus tempestive
occurramus (de advisament’ Consilii nostri in legibus eruditi) apprime
necessarium duximus Pharmacopæios Civitat’ nostra London ab hominibus
liberis myster’ Grocer’ ejusdem disunire disgungere separare &
dissociare ac easdem Pharmacopœios per seipsos solum et divisum ac ab
hominibus liberis myster’ Grocer’ predict’ ad omnes intentiones &
proposit’ disunitos & separatos in unum Corpus corporat’ & Politicum
erigere creare & constituere ad quos omni futuro tempore incommodorum
istorum cura & correctio demandata & commissa foret. Ita tamen ut
superior’ ac general’ regimen’ Civitat’ nostre London & Magistrat’
ejusdem in modum aliarum Societat’ subjiciantur. SCIATIS igitur quod nos
dilectorum & fidelium Medicor’ nostror’ Theodori de Mayerne & Henrici
Atkins necnon Pharmacopœiorum predict’ precibus inclinati potissimum
verò ex Regali nostra cura & solicitudine Statum Reipublice promovendi
ac bonum publicum procurandi ut Empiricorum & hominum ignor’ & inexpert’
predictor’ inscitia temeritasque compiscatur unde plurima incommoda et
pericula rudi & credule plebi assidue oriantur. Ac ut Pharmacopœi
inferius nominati tam a predicto Corpore politico liberorum hominum
myster’ Grocer’ Civitat’ London quam a quibuscunque aliis corporibus
Politicis Societat’ sive Communitat’ quarumcunque aliar’ artium
facultat’ sive myster’ in eadem Civitate nostra London disuniantur
separentur & disjungantur ac in Corpus unum Politicum & Corporatum per
seipsos per nos facti constituti & creari imposterum perpetuis futuris
temporibus ad omnia proposita & intentiones sint et remaneant quam pro
aliis causis urgentibus nos specialiter moventibus de gra’ nostra
speciali ac ex certa scientia & mero motu nostris volumus ac per
presentes pro nobis heredibus & successor’ nostris Willielmo Besse,
Edmundo Philips (_et_ 114 _aliis nominatis_) ac omnibus aliis personis
quibuscunque subditis nostris naturalibus in arte facultate sive
mysterio Pharmacopœior’ educat’ & perit’ eandemque artem facultatem sive
mysterium hoc tempore exercen’ sive existen’ liberis hominibus myster’
Grocer’ Civitat’ London ac cum eisdem conjunctim & promiscue in unum
Corpus corporatum & Communitat’ antehac per nos seu per aliquem vel
aliquos Progenitor’ nostrorum fact’ incorporat’ sive constitut’. Quod
ipsi et eorum unusquisque una cum omnibus et singulis eorum Apprenticiis
qui ante dat’ Presencium coram Custod’ myster’ Grocer’ predict’ seu
coram Custod’ sive Magistris aliquar’ aliar’ artium facultat’ sive
myster’ in Civitat’ London alicui Pharmacopœio sive aliquibus
Pharmacopœiis posuerunt seipsos Apprenticios tam a predicto Corpore
Politico & Communitat’ liberorum hominum myster’ Grocer’ predict’ quam
ab omnibus aliis Corpor’ Politicis Communitat’ sive Societat’ aliquar’
aliar’ artium facultat’ sive myster’ in Civitat London quibuscunque
disuniantur separentur divellantur disjungantur ac dissociantur
eosdemque Pharmacopœios & eorum quemlibet ante nominat’ sive mencionat’
una cum omnibus & singulis eorum Apprenticiis predict’ ex regali nostra
prerogativa & Jure regio disunimus separamus divellimus disjungimus &
dissociamus & eosdem Pharmacopœios una cum omnibus & singulis eorum
Apprenticiis predict’ virtute harum Literarum nostrarum Paten’ immunes
liberos acquietat’ exoneratos & penitus exemptos (ad omnia proposita et
intentiones) quam de et ab omnibus jurament’ Jurisdictionibus Potestat’
Authoritat’ Statut’ Ordinationibus Constitution’ Supervis’ Scrutin’
Summonition’ Convocationibus Conventionibus Regim’ Gubernationibus
Correction Impositionibus Taxation’ Collection’ denarion’ solutionibus &
Oneribus Finibus amerciament’ imprisonament’ districtionibus penis &
penilitat’ quibuscunque Custod’ & Communitat myster’ Grocer’ predict’
pro tempore existen’ aut eorum successor’ quam alior’ quorumcunque
Corpor’ Politicor’ Communitat’ sive Societat’ in Civitat’ nostra London
& successor’ suorum per presentes volumus esse & remanere deinceps
imperpetuum aliquibus Statut’ Act’ Parliament’ Ordination’ Provisionibus
Consuet’ Concession’ Confirmation’ Privileg’ Chart’ aut Litteris paten’
nostri vel aliquorum Progenitor’ nostrorum Custod’ & Communitat’ myster’
Grocer’ London predict’ fact’ in contrarium inde non obstant’. Et
ulterius de ampliori gra’ nostra speciali & ex certa scientia et mero
motu nostris ut ars myster’ sive facultat’ Pharmacopœie jam diu collapsa
& despecta melius ad amplitudinem dignam promoveatur pro nobis hered’ &
successoribus nostris concedimus per presentes prefatis Willielmo Besse,
Edmundo Phillips (&^{ci} * * * ) ac omnibus & singulis aliis personis
quibuscunque in arte myster’ sive facultat’ Pharmacopol’ educat’ &
perit’ eandemque artem myster’ seu facultatem exercentibus modo existen’
liberis hominibus myster’ Grocer’ predict’ aut existen’ liberis
hominibus aliquar’ aliarum artium myster’ sive facultat’ in Civitat’
London (dummodo in arte & facultate Pharmacopol’ educat’ & expert’
fuerint) quod ipsi omnesque hujusmodi liberi homines ejusdem artis
myster’ sive facultat’ Pharmacopol’ de et in Civitat predict’ & in
suburbiis ejusdem & infra septem miliar’ Civitat’ predict’ sint & erunt
unum Corpus corporatum & Politicum in re facto & nomine per nomen
Magistr’ Custod’ & Societat’ artis & myster’ Pharmacopol’ Civitat’
London. Ac eos per nomen Magistri Custodum & Societatis artis et myster’
Pharmacopol’ Civitat’ London in unum Corpus corporatum & Politicum in re
facto et nomine realiter et ad plenum pro nobis & successor’ nostris
erigimus facimus ordinamus constituimus creamus & declaramus per
presentes. Et quod per idem nomen successionem habeant perpetuam. Et
quod ipsi & successores sui per nomen Magistri Custod’ & Societatis
artis mysterii Pharmacopol’ Civitat’ London sint & erunt perpetuis
futuris temporibus persone habiles & in lege capaces ac Corpus
Corporatum & Politicum & in lege capax ad habend’ perquirend’ possidend’
gaudend’ & retinend’ Maner’ Messuagia terras tenementa libertat’
privileg’ Franches’ Jurisdiction’ & Hereditamenta quecunque cujuscunque
generis nominis natur’ qualitat’ vel speciei fuerint sibi & successor’
suis in feodo simplici & perpetuitat’ sive pro termino anni vel annorum
aut aliter quocunque modo. Ac etiam bona & Catalla & quascunque alias
res cujuscunque nominis nature generis qualitat’ sive speciei fuerint.
Necnon ad concedend’ dimittend’ alienand’ assignand’ & disponend’ maner’
terr’ tenementa & hereditamenta & ad omnia & singula al’ fact’ & res
faciend’ & exequend’ per nomen predict’. Et quod per idem nomen Magistri
Custod’ & Societat’ artis & myster’ Pharmacopol’ Civitat’ myster’ London
placitare & implacitari respondere & responderi defendere & defendi
valeant & possint in quibuscunque Curiis. Placit’ & locis ac coram
quibuscunque Judicibus & Justiciariis ac aliis personis & officiar’
nostris ac heredum & successor’ nostrorum in omnibus & singulis
actionibus placitis sect’ querel’ causis mater’ & demand’ quibuscunque
cujuscunque sint aut erint generis qualitat’ aut speciei eisdem modo &
forma prout aliqui alii ligei nostri Anglie persone habiles & capaces in
lege sive aliquod aliud Corpus corporatum et Politicum infra Regnum
nostrum Anglie habere perquirere recipere possidere & gaudere retinere
dare concedere dimittere alienare assignare & disponere placitare &
implacitari respondere & responderi defendere & defendi facere
permittere sive exequi possint aut valeant. Et quod iidem Magister
Custod’ & Societas artis & mysterii Pharmacopol’ Civitat’ London
predict’ habeant imperpetuum Commune Sigillum pro causis & negotiis suis
ac successor’ suor’ quibuscunque agend’ deservitur’. Et quod bene liceat
& licebit eisdem Magistro Custod’ & Societat’ artis & mysterii
Pharmacopol’ London predict’ & successor’ suis sigillum illud ad libitum
suum de tempore in tempus frangere mutare & de novo facere prout eis
melius fieri videbitur. Et ulterius volumus & ordinamus ac per presentes
pro nobis hered’ & successor’ nostris concedimus prefat’ Magistro
Custod’ & Societat’ artis & mysterii Pharmacopol’ predict’ & successor’
suis quod de cetero imperpetuum perpetuis futuris temporibus sit & erit
unus de Societatis artis & myster’ Pharmacopol’ predict’ in forma in
hiis presentibus mencionat’ eligend’ & nominand’ qui nominabitur &
vocabitur Magister artis & Societatis predict’ Ac quod similiter sint &
erunt duo de Societate artis & myster’ predict’ in forma in his
presentibus express’ eligend’ & nominand’ qui erunt & nominabunter
Custodes Artis myster’ & societat’ predict’. Ac eciam quod similiter
sint & erunt viginti & unus de Societate predict’ in forma in hiis
presentibus inferius similiter mencionat’ eligend’ qui erunt &
nominabuntur Assistantes Artis & Societatis Pharmacopol’ Civitat’ London
ac de tempore in tempus erunt assistentes & auxiliantes Magistro &
Custod’ Mysterii & Societat’ predict’ pro tempore existen’ in omnibus
causis rebus & materiis dict’ Magr’ & Societat’ tangen’ sive concernen.’
Et ulterius volumus ac per presentes pro nobis hered’ & successoribus
nostris concedimus prefatis Magistro Custod’ & Societat’ artis & myster’
Pharmacopol’ Civitat’ London predict’ & successor’ suis quod bene liceat
& licebit eisdem Magistro Custod’ & Societat’ & Successor’ suis habere
perquirere retinere & appuntare quandam Aulam sive Domum Conciliar’
infra Civitat nostram London Quodque idem Magr’ Custod’ myster’ predict’
vel aliqui duo eorum quorum Magistrum pro tempore existenti unum esse
volumus quoties eis opportunum & necessarium fore videbitur convocare &
tenere infra eandem Aulam sive domum quandam Curiam sive Convocationem
de eisdem Magistro Custod’ & Assistent’ predict’ ad numerum tredecem
personarum vel plurium (quorum Magistrum & unum Custod’ myster’ &
societat’ predict’ pro tempore existen’ ut prefertur duos esse volumus)
ad libitum & licite possint & valeant perpetuis futuris temporibus.
Quodque in eadem Curia sive Convocatione tractare referre consultare
consulere & decernere valeant & possint de Statutis Legibus Articulis
Ordinationibus & Constitutionibus myster’ & societat’ predict’ ac bonum
regimen statum & gubernationem eorundem tangen’ & concernen’ juxta eorum
sanas discretiones vel juxta sanas discretiones majoris partis eorundem
(quoram magistrum & unum Custod’ myster’ & societat’ predict’ pro
tempore existen’ duos esse volumus) sic ut prefertur congregat’. Et
ulterius volumus ac per presentes pro nobis hered’ & successor’ nostris
concedimus prefat’ Magistro Custod’ & Societati artis sive mysterii
Pharmacopol’ Civitat’ London & successoribus suis quod Magister Custodes
& Assistantes myster’ predict’ pro tempore existen’ ad numerum tredecem
personarum vel plurium (quorum predict’ Magistrum pro tempore existen’
unum esse volumus) super Summonitionem publicam inde fiend’ ad hoc
congregat’ in Aula sive domo societatis predict’ habeant & habebunt
plenam potestatem facultatem & authoritatem condend’ constituend’
ordinand’ & faciend’ de tempore in tempus Leges Statuta Constitutiones
Decreta & Ordinationes rationabiliter inscript’ quecunque que eis aut
majori parti eorundem (quorum Magistrum myster’ & societatis predict’
pro tempore existen’ unum esse volumus) bona salubria utilia honesta &
necessaria juxta eorum sanas discretiones fore videbuntur pro bono
regimine & gubernatione eorundem Magisti Custod’ Assisten’ & societatis
myster’ Pharmacopol’ predict’ ac omnium & singulorum aliar’ personar’
artem sive myster’ Pharmacopol’ infra Civitat’ London predict’
libertates & suburbia ejusdem ac infra septem Miliaria ejusdem Civitat’
exercent’ & occupant’ ac pro declaratione quo modo & ordine iidem
Magister Custodes & Societas ac omnes & singuli Apprenticii Officiar’ &
Ministri myster’ & societat’ predict’ in officiis functionibus minister’
Tyrociniis artific’ & negotiis suis infra Civitat’ predict’ ac
libertates & suburbia ejusdem ac infra septem miliaria ejusdem Civitat’
sese habebunt gerent & utentur pro uberiori bono publico communi
utilitate & bono regimine myster’ & societat’ predict’ ac gubernatione
earundem ac rebus & causis aliis quibuscunque myster’ & societat’
predict’ tangen’ seu quoquo modo concernen.’ PROVISO semper quod pro tot
& tal’ Ordinationibus que medicamenta aut compositiones & usum earundem
concernent’ advocabunt de tempore in tempus President’ & quatuor
Censores seu Gubernat’ Colleg’ & Communitat’ Medicorum London aut alios
Medicos per Presidentem predict’ nominand’ pro avisamento in hac parte.
Quodque iidem Magister et Custodes & Assistantes myster’ predict’ pro
tempore existen’ ad numerum tredecim personarum vel plurium (quorum
Magistrum myster’ predict’ pro tempore existen’ unum esse volumus)
quotiescunque hujusmodi Leges institutiones Jura Ordinationes &
Constitutiones fecerint condidirint ordinaverint vel stabiliverint
hujusmodi & tales penas punitiones & penelitat’ per fines & amerciamenta
vel per eorum utrumque erga & super omnes delinquentes contra hujusmodi
Leges Institutiones Jura Ordinationes & Constitutiones sive eorum
aliquod sive aliqua qual’ & que eisdem Magistro Custod’ & Assisten
myster’ predict’ pro tempore existen’ vel majori parte eorundem (quorum
Magistrum myster’ & societatis predict’ pro tempore existen’ unum esse
volumus) necessor’ requisit’ & opportun’ pro observatione earum legum
ordinationum & constitutionum melius fore videbitur facere ordinare
limitare & providere possint. Ac quod iidem Magister Custodes & societas
myster’ predict’ & successores sui eadem fines et amerciamenta per
ministros proprios eorundem Magistri Custod’ & Societatis pro tempore
existem’ per discretionem vel aliter secundum leges & consuetudines
regni nostri Anglie levare habere & capere possint & valeant ad usum
Magistri Custodum & societat’ predict’ & successor’ suorum absque
impedimento nostri heredum & successor’ nostrorum aut alicujus vel
aliquorum Officiar’ vel Ministror’ nostror’ heredum vel sucessor’
nostrorum & absque aliquo computo nobis heredibus vel successor’ nostris
inde reddend’ seu faciend’. Que omnia & singula Ordinationes Jura &
Constitutiones sic (ut prefertur) fiend’ observari volumus sub penis in
iisdem continend’. Ita tamen quod leges constitutiones fines &
americamenta hujusmodi sint rationabilia & non sint repugnan’ nec
contrarian’ legibus Statut’ consuetudinibus sive Juribus regni nostri
Anglie. Et pro meliori executione voluntatis & concessionis nostri in
hac parte assignavimus nominavimus creavimus & constituimus dilectos
nobis predictum Edmund’ Phillips fore & esse primum & modern’ Magistrum
artis sive myster’ & societat’ predict’ ac etiam predict’ Stephanum
Higgins & Thomam Jones fore & esse primos & modernos Custodes mysterii &
societatis predict’ continuand’ in eisdem officiis a dat’ presentium
usque ad vicessimum diem Augusti proxim’ sequen’ & deinde quousque tres
alii ad officia illa Magistri & Custodum artis sive mysterii &
societatis predict’ debito modo electi & perfecti fuerint juxta
ordinationes & provisiones in hiis presentibus express’ & declarat’ si
iidem Edmundus Phillips, Stephanus Higgins & Thomas Jones tam diu
vixerint (nisi interim pro mala gubernatione aut male se gerend’ in ea
parte aut pro aliqua alia causa rationabili ab officiis illis amoti
erunt aut eorum aliquis amotus erit.) Et assignavimus eciam ac
nominavimus creavimus constituimus & fecimus ac per presentes pro nobis
heredibus & successoribus nostris assignamus creamus nominamus
constituimus & facimus dilectos nobis predict Johannem Wolfgangfumler *
* &^{ci} * * in arte & mysterio Pharmacopol’ edoct’ educat’ & expert’
fore’ & esse primos et modernos Assistentes ejusdem mysterii &
societatis Pharmacopol’ continuand’ in eisdem officiis & locis durant’
vitis suis naturalibus nisi interim pro mala qubernatione seu male se
gerend’ in ea parte aut pro aliqua alia causa rationabili amoti fuerint
aut eorum aliqui vel aliquis amotus erit vel amoti erunt. Qui quidem
Assistentes mysterii & societat’ predict’ sacrimenta sua corporalia
coram Francisco Bacon Milite Attornat’ nostro General’ Henrico Yelverton
Milite Solicit’ nostro generali Theodoro de Mayerne & Henrico Atkins in
Medicinis Doctoribus & Johanne Towneley Armigero vel coram duobus eorum
Quibus quinque vel eorum duobus plenam potestatem & authoritatem
sacramenta predict’ Assisten’ myster’ predict’ dare & administrare damus
& concedimus per presentes infra quadraginta dies post dat’ presentium
ad officia sua predict’ bene & fideliter exequend’ prestabunt. Ac eciam
predict’ Magister myster’ predict’ & Custodes myster’ & societat’
predict’ sacramenta sua corporalia coram Assisten’ myster’ predict’ vel
majore parte eorundem infra quinquaginta dies post dat’ presentium bene
& fideliter ad dictum officium Magistri & Custod’ myster’ & societat’
predict’ exequend’ in omnibus eisdem Officiis tangen’ seu concernen’
prestabunt. Et sic de tempore in tempus toties quoties Magister &
Custodes Myster’ & Societatis predict’ elect’ & perfect’ fuer’ antequam
ad executionem predict’ Officii admittantur seu eorum aliquis
admittatur.
Et ulterius volumus ac per presentes pro nobis hered’ & successor’
nostris concedimus prefat’ Magistro Custod’ & Societati mysterii
Pharmacopol’ predict’ & successor’ suis quod Magister Custodes &
Assistentes Mysterii & Societatis predict’ pro tempore existen’ &
successor’ sui ad numerum tredecim personar’ vel plurium (si tot
convenienter congregari possint) de tempore in tempus perpetuis futuris
temporibus potestatem & authoritatem habeant & habebunt annuatim &
quolibet anno imperpetuum in & super vicessimum diem Augusti vel infra
octo dies proxim’ post dictum vicessimum diem Augusti eligend’ &
nominand’ Et quod eligere & nominare possint & valeant tres de
probioribus & discretioribus hominibus Societatis predict’ quorum unus
erit Magister & alteri duo erunt Custodes Mysterii & Societatis predict’
pro uno anno integro tunc proxim’ sequen’ & deinde quosque tres alii
probi & discreti homines myster’ predict’ elect’ & prefect’ fuerint
juxta Ordinationes & Provisiones in hiis presentibus express’ &
declarat’.
Et ulterius volumus & per presentes pro nobis heredibus & successor’
nostris concedimus prefatis Magistro Custod’ & Societati Myster’
Pharmacopol’ Civitat’ London predict’ & Successor’ suis Quod si
contigerit Magistrum & Custodes myster’ & Societat’ predict’ aut eorum
aliquos vel aliquem aliquo tempore infra unum annum postquam ad Officia
Magistri & Custod’ Myster’ & Societatis predict’ sic ut prefertur elect’
& prefect’ fuerint aut eorum aliquis vel aliqui fuerit vel fuerint obire
aut ab officiis amoveri (quos quidem Magistrum & Custodes ac eorum
quemlibet pro mala gubernatione aut pro aliqua causa rationabili per
reliquos Magist’ et Custod’ non offenden’ vel delinquentes & Assistentes
myster’ & societatis predict’ pro tempore existen’ ad numerum tredecim
personar’ vel plurium de tempore in tempus amobiles esse volumus) quod
tunc & toties bene liceat & licebit tantis & tot eorundem Magist’
Custod’ & Assistent’ qui adtunc supervixerint vel remanserint ad numerum
tredecim personarum vel plurium ad libitum suum unum alium vel plures
alios in Magistrum & Custodem vel Custodes Myster’ & Societatis predict’
eligere & preficere secundum ordinationem & provisionem in hiis
presentibus declarat’ ad exequend’ & exercend’ prefat’ officia Magistri
& Custod’ myster’ & societatis predict’ usque ad vicessimum diem Augusti
tunc proxim’ sequen’ vel infra octo dies ante vicessimum diem Augusti &
exinde quousque tres alii probi & discreti homines myster’ & societatis
predict’ elect’ & nominat’ erunt juxta ordinationes & provisiones in
hiis presentibus declarat’ & express’ & sic toties quoties casus sic
acciderit.
Et ulterius volumus ac per presentes pro nobis heredibus & successor’
nostris ordinamus & concedimus prefat’ Magist’ Custod’ & societati
mysterii predicti & suceessor’ suis quod quandocunque contigerit aliquem
vel aliquos de predict’ viginti & uno Assisten’ pro tempore existen’
myster’ & societatis predict’ obire aut pro aliqua causa rationabili ab
officiis suis Assisten’ myster’ & societatis predict’ amoveri (quos
quidem Assistentes & eorum quemlibet se non bene gerentes aut gerentem
in officiis illis aut pro aliqua alia causa rationabili de tempore in
tempus per Magistrum Custod’ & Assisten’ ad numerum tredecim personar’
vel plurium qui adtunc remanserint vel supervixerint amobiles esse
volumus) ad libitum suum de tempore in tempus unum alium vel plures
alios de probioribus & dignioribus personis existen’ de myster’ &
societat predict’ in locum sive loca ipsius Assistentis vel ipsorum
assistentium myster’ & societatis predict’ sic mori vel amoveri
contingen’ vel contingent’ eligere nominare & preficere ad supplend’
predictum numerum viginti & unius Assistentium predict’. Quodque ille
sive illi posquam sic (ut prefertur) elect’ & nominat’ fuerit vel electi
& nominati fuerint antequam ad executionem predict’ officii Assistentis
vel Assistentium myster’ & societat’ predict’ admittantur sive eorum
aliquis admittatur Sacrimentum Corporale super sacrosanct’ Evangel’
coram Magistro & Custod’ Myster’ & Societat’ predict’ pro tempore
existen’ ad officia illa recte bene fideliter & honeste exequend’ & ad
ea omnia secreta tenend’ que in Cur’ Assisten’ presentia ipsius vel
ipsorum erunt communicat’ vel colloquut’ prestabit & prestabunt & sic
toties quoties casus acciderit.
Damus insuper ac per presentes pro nobis heredibus & successor’ nostris
concedimus prefatis Magistro Custod’ & Societat’ artis & myster’
Pharmacopolar’ predict’ & successor’ suis quod Magister & Custodes
myster’ & societat’ predict’ pro tempore existen’ habeant & habebunt
plenam potestatem & authoritatem de tempore in tempus ad tradend’ &
ministrand’ Sacramentum Corporale super sacrosanct’ Evangelium tam
omnibus Magistris Custod’ & Assisten’ myster’ & societat’ predict’
imposterum eligend’ & in eadem officia sive loca ut prefertur admittend’
ac omnibus Offician’ myster’ & societat’ predict’ pro debit’ executione
officior’ suor’ recte bene & fideliter in omnibus separatim officia sua
tangen’ sive concernen’ quam omnibus Apprenticiis ac aliis liberis
hominibus myster’ predict’ quibuscunque.
Et ulterius ut nos subditor’ nostror’ saluti ac bono publico quantum in
nobis est consulamus ac ut pericula & incommoda illa assidue accidentia
per imperitos & inexpertos dolosos & improbos homines artem Pharmacopol’
predict’ exercen’ melius devitentur volumus & de gratia nostra speciali
certa scientia & mero motu nostris per presentes pro nobis heredibus &
successor’ suis quod non liceat aut licebit deinceps imposterum alicui
persone vel aliquibus personis quibuscunque jam existen’ aut imposterum
futuris liberis hominibus myster’ Grocer’ predict’ aut aliquar’ aliar’
artium facultat’ sive myster’ in civitate London ac in eisdem arte
facultate sive myster’ educat’ vel educand’ officinam vel shoppam
Pharmacopol’ instruere tenere vel habere aut medicamenta quecunque
facere miscere condere componere preparare propinare applicare aut
administrare aut ulla medicamenta composita aut compositiones
medicinales viz aquas distillatas compositas, vel olea chymica,
apozemeta, syrapos conservas eclegma, electuaria, condita medicinabilia,
pilulas, pulveres, trochiscos, olea, unguenta, emplastra ullo modo
divendere propalare edere exercere aut venditioni aliqui personæ vel
aliquibus personis quibuscunque exponere aliter quocunque modo arte
facultate sive myster’ Pharmacopol’ aut aliqua ejus parte uti aut
exercere infra septem miliaria ejusdem Civitat’ sub pena quinque
librarum pro quolibet mense quo hujusmodi persona sive persone artem &
myster’ Pharmacopol’ (ut prefertur) exerceat aut exerceant contra veram
intentionem harum Litter’ Paten’. Que quidem forisfactur’ & penalit’ per
districtionem vel per actionem debiti in nomine Custodis Junioris pro
tempore existen’ prosequi aut aliter in aliquibus Curiis nostris apud
Westm’ de tempore in tempus leventur & recuperentur dimidium inde ad
usum predict’ Magistri Custod’ & Societatis myster’ Pharmacopol’
capiend’ & applicand’.
Volumus eciam ac per presentes pro nobis heredibus & successoribus
nostris concedimus prefat’ Magistro Custod’ & Societati myster’
Pharmacopol’ Civitat’ London predict’ & successor’ suis quod nulla
persona sive persone quecunque officinam aut shopam Pharmacopol’ habeat
teneat aut instruat habeant instruant aut artem sive myster’
Pharmacopol’ exerceat aut exerceant aut quecunque medicamenta faciat
misceat condat componat preparet propinet applicat administret ant ulla
medicamenta composita aut compositiones ullo modo divendere propalare
edere exercere aut venundare alicui persone vel aliquibus personis
quibuscunque infra Civitatem London & libertat’ ejusdem aut infra septem
miliaria ejusdem Civitat’ nisi hujusmodi persona & persone per spatium
septem annorum ad minus ut Apprenticius vel Apprenticii cum aliquo vel
aliquibus Pharmacopol’ eandem artem exercen’ & libero homine ejusdem
mysterii existen’ educat’ instruat’ & edoct’ fuit vel fuerint. Et
postquam hujusmodi septem anni servicii sive Tyrocinii (ut prefertur)
fuerint elapsi & extract’ Quod tunc unusquisque talis Apprenticius coram
Magistro & Custod’ pro tempore existen’ appareat & presentetur. Ac per
eosdem Magistrum & Custod’ (advocat’ sibi Presdent’ Collegii seu
Communitat’ facultat’ medicine London pro tempore existen’ aut aliquo
medico aut aliquibus medicis per dictum Presidentem nominand’ & ad hoc
de tempore in tempus assignand’ si super monitionem inde fact’ tal pred’
medicus vel tal’ predicti Medici adesse voluerint vel voluerit &
advisament’ cum eodem vel eisdem habit’) circa cognitionem & electionem
Simplicium & circa medicament’ preparationem dispensationem tractationem
commixtionem & compositionem examenetur probetur tentetur ac per eosdem
Medicos Magistrum & Custodes spectatus & approbatus fuerit priusquam
officinam Pharmacopol’ habere tenere instruere aut medicamenta quecunque
preparare facere permiscere condere componere propinare administrare
propalare edere exercere divendere aut venditioni exponere aut aliter
quocunque modo artem Pharmacopoli aut aliquem ejusdem partem exercere
infra Civitatem London & libertat’ ejusdem aut infra septem miliaria
ejusdem Civitat’ presumat.
Ac ulterius de uberiori gratia nostra speciali & ex certa sciencia &
mero motu nostris pro meliori regimine & gubernatione omnium & singular’
personarum que modo exercent aut imposterum exercebunt artem sive
myster’ Pharmacopol’ Civitat’ London seu suburbia ejusdem vel infra
septem miliaria ejusdem Civitatis dedimus & concessimus ac per presentes
pro nobis heredibus & successoribus nostris damus & concessimus prefat’
Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London
predict’ & successor’ suis Quod Magist’ & Custod’ myster’ predict’ pro
tempore existen’ & successores sui de cetero imperpetuum plenam
potestatem & authoritatem habeant & habebunt de tempore in tempus capere
& habere supervis’ scrutinium examinationem gubernationem & correctionem
omnium & omnimod’ tam liberorum hominum quam alior’ quorumcunque uten’
sive exercen’ artem myster’ sive facultat’ Pharmacopol’ aut aliquam (ut
prefertur) ejusdem partem infra dictam Civitat’ nostram London libertat’
& suburbia ejusdem Civitat’ tam infra libertates quam extra ubi aliqua
persona uten’ sive exercen’ artem mysterium sive facultatem Pharmacopœie
aut aliquam ejusdem partem inhabitabit aut commorabit seu inhabitare &
commorare contigerit Quodque iidem Magist’ & Custod’ & eorum successores
aut eorum aliqui vel aliquis aut aliqui Assisten’ per Magistrum &
Custod’ nominand’ & assignand’ temporibus congruis & convenien’ ac modo
& forma convenien’ & legitim’ de tempore in tempus quoties iisdem
Magistro & Custodibus videbitur expedire ingredi & intrare possint &
valeant in aliquam vel aliquis officinam vel officinas shopam vel shopas
domum vel domos aliquar’ personar’ sive alicujus persone cujuscunque
uten’ sive exercen’ artem sive myster’ Pharmacopol’ aut aliquam ejusdem
partem infra Civitat’ London Suburbia & ejusdem libertat’ predict’ aut
infra septem miliaria ejusdem Civitat’ tam infra libertat’ quam extra
ubi aliqua medicamenta simplicia vel composita merces drogma recept’
aque distillat’ olea chymica syrupi conserve eclegmata electuar’ pilule
pulveres trochisci olea unguenta emplastra aut aliqua alia quecunque que
ad artem sive mysterium Pharmacopol’ (ut prefertur) pertinent sive
spectant probabiliter sive verisimiliter inveniri poterint Et ad
supervidend’ scrutinand’ & proband’ si eadem medicamenta simplicia vel
composita merces drogma recept’ aque distillat’ olea chymica syrupi
conserve eclegmata electuaria pilule pulveres trochisci olea unguenta
emplastra aut aliqua alia quecunque ad artem sive mysterium Pharmacopol’
predict’ pertinent’ sint aut erunt bona salubria medicinabilia apta &
idonea ad Curam salutem & relevamen subditor’ nostror’ Ac eciam quod
prefat’ Magister & Custod’ myster’ predict’ & Assisten’ predict’ pro
tempore existen’ ad hoc per Magistrum & Custod’ nominand’ & assignand’ &
successores sui de tempore in tempus plenam potestatem & authoritatem
habeant & virtute presentium habebunt ad examinand’ & proband’ omnes &
singulas personas profiten’ uten’ sive exercen’ aut qui imposterum
profitebuntur utentur aut exercebunt artem sive myster’ Pharmacopol’ aut
aliquam ejusdem partem infra predict’ Civitat’ London suburbia aut
libertates ejusdem aut infra septem miliaria ejusdem Civitat’ tam infra
libertates quam extra de & concernen’ eorum cujuslibet cognitione &
scientia in predit’ arte sive myster’ Pharmacopol’ Et ad omnes illos
quos imposter’ aut imperit’ inscient’ & insufficientes vel ad examinand’
vigore presentium obstinatos & repugnant’ in arte & myster’ predicto
invenient ab exercitio usu & pract’ myster’ sive artis predict’ amovend’
& prohibend’ Nec non ad omnia & singula medicamenta merces drogma
recept’ aquas distillat’ olea chymica syrupos conservas eclegmata
electuaria pilulas pulveres trochiscos olea unguenta & emplastra
ceteraque omnia & singula ad artem predict’ pertinentia que falsa
illegitima adulterat’ inveterat’ exoleta insalubria corrupta
immedicinabilia perniciosa aut nociva inveniunt ante delinquentium fores
comburend’ mulctamque eciam ac al’ penas & penalitat’ per fines &
amerciamenta in tales delinquentes statuant exponant & exequantur
secundum eorum sanas discretiones & ordinationes per ipsos & successores
suos sic (ut prefertur) fiend’ & constituend.’
Volentes ac per presentes pro nobis heredibus & successor’ nostris
firmiter injungend’ precipientes & mandentes omnibus & singulis
Majoribus Justiciar’ Ballivis Constabular’ & omnibus aliis officiar’
ministris & subditis nostris quibuscunque quod sint assistentes
auxiliantes & confortantes prefat’ Magistro Custod’ & Assistan’ myster’
& societates Pharmacopol’ predict’ & eorum cuilibet & successor’ suis ad
faciend’ gaudend’ habend’ & exequend’ ea omnia & singula per nos prefat’
Magistro Custod’ & Societati & Successor’ suis per has literas nostras
Paten’ concess’ & quamlibet sive aliquam inde partem & parcell’.
Et ulterius volumus ac per presentes de ampliori gratia nostra speciali
certa scientia & mero motu nostris pro nobis hered’ & successor’ nostris
concedimus prefat’ Magistro Custod’ & Societati myster’ Pharmacopol’
Civitat’ London predict’ & successor’ suis Quod ipsi prefati Magist’
Custodes & Societas myster’ Pharmacopol’ predict’ habeant teneant
retineant & gaudeant ac habere retinere & gaudere valeant & possint tot
tanta talia eadem hujusmodi & consimil’ Franches’ privilegia
consuetudines immunitates acquietan’ profima commoditates increment’
advantag’ & emolumenta quecunque in aromatibus Pharmacis Drogmis & aliis
rebus & materiis quibuscunque ad artem sive myster’ Pharmacopol’
spectan’ & pertinen’ emend’ mercand’ seu comparan’ quot’ quant’ qual’ &
que ac in tam amplis modo & forma prout antehac unquam habuerunt
tenuerunt & gavisi fuerunt aut habere gaudere & tenere aliquo modo
debuerunt quando cum predict’ liberis hominibus myster’ Grocer’
remanser’ ac unum Corpus corporatum & Politicum promiscue & indivisim
cum eisdem fecerunt & fuerunt.
Et ulterius volumus ac per presentes pro nobis heredibus & successor’
nostris concedimus & licentiam specialem liberamque & licitam facultat’
potestatem & authoritatem damus prefat’ Magistro Custod’ & Societati
mysterii sive artis Pharmacopol’ predict’ & successor’ suis habend’
recipiend’ & perquirand’ sibi & successor’ suis imperpetuum’ maner’
messuag’ terr’ tenementa prata pascua pastur’ boscos subboscos Rectorias
Decim’ reddit’ reversiones & alia hereditamenta quecunque infra regnum
nostrum Anglie seu alibi infra dominia nostra tam de nobis heredibus &
successor’ nostris quam de aliqua alia persona sive aliquibus aliis
personis quicunque (que de nobis hered’ & successor’ nostris non
tenentur immediate in Capite vel per servicium militare) dummodo eadem
maner’ messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’ subbosc’
Rector’ decim’ reddit’ reversion’ servic’ & hereditamenta sic per ipsos
habend’ recipiend’ & perquirend’ non excedant in toto clarum annuum
valorem quadragint’ librarum per ann’ ultra omnia onera & repris’
Statut’ de terr’ & tenementis ad manum mortuam non ponend’ aut aliquo
Statuto Actu Ordinatione vel Provisione antehac fact’ ordinat’ sive
provis’ aut aliqua alia re causa vel materia quacunque in contrarium
inde in aliquo modo non obstan’.
Damus eciam & per presentes pro nobis hered’ & successor’ nostris
concedimus cuicunque subdito nostro sive aliquibus subditis nostris
hered’ & successor’ nostrorum licentiam specialem liberamque & licitam
potestatem facultatem & authoritat’ Quod ipsi sive eorum aliquis sive
aliqui maner’ messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’
subbosc’ Rect’ decim’ reddit’ reversiones servicia & alia hereditamenta
quecunque que non tenentur de nobis hered’ & successor’ nostris
immediate in Capite vel aliter per servic’ militare prefatis Magistro
Custod’ & Societati mysterii predict’ & successor’ suis dare concedere
vendere legare vel alienare possint & valeant. Ita quod omnia predict’
Maner’ Messuag’ terr’ tenementa prat’ pasc’ pastur’ bosc’ subbosc’
Rector’ decim’ reddit’ reversiones servicia & alia hereditamenta sic
eisdem Magistro Custod’ & Societati myster’ & artis predict’ &
successor’ suis virtute presentium dand’ concedend’ legand’ vel
alienaud’ non excedant in toto clarum annuum valorem quadragint’
librarum per ann’ ultra omnia onera & repris’ Statut’ de terr’ &
tenement’ ad manum mortuam non ponend’ aut aliqua alia re causa vel
materia quacunque antehac habit’ fact’ edit’ ordinat’ sive provis’ in
contrarium inde in aliquo non obstant’.
Volumus eciam & per presentes pro nobis hered’ & successor’ nostris
concedimus prefatis Magistro Custod’ & Societati myster’ sive artis
Pharmacopol’ Civitat’ London’ predict’ & successor’ suis Quod prefat’
Magist’ Custod’ & Assisten’ pro tempore existen’ vel eorum successor’
vel major pars eorundem de cetero imperpetuum nominare & eligere possint
unum probum & idoneum virum qui erit & nominabitur Communis Clericus
Societatis predict’ Quodque talis Clericus antequam ad officium illud
exequend’ admittatur Sacramentum Corporale coram Magistro & Custod’
Societatis predicte pro tempore existen’ ad officium illud predictum
secundum ejus scienciam in omnibus illud tangen’ recte & fideliter
exequend’ prestabit. Et quod post hujusmodi Sacramentum sic prestitum
officium illud exerceat & utatur durante beneplacito Magistri Custod’ &
Assisten’ societatis predict’ pro tempore existen’ aut majoris partis
eorundem quorum Magist’ artis & myster’ predict’ pro tempore existen’
unum esse volumus.
Ac ulterius volumus ac per presentes pro nobis hered’ & successor’
nostris concedimus prefatis Magistro Custod’ & Societati myster’
Pharmacopol’ predict’ & successor’ suis quod prefat’ Magist’ Custodes &
Assistentes pro tempore existen’ & eorum successores vel major pars
eorundem de tempore in tempus de cetero nominare & eligere possint &
valeant unum aptem & idoneum hominem qui erit & nominabitur Bedell’
societatis predict’. Quodque talis Bedell’ sic (ut prefertur) electus &
nominat’ antequam ad officium illud exequend’ admittatur Sacramentum
Corporale coram Magistro & Custod’ Societatis predict’ pro tempore
existen’ ad officium illud predictum in omnibus illud tangen’ recte &
fideliter exequend’ prestabit. Et quod post hujusmodi Sacramentum sic
prestitum officium illud exerceat & teneat duran’ beneplacito Magistri
Custod’ & Assisten’ predict’ & Successor’ suor’ pro tempore existen’
(quorum Magistrum artis & myster’ predict’ pro tempore existen’ unum
esse volumus.)
Et denique volumus ac regiam nostram intentionem esse per presentes
declaramus quod he Litere nostre paten’ seu aliquod in eis non cedent in
prejudicium Presidentis & Collegii sive Communitatis Medicor’ Civitat’
London nec ad eorum Presidentis & Collegii sive Communitatis &
Successor’ suor’ Jurisdictionem authoritatem supervis’ aut correctionem
in Pharmac’ Civitat’ London tollend’ infringend’ aut dirimend’. Sed quod
iidem Presidens & Communitas Medicor’ omnesque & singuli medici de eodem
Collegio sive Communitate & Successores sui sicut & Medici Regis Regine
& Principum imposserum debeant & pro arbitrio suo possint artem medicam
in omnibus suis partibus exercere & insuper gaudebunt utentur & fruentur
& gaudere uti & frui valeant & possint eisdem & consimil’
Jurisdictionibus authoritat’ supervis’ & Correctionibus ac omnibus aliis
potestatibus privileg’ & libertat’ qualibus unquam antehac Pharmacopol’
usi & gavisi fuerunt & preterea generaliter omnibus aliis authoritatibus
privilegiis & potestatabus ipsis quandocunque vel quacunque de causa
antehac concess’ ratione vel pretextu aliquar’ Literar’ Paten’ per nos
seu per aliquos vel aliquem progenitor’ nostror’ aut ratione vel
pretextu alicujus Actus Parliament’ vel aliquor’ Actuum Parliamentor’
aut aliquo alio regali modo quocunque eisdem President’ & Collegio sive
Communitat’ Medicor’ & Successor’ suis dat’ concess’ seu confirmat’
Volumus nihilominus & ordinamus per presentes quod in quocunque casu
Presidens & Colleg’ habebunt gaudebunt & exercebunt consimilem
potestatem & authoritatem advocandi sibi Magistrum & Custodes
Pharmacopol’ predict’ Absque eo quod omnino licebit imposterum eisdem
Medicis aliquos myster’ Grocer’ predict’ advocare ad hujusmodi
scrutinium Aliquo in hujusmodi Statut’ in contrarium in aliquo non
obstant’. Proviso eciam quod he Litere nostre Patentes seu aliquod in
eisdem concess’ aut content’ non cedent in prejudicium Civitat’ nostre
London seu libertat’ ejusdem neque ullo modo derogabunt libertat’
Franches’ Regimin’ Jurisdiction’ aut consuetud’ ejusdem Civitatis.
Et denique volumus & intentionem nostram esse declaramus quod Chirurgi
experti & approbati eorum artem facultatem exercere possint omnesque &
singuli eorum practica sibi propria uti & frui valeant quantum ad
compositionem & applicationem medicamentor’ externor’ solumodo pertinet
& spectat. Ita tamen ut ea medicamenta minime vendant aut venditioni
aliis exponant secundum morem vulgarem Pharmacopol’ Civitat’ nostre
London Eo quod expressa mentio de vero valore annuo aut de certitudine
premissor’ sive eorum alicujus aut de aliis donis sive concessionibus
per nos seu per aliquem Progenitor’ vel Antecessor’ nostror’ prefat’
Magistro Custod’ & Societati myster’ Pharmacopol’ Civitat’ London
predict’ ante hec tempore fact’ in presentibus minime fact’ exist’ seu
aliquo Statuto Actu Ordinatione Provisione Proclamatione sive
Restrictione in contrarium inde antehac habit’ fact’ edit’ ordinat’ seu
provis’ aut aliqua alia re causa vel materia quacunque in aliquo non
obstant’. In cujus rei testimonium has Literas nostras fieri facimus
Patentes. Teste meipso apud Westm’ Tricessimo die Maii Anno Regni Nostri
Anglie Franc’ & Hibernie tertio decimo & Scocie quadragesimo octavo.
Per breve de privato sigillo.
CARTRIGHT.
NOTE. The e for æ in quæ &^c and the c for t in etiam &^c are so printed
in our original.
Royal Letter to the College of Physicians.
CHARLES R
Trusty & welbeloved wee greet you well
Whereas we have been informed That there are several pretended
Physicians & Doctors graduated in the Universitys beyond the Seas who by
indirect means endeavour to be received into that our Royal Colledge as
Honorary Fellows, without incorporation into either of our Universities
or previous Examination & approbation, according as it is expressly
required by y^e Statutes to y^e great prejudice of y^e ffellows of or
said Colledge & their Successors & of the Priveledges & immunityes
granted to them by or Royal predicessors & orself. Wee having taken the
same into or Royal Consideration have thought fit _to signifye or
pleasure_ to you, & doe accordingly _direct you_ not to admit any person
whatever as a Fellowe of the Society & to enjoy y^e priviledges of or
s^d Colledge that hath not had his Education in either of or
Universityes of Oxford or Cambridge kept his Act for D^r in Physick &
don his Exercises accordingly, or that is not encorporated & licenced
there haveing first taken the Oathes of Allegiance & Supremacy, &
haveing been by you afterward examined & approved of according to the
Statutes. And to the Intent this or pleasure may be the better observed
wee doe likewise _hereby require you_ to cause these or Letters to be
entered upon the Registe of or said Colledge & so wee bid you ffarewell,
Given at or Court at Whitehall Febr. 12^{th} 1674 in the 26^{th} year of
or Reighn.
T. WILLIAMSON.
To our trusty and well beloved the Lord Mayor of our City of _London_
for the time being and to the Deputy Lieutenants and Commissioners of
the Militia of London and Westminster that now are and hereafter shall
be, and to all other Officers and Ministers whom it may concern.
CHARLES R
Whereas in conformity to several Grants and Charters made by our
Royal Progenitors Kings of _England_ unto the College of Physicians in
our City of _London_, We have been pleased of our especial Grace and
favour to confirm all their ancient Privileges and humanities (with the
addition of some further Powers and Clauses for the regulation of that
faculty) by our Letters Patent bearing date the 26th of March in the
15th year of our Reign; Wherein amongst other things it is expresly
provided and by us granted that every Physician who is or shall be a
Member of the said College be free and exempt and discharged of and from
all Watch and Ward, and of and from bearing and providing Arms within
our Cities of _London_ and _Westminster_ or of either of them or within
7 miles compass thereof: We have thought fit hereby to acquaint you
therewith and with our pleasure thereupon; Willing and Requiring you in
your several Places and Stations to give effectual orders from time to
time that the said exemption from Watch and Ward and from bearing and
providing Arms be now and hereafter punctually observed in favour of the
Members of the said College within the limits aforesaid; And that you
suffer them not to be any wise molested on that behalf And for so doing
this shall be your Warrant. Given at our Court at _Whitehall_ the 28th
day of June 1665 in the seventeenth year of our Reign.
By his Majestie’s Command
WILLIAM MORICE.
College Questions resolved by the Lord Chancellor and Judges in the
fifth of King _James_ his Reign An. Dom. 1607
The Kings most Excellent Majesty having directed his Letters to the
Right honourable Thomas Lord Ellesmere, Lord Chancellor of England, and
to Sir John Popham Knight, Lord Chief Justice of England and one of his
Highnesses most honourable Privy Council, They the said Lord Chancellor
and Lord Chief Justice by virtue of the same Letters called unto them
Sir Thomas Fleminge Knight, then Lord Chief Baron of his Majesty’s Court
of Exchequer, Sir Thomas Walmesley & Sir Peter Warburton, Knights, two
of his Majesty’s Justices of the Court of Common Pleas, and Sir David
Williams and Sir Laurence Tanfield Knights two of his Majesties Justices
of the King’s Bench, and after due consideration had both of the Charter
of King Henry the eighth made unto the said President and College of
Physicians in the tenth year of his Reign, and several Acts of
Parliament thereof made, one in the fourteenth year of the same King,
and the other in the first year of Queen Mary, for the ordering and
governing of the said College and of all the Practisers in _London_ and
seven miles compass, did on the first of May 1607 at the house of the
said Lord Chancellor called _York_ House, resolve the several questions
hereafter mentioned, as is expressed under every Question.
Quest. 1. Whether Graduates of Oxford and Cambridge may practise in
_London_ or seven miles compass of the same without licence under the
said College Seal, by virtue of the clause in the end of the Statute of
14. H. 8. and whether that clause hath not relation to the Statute of 3.
H. 8. onely, or how far it doth extend?
Resp. All resolved, that no Graduate that is not admitted and licenced
by the President and College of Physicians under their Common Seal,
could practise in London or within 7 miles compass of the same.
Quest. 2. Whether, by Graduates, Graduates in Physick onely are to be
understood?——
Resp. They resolved That the exception in the Statute of 14. H. 8. cap.
5. of Graduates in the two Universities, is to be understood onely of
Graduates of Physick and of no others. And all resolved, That by that
exception those Graduates may practise in all other places of _England_
out of _London_ and 7 miles of the same without examination; But not in
_London_ nor within the said Circuit of 7 miles.
Quest. 3. If Graduates not admitted to practise in _London_ practise
there, whether, for evil practice or misdemeanor therein, they be not
subject to the Corporation and Government of the College?
Resp. They all agreed, That they are subject to the Government and
correction of the College by an express Clause of the said Charter
enacted which giveth to the President and College _Supervisionem
Scrutinium, Correctionem & Gubernationem_ as well of all persons using
the practise of Medicine within the City &c.
Quest. 4. If they may not practise without admission of the College (as
their Letters Patents plainly import) Then whether such Graduates are
not subject to the examination, without which there were never any
admitted; and without which the admission cannot be approved; because
every Graduate is not absolutely good _ipso facto_?
Resp. It was resolved by all That all that practised or should practise
Physick either in _London_ or within the compass of seven miles of the
same, must submit themselves to the examination of the President and
College if they be required thereunto by their authority notwithstanding
any licence, allowance or privilege given them in _Oxford_ or
_Cambridge_ either by their degree or otherwise.
Concerning Punishment & Correction against Offenders.
Quest. 1. Whether the President and four Censors together, or the
Censors alone may not commit to Prison without bail or mainprize all
Offenders in the Practice of Physick according to the Statute of _primo
Mariæ_ and how long, whether till he have paid such Fine as shall be
assessed upon him, or have submitted himself to their Order, and in what
manner?——
Resp. They all resolved, That for not well doing using or practising the
faculty or Art or Physick or for disobedience or contempts done and
committed against any Ordinance made by the College, by virtue and
according to the power and authority to them granted, they may commit
the Offenders without bail or mainprize, as the words of the Statute
are. Which they all resolved, would not be altered or interpreted
otherwise than the express words of the Statute are.
Quest. 2. Whether they may not commit to prison for disobedience and
contempt of the private Statutes and Ordinances of the College made for
the better Government thereof, and for not payment of such reasonable
fines as shall be imposed by the President and Censors for maintenance
of the said College, among the Members of the same College?
Resp. They all resolved, That the President and College might commit to
prison for offences and disobedience done and committed against any
lawfull Ordinance made by the said College, and might impose reasonable
fines for the breach thereof, and detain the parties committed till
these fines were satisfied.
Quest. 3. Whether they may not justly take upon every admission a
reasonable sum of money for the better maintenance and defraying of
necessary expences, as in other Corporations?
Resp. They all held That they might take such reasonable sums.
Quest. 4. Whether those onely are to be committed that are Offenders in
_Non bene exequendo, faciendo & utendo facultate Medicinæ_, as in the
Letters Patents; and such as are sufficient and not admitted, are to be
sued for 5 li. a month and not be committed?
Resp. They all held That by the Charter and Acts of Parliament they
might commit Offenders and Practisers that offended in _non bene
exequendo faciendo et utendo facultate_: But for the committing to
prison of such as practise (not being admitted by the College) they held
it doubtful, for that the Charter and Statute do in that case inflict a
punishment of 5 li. a month against such practiser without admittance by
the College. But they all resolved, That if the President and College
made an Ordinance to prohibit the practising of all without admittance
under the common Seal of the said College, That for breach and contempt
of this Ordinance, the President and College might both impose a
reasonable fine upon the Offender and commit him without bail or
mainprize.
Quest. 5. Whether refusal to come to be examined upon warning given be
not a sufficient cause of Commitment?
Resp. They all resolved, That if the College do make an Ordinance, That
if any Practiser of Physick in _London_ or within 7 miles of the same
shall obstinately refuse to be examined by the Censors of the College
_in non bene exequendo faciendo & utendo_ the Art of Physick in his
Medicines or Receipts that the said President or Censors may commit him
to prison, there to remain without bail or mainprize, untill he be
delivered by the President and Censors and to forfeit and pay to the
said College some reasonable sum of money, That the same Ordinance will
be good and lawfull. And if any after shall offend contrary to the said
Ordinance, the President and Censors may lawfully commit such Offender
to prison, there to remain without bail or mainprize untill he shall be
delivered by the said President and Censors.
It pleased the Lord Chancellor to move these Questions to the Judges as
material for the execution of the Statutes.
1 Quest. Whether the party committed for unskilful or temerarious
practice may have an action of false imprisonment against them, and
thereby draw in question or issue the goodness or badness of the
Physick?
Resp. All resolved, That the Party so committed was concluded by the
sentence and judgement of the 4 Censors of the College of Physicians.
2 Quest. Whether if any not admitted do practise Physick within London
or 7 miles of the same but once twice or thrice in one month, be an
Offender against the Charter and Statutes of the College?
Resp. All resolved it was, if he be a professed Physician.
These I conceive to be the resolutions of their Lordships and the
Judges upon the Questions which I humbly refer to themselves to
affirm or disaffirm
John Crook
Tho. Foster
Tho. Harries
(from Goodall’s Collection, p. 276).
CASES.
DR. BONHAM’S CASE.[111]
(_From_ 8 _Co. Rep._ 114.)
_Hil._ 7 _Jac._ 1.
THOMAS BONHAM, doctor in philosophy and physic, brought an action of
false imprisonment against Henry Atkins, George Turner, Thomas
Moundford, and John Argent, doctors in physic, and John Taylor, and Wm.
Bowden yeomen; for that the defendants, the 10 Nov. _anno_ 4 _Jacobi_,
did imprison him, and detain him in prison seven days. The defendants
pleaded the letters patent of King H. 8. bearing date the 23 Septemb.
_anno_ 10 of his reign, by which he recites, [112]_Quod cum Regii
officii sui, &c._ (_quod vide ante p._ 7.) But the case at bar doth
principally consist on two clauses in the charter. The first,
_concessimus etiam eisdem presidenti, &c._ (_quod vide ante p._ 10). The
second clause is, which immediately follows in these words, _præterea
voluit, &c._ (_quod vide ante p._ 10.) And afterwards, by act of
Parliament made _anno_ [113]14 H. 8. it was enacted, that the said
corporation, and every grant, article, and other things in the said
letters patent contained and specified, should be approved, granted,
ratified, and confirmed, &c. _in tam amplo & largo modo prout poterit
acceptari, cogitari, et construi per easdem literas patentes_. And
further it was enacted, that the said six persons named in the said
letters patent, as principal of the said college, should elect to them
two other of the said college, who should be named _electi_, and that
the said elects should chose one of them to be president, as by the said
act appears: and further, they pleaded the act of [114]1 _Mariæ_, by
which it is enacted, _Quod quædam concessio, &c._ And further it was
enacted, “That whensoever the president of the college, or commonalty of
the faculty of physic at London for the time being, or such as the said
president and college shall yearly, according to the tenor and meaning
of the said act, authorize to search, examine, correct, and punish all
offenders and transgressors in the said faculty, &c. shall send or
commit any such offender or offenders for his or their offence or
disobedience, contrary to any article or clause contained in the said
grant or act, to any ward, gaol, or prison, &c.” (see p. 26.) And
further pleaded, that the said Thomas Bonham, 10 April, 1606, within
London, against the form of the said letters patent, and the said acts,
_exercebat artem medicinæ, non admissus per literas præd’ presidentis &
collegii sigillo eorum communi sigillat’ ubi revera præd’ Tho. Bonham
fuit minus sufficiens ad artem medicinæ exercend’_. By force of which,
the said Thomas Bonham, 30 _Aprilis_ 1606, was summoned in London by the
censors or governors of the college, _ad comparend’ coram præsiden’ &
censor’ sive gubernatorib’ collegii præd’_ at the college, &c. the 14th
day of April next following, _super præmissis examinand’_. At which day
the said Tho. Bonham came before the president and censors, and was
examined by the censors _de scientiâ suâ in facultate suâ in medicin’
administrand’. Et quia præd’ Thomas Bonham sic examinatus minus apte &
insufficienter in præd’ arte medicinæ respondebat, & inventus fuit super
examinationem præd’ per præed’ præsident’ censores minus insufficiens &
inexpert’ ad artem medicinæ administrand’ ac pro eo quod præd’ Tho.
Bonham multoties ante tunc examinatus, & interdictus per præsident’ &
censores, de causis præd’ ad artem medicinæ administrand’ per unum
mensem et amplius post talem interdictionem facultatem illam in Lond’
præd’ sine licentia, &c. ideo adtunc & ibid’ consideratum fuit per præd’
præsident’ censores, quod præd’ Thomas Bonham pro inobedientia et
contempt’ suis præd’ amerciaretur to 100s. in proximis comitiis præd’
præsident’ et collegii persolvend’ et deinceps abstineret, &c. quousque
inventus fuerit sufficiens, &c. sub pœna conjiciendi in carcerem si in
præmissis delinqueret_. And that the said T. Bonham, 20 Octo. 1606,
within London did practice physic, and the same day he was summoned by
the censors to appear before the president and them, 22 Octob. then next
following, at which day Bonham made default: _ideo consideratum fuit per
præd’ censores_, that for his disobedience and contempt he should be
amerced to 10l. and that he should be arrested and committed to custody;
and afterward, 7 Nov. 1606, the said T. Bonham, at their assembly came
before the president and censors, and they asked him if he would satisfy
the college for his disobedience and contempt, and submit himself to be
examined, and obey the censure of the college, who answered, that he had
practised and would practise physic within London, _nulla a collegio
petita venia_, and that he would not submit himself to the president and
censors, and affirmed, that the president and censors, had no authority
over those who were doctors in the university; for which cause, the said
four censors, _sc._ Dr. Turner, Dr. Moundford, Dr. Argent, and Dr. Dun,
then being censors or governors, _pro offensis et inobedientia præd’
adtunc & ib’ ordinaverunt & decreverunt, quod præd’ T. Bonham in
carcerem mandaretur ib’ remansur’ quousque abinde per præsident’ &
censores, seu gubernatores collegii præd’ pro tempore existen’
deliberaretur_, and there then by their warrant in writing, under their
common seal, did commit the plaintiff to the prison of the Compter of
London, &c. _absque ballio sive manucapt’ ad custagia & onera ipsius T.
Bonham, donec præd’ T. Bonham per præcept’ præsiden’ & censor’ collegii
præd’ sive successor’ suor’ liberatus esset_; and Dr. Atkins then
president, and the censors, and Bowden and Taylor as their servants and
by the commandment of the said president and censors, did carry the
plaintiff with the warrant, to the gaol, &c. which is the same
imprisonment. The plaintiff replied and said, that by the said act of 14
H. 8. it was further enacted, “And where that in the dioceses of
England, out of London, it is not like to find alway men able
sufficiently to examine (after the statute) such as shall be admitted to
exercise physic in them, that it may be enacted in this present
Parliament, that no person from henceforth be suffered to exercise or
practise physic through England, until such time that he be examined at
London by the said president and three of the said elects, and to have
from them letters testimonial of their approving and examination, except
he be a graduate of Oxford or Cambridge, which have accomplished all
things for his form without any grace;” and that the plaintiff, _anno
Dom._ 1595, was a graduate, _sc._ a doctor in the university of
Cambridge, and had accomplished all things concerning his degree for his
form without [115]grace, by force whereof he had exercised and practised
physic within the city of London until the defendants had imprisoned
him, &c. upon which the defendant demurred in law. And this case was
often argued by the Serjeants at bar in divers several terms; and now
this term the case was argued by the Justices, and the effect of their
arguments who argued against the plaintiff (which was divided into three
parts) shall be first reported. The first was, whether a doctor of
physic of the one university or the other, be by the letters patent, and
by the body of the act of 14 H. 8. restrained from practising physic
within the City of London, &c. The second was, if the exception in the
said act of [116]14 H. 8. has excepted him or not. The third was, that
his imprisonment was lawful for his said disobedience. And as to the
first, they relied upon the letter of the grant, ratified by the said
act of 14 H. 8. which is in the negative, _sc. nemo in dictâ civitate,
&c. exerceat dictam facultatem nisi ad hoc per prædict’ præsidentem &
communitatem, &c. admissus sit, &c._ And this proposition is a general
negative, but [117]_generale dictum est generaliter intelligendum_; and
_nemo_ excludes all; and therefore a doctor of the one university or the
other, is prohibited within this negative word _nemo_. And many cases
were put where negative statutes shall be taken _stricte et exclusive_,
which I do not think necessary to be recited here. Also they said, that
the statute of [118]3 H. 8. c. 11. which in effect is repealed by this
act of [119]14 H. 8. has a special proviso for the universities of
Cambridge and Oxford, which being here left out, doth declare the
intention of the makers of the act, that they did intend to include them
within this general prohibition, _nemo in dictâ civitate, &c._ As to the
second point they strongly held, that the said latter clause, “and where
that in the dioceses of England, out of London,” &c. this clause,
according to the words, extends only to places out of London, and so
much the rather, because they provided for London before, _nemo in dictâ
civitate, &c._ Also the makers of the act put a distinction betwixt
those who shall be licensed to practise physic in London, &c. for they
ought to have the admittance and allowance of the president and college
in writing, under their common seal; but he who shall be allowed to
practise physic throughout England, out of London, ought to be examined
and admitted by the president and three of the elects, and so they said,
that it was lately adjudged in the King’s Bench, in an information
exhibited against the said Dr. Bonham for practising physic in London
for divers months. As to the third point they said, that for his
contempt and disobedience before them at their assembly in their
college, they might well commit him to prison for they have authority by
the letters patent and act of Parliament, and therefore for a contempt
or misdemeanor before them they may commit him. Also the act of [120]1
M. has given them power to commit them for every offence or disob.
contrary to any article or clause contained in the said grant or act.
But there is an express negative article in the said grant, and ratif.
by the act of 14 H. 8. _Quod nemo in dictâ civitate, &c. exerceat, &c._
and the defendants have pleaded, that the plaintiff had practised physic
in London by the space of one month, &c. and therefore the act of 1
_Mariæ_ has authorised them to imprison him in this case; wherefore they
concluded against the plaintiff. But it was argued by Coke Chief
Justice, Warburton and Daniel Justices of the Common Pleas, to the
contrary. And Daniel Justice conceived, that a doctor of physic, of the
one university or the other, &c. was not within the body of the act, and
if he was within the body of the act, that he was excepted by the said
latter clause; but Warburton argued against him for both the points; and
the Chief Justice did not speak to those two points, because he and
Warburton and Daniel agreed, that this action was clearly maintainable
for two other points, and therefore in this action the Chief Justice
omitted to speak to the said two points; but to two other points, he and
the said two other Justices, Warburton and Daniel, did speak, _sc._ 1.
Whether the censors have power, for the causes alledged in their bar, to
fine and imprison the plaintiff. 2. Admitting that they have power to do
it, if they had pursued their power. But the Chief Justice, before he
argued the points in law, because much was said in commendation of the
doctors of physic of the college in London, and somewhat (as he
conceived) in derogation of the dignity of the doctors of the
universities, he first attributed much to the doctors of the said
college in London, and confessed that nothing was spoke in their
commendation which was not due to their merits: but yet that no
comparison was to be made between that private college, and either of
the universities of Cambridge and Oxford, no more than between the
father and his children, or between the fountain and the small rivers
which descend from it; the university is _alma [121]mater_, from whose
breasts those of that private college have sucked all their science and
knowledge (which I acknowledge to be great and profound) but the law
saith, _erubescit lex filios castigare parentes_: the university is the
fountain, and that and the like private colleges are _tanquam rivuli_,
which flow from the mountain, _et melius est petere fontes quam sectari
rivulos_. Briefly, _Academiæ [122]Cantabrigiæ & Oxoniæ sunt Athenæ
nostræ nobilissimæ, regni soles, oculi & animæ regni, unde religio,
humanitas, et doctrina in omnes regni partes uberrimè diffunduntur_: but
it is true, _nunquam sufficiet copia laudatoris, quia nunquam deficiet
materia laudis_; and therefore these universities exceed and excel all
private colleges, _quantum inter virburna cupressus_. And it was
observed that K. H. 8. in his said letters patent and the K. and the
Parliam. in the act of 14 H. 8. in making of a law concern. physicians,
for the more safety and health of men, therein follow the order of a
good physician (_Rex [123]enim omn’ artes censetur habere in scrinio
pect’ sui_) for, _medicina est duplex, removens, [124]& promovens;
removens morbum, & promovens ad salutem_: and therefore five manner of
persons (who more hurt the body of man than the disease itself, one of
which said of one of their patients, _fugiens morbum incidit in
medicum_) are to be removed; 1. _Improbi._ 2. _Avari, qui medicinam
magis [125]avaritiæ suæ causa quam ullius bonæ conscientiæ fiducia
profitentur._ 3. _Malitiosi._ 4. _Temerarii._ 5. _Inscii._ And of the
other part five manner of persons were to be promoted, as appears by the
said act, _sc._ those who were, 1. profound. 2. sad. 3. discreet. 4.
groundly learned. 5. profoundly studied. And it was well ordained, that
the professors of physic should be profound, sad, discreet, &c. and not
youths, who have no gravity and experience; for as one saith, [126]_In
juvene theologo conscientiæ detrimentum, in juvene legista bursæ
detrimentum in juvene medico cœmiterii incrementum._ And it ought to be
presumed, every doctor of any of the universities to be within the
statutes, _sc._ to be profound, sad, discreet, groundly learned, and
profoundly studied, for none can there be master of arts (who is a
doctor of philosophy) under the study of seven years, and cannot be
doctor in physic under seven years more in the study of physic; and that
is the reason that the plaintiff is named in the declaration doctor of
Philosophy, and doctor of physic; _quia oportet medicum esse
philosophum, [127]ubi enim philosophus desinit, medicus incipit_: as to
the two points upon which the Chief Justice, Warburton and Daniel, gave
judgment. 1. It was resolved by them, that the said censors had not
power to commit the plaintiff for any of the causes mentioned in the
bar; and the cause and reason thereof shortly was, that the said clause,
which gives power to the said censors to fine and imprison, doth not
extend to the said clause, _sc. quod nemo in dictâ civitate_, &c.
_exerceat dictam facultatem, &c._ which prohibits every one from
practising physic in London, &c. without licence from the president and
college; but extends only to punish those who practise physic in London,
_pro delictis suis in non bene [128]exequendo, faciendo & utendo
facultate medicinæ_, by fine and imprisonment: so that the censors have
not power by the letters patent, and the act, to fine and imprison any
for practising physic in London, but only _pro delictis suis in non bene
exequendo, &c. sc._ for ill, and not good use and practice of physic.
And that was made manifest by five reasons, which were called _vividæ
rationes_, because they had their vigour and life from the letters
patent, and the act itself; and the best [129]expositor of all letters
patent, and acts of Parliament, are the letters patent and the acts of
Parliament themselves, by construction, and conferring [130]all the
parts of them together, [131]_Optima statuti interpretatrix est (omnibus
particulis ejusdem inspectis) ipsum statutum_; and [132]_injustum est
nisi tota lege inspecta una aliqua ejus particula proposita judicare vel
respondere_. The first reason was, that these two were two absolute,
perfect, and distinct clauses, and as parallels, and therefore the one
did not extend to the other; for the second begins, _præterea voluit et
concessit, &c._ and the branch concerning fine and imprisonment is
parcel of the 2d clause. 2. The first clause prohibiting the practice of
physic, &c. comprehends four certainties: 1. Certainty of the thing
prohibited, _sc._ practice of physic. 2. Certainty of the time, _sc._
practice for one month. 3. Certainty of penalty, _sc._ 5l. 4. Certainty
in distribution, _sc._ one moiety to the King, and the other moiety to
the college, and this penalty he who practises physic in London incurs,
although he practises and uses physic well, and profitable for the body
of man; and on this branch the information was exhibited in the King’s
Bench. But the clause to punish _delicta in non bene exequendo, &c._ on
which branch the case at bar stands, is altogether uncertain, for the
hurt which may come thereby may be little or great, _leve vel grave_,
excessive or small, &c. and therefore the King and the makers of the act
could not, for an offence so uncertain, impose a certainty of the fine,
or time of imprisonment, but leave it to the censors to punish such
offences, _secundum quantitatem delicti_, which is included in these
words, _per fines, amerciamenta, imprisonamenta corporum suorum, et per
alias vias rationibiles et congruas_. 2. The harm which accrues by _non
bene exequendo, &c._ concerns the body of man; and therefore it is
reasonable that the offender should be punished in his body, sc. by
imprisonment; but he who practises physic in London in a good manner,
although he doth it without licence, yet it is not any prejudice to the
body of man. 3. He who practises physic in Lon. doth not offend the
statute by his practice, unless he practises it by the space of a month.
But the clause of _non bene exequendo, &c._ doth not prescribe any
certain time, but at what time soever he ministers physic _non bene,
&c._ he shall be punished by the said second branch: and the law hath
great reason in making this distinction, for divers nobles,
[133]gentlemen, and others, come upon divers occasions to London, and
when they are here they become subject to diseases, and thereupon they
send for their physicians in the country, who know their bodies, and the
cause of their diseases; now it was never the meaning of the act to bar
any one of his own physician; and when he is here he may practise and
minister to another by two or [134]three weeks, &c. without any
forfeiture; for any one who practises physic _bene, &c._ in London
(although he has not taken any degree in any of the universities) shall
forfeit nothing, unless he practises it by the space of a month; and
that was the reason that the time of a month was put in the act. 4. The
censors cannot be [135]judges, ministers, and parties; judges to give
sentence or judgment; ministers to make summons; and parties to have the
moiety of the forfeiture, _quia [136]aliquis non debet esse Judex in
propriâ causâ, imo iniquum est aliquem suæ rei esse judicem_; and one
cannot be judge and attorney for any of the parties, Dyer 3 E. 6. 65. 38
E. 3. 15. 8 H. 6. 19. b. 20. a. 21 E. 4. 47. a. &c. And it appears in
our books, that in many cases, the common law will [137]controul acts of
Parliament, and sometimes adjudge them to be utterly void: for when an
act of Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will controul it, and adjudge
such act to be void: and therefore in 8 E. 3. 30. a. b. Thomas Tregor’s
case on the statute of W. 2. c. 38. & _artic’ super chartas_, c. 9.
Herle [138]saith, some statutes are made against law and right, which
those who made them perceiving, would not put them in execution: the
stat. of W. 2. [139]c. 21 gives a writ of _Cessavit hæredi petenti super
hæredem tenent’ & super eos quibus alienatum fuerit hujusmodi
tenementum_: and yet it is adjudged in 33 E. 3. [140]_Cessavit_ 42.
where the case was, two coparceners lords, and tenant by fealty and
certain rent, one coparcener had issue and died, the aunt and the niece
shall not join in a _Cessavit_, because the heir [141]shall not have a
_Cessavit_ for the cesser in the time of his ancestor, F. N. B. 209. F.
and therewith agrees Plow. Com. 110. a. and the reason is, because in a
_Cessavit_ the tenant before judgment may render the arrearages and
damages, &c. and retain his land, and that he cannot do when the heir
brings a _Cessavit_ for the cesser in the time of his ancestor, for the
arrearages incurred in the life of the ancestor do not belong to the
heir: and because it would be against common right and reason, the
common law adjudges the said act of Parliament as to that point void.
The statute of [142]Carlisle, made _anno_ 35 E. 1. enacts, that the
order of the Cistercians and Augustines, who have a convent and common
seal, that the common seal shall be in the keeping of the Prior, who is
under the Abbot, and four others of the most grave of the house, and
that any deed sealed with the common seal, which is not so in keeping
shall be void: and the opinion of the court (_in an._ 27 H. 6. Annuity
41.) was, that this statute was [143]void, for it is impertinent to be
observed, for the seal being in their keeping, the Abbot cannot seal any
thing with it, and when it is in the Abbot’s hands, it is out of their
keeping _ipso facto_; and if the statute should be [144]observed, every
common seal shall be defeated upon a simple surmise, which cannot be
tried. Note reader the words of the said statute at Carlisle, _anno_ 35
E. 1. (which is called _Statutum religiosorum_) are, _Et insuper
ordinavit dominus Rex & statuit, quod Abbates Cisterc’ & Præmonstraten’
ordin’ religiosorum, &c. de cætero habeant sigillum commune, et illud in
custodia Prioris monasterii seu domus, et quatuor de dignioribus et
discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius
loci custod’ depo, &c. Et si forsan aliqua scripta obligationum,
donationum, emptionum, venditionum, alienationum, seu aliorum
quorumcunque, contractuum alio sigillo quam tali sigillo, communi sicut
præmittit’ custodit inveniant’ a modo sigillat’, pro nullo penitus
habeantur omnique careant firmitate._ So the statute of 1 E. 6. c. 14.
gives chauntries, &c. to the King, saving to the donor, &c. all such
rents, services, &c. and the common law controuls it, and adjudges it
void as to services, and the donor shall have the rent, as a rentseck,
distrainable of common right, for it would be against common right and
reason that the [145]King should hold of any, or do service to any of
his subjects, 14 Eliz. Dyer 313. and so it was adjudged Mich. 16 & 17
Eliz. in _Com’ Banco_ in [146]Strowd’s case. So if any act of Parliament
gives to any to hold, or to have conusans of all manner of pleas arising
before him within his manor of D. yet he shall hold no plea, to which he
himself is party; for, as hath been said, _iniquum est aliquem suæ rei
esse judicem_. 5. If he should forfeit 5l. for one moiety by the first
clause, and should be punished for practising at any time by the second
clause, two absurdities should follow, 1. That one should be punished
not only twice but many times for one and the same offence. And the
divine saith, _Quod [147]Deus non agit bis in idipsum_; and the law
saith, _Nemo debet bis puniri pro uno delicto_. 2. It would be absurd,
by the first clause, to punish practising for a month, and not for a
lesser time, and by the second to punish practising not only for a day,
but at any time, so he shall be punished by the first branch for one
month by the forfeit of 5l. and by the second by fine and imprisonment,
without limitation for every time of the month in which he practises
physic. [148]And all these reasons were proved by two grounds, or maxims
in law; 1. [149]_Generalis clausula non porrigitur ad ea quæ specialiter
sunt comprehensa_: and the case between Carter and [150]Ringstead, Hil.
34 Eliz. Rot. 120. _in Communi Banco_, was cited to this purpose, where
the case in effect was, that A. seized of the manor of Staple in Odiham
in the county of Southampton in fee, and also of other lands in Odiham
aforesaid in fee, suffered a common recovery of all and declared the use
by indenture, that the recoverer should stand seised of all the lands
and tenements in Odiham, to the use of A. and his wife, and to the heirs
of his body begotten; and further, that the recoverer should stand
seised to the use of him, and to the heirs of his body, and died, and
the wife survived, and entered into the said manor by force of the said
general words; but it was adjudged, that they did not extend to the said
manor which was specially named: and if it be so in a deed, _a
fortiori_, it shall be so in an act of Parliament, which (as a will) is
to be expounded according to the intention of the makers. 2. [151]_Verba
posteriora propter certitudinem addita ad priora quæ certitudine
indigent sunt referenda._ 6 E. [152]3. 12. a. b. Sir Adam de Clydrow
Knight, brought a _Præcipe quod reddat_ against John de Clydrow, and the
writ was, _Quod juste, &c. reddat manerium de Wicomb et duas carucatas
terræ cum pertinentiis in Clydrow_, in that case the town of Clydrow
shall not relate to the manor, _quia non indiget_, for a manor may be
demanded without mentioning that it lies in any town, but _cum
pertinentiis_, although it comes after the town, shall relate to the
manor, _quia indiget._ _Vide_ 3 E. 4. 10. the like case. But it was
objected, that where by the second clause it was granted, that the
censors should have _supervisum et scrutinium, correctionem et
gubernationem omnium et singulorum medicorum, &c._ they had power to
fine and imprison. To that it was answered, 1. That _that_ is but part
of the sentence, for by the entire sentence it appears in what manner
they shall have power to punish, for the words are, _ac punitionem eorum
pro delictis suis in non bene exequendo, faciendo, vel utendo illa
facultate_; so that without question all their power to correct and
punish the physicians by this clause is only limited to these three
cases, _sc. in non bene exequendo, faciendo, vel utendo, &c._ Also this
word _punitionem_, is limited and restrained by these words, _ita quod
punitio eorundem medicorum, &c. sic in præmissis delinquentium, &c._
which words, _sic in præmissis delinquentium_, limit the former words in
the first part of this sentence, _ac punitionem eorum pro delictis suis
in non bene exequendo, &c._ 2. it would be absurd, that in one and the
same sentence the makers of the act should give them a general power to
punish without limitation; and a special manner how they shall punish,
in one and the same sentence. 3dly, Hil. 38 Eliz. in a _Quo warranto_
against the Mayor and Commonalty of London, it was held, that where a
grant is made to the Mayor and Commonalty, that the Mayor for the time
being should have [153]_plenum et integrum scrutinium, gubernationem, et
correctionem omnium et singulorum mysteriorum, &c._ without granting
them any court, in which should be legal proceedings, that it is good
for search, whereby a discovery may be made of offences and defects,
which may be punished by the law in any court, but it doth not give, nor
can give them any irregular or absolute power to correct or punish any
of the subjects of the kingdom at their pleasure. 2. It was objected,
that it is incident to every court created by letters patent, or act of
Parliament, and other courts of record, to punish any misdemeanor done
in court, in disturbance or contempt of the court, by imprisonment. To
which it was answered, that neither the letters patent nor the act of
Parliament has granted them any court, but only an [154]authority, which
they ought to pursue, as it shall be afterwards said. 2. If any court
had been granted them, they could not by any incident authority
_implicitè_ granted them, for any misdemeanor done in court, commit him
to prison without bail or mainprize, until he should be by the
commandment of the president and censors, or their successors,
delivered, as the censors have done in this case. 3. There was not any
such misdemeanor for which any court might imprison him, for he only
shewed his case to them, which, he was advised by his counsel, he might
justify, which is not any offence worthy of imprisonment. The second
point was, admitting that the censors had power by the act, if they had
pursued their authority, or not? And it was resolved by the Chief
Justice, Warburton and Daniel, that they had not pursued it for six
reasons. 1. By the act, the censors only have power to impose a fine, or
amerciament; and the president and censors imposed the amerciament of
5l. upon the plaintiff. 2. The plaintiff was summoned to appear _coram
presidente et censoribus, &c. et non comparuit_, and therefore he was
fined 10l. whereas the president had no authority in that case. 3. The
fines or amerciaments to be imposed by them, by force of the act, do not
belong to them, but to the King, for the King had not granted the fines
or amerciaments to them, and yet the fine is appointed to be paid to
them, _in proximis comitiis_, and they have imprisoned the plaintiff for
non-payment thereof. 4. They ought to have committed the plaintiff
presently, by construction of law, although that no time be limited in
the act, as in the statute of W. 2. cap. 11 [155]_De servientibus,
ballivis, &. qui ad compotum reddend’ tenentur, &c. cum dom’ hujusmodi
servientium dederit eis auditores compoti, et contingat ipsos in
arrearagiis super compotum suum omnibus allocatis et allocandis,
arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti
mittantur et liberentur proximæ gaolæ domini Regis in partibus illis,
etc._ In that case, although no time be limited when the accomptant
shall be imprisoned, yet it ought to be done [156]presently, as it is
held in 27 H. 6. 8. a. and the reason thereof is given in Fogassa’s
case, Plowd. Com. 17. b. that the generality of the time shall be
restrained to the present time, for the benefit of him upon whom the
pain shall be inflicted, and therewith agrees Plow. Com. 206. b. in
Stradling’s case. And a Justice [157]of Peace upon view of the force,
ought to commit the offender presently. 5. Forasmuch as the censors had
their authority by the letters patent and act of Parliament, which are
high matters of record, their proceedings ought not to be by parol, _&
eo potius_, because they claim authority to fine and imprison, and
therefore, if judgment be given against one in the Common Pleas in a
writ of [158]recaption, he shall be fined and imprisoned, but if the
writ be vicontiel in the county, there he shall not be fined nor
imprisoned, because a writ of the court is not of record, F. N. B. in
Recaption; so in F. N. B. 47. a. a plea of trespass _vi et armis_ doth
not lie in the county court, hundred court, &c. for they cannot make a
record of fine and imprisonment; and regularly they who cannot make
[159]a record, cannot fine and imprison. And therewith agrees 27 H. 6.
8. Book of Entries, tit. Account, fol. —. The auditors make a record
when they commit the defendant to prison; a Justice of Peace upon view
of the force may commit, but he ought to make a record of it. 6.
Forasmuch as the act of 14 H. 8. has given power to imprison till he
shall be delivered by the president and the censors, or their
successors, reason requires that it should be taken strictly, for the
liberty of the subject (as they pretend) is at their pleasure: and this
is well proved by a judgment in Parliament in this very case; for when
this act of 14 H. 8. had given the censors power to imprison, yet it was
taken so literally, that the gaoler was not bound to receive such as
they should commit to him, and the reason thereof was, because they had
authority to do it without any court: and thereupon the statute of 1 Ma.
[160]cap 9. was made, that the gaoler should receive them upon a
penalty, and yet none can commit any to prison, unless the gaoler
receives him: but the first act, for the cause aforesaid, was taken so
literally, that no necessary incident was implied. And where it was
objected, that this very act of 1 _Mar._ cap. 9. has enlarged the power
of the censors, and they urged it upon the words of the act; it was
clearly resolved, that the said act of 1. _Mar._ did not enlarge the
power of the censors to fine or imprison any person for any cause for
which he ought not to be fined and imprisoned by the said act of
[161]14. H. 8. For the words of the act of Queen Mary are, “according to
the tenor and meaning of the said act:” also “shall send or commit any
offender or offenders for his or their offence or disobedience, contrary
to any article or clause contained in the said grant or act, to any
ward, gaol, &c.” But in this case Bonham has not done any thing which
appears within this record, contrary to any article or clause contained
within the grant or act of 14 H. 8. Also the gaoler who refuses shall
forfeit the double value of the fines and amerciaments that any offender
or disobedient shall be assessed to pay; which proves that none shall be
received by any gaoler by force of the act of 14 H. 8. but he who may be
lawfully fined or amerced by the act of 14 H. 8. and that was not
Bonham, as by the reasons and causes aforesaid appears. And admitting
that the replication be not material, and the defendants have demurred
upon it; yet forasmuch as the defendants have confessed in the bar, that
they have imprisoned the plaintiff without cause, the plaintiff shall
have judgment: and the difference is, when the plaintiff [162]replies,
and by his replication it appears that he has no cause of action, there
he shall never have judgment: but when the [163]bar is sufficient in
matter, or amounts (as the case is) to a confession of the point of the
action, and the plaintiff replies, and shews the truth of the matter to
enforce his case, and in judgment of law it is not material, yet the
plaintiff shall have judgment, for it is true that sometimes the
declaration shall be made good by the bar, and sometimes the bar by the
replication, and sometimes the replication by the rejoinder, &c. but the
difference is, when the declaration wants time, place, or other
[164]circumstance, it may be made good by the bar, so of the bar,
replication, &c. as appears in 18 E. 4. 16. b. But when the declaration
wants substance, no bar can make it good; so of the bar, replication,
&c. and therewith agrees 6. E. 4. 2. a good case, and _nota_ there
_dictum_ Coke. _Vide_ 18 E. 3. 34. b. 44 E. 3. 7, a. 12 E. 4. 6. 6 H. 7.
10. 7 H. 7. 3. 11 H. 4. 24. &c. But when the plaintiff makes
replication, sur-rejoinder, &c. and thereby it appears, that upon the
[165]whole record the pl. has no cause of action, he shall never have
judgment, although the bar or rejoinder, &c. be insufficient in matter;
for the court ought to judge upon the whole record, and every one shall
be intended to make the best of his own case. _Vide_ [166]Ridgeway’s
case, in the Third Part of my Reports 52. b. and so these differences
were resolved and adjudged between [167]Kendal and Helyer, Mich. 25 & 26
Eliz. in the K.’s Bench, and Mich. 29 & 30 Eliz. in the same court,
between [168]Gallys and Burbry. And Coke Ch. Just. in the conclusion of
his argument observed seven things for the better direction of the
president and commonalty of the said college for the future. 1. That
none can be punished for practising physic in London, but by forfeiture
of 5l. by the month, which is to be recovered by the law. 2. If any
practise physic there for a less time than a month, that he shall
forfeit nothing. 3. If any person prohibited by the statute offends _in
non bene exeq’ &c._ they may punish him according to the stat. within
the month. 4. Those who they may commit to prison by the stat. ought to
be commit. [169]presently. 5. The fines which they set, according to the
statute, belong to the King. 6. They cannot impose a fine, or
imprisonment without a record of it. 7. The cause for which they impose
fine and imprisonment ought to be certain, for it is [170]traversable:
for although they have letters patent, and an act of Parliament, yet
because the party grieved has no other remedy, neither by writ of error,
or otherwise, and they are not made Judges, nor a court given them, but
have an [171]authority only to do it, the cause of their commitment is
traversable in an action of false imprisonment brought against them; as
upon the statute of [172]bankrupts, their warrant is under the great
seal, and by act of Parliament; yet because the party grieved has no
other remedy, if the commissioners do not pursue the act and their
commission, he shall traverse, that he was not a bankrupt, although the
commissioners affirm him to be one; as this term it was resolved in this
court, in trespass between Cutt [173]and Delabarre, where the issue was,
whether Will. Cheyney was a bankrupt or not, who was found by the
commissioners to be a bankrupt; _a fortiori_ in the case at bar, the
cause of the imprisonment is traversable; for otherwise the party
grieved may be perpetually, without just cause, imprisoned by them; but
the record of a force made by a Justice of Peace is not traversable,
because he doth it as Judge, by the statutes of [174]15 R. 2. and 8 H.
6. and so there is a difference when one makes a record as a Judge, and
when he doth a thing by special authority, (as they did in the case at
bar) and not as a Judge. And afterwards, for the said two last points,
judgment was given for the plaintiff, _nullo contradicente_, as to them.
And I acquainted Sir Thomas Fleming, Chief Justice of the King’s Bench,
with this judgment, and with the reasons and causes of it, and he well
approved of the judgment which we had given: and this is the first
judgment on the said branch concerning fine and imprisonment which has
been given since the making of the said charter and acts of Parliament,
and therefore I thought it worthy to be reported and published.
(See Carthew 492. 6 Mod. 125.)
[_For the Pleadings in this Case see 8 Co. Rep. p. 107._]
-------
Dr. Groenvelt vers. Dr. Burwell and others, Censors of the College of
Physicians
(from 1 Comyns Rep. p. 75)
This was an action of trespass for an assault, battery, wounding and
false imprisonment. The defendants as to the beating and wounding, plead
not guilty, and as to the residue of the trespass they justify; for that
by letters patent dated the 23 of September 10 H. 8 the king granted,
that they, viz. the doctors of physick in London, should be a body and
perpetual community, _per nomen præsidentis & collegii five communitat’
facultat’ medicin’ London’, &c._ and that they might make By-Laws; _&
quod quatour singulis annis eligerentur qui haberent scrutinium
correctionem & gubernationem omnium & singulorum dictæ civitatis
medicorum & aliorum medicorum forinsecorum facultate illa utentium infra
eandem civitatem & suburbia, ac infra septem milliaria in circuitu
ejusdem, ac punitionem eorundem pro delictis suis in non bene exercendo,
&c. per fines amerciamenta & imprisonamentum corporum suorum_; and that
these letters patent were confirmed by an act of parliament of 14 H. 8.
And that on the 1st of January 8 W. 3. the plaintiff exercised the art
of physick in London, and that he administered bad and unwholesome
physick to one woman and that the said woman and her husband complained
to the defendants, being the censors of the said college; upon which
complaint the plaintiff was summoned before them, and upon examination
they found him guilty of administering unwholesome physick, by means of
which the said woman languished; and thereupon they fined the plaintiff
20l. and made a warrant under their hands and seals to —— —— who was
also a defendant, to take the plaintiff; who took him pursuant to such
warrant and conveyed him to prison; which is the residue of the trespass
of which the plaintiff complains. The plaintiff replies _protestando_,
that there are no such letters patent, and no such act of parliament;
and _protestando_, that the plaintiff did not administer such
unwholesome physick; that the defendants of their own wrong committed
the trespass; _absque hoc quod_, that the plaintiff was taken and
committed by force of the said warrant: and to this it was demurred. And
this case was divers times argued, and many exceptions were taken to the
plea and to the replication; and now this term judgment was given for
the defendants. And Holt C. J. delivered the opinion of the court; and
said, that the rest of the Judges were agreed, that the replication of
the plaintiff was ill, and that the plea of the defendants was good. The
plaintiff in his replication traverses the taking by the warrant
mentioned in the plea of the defendants; and this is ill both in
substance and in form; for in point of form he ought not to traverse the
taking by force of the warrant, but that there was not any such warrant;
for if it were necessary that the arrest of the plaintiff should be by
the same warrant that was mentioned before in the pleading that if the
defendants had shewn in their plea another warrant than that which was
shewn at the time of the arrest, the plaintiff ought not to have said,
that he was not taken by this warrant but that there was not any such
warrant. But the replication is not good in point of substance; for the
plaintiff seems to intend, that the warrant by which he was arrested was
unlawful, yet the plaintiff shall not have advantage of it, if there was
another warrant which was lawful to take him at the same time; for if
there are two warrants, the one lawful and the other unlawful, and the
party is taken upon the illegal warrant, yet he who apprehends him may
justify himself by the authority of the legal warrant; and this appears
by the case Mich 34 Ed. 1 Fitz. Avowry, 232 cited 3 Co. 26. a. If a man
takes a distress for a thing for which he has not good cause of
distress, but had good cause of distress for another thing; if a
replevin is brought, and he comes into court, he may avow for which
thing he pleases. Then it was considered whether the plea of the
defendants was good; to which it had been objected that it was ill for
the uncertainty; for the cause of the commitment being traversable ought
to be alleged with certainty. Secondly, That by the plea it appears,
that the plaintiff was fined and imprisoned also; the censors (of the
college of Physicians the defendants) have authority to impose a fine,
and to imprison for non-payment of that fine, or they may imprison for
the offence; but they cannot both fine and imprison for the same
offence, as in this case; for it does not appear that the imprisonment
was for non-payment of the fine but the plaintiff was both fined and
imprisoned, and so was twice punished for one offence. Thirdly, the plea
does not shew that the plaintiff was one of the college. Fourthly, The
plea makes no answer to the assault; it does not shew that there was any
assault, or set forth any justification of it. But Holt C. J. said that
the Court held the plea to be good, for it goes to the whole
declaration; as to the battery and wounding the defendants plead not
guilty, as to the residue of the trespass they justify; and the residue
of the trespass comprehends the assault, and every other part of the
declaration to which the plea (of not guilty) does not extend: and there
is no need that the plaintiff should be of the college; for it appears
that he exercised his faculty within London and the censors have
jurisdiction within London and the suburbs, and seven miles in
circumference; and it appears by the words of the Charter, that the
censors have power to punish by fine and imprisonment; and how they
exercise that authority we do not enquire, as it will be apparent
afterwards in the answer to the first objection, and which is the most
material one. In answer to the first objection, then, we say, First that
the cause of the commitment is not traversable. Secondly if it were
traversable, it is set forth with certainty enough. That the cause of
commitment is not traversable appears by the authority which the censors
have by the act of parliament; for by it they are constituted judges of
fact, what is a mal-administration (of medicines) and what is not: and
they are judges of record for they have authority to impose fine and
imprisonment; and when a new authority is constituted, with power to
fine and imprison, the persons invested with such authority are judges
of record; for that every thing proves a court to be a court of record,
viz. the power of fining and imprisoning; for courts which are not of
record can neither set a fine nor commit any one to prison. 8 Co. 38. b.
And there it is proved, that the leet can impose a fine, because it is a
court of record; and forasmuch as the statute W. 2. c. 11 impowers the
auditors to commit the accountant to prison the auditors are thereby
made judges of record; as is observed 10 Co. 103. a. 2. Inst. 218. Then
the censors being constituted judges of the matter, that which they have
done as such they shall not be answerable for; and that a judge shall
not be answerable for an act done by him as a judge, appears by 12 Co.
24. and the cases there cited. True it is, that if a justice of(_a_)
peace issue his warrant to imprison the party, or to arrest him until
such time as he can be brought before him, or if the commissioners of
bankrupts commit a witness for refusing to be examined(_a_) it may be
determined in an action, whether they have pursued their authority or
not; for their act in this respect is only ministerial;(_b_) and the
commitment is not intended as a punishment, but only as a mesne process
to bring the party to justice, or to make him do his duty. My Lord Coke,
it is true, says in Dr. Bonham’s case, 8 Co. 121 a. that the cause of
commitment was traversable; but this opinion was there given obiter, and
was not essential to the case in judgment; for there the question was,
for practising without the licence of the college, for which the party
could not be imprisoned; and Dr. Bonham being a graduate in the
university, my Lord Coke was carried away by his affection to his Alma
Mater so far as to make a resolution in the present point, which was not
in the case before him: but my Lord Coke says, that upon a conviction by
the censors, they ought to make a record of it, which admits they are
judges of record; and then by his own rule there in the case of a
justice of peace who made a conviction of a force, and the cases in his
other works, their acts (the acts of the justices of the peace) cannot
be traversed; and my Lord Coke does not cite any authority in support of
his opinion (as to the point now before us). The reason which he gives
why the party has no remedy by writ of error or otherwise is of no
weight: I grant that a writ of error lies not; for the censors having a
new authority by a special act of parliament and their proceedings being
directed to be in a summary way there is no need for them to pursue the
forms and methods of others courts; and it is sufficient for them to
make such summary proceeding as justices of the peace in many cases may
do; yet the party is not without remedy for he may have a Certiorari to
remove the record of conviction, and then it may be examined and
reviewed, to see whether it be pursuant to their authority; for in every
case where a new jurisdiction is set up for a special purpose this court
by virtue of its original power may award a Mandamus to make them put
their authority in execution, and a Certiorari to look into their
proceeding whether it be conformable to their authority or not. Thus a
Certiorari lies to remove an indictment for felony before the justices
of the peace (bro. Eliz. 489. Long’s case) to remove orders before
commissioners of sewers, or by justices of the peace who have authority
to make conviction of a force in their presence, or for deer-stealing,
but although no Certiorari did lie (in the present case) it is not
consequential that the cause of their commitment is traversable; for if
the parliament intrusts them with a power so great that no act of theirs
shall be reversed or reviewed, there is the less reason that their
proceeding should be examined or traversed in an action; a jury is not
finable for giving a verdict against evidence; and though there are many
cases where jurymen have been fined (1) yet Bushel’s case, in which all
the others are cited, is sufficient to controul all the rest. Vauq. 135
(a) and if a juror shall not be fined or imprisoned or otherwise
punished for refusing to find a man guilty upon apparent and plain
evidence, much less shall a judge be liable to censure. In the case (b)
of Hammond and Powell, P. 29 Car. 2 an action for false-imprisonment was
brought after the resolution in Bushel’s case for his imprisonment (for
Hammond was one of the same jury with Bushel and fined 40l. and
imprisoned for it at the same time,) and notwithstanding that the fine
and imprisonment were illegal yet it was adjudged that the action did
not lie for false-imprisonment against the judge or the officer; so a
fine imposed by a judge of a court is not traversable as an amercement
is. 7 H. 6. 13. a. As to the case between Terry and Huntington Hard. 480
which may be objected; that is good law; for there an action was brought
against the commissioners of excise, who had charged a man for the duty
upon strong waters, where the liquor made by him was low wine of the
first extraction, and the action well lay, for they had exceeded their
jurisdiction; for low wines of the first extraction were not chargeable
within the act of parliament; and if they had charged a duty upon a
liquor not chargeable with it, they were not to be excused for having
named it strong waters. If a justice of the peace commits a man for
being the Father of a bastard child no action lies against the justice
if the man was the father of a bastard otherwise if he had no bastard at
all. So the case between Nickols and Walker, Cro. Car. 394, (_a_) is
good law, for there an inhabitant of Tottridge was charged to the poor
of Hatfield; and the justices of the peace have power to award a
distress, where a person is assessed to the poor of the parish where he
hath land or is an inhabitant; but where he is charged to the relief of
another parish there the case is beyond their jurisdiction. But if the
cause of the commitment were traversable yet the plea of the defendants
here is good, for it shews with certainty in what the ill-administration
of the physic consisted viz in the use of unwholesome drugs: and
although it is not said what drugs he used, it is no matter, for how
shall we be informed whether he has shewn them. In an action against a
surgeon for an inartificial cure the plaintiff does not shew what
plaisters the defendant used. As to what hath been said that the plea
does not shew for what malady the medicines were given; it was answered
that it would be so much the worse if the medicines were given when the
party had not any malady at all. And although it is not said that the
witnesses upon whose testimony the fine was imposed were upon oath, yet
the plea is sufficient; for it may be that it was not necessary that
they should be sworn or if it were needful the omission of it is not
such as will make their proceedings void. In such a special jurisdiction
in which the proceeding is to be in a summary manner it is not needful
to observe all the circumstances which are necessary in other legal
proceedings.—Judgment for the defendants.
The College of Physicians versus Dr. West.
(from 10 Mod. 358.)
The Question was, whether a Man, that had taken his Degree of Doctor of
Physick, in either of the Universities, might not practise in London,
and within seven miles of the same, without a Licence from the College
of Physicians.
The Court clear of Opinion, that a Licence from the College was
necessary; and that by reason of the Charter of Incorporation, confirmed
by 14 & 15 Hen. 8. cap. 5. penn’d in very strong and negative words.
As to the Testimonials granted by the Universities upon a Person’s
taking the Doctors Degree; the Court was of Opinion, That these
Testimonials might have the Nature of a Recommendation; they might give
a Man a fair Reputation, but conferr’d no Right; and consequently all
those Statutes, which have confirmed the Privileges of the Universities,
could revive or confirm nothing but the Reputation, that this
Testimonial might give such Graduates.
And whereas it has been insisted, That by the last Clause of the
Statute, it is said, That none shall practise in the Country without a
licence from the President and three Elects, unless he be a Graduate of
one of the Universities, it was said all the inference from that would
be, That possibly two Licences may be necessary where a person is not a
Graduate.
In the Case of Dr. Levet, Lord Chief Justice Holt did not think this a
Question worth being found specially.
The College of Physicians are without doubt more competent Judges of the
Qualifications of a Physician than the Universities, and there may be
many good Reasons for taking a particular care of those, that practise
Physick in London.
_William Rose_, Plaintiff } in
_The College of Physicians, London_, Defendants } Error
_15^{th} March, 1703._
In the 10^{th} year of _Hen._ 8. the defendants were incorporated; and,
in the letters patent granted for that purpose, which were confirmed by
stat. 14 and 15 _Hen._ 8. _c._ 5. is, _inter alia_, the following
clause: “_Concessimus, etiam eisdem præsidenti et collegio, seu
communitati, et successoribus suis, quod nemo in dicta civitate, aut per
septem milliaria in circuitu ejusdem, exerceat dictum facultatem, nisi
ad hoc perdict, præsidentem et communitatem, seu successores eorum qui
pro tempore fuerint, admissus sit per ejudem præsidents et collegii
literas sigillo suo communi sigillatas, sub pœna centum solidorum pro
quolibet mense, quo non admissus eandem facultatem exercit, dimidium
inde nobis et hæred. nostris, et dimidium dicto præsidenti et coll.
applicandum._”
The plaintiff, who was an apothecary, and freeman of _London_, attended
one _Seale_, a butcher, in the parish of _Saint Martin in the Fields_,
and made up and administered proper medicines to him; but, without any
licence from the faculty, and also without the direction of any
physician, and without taking or demanding any fee for his advice.
The defendants apprehending this conduct to be an infringement of their
privileges, brought their action against the plaintiff, to recover the
penalty of 5_l._ _per_ month, under the above clause in their charter;
and, on the trial, the jury found a special verdict, stating the
charter, the confirmatory statute, and the facts of the case; and
submitted to the Court, whether the defendant _Rose_ did practice
physic, within the intent of the letters patent and act of
Parliament.—And, after this verdict had been three several times argued
in the Court of Queen’s Bench, the Judges were unanimously of opinion,
that _the facts found did amount to the practising physic, within the
meaning of the act of Parliament_; and gave judgment accordingly.
Hereupon, a writ of error in Parliament, was brought to reverse this
judgment; and on behalf of the Plaintiff in error, it was argued, that
the consequences of it would not only ruin him, but all other
apothecaries; as, in case of the affirmance of this judgment, they could
not exercise their profession, without the licence of a physician. That
the constant usage and practice, which had always been with the
apothecary, was conceived to be the best expounder of this charter; and,
that therefore, the selling a few lozenges, or a small electuary, to any
person asking a remedy for a cold, or in other ordinary or common cases,
where the medicines had a known and certain effect, could not be deemed
unlawful; or practising as a physician, when no fee was taken or
demanded for the same. That the physicians by straining an act made so
long ago, endeavoured to monopolize all manner of physic solely to
themselves; and if they should succeed in this attempt, it would be
attended with many mischievous consequences: For, in the first place, it
would be laying a heavy tax on the nobility and gentry, who, in the
slightest cases, and even for their common servants, could not have any
kind of medicine, without consulting and giving a fee, to a member of
the college: It would also be a great oppression upon poor families,
who, not being able to bear the charge of a fee, would be deprived of
all kind of assistance in their necessities: And, it would prove
extremely prejudicial to all sick persons, who, in case of sudden
accidents, or new symptoms, happening in the night-time, generally send
for the apothecary; but who should not dare to apply the least remedy,
without running the hazard of being ruined.
On the other side, it was contended, that by several orders of the
college, its members were enjoined to give their advice to the poor
_gratis_; and that not only to such as could come to them for it; but
every physician, in his neighbourhood, was obliged to visit the sick
poor, at their own lodgings; and therefore the objection, that, if the
apothecaries could not administer physic but by the prescript of a
physician, the poorer sort of people would be lost for want of proper
remedies, had not the least foundation. And, when these orders were
observed not to have their full intended effect, on account of the high
prices which the apothecaries generally demanded for the remedies
prescribed, whereby the poor were deterred from consulting the
physician, for fear of the charge of the physic; the college, by a joint
stock, erected several dispensaries in town, where, after the physicians
had given their advice _gratis_, the patients might have the physic
prescribed, for a third, and generally less, of what the apothecaries
used to exact for it; by which expedient, many hundred persons of mean
condition, received their cures at a very small expense, and without one
farthing profit arising to the physicians. That in cases of sudden and
immediate necessity, not only apothecaries, but any other person, might
do his best to relieve his neighbour, without incurring the penalty of
the law; but there was no reason why the apothecaries, under that
pretence, should be permitted to undertake, at leisure, all dangerous
diseases; and especially where, as in this city at least, a skilful
physician may be as soon had as an apothecary. That, in common or
trifling indispositions, the patients themselves were generally their
own physicians; and would of course, send for any medicine, of which
there had been common experience, for their cure, and which the
apothecary might lawfully make up and sell; but, for the apothecary to
be permitted to judge of diseases in their beginning, whether slight or
not, and to order medicines for the same, would prove both dangerous,
and more chargeable. _Dangerous_, because the most malignant distempers
usually begin with apparently inconsiderable symptoms, and are many days
before they appear in their proper colours; and, as apothecaries are not
bred to have suitable skill, the management thereof ought not to be left
to their judgment. And _more chargeable_, because, be the disease ever
so slight, the apothecary will be sure to prescribe largely enough; and
should he chance to mistake, then that distemper, which, by the discreet
advice of a physician, might, by one proper medicine, have been
eradicated at the beginning, runs out into great length, to the extreme
hazard and great expense of the patient.
BUT, after hearing counsel on this writ of error, it was ORDERED and
ADJUDGED, that the judgment given in the Queen’s Bench, for the
President and College, or Commonalty of the faculty of Physic, _London_,
against the said _Wm. Rose_, should be reversed.
(From 1 Brown Par. Ca. p. 78.)
-------
The King _against_ the President and College of Physicians.
(From 7 Term Rep. p. 282)
This was a rule calling on the president and College or commonalty of
physic in _London_ to shew cause why a mandamus should not issue,
commanding them to examine C. Stanger, M.D. as to his qualification and
fitness to be admitted into the said Corporation as a member or fellow
thereof.
* * * * *
Doctor Stanger, after referring to the above statutes (3 Hen. 8: 14 & 15
Hen. 8) and Charter, stated in his affidavit that in 1783 he took a
degree of doctor of physic at _Edinburgh_ after a residence there for
three years, and after having studied physic there and at other places
for many years; that afterwards he went abroad to _France_, _Italy_, and
_Germany_, and studied physic there for several years more. That in 1789
he obtained a licence from the college of physicians here in the usual
way to practise in _London_ and within seven miles thereof, and that he
has practised ever since. That in _June_ 1796 he applied to the
president and college at their general meeting to be admitted by them to
be a member of their corporation, submitting himself to be previously
examined by them concerning his qualification and fitness to be admitted
a member of the corporation, which the college refused. Dr. _Stanger_
also added in his affidavit that he was duly qualified and fit to be
admitted a member of the college.
The affidavits in answer to the rule disclosed the following (among
other) facts. For two hundred years past there have been three classes
of persons practising physic in _London_ and seven miles round; the
fellows; candidates, persons desirous of becoming members and who have
been examined and approved by the president and censors to be candidates
for election into the society or fellowship; and the licentiates, who
may practise as fully in all respects as fellows and have the same
benefits and advantages. Various bye-laws have been made by the college
respecting the qualifications of persons to be admitted fellows, one of
them so long ago as 1637, by which it was ordained that no person should
be admitted a fellow unless he had performed all his exercises and
disputations in one of our universities without dispensation, and which
has continued ever since with some little alterations. To prevent any
mistakes arising from the words “_aliquâ Britanniæ Academiâ_” in some of
the bye-laws respecting this qualification, an explanatory bye-law was
made in 1751, in which it was declared that the meaning of the words was
that no person should be admitted who was not a Doctor of Physic of
_Oxford_ or _Cambridge_. The bye-laws of the college have been revised
and altered since the year 1768. By those now in existence no person can
be admitted a fellow unless he has been a candidate for a year, except
in certain cases hereafter mentioned. No person can be admitted into the
class of candidates unless he has been created a Doctor of Physic in the
university of _Oxford_ or _Cambridge_, or unless he has obtained the
same degree in the university of _Dublin_ and has been incorporated into
one of the universities of _Oxford_ or _Cambridge_; nor can any such
person be admitted into the class of candidates until after he has been
examined as to his knowledge of physic in three of the greater or lesser
meetings (called the _comitia majora_ and _comitia minora_) of the
college. After a person has been a candidate for a year, he may be
proposed by the president at one of the greater meetings and admitted a
fellow, if the majority of fellows consent, without further examination.
But by two other bye-laws persons not having the above qualifications
may be proposed in one of two ways; by one, the president is enabled
once in every other year at the _comitia minora_ to propose one
licentiate of ten years standing, who may (if the major part of the
_comitia minora_ consent) be proposed by the president at the next
_comitia majora_ to be elected a fellow, and if the majority of fellows
then present consent, he may then be admitted a fellow. By the other,
any one of the fellows may propose any licentiate, of seven years
standing and of the age of 36, in the _comitia majora_ to be examined;
if the major part of the fellows consent, such licentiate may be
examined by the president or vice-president and censors, and if approved
by the major part of the fellows then present, he may be proposed at the
next _comitia majora_ to be a fellow, and admitted if the majority of
the fellows then present consent. The ordinary greater meetings
(_comitia majora_) are holden four times a year, and consist of the
president or vice-president and ten fellows at the least. The ordinary
lesser meetings (_comitia minora_) consisting of the president or
vice-president registar and censors of the college, are holden once a
month. A letter was also inserted in the affidavits written by King
_Charles_ the Second to the college not to admit any person who had not
had his education in either of our universities of _Oxford_ or
_Cambridge_: but it was admitted in the argument that no notice could
legally be taken of this letter. It was also stated in the affidavits
that Dr. _Stanger_, when he was licensed; gave his faith or promise to
the college that he would observe the statutes of the college &c. in the
usual mode.
_Adair Serjt. Law_, _Chambre_, and _Christian_, argued in support of the
rule; and
_Erskine_, _Gibbs_, _Dampier_, and _Warren_, against it.
The case was argued very much at length on three several days: but it is
unnecessary to give a detail of the arguments, as the Court in giving
their opinions went into them. The points insisted upon by the counsel
in support of the rule were these; 1st. That under the general words of
the charter “_omnes homines ejusdem facultatis_” &c. Dr. _Stanger_, who
came within that description by his license, had an inchoate right,
which authorised him to tender himself to the college for examination in
order that he might be admitted, if on examination the president and
college thought him qualified; though they admitted that the president
and college were the sole judges of his fitness. And they referred to
the several dicta of Lord _Mansfield_ and _Aston_ J. in _R._ v. Dr.
_Askew_ and others, 4 _Burr._ 2169; 2202; 2193; 2202. Secondly, That the
bye-laws requiring an education at either of our universities or at
_Dublin_ were illegal and void, on grounds of public policy, and also on
the ground that they superadded a qualification not required by the
Charter, 4 _Burr._ 2198, 9; 2203, 4; and that it narrowed the number of
the eligible; _R._ v. _Spencer_, 3 _Burr._ 1827; and _R._ v. _Cutbush_,
4 _Burr._ 2204.
On the other hand it was insisted, 1st. That Dr. _Stanger_ had no
_right_ to be examined in order to be a fellow, either as a licentiate,
Dr. _Archer_’s case, 4 _Burr._ 2203; or as coming within the description
“_omnes homines ejusdem facultatis_” &c.; but that the election into
that body was a mere matter of grant or favor, for that the charter
evidently marked out two descriptions of persons, the members of the
college (the fellows) and all those who practised physic in _London_ or
within seven miles thereof, that the former were to superintend the
latter; and that if the latter had also a right to be admitted fellows
the distinction between the governors and the governed would be
destroyed, and the very object of the charter and act of parliament, in
giving to the fellows the superintendance of the others practising
physic in and about _London_, would be defeated;—observing that the
usage for a long period was in favour of this construction. 2dly, That
Dr. _Stanger_, by giving his faith when he received his licence in 1789,
was estopped to object to the bye-laws. But this point was abandoned in
the course of the argument; it being considered that he was only bound
to observe the bye-laws of the college that were not illegal. 3dly, That
the bye-laws were neither against sound policy or law; and instances
were alluded to of degrees taken in either of our universities giving
privileges to the persons taking them in the other professions. And the
counsel observed that the not having taken a degree in one of our
universities was not an absolute bar to any person becoming a fellow of
the college, there being two modes by which he might gain admission
without that qualification.
Lord KENYON, Ch. J. If in deciding this question it were necessary for
us to answer all the arguments that have been urged at the bar, I should
have desired further time to consider of the subject; but as the grounds
on which I am warranted to determine the case lie in a very narrow
compass, and I have formed my opinion upon it, I wish to put the
question at rest now. By what fatality it has happened that almost ever
since this charter was granted this learned body have been in a state of
litigation I know not; and I cannot but lament that the learned Judges
in deciding the cases reported in _Burrow_ did not confine themselves to
the points immediately before them, and dropped hints that perhaps have
invited litigation; though indeed I cannot see what these parties are
contending for that is worth the expense and anxiety attending this
litigation. The public already have the benefit of the assistance of the
licentiates; and their emoluments, the fair fruits of their education
and advice, are just the same as those that the fellows of the college
receive. We have however been pressed with the authority of those who
have preceded us here: no person can have a greater veneration for those
characters than I have, and if this point had been decided by them, I
should have thought myself bound by their decision. But the cases are
unlike. The principal ground on which it was said in 4 _Burr._ 2199.
that the bye-laws of the college were bad was, that “they interfered
with their exercising their own judgment, and prevented them from
receiving into their body persons known or thought by them to be really
fit and qualified;” and if I had found that objection existed in this
case, I should have thought it fatal: but in the very sentence in which
Lord _Mansfield_ expressed himself as above, he added “such of them
indeed as only require a proper education and a sufficient degree of
skill and qualification may be still retained.” Two universities have
been founded in this country, amply endowed and furnished with
professors in the different sciences; and I should be sorry that those
who have been educated at either of them should undervalue the benefits
of such an education.
In this case it is admitted that a licentiate does not _de facto_ become
a fellow of the college: it is admitted that he must be first examined,
and that those who are called the College of Physicians are to judge of
his fitness. It seems that the appeal here is rather made _ad
verecundiam_, and that Dr. _Stanger_ could not be rejected if he were
examined. If the college are not judges of the fitness of the person
examined, I do not know who is. Then is this a reasonable test of the
fitness of the party? possibly they might have framed a better, though I
do not say that they could; but the question here is whether this is a
reasonable bye-law? According to the concurrent opinions of all mankind
it is. The Legislature have considered that persons who have taken their
degrees in our universities are entitled to certain privileges in the
church. So if we look into our own profession, those who have been
educated at our universities have particular privileges; and though the
inns of court are not corporations, yet their regulations shew that this
has been considered as reasonable. It is not that a person becomes
qualified from keeping his commons within the walls of the inns of court
or the universities, but living with those of the profession will
probably advance him in the knowledge of that profession for which he is
a candidate. Again in the civil law; however competent any particular
individual may be from extraordinary endowments or the exertion of
superior talents, he must first take his degrees at one of our
universities, and afterwards continue a year in a state of probation
before he can practise. Those regulations that are adapted to the common
race of men are the best: it does not follow that all institutions
calculated for the ordinary classes are to be prostrated merely because
they stand in the way of some few individuals of superior talents. Then
the question is whether this is a reasonable bye-law that requires a
degree to be taken at one of our universities, which in general is
supposed to be conferred as a reward for talents and learning. If indeed
this had been a _sine qua non_, and it had operated as a total exclusion
of every other mode of gaining access to the college, it would have been
a bad bye-law: but these bye-laws point out other modes of gaining
admission into the college. If Dr. _Stanger_ has all those requisites
that qualify a person for that high station, any one of the fellows may
now propose him; he may apply to the honourable feelings of the college,
to the very same tribunal to which this mandamus (if it were granted)
would refer him; for in all events he must submit to their examination
and determination. In the profession of the church, we find that the
bishops insist on having a testimonial of the person to be ordained
signed by a certain number of clergymen; and though the bishops
themselves may have the power of judging of the fitness of the person to
be ordained it was never doubted but that this was one reasonable test
of fitness, even before examination: it is a test to regulate their own
conduct. So here I think this is a reasonable test. Therefore on this
short ground, without entering into any of the other topics that have
been argued, I am of opinion that these are good and reasonable
bye-laws, and that we are bound to refuse the writ.
ASHHURST, J. Though this matter has taken a considerable time in the
argument, it is now reduced to a narrow compass. The counsel who have
argued for the issuing of the mandamus do not contend that a licentiate,
as such, does _ipso facto_ become a member or a fellow of the college:
they only say that any man who is fit in learning and morals has a right
to offer himself for examination, without any superadded qualification;
and therefore that the bye-law requiring “that every licentiate, in
order to entitle him to offer himself for examination, shall be a doctor
of one of the two universities in _England_ or that of _Dublin_,” is a
void bye-law. It is not denied by counsel who have argued for the rule
that the corporation have the right of making bye-laws for the
regulation of their own body. And Lord _Mansfield_, on whose authority
they ground themselves as in their favour, said in 4 _Burr._ 2199, “that
such bye-laws as only require a proper education and a sufficient degree
of skill and qualification may be still retained; that there can be no
objection to cautions of this sort; and the rather if it be true that
there are some amongst the licentiates unfit to be received into any
society.” This brings it then to the question, whether the bye-law now
under discussion is or is not to be considered as a bye-law of
regulation. It does appear to me that in order to ensure a proper
education and a competence in a learning, there cannot be a more likely
method than the having spent fourteen years in one of our learned
universities, and, after having been examined by persons competent to
the subject, having been admitted to a doctor’s degree. This it should
seem would prevent in _limine_ the danger of that happening, which Lord
_Mansfield_ complains of, namely, of persons being admitted amongst the
licentiates unfit to be received into that society. Indeed the
Legislature so long ago as the passing of the act of the 14 and 15
_Henry_ 8. seemed to shew their own opinion how much stress ought to be
laid on such a kind of test; for there, in speaking of country
physicians, the act says, “that no person shall be suffered to exercise
or practise in physic through _England_ until such time as he be
examined in _London_ by the president and three elects, and have from
them letters testimonial of their approving and examination:” but then
the act goes on with this exception (viz.) “unless he be a graduate of
_Oxford_ or _Cambridge_, which hath accomplished all things for his form
without any grace.” This shews the opinion of the legislative body of
that day; and the college might think it a very fit model for their
imitation in the formation of the bye-law now under discussion, and that
it would prevent them from having their time too much broken in upon by
improper applications for examination. I would not be thought to infer
that the gentleman now applying is in any degree deficient either in
learning or education: but general laws cannot give way to particular
cases; and as this law has been of some standing, we must suppose it has
been found to be attended with general convenience, and therefore it
should be abided by. I therefore concur in the opinion that the rule for
a mandamus should be discharged.
GROSE, J. This being a motion for a mandamus to a body incorporated by
charter, we must see that we are authorised by the charter or the
bye-laws to grant the application. On examining the charter, which was
confirmed by act of parliament, we find that there was a select body of
eight including the president, and an indefinite number of the
commonalty. The election of the president is to be made annually by the
college; so also is the election of the four censors. The intention of
the crown was to put an end to the mischiefs occasioned by the ignorance
of the unskilful practitioners; and for that purpose this corporation
was created, with power of making bye-laws, of admitting skilful persons
to practise physic, and of preventing all others practising: the great
object was to admit only those to practise physic who were (to use the
language of the act) “profound sad and discreet, groundedly learned and
deeply studied in physic.” How or when the fellows are to be chosen or
admitted is not directed by the charter: it is left to the discretion of
the persons named in the charter under the general power given to them
of perpetuating themselves and of making bye-laws. The charter is
therefore silent both as to the election of fellows, and as to the
examination of them before election: but the examination is incident to
the power of election. The charter being silent on these heads, and the
college having the power of making bye-laws, they have made bye-laws to
ascertain a criterion of fitness of future candidates, by pointing out
in some cases the mode of their education, in others the persons by whom
they were to be proposed as candidates. One of these bye-laws is
objected to as illegal, because it requires a degree to be taken at one
of our universities, which (it is contended) is superadding a
qualification to those required by the charter: but I think it is only
ascertaining a criterion of fitness as has been done most properly in
other professions in cases alluded to both at the bar and bench. Then it
is said that a licenciate has an inchoate right: if by that Dr.
_Stanger’s_ counsel mean that he has one qualification which when added
to others may give him a right of admission, I agree with them; but the
college are to judge of the other qualifications: if by this inchoate
right they mean any thing more, I dissent from them. It is admitted by
this application that the college have a right to insist on an
examination: and upon what ground? as a test of fitness—but though this
right is not expressly given to them by the charter, nor is there a word
denoting any obligation either to admit or examine, it is incident to
their power of judging who is fit to be admitted. That Lord _Mansfield_
thought that they have such a right incidently is clear from what fell
from him in Dr. _Askew’s_ case, in which he said, “It is true that the
judgment and discretion of determining upon this skill ability learning
and sufficiency to exercise and practise this profession is trusted to
the college of physicians: and this Court will not take it from them in
the due and proper exercise of it.” The same power that authorises them
to judge of fitness also authorises them to regulate the mode by which
they shall judge. They think, of which they are much better judges than
we can be, that every man who is to be a candidate ought either to have
taken his degree at one of our universities or in Dublin, or shall be
proposed by one fellow, or by the president. The bye-laws requiring this
do not appear to me unreasonable or inconsistent with the character any
more than requiring a particular mode of education, and in the case so
often alluded to Lord _Mansfield_ thought such bye-laws were good; for
when he recommended it to the college to revise their bye-laws, he said
“Such of them indeed as only required a proper education and a
sufficient degree of skill and qualification may be still retained.” In
consequence of that opinion the college have reviewed and altered their
bye-laws, requiring in some cases an education at either of our
universities or at _Dublin_, in others permitting a nomination of
persons as fit to be examined by men whom they deem worthy of such a
trust, considering such degree and nomination merely as tests of the
person taking it or named having skill and learning and being fit to be
examined. And in making these bye-laws I think that the college have
shewn a due attention to discharge their duty to the public and to
attain the ends of their institution. Therefore I concur in the opinion
already given that this rule ought to be discharged.
LAWRENCE, J. This is an application for a mandamus to compel the College
of Physicians to examine Dr. _Stanger_ in order that he may be admitted
a fellow; and the foundation of the application is that he has been
admitted to the practise of physic and is one of the _homines
facultatis_ within the meaning of the charter; which (it is said) gives
him a right to admission, if on examination he shall be found fit; and
that all the bye-laws militating against such right are illegal. His
counsel have been under the necessity of insisting on the licence giving
him a right to examination; for if the being admitted a member of the
body be matter of election, it is immaterial whether the bye-laws be
good or bad. It seems to me that the insufficiency of the provisions of
the statute 3 _Hen._ 8. probably gave rise to this charter; the object
of which was to establish a better mode of determining who were proper
persons to be licensed to practise physic, and to prevent the practice
of ignorant empirics; and if so, it was not necessary that all men of
the faculty should be members of the body. All that was necessary was
that it should be composed of a sufficient number of learned and
discrete practisers of physic, who should have a power of continuing the
succession in such persons as themselves, and that they should license
proper persons and restrain unfit persons from the practice of it. If
this were the object, is it natural to construe the charter as giving a
right to all men of the faculty to become members of this body, when the
charter speaks of men of the faculty in a sense contradistinguished from
the members of the body; or to suppose that the Crown meant to
incorporate all, when the charter was made for the government of some,
who, if all were incorporated, could not exist? It is admitted that
there were two distinct classes under the charter, and according to Dr.
_Stanger’s_ construction one class, that of the governed, would be
extinguished. Another mode of construing the charter in the argument was
by considering the words _omnes homines ejudem facultatis_ to mean the
individual members of the corporation: but if so, there would be no
power given to make bye-laws to affect the licentiates; and the clause
in the charter that gives the exemption from serving on juries speaks of
the person exercising the faculty as contradistinguished from the
members of the college; “_nec presidens nec aliquis de collegio prædicto
medicorum, nec successores sui, nec eorum aliquis exercens facultatem
illam_.” Therefore it seems to me that the _homines facultatis_ are not
the individual members of the college. Then it was said that there might
be some persons who might not choose to become corporators, and that
this would make a class to be governed: but that is improbable; it is
not to be supposed that, as the principal object of the charter was to
incorporate those who were skilled in physic and to prevent those from
practising who were unfit, they to whom the charter was offered would
refuse the advantages of this corporation, especially as the obvious
means of constituting a body to consist of all would be to make it
compulsory on the physicians to become members, as in the case with
companies in some city and corporate towns, of which persons carrying on
certain trades are obliged to be free. But seeing that there is in some
degree an uncertainty as to the words “_homnes ejusdem facultatis_,” the
usage that has prevailed ought to govern us in the construction of them,
especially as the usage perfectly accords with the design of the
incorporation. It is said indeed that the usage is in favour of Dr.
_Stanger’s_ claim: but that is not so; for there is no proof that before
these bye-laws were made any persons were admitted into the body as a
matter of right, and we must therefore take it that they came in by
election. If Dr. _Stanger_ claim as a matter of right, it must be under
the words of the charter “_quod ipsi omnesque homines ejusdem
facultatis_ &c.” but if this gave him a right, the college could not
resist his claim though he would not submit to examination. And if every
_homo ejusdem facultatis_ came within this description of claim, Dr.
_Archer_ would have had a right to be admitted. The charter does not say
that all the men of the faculty, who on examination shall be found fit,
shall be admitted; if it has said any thing in their favor, it has given
them the right as soon as they become men of the faculty; it has
directed no examination. Suppose by a charter all the weavers of a town
were incorporated, they would all have a right to be admitted without
any examination. If then all the men of the faculty within the limited
district have a right from being men of the faculty, they possess all
the fitness that the charter requires. This seems to me to be only a
contrivance to get out of Dr. _Archer’s_ case, and to set up a right on
the ground of being a licentiate. In the course of the argument it was
said that only those were to be admitted who were “profound sad and
discrete, groundedly learned and deeply studied in physic:” but if so,
it destroys the argument arising from the words “_omnes homines ejusdem
facultatis_.” An argument has also been drawn from the statute 3 _Hen._
8:, and it has been said that the persons licensed by that act were the
only persons who at the time of the charter were men of the faculty, and
that they and the six persons named were meant to be incorporated. But
the words of the charter do not extend to all those persons; they are
confined to the “_homines de et in civitate prædictâ_,” that is, to all
men of and in the city of _London_ practising physic: but this does not
extend to persons practising in other places. Now if that construction
had been adopted, it would have excluded the greater part of those who
have been members of the college practising physic in _Oxford_,
_Cambridge_, and other places beyond these limits, as not falling within
the description of those persons of whom (according to the construction)
the college is to consist.
Taking the whole of the charter and the usage this construction will
reconcile all the difficulties; the intention of the Crown was to
incorporate the six persons named in the charter and all men practising
physic at that time _de et in civitate prædictâ_; and all those persons
were entitled to admission: but the Crown did not intend to give any
right to those, who might thereafter become _homines facultatis_, but
intended that the succession should be continued by the power incident
to all corporations to elect. Had the charter of incorporation nominated
every man authorised to practise physic in _London_ and given no
directions as to the succession, they would have been authorised to
continue themselves by election as they have done; and the charter has
done the same thing in substance by incorporating the same persons by a
general reference to their character and situation. This avoids all
contradiction; it is consistent with the usage; and according to this
construction no one is entitled as a matter of right but only by
election. In making such elections there is a trust and duty to keep up
the body by a choice of learned men sufficient to answer the purposes of
the charter; and if this be done all the interest that the public have
is consulted; they have no interest in this or that man being a member
of the college: so long as the body is continued and there are proper
censors elects and other officers, and so long as proper persons are
licensed and improper ones restrained, the objects of the charter as far
as concerns the public will be attained. We have been pressed however
with the dicta of Lord _Mansfield_ in _R._ v. Dr. _Askew_; very great
deference is always due to whatever fell from him: but it is sufficient
to say that this was not the point then before the Court, the only
question there being whether licentiates were of the body.
On the other question respecting the validity of the bye-laws, I can
hardly add to what has already been said by the Court; and therefore
shall only say that I agree with them in thinking the bye-laws
reasonable.
Rule discharged[175].
Return to a Habeas Corpus.
(Goodall. 467)
London. ss. _Nos_ Johannes Warner & Thomas Adams _Vic’ Civitat’_ London,
_Serenissimo Domino Regi in brevi huic schedul’ annex’ nominat’ ad diem
& locum in eodem brevi content’ Certificamus, quod ante adventum nobis
praedict’ brevis scil’ duodecimo die Septembris Anno regni dicti domini
Regis nunc Anglie &c. decimo quinto_ Christoferus Barton _in dicto brev’
nominat’ commissus fuit Prisone dom’ Regis scil’ Computator’ scituat’
in_ Wood Street London _prædict’ & in eadem Prisona sub custodia_ Isaaci
Pennington & Johannis Woollaston _tunc vic’ Civitat’ praedict’ & in
eorum exit’ ab officio suo sub custodia nostra detent’ virtute cujusdam
Warranti_ Otwelli Meverell, Laurentii Wright, Edmund Smith, & Willielmi
Goddard _in Medicinis Doctor’ & Collegii Medicor’ in_ London _praedict’
custodi praedict’ Computatorii_ London _praedict’ vel ejus deputat’
direct’ Cujus quidem Warranti tenor sequitur in hæc verba_.
[A Copy of the Censors Warrant for the Commitment of Empiricks to
prison.]
“ss. We _Otwell Meverell_, _Lawrence Wright_, _Edmund Smith_ and
_William Goddard_ Doctors in Physick and Censors of the Collage of
Physicians in _London_, being chosen by the President and Collage of
Physicians aforesaid to govern and punish for this present year all
offenders in the faculty of Physick within the City of _London_ and the
Suburbs thereof and seven miles compass of the said City, according to
the authority in that behalf duly given by certain Letters Patents under
the great Seal of _England_ made and granted to the said Collage and
Comminalty by the late King of famous memory King Henry the Eighth,
bearing the date the 28th day of _September_ in the Tenth year of his
Raigne, And one Act of Parliament made in the 14th year of the said late
King _Henry_ the Eighth concerning Physicians Whereby the Letters
Patents aforesaid and every thing therein are granted and confirmed: And
by virtue of the said Act of Parliament and Letters Patents aforesaid
and one other Act of Parliament made in the first year of the Raigne of
our late Soveraigne Lady Queen _Mary_ intituled _An Act touching the
Corporation of Physicians in_ London, did cause to be brought before us
the sixth day of this instant _September_ at our Collage house in _Pater
noster Rowe_ in _London_ one _Christofer Barton_; and we have examined
the said _Christofer Barton_, and upon his examination and other due
proofs we have found that the said _Christofer Barton_ hath unskilfully
practised the Art of Physick within the City of _London_ and Precinct
aforesaid upon the bodies of _Richard Ballady_ of _Aldermary_ Parish
_London_, _Michael Knight_ of St. _Buttolphs_ Parish _Aldgate London_
and the child of one _Jane Brigge_ and some others in the month of
_January_ in the year 1638, contrary to the Laws in that behalf made and
provided; whereupon we have imposed upon the said _Christofer Barton_ a
fine of 20_l._ for his evil practice in Physick aforesaid; and we have
also for the same cause sent you the body of the said _Christofer
Barton_, Willing and requiring you in the King’s Majesties name to
receive and keep him in safe custody as Prisoner, there to remain at his
own costs and charges without bail or mainprize untill he shall be
discharged of the said imprisonment by the President of the said
Collage, and by such persons as by the said Collage shall be thereunto
authorised according to the Statute in that behalf made, And this our
warrant shall be your discharge. Given at the said Collage the eleventh
day of September in the 16th year of the Raigne of our Soveraigne Lord
King _Charles_.”
Otwell Meverell,
Law. Wright,
Edmund Smith,
William Goddard.
To the Keeper of Woodstreet Compter,
London or his Deputy.
Note. This Christopher Barton, like James Leverett a Gardener (whose
case and the reference of it by the Court of Star Chamber to the
College, are recited in Goodall p. 447) and the more celebrated
Valentine Greatrex, was one of those Empirics, half enthusiasts and half
imposters, who pretended to perform cures by touching or stroaking.
Doctor Burgess’ Case.
(Goodall’s Proceedings 376)
Doctor _Burgess_ having been in Orders and now practising Physick in
_London_, was summoned before the President and Censors to give an
account by what authority he practised in this City contrary to the
Statute Law of this Kingdom. He ingenuously confessed; Not by any
authority, but by the indulgence of the College; and told them he had
formerly offered himself to examination, though he had not yet been
examined. The President replied, that by a Statute of the College (which
was read by the Register) they could not examine admit or permit any to
the practice of Physick, who had been in Holy Orders. Besides if the
Statutes of the College would allow it He told him an admission to a
person that had been so qualified was repugnant to the Statute Laws of
the Kingdom and Canons Ecclesiastical. He replied with great temper and
candour, that he would not contradict either the one or the other, but
lay down practice in _London_. After this he was convened a second time
before the President and Censors and interdicted the practice of Physick
within the College Liberties, to which he submitted and promised that he
would speedily betake himself to the Country. Some of the Fellows of the
College were complained of for consulting with him.
Doctor Winterton’s Letter to the President.
My service and best respects remembered.
Master President and my much honoured friend
Whereas I am given to understand that you have heard that the last year
I would not give way to two or three for the obtaining a Licence to
practise Physick, nor to a Doctor of Leyden to be incorporated with us
without giving publick testimony of his abilities, and I further
understand that yourself and the whole College are well pleased
therewith, I have cause to rejoice: and further thought fit at this time
to acquaint you with my real intentions, which I shall eagerly
prosecute, if I may have countenance and assistance. I have observed and
have grieved to see sometimes a Serving-man sometimes an Apothecary
oftentimes Masters of Arts (whereof some have afterwards assumed holy
Orders) admitted to a Licence to practice in Physick, or to be
incorporated to a Degree without giving any publique testimony of their
learning and skill in the Profession. And what hath followed hereupon?
The Minister hath neglected his own calling and trespassed upon
another’s, not without endangering the Souls of the people of God, and
the losse of the Lives of many of the King’s Subjects. The Serving-man
and Apothecary upon a Licence obtained have been presently made Doctors
by the breath of the people, and Doctors indeed undervalued. Masters of
Arts after Licence obtained have taken as I said holy Orders, that if
one Profession did faile them another might supply them. And
Incorporation being in an instant obtained by a little summe of money
which by orderly proceeding (I speake concerning the Doctor’s Degree)
would cost 12 years study in the University besides performance of
exercises and much expence; It is come to passe, that in the University
at this time I doe protest I doe not know any one that intends the study
of Physick, and practice thereof according to the Statutes. Chirurgeons
and Apothecaries are sought into, and Physicians seldome but in a
desperate case are consulted with, when the Patient is ready to dye and
in this kind we have too many examples. The consideration of these
mischiefs redounding to the Church, Commonwealth, University, and our
Profession, hath often troubled me, when I had no power to prevent them.
But now seeing it hath pleased God and the King to conferre such power
upon me, that without me neither Licence nor Degree in Physick can be
obtained at _Cambridge_ (for I have solicited Dr. _Nichols_ and Dr.
_Allet_ to joyne with me; and I have prevailed soe farre with them that
they will doe nothing without me) I doe intend by the grace of God to
give way unto noe man to obtain a Licence or Degree without keeping an
Act at the least, &c. unless it shall happen that with some one
particular man it shall be dispenced withall by supreme Authority or in
some extraordinary case. But all this will be to little purpose, unlesse
yourselfe and the College will solicite Dr. _Clayton_, his Majesties
Professor at _Oxford_, and others of the faculty there, to doe the like;
or rather Petition to my Lord’s Grace of _Canterbury_, who out of his
innate goodnesse, and zeale for the good of the Church and Commonwealth,
and the honour of the Universities, I am fully perswaded, will grant
what you desire, against Apothecaries and Chirurgeons, and all others
which without Licence and authority do practise Physick, I could wish
there were some course taken; I know there be already good Lawes, if
they were put in execution. This much in haste (as you may perceive by
my writing) I thought good to signify unto you, out of the grateful
respect which I beare unto yourself and the whole College, tending the
honour of our common Profession, which I will maintain as much as in me
lyes, and vindicate from the invasions of Usurpers and Intruders. I have
exceeded I feare the bounds of a Letter, but that you will pardon I hope
considering the occasion. And soe with a gratefull acknowledgment of
your love and favour towards me and an ingenuous profession of much
service I owe unto you, I take my leave, as one that will be ready, upon
the least signification, to embrace your commands, and execute them with
all alacrity.
Yours in all dutiful respects
RALPHE WINTERTON.
From the King’s College in Cambridge,
August 25th, 1635.
LILLY’S DIPLOMA.
THE LICENSE OF DR. SHELDON, ARCHBISHOP OF CANTERBURY, GRANTED TO WILLIAM
LILLY, THE ASTROLOGER, TO PRACTISE PHYSIC. _Dated A. D. 1670._
“Gilbertus providentia divina Cantuariensis Archiepiscopus totius Angliæ
Primas et Metropolitanus, dilecto nobis in Christo _Gulielmo Lilly_ in
Medicinis professori, salutem, gratiam, et benedictionem. Cum ex fide
digna relatione acceperimus te in arte, sive facultate medicinæ per non
modicum tempus versatum fuisse, multisque de salute et sanitate corporis
verè desperatis (Deo omnipotente adjuvante) subvenisse, eosque sanasse,
nec non in arte predicta multorum peritorum laudabili testimonio pro
experientia, fidelitate, diligentia et industria circa curas quas
susceperis, peragendas in hujusmodi arte Medicinæ merito commendatum
esse, ad practicandum igitur, et exercendum dictam artem Medicinæ in et
per totam Provinciam nostram Cant: (_Civitate Lond’ et circuitu septem
millarum eidem prox’ adjacen’ tantummodo exceptis_,) ex causis prædictis
et aliis nos in hoc per te juste moventibus, præstito primitus per te
juramento de agnoscendo Regium supremam potestatem in causis
ecclesiasticis et temporalibus ac de renunciando, refutando, et
recusando omni, et omni modo jurisdictioni, Potestati, Authontati, et
Superioritati, foraneis juxta vim formam et effectum Statui Parlamenti
hujus inclyti regni Angliæ liceat et non aliter neque alio modo te
admittimus, et approbamus tibique licentiam et facultatem nostras in hac
parte, Tenore præsentium quamdiu te bene et laudabiliter gesseris
benignè concedimus et elargimur. In cujus rei testimorium sigillum (quo
in hac parte utimur) presentibus apponi fecimus. _Dat. Undecimo Die
Mensis Octobris, Anno Domini 1670 Nostræque Translationis Anno Octavo._”
(LS) _Radulph Snowe, et_ } Registrarii.
_Edm. Sherman._ }
_S. Rich. Lloyd_, Sur.
Vicarii in Spiritualibus Generalis per provinciam Cantuariensem.
It does not appear in the memoirs of Lilly, as written by himself, that
he ever made an attempt to acquire the elements of medical science, but
was directed in his prescriptions by his astrological art only: but
having procured the above license he began to practise more openly, and
every Saturday rode to Kingston, where the poorer sort flocked to him
from several parts, and received much benefit by his prescriptions,
which he gave them freely, and without money; from those that were more
able he now and then received a _shilling_, and sometimes an
_half-crown_, if they offered it to him, otherwise he demanded nothing.
At the Court at the Queen’s Palace, the 26th of July, 1809. Present,
The King’s Most Excellent MAJESTY.
Archbishop of _Canterbury_.
Lord Chancellor.
Lord President.
Earl of _Liverpool_.
Earl of _Harrowby_.
Lord _Mulgrave_.
Mr. Chancellor of the Exchequer.
Mr. Secretary _Canning_.
Sir _David Dundas_, K. B.
Mr. _Ryder_.
WHEREAS there was this day read at the Board, the humble memorial of Sir
LUCAS PEPYS, baronet, Physician to His Majesty, and President of the
College or Commonality of the Faculty of Physic in _London_, setting
forth, that the said President and College have, with great care, pains,
and industry, revised, corrected, and reformed a book by them formerly
published, intituled _Pharmacopœia Collegii Regalis Medicorum
Londinensis_, prescribing and directing the manner of preparing all
sorts of medicines therein contained, together with the true weights and
measures by which they ought to be made: which book is now perfected and
ready to be published, and, it is conceived, will contribute to the
public good of His Majesty’s subjects, by preventing all deceits,
differences, and uncertainties in making or compounding of medicines,
if, for the future, the manner and form prescribed therein should be
practised by Apothecaries and others in their compositions of medicines:
the Memorialist therefore most humbly prays, that His Majesty will be
graciously pleased to enforce the observance thereof in such manner as
to His Majesty shall seem meet:—His Majesty this day took the said
memorial into His Royal consideration, and being desirous to provide in
all cases for the common good of his people, and being persuaded that
the establishing of the general use of the said book may tend to the
prevention of such deceits in the making and compounding of medicines,
wherein the lives and health of His Majesty’s subjects are so highly
concerned, hath therefore thought fit, by and with the advice of His
Privy Council, hereby to notify to all Apothecaries and others
concerned, to the intent they may not pretend ignorance thereof, that
the said book, called _Pharmacopœia Collegii Regalis Medicorum
Londinensis_, is perfected and ready to be published: and His Majesty
doth therefore strictly require, charge and command all singular
Apothecaries and others, whose business it is to compound medicines, or
distil oils or waters, or make other extracts, within any part of His
Majesty’s kingdom of _Great Britain_ called _England_, dominion of
_Wales_, or town of _Berwick-upon-Tweed_, that they, and every of them,
immediately after the said _Pharmacopœia Collegii Regalis Medicorum
Londinensis_ shall be printed and published, do not compound or make any
medicine or medicinal receipt or prescription, or distil any oil or
waters, or make other extracts that are or shall be in the said
_Pharmacopœia Collegii Regalis Medicorum Londinensis_ mentioned or
named, or in any other manner or form than is or shall be directed,
prescribed, and set down in the said book, and according to the weights
and measures that are or shall be therein limited, except it shall be by
the special direction or prescription of some learned Physician in that
behalf. And His Majesty doth hereby declare, that the offenders to the
contrary, shall not only incur His Majesty’s just displeasure, but be
proceeded against for such their contempt and offences, according to the
utmost severity of law.
STEPH: COTTERELL.
-------
33 _Geo._ 2.—_Burrow’s Reports._
Rex _vers._ Master and Wardens of the Company of Surgeons in London.
This was a cause that stood in the Crown-Paper, upon a Return to a
_Mandamus_ directed to the Master and Wardens of the Company of SURGEONS
of _London_: Reciting a Custom in the said City, “That every Freeman of
the said City, using and exercising the Art, Science, or Mystery of
_Surgery_ within the said City, hath _a Right_, in respect thereof, _to
have and take_ APPRENTICES, of the age of 14 years or upwards, to be
educated and instructed in the said Art, Science, or Mystery, for the
space of 7 years; which said _Apprentices_ have been used and accustomed
to be ADMITTED _and_ BOUND _in the presence or with the consent of the
Master and Wardens or some of them_;” And reciting that _Richard Guy_, a
Freeman of the said City, and also one of the Freemen of the said
Company of Surgeons of the said City, being desirous of taking _Melmoth
Guy_, his son, aged 15 years, to be his Apprentice for the Term of 7
years, to be educated and instructed in the said Art, Science, or
Mystery of Surgery, had often offered the said _Melmoth Guy_ to be
admitted and bound, before the said Master and Wardens or some of them,
his said Apprentice for the Term of 7 years, in the said Art, Science,
or Mystery, according to the said custom; and that the said _Melmoth
Guy_ had also often offered himself to them or some of them, to be
admitted and bound before them or some of them, an Apprentice to the
said _Richard Guy_ for the said Term, in the said Art, Science, or
Mystery; and that the said Master and Wardens had _not permitted_ the
said _Melmoth Guy_ to be bound Apprentice to the said _Richard Guy_, for
the Term of 7 years, before them or any of them, but have altogether
refused and still refuse so to do; and commanding them, immediately and
without delay, in due manner to _permit_ the said _Melmoth Guy_ to be
ADMITTED and BOUND, before them or some of them, _an Apprentice_ to the
said _Richard Guy_, for the Term aforesaid, in the said Art, Science, or
Mystery according to the said custom, or signify cause to the contrary.
The Return of the Master and Wardens admits the whole of the custom and
facts, to be as they are alledged in the Writ. But they further certify
and return, That long before the said _Richard Guy_ offered his said son
_Melmoth_, or the said _Melmoth_ offered himself to them or any of them,
to be admitted and bound before them or any of them, an Apprentice for
the said Term of 7 years, in the said Art, Science, or Mystery of
Surgery, according to the custom aforesaid; and after the making of a
certain Act of Parliament intitled “An Act for making the Surgeons of
_London_, and the Barbers of _London_, two separate and distinct
Corporations;” to wit, on the 7th day of _April_ in the Year of our Lord
1748, _at Stationers-hall_ in _London_ aforesaid; _John Freke_, then and
there being Master of the said Company of _Surgeons_, and _William Pyle_
and _Legard Sparham_, then being two of the Governors of the said
Company of Surgeons, before that time duly elected chosen appointed and
sworn into their said respective offices; and also _John Ranby_ esq.
_Cæsar Hawkins_ esq. _William Petty_ esq. _Joseph Sandford_, _William
Cheseldon_ esq. _James Hicks_, _Peter Sainthill_, _Noah Roul_, _John
Westbrook_, _William Singleton_, _James Phillips_, _Joseph Webb_, _Mark
Hawkins_, _Christopher Fullagar_, _Edward Nourse_, _John Girle_ esq. and
_John Townsend_, being then and there Nine and more of the Members of
the Court of Assistants of the said Company of Surgeons before that time
duly elected chosen appointed and sworn to be of the said Court of
Assistants, did hold a Court and Assembly, at _Stationers-hall London_
aforesaid, in order to treat and consult about and concerning the Rule
Order State and Government of the said Company of Surgeons; and that the
said _John Freke_, so being then and there Master of the said Company of
Surgeons, and the said _William Pyle_ and _Legard Sparham_, so being
then and there two of the said Governors of the said Company of
Surgeons, and the said _John Ranby_ esq. _Cæsar Hawkins_ esq. &c. &c.
&c. so being then and there nine and more of the Members of the said
Court of Assistants of that Company, being all then and there duly
assembled as aforesaid, did then and there, according to the Form of the
Statute in that case made and provided, make ordain constitute and
establish a certain BYE-LAW _and_ ORDINANCE, for the Regulation
Government and Advantage of the said Company of Surgeons, in the words
following. To wit, _Item_, It is _Ordained_ “That _no Member_ of the
said Company _shall take_ any Person into his Service, _as his
Apprentice_, to be instructed in the Art or Science of Surgery, for any
shorter time than 7 years; _which person_ SHALL UNDERSTAND _the_ LATIN
_Tongue_; his ABILITY _wherein_ shall, BEFORE _his being bound_, be
_tried by the Governors or one of them_. And every Freeman of this
Company or Foreign brother shall, within one month next after his
entertainment of any Person in order to being his Apprentice, _Present_
such Person before the Governors or two of them, _at a Court to be by
them held_; and _there bind_ such Person to him _before the said
Governors_, by Indenture; upon pain of forfeiting 20l. of lawful money:
And the Clerk of the said Company SHALL NOT BIND any Person who has
_not_ been so presented and examined, upon pain of forfeiting the sum of
10_l._ of lawful money and being liable to be removed from his said
Office. And no Apprentice shall be turned over from one Master to
another, but at a Court in the Presence of the Master and Wardens or one
of them: And One Guinea, and no more, shall be paid for the same.”
Which said _Ordinance_ or _By-Law_, so made as aforesaid, after the
making thereof as aforesaid, and long before the said _Richard Guy_ had
offered the said _Melmoth_, or the said _Melmoth_ had offered himself to
be admitted and bound before them or any of them, an Apprentice to the
said _Richard Guy_, for the Term of 7 years, in the said Art Science or
Mystery of Surgery, according to the Custom aforesaid, to wit, on the
9th day of the same _April_ in the said year of our Lord 1748, was
examined approved and allowed by the Right Honourable _Philip_ Lord
_Hardwicke_ the then Lord Chancellor of _Great Britain_, and by Sir
_William Lee_ Knt. the then Lord Chief Justice of His Majesty’s Court of
King’s Bench, and Sir _John Willes_ Knt. the then Lord Chief Justice of
His Majesty’s Court of Common Bench, according to the Form of the
Statute in that Case made and provided.
They further return That the said Ordinance or By-Law, so made examined
approved and allowed as aforesaid, hath ever since the making
examination approbation and allowance thereof as aforesaid, been, and
now is in full force and effect, and in no wise annulled revoked and
vacated.
They then return That after the making examination approbation and
allowance of the said Ordinance or By-Law as aforesaid, and before the
Issuing of this Writ, to wit, on the 3d of _May_ in the Year of our Lord
1759, at a certain Court then holden at _Surgeons Hall_ in the _Old
Bailey London_, by _Mark Hawkins_ then Master, and _Christopher
Fullagar_ and _Edward Nourse_ then Governors of the said Company of
Surgeons, (They the said _Mark Hawkins_, _Christopher Fullagar_ and
_Edward Nourse_, having before that Time been duly elected chosen
appointed and sworn into their said respective Offices, according to the
Form of the Statute in that Case made and provided,) came the said
_Richard Guy_ before the said Court, and offered and presented his said
Son _Melmoth_; And the said _Melmoth_ did then and there offer himself
to the said Master and Governors then being at that Court, to be
admitted and bound, before them, an Apprentice to the said _Richard
Guy_, for the Term of 7 years, in the said Art Science or Mystery of
Surgery; And that the said _Melmoth Guy_, being so offered and presented
as aforesaid, was then and there _examined_ touching his knowledge in
the _Latin_ tongue; And his ability therein, _in Pursuance_ of the
Ordinance or By-Law aforesaid, was then and there _fairly_, _candidly_,
and _impartially_ TRIED by the said _Edward Nourse_, he the said
_Edward_ being then and there one of the Governors of the said Company
of Surgeons: And that the said _Melmoth Guy_, UPON _such his
Examination_, and _upon his Ability_ in the _Latin Tongue_ being so as
aforesaid _tried_ by the said _Edward Nourse_ (so being one of the
Governors or Wardens of the said Company as aforesaid) _was found_, NOT
_to understand_ the _Latin_ Tongue, but to be WHOLLY IGNORANT _thereof_;
and was then and there so ADJUDGED _and declared_ to be, by the said
_Edward Nourse_, on such Trial.—Wherefore the said Court could not
consent, but did then and there refuse to permit the said _Melmoth Guy_
to be admitted and bound an Apprentice to the said _Richard Guy_, for
the Term of 7 years, in the said Art Science or Mystery of Surgery,
according to the Custom aforesaid, UNTIL such Time as the said _Melmoth
should understand_ the _Latin_ Tongue, as by the aforesaid Ordinance or
By-Law is in that behalf required.
They further return expressly and positively, That the said _Melmoth
Guy_, when he was so presented and offered as aforesaid, before the
aforesaid Master and Governors or Wardens of the said Company of
Surgeons, at the said Court, by them held for the purpose herein before
in that behalf mentioned, DID NOT understand the _Latin_ Tongue: but WAS
UTTERLY IGNORANT of the same: And that the said _Melmoth Guy_ hath NOT,
at any Time before or since his being so examined and tried as to his
Ability in the _Latin_ Tongue as aforesaid, _offered himself or been
presented_ to the said Company or Governors thereof, or any one of them
for the Time being, _to be tried_ as to his ability in the _Latin_
Tongue.
And therefore they cannot permit the said _Melmoth Guy_ to be admitted
and bound before them an Apprentice to the said _Richard Guy_ for the
said Term of 7 years, in the said Art Science or Mystery of Surgery,
according to the Custom aforesaid, as by the Writ they are commanded.
Mr. _Field pro Rege_ objected and argued “That this was an
_insufficient_ Return:” For that the _By-Law_ is a _bad_ one, being made
in _Restraint of a natural general and common Right_.
The _first_ Restriction of the common Right that every Person has of
learning and exercising any Art in any Place, except where it happens to
be restrained by Custom, is the Act of 5 _Eliz._ c. 4.
The City of _London_ have indeed, _by Custom_, a Power over the Youth of
their City, and a Power of excluding Foreigners from exercising Trades
within their City.
11 _Rep._ 53. _Taylors of Ipswich Case_, shews the _general_ Law to be,
that a person ought not to be restrained in his lawful Mystery.
_Private Companies_ can not make Laws contrary to the _General_ Law or
to the _Customs_ of great Cities: though great Cities and Towns may do
so. This distinction is mentioned in 6 _Mod._ 120.[176] _Cuddon_ v.
_Estwick_. And he cited the Case of _the City of London_ v. _Vanacker_,
in 1 _Ld. Raym._ 496. where _Holt_ Ch. J. said that “if the By-Law was
for the _Benefit of the City_, it would be good.”
This By-Law, therefore, is not good, without a particular Custom to
support it: for it _restrains a Common-Law Right_.
The Return does not aver that the understanding the _Latin_ Tongue _is_
a _necessary qualification_ of a Surgeon: And their Art may certainly be
performed _without_ it. At least, ’tis no objection to a young Person’s
being put out to _learn_ the Art; whatever it might be to the Admission
of a Man to _practise_ it.
Besides, “Understanding the _Latin_ Tongue,” is a very _indefinite_ and
_vague_ expression: And a very different idea of it would be conceived
by different persons; as by _Dr. Bentley_ (for instance) and by a[177]
Warden of the Surgeons Company.
Bad consequences too, may arise from this By-Law: And if so, it shall
not prevail. _Godbolt_ 254. S. C. with that of _the Taylors of Ipswich_,
(there called _The Cloth-workers of Ipswich Case_.)
If the _By-Law is bad_, this young man’s not understanding _Latin_ will
_not cure or help_ it. However, the By-Law does _not expressly forbid_
such a Person to be admitted: It is _not mandatory_, but only
_directory_.
Mr. Serjeant _Hewit contra_, was rising up, to speak in support of the
Return,
But Lord MANSFIELD said it was too plain to argue.
Whereupon, _Per Cur._
RETURN ALLOWED.
MIDWIFE’S OATH.
The Oath to be administered to a Midwife by the Bishop or his
Chancellor, when she is licensed to that office, is said to have been as
followeth. 2 _Burn Ecc. Law 469._
“You shall swear, first, that you shall be diligent and faithful and
ready to help every woman labouring with child, as well the poor as the
rich; and that in time of necessity you shall not forsake the poor woman
to go to the rich.
“_Item._ You shall neither cause nor suffer any woman to name or put any
other father to the child but only him which is the very true father
thereof indeed.
“_Item._ You shall not suffer any woman to pretend, feign, or surmise
herself to be delivered of a child, who is not indeed; neither to claim
any other woman’s child for her own.
“_Item._ You shall not suffer any woman’s child to be murdered, maimed,
or otherwise hurt, as much as you may: and so often as you shall
perceive any peril or jeopardy, either in the woman, or in the child, in
any such wise as you shall be in doubt what shall chance thereof, you
shall thenceforth in due time send for other midwives and expert women
in that faculty, and use their advice and counsel in that behalf.
“_Item._ You shall not in any wise use or exercise any manner of
witchcraft, charm, or sorcery, invocation, or other prayers, than may
stand with God’s laws and the King’s.
“_Item._ You shall not give any counsel or minister any herb, medicine,
or potion, or any other thing to any woman being with child, whereby she
should destroy or cast out that she goeth withal before her time.
“_Item._ You shall not enforce any woman being with child, by any pain
or by any ungodly ways or means, to give you any more for your pains or
labour in bringing her to bed, than they would otherwise do.
“_Item._ You shall not consent, agree, give, or keep counsel, that any
woman be delivered secretly of that which she goeth with, but in the
presence of two or three lights ready.
“_Item._ You shall be secret, and not open any matter appertaining to
your office, in the presence of any man, unless necessity, or great
urgent cause do constrain you so to do.
“_Item._ If any child be dead born you yourself shall see it buried in
such secret place, as neither hog, or dog, nor any other beast may come
unto it; and in such sort done, as it be not found or perceived, as much
as you may: and that you shall not suffer any such child to be cast into
the jaques or any other inconvenient place.
“_Item._ If you shall know any midwife using or doing any thing contrary
to any of the premises, or in any otherwise than shall be seemly or
convenient, you shall forthwith detect, open, or shew the same to me or
my Chancellor for the time being.
“_Item._ You shall use yourself in honest behaviour unto the woman,
being lawfully admitted to the room and office of Midwife, in all things
accordingly.
“_Item._ That you shall truly present to myself or my Chancellor, all
such women as you shall know from time to time to occupy and exercise
the room of a midwife within my aforesaid diocese and jurisdiction of ——
without any licence and admission.
“_Item._ You shall not make or assign any deputy or deputies, to
exercise or occupy under you in your absence the office or room of a
Midwife, but such as you shall perfectly know to be of right honest and
discreet behaviour; and also apt, able, and having sufficient knowledge
and experience to exercise the said room and office.
“_Item._ You shall not be privy, or consent, that any priest or other
party shall in your absence, or in your company, or of your knowledge or
sufferance, baptize any child by any mass, latin service, or prayers,
than such as are appointed by the laws of the Church of England; neither
shall you consent that any child born by any woman who shall be
delivered by you shall be carried away without being baptized in the
parish by the ordinary minister where the said child is born, unless it
be in case of necessity baptized privately according to the Book of
Common Prayer: but you shall forthwith, upon understanding thereof,
either give knowledge to me the said Bishop, or my Chancellor for the
time being.
“All which articles and charge you shall faithfully observe and keep: So
help you God, and by the contents of this book.”
(Book of Oaths.)
-------
Certificate of the College of Physicians concerning the Midwives of
London.
May it please your Lordships,
Upon consideration taken of this petition hereunto annexed, presented
unto the President and College of Physicians by the Midwives, We, the
College of Physicians, conceiving the said complaint to be grounded upon
just grievance, and to conduce to a general good, in the timely
prevention of so growing an inconvenience, have particularly informed
ourselves concerning the said business, and do certify that the like
project was formerly attempted by another, which is now intended by the
doctour, and therefore was referred by _K. James_, of blessed memory, to
the Lords of the Council, and by their Lordships to the College of
Physicians, to certify their opinion thereof; who upon mature
deliberation made report to their Lordships of the unfitness of the said
proposition, there being no such custom ever used either here or in any
other kingdom, Wherefore the same was rejected and died. And whereas we
understand that the said Doctour doth ground his complaint upon the
insufficiency of Midwives, whom he would undertake to teach, though
licensed by your Lordship’s officers, whom we do believe to be as
careful in admitting of Midwives as they are in other kingdoms; only we
are informed that divers do practise without licence, and some are
deputies to others, through whom we probably conceive some abuses to
grow, because their abilities and honesty of lives and conversation are
not testified upon oath as others are who are licenced. But for adding
sufficiently to them by the Doctour’s instruction, he is not otherwise
able to instruct them than any other the meanest Fellow of our College,
unless he understand it by the use of iron instruments, which Physicians
and Chirurgeons may practice if they please; and some do and have done
with as good success and dexterity as himself, and therefore there is no
necessity of a sole dependance upon him. And it being true that is
reported by the Midwives, the Doctour doth often refuse to come to the
poor, they being not able to pay him according to his demands; and for
the rich he denies them his help until he hath first bargained for great
rewards; which besides that they are in themselves dishonest, covetous,
and unconscionable courses, they are also contrary to the laws and
statutes of our College, to which by oath he is bound. We therefore for
this and other reasons we can alledge, conceive his suit to be
unreasonable and inconvenient. And so do humbly leave the same to your
Lordships’ grave judgments, unto whom his Majesty referred the
consideration thereof.
(Goodall’s Proceedings of the College against Empiricks, p. 465.)
59 _Geo._ 3. _c._ 41.
An Act to establish Regulations for preventing Contagious Diseases in
_Ireland_. 14th _June_ 1819.
Whereas it has become highly expedient to provide for and secure
constant attention to the health and comforts of the inhabitants of
_Ireland_, and for the prevention of contagious disease, more especially
in the cities and great towns thereof; and that for that purpose
officers of health should be annually appointed in all cities and large
towns, and that such officers should also be appointed in such towns,
parishes, and villages in the country, as shall think it proper or
necessary to adopt such a measure; be it therefore enacted by the King’s
most excellent Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, That within one calendar
month next after the passing of this Act, and within one calendar month
after the twenty-fifth day of _March_ in the year one thousand eight
hundred and twenty, and in every subsequent year, in every city and town
in _Ireland_, which shall contain one thousand inhabitants, or upwards;
and in every city and large town where the Lord Lieutenant, or other
Chief Governor or Governors of _Ireland_, shall think fit to direct that
this Act shall be carried into effect, the inhabitant householders of
each and every parish in such city or town, assembled in vestry, shall
and they are hereby required to elect and appoint any number of persons
not less than two, and not more than five, to be officers of health for
such parish, for the year ending on the twenty-fifth day of _March_ next
after such election, and until new officers of health shall be in like
manner appointed for such parish for the year ensuing.
II. And be it further enacted, That such officers of health, so to be
elected and appointed, shall act in the execution of this Act without
any salary, fee, or reward whatsoever; and that the expenses to be
incurred by such officers in the execution of their Duties under this
Act, not exceeding such sums as shall be specified and determined on,
and limited and directed at the vestry to be assembled for the choice of
such officers, or at any subsequent vestry to be called by the said
officers, shall be raised and levied on the inhabitants of such parish,
in such manner and form as other parochial assessments are raised and
levied, and shall by the said officers of health be applied to the
purposes of this Act; and the expenditure thereof shall be accounted for
by the said officers in such manner as other parochial assessments are
accounted for, and either at such times as other assessments are
accounted for according to law, or at such other times and periods of
the year, and as often from time to time as shall be directed at the
vestry to be assembled for the appointment of such officers, or at any
other vestry to be called by two inhabitants of such parish; and that
copies of all such accounts shall once in every year, before the
twenty-fifth day of _April_ in each year, be transmitted by such
officers of health to such public officer, or office or place in
_Dublin_, as shall be from time to time directed by the Lord Lieutenant,
or other Chief Governor or Governors of _Ireland_ for the time being, or
his or their Chief Secretary.
III. And be it further enacted, That it shall and may be lawful for the
inhabitant householders of any parish, town, or place whatever, in
vestry assembled, in any part of _Ireland_, to appoint such officers of
health for such parish, in case they shall think fit and expedient so to
do; and to raise such sum or sums of money, to be levied and accounted
as directed by this Act, in like manner as by this Act is required to be
done in cities and large towns as aforesaid.
IV. Provided always, and be it enacted, That no person shall be
compelled or compellable to act or serve as such officer of health, in
any parish or place, for any longer term than one year, nor to act or
serve as such officer for any year commencing within three years after
the end of any year for which he shall have served as aforesaid.
V. Provided also, and be it enacted, That it shall and may be lawful for
the inhabitant householders of any parish in any county, city, town, or
place in _Ireland_, to elect the churchwardens of such parish for the
time being to be officers of health under this Act, in case they shall
think fit so to do; and it shall be lawful for such churchwardens, and
they are hereby authorized and required, to act as such officers of
health accordingly, under the present provisions of this Act.
VI. Provided also, and be it enacted, That where any city or town as
aforesaid, containing one thousand inhabitants, or where the Lord
Lieutenant or other Chief Governor or Governors of _Ireland_ shall
direct this Act to be carried into execution, in case the inhabitant
householders in any parish or parishes in such city or town shall
neglect or refuse to elect and appoint such officers of health, within
such time as is required by this Act, or as shall be required by any
order of such Lord Lieutenant, or other Chief Governor or Governors, it
shall and may be lawful for the Justices of the Peace assembled at the
Quarter Sessions, or any adjournment thereof, for the county, city, or
town within which such parish shall be situate, and the said Justices
are hereby authorized and required, to appoint such officers of health
in and for such parish, and also at the same time to appoint and limit
what sum shall be raised by assessment on such parish for the purposes
of this Act, and such sum shall and may be raised and levied
accordingly, in like manner as any other parish assessments, and as if
the same had been authorised by the vestries of such parishes, and shall
be applied and accounted for in the manner herein before directed.
VII. And be it further enacted, That it shall and may be lawful for any
one or more of the persons so to be appointed officers of health, and he
and they is and are hereby authorized, empowered, and required to cause
and direct all streets and lanes, and all yards and courts adjoining
thereto, and all houses let in several tenements and room-keepers, and
the yards, gardens, or places belonging to such houses, to be cleansed
and purified, and all nuisances prejudicial to health to be removed
therefrom; and all public sewers to be cleansed, and where necessary, to
be covered over, and all lodgments of standing water to be filled up or
drained off; and also to cause and direct all other matters and things
to be done for the ventilation, fumigation, and cleansing of any house
whatever, in which fever or other contagious distemper shall have
occurred, and for the washing and purifying the persons and clothes of
the inhabitants of every such house, as shall appear to any such officer
of health to be indispensably necessary for the preservation and
security of the inhabitants of such parish against the danger of
contagion, unless due precautions shall have previously been taken for
such purposes by the inhabitants of such house; and it shall be lawful
for all constables and peace officers, and they are hereby authorized,
empowered, and required, to be aiding and assisting to such officers of
health in the doing all matters and things whatsoever in the execution
of this Act.
VIII. And be it further enacted, That in any parish or parishes in any
city or town where any such officers of health shall be appointed as
aforesaid, and where no power or authority is or shall be vested in or
given to Magistrates or Corporation of such city or town, to regulate
the sweeping and cleansing of the streets therein, and the collecting
and disposing of the dirt, dung, and filth of the said streets, and also
in any city or town whatever, where the scavengers or other persons who
shall be entrusted with or contract for the cleansing and sweeping of
the streets, under the direction of the Magistrates or Corporation or
not, shall neglect or omit to cleanse and sweep the streets and lanes of
such city or town, twice at least in every week, it shall and may be
lawful for such officers of health to cause and direct such streets to
be swept and cleansed, and the dirt, dung, and filth collected from the
same to be sold and disposed of, and the produce thereof to be applied
for the purposes of this Act, and in diminution of the charge on the
parish for which such officers shall be appointed: provided always, that
in all cases where the Magistrates or Corporation of any city or town
have or shall have power and authority to regulate the sweeping or
cleansing of the streets, or where any scavenger or other person shall
be appointed or shall have contracted for that purpose, the said
officers of health shall give twenty-four hours notice to the chief
magistrate of such city or town, and to the scavenger or other person
contracting for the cleansing of such streets, of the neglect or
omission to sweep and cleanse the same; and that at the expiration of
such twenty-four hours, in case the said streets shall not be duly swept
and cleansed, it shall be lawful for the said officers of health to
cause the same to be swept and cleansed, and the produce thereof to be
disposed of as aforesaid, any act, charter, law, usage or custom to the
contrary notwithstanding.
IX. And for the preventing the danger of contagion and other evils, from
the unrestrained intercourse of strolling beggars, vagabonds, and idle
poor persons seeking relief; be it enacted, That from and after the
passing of this Act, it shall and may be lawful for any one Justice of
Peace within his jurisdiction, or any churchwarden of any parish in any
city, town, or place in _Ireland_, or for any officer of health
appointed in any parish in pursuance of this Act, and they are hereby
respectively empowered and required, to apprehend all idle poor persons,
men, women, or children, and all persons who may be found begging or
seeking relief, or strolling or wandering as vagabonds within any parish
or place, and to direct and cause all such idle persons, beggars, and
vagabonds to be removed and conveyed out of and from such parish and
place, in such manner and to such place as the nature of the case may
require; and it shall and may be lawful for any such Justice of the
Peace, upon his own view, or upon the complaint of any churchwarden or
officer of health to commit any such strolling beggar or vagabond, or
idle poor person, to any Bridewell or House of Correction, or other
public place of confinement, for any time not exceeding twenty-four
hours previous to their removal or departure out of such parish; and it
shall and may be lawful for any churchwarden or officer of health in
such parish, during such period of twenty-four hours, to cause the
persons and clothes of such idle poor persons, beggars, or vagabonds so
committed, to be washed and cleansed; and it shall be lawful for the
Justices of any county, city, or town assembled at any Quarter Sessions
or adjournment thereof, to constitute and appoint any suitable
unoccupied building to be a Bridewell or place of confinement for such
idle persons, beggars, and vagabonds, with the consent and approbation
of the owner of such house or building, and to apply to and agree with
such owner for such purpose accordingly; and every beadle, constable,
and peace officer within their respective districts or jurisdictions,
shall be and are hereby required to be assistant to the said Justices of
Peace, churchwardens, and officers of health, in such apprehension, and
confinement, and treatment of such idle poor persons, beggars, and
vagabonds, pursuant to the provisions of this Act.
X. And be it further enacted, That if any person or persons shall resist
or oppose any Justice of Peace, churchwarden, or officer of health, in
the execution of the powers of this Act, or in the doing or performing
of any matter or thing in the execution of this Act, every such person
or persons so guilty of resisting or opposing shall, on conviction
thereof before any two Justices of Peace or Magistrates within their
jurisdiction, on the oath or affirmation of any one or more credible
witness, or on the confession of the party so offending, incur such
penalty, not less than ten shillings nor more than five pounds, as such
Justices of Peace or Magistrates shall in their discretion think proper
to adjudge and inflict; or in failure of making payment of such fine,
such offenders shall and may be committed to the Common Gaol or House of
Correction for any time not exceeding three calendar months; and no such
conviction shall be quashed for informality, nor shall be removed or
removable by _certiorari_ or otherwise, nor subject to any appeal
whatever.
XI. And be it further enacted, That if any action shall be brought
against any person or persons for any thing done in the execution of any
of the powers or duties by this act given or required, the defendant or
defendants may in every such suit plead the general issue, and give this
act and the special matter in evidence; and in every case where the
plaintiff or plaintiffs in such suit shall fail, the court in which such
suit shall be carried on shall award costs to the defendant or
defendants.
-------
14 _Geo._ 3. _c._ 49.
An Act for regulating Mad-Houses.
Whereas, many great and dangerous abuses frequently arise from the
present state of Houses kept for the reception of Lunaticks, for want of
regulations with respect to the persons keeping such houses, the
admission of Patients into them, and the Visitation by proper persons of
the said Houses and Patients: And whereas the law, as it now stands, is
insufficient for preventing or discovering such abuses; may it therefore
please your Majesty that it may be enacted; and be it enacted by the
King’s most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, That, from and after the
Twentieth day of November One thousand seven hundred and seventy-four,
if any person or persons, in that part of _Great Britain_ called
_England_, the dominion of _Wales_, or town of _Berwick upon Tweed_,
shall, upon any pretence whatsoever, conceal, harbour, entertain, or
confine, in any house or place, kept for the reception of Lunaticks,
more than one Lunatick, at any one time, without having such Licence for
that purpose as is herein-after directed, (except such Lunaticks as are
committed by the Lord High Chancellor of _Great Britain_, or Lord
Keeper, or Commissioners for the Custody of the Great Seal for the time
being), every such person shall, for every such offence, forfeit and pay
the sum of Five hundred Pounds.
And, in order that proper persons may be appointed for visiting such
houses as shall be licenced and kept for the reception of Lunaticks,
within the cities of _London_ and _Westminster_, and within seven miles
of the same, and within the county of _Middlesex_, be it further enacted
by the authority aforesaid, That the President and Fellows of the Royal
College of Physicians in _London_ for the time being, at a general
meeting of the said College, to be held upon the last day of
_September_, or if that day falls upon Sunday, then upon the first day
of _October_, in every year, shall elect Five Fellows of the said
College for granting such Licences as aforesaid, within the said cities
of _London_ and _Westminster_, and within seven miles of the same, and
within the said county of _Middlesex_, according to the directions of
this act; and the said Five Fellows, so elected, shall be and are hereby
declared to be, Commissioners for granting such Licences within the
limits aforesaid, for the year then next ensuing; provided that two, at
least, of the said Fellows, to be so elected, shall be persons who have
not acted as Commissioners for the preceding year; and that no person
whatsoever shall be capable of being elected, or of acting as a
Commissioner, for more than three years successively.
And be it further enacted, That in case, at any time of election there
shall not be found a sufficient number of Fellows qualified or willing
to act as Commissioners, the said President and Fellows are hereby
required, upon every such deficiency, to elect one or more from among
the Licenciates to supply the same.
And be it further enacted by the authority aforesaid, That as often as
any of the Commissioners, to be elected as aforesaid, shall die, or
refuse to act, the said President is hereby required to call a meeting
of the said Fellows, within fourteen days next after such death or
refusal shall be known to the said President, in order to elect a
Commissioner in the room of every Commissioner who shall so die, or
refuse to act; and every Commissioner so to be elected, shall be, and is
hereby vested with the same power and authority, in all respects
whatsoever, as the Commissioner in whose place he shall be chosen was
vested with.
And be it further enacted, That every person who shall be elected a
Commissioner to act within the cities of _London_ and _Westminster_, and
within seven miles of the same, and within the county of _Middlesex_, as
aforesaid, shall, within ten days after such election, take the
following Oath; (that is to say),
I _A. B._ do swear, That I will faithfully and impartially execute all
the trusts committed unto me, by virtue of an Act of Parliament, made
in the Fourteenth year of the reign of King _George_ the Third,
intituled, _An Act for regulating Mad-houses_; and that I will not,
directly or indirectly, give notice, or cause notice to be given to
the Keeper, or person having the care of any house or place licensed
for the reception of Lunaticks, of the time of visitation of such
house or place.
_So help me_ GOD.
Which Oath it shall and may be lawful for the President of the College
of Physicians for the time being to administer to every such
Commissioner, so to be elected as aforesaid, upon the day he shall be so
elected, or within ten days afterwards: And in case any person who shall
be elected a Commissioner as aforesaid, and who shall be summoned by the
President of the said College to attend the said President to take the
said oath, at such time as shall be mentioned in such summons, shall
refuse or neglect to attend, or attending, shall refuse to take the said
oath, he shall forfeit and pay the sum of Five Pounds, to be applied to
the use of the said College.
And be it further enacted by the authority aforesaid, That the said
Commissioners, so to be elected as aforesaid, or any three or more of
them, shall meet in the hall, or some other convenient place in the said
College, as often as they shall think fit, so as such meetings do not
interfere with the meetings of the Board of Censors, nor with any other
general meeting of the College of Physicians; and that at all meetings
of the said Commissioners to be holden for the purposes of this act, the
Commissioner who is of the longest standing in the College shall be
Chairman.
And be it further enacted, That the Treasurer of the said College for
the time being shall be the Treasurer for the purposes of this act; and
that the said Commissioners, or any three or more of them, shall at some
meeting, to be holden within fourteen days next after they shall be
elected as aforesaid, chuse and appoint a proper person to be their
Secretary for the year then ensuing; and such Secretary shall be paid
such salary or gratuity, for his trouble and attendance in the execution
of his office, by the said Treasurer, as the said Commissioners, or any
three or more of them, shall order and direct; and every such Secretary
shall, at the next meeting of the said Commissioners after he shall be
so appointed, take the following Oath:
I _A. B._ do swear, That I will faithfully execute all such trusts as
shall be committed to my charge, as Secretary to the Commissioners for
executing an Act of Parliament, made in the fourteenth Year of the
reign of King _George_ the Third, intituled, _An Act for regulating
Mad-houses_; and that I will keep secret all such matters as shall
come to my knowledge, in the execution of my office, (except when
required to divulge the same by legal authority).
_So help me_ GOD.
And be it further enacted, That the said Commissioners, or any three or
more of them, shall meet annually on the third _Wednesday_ in the month
of _October_, or within ten days afterwards, in order to grant Licences
to persons for keeping houses for the reception of Lunaticks for one
year, from the twentieth day of _November_ then next ensuing, within the
said cities of _London_ and _Westminster_, and within seven miles of the
same, and within the said county of _Middlesex_; but notice of the
place, and of the day and hour of every meeting for granting such
Licences, shall always be published three several times in the _London
Gazette_, before the day of meeting for granting any such Licences,
(which Licences they are hereby required to grant to all persons who
shall desire the same); and all Licences to be granted by the said
commissioners shall be duly stamped with a five shillings stamp, and
shall be under the hands and seals of three or more of the said
commissioners, for each of which Licences there shall be paid to the
said secretary, by the person applying to take out the same, the sums
following; (that is to say), for each and every house wherein there
shall be kept any number of Lunaticks, not exceeding ten, the sum of ten
pounds; and for each and every house wherein there shall be kept above
ten, the sum of fifteen pounds, and no more, over and above what shall
have been paid for the said stamp; which money shall be paid over by the
said secretary to the treasurer; and the further sum of six shillings
and eightpence, and no more shall be paid on every such licence to the
said secretary for his fee.
Provided always, That no one Licence shall authorise any person or
persons to keep more houses than one for the reception of Lunaticks; nor
shall any Licence, to be granted by virtue of this act, continue in
force for any longer time than for one year.
And be it further enacted by the authority aforesaid, That no
commissioner, to be appointed as aforesaid, shall, directly or
indirectly, during the time he shall be a commissioner, be interested in
keeping any house for the reception of Lunaticks, upon pain of
forfeiting, for such offence, the sum of fifty pounds.
And be it further enacted, That the president of the said College of
Physicians for the time being shall, and is hereby required to cause
summons to be sent to the said several commissioners, requiring them to
attend at the first meeting after they shall be appointed commissioners,
as aforesaid; all which summons shall be sent by the beadle, or such
other person belonging to the said College, as the said president shall
think proper; and shall be left at the respective houses, or usual
places of abode, of each commissioner.
Provided nevertheless, That in case any two commissioners shall, at any
time or times, think proper to call a meeting of the said commissioners,
such two commissioners may themselves cause the like notice to be given,
and to be sent, in manner aforesaid, to the other commissioners,
requiring their attendance at such time and place as shall be expressed
in such notice.
Provided always, That at all meetings of the said commissioners in the
execution of this act, in case of an equality of votes, the chairman
shall have the casting vote.
And be it further enacted, That the said commissioners, or any three or
more of them, either by themselves or with their secretary, as they
shall think fit, shall, and they are hereby required, once at least in
every year, and whenever required by the Lord High Chancellor, or Lord
Keeper, or Commissioners for the custody of the Great Seal, or by the
Lord Chief Justice of the Court of King’s Bench, or by the Lord Chief
Justice of the Court of Common Pleas, for the time being, to visit and
inspect all such houses as shall have been licensed by them, as
aforesaid, between the hours of eight and five in the day-time; and may,
in like manner, at any other time or times, within the hours aforesaid,
visit and inspect all such houses as often as they, or any three or more
of them, shall think necessary, and shall have, at all such times,
liberty and power to continue in such house, and to examine the persons
confined as Lunaticks therein, for such time as they shall think proper.
And be it further enacted, That the said commissioners, or their
secretary, shall, at every such visitation, make minutes, in writing, of
the state and condition of all such houses which they shall so visit, as
to the care of the patients therein, and all such other particulars as
they shall think deserve their notice, together with their observations
thereupon; all which minutes shall, within one week next after such
visitation, be by the said secretary entered, by way of report, in a
register to be kept by him in the said College of Physicians for that
purpose, and the same shall be read to, and signed by, the said
commissioners, or any three or more of them, at their next meeting: but
no minute which tends to impeach the character of any house shall be so
entered, unless such minute shall have been previously signed by three
or more of the said commissioners who shall have been present at such
visitation; and in case the commissioners, upon their visitation, shall
discover any thing that, in their opinion, shall deserve censure or
animadversion, they shall, in that case, report the same: and such part
of their report, and no more, shall be hung up in Censor’s room of the
College, to be perused and inspected by any person who shall apply for
that purpose.
And be it further enacted, That in case the keeper of any house or place
for the reception of Lunaticks, within the cities of _London_ or
_Westminster_, or within seven miles distance thereof, or within the
county of _Middlesex_, shall refuse all or any of the said
commissioners, at the time of their visitation, admittance into such
house or place as aforesaid, with or without their secretary, the master
or keeper of such house or place shall, for such offence, forfeit his
licence.
And be it further enacted, That the said commissioners, or any three or
more of them, shall, from time to time, cause an exact account to be
kept of all their proceedings; and all such accounts shall be entered in
the same register as the minutes taken at their visitations are directed
to be entered as aforesaid; and the said register shall be lodged in the
College of Physicians in a strong chest or box, which said chest or box
shall be under the care of the beadle or house-keeper belonging to the
said College, and shall be carefully locked up, from time to time, by
the secretary to the said commissioners, and the key thereof kept by
such secretary; which said register shall be deemed to belong to the
said commissioners, and the key of the said chest or box shall be
delivered over to every succeeding secretary, whenever the former
secretary shall go out of office, and be kept by such succeeding
secretary in manner aforesaid, for the use of the said commissioners.
Provided always, That the president of the said College shall have
liberty to inspect the said register, from time to time, as often as he
shall think proper, provided such inspection be made at the College, and
in the presence of the secretary to the said commissioners.
And be it further enacted, That if any person shall apply to one of the
commissioners, in order to be informed whether any particular person or
persons have been confined in any of the said licensed houses, and the
said commissioners shall think it reasonable to permit such inquiry to
be made, and shall sign an order, directed to the secretary for that
purpose; he, the said secretary, is hereby required, upon the receipt of
such order, to make search upon his papers: and if it shall appear upon
such search, that the person or persons so enquired after have been
confined in any of the said houses, the said secretary shall immediately
acquaint the persons so applying with the name of the keeper in whose
house, and also the names of those by whose direction and advice, such
person or persons have been so confined.
And be it further enacted, That the said treasurer shall, and is hereby
required to pay to each of the commissioners for every time they shall,
in obedience to this act, or any requisition therein contained, visit
and inspect any such licensed house or place, as aforesaid, within the
limits aforesaid, the sum of one guinea; and shall also pay and
discharge all such reasonable expenses of the said commissioners as they
shall, from time to time, incur in the execution of this act; and the
said treasurer is hereby required, from time to time, to keep an exact
and true account of all monies by him received and disbursed in relation
to this act, and shall enter such account in a book to be kept for that
purpose; which book shall be lodged in the box or chest where the
register of the proceedings of the said commissioners is directed to be
kept, as aforesaid: which accounts shall be produced to the president of
the said college, when required by the said president and elects, to be
examined and settled by them; and if, upon such examination, the said
accounts shall appear to be just and reasonable, the same shall be
allowed and signed by the said president, and at least four of the
elects, and shall be by the said president reported, together with the
other accounts, at the next General Meeting of the said college; and the
said account, being so allowed, signed, and reported, shall be a full
discharge to the said treasurer for so much money as shall in such
account appear to have been disbursed by him, on account of the
execution of this act.
And, in order that the said commissioners may know when any patient is
received into any such licensed house or place, as aforesaid, be it
further enacted by the authority aforesaid, That the keeper of every
such licensed house or place within the said cities of _London_ and
_Westminster_, and within seven miles of the same, and within the said
county of _Middlesex_, is hereby required, within the space of three
days after any patient shall be received into any such licensed house or
place, (except such pauper lunaticks as shall happen to be sent there by
parish officers), to cause notice thereof to be given to the secretary
to the said commissioners, which notice shall contain the name of every
such person received as a lunatick into such house or place, the name or
names, and place or places of abode, of the person or persons by whose
direction such lunatick was sent to such house or place, and also the
name and place of abode of the physician, surgeon, or apothecary, by
whose advice such direction was given; all which notices shall be sent
sealed up, directed _To the Secretary to the Commissioners for licensing
Houses for the Reception of Lunaticks, to be left with the Beadle of the
College of Physicians in London_; all which notices the said beadle is
hereby directed to receive, and to deliver to the said secretary, within
two days after the same shall come to his hands; and the secretary is
hereby required to file and preserve all such notices, and also to
enter, or cause a copy or extract thereof to be entered, in the
register, within two days after the receipt of such notices; and every
keeper of any such licensed house or place, who shall admit, harbour,
entertain, or confine, any person as a lunatick, without having an
order, in writing, under the hand and seal of some physician, surgeon,
or apothecary, that such person is proper to be received into such house
or place as a lunatick, or shall receive any lunatick into any such
house or place, having such order, and shall not give notice thereof to
the secretary of the said commissioners, within the time, and in the
manner aforesaid, shall forfeit and pay the sum of One hundred pounds.
And, in order that such houses or places for the reception of lunaticks
as are not situated within the limits aforesaid may be put under some
regulation, be it further enacted, That no house, which is not within
the said city of _London_, or within seven miles of the same, or within
the said county of _Middlesex_, shall be kept for the reception of more
than one lunatick, unless such house or place shall be licensed by the
Justices of the Peace, at some Quarter Sessions of the Peace to be
holden for the county or place wherein such house or place shall be
situated.
And be it further enacted, That the Justices of the Peace, at any
General Quarter Sessions of the Peace, to be holden for any such County
or Place, are hereby authorised and required to grant Licenses to such
person and persons as shall apply for that purpose, such person or
persons paying for each License the sums following; (that is to say),
for each and every house, wherein there shall be kept any number of
lunaticks, not exceeding ten, the sum of Ten Pounds, and no more; and
for each and every house, wherein there shall be kept above the number
of ten lunaticks, the sum of Fifteen Pounds, and no more; and that no
one License shall authorise any person or persons to keep more houses
than one for the reception of lunaticks, nor shall any such License be
granted for any longer term than for one year; and the said Justices
shall, at the time of granting such Licenses as aforesaid, nominate and
appoint two Justices of the Peace for the said County, and also one
Physician, to visit and inspect all such houses as shall be licensed by
such Justices as aforesaid; and the said Justices and Physicians, so
nominated and appointed, or any two of them, whereof the Physician to be
one, may, and are hereby authorised and impowered to visit, in the
day-time, every house so licensed, within the County where such house or
place shall be so licensed, as often as they shall think fit.
And be it further enacted, That the said Justices and Physicians, so
nominated, or such of them as shall visit any licensed house as
aforesaid, may, at every visitation, if they think necessary, make, or
cause to be made, minutes, in writing, of the state and condition of
every house which they shall visit, as to the care of the patients
therein, and all such other particulars as they shall think deserve
their notice, together with their observations thereupon; all which
minutes shall be entered, by way of report, in a Register to be kept for
that purpose, by the Clerk of the Peace for the County where such house
or houses shall be licensed as aforesaid, a copy whereof shall, from
time to time, be sent by the said Clerk of the Peace to the Secretary to
the said Commissioners, to be by him inserted in a separate Register;
which Register shall be kept in the same box, and in the same manner, as
the Register belonging to the said Commissioners is herein-before
directed to be kept; and the said Clerk of the Peace shall be paid such
sum and sums of money for his trouble in the execution of this Act as
the said Justices shall order and direct; and all money to be paid for
such Licenses as shall be granted by the said Justices of the Peace, as
aforesaid, shall be paid to the Clerk of the Peace, as aforesaid, who
shall keep an account thereof, in a book or books to be kept for that
purpose, and shall account for the same to the said Justices, as often
as he shall be required so to do; and all expenses attending the
execution of this Act, (except within the cities of _London_ and
_Westminster_, and within seven miles thereof, and also except within
the said County of _Middlesex_), shall be defrayed out of such money as
aforesaid, in such manner as the said Justices shall, from time to time,
within their respective Counties, order and direct.
And be it further enacted, That at such General Quarter Session, when
such Justices and Physician shall be appointed as aforesaid, the Clerk
of the Peace shall take the like Oath as is appointed by this Act to be
taken by the Secretary of the Commissioners.
And be it further enacted, That in case the keeper of any house or place
for the reception of lunaticks, not being within the said city of
_London_ or _Westminster_, or within seven miles of the same, or within
the said County of _Middlesex_, shall, in the day-time, refuse the said
Justices and Physician, on such visitation, admittance, at any time or
times, into such house or place as aforesaid, the master or keeper of
such house or place shall, for such offence, forfeit his License.
And be it further enacted by the Authority aforesaid, That the keeper of
any house or place for the reception of lunaticks, not being within the
said city of _London_ or _Westminster_, or within seven miles of the
same, or within the said County of _Middlesex_, shall, and is hereby
required, to give such notice, as aforesaid, of the receipt of every
such lunatick (except such pauper lunaticks as shall happen to be sent
there by parish officers) to the Secretary to the Commissioners, at the
College of Physicians aforesaid, within the space of fourteen days from
the time of such lunatick’s being received into any such house or place;
and every keeper of any such licensed house or place, who shall admit,
harbour, entertain, or confine, any person as a lunatick, without having
an order in writing, under the hand and seal of some Physician, Surgeon,
or Apothecary, that such person is proper to be received into such house
or place as a lunatick, or shall receive any lunatick into any such
house or place, having such order, and shall not give notice thereof to
the Secretary of the said Commissioners, within the time, and in the
manner aforesaid, shall forfeit and pay the sum of One hundred pounds.
And be it further enacted, That no such License shall be granted as
aforesaid, either by the said Commissioners or Justices of the Peace, as
aforesaid, unless upon granting such License, the person to whom such
License is granted shall enter into recognizance to the king’s Majesty,
his heirs and successors, in the sum of One hundred pounds, with two
sufficient securities, each in the sum of Fifty pounds, or one
sufficient security in the sum of One hundred pounds, under the usual
conditions, for the good behaviour of such person during the time for
which such License shall be granted.
And be it further enacted by the Authority aforesaid, That the Lord High
Chancellor of _Great Britain_, or Lord Keeper, or the Commissioners for
the Custody of the Great Seal, or the Lord Chief Justice of the Court of
King’s Bench, or the Lord Chief Justice of the Court of Common Pleas,
for the time being, may, at any time or times, by any written order,
directed to the Commissioners appointed by this Act, or to the Justices
of the Peace and Physician, appointed Visitors, at any General Quarter
Session, require the said Commissioners, or any three or more of them,
or the said Visitors, or any two of them, to visit or inspect any house
or houses so licensed; and also to make a report to him or them,
touching such matters as they shall, in such orders, be directed to
inquire into, or as they shall think deserving his or their Lordships
notice; and the said Lord High Chancellor, or Lord Keeper, or
Commissioners for the Custody of the Great Seal, or Lord Chief Justice
of the Court of King’s Bench, or the Lord Chief Justice of the Court of
Common Pleas, may also, at any time or times, by a like order, send for,
and inspect the Register or Registers so to be kept as aforesaid; and
may summon and examine all or any of the persons concerned in the
execution of this Act, as often as shall be thought necessary and
proper; and in case they, or any of them, shall not obey all such orders
as aforesaid, within two days after the receipt of the same, and shall
not shew sufficient cause to the contrary, every person, so offending,
shall be deemed guilty of a contempt of the Court of Chancery, Court of
King’s Bench, or Court of Common Pleas, as the case may be.
Provided always, and it is hereby declared, That nothing in this Act
contained shall extend, or be construed to extend, to any of the publick
hospitals within this kingdom.
And whereas it is not intended by this Act to give the keepers of any
house or houses, so to be licensed as aforesaid, or any other person
concerned in confining any of his Majesty’s subjects therein, any new
justification from their being able to prove that the persons so
confined have been sent there by such direction and advice as are
required by this Act; be it therefore declared and enacted, That in all
proceedings that shall be had under His Majesty’s Writ of _Habeas
Corpus_, and in all indictments, informations, and actions, that shall
be preferred and brought against any person or persons, for confining or
ill-treating any of His Majesty’s subjects, in any of the said houses,
the parties complained of shall be obliged to justify their proceedings
according to the course of the common law, in the same manner as if this
Act had not been made.
And be it further enacted by the Authority aforesaid, That all penalties
and forfeitures which shall be incurred within the said cities of
_London_ or _Westminster_, or within seven miles of the same, or within
the said County of _Middlesex_, for offences against this Act, shall and
may be sued for and recovered in any of the Courts of Record at
_Westminster_, by Action of Debt, Bill, Plaint, or Information, by the
President of the said College for the time being, in the name of the
Treasurer belonging to the said College, at any time within six calendar
months after the offence committed; and all such penalties and
forfeitures, when recovered, shall and are hereby directed to be paid to
the said Treasurer; and shall be applied (except such penalties and
forfeitures as are otherwise directed to be applied by this Act) in
manner following; (that is to say), one moiety of all such penalties and
forfeitures shall go to the informer, and the other moiety towards
defraying the expenses attending the execution of this Act: And all
penalties and forfeitures which shall be incurred for offences against
this Act, not within the said cities of _London_ or _Westminster_, or
within seven miles of the same, or within the said County of
_Middlesex_, shall and may be sued for and recovered by Action of Debt,
Bill, Plaint, or Information, by and in the name of the Clerk of the
Peace for the County where any such offence shall be committed; and all
such penalties and forfeitures, when recovered, shall be applied, one
moiety to the informer, and the other moiety for defraying the expenses
attending the execution of this Act, within such County.
And be it further enacted, That if any Action or Suit shall be commenced
or brought against any person or persons, for any thing done in
pursuance of this Act, the same shall be commenced within six calendar
months next after the fact committed; and shall be laid or brought in
the county, city, or place, where the cause of Action shall have arisen,
and not elsewhere; and the defendant or defendants, in every such Action
or Suit, shall and may, at his election, plead specially, or the general
issue, Not Guilty; and give this Act, and the special matter, in
evidence, at any trial to be had thereupon, and that the same was done
in pursuance and by the authority of this Act: And if the same shall
appear to be so done, or that such Action or Suit shall be brought in
any other county, city, or place, or shall not have been commenced
within the time before limited for bringing the same; that then the jury
shall find a verdict for the defendant or defendants; and, upon a
verdict being so found, or if the plaintiff or plaintiffs shall be
nonsuited, or discontinue his, her, or their Action or Suit, after the
defendant or defendants shall have appeared; or if, upon demurrer,
judgment shall be given against the plaintiff or plaintiffs, then the
defendant or defendants shall recover treble costs, and have such remedy
for recovering the same as any defendant or defendants hath or have in
any other cases by law.
And be it further enacted, That this Act shall be deemed and taken to be
a Public Act; and be judicially taken notice of as such, by all Judges,
Justices, and other persons whomsoever, without specially pleading the
same.
And be it further enacted by the Authority aforesaid, That this Act
shall continue in force for the term of Five Years, and from thence to
the end of the then next Session of Parliament.
REPORT.
The Select Committee appointed to consider the validity of the doctrine
of Contagion in the Plague; and to report their observations thereupon,
together with the Minutes of the Evidence taken before the House: Have
considered the matters to them preferred, and have agreed upon the
following Report.
Your Committee being appointed to consider the validity of the received
doctrines concerning the nature of contagious and infectious diseases,
as distinguished from other epidemics, have proceeded to examine a
number of medical gentlemen, whose practical experience or general
knowledge of the subject appeared to your Committee most likely to
furnish the means of acquiring the most satisfactory information. They
have also had the evidence of a number of persons whose residence in
infected countries, or whose commercial or official employments enabled
them to communicate information as to facts, and on the principle and
efficacy of the laws of Quarantine; all the opinions of the medical men
whom your Committee have examined, with the exception of two, are in
favour of the received doctrine, that the Plague is a disease
communicable by contact only, and different in that respect from
Epidemic fever; nor do your Committee see any thing in the rest of the
evidence they have collected, which would induce them to dissent from
that opinion. It appears from some of the evidence, that the extension
and virulence of the disorder is considerably modified by atmospheric
influence; and a doubt has prevailed whether under any circumstance, the
disease could be received and propagated in the climate of Great
Britain. No fact whatever has been stated to show, that any instance of
the disorder has occurred, or that it has ever been known to have been
brought into the Lazarettos for many years: but your Committee do not
think themselves warranted to infer from thence, that the disease cannot
exist in England; because in the first place, a disease resembling, in
most respects, the Plague, is well known to have prevailed here in many
periods of our history, particularly in 1665-6: and further, it appears
that in many places, and in climates of various nature, the Plague has
prevailed after intervals of very considerable duration.
Your Committee would also observe, down to the year 1800, Regulations
were adopted, which must have had the effect of preventing goods
infected with the Plague from being shipped directly for Britain; and
they abstain from giving any opinion on the nature and application of
the Quarantine regulations, as not falling within the scope of enquiry
to which they have been directed; but they see no reason to question the
validity of the principles upon which such regulations appear to have
been adopted.
_14th June, 1819._
Chorley, M. D. _v._ Bolcot, executor.
(From 4 T. R. p. 317.)
The plaintiff, who was a physician living at _Doncaster_, brought this
action for fees, for attending a considerable time on the defendant’s
testator, who lived at some little distance from the town; and the
evidence was, that at _Doncaster_ and its neighbourhood there was no
certain rule about fees, but the general practice was for a physician to
receive two guineas a week for his attendance. The plaintiff obtained a
verdict at the last assizes at _York_; to set aside which _Wood_
obtained a rule _nisi_ last term, on the ground that no action lay for a
physician’s fees any more than for a barristers.
_Cockell_, Serj. and _Chambre_, now shewed cause; observing that though
this point had been ruled several times at _nisi prius_ against such a
claim, yet it had never been solemnly decided, nor was there any
authority in the books for putting the claim of a physician’s fees upon
the same footing as those of a barrister. In the latter case it might
originally have been proper that no temptation should be held out to
countenance injustice: but in the former it would be equally impolitic
that those who are frequently put to expense in attending patients at a
distance, and who are liable to make reparation to those who may suffer
by their want of skill, should not be certain of a just and honourable
reward. The regulation with regard to barristers is founded on grounds
of public policy, as appears by the passage in _Tacitus_, to which Mr.
J. _Blackstone_ refers; but they are totally inapplicable to the case of
physicians. And in that very passage in _Tacitus_ it is taken for
granted that the latter were entitled to a remuneration, because their
situation was dissimilar to that of advocates. Besides in this case
there is an additional reason why the plaintiff should recover, as there
is understood to be a general stipulated acknowledgment for a
physician’s attendance at the place where this transaction arose.
Lord KENYON, Ch. J. I remember a learned controversy some years ago as
to what description of persons were intended by the _Medici_ at _Rome_;
and it seemed to have been clearly established by Dr. _Mead_, that by
those were not meant physicians, but an inferior degree amongst the
professors of that art, such as answer rather the description of
surgeons amongst us. But at all events it has been understood in this
country that the fees of a physician are honorary, and not demandable of
right. And it is much more for the credit and rank of that honorable
body, and perhaps for their benefit also, that they should be so
considered. It never was yet heard of that it was necessary to take a
receipt upon such an occasion. And I much doubt whether they themselves
would not altogether disclaim such a right as would place them upon a
less respectable footing in society than that which they at present
hold.
_Per Curiam._
Rule absolute.
-------
Lipscombe _v._ Holmes, esq.
(From Campbell.)
This was an action for work and labour as a surgeon, and for curing the
defendant and several persons of his family, of divers diseases and
maladies, under which they had respectively laboured and languished. The
defendant pleaded the general issue, and paid 3_l_ 13_s_ 6_d_ into
court.
The first defence set up was, that the plaintiff was a physician, and
therefore could not maintain an action for his fees. It appeared that he
wrote prescriptions, was called “_Doctor_,” and signed himself M. D.
_Park_ said he should shew, that at the time when the visits were paid,
for which the action was brought, the plaintiff was only a surgeon; and
that he had not taken out his diploma as a physician till long after.
Lord _Ellenborough_.—If a person passes himself off as a physician, he
must take the character _cum onere_. When he brings an action for visits
paid by him as a physician, I will give him credit for being so, and
tell him he must trust to the honour of his patients. Whether the
plaintiff had or had not a diploma when he attended the defendant, is
immaterial. Whatever he was, if he at that time wrote prescriptions and
added M. D. to his name, he must be nonsuited.
_Park_ then produced the rule for paying money into court, which his
lordship thought removed the objection, and admitted the plaintiff’s
right to sue as a surgeon.
It was afterwards agreed to withdraw a juror.
-------
Slater _v._ Baker and Stapleton, C. B.
(From 2 Wils. R. 359.)
Special action upon the case, wherein the plaintiff declares that the
defendant _Baker_ being a surgeon, and _Stapleton_ an apothecary, he
employed them to cure his leg which had been broken and set, and the
callous of the fracture formed; that in consideration of being paid for
their skill and labour, &c. they undertook and promised, &c. but the
defendants not regarding their promise and undertaking, and the duty of
their business and employment, so ignorantly and unskilfully treated the
plaintiff, that they ignorantly and unskilfully broke and disunited the
callous of the plaintiff’s leg after it was set, and the callous formed,
whereby he is damaged. The defendants pleaded not guilty, whereupon
issue was joined, which was tried before the Lord Chief Justice
_Wilmot_, and a verdict found for the plaintiff, damages £500. The
substance of the evidence for the plaintiff at the trial was, first a
surgeon was called, who swore that the plaintiff having broken both the
bones of one of his legs, this witness set the same, that the plaintiff
was under his hands nine weeks, that in a month’s time after the leg was
set, he found the leg was healing and in a good way; the callous was
formed, there was a little protuberance, but not more than usual; upon
cross examination he said he was instructed in surgery by his father,
that the callous was the uniting the bones, and that it was very
dangerous to break or disunite the callous after it was formed.
_John Latham_ an apothecary swore he attended the plaintiff nine weeks,
who was then well enough to go home, that the bones were well united,
that he was present with the plaintiff and defendants, and at first the
defendants said the plaintiff had fallen into good hands; the second
time he saw them all together the defendants said the same, but when he
saw them together a third time there was some alteration, he said the
plaintiff was then in a passion, and was unwilling to let the defendants
do any thing to his leg; he said he had known such a thing done as
disuniting the callous, but that had been only when a leg was set very
crooked; but not where it was straight.
A woman called as a witness, swore that when the plaintiff came home he
could walk with crutches, that the defendant _Baker_ put on to the
plaintiff’s leg an heavy steel thing that had teeth, and would stretch
or lengthen the leg, that the defendants broke the leg again, and three
or four months afterwards the plaintiff was still very ill and bad of
it.
The daughter of the plaintiff swore, that the defendant _Stapleton_ was
first sent for to take off the bandage from the plaintiff’s leg; when he
came he declined to do it himself, and desired the other defendant
_Baker_ might be called in to assist; when _Baker_ came he sent for the
machine that was mentioned; plaintiff offered to give _Baker_ a guinea,
but _Stapleton_ advised him not to take it then, but said they might be
paid all together when the business was done; that the third time the
defendants came to the plaintiff, _Baker_ took up the plaintiff’s foot
in both his hands and nodded to _Stapleton_, and then _Stapleton_ took
the plaintiff’s leg upon his knee, and the leg gave a crack when the
plaintiff cried out to them and said, “you have broke what nature had
formed;” _Baker_ then said to the plaintiff _You must go through the
operation of extension_, and _Stapleton_ said we have consulted and done
for the best.
Another surgeon was called and swore, that in cases of crooked legs
after they have been set, the way of making them straight is by
compression and not by extension, and said he had not the least idea of
the instrument spoken of for extension; he gave _Baker_ a good
character, as having been the first surgeon of _St. Bartholomew’s_
hospital for twenty years, and said he had never known a case where the
callous had deossified.
Another surgeon was called who swore, that when the callous is formed to
any degree, it is difficult to break it, and the callous in this case
must have been formed, or it would not have given a crack, and said
extension was improper, and if the patient himself had asked him to do
it, he would have declined it, and if the callous had not been hard he
would not have done it without the consent of the plaintiff, that
compression was the proper way, and the instrument improper; he said the
defendant _Baker_ was eminent in his profession. Another surgeon was
called who swore, that if the plaintiff was capable of bearing his foot
upon the ground, he would not have disunited the callous if he had been
desired by him, but in no case whatever without consent of the patient;
if the callous was loose it was proper to make the extension to bring
the leg into a right line. A servant of the plaintiff swore the
plaintiff had put his foot upon the ground three or four weeks before
this was done.
The counsel for the defendants at the trial, for _Baker_, relied upon
the good character which was given him, and objected there was no
evidence to affect the other defendant _Stapleton_ the apothecary; but
the Lord Chief Justice thought there was such evidence against both the
defendants as ought to be left to the jury, as the nodding, the advising
_Baker_ not to take the guinea offered to him by the plaintiff, besides
the apothecary first proposed sending for _Baker_; the plaintiff was in
no pain before they extended his leg, and he only sent to _Stapleton_ to
have the bandage taken off: the Lord Chief Justice asked the Jury
whether they intended to find the damages against both the defendants,
and they found £500 against them jointly, and he said he was well
satisfied with the verdict.
It was now moved that the verdict ought to be set aside because the
action is upon a joint contract, and there is no evidence of a joint
undertaking by both defendants; the plaintiff sends for _Stapleton_ to
take off the bandage who declines doing it, and says, I do not
understand this matter, you must send for a surgeon; accordingly _Mr.
Baker_ is sent for, who enters upon the business as a surgeon
unconnected with _Stapleton_, who, it does not appear, ever undertook
for any skill about the leg, so the jury have found him guilty without
any evidence. That _Baker_ has been above twenty years the first surgeon
in _St. Bartholomew’s_ hospital, reads lectures in surgery and anatomy,
and is celebrated for his knowledge in his profession as well as his
humanity; and to charge such a man with ignorance and unskilfulness upon
the records of this court is most dreadful; all the witnesses agreed Mr.
_Baker_ doth not want knowledge, therefore this verdict ought not to
stand. 2dly, It was objected that the evidence given does not apply to
this action, which is upon a joint contract; the evidence is that the
callous of the leg was broke without the plaintiff’s consent; but there
is no evidence of ignorance or want of skill, and therefore the action
ought to have been trespass _vi & armis_ for breaking the plaintiff’s
leg without his consent; all the surgeons said they never do any thing
of this kind without consent, and if the plaintiff should not be content
with the present damages, but bring another action of trespass _vi &
armis_, could this verdict be pleaded in bar? the court without hearing
the counsel for the plaintiff gave judgment for him.
_Curia_: 1st, It is objected that this is laid to be a joint
undertaking, and therefore it ought to be proved, and we are of opinion
that it ought; the question therefore is, whether there is any evidence
of a joint undertaking; we are of opinion there is; Mr. _Stapleton_
declines acting alone, but in concurrence with Mr. _Baker_ attends the
plaintiff every time any thing is done, and assists jointly with Mr.
_Baker_; this appears in evidence, and is sufficient, for there is no
occasion to prove an express joint contract, promise or undertaking;
when an offer is made to _Baker_ of a guinea, _Stapleton_ says, you had
better be paid all at last; they both attended plaintiff together every
time, and _Stapleton_ said, we have consulted and done for the best;
when the plaintiff complained of what they had done, _Stapleton_
considered himself as one of the persons to join in the cure of the leg,
for he put his hand on the knee when _Baker_ nodded, and then the bone
cracked; he is the original person aiding in this matter, and there is
no ground for this objection. When we consider the good character of
_Baker_, we cannot well conceive why he acted in the manner he did; but
many men very skilful in their profession have frequently acted out of
the common way for the sake of trying experiments; several of the
witnesses proved that the callous was formed, and that it was proper to
remove the plaintiff home; that he was free from pain and able to walk
with crutches; we cannot conceive what the nature of the instrument made
use of is; why did _Baker_ put it on when he said that plaintiff had
fallen into good hands, and when plaintiff only sent for him to take off
the bandage, it seems as if Mr. _Baker_ wanted to try an expedient with
this new instrument.
_2dly_, It is objected that this is not the proper action, and that it
ought to have been trespass _vi & armis_; in answer to this, it appears
from the evidence of the surgeons that it was improper to disunite the
callous without consent; this is the usage and law of surgeons; then it
was ignorance and unskilfulness in that very particular, to do contrary
to the rule of the profession, what no surgeon ought to have done; and
indeed it is reasonable that a patient should be told what is about to
be done to him, that he may take courage and put himself in such a
situation as to enable him to undergo the operation; it was objected
this verdict and recovery cannot be pleaded in bar to an action of
trespass _vi & armis_ to be brought for the same damage; but we are
clear of opinion it may be pleaded in bar. That the plaintiff ought to
receive a satisfaction for the injury, seems to be admitted; but then it
is said the defendants ought to have been charged as trespassers _vi &
armis_; the court will not look with eagle’s eyes to see whether the
evidence applies exactly or not to the case, when they can see the
plaintiff has obtained a verdict for such damages as he deserves, they
will establish such verdict if it be possible. For any thing that
appears to the court this was the first experiment made with this new
instrument, and if it was, it was a rash action, and he who acts rashly
acts ignorantly; and although the defendants in general may be as
skilful in their respective professions as any two gentlemen in
_England_, yet the court cannot help saying that in this particular case
they have acted ignorantly and unskilfully, contrary to the known rule
and usage of surgeons.
Judgment for the plaintiff _per totam curiam_.
-------
Seare _against_ Prentice.
_From 8 East._
This was an action on the case brought by the plaintiff, a shoemaker,
against the defendant, whom he employed as a surgeon, for negligently,
ignorantly, and unskilfully reducing a dislocated elbow and fractured
arm of the plaintiff, of which he had undertaken the cure. The cause was
tried before _Heath_ J. at the last assizes at _Hertford_; and a verdict
having been given for the defendant under the direction of the learned
Judge; that direction was now impeached, and a rule _nisi_ for setting
aside the verdict and granting a new trial was moved for by _Gurney_,
upon the ground that there was evidence laid before the jury of the
_unskilful_ treatment of the plaintiff by the defendant; but that they
were told by the learned Judge, that unless _negligence_ were proved,
they could not examine into the _want of skill_: and the evidence, he
now admitted, did not substantiate the charge of _negligence_, though it
proved the want of skill. And he referred to _Slater_ v. _Baker_[178],
to shew that an action lay against a surgeon for ignorance and
unskilfulness in his profession: and to _Bull, N. P. 73._ where the
general rule is laid down, that in all cases where a damage accrues to
another by the negligence, ignorance, or misbehaviour of a person in the
duty of his trade or calling, an action on the case will lie: as if a
farrier kill my horse by bad medicines, or refuse to shoe, or prick him
in the shoeing.
The Court granted a rule _nisi_. And now, upon the Judge’s Report being
read, the case appeared to be this:
The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of
_April_ 1805, the defendant attended the plaintiff, who had fallen from
a horse, and told the defendant that his arm was broken: the defendant
said that he thought the arm, which was swollen, was not broken, and
applied vinegar to it, and bound it with tape. That the plaintiff was
under the defendant’s care for ten weeks without being cured: he could
not bend his arm or work at his trade. That he then applied to Mr.
_Kingston_, another surgeon, and after some time could work, and put his
arm to his head. On cross-examination the same witness proved that the
defendant was first sent for at night, and came directly; that he
regularly attended the plaintiff every day but one till the latter
applied to Mr. _Pidcock_, another surgeon, who, about nine or ten days
after the accident, attended and assisted with the defendant in setting
the elbow. Mr. _Kingston_, the surgeon, then proved that in _July_ 1805
the plaintiff was brought to him a cripple in his arm, one bone of which
was broken obliquely below the elbow. That the plaintiff’s arm was
almost straight; he could not turn his wrist, and had no motion in his
elbow. That the witness broke the callous and set it again, and made
(what the witness himself described as) a very fine cure, which was
spoken of about the country. He imputed the failure of the defendant in
his attempt to cure the plaintiff to _negligence and carelessness_: an
apprentice boy (he said) might have known better: that the bone might
have been set within five hours after the accident; though he admitted
that the swelling, if much, must first be reduced, which might take a
fortnight. And he recommended the plaintiff to bring an action. He also
spoke to a conversation with the defendant, who considered it as a very
difficult dislocation to reduce; and said that he would make a
compensation to the plaintiff. The learned Judge told the jury that the
gist of the action was negligence; of which direct evidence might be
given; or it might be inferred by the jury, if the defendant had
proceeded without any regard to the common ordinary rules of his
profession, _That unskilfulness alone, without negligence, would not
maintain the action_. And that he was at a loss to state to the jury
what degree of skill ought to be required of a village surgeon. But
that, whether or not his direction were accurate in this respect, at any
rate the witness _Kingston_ imputed only _negligence_ and _carelessness_
to the defendant and _Pidcock_, in not discovering the fracture of the
bone of the arm when they reduced the dislocated elbow; which there was
no doubt was properly reduced: and that considering all the
circumstances of the case, he did not think that such gross negligence
was imputable to the defendant as to make him liable in damages to the
plaintiff. The report concluded by stating that the jury found a verdict
for the defendant, much to the Judge’s satisfaction; who intimated that
the vaunting language of the witness _Kingston_ must have diminished his
credit with the jury.
_Shepherd_ Serjt. and _Espinasse_ were now to have shewn cause: but
though all the Court seemed to be satisfied, as well now as when the
rule was moved for, that the action well lay for unskilfulness in the
profession of a surgeon; yet upon a revision of the evidence as
reported, they asked of the plaintiff’s counsel what evidence there was
of _want of skill_ in the defendant; _Kingston_, the surgeon, only
imputing to him _negligence_ and _carelessness_; which the learned Judge
had stated to be a ground of action, and had left to the jury for their
consideration; but which the jury had negatived; as indeed the evidence
well warranted them in doing.
_Gurney_, in support of the rule, said, that it was to be collected from
the whole of _Kingston’s_ evidence that he imputed want of skill to the
defendant; and that was shewn by the expression used by him, that an
apprentice boy might have known better. That so much skill at least was
required of a surgeon as to be able to tell whether or not an arm was
broken, or an elbow dislocated. But it was enough that the question of
want of skill was wholly withdrawn from the consideration of the jury.
Lord _Ellenborough_ C. J. The surgeon who was examined specifically
imputed the failure of the cure to _negligence_ and _carelessness_,
whatever other expression he may have used in the manner of giving his
evidence, upon which the learned Judge has commented. Therefore, however
we may differ from the learned Judge, as I certainly do, in thinking
that an ordinary degree of skill is necessary for a surgeon who
undertakes to perform surgical operations; which is proved by the case
in _Wilson_, and indeed by all analogous authorities; in the same manner
as it is necessary for every other man to have it in the course of his
employment; as the farrier who undertakes to cure any horse must have
common skill at least in his business, and that is implied in his
undertaking: and although I am ready to admit that a surgeon would be
liable for _crassa ignorantia_, and would be justly responsible in
damages for having rashly adventured upon the exercise of a profession,
without the ordinary qualification of skill, to the injury of a patient:
yet the question did not arise upon the evidence in this case; for no
want of skill was imputed to the defendant: and therefore the opinion of
the learned Judge upon that point does not affect the merits of the
verdict upon the evidence in the cause.
The other Judges concurred; and _Grose_ J. referred to 3 _Blac. Com._
(_ch._ 9. _p._ 163, 4.) as confirming the general doctrine.
Rule discharged.
APPENDIX.
PART II.
_Mich. Term. 1821, C. B._
Severn _v._ Olive.
Mr. Serjeant _Lens_ appeared to show cause against a rule obtained in
this case. The case arose out of the well-known one of Messrs. _Severn_,
_King_, and Co., sugar-refiners, against some of the Insurance
Companies, for losses sustained in the destruction of their extensive
premises, near Whitechapel. It will be recollected, that in the two
trials which arose out of that event, a great number of scientific men
were examined on both sides as to the result of experiments made by them
in the process of boiling sugar by means of heated oil. The verdict in
both cases, as is known, was for the plaintiffs. In the bill of costs,
sent in to the defendants, charge was made for the attendance of the
learned chymists, who gave evidence for the plaintiffs, and also for
their loss of time and trouble in making those experiments. Other
charges were made for the expense of the experiments themselves. The
prothonotary who taxed the costs allowed both the charges in principle,
though not to the extent set down in the bill. It was in consequence of
having made those allowances that a rule had been granted to show cause
why he should not review his taxation of costs.
Mr. Sergeant _Lens_, in showing cause against the rule, contended that
the allowance for loss of time to Dr. _Thomson_ was a very natural and
just one. Dr. _Thomson_ was Professor of Chymistry in the University of
_Glasgow_, and had been obliged to come up to _London_ three times, at
considerable inconvenience and expense, to give evidence in the case. He
had been at great trouble in making and superintending experiments, and
the prothonotary, in taking the costs, had allowed a reasonable sum for
the whole. It was the same in the cases of the other scientific
gentlemen who attended.
The Prothonotary here observed, that he considered the allowance for
expenses and loss of time of Dr. _Thomson_ and other gentlemen as very
just. It was usual to allow for loss of time in such cases.
The CHIEF JUSTICE said, that in certain cases allowances were made for
loss of time, and the question here was, how far the present case came
within the rules of those allowances. As a general principle, allowances
to witnesses for loss of time could not be maintained. No doubt it was a
great inconvenience, that individuals whose business required their
whole time should be obliged to devote part of that time to the concerns
of others without reward; but it was an inconvenience to which all were
equally subject in turn; and as it was to answer the ends of public
justice, it ought to be borne. As to allowance for loss of time, he
considered the thing decided by the case of _Willis_ v. _Peckkan_ (4th
_Moore_). An action had been brought in that case to recover 3_l._ for
loss of time whilst giving evidence in a case. It was contended for the
defendants that no such action could be maintained, except by medical
men and attornies. The court was of the same opinion; but the jury,
nevertheless, found a verdict for the plaintiff. In the following term a
motion was made to have the verdict set aside and a nonsuit entered. The
court, after hearing the arguments on both sides, decided that a nonsuit
must be entered; and further held, that only medical men and attornies
could charge for loss of time, as witnesses. The matter was settled,
before, in the Court of King’s Bench, in the case of “_Moore_ v.
_Adam_.” The court were therefore of opinion, that as far as this
allowance for loss of time, the taxation should be reviewed.
Mr. Sergeant _Lens_ then proceeded to other parts of the rule, and
contended that the apportioning of the costs between the Phœnix and
Imperial Insurance was the fairest mode which could be adopted, as each
had two actions, though they were not all tried, and the evidence in
each was the same.
The _Chief Justice_ asked how much the expense of the experiments made
amounted to.
The Prothonotary said that all the items were so mixed up, that it would
be impossible to ascertain at that moment.
The _Chief Justice_—It is important that the charge for experiments
should be known. The opinion of men of science is received as evidence,
because it arises from pre-existing science; but surely, as in the
present case, they ought not to acquire their knowledge at the expense
of the parties against whom their evidence is to weigh.
Mr. Sergeant _Vaughan_, on the same side with Sergeant _Lens_, submitted
that it could never have been intended that men should not be allowed
some recompense for loss of time. It would be not only an injustice, but
a cruelty in many cases, if such a principle were to be adopted. Indeed,
the principle was constantly departed from, in cases where the time of
individuals had been a good deal engaged. In the case of _Lopez_ v. _De
Tastet_, the evidence of a Spanish captain of a ship was taken, and it
caused him to delay a considerable time in town, and in the taxing of
the costs a round sum was very properly allowed by the prothonotary,
which, no doubt, was meant not merely to cover his expenses in town, but
to compensate him for the loss of time.
The _Chief Justice_.—We had a consultation, not long since, in a
well-known case, and in another place, whether the profits of a voyage
should not be allowed for, and as to whether a certain sum given to a
captain of a ship should be looked upon as compensation for loss of
time, or in the light of a bribe.
Mr. Sergeant _Vaughan_ said he knew the case to which his lordship
alluded. He went on to say, that the prothonotary had not made any
specific allowance for loss of time as such, but had mentioned one sum
for trouble, expense, and loss of time. As to the costs of the
experiments which had been made, he submitted that in a case where the
subject was quite new, and as they were not made wantonly or with a view
to put a party to unnecessary expense, the costs of them ought to be
allowed. They were made _bona fide_ for this case; the materials and
apparatus were also provided with reference to the present case alone.
Under such circumstances, he submitted that they ought to be allowed;
and he ought to add, that their affidavits set forth, that the
experiments were made in consequence of its being known that similar
experiments were made on the other side.
Mr. Sergeant _Taddy_ followed on the same side, and observed, that while
he admitted the general principle that expenses were not allowed for
loss of time, except to physicians and attornies, he could not see why
scientific men, such as chymists, should not be brought under the same
rule as physicians.
The _Chief Justice_.—For this reason, that to a physician loss of time
is considered as loss of profit. A physician cannot visit a patient by
deputy, as the patient might not have the same confidence in that person
as in that physician, and this I take to be the reason why the loss of
time is allowed. For reasons similar in principle the loss is also
compensated in the attorney.
Mr. Justice _Park_.—Suppose a clergyman, living in Cumberland, were
summoned to give evidence in a case in London, and that being delayed
here for two or three weeks, he was obliged to employ a curate to
officiate in his absence, have you any case where that expense would be
allowed?
The Prothonotary.—Invariably the expenses would be allowed, my Lord.
Mr. Justice _Park_.—I am glad to know it, for I was not aware how the
case was.
Mr. Sergeant _Taddy_ then proceeded to contend, that with respect to the
cost of the experiments, as they were not made for the purposes of
general science, but had reference to this case alone, they ought to be
allowed. Indeed, they were made by a sort of compact with the other
side. They (the defendants) themselves seemed anxious that such
experiments should be made. They declared that they would make them, and
they invited the plaintiffs to make them also.
The _Chief Justice_.—How much was the amount of the property insured?
Mr. Sergeant _Lens_ replied that it was upwards of 70,000l.
The _Chief Justice_.—I think (whether the cost of experiments be allowed
or not) it was right, in a case of such importance, that they should
have been made; but I wish it could be shewn to me whether there was any
compact between the parties for making them.
Mr. Sergeant _Hullock_, who appeared for the defendants, here observed
that he knew of no compact of that nature.
Mr. Sergeant _Taddy_.—I do not say, my lords, that there was a positive
compact; but I remember that, when the motion for a new trial was argued
before your lordships, one of the arguments used in support of the
motion by the defendants’ counsel was, that a sufficient number of
experiments had not then been made. Surely, then, it will not be
contended that there was not an inducement to the plaintiffs to make
those additional experiments for which they now claim to be allowed.
Mr. Justice _Burrough_.—There was no contract.
Mr. Sergeant _Taddy_.—None, my lord; but they challenged us to make the
experiments. We have done so; and I submit to your lordships that the
verdict being for us, we ought to charge them with the full costs.
Mr. Sergeant _Hullock_, in support of the rule, contended that the case
of _Lopez_ and _de Tastet_, which had been quoted by his learned brother
(_Vaughan_), was not in point, nor did it bear the interpretation which
had been given to it. As to physicians, he had some doubt whether in
strict law even they ought to be allowed for loss of time as such, for
how was the rule of expenses to be settled? One physician whose practice
was extensive, might charge fifty guineas a day, while another might be
satisfied to go to Guildhall for five; so that there could be no settled
rule. He thought also, though he did not at all mean it invidiously,
that the plaintiffs need not have sent to the great distance they had
done for witnesses, while they could have got others of equal skill
nearer home. If the principle were to be admitted, a man might send to
_Calcutta_ for witnesses for scientific purposes, and charge the
expenses of the voyage here and back. At the same time he did not mean
to object to Dr. _Thomson_, who he had no doubt was an extremely clever
man. The learned Sergeant then went through various items in the bill,
several of which, he contended, his clients ought not to be called upon
to pay. There was one item of 205_l._ for a model of the premises. Why,
if, as had been suggested, they had built a model of exactly the same
size as the original, they might as well charge the price of it, as
250l. for a model. There was another item of 213l. for loss of time,
trouble, and expenses, in making experiments, to S. Parkes, esq. Of this
the prothonotary had deducted 99l., but then it was not stated what sum
was for loss of time, what for the trouble, and what for the expenses.
It was the same with the charges to several other gentlemen. Now he
objected to any thing being allowed for loss of time, and in that case
he was satisfied the case ought to be reviewed. With respect to the
costs of the experiments, he apprehended that the best answer had been
given by the court. In no case that he heard of before this were they
charged.
The _Chief Justice_ asked what was the rule in patent cases.
The Prothonotary said that in all such cases a reasonable sum was
allowed.
Mr. Sergeant _Hullock_ proceeded. There was another ground on which he
thought the experiments ought not to be charged. Either there had been
several experiments made before the new method was adopted, or there had
not. If there had, no additional experiments were necessary on the late
trials. If there had not, the plaintiffs had rashly made the risk, and
ought not to recover now.
The _Chief Justice_.—You forgot, brother _Hullock_, that this was a
patent.
Mr. Sergeant _Hullock_.—That, my lord, strengthens my argument, for in
that case it must have been so well known, as not to need any additional
experiments. The learned Sergeant was proceeding to contend that the
division of the costs equally between the two insurance companies was
not the most proper one; but the court thought that such an arrangement
would best meet the justice of the case. There were two insurance
companies in the case, in each of which two policies had been effected,
and two actions commenced; and though all the actions were not tried,
yet as the same evidence went to all, it was but just that each office
should bear a moiety of the costs.
The arguments being closed on both sides, the _Chief Justice_ asked
whether physicians were allowed for loss of time as witnesses?
The Prothonotary replied, that they were always allowed.
The Court then wished to be informed, whether there was a particular
scale of allowance, for it was not to be supposed that such an eminent
physician as Dr. _Baillie_ would be allowed according to the extent of
his practice.
The prothonotary said certainly not. There was an average allowance, and
by that the most eminent physician received only the same sum as the
physician who had got his diploma but the day before.
The _Chief Justice_.—What sum would you allow?
The Prothonotary.—My lord, since the allowance has been raised to
barristers, we have raised physicians to the same rank, and they are
allowed the same—two guineas per day.
The _Chief Justice_.—But do barristers take the allowance?
The Prothonotary.—In some cases, my lord, it is allowed.
The _Chief Justice_ (after consulting for a short time with the other
Judges) said we shall not say any thing more upon this, than that it
must be referred back to the master to revise the costs, and that the
experiments are not to be allowed: nor is allowance to be made for loss
of time as such; but let it be understood that physicians are to be
allowed as usual.
The Prothonotary begged to know how he was to reckon physicians, was it
by diploma?
The Court said by practice. It was not to be expected that a physician
was to take his diploma about in his pocket.
The Prothonotary again begged to trouble their lordships. There was
another class of persons who were frequently allowed much more than any
professional men—he meant surveyors. Sometimes very high charges were
made for them. For instance, the late Mr. _Rennie_, who was summoned as
a witness in the present case: his time was of the utmost value, as was
that of others of eminence in that branch of science. He wished to know
how they were to be allowed.
The _Chief Justice_.—We can know no distinction here. The time of such
gentlemen as the late Mr. Rennie must no doubt be extremely valuable to
them, but that of a poor man is equally valuable to him, and perhaps
more so; for though the amount might not be as great, yet the support of
his family might be depending on it.
Rule made absolute; and it was further ordered, that a moiety of the
taxed costs should be paid by each of the Insurance Offices in question.
There was another case of “_Severn_ v. _Slade_,” turning exactly on the
same point, which was not argued, as of course the same decision will
apply to it.
Two Notes on the Legal Time for Human Birth.
(From Hargrave’s Jurisconsult Exercitations)
[Lord Coke, in his Commentary upon Littleton, fol. 8. a. considers, who
may inherit lands or tenements; and about the close of his remarks on
that head, introduces the case of a woman brought to bed of a child, so
as to raise a question whether the child was by her deceased first
husband or by her second husband. His words are, “If a man hath a wife
and dieth; and within a very short time after the wife marries again,
and within nine months hath a child, so that it may be the child of the
one or the other, some have said that in this case the child may choose
his father, _quia in hoc casu filiatio non potest probari_; and so is
the book to be intended: for avoiding of which question and other
inconveniencies, this was the law before the conquest, _sit omnis vidua
sine marito duodecim mensibus, et si maritaverit perdat dotem_.” In the
margin also of the same book, he thus refers to authorities, “21 E. 8.
39 Pancirollus Nova Rep. 485, &c. Opus eximium, 48. b. Lambard de
priscis Anglorum Legibus, 120. 72, &c.” and as to the year-book of E. 3.
so cited, it shews, that the doctrine, of allowing the infant to choose
which of the two husbands should be his father in the case so put, was
attributed to Sir William de Bereford, who was made chief justice of the
common pleas early in 2 E. 2.
So far Lord Coke only puts a special case barely involving a
consideration of the legal time for a woman’s going with child.
But in a subsequent part of his commentary, Lord Coke brings forward an
adjudged case of 18 E. 1. which materially involved considering what was
the limit to the time for a woman’s parturition, and for which he refers
to _Trin._ 18 _E._ 1. _Rot._ 61. _Bedford coram rege_; and so Lord Coke
was led to giving his own idea of the latest legitimate time _pariendi_
for women. The passages here meant to be adverted to are in Co. Litt.
123. b. and are in these words. “It was found by verdict, that Henry the
son of Beatrice, which was the wife of Robert Radwell deceased, was born
_per undecim dies post ultimum tempus legitimum mulieribus constitutum_.
And therefore it was adjudged, _quòd dictus Henricus dici non debet
filius prædicti Roberti secundùm legem et consuetudinem Angliæ
constitutus_. Now _legitimum tempus_ in that case appointed by law at
the furthest is nine months or forty weeks: but she may be delivered
before that time. Which judgment I thought good to mention. And this
agreeth with that in Esdras: _Vade et interroga prægnantem si quando
impleverit novem menses suos, adhuc poterit matrix ejus retinere partum
in semetipsâ? et dixi non potest, Domine_.” In the margin of the last
passage of this extract from Co. Litt. 123. b. there is a reference to 4
Esdras 4. 41. and Panciroll. Nova Reporta, pag. 485, &c.
These two extracts from Co. Litt. 8. a. and 123. b. are here given as an
introduction to the following article, which consists of two notes by
the author in the first part of the 13th edition of the Coke upon
Littleton, being the author’s part of that edition, and the first
attempt at editing that ever to be valued work with notes.—Both the
notes are on the second of the two preceding extracts from the Coke upon
Littleton.—The first of the two notes chiefly relates, to the special
case of a widow’s marrying a second husband, and being delivered of a
child so soon after the death of her first husband, as to raise a doubt,
which of the two husbands should be considered as the father: and so far
such note applies as well to the case so put in Co. Litt. 8. a. from the
year-book of 21 E. 3. 39. as to the case in 18 E. 1. so stated in Co.
Litt. 123. b. from the king’s bench record of that year.—The second of
the two notes relates to the general point as to the ultimate legitimate
time for a woman’s parturition.
Further as to the following article, it is proper to apprize the reader,
that, exclusively of what is now added by note at the bottom of the
page, it was first published about 30 years ago.]
-------
TWO NOTES, &c.
I. _Note as to Lord Coke’s cited Legitimacy Case of Radwell, in 18 E.
1._
Lord Hale, in a manuscript note about legitimacy in Co. Litt. fol. 8. a.
gives a fuller extract of this case of 18. E. 1. from the record than is
here expressed. His words are these.
“Trin. 18 E. 1. Coram rege, rot. 13. Bedford, et M. 22, 23 E. 1. rot. 2.
_In assise by John Radwell against Henry son of Beatrice, who was wife
of Robert Radwell_, quia compertum est, quòd dictus Henricus fuit natus
per 11 dies post 40 septimanas, quod tempus est usitatum mulieribus
pariendi, ex quo prædictus Robertus non habuit accessum ad prædictam
Beatricem per unum mensem ante mortem suam, præsumitur dictum Henricum
esse bastardum, ideo _judgment for the plaintiff_.”
If this state of the case is correct, Lord Coke’s is erroneous in
several particulars of consequence.—1. He is short in not expressing,
that the record mentions _forty weeks_, and so leaving it to be deemed
an _inference_ of his own, as which it hath been accordingly treated.—2.
He exceeds the record, by representing it to stile _that time_ the
_latest_ for a woman’s going with child, when the record only calls it
the _usual_ period.—3. He wholly omits the husband’s having had _no
access to his wife for one month before his death_; a fact very
material, it being very easy to allow _eleven days_ after the _usual_
time, but requiring a strong case to warrant extending such liberality
to nearly _six weeks_.—4. The word _præsumitur_, which Lord Coke passes
over, is of importance; for it indicates, that, notwithstanding the
great excess of time, it was conceived to create only a _presumption_
for the bastardy, and consequently, if very cogent circumstances to
account for the protraction of the birth, and in favour of the wife’s
chastity, had occurred, the judgment might have been for the legitimacy.
So far we had advanced, when on looking into Rolle’s Abridgment, 536. we
found the same ancient case of Radwell more at large, than either in
Lord Coke or Lord Hale.
But Rolle agrees with Lord Coke, as well in respect to the record’s not
mentioning the _forty weeks_, as to its stating the birth to be eleven
days after the _latest time in law for a woman’s going with child_; and
as from Rolle’s particularity he seems to have most minutely attended to
the record, his authority, till the whole record appears, seems most
decisive.
However the two last particulars, in which Lord Coke differs from Lord
Hale, still remain, to which Rolle adds these further circumstances:
namely,—that the _husband languished of a fever a long time before his
death_;—that on the taking of an inquisition afterwards in the court of
a lord, of whom he held lands by knight’s service, _the wife swore she
was not pregnant_, and to prove it uncovered herself in open court;—and
that, in consequence of all this, the lord received a _collateral_
relation as heir. The words describing the wife’s exposure of her person
are remarkable; for the record states, that she, being interrogated,
_juramento asserebat, se non esse prægnantem; et, ut hoc omnibus
manifestè liqueret, vestes suas ad tunicam exuebat, et in plená curiá
sic se videri permisit_. 1 Ro. Abr. 356. pl. 3. and 18 E. 1. rot. 13. in
B. R. there cited. It reflects great discredit, on the lord’s court,
which permitted such a gross indecency; and still more on the king’s
judges, who suffered it to be recorded as one of the grounds for a
verdict before them. How laudably contrariant is the proceeding on the
writ _de ventre inspiciendo_? This remedy for the heir against the
pretence of pregnancy, so well known to be of earlier date than the
reign of Edward the first, as it was framed in the times of Bracton,
Britton, and Fleta, delicately requires the widow to be inspected by a
jury _of her own sex_; and though in subsequent times the sheriff was
ordered to summon a jury composed both of men and women, yet still the
_search_ was to be made by the latter only. Bract. 69. a. Brit. 165. b.
Flet. lib 1. c. 15. Reg. Br. Orig. 227. a. What harsh ideas of the times
might we be led to adopt, if the early introduction of the writ _de
ventre inspiciendo_ did not demonstrate, that the unseemly record we are
observing upon was a _singularity_, and so many other testimonies of a
more advanced refinement in judicial proceedings did not concur to
rescue the age of our English Justinian from the suspicion of a _general
practice_ of such barbarism!
Let us then suppose the record to be as it is in Rolle; which is the
more probable to be the truth, because a contemporary judge, who reports
its having been _produced_ on a trial of legitimacy, represents it much
in the same way. Cro. Jam. 541. But still it will not warrant Lord
Coke’s inferring from it, that _forty weeks_ constitute the latest time
the law allows for a woman’s going with child. On the contrary, no
particular time being mentioned, what period was meant, must be found
out through some other _medium_; and as the record states _other_
unfavourable circumstances besides the excess of time, and that the
_jury presumed_ against the child’s being the issue of the deceased
husband, it seems fair to suppose, that the law was understood, not to
be so strict in the time alluded to, whatever that time might be, as
indiscriminately to condemn as illegitimate all children not born within
it, but rather to consider every excess, unless very extraordinary
indeed, as only raising a presumption against them. This construction is
clearly most consistent with the terms of the record in question. In the
next note we shall attempt to satisfy the reader, that the rule
resulting from it is most conformable to other precedents and
authorities, as well as to the reason of the thing.
After the case of Radwell from the Record of E. 1. Lord Hale thus gives
the four following cases.
“Rot. Parl. 9 E. 2. M. 4. Gilbert de Clare comes Glouc. obiit 30 Junii 7
E. 2. In parliamento tent. quindena Hil. 9 E. 2. _the sisters and
coheirs pray livery. Matilda_, quæ fuit uxor comitis, _pretends to be
big by the earl, which was accordingly found_ per inquisitionem. _The
coheirs reply, that_, si comitissa prægnans esset, tantum tempus elapsum
est, ut secundum cursum pariendi non potest dici imprægnari a comite.
_Yet they could not obtain livery till_ Pasch. 10 E. 2. _but the
question hung in deliberation_.
“Note 18 R. 2. _where a woman in such a case immediately after the death
of the first husband took a second husband, and had issue born forty
weeks and eleven days after the death of the first husband, and it was
held to be the issue of the second husband_.
“M. 17. Jac. B. R. _Alsop and Stacey. Andrews dies of the plague. His
wife, who was a lewd woman, is delivered of a child forty weeks and ten
days after the death of the husband. Yet the child was adjudged
legitimate and heir to Andrews; for_ partus potest protrahi _ten days_
ex accidente.
“M. 4. Car. in Cur. Ward, _and afterwards_ P. 5. Car. B.R. _Thecar
marries a lewd woman; but she doth not cohabit with him, and is
suspected of incontinency with Duncomb: Thecar dies: Duncomb within
three weeks after the death of Thecar, marries her: two hundred and
eighty-one days and sixteen hours after his death she is delivered of a
son. Here it was agreed, 1. If she had not married Duncomb, without
question the issue should not be a bastard, but should be adjudged the
son of Thecar. 2. No averment shall be received that Thecar did not
cohabit with the wife. 3. Though it is possible, that the son might be
begotten after the husband’s death, yet, being a question of fact, it
was tried by a jury, and the son was found to be the issue of Thecar._”
Lord Hale’s case of E. 2. appears very extraordinary, the time from 30
June from 7 E. 2. when the Earl of Gloucester died, to the _quindene_ of
Hilary, or 29 Jan. 9 E. 2, when the livery to his sister was further
postponed in parliament, being _within one day of a year and seven
months_; which is a much later date for the delivery of a live child,
than the most liberal in their calculations have hitherto assigned.
However, on reading the printed copy of the original record, in the
rolls of parliament lately published, we find Lord Hale’s note quite
accurate. See Rot. Parl. v. 1. p. 353.—As to the case of R. 2. it
confirms the doubt we have elsewhere stated of the opinion, that, if a
widow marries again and has a child within nine months after the death
of the first husband, the child may choose his father; and is an
authority for deciding according to the proof of the woman’s condition
when her first husband died. Ante fo. 8. a. note 7. Terms of the Law,
first edit. tit. _Bastard_, and Cowel Inst. lib. 1. t. 9.—Lord Hale’s
two other cases are reported in several books, Alsop and Stacey being in
Cro. Jam. 541. Godb. 281. Palm. 9. 1 Ro. Abr. 356. and Thecar’s in Cro.
Jam. 685. Winch. 71. Litt. Rep. 177.[179]
II. _Note on Lord Coke’s Doctrine as to the latest time with Women for
Parturition._
If our law was really as strict in point of time as is here represented
by Lord Coke, it would not sufficiently conform to the course of nature.
The physicians, it is true, generally call _nine_ months, each being of
thirty days, the _usual_ period for a woman’s going with child. But then
they allow, that, as a delivery may be accelerated by various accidental
and other causes, so it is frequently protracted, not only for _ten
days_ beyond the nine months, but to the end of the _tenth_ month, and
sometimes for a considerably longer time. See Zach. Quæst. Medico-legal,
lib. 1. tit. 2. Justice therefore requires, that, in the case of
posthumous children, an excess of the usual time should not operate
further, than by raising a proportional _presumption_ against the
legitimacy.
The Roman law was very liberal in this respect; for the _decemviri_
allowed, that a child may be born in the _tenth_ month; and though a law
of the digest excludes the eleventh, yet the emperor Adrian, after
consulting with the philosophers and physicians, decreed even for this,
where the mother was of good and chaste manners. See Dig. 1. 4. 12.
Paul. Sentent. lib. 4. t. 9. s. 5. Nov. 39, c. 2. t. 17. with
Gothofred’s learned notes on those two texts of the Roman law. Cod. lib.
6 t. 29. leg. 2. Aul. Gell. lib. 3. cap. 16. Huber. Prælect. in Dig.
lib. 1. tit. 6.
A like liberal discretion probably prevails in most countries in Europe;
for an instance of which, we refer to a very respectable foreign lawyer,
who reports a decision by a _majority_ of judges in the supreme court of
Friesland, by which a child was admitted to the succession, though not
born till three hundred and thirty-three days from the day of the
husband’s death,[180] which period wants only three days of _twelve
lunar_ months. Sand. Decis. Fris. lib. 4. tit. 8. Definit. 10.
Nor will our own law, notwithstanding what Lord Coke advances, if the
authorities are duly collected and considered, be found deficient on
this interesting subject. Indeed there is a passage in Britton, which
gives countenance to Lord Coke’s limitation of forty weeks; for this
writer excludes from the inheritance posthumous children not born within
forty weeks from the husband’s death. Britt. 166. a. However, even this
writer seems to extend in some degree beyond the forty weeks; unless he
meant to make the wife’s conception exactly of equal date with the
husband’s death, which surely is not a very reasonable construction. But
without dwelling on such a nicety, it is sufficient, that the principal
of the few other authorities in our books are against so rigid a rule.
Bracton is very cautious, illegitimatizing only the issue born so long
after the husband’s death, as to create an improbability of its being
his child, without naming any fixed period. Bract. lib. 5. fo. 417. b.
As to the determined cases in our courts, the only authorities of this
sort, we meet with, are enumerated in the preceding annotation; and
these, duly weighed, will not be found, it is apprehended, to warrant
Lord Coke’s conclusion.—In Radwell’s case, the finding against the issue
is expressed to have been grounded merely on _presumption_; and besides,
if we construe the record properly, the presumption arose from proof of
the husband’s non-access to the wife a month before his death,—The case
of 9 E. 2. is an instance of allowing so much time beyond forty weeks,
that it seems too strong to have much weight; but so far as it can claim
any, it counts against Lord Coke.—The case of 18 Rich. 2. at first seems
full for Lord Coke’s rule, the child, though born only _eleven_ days
beyond the _forty weeks_, having been declared not the issue of the
deceased husband. But when it is further considered, there will be found
nothing to prove a _positive general_ rule; for the case was very
special, the widow having married a second husband the day after the
death of the first, so that the question was not of legitimacy, but
merely to which husband the issue belonged.—One of the two only
remaining cases considerably extends the time beyond the forty weeks;
for in _Alsop_ and _Stacey_, the first of them, the issue was found
legitimate, notwithstanding the lapse of forty weeks and _ten days_, and
the lewd character of the wife: and even as to _Thecar’s_ case, which is
the other of them, the issue having been born two hundred and eighty-two
days, there was an excess of the forty weeks, though but a trifling one.
The precedents therefore, so far from corroborating Lord Coke’s
limitation of the _ultimum tempus pariendi_, do, upon the whole, rather
tend to shew, that it hath been the practice in our courts, to consider
forty weeks merely as the more _usual_ time, and consequently not to
decline exercising a discretion of allowing a longer space, where the
opinion of physicians or the circumstances of the case have so required.
In the course of our inquiries into the subject of this note, we were
curious to know the general sentiments of that eminent anatomist, Dr.
Hunter, on three interesting questions. These were, what is the _usual_
period for a woman’s going with child, what is the _earliest_ time for a
child’s being born alive, and what the _latest_. The answer, which he
obligingly returned through a friend, we have liberty to publish; and it
was expressed in the words following:—1. _The usual period is nine
calendar months; but there is very commonly a difference of one, two, or
three weeks._ 2. _A child may be born alive at any time from three
months; but we see none born with powers of coming to manhood, or of
being reared, before seven calendar months, or near that time. At six
months it cannot be._ 3. _I have_ known _a woman bear a living child, in
a perfectly natural way, fourteen days later than nine calendar months,
and_ believe _two women to have been delivered of a child alive, in a
natural way, above ten calendar months from the hour of conception_.
[What follows is an extract from Sande’s _Decisiones Frisicæ_, being his
report of the case, which in the preceding article is referred to as a
decision by the supreme court of Friesland in 1634, for the legitimacy
of a child born in the twelfth month after the husband’s death. It is
taken from the fourth book, title 8, definition 10.]
_“Partum à muliere, quæ non probabatur impudicè vixisse, editum
duodecimo ab obitu viri mense, habitum legitimum et ad viri
successionem admissum._
“Vir aliquamdiu valetudinarius, et per quatuordecim dies ante mortem
lecto affixus, ex hac vita migravit die decimo Augusti, Anno 1631,
relictâ uxore, quæ nono mensis Julii die anno insequenti peperit filiam,
ita ut à die obitûs viri effluxerint dies naturales tricenti et triginta
tres, qui efficiunt menses solares completos undecim cum tribus diebus,
vel lunares ferè duodecim, sive annum integrum lunarem ab eo momento,
quo vir animam reddidit. Quæsitum, an hæc filia legitima et ad
successionem istius viri admittenda sit.
“Inter Medicos et Physicos constat, quamvis hominis nascendi tempora
sint varia, illa tamen ad certos limites revocari. Aristoteles enim
_lib._ 7. _histor. animal._ ait, soli homini multiplex pariendi tempus
datum: nam et septimo mense, et octavo et nono parere potest, et quod
plurimum, decimo: nonnullas etiam mulieres undecimum mensem attingere.
His conveniunt, quæ Plinius _lib._ 7. _natur. hist cap._ 5. scribit,
nonnullas etiam mulieres undecimum mensem attingere.
“Secundùm ordinarium igitur naturæ cursum, decimus mensis completus est
extremus pariendi terminus. Undè Author libri Sapientiæ _cap._ 7. v. 2.
_In utero_, inquit, _matris figuratus sum raro tempore decem mensium_.
Et Plautus _in Cistelaria_ refert, puellam compressam exacto decimo
mense filiam peperisse. At Authores fidei digni referunt exempla
mulierum, quæ undecimo, duodecimo, decimo tertio, et ulteriore mense,
pepererunt, ut A Gellius 8. _noct. attic._ 16. Plinius _lib._ 7. _natur.
histor. cap._ 5. Avicenna _lib._ 9. _de animal_. Et Albericus Gentilis
_disputat._ 1. _de nascendi tempore_ hæc celebris Medici Victoris
Trincavelli _ex epist._ 5. verba recitat. _Auctores_, inquit, _multi et
illi quidem viri omni exceptione majores, tam antiqui, quam juniores,
attestuntur huic sententiæ, nempe repertas esse mulieres indubitatæ
probitatis et pudicitiæ, quæ fœtum in utero gesserint ad undecimum
mensem et ultra_. Cujus diuturnioris gestationis caussas varias nonnulli
Medici reddunt, ut videre est in consilio primo Monsbelianorum
Medicorum, quod extat apud Gerard. Maynard. _lib._ 3. _decis. Tholos._
4. Alii tamen Medici non adhihent fidem his exemplis, eaque malunt
proficisci ex phantasia et imaginatione mulierum, quæ opinantur ex
diversis accidentibus se ultra tempus ordinarium gestare fœtum, cum
tamen res aliter se habeat, ut apparet ex concilio Medicorum secundo,
quod refertur a Maynardo d. loco. Minimè igitur de hac quæstione
convenit inter ipsos Medicos. Illud certum est, casus istos mulierum,
quæ post decimum mensem peperisse dicuntur, si veri sunt, esse
nihilominus raros et extraordinarios, idcirco eorum non haberi rationem
à Legislatoribus, qui contemnunt quæ semel bis aut perraro accidunt, et
ad ea jus aptant, quæ frequenter et facilè eveniunt _l. nam ad ea 5. et
l. seq. ff. de legib. l. ea quæ raro 64 ff. de reg. jur._ et idcirco
legitimum et extremum pariendi terminum constituunt decimum mensem
completum. Quod jus primum proditum est lege 12 Tabularum ubi Decemviri
ita ajunt, _Ut si qua mulier post viri mortem in decem mensibus proximis
pareret, qui quævè ex ea nasceretur, suus suavè in viri familia heres
esset_. Et Testatores dicere solebant. _Si filius et filia intra decem
mensium spacium, post mortem meam editi fuerint, heredes sunto l. ult.
C. de postum. hered. instit. l. ult. ff. de fideicommiss. libert. l.
Gallus 29. in pr. ff. de liber. et postum._ Ac Ulpianus ut de jure certo
_in l. 3 § penult. ff. de suis et legit. hered._ respondit his verbis,
_post decem menses mortis natus non admittetur ad legitimam
successionem_. Augustinus _lib_. 1. _quæst. Evangelic. ita ait._ Quod
dicuntur decem menses pregnantis, novem sunt pleni, sed initium decimi
pro toto accipitur. Hos decem menses ex instituto Græcorum, a quibus
Decemviri leges suas acceperunt, non solares, sed lunares fuisse probat
Fr. Hotomannus _lib._ 9. _obs._ 9. Nec Ulpiano obloquitur Justinianus in
_Novell._ 39. dum negat sub finem undecimi mensis vel perfecto undecimo
natum esse legitimum: nam indé à contrario sensu ad correctionem
Ulpianei responsi malè inferretur natum initio undecimi mensis esse
legitimum ut animadvertit etiam Albericus Gentilis _d. Disp._ 1. Sanè in
Dicastetrio Wittenbergensi anno 1567. partum pronuntiatum fuisse
legitimum, quam mulier, quæ honestè vixerat, post obitum mariti
pepererat in initio undecimi mensis, referunt Ioachimus à Beust in
tract. de matrimonio _cap._ 36. _in fin. et ad. l._ 3. _ff. de jurejur.
num._ 36. ac Andreas Rauchbaert, _part._ 1. _quæst._ 24. _num._ 53. Unde
Conradus Riddershusius _in comm. ad Novell. Const. part._ 4. _cap._ 13.
a Justinianeo jure moribus recessum existimat. Quod non est admittendum.
Illud notatu dignum, quod ex Theodoro Zuingero Medico refert Hotomannus
_d. obs._ 9. mulieres nempe dum dimidiatum mensem pro integro computant,
sæpe opinari, se undecim menses uterum gestare, cum tamen septem tantum
quadragenas dies scilicet 280. compleverint. Jure igitur nostro partus
habetur legitimus, qui intra et non post decem menses a morte viri
editus est. Confer Iacobum Cujacium _ad d. Novell._ 39. _in tract. de
præscript. cap._ 19. _et lib._ 4 _recept. sent. Iulii Pauli cap._ 9. §
5. Andream Tiraquellum _in repetit. l. si unquam_ 8. _in verb. Suscepit
liberos C. de revocand. donat._ Iacobum Menochium _lib._ 2. _de arbit.
judic. cas._ 89, _num._ 47. 48. & 52. Ioachimum Mynsing. _cent._ 6.
_obs._ 4. Franciscum Hotomannum _lib._ 9. _obs._ 9. Gerardum Maynard.
_lib._ 4. _decis. Tholos._ 3. 4. Iacobum Concennatium, _lib._ 2. _quæst.
jur. cap._ 9. Casus illos raros et extraordinarios ad facti quæstionem,
id est, ad Indicis, ut noni viri arbitrium, redigendos esse dicit
Hotomannus _d. obs._ 9. _in fin._ Et hanc inter ordinarios et
extraordinarios partus differentiam esse ait Gentilis, quòd illi justi
habeantur, nisi probentur injusti, hi injusti censeantur, donec justi
fuerint approbati.
“In hac specie partitæ erant Iudicum sententiæ. Quidam enim censebant
juris definitioni hic esset insistendum, cum partus editus sit mense
duodecimo ferè completo, si menses his accipiamus lunares, et vir ante
obitum quatuordecim dies graviter decubuerit, ideoque credibile non
fuerit eum de vene exercenda cogitasse. Alii (qui numero vincebant)
judicabant partum legitimum, quòd mulier esset probatis moribus ac
pudicitiâ minimè suspectâ, quòd etiam ex marito quantumvis ægroto
concipere potuerit, tardiorisque partus caussam ex Hippocratis sententia
esse potuisse, quod viri infirmi semen fuerit humidius et excrementosius
eoque minus concoctum. Senatus tamen expedire censuit, ut partes ad
transigendum monerentur. Transactione autem non succedente, partus
frequentioribus suffragiis declaratus fuit legitimus, et patri
heres.[181].”
------------------------------------
The learned author of these notes, Francis Hargrave, one of the King’s
Counsel, died while our work was at press: the profession have lost a
most profound and erudite lawyer; the learned, an elegant scholar; and
his friends, a man whose amenity of manner and kindness of heart
surpassed the ordinary bounds of human benevolence.
APPENDIX.
PART III.
The determination of the College concerning the Questions proposed to
them by the King’s Majestie about the death of _Joseph Lane_.
The College of Physicians in London being lawfully assembled by the
command of their Sovereign Lord the King, about certain questions
proposed concerning the death of _Joseph Lane_, reported to be killed by
poison, and having made a diligent search, and well considering all
circumstances relating; 1. As to the state of the body of the foresaid
Lane; 2. As to the disease which (by a long series of violent symptoms)
brought him to his end; 3. As to the kind and appearance of his death;
4. As to the observations made upon his dead body by the Physicians and
Chirurgeons present; 5. As to the conjectures taken from the strict
examination of a _bolus_ extremely suspicious, whose parts were
artificially separated, found in Mr. _Lane_’s house when dead, and after
brought into Court before the Judges, and from thence to the Physicians
at their College: To whom (by the command and in the name of the King)
Letters were wrote from the Right honourable Sir John Cooke principal
Secretary of State that they might diligently enquire and give a
faithful account to the following Questions, 1 Concerning Lane’s death,
whether it was procured from Poison? 2 Their opinion about a purging
potion carried the 4th of April, 1632 from Mr. _Mathews_ an Apothecary’s
shop to _Lane’s_ House; and taken by Lane the 6th, whether it had any
thing of poison in it? The College after very mature deliberation, did
humbly present the following Decree to his sacred Majesty as a testimony
of their obedience.
1 That the said _Joseph Lane_ did certainly dye of a violent death. 2
That he had taken poison, and that corrosive. 3 That they could
determine nothing concerning the Potion sent and given by Mr. _Mathews_
the Apothecary to Mr. _Lane_ without the advice of any Physician,
because many of their Medicines were too negligently prepared by their
Servants; But if this potion did only consist of those ingredients which
he had given an account of, and for which we have solely his word, then
there was nothing of poison contained therein. 4. In the remainder of
the aforesaid _Bolus_ there was found Mercury Sublimate, not sweet, but
the most harsh and highly caustick, which was separated from the rest of
the _Bolus_ and shown to the whole College; In testimony whereof the
College by the unanimous Consent of the President and Fellows and all
present at this consultation, signed this Decree with their own hands,
and sealed it with the College Seal, that it might appear more
authentick.
And because that from the beginning of the world to this very day good
and wholesome Laws have derived their original from evil manners, the
whole College of Physicians doe most humbly beseach your most sacred
Majesty that as the Father of your Country, you would consult the health
and welfare both of your City Subjects and would by your Royal
Proclamation strictly command that for the future, No Grocer, Drugster,
Apothecary, Chymist, or any other person presume to sell Arsenick,
Quicksilver, Sublimate, Precipitate, Opium, Coloquintida, Scammony,
Hellebore, or other Druggs either poisonous or dangerous, to poor sorry
Women or poor people (which hath been too common) but only to those who
are willing to give their names; that if there should be occasion they
may give an account of the reason of their buying these dangerous
medicines.
May it likewise please your Majesty to issue out your Royal Edict under
the most severe penalties, that no Apothecary for the future shall dare
to compound for the Well, or administer to the Sick any medicines,
especially Vomits, Purges, Opiates, Mercurial or Antimonial remedies
without the prescription of Physicians then living; which prescription
they shall be bound to produce upon the command or request of the
Censors of the College. He that shall act contrary, shall be punished by
the Law as a publick enemy to the life of man. Dated from the College of
Physicians in London the Last day of May 1632 And subscribed
Dr. ARGENT President
(and seventeen others)
(_See Goodall’s Proceedings_)
Case of Standsfield.
Edinburgh Dec^r 1. 1687.
We under Subscribers, James Craufurd and James Muirhead, Chirurgeons in
Edinburgh, having order from Sir John Dalrymple his Majesty’s Advocate,
to go to Morum and there to take up the Corps of Sir James Standsfield,
and to sight and view the same exactly, and if need were, to open up the
body, and to consider whether there appeared any evidence of wounds,
bruises, or strangling upon the Corps, besides what might have happened
by his falling or drowning in the water, &c. In obedience thereto, we
caused take up the said corps in the presence of “(here follow the
names)” indwellers in New Milns, and some others. Having with all
possible exactness viewed the corps we observed the face a little
swelled, and inclining to a dark reddish colour, some fulness of some
capillarie veins in the pallet of the mouth towards the uvula, as also a
large and conspicuous swelling, about three inches broad, of a dark red
or blue colour, from one side of the larinx round backwards to the other
side thereof; we observed the jugular veins on both sides the neck very
large and distended and full of blood; there was a large swelling under
and betwixt the chin and the cartilago scutiformis; there was also a
little scratch below the left mandibula, which had rankled the cuticula,
and made some little impression on the cutis: Having made incission from
the chin down about the larinx, and cross upon the swelling of the neck,
we found a greater laxness and distance (as we think) than ordinary
betwixt the cartilago scutiformis and os hyoides; we found the tumour on
the neck, containing bruised, like dark or blackish blood; the jugulars,
when cut, bled inconsiderably especially that on the left side.
Having opened his breast we found the lungs distended to the filling up
their capacities, but free of water: his stomach, liver &c. were all in
good condition; we found no water at all; the breast, belly, privy
parts, &c. were all well coloured, there was no swelling in his belly,
nor any thing by ordinary to be seen on his head. This we attest and
subscribe with our hands.
James Craufurd
James Murehead
Report of the Chirurgeons of Edinburgh on the same case.
We under subscribers, Chirurgeons of Edinburgh, having fully considered
the report made by James Craufurd and James Murehead concerning the
condition of the corps of Sir James Standsfield, and though it be not
usual to declare more than matter of fact, yet in obedience to your
Lordships commands, where ye desire to be informed, if these symptoms
found upon the body, do import drowning or strangling; we humbly offer
opinion, so far as our art or experience will allow. And whereas the
report informs us, that there was found a swelling and preternatural
redness in the face, a large conspicuous tumour, about three inches
broad, of a dark red, or black colour, from the one side of the larynx
round backwards to the other side thereof, a large swelling betwixt the
chin and the cartilago scutiformis, the jugular veins on both sides very
much distended; and when incision was made downwards between the os
hyoid and larinx was observed a laxness, and distance between the os
hyoid and the cartilago scutiformis, incision was made cross alongst the
tumour it was found full of bruised blood; the jugulars likewise, when
opened, yielded a considerable quantity of blood, especially on the left
side, no smell or corruption appearing in any part of the body. It is
very probable these parts have suffered some external violence, which
hath made them appear so far different from their natural figure and
colour, and could not be caused by drowning simply. As to the other part
of the report, the breast and belly being opened, the lungs found
distended, the bronchi full of air, without any water, nor any water
found in the stomach or intestines, a body when drowned being generally
found to have much water in it with other circumstances of the report
considered, gives just ground to think he was not drowned. This we
subscribe at Edinburgh the 3d day of Feb^y 1687
John Ballie, Deacon,
Wil Borthwick
George Stirling
Thomas Edgar
James Craufurd
James Murehead
The Report of the College of Physicians,
Edinburgh February 6: 1687
The College of Physicians being assembled at the desire of his Majesty’s
Advocat, to consider a report made by some Chirurgeons, concerning the
body of the late Sir James Standsfield, and to give their opinion,
whether by the said report, there is any just ground to believe that the
said Sir James Standsfield was strangled or drowned? And they have
accordingly considered the said report. They are of opinion, supposing
the verity of the said report or declaration that there is sufficient
ground to believe, that the said Sir James Standsfield was strangled,
and not drowned. In testimony whereof these presents are subscribed by
Sir Andrew Balfour, President of the said College.
A. Balfour PCRM
(_From Howell’s State Trials_).
Extract from Medical Evidence in the Case of _Spencer Cowper_, Esq. for
the murder of _Sarah Stout_.
(13 Howell’s State Trials)
Page 1126. Mr. _Coatsworth_ a Surgeon sworn
My Lord in April last I was sent for by Dr. _Philips_ to come to
Hertford to see the body of Mrs. _Stout_ opened, who had been six weeks
buried; and he told me that there was a suspicion she was murdered, and
that her relations were willing to have her taken up and opened. I came
down I think on the 27th of April, and lay at Mrs. _Stout_’s house that
night; and by her discourse I understood she wanted to be satisfied,
whether her daughter was with child? I told her, it was my opinion we
should find the parts contained in the abdomen so rotten, that it would
be impossible to discover the uterus from the other parts; however, if
she would have her opened, I could not discover whether she was with
child, unless the infant was become bony. Her face and neck, to her
shoulders, appeared black, and so much corrupted that we were unwilling
to proceed any further: but, however, her mother would have it done, and
so we did open her; and as soon as she was opened, we perceived the
stomach and guts were as full of wind as if they had been blown with a
pair of bellows; we put her guts aside, and came to the uterus, and Dr.
_Philips_ shewed it us in his hand, and afterwards cut it out and laid
it on the table, and opened it, and we saw into the cavity of it, and if
there had been any thing there as minute as a hair, we might have seen
it, but it was perfectly free and empty; after that we put the
intestines into their places; and we bid him open the stomach, and it
was opened with an incision knife, and it sunk flat, and let out wind,
but no water; afterwards we opened the breast and lobes of the lungs,
and there was no water; then we looked on each side and took up the
lobes of the lungs too, to see if there was no water in the diaphragm,
and there was none, but all dry. Then I remember I said, this woman
could not be drowned, for if she had taken in water, the water must have
rotted all the guts: that was the construction I made of it then; but
for any marks about her head and neck, it was impossible for us to
discover it, because they were so rotten.
_Edward Clement_ (a seaman) sworn. In the year 89 or 90, in Beachy
fight, I saw several thrown over-board during the engagement, but one
particularly I took notice of, that was my friend, and killed by my
side; I saw him swim for a considerable distance from the ship; and a
ship coming under our stern, caused me to lose sight of him, but I saw
several dead bodies floating at the same time; likewise in another
engagement, where a man had both his legs shot off, and died instantly,
they threw over his legs; though they sunk I saw his body float:
likewise I have seen several men who have died natural deaths at sea,
they have when they have been dead, had a considerable weight of ballast
and shot made fast to them, and so were thrown overboard; because we
hold it for a general rule, that all men swim if they be dead before
they come into the water; and on the contrary, I have seen men when they
have been drowned, that they have sunk as soon as their breath was out
of their bodies, and I could see no more of them. For instance, a man
fell out of the Cornwall, and sunk down to rights, and seven days
afterwards we weighed anchor, and he was brought up grasping his arm
about the cable: and we have observed in several cases, that where men
fall overboard, as soon as their breath is out of their bodies they sink
downright; and on the contrary, where a dead body is thrown over-board
without weight, it will swim. * * * Men (that are killed) float with
their heads just down, and the small of their backs and buttocks
upwards, * * * why should government be at that vast charge to allow
threescore or fourscore weight of iron to sink any man, but only that
their swimming about should not be a discouragement to others.
_Robert Dew_ sworn—* * * (Question by the Prisoner) After she was taken
out, did you observe any froth or foam come from her mouth or nose?
_Dew_—There was a white froth came from her, and as they wiped it away,
it was on again presently.
—— _Young_—(another witness to a similar question)—* * And when they had
taken her up (out of the water) they laid her down upon a green place,
and after she was laid down a great quantity of froth, like the froth of
new beer, worked out of her nostrils. * * * It rose up in bladders, and
ran down on the sides of her face, and so rose again.
Dr. _Sloane_ sworn—* * As to my opinion of drowning it is plain, that if
a great quantity of water be swallowed into the stomach by the gullet,
it will not suffocate or drown the person: Drunkards who swallow a great
deal of liquor, and those who are forced by the civil law to drink a
great quantity of water, which in giving the question (as it is called)
is poured into them by way of torture to make them confess crimes, have
no suffocation or drowning happen to them: But on the other hand, when
any quantity comes into the wind-pipe, so as it does hinder or intercept
inspiration, or coming in of the air, which is necessary for inspiration
or breathing, the person is suffocated. Such a small quantity will do,
as sometimes in prescriptions, when people have been very weak, or
forced to take medicines, I have observed some spoonfuls in that
condition (if it went the wrong way) to have choaked or suffocated the
person. I take drowning in a great measure to be thus, and when one
struggles he may, to save himself from being choaked, swallow some
quantity of water, yet that is not the cause of his death, but that
which goes into the wind-pipe and lungs. Whether a person comes dead or
alive into the water, I believe some quantity will go into the
wind-pipe; and I believe without force after death, little will get into
the stomach, because that it should, swallowing is necessary, which
after death cannot be done. * * *
Baron _Hatsell_. But what do you say to this? if there had been water in
the body, would it not have putrified the parts after it had lain six
weeks.
Dr. _Sloane_. My Lord, I am apt to think it would have putrified the
stomach less than the lungs, because the stomach is a part of the body
that is contrived by nature partly to receive liquids; but the
contrivance of the lungs is only for the receiving of air; they being of
a spongy nature, the water might sink more into them than the stomach;
but I believe it might putrify there too after some time. I am apt to
think, that when a body is buried under ground, according to the depth
of the grave, and difference of the weather and soil, the fermentation
may be greater or lesser, and that according to the several kinds of
meats or liquids in the stomach, the putrifaction will likewise vary so
that it seems to me to be very uncertain.
Baron _Hatsell_. But when they are in a coffin, how is it then?
Dr. _Sloane_. No doubt there will be a fermentation more or less,
according as the air comes more or less to the body. Indeed it may be
otherwise where the air is wholly shut out, which is supposed to be the
way of embalming, or preserving of dead bodies of late, without the use
of any spices, which is thought in a great measure to be brought about
by the closeness of the coffin, and hindering of the air from coming
into the body.
Question (by the Prisoner). Is it possible, in your judgment, for any
water to pass into the thorax?
Dr. _Sloane_. I believe it is hardly possible, that any should go from
the wind-pipe into the cavity of the thorax, without great violence and
force; for there is a membrane that covers the outside of the lungs,
that will hinder the water from passing through it into any part without
them.
Dr. _Garth_ sworn.—* * * All dead bodies (I believe) fall to the bottom,
unless they be prevented by some extraordinary tumour. * * * I believe
when she threw _herself_ in, she might not struggle to save herself, and
by consequence not sup up much water. Now there is no direct passage
into the stomach but by the gullet, which is contracted or pursed up by
a muscle in nature of a sphincter: for if this passage was always open
like that of the wind-pipe, the weight of the air would force itself
into the stomach, and we should be sensible of the greatest
inconveniences. * * * My Lord, I think we have reason to suspect the
Seaman’s evidence; for he saith that threescore pound of iron is allowed
to sink dead bodies, whereas six or seven pounds would do as well; * *
the design of tying weights to their bodies, is to prevent their
floating at all, which otherwise would happen in some few days.[182]
Dr. _Morley_, the next witness, related some experiments on animals.
Dr. _Wollaston_, sworn.—* * I saw two men that were drowned out of the
same boat. They were taken up the next day after they were drowned; one
of them was indeed prodigiously swelled, so much that his clothes were
burst in several places of his sides and arms, and his stockings in the
seams * * the other was not the least swelled in any part nor
discolored; he was as lank, I believe, as ever he was in his lifetime,
and there was not the least sign of any water in him, except the watery
froth at his mouth and nostrils.[183]
Mr. _W. Cooper_, sworn.—* * Dead bodies necessarily sink in water, if no
distention of their parts buoy them up; this distention sometimes
happens before death, at other times soon after, and in bodies that are
drowned after they lie under water.
Dr. _Crell_, sworn.—My Lord, it must be reading, as well as a man’s own
experience, that will make any one a Physician: for without the reading
of books in that art, the art itself cannot be attained to: besides, my
Lord, I humbly conceive, that in such a difficult case as this, we ought
to have a great deference for the reports and opinions of learned men:
neither do I see any reason why I should not quote the fathers of my
profession in this case, as well as you gentlemen of the long robe quote
_Coke_ upon _Littleton_ in others. * * I shall only insist on what
_Ambrose Pare_ relates in his Chapter of Renunciations. * *
Mr. _Harriot_ (a Naval Surgeon) sworn.—* * When we threw men overboard
that were killed, some of them swam and some sunk * * (when a dead body
is thrown overboard) I always observed that it did sink. * *
Mr. _Bartlet_ (a Naval Surgeon), sworn.—* * I never saw any bodies
float, either of the men that were killed in our ship, or in the ships
that have been near us; I have not seen a body on the surface of the
water.
--------------
We have merely made comparatively short extracts from this trial, as
more copious quotations, both of the evidence, and pamphlets
subsequently published, would have occupied too great a space. The whole
will be found in _Howell’s State Trials_, and is well worthy of the
attention of the Medical or Legal reader.
-------
Extracts from the Evidence of Doctor Anthony Addington, on the trial of
_Mary Blandy_ at Oxford 1752, for the Murder of her Father by Arsenic.
Dr. Anthony Addington & Dr. William Lewis sworn.
_Counsel._ Did you, Dr. Addington, attend Mr. Blandy in his last
illness?
_Dr. Addington._ Yes, Sir.
_C._ When was you called to him the first time?
_Dr. A._ On Saturday evening August the 10th.
_C._ In what condition did you find him?
_Dr. A._ He was in bed; and told me, that after drinking some gruel on
Monday night, August the 5th, he had perceived an extraordinary
grittiness in his mouth, attended with a very painful burning and
pricking in his tongue, throat, stomach, and bowels, and with sickness
and gripings; which symptoms had been relieved by fits of vomiting and
purging.
_C._ Were those fits owing to any physic he had taken or to the gruel?
_Dr. A._ Not to any physic; they came on very soon after taking the
gruel.
_C._ Had he taken no physic that day?
_Dr. A._ No.
_C._ Did he make any further complaints?
_Dr. A._ He said, that, after drinking more gruel on Tuesday night
August the 6th, he had felt the grittiness in his Mouth again, and that
the burning and pricking in his tongue, throat, stomach and bowels, had
returned with double violence and had been aggravated by a prodigious
swelling of the belly, and exquisite pains and prickings in every
external as well as internal part of his body, which prickings he
compared to an infinite number of needles darting into him all at once.
_C._ How soon after drinking the gruel?
_Dr. A._ Almost immediately. He told me likewise, that at the same time,
he had had cold sweats, hiccup, extreme restlessness and anxiety; but
that then, viz. on Saturday night August the 10th, having had a great
many stools, and some bloody ones, he was pretty easy every where,
except in his mouth, lips, nose, eyes, and fundament; and except some
transient gripings in his bowels. I asked him, to what he imputed those
uneasy sensations in his mouth, lips, nose, and eyes? he said to the
fumes of something he had taken in his gruel on Monday night August the
5th, and Tuesday night August the 6th.
On inspection, I found his tongue swelled and his throat slightly
inflamed and excoriated. His lips especially the upper one were dry and
rough, and had angry pimples on them. The inside of his nostrils was in
the same condition. His eyes were a little blood-shot. Besides these
appearances, I observed that he had a low, trembling, intermitting
pulse; a difficult unequal respiration; a yellowish complexion; a
difficulty in the utterance of his words; and an inability of swallowing
even a tea-spoonful of the thinnest liquor at a time.
As I suspected that these appearances and symptoms were the effect of
poison, I asked Miss Blandy whether Mr. Blandy had lately given offence
to either of his servants or clients or any other person? She answered
_That he was at Peace with all the World, and that all the World was at
Peace with him_. I then asked her whether he had ever been subject to
complaints of this kind before? She said, that he had often been subject
to the cholic and heart-burn; and that she supposed this was only a fit
of that sort, and would soon go off as usual. I told Mr. Blandy that I
asked these questions because I suspected that by some means or other he
had taken poison. He replied, _It might be so_, or in words to that
effect: but Miss Blandy said _It was impossible_.
On Saturday morning August the 10th, he seemed much relieved; his pulse,
breath, complexion, and power of swallowing, were greatly mended. He had
had several stools in the night and no blood in them. The complaints
which he had made of his mouth, lips, nose, and eyes were lessened; but
he said the pain in his fundament continued and that he still felt some
pinchings in his bowels. On viewing his fundament I found it almost
surrounded with gleety Excoriations and Ulcers.
About eight o’clock this Morning I took my leave of him, but before I
quitted the room, Miss Blandy desired I would visit him again the next
day.
When I got down stairs, one of the maids put a paper into my hands,
which she said Miss Blandy had thrown into the kitchen fire, several
holes were burnt in the paper but not a letter of the superscription was
effaced. The Superscription was, _The Powder to clean the Pebbles with_.
_C._ What is the maid’s name that gave you that paper?
_Dr. A._ I cannot recollect which of the maids it was that gave it to
me. I opened the paper very carefully, and found in it a whitish powder,
like white arsenic in taste, but slightly discoloured by a little burnt
paper mixed with it. I cannot swear this powder was arsenic or any other
poison, because the quantity was too small to make any experiment with,
that could be depended on.
_C._ What do you really suspect it to be?
_Dr. A._ I really suspect it to be white arsenic.
_C._ Please to proceed Sir.
_Dr. A._ As soon as the maid had left me, Mr. Norton the Apothecary
produced a powder, that, he said had been found at the bottom of that
mess of gruel, which, as was supposed had poisoned Mr. Blandy. He gave
me some of that powder, and I examined it at my leisure, and believe it
to be white arsenic.
On Monday morning August the 12th I found Mr. Blandy much worse than I
had left him the day before, his bowels were still in pain.
I now desired that another Physician might be called in, as I
apprehended Mr. Blandy to be in the utmost danger, and that this affair
might come before a Court of Judicature. Dr. Lewis was then sent for
from Oxford. I staid with Mr. Blandy all this day. I asked him more than
once whether he really thought he had taken poison? He answered each
time, that he believed he had. I asked him whether he thought he had
taken poison often? He answered in the affirmative. His reasons for
thinking so, were, because some of his teeth had decayed much faster
than was natural; and because he had frequently for some months past,
especially after his daughter had received a present of _Scotch Pebbles_
from Mr. _Cranstoun_, been affected with very violent and unaccountable
prickings and heats in his tongue and throat, and with most intolerable
burnings, and pains in his stomach and bowels, which used to go off in
vomitings and purgings. I asked him whom he suspected to be the giver of
the poison? The tears stood in his eyes; yet he forced a smile and
said—_A poor Love-sick Girl—I forgive her—I always thought there was
mischief in those cursed Scotch Pebbles_.
Dr. Lewis came about eight o’clock in the evening. Before he came Mr.
Blandy’s complexion, pulse, breath, and faculty of Swallowing were got
much better again; but he complained more of pain in the fundament.
* * * *
_Dr. Addington._ On Tuesday morning August the 13th, we found him worse
again. His countenance, pulse, breath and power of swallowing, were
extremely bad. He was excessively weak. His hands trembled. Both they
and his face were cold and clammy. The pain was intirely gone from his
bowels, but not from his fundament. He was now and then a little
delirious. He had frequently a short cough, and a very extraordinary
elevation of his chest, in fetching his breath; on which occasions an
ulcerous matter generally issued from his fundament. Yet in his sensible
intervals, he was cheerful and jocose; He said, _He was like a Person
bit by a Mad Dog; for that he should be glad to drink, but could not
swallow_.
About noon this day his speech faultered more and more. He was sometimes
very restless, at others very sleepy. His face was quite ghastly. This
night was a terrible one.
On Wednesday morning, August the 14th, he recovered his senses for an
hour or more. He told me, he would make his will in two or three days;
but he soon grew delirious again; and sinking every moment, died about
Two o’Clock in the afternoon.
_C._ Upon the whole, did you then think, from the symptoms you have
described, and the observations you made, that Mr. Blandy died by
poison?
_Dr. A._ Indeed I did.
_C._ And it is your present opinion?
_Dr. A._ It is; and I have never had the least occasion to alter it. His
case was so particular that he had not a symptom of any consequence, but
what other persons have had, who have taken White Arsenic; and, after
death, had no appearance (_except a stone in the Gall bladder_) in his
body, but what other persons have had, who have been destroyed by white
arsenic.
_C._ When was his body opened?
_Dr. A._ On Tuesday in the afternoon, August the 15th.
_C._ What appeard on opening it?
_Dr. A._ I committed the appearances to writing, and should be glad to
read them, if the Court will give me leave.
Then the Doctor, on leave given by the Court, read as follows:
Mr. Blandy’s back and the hinder part of his arms, thighs, and legs were
livid. That fat which lay on the muscles of his belly, was of a loose
texture, inclining to a state of fluidity. The muscles of his belly were
very pale and flaccid. The cawl was yellower than is natural; and on the
side next the stomach and intestines looked brownish. The heart was
variegated with purple spots. There was no water in the pericardium. The
lungs resembled bladders half filled with air and blotted in some places
with pale but in most with black ink. The liver and spleen were much
discoloured; the former looked as if it had been boiled, but that part
of it which covered the stomach was particularly dark. A stone was found
in the gall-bladder. The bile was very fluid and of a dirty yellow
colour, inclining to red. The kidneys were all over stained with livid
spots. The stomach and bowels were inflated, and appeared, before any
incision was made into them, as if they had been pinched, and
extravasated blood had stagnated between their membranes. They contained
nothing, as far as we examined, but a slimy bloody froth. Their coats
were remarkably smooth, thin, and flabby. The wrinkles of the stomach
were totally obliterated. The internal coat of the stomach and duodenum,
especially about the orifices of the former, were prodigiously inflamed
and excoriated. The redness of the white of the eye, in a violent
inflammation of that part, or rather the white of the eye just brushed
and bleeding with the beards of barley, may serve to give some idea how
this coat had been wounded. There was no schirrus in any gland of the
abdomen; no adhesion of the lungs to the pleura; nor indeed the least
trace of a natural decay in any part whatever.
-------
(Dr. Lewis confirmed this part of the Evidence.)
-------
Dr. Addington Cross examined.
* * * *
_Prisoners Counsel._ Why do you believe it to be White Arsenic?
_Dr. A._ For the following Reasons: 1. This Powder has a milky
Whiteness; so has White Arsenic. 2. This is gritty and almost insipid;
so is White Arsenic. 3. Part of it swims on the surface of cold water
like a pale sulphureous film; but the greatest part sinks to the bottom,
and remains there undissolved; the same is true of white arsenic. 4.
This thrown on red hot iron, does not flame, but rises entirely in thick
white fumes, which have the stench of garlick; and cover cold iron held
just over them, with white flowers; white arsenic does the same. 5. I
boiled ten grains of this powder in four ounces of clean water, and
then, passing the decoction through a filtre, divided into five equal
parts, which were put into as many glasses: Into one glass I poured a
few drops of Spirit of Sal Ammoniac; into another some of the Lixivium
of Tartar; into the third some strong Spirit of Vitriol; into the fourth
some Spirit of Salt; and into the last some Syrup of Violets. The Spirit
of Sal Ammoniac threw down a few particles of pale sediment. The
Lixivium of Tartar gave a white cloud, which hung a little about the
middle of the glass. The Spirits of Vitriol and Salt made a considerable
precipitation of a lightish coloured substance; which in the former,
hardened into glittering chrystals, sticking to the sides and bottom of
the glass. Syrup of Violets produced a beautiful pale green tincture.
Having washed the saucepan, funnel, and glasses, used in the foregoing
experiments, very clean, and provided a fresh filtre, I boiled ten
grains of white arsenic bought of Mr. Wilcock, Druggist in Reading, in
four ounces of clean water; and filtering it and dividing it into five
equal parts, proceeded with them just as I had done with the former
decoction. There was an exact similitude between the experiments made on
the two decoctions. They corresponded so nicely on each trial, that I
declare I never saw any two things in Nature more alike, than the
decoction made with the powder found in Mr. Blandy’s gruel, and that
made with white arsenic. From the experiments, and others, which I am
ready to produce, if desired, I believe that powder to be White Arsenic.
* * * *
She had put a little of it into his cup of tea; but that he never drank
it; that part of the powder swimming at top of the tea, and part sinking
at the bottom, she had poured it out of the window.
See Hargrave’s State Trials. Vol. 10.
Extracts from the Evidence delivered on the Trial of _John Donellan_,
Esq. for the Wilful Murder, by Poison, of Sir _Theodosius Edward
Allesley Boughton_, Bart. at the Assizes at Warwick, on Friday, March
30th, 1781.
(_Taken in Short-hand by J. Gurney._)
-------
EVIDENCE FOR THE CROWN.
_Lady Anna Maria Boughton_, Mother of the deceased, Sworn—Examined by
Mr. Howorth.
Q. Give the Jury an account of the physic you gave him, and the manner
of its operation.
A. I asked him where the bottle was: he said it stood there upon the
shelf. First of all he desired me to get him a bit of cheese in order to
take the taste out of his mouth, which I did: he desired me to read the
lable; I accordingly did, and found there was written upon it, _Purging
draught for Sir Theodosius Boughton_.
Q. When you gave him the draught, did he make any, and what observations
upon it?
A. As I was talking to him I omitted shaking the bottle: he, observing
that, said, Pour it back again, and shake the bottle, and in so doing I
spilt part of it upon the table; the rest I gave him. As he was taking
it, he observed it smelt and tasted very nauseous; upon which I said, I
think it smells very strongly like bitter almonds. I gave him the
cheese; he chewed it, and spit it out. He then remarked that he thought
he should not be able to keep the medicine upon his stomach. I asked him
if he would have some water; I gave him some. He washed his mouth, and
spit that out, and then laid down.
Q. Please to open that bottle, [giving Lady Boughton the genuine
draught] and smell at it, and inform the Court whether that smells at
all like the medicine Sir Theodosius took.
A. No, it does not.
Q. Please to smell to this, [giving Lady Boughton the draught with the
laurel water added to it.]
A. This has a smell very like the smell of the medicine which I gave
him.
Q. What was the first observation your Ladyship made of any appearances
upon Sir Theodosius after taking the medicine?
A. In two minutes, or two minutes and a half, after he had taken it, he
struggled very much; it appeared to me, as if it was to keep it down;
and made a prodigious rattling in his stomach, and guggling; and he
appeared to me to make very great efforts to keep it down.
_Court._ How did he make a rattling?
A. A noise in his stomach as if it would come up again.
Q. How long did you observe these symptoms continue?
A. About ten minutes; he then seemed as if he was going to sleep, or
inclined to dose. Perceiving him a little composed, I went out of the
room. I returned in about five minutes after into his room; then, to my
great surprise, I found him with his eyes fixed upwards, his teeth
clenched, and froth running out of each corner of his mouth.
Q. What did you do upon that?
A. I ran down stairs, and told the servant to take the first horse he
could get, and go immediately for Mr. Powell, the Apothecary.
Q. Was any other person sent for?
A. No.
Q. When did you first see Mr. Donellan after that?
A. I saw him in less than five minutes; he came up to the bed chamber
where my son was, and asked me, What do you want? I said I wanted to
inform him what a terrible thing had happened; that it was an
unaccountable thing in the doctor to send such a medicine, for if it had
been taken by a dog, it would have killed him; and I did not think my
son would live. He asked in what manner Sir Theodosius was taken; and I
told him. Then he asked me where the physic bottle was? I shewed him the
two draughts. He took up one of the bottles and said, Is this it? Yes,
said I. He took it up, poured some water out of the water bottle, which
was just by, into the phial, shook it, and then emptied it out into some
dirty water which was in a wash-hand bason.
Q. Did you make any observation upon that conduct?
A. After he had thrown the contents of the first bottle into the
wash-hand bason of dirty water, I observed that he ought not to do that:
I said, What are you at? you should not meddle with the bottle. Upon
that he snatched up the other bottle, and poured water into it, and
shook it; then he put his finger to it, and tasted it. I said, What are
you about? you ought not to meddle with the bottles. Upon which he said,
I did it to taste it.
Q. Had he tasted the first bottle?
A. No.
_Catharine Amos_ sworn. Examined by Mr. Geast.
Q. Did you live at Lawford-hall at the time of the death of Sir
Theodosius Boughton?
A. Yes.
Q. In what capacity?
A. I was cook.
Q. Was you sent for by Lady Boughton?
A. I was sent for to my lady, by the other maid, Sarah Blundell, who is
dead. I was called up stairs into that room where Sir Theodosius lay.
Q. When you came into the room in what situation was Sir Theodosius
Boughton?
A. He did not stir hand or foot, but frothed at his mouth. I wiped the
froth four or five times from his mouth.
Q. Was the body motionless?
A. The stomach heaved very much.
Q. Was there any noise?
A. He guggled at the throat.
Q. Give an account of any other circumstances that you observed?
A. I did not observe any thing more.
Q. Where did you go to from thence?
A. I went below stairs about my work. My work lay below stairs.
Q. How long afterwards was it before you saw Mr. Donellan?
A. It might be about a quarter of an hour. I saw him in the passage. Mr.
Donellan said, Sir Theodosius was out very late over night a fishing,
that it was very silly of him, as he had been taking such physick as he
had been taking of, before time.
Q. That is before that time?
A. Yes.
Q. Did he give any reason why he had been out so late a fishing?
A. No.
Q. Did he say any thing more at that time?
A. Not to the best of my knowledge.
Q. Did you see Mr. Donellan the day that the body was opened?
A. Yes.
Q. What did Mr. Donellan say at that time?
A. He said there was nothing the matter, that it was a blood-vessel had
broke which had occasioned Sir Theodosius’s death.
Q. Did Mr. Donellan bring any thing to you at or about the time of Sir
Theodosius’s death?
A. No.
Q. At any time before his death?
A. No, nothing at all.
Q. Did he never bring you any thing for any purpose?
A. No.
Q. Was any thing brought to you by Mr. Donellan within a fortnight or
three weeks before the death of Sir Theodosius Boughton?
A. No.
_Counsel for the Prisoner to Lady Boughton._ Did Sir Theodosius Boughton
speak at all after he had taken the medicine?
_Lady Boughton._ Not at all.
_Mr. Geast to Catharine Amos._ You said you was cook maid?
A. Yes.
Q. Was the oven under your direction?
A. Yes.
Q. Was any thing brought to you at any time?
A. Yes, a still.
Q. Who brought it?
A. Mr. Donellan.
Q. When was it?
A. Sometime after Sir Theodosius’s death.
Q. How long after?
A. To the best of my remembrance it might be a fortnight.
Q. What was there in it?
A. Nothing. It had been washed. He desired me to put it into the oven to
dry it, that it might not rust; I said if I put it in then it would
unsolder it, as it was made of tin.
_Dr. Rattray_ sworn. Examined by Mr. Balguy.
Q. You are, I believe, a Physician at Coventry?
A. I am.
* * * * * * * *
Q. How soon after this was it that you was again sent for upon this
melancholy occasion?
A. On the 9th of September; I think it was on a Saturday.
Q. Who did you receive a message from at that time?
A. I really do not know; I received a message by some strange
round-about way, in consequence of which I went, but I don’t know who
sent it. Mr. Wilmer and I went in company; we met Mr. Bucknill, Mr.
Powell, of Rugby, and Mr. Snow, of Southam; those were all the physical
people I believe. Mr. Bucknill opened the body.
Q. Where did you meet at that time?
A. In the church-yard at Newbold.
Q. The body had then been interred?
A. It had been in the vault at Newbold as I understood.
Q. What passed at that time?
A. We proceeded to the opening of the body as soon as we conveniently
could, and inspected as far as we were able the appearances of the body.
Q. What were the material appearances that struck you at that time?
A. The material appearances where, in the first place, the body appeared
upon a general view swoln or distended a good deal; the face of a round
figure extremely black, with the lips swelled and retracted and shewing
the gums; the teeth black except a small white speck on one of the fore
teeth; the tongue protruding beyond the fore teeth, and turning upwards
towards the nose; the blackness descended upon the throat, gradually
diminishing as it got towards the breast, and the body was spotted in
many parts but not very material. There was another circumstance which
for decency I have omitted, but if called upon I am ready to mention.
_Mr. Balguy._ That circumstance is not at all material. I meant to ask
you merely to such appearances as were material. Were there any
appearances upon the body sufficient to cause or confirm an opinion you
may by and by give upon the subject?
A. We proceeded to open the body, and in dissecting the skin the fat
appeared in a dissolving state a little watery; on getting into the
cavity of the belly the bowels in the lower belly seemed to put on the
appearance of inflammation. I choose to make use of the valgar term
_appearance_, in order to convey a general idea of the appearance things
in that state generally put on.
Q. Was it so with the stomach too?
A. Yes: the orifices of the stomach and the small arch of the stomach;
the heart upon opening the pericardium, the membrane which encloses it,
appeared to be in a natural state; the lungs appeared what I call
suffused with blood, looking red and spotted in many places with black
specks; and on the back part the blood had settled in a deep red colour,
almost approaching to purple; the diaphragm was in the same state, and
in general upon the depending surfaces of the body the blood was settled
in the like manner; the kidneys appeared black as tinder, and the liver
much in the same state. These I think are most of the appearances I need
mention upon the present occasion.
Q. Have you heard the evidence of Mr. Powell, the apothecary?
A. I have.
Q. And have heard too the evidence of Lady Boughton?
A. I have.
Q. Now from the evidence of Mr. Powell and the evidence of Lady
Boughton, independent of appearances, for I would have you forget them
for the present instant; what was in your judgment the occasion of Sir
Theodosius Boughton’s death?
A. Independent of the appearances of the body, I am of opinion that the
draught, in consequence of the symptoms which succeeded the swallowing
of it, as described by Lady Boughton, was poison; and the immediate
cause of his death.
Q. Please to smell upon that bottle; what in your judgment is the
noxious medicine in that bottle?
A. I know the liquid well; it is a distillation of laurel leaves,
commonly called laurel water.
Q. You have heard Mr. Powell’s account of the mixture he prepared for
Sir Theodosius Boughton; was the mixture innocent and proper?
A. In my opinion it was perfectly innocent.
Q. You have said that in your judgment laurel water is contained in this
bottle?
A. Yes.
Q. Have you made any particular experiments upon the effects of laurel
water?
A. I have several.
Q. You will please to relate the particular experiments you have made,
and the appearances in consequence of those experiments?
A. Mr. Wilmer and I made experiments together; our first experiment with
laurel water was upon a middle sized dog; I held his mouth open and
there was I believe nearly two ounces of laurel water poured down his
throat. I held the dog between my knees: in half a minute as nearly as I
can guess, he dropped dead to the ground without any motion, except a
tremulous motion once or twice of the lower jaw. The next animal on
which I tried the laurel water was likewise in company with Mr. Wilmer.
To an aged mare, we gave at repeated intervals out of an horn, I believe
about a pint and an half of laurel water In about two minutes she was
precipitated to the ground with her head under her, and then tumbled on
her back kicking violently; she afterwards lay without kicking but
seemed convulsed, her eyes rolling about, rearing up her head as if in
agonies, gulping at her stomach as if something lay there exceeding
offensive to her; and at that instant and during the whole time she
lived afterwards, heaving in the flanks in a most extraordinary manner,
and at the end of fifteen minutes she expired. After this in company
with Mr. Ewbank of Coventry, I gave to a cat about a spoonful of laurel
water which I had myself seen distilled; it was pale and limpid as pure
distilled waters, and seemed very weak. The cat though I believe she had
not half the quantity I intended she should have taken, died in three
minutes.
Q. What quantity did you pour down the cat’s throat?
A. About a spoonful, about half an ounce. At Southam, the beginning of
this week, I gave in presence of Mr. Snow, to another aged horse, about
a pint of laurel water, distilled by Mr. Snow. Upon his receiving into
his stomach the first horn full, which was a small one, no bigger than
we used in the former experiment, he dropped to the ground.
_Court._ What was the quantity that horn held?
A. I suppose three or four ounces. It was impossible to give the animal
the whole of it, full half was spilt. I conceived it to be very strong,
and desired Mr. Snow would give her no more at that time, in order to
try the strength of it. The horse dropped; he endeavoured to raise
himself up, but could rise no farther than by setting himself upon his
buttocks like a dog. I perceived he had entirely lost the use of his
hinder parts. We then gave him another horn full, which in its turn
knocked him down very soon, and at intervals we gave him several horns
full to the amount of above a pint in the whole, and at the end of
twenty-eight minutes he expired, violently convulsed, groaning, his
tongue lolling out of his mouth; and indeed the first horse’s tongue had
a very extraordinary appearance, for it darted backward and forward in
the manner of a dart, but this horse lolled his tongue out like a dog
when running. In both the horses the artery in the neck beat much, even
after the animal had ceased to breathe, except we call the motion of the
lower jaw, a kind of gasping, breathing. I saw all the bodies opened,
and in all of them there was a violent distention of the veinous system,
of the whole veins in the body, the stomach, bowels, lungs, and so on.
The veins were distended and full of blood, the lungs appeared red and
suffused. I said before that I did not use the term _inflammation_ in
any other way than to convey the vulgar idea the appearance of red
colour given to any part by blood. The lungs suffused with blood looking
very red, and in the first horse it was of the colour of a deep pink;
very different I conceive from the natural colour.
Q. You have smelled to the bottle which has the laurel water in it, do
you know any smell in medicine that corresponds in smell with that
mixture?
A. I do not know any medicine that smells like it.
Q. Does the smell described by Lady Boughton, something like bitter
almonds, convey to you an idea of that mixture?
A. It does, and I have given the laurel water to many people to smell
to, and they always described the smell to be something like bitter
almonds. I do not exactly know how they expressed themselves, but they
meant to say that.
Q. In your judgment is the quantity that one of these bottles contains
of laurel water sufficient to take away life from any human creature?
A. In my opinion it is.
Q. I have now got your opinion upon the subject, independent of any
appearances you observed upon the body of Sir Theodosius Boughton. Now
are you from these appearances confirmed, or otherwise, in the opinion
you have given?
A. Confirmed in it so far as upon viewing a body so long after the death
of the subject one can be allowed to form a judgment upon such
appearances.
_Dr. Rattray._ Cross-examined by Mr. Newnham.
Q. If I do not misunderstand you, Doctor, the last account you gave in
answer to the question, Whether you are confirmed in this opinion by the
appearance; you said Yes, so far as you might be allowed to form an
opinion viewing the body so long after the death of the subject?
A. Yes; so far as we may be allowed to form a judgment upon appearances
so long after death.
Q. By your putting it in that way, do you, or do you not mean to say
that all judgment upon such a subject, in such a case, is unfounded?
A. I cannot say that, because from the analogy between the appearances
in that body, and those distinguishable in animals killed by the poison
I have just mentioned, I think them so much alike that I am rather
confirmed in my opinion with respect to the operation of the draught.
Q. Those bodies were instantaneously opened?
A. Yes, so much so that there was the peristaltick motion of the bowels
upon their being pricked.
Q. This was upon the eleventh day after Sir Theodosius’s death?
A. Yes.
Q. What was the appearance of the body when you first went to Lawford
Hall?
A. At the first time I saw the body, what I did see of it was, the face
was in the condition I have described, with a maggot crawling over its
surface, it was black as I have described, it was quite in the same
state; in short, I saw no difference the last day, excepting that the
maggot was not upon it then.
Q. Were you or not offended by a violent stench as you approached the
dead body?
A. We were.
Q. Had not putrefaction considerably taken place?
A. I believe it had.
Q. Does not putrefaction increase very much in the space of five or six
days, in a hot summer?
A. I should think it must certainly increase.
Q. Was or not the body, in a very high state of putrefaction when you
saw it?
A. Upon the shroud being removed, the body appeared to me much fairer
than I expected; I expected to have seen it in a very black putrified
state, but the external appearance was not quite so highly so, as I
expected.
Q. You mentioned that the body was much swelled?
A. It was swelled.
Q. Appearing upon a gangrene, I suppose?
A. It rather put on the appearance of gangrene.
Q. I understand you have set your name to a description of certain
appearances that met your eye when you examined the body—I mean your
examination?
A. I have undoubtedly.
Q. Did you, or did you not, concur with Mr. Wilmer as to the appearances
of the body?
A. In general we did.
Q. You set your name to that examination?
A. I did not set my name to any thing but my own examination.
Q. Wherein the appearances are particularly described?
A. They are not particularly described, there is something said about
the stomach and bowels.
Q. For what purpose then did you attend there?
A. I did not know that it was necessary before a coroner’s jury to enter
into the particulars; I was quite a novice in the business.
Q. Do you mean a novice in the mode of dissection.
A. No, in the business before a coroner.
Q. Did the account you set your name to, contain a true description of
the appearances that met your eye upon the occasion?
A. So far as they went it did.
Q. Did you ever hear or know of any poison whatever occasioning any
immediate external appearances on the human body?
A. No, no immediate external appearances in the case of vegetable
poisons, except what I have heard, but they have not fallen under my own
knowledge.
Q. So far for the external appearance. Now I shall be glad to know
whether all the appearances you speak of in the face, the protuberance
of the tongue, and the lips being swelled and retracted, whether those
are not all signs of putrefaction?
A. I really don’t know that they are.
Q. I do not mean to give you any offence, but I beg leave to ask whether
you have been much used to anatomical dissection?
A. I have been as far as persons not particularly intended for
anatomical pursuits—I am not a professor of anatomy.
Q. Did you ever attend the dissection of a human body that was poisoned,
or suspected to have been poisoned?
A. Never.
Q. From the external appearances of the different parts of the body you
draw no kind of conclusion or inference, and form no opinion?
A. No, I don’t form any strong opinion from them.
Q. How were the appearances when the cavity of the abdomen was opened?
A. I have described them in general.
Q. Not being an anatomical man it has slipped my memory, will you please
to repeat it?
A. I believe I did not before mention the omentum or caul, that was
suffused with blood of a brownish red, the stomach and bowels appeared
in general red, which is vulgarly called an inflammation.
Q. Might not that be owing to a transfusion of the blood?
_Dr. Rattray._ From what cause?
_Mr. Newnham._ From putrefaction.
_Dr. Rattray._ Do you, by a transfusion of the blood, mean the passage
of the blood from the arteries into the veins?
_Mr. Newnham._ Yes.
_Dr. Rattray._ I cannot think it could arise from putrefaction.
Q. That is your opinion?
A. It is.
Q. Did you look at the stomach?
A. Yes.
Q. As Sir Theodosius Boughton is represented to have died in a few
minutes after taking this medicine, did you with correctness and
attention examine the stomach?
A. The contents of the stomach were about a spoonful and an half, or a
couple of ounces of a slimy reddish liquor, which I rubbed between my
finger and thumb, and it contained no gritty substance that I could
perceive.
Q. Is it not usual to find some such quantity of liquor in the stomach?
A. The stomach after death must contain something more or less according
to different circumstances.
Q. You said the stomach and the orifice of it and the small arch of it
bore the appearance of inflammation; pray is not inflammation and
appearance of inflammation much the same thing.
A. All that I have to say upon the present business is I perhaps don’t
know the cause of inflammation; but there is an appearance of
inflammation upon the stomach and bowels, owing to an injection of blood
into the veinous system, the veins being full of blood, put on a red
appearance.
Q. If you will not take upon you to say what is the cause, what are the
signs of inflammation?
A. An appearance of redness, sometimes but not always attended with
pain, and sometimes throbbing.
Q. Did you pursue your search through the bowels?
A. No; I cannot say I did, nor did I think it in my power.
Q. How far did you pursue your search in the stomach?
A. We examined the contents of the stomach; we took the stomach out, but
in taking it out a great part of the contents issued out of the bowels
next to it; and the smell was so offensive I did not choose to enter
into that matter.
Q. Whether a pursuit or enquiry, from an inspection through the bowels,
was not as likely to have led to a discovery of the cause of the death,
as any other part of the body which you did examine?
A. I do not believe a pursuit through the whole extent of the bowels
could have led to any discovery in these circumstances.
Q. Are not the bowels the seat of poison?
A. When it passes in there, no doubt it affects the bowels.
Q. Then why did you not examine into the contents of the bowels?
A. I did not think it in the power of any one to examine into the
contents of the bowels; their contents being so strong and disagreeable.
Q. Whether you do not form your judgment upon the appearances?
A. Not altogether; they corroborate my opinion upon the effect of the
draught.
Q. Did you or did you not know the contents of the draught Mr. Powell
had prepared when you was examined before the coroner?
A. Yes; I did.
Q. And you knew from the account given you how long Sir Theodosius
Boughton lived after he took that draught?
A. I took my information from Lady Boughton.
Q. Then whether many reasons have not occurred, subsequent to that time,
considerably, to induce you to form your judgment that he died of
arsenick?
A. Not subsequent to that time; at that time I did think he died of
arsenick; but I am now clear that I was then mistaken.
Q. Why may you not be mistaken now?
A. I cannot conceive that in these circumstances any one can be mistaken
as to the medicine; from the sensible qualities described by Lady
Boughton, I believe it to be of that nature.
Q. Did not you know at that time the symptoms described by Lady
Boughton?
A. I did.
Q. Then was not your judgment at that time as ripe for information as it
is now?
A. It is now since I have received the information.
Q. Whether you did not, after you heard Lady Boughton describe the
symptoms, and after you saw the body opened, give it as your opinion
that he died of arsenick?
A. I have had such an opinion.
Q. And have declared so?
A. I did.
Q. Was there or was there not a large quantity of extravasated blood in
the thorax?
A. On each side the lungs there was.
Q. About what quantity?
A. I think not quite a pint on each side the right and left lobe of the
lungs.
Q. Would not the rupture of a blood vessel occasion death?
A. The rupture of a blood vessel undoubtedly would have occasioned
death; but it would not in my apprehension have been attended with the
same appearances.
Q. Might not a blood vessel in an effort to reach be broken?
A. I should conceive, that if, in an effort to reach, a blood vessel of
that magnitude had ruptured that he must have died immediately without
convulsions.
Q. But supposing a person recovering from convulsions, for he is stated
to be inclined to sleep?
A. It is a case I am not supposing probable.
Q. Is it possible?
A. Every thing is possible under God.
Q. Did you never hear of any person dying of an epilepsy or of an
apoplexy with symptoms like those, being in convulsions?
A. I do not think the symptoms described as having taken place in Sir
Theodosius Boughton are like to an epilepsy.
Q. Nor an apoplexy?
A. They were entirely in my opinion the effects of the draught.
Q. Might not an epilepsy or an apoplexy be accompanied with those
symptoms?
A. I never saw either of them attended with an heaving at the stomach.
Q. When respiration grows feeble; is it not a common case that the
muscles of the throat are very much relaxed?
A. All the effects that succeeded the draught I believe were the
consequences of it; and if the muscles were relaxed or foam proceeded
from the mouth, they were in consequence of it.
Q. Is it not commonly the case with persons who die of almost every
disorder?
A. Very often.
Q. Are not the muscles of the throat instrumental in respiration?
A. So far as to the passage of the air in and out.
Q. Is it not a very common appearance a few minutes before death, when
respiration grows feeble for froth to issue from the mouth?
A. No, not commonly. I have seen it in epilepsies.
Q. What was your reason for supposing at one time that the deceased died
of arsenick?
A. Every man is mistaken now and then in his opinion, and that was my
case; I am not ashamed to own a mistake.
Q. Have you been very nice in your experiments; for instance, in the
conveying the laurel-water into the animals?
A. If there was any want of nicety the subject had less of it than I
intended.
Q. When an animal, suppose a dog or cat, is striving to refuse a draught
you are forcing into its mouth, whether it is not common for some part
of the liquor to get into the lungs?
A. If it did it would make it cough, but be attended with no bad
consequences unless it was poison.
Q. Did you ever convey poison immediately into the stomach?
_Dr. Rattray._ Do you mean by perforation through the ribs?
_Mr. Newnham._ Yes.
_Dr. Rattray._ I never have.
Q. Did you ever convey any into the veins of an animal?
A. I never have.
Q. Did you observe or smell that liquor which came out of the stomach?
A. I could not avoid smelling it.
Q. Had it the same offensive smell?
A. It in general had; one could not expect any smell but partaking of
that general putrefaction of the body; but I had a particular taste in
my mouth at that time, a kind of biting acrimony upon my tongue. And I
have in all the experiments I have made with laurel-water, always had
the same taste, from breathing over the water, a biting upon my tongue,
and sometimes a bitter taste upon the upper part of the fauces.
Q. Did you impute it to that cause then?
A. No, I imputed it to the volatile salts escaping the body.
Q. Were not the volatile salts likely to occasion that?
A. No. I complained to Mr. Wilmer, “I have a very odd taste in my mouth,
my gums bleed.”
Q. You attributed it to the volatility of the salts?
A. At that time I could not account for it, but in my experiments
afterwards with the laurel-water, the effluvia of it has constantly and
uniformly produced the same kind of taste; there is a very volatile oil
in it I am confident.
Q. Do not you understand that there cannot be any information at all
obtained in consequence of dissecting animals which have been destroyed
by laurel-water?
A. I do not think that the operation of these sort of substances upon
the inside of the stomach produce any violent appearances of redness,
but in most of the animals I have seen there has been small red spots
inside, of the size of a shilling perhaps, but the effect in the trials
I have made has been a driving the blood from the part of the body where
it should be. I believe the effect of the poison is to empty the
arteries in general, and push the blood into the veins; that is my
opinion at present, so far as I have gone into the matter.
Q. But you was mistaken at first relative to forming an opinion that the
death was occasioned by arsenick?
A. Yes.
_Mr. Balguy._ You say that when the shroud came to be taken off the body
you found the body less offensive than you had expected?
A. Less black.
Q. When you first saw the body on the 4th of September, did you or not
take the shroud off?
A. We did not.
Q. You saw nothing but the face?
A. Nothing but the face.
Q. If at that time Captain Donellan had insinuated to you any suspicion
of poison, whether you would or not have taken the shroud from the body?
A. I verily believe, had I known the tendency of the enquiry, I should
have sat there for a month rather than have left the body unopened.
Q. Should you at that time if the suspicion had been disclosed have
proceeded to open the body?
A. I should have attended the opening of it.
_Mr. Newnham._ I understand you to say that when the body was opened,
the external appearances did not contribute in any way to your forming a
judgment one way or other?
A. Nobody would attempt to form a judgment upon the external appearances
altogether.
Mr. _Bradford Wilmer_ sworn. Examined by Mr. Wheeler.
Q. You was sent for to Lawford-hall at the same time Dr. Rattray was?
A. I was; I went there with Dr. Rattray.
Q. When first you came there did you see Captain Donellan?
A. I did. He desired us to walk into the parlour; after we had had some
refreshment we were told that the coffin was unsoldered, and we were
desired to walk up stairs.
Q. Was any thing said to you at that time as to the means by which Sir
Theodosius Boughton had died?
A. Not the least in the world.
Q. Nothing said of poison?
A. I never heard a word of poison.
Q. When you did go up stairs, what part did you see of the corpse?
A. Only the face.
Q. We have learned from Dr. Rattray that you did not proceed any
farther, how happened that?
A. The body was so extremely putrid, that I declared my opinion to Dr.
Rattray that the proposed enquiry could give no sort of information.
Q. Supposing it had been communicated to you that Sir Theodosius
Boughton had died by poison, should you have been satisfied without
opening it?
A. I should then have opened the body at all events.
Q. You did not then open the body?
A. I certainly did not.
Q. You afterwards did open it at the time Dr. Rattray has spoken of?
A. I was present at the opening of the body, by Mr. Bucknill.
Q. Have you been employed in any experiments with Dr. Rattray?
A. I have.
Q. Without going into every particular of Dr. Rattray’s account, do you
and he concur in general as to the effect of that medicine?
A. I wish you would be more particular in that question.
Q. Do you agree with Dr. Rattray in what he has said respecting those
experiments at which you was present?
A. I do in general; but as Dr. Rattray has not described the appearances
which were visible upon the dissection of the horse, with your
lordship’s permission I will read my minutes. “On the 20th of March, one
ounce of the laurel water was given to a young greyhound; while Dr.
Rattray held the mouth open, I poured the water into the dog’s throat;
as soon as it was swallowed the Doctor released its head to observe the
effects of the poison, when, to our great surprise, he fell down upon
his side, and without the least struggle or any perceptible motion
(except what the doctor has explained about the dropping of the lower
jaw) expired. On the 22d of March, in the presence of Sir William
Wheeler, a pint and a quarter of laurel-water was given to a mare aged
twenty-eight years. Within a minute from the time it was swallowed she
seemed affected; her flanks were observed to heave much, and a trembling
seized her limbs; in two minutes she suddenly fell down upon her head,
and in a short time after was very violently convulsed; the convulsions
continued about five minutes, at the expiration of which time, she laid
still, but her breathing was very quick and laborious, and her eyes much
affected with spasms. At this time four ounces more of the water were
given her, after which she seemed much weaker, but without any more
return of convulsions, and in about fifteen minutes from the time of her
first seizure, she expired.”
Q. After her first convulsion she was quieter?
A. She was. “Upon opening the abdomen, a strong smell of laurel-water
was perceptible; the colon, one of the large intestines, was not altered
from its usual appearance, but the small intestines appeared of a purple
colour, and the veins were much distended with blood; the stomach
contained some hay mixed with laurel water; its internal surface was not
inflamed, except in a small degree near the lower orifice of the
stomach; the lungs appeared remarkably full of blood; the small vessels
upon their surface being as visible as if they had been injected with
red wax.”
Q. Whether you in general concur in sentiments with Dr. Rattray, as to
the effect of laurel-water?
_Mr. Wilmer._ Do you mean upon the human body, or upon brutes?
_Mr. Wheeler._ Upon both.
A. It has in four instances been fatal in the human body; I do not know
it of my own knowledge, but from my reading.
Q. Have you any doubt of its being fatal?
A. Not the least in the world.
Q. Now do you apprehend the quantity contained in that bottle is
sufficient to take away life?
A. I imagine one bottle of that size full of laurel-water, would be
sufficient to kill in half an hour’s time any man in this court.
Mr. _Bradford Wilmer_. Cross-examined by Mr. Green.
Q. Were there any symptoms in this case peculiarly different from the
symptoms attending a case of epilepsy or apoplexy?
A. The appearance of the body in the putrid state in which it was when I
had an opportunity of observing it, could give me no information to form
an opinion upon respecting the cause of the death.
Q. Have you had any opportunities in your own experience of observing
epilepsies?
A. I have. They are of two kinds, either primary or symptomatick. It
happens sometimes that without the least previous notice, a man in the
most perfect state of health, in the midst of pleasure or engaged in
business, as Suetonius says of Julius Cæsar, may in a moment, be seized
with the epilepsy, his senses will leave him, he will fall down, be
convulsed, foam at the mouth, his tongue will be black, and he either
may die or recover. As to the symptomatick epilepsy, I can speak from
experience: a patient of mine had a violent pain and tumour in his
finger; as soon as the pain, which gradually went up his arm, reached
his arm-pit, he fell down epileptick, and convulsed. But if previous to
an epilepsy, the patient heave very much at the stomach, and shew signs
of sickness, I should conclude the cause of that epilepsy was in the
stomach.
Q. Epilepsies proceed from various causes?
A. Numerous causes.
Q. Will not the loss of blood occasion an epilepsy?
A. I believe not.
Q. What quantity of blood was there in the stomach?
A. I did not measure it; I conclude about two pints; it lodged in the
cavity of the thorax.
Q. Might not that occasion convulsions?
A. I do not know; but if I might be allowed to reason from analogy, I
should conclude it would, for in all slaughtered animals, when the blood
runs out from them in a full stream, they lie quiet, but they never die
without convulsions. The loss of blood will evidently occasion
convulsions.
_Mr. Wheeler._ From the appearances of the body, and after the evidence
you have heard given both by Lady Boughton and the other witnesses, what
do you attribute this gentleman’s death to?
A. After having heard Lady Boughton’s evidence, and therefore being
acquainted with the symptoms which preceded the death of Sir Theodosius
Boughton, I am clearly of opinion that his death was occasioned by a
poisonous draught administered to him by Lady Boughton on the morning of
his death.
_Court._ Is the heaving in the stomach or the belly a circumstance which
attends an epilepsy?
A. It is not.
_Dr. Ashe_ sworn. Examined by Mr. Geast.
Q. You are a Physician and live at Birmingham?
A. Yes.
Q. You have heard the evidence that has been given?
A. I have.
Q. What in your judgment was the cause of the death of Sir Theodosius
Boughton?
A. I think he died in consequence of taking that draught, after the
taking of which he was seized in so extraordinary a manner.
Q. Mention the particular reasons you have for thinking so?
A. It does not appear, from any part of the evidence that has been this
day given, that the late Sir Theodosius had any disease upon him of a
nature either likely or in a degree sufficient to produce those violent
consequences which happened to him, neither do I know in nature any
medicine, properly so called, which administered in any dose, and in any
form, could possibly produce the same effects. I know nothing but a
poison speedy in its operation that could be attended with such terrible
consequences: As to the appearances of the body upon dissection they
were certainly, as far as could be collected at that distant period from
the time of the death, and in such hot weather, similar to those
appearances which are found in the bodies of animals that are killed by
poisons collected from vegetable substances, not from mineral ones.
Q. Will you please to look at that phial?
A. The vehicle of it is laurel-water.
Q. Would that quantity be sufficient to cause death?
A. I do not know how this is distilled, or how firm it may be, but I
know it may be made in this quantity to destroy animal life in a few
seconds. I do not know who distilled this, but I have made it frequently
myself, and in such a degree of strength as to destroy animal life in a
few seconds; if it is distilled enough to collect the essential oil, a
tea-spoonful of it would destroy animal life in a few seconds.
_Court._ If it was made on purpose?
A. Certainly; I dare say as strong a poison might be made from bitter
almonds as that.
Q. Do you or not, from the evidence you have heard, believe Sir
Theodosius Boughton died of poison?
A. I do.
_Court._ You are not to give your opinion from the evidence in general,
but upon the symptoms those witnesses have described?
A. By the symptoms those evidences have described, I am of opinion that
Sir Theodosius Boughton died of poison.
_Dr. Parsons_ sworn. Examined by Mr. Howorth.
Q. You are I believe professor of anatomy in the university of Oxford?
A. I am.
Q. You have heard the symptoms attending the death of Sir Theodosius
Boughton described by the witnesses produced to-day?
A. I have.
Q. What in your judgment occasioned the death of Sir Theodosius
Boughton?
A. From the description of the state of the young Baronet’s health,
previous to his taking the second dose, which was supposed to be similar
to that which he had taken two or three days before, and from the
violent nervous symptoms that immediately followed the taking thereof,
it is my opinion that he died in consequence of taking the second dose;
which instead of being a composition of jalap and rhubarb only, proved
to contain a poison, and of what nature that poison was, appears
sufficiently from the description that Lady Boughton gives of its smell
when she poured it out in order to give it to her son; her ladyship said
it smelt like the taste of bitter almonds, which particularly
characterises the smell of laurel-water. Perhaps it may not be improper
to produce some laurel-water for the jury to smell at, that they may
judge how well it agrees with the description that Lady Boughton has
given of the supposed physick. The violent nervous symptoms that came on
subsequent to his taking the second dose took place so soon, and were so
different from what attended the taking of the first, that undoubtedly
they were caused by something it had in it very different from the
contents of the first, much more active, and as it proved more
deleterious. Jalap sometimes disagrees with the stomach and may produce
sickness, but with respect to Sir Theodosius Boughton this medicine did
not create any sickness when given the first time.
_Court._ Could all the ingredients in the medicine mentioned by Mr.
Powell produce in Sir Theodosius Boughton the effects described?
A. No; I apprehend they could not; and as a proof of it, they did not
produce any such effects in the first instance, or dose.
Q. Are the symptoms which have been described by Lady Boughton such as
would attend an epilepsy, or is there any and what difference?
A. The epilepsy is distinguished by a total abolition of sense, but an
increase of motion in several of the muscles, so that the patient will
appear much convulsed, and seems to see and hear every thing that is
said and done, and to observe whatever is passing; yet when the fit goes
off he has no knowledge or recollection of what has happened. Apoplexy
is a sudden privation of all the powers of sense, and voluntary motion:
the person affected seeming to be in a profound sleep, accompanied with
considerable noise in breathing. As so little therefore is said of
convulsions as a part of Sir Theodosius’s symptoms, the state in which
he lay seems to have been more of the apoplectick kind than epileptick.
Q. It has been described by Lady Boughton that soon after taking this
draught the stomach heaved very much, and a noise could be perceived as
issuing from it; now is that in your judgment to be attributed to either
epilepsy or apoplexy, or the effect of the medicine?
A. The effects of the medicine I think undoubtedly, and not spontaneous
epilepsy or apoplexy; it is very immaterial whether you call the
symptoms epileptick or apoplectick; for which ever they resembled most I
consider them but as symptomatick.
Q. Was the heaving of the stomach the effect of apoplexy or epilepsy, or
of this draught?
A. No doubt, I think the draught was the cause, especially as
laurel-water, which the draught seems to have contained from its
peculiar smell, will produce similar effects.
Q. Then your judgment is, that the fatal effects were produced by the
medicine thus taken?
A. I think there can be no doubt of that as they commenced almost as
soon as he swallowed the draught; and a mixture such as he is supposed
to have taken, is known to have the power of producing them.
Q. And from your knowledge of the effects produced by laurel water, your
opinion is that laurel-water was the poison thus administered to Sir
Theodosius Boughton?
A. It is. Dr. Rutty relates a case of a girl of eighteen years of age
and in perfect health, who took a quantity, less than two spoons full of
the first runnings of simple water of laurel leaves; whereupon within
half a minute she fell down, was convulsed, foamed at the mouth, and
died in a short time.
Q. Could those effects be produced (speak from your own judgment) by
laurel-water?
A. I have no doubt of it. Dogs and other quadrupeds (as we are informed)
that take it, fall immediately into totterings and convulsions of the
limbs, which are presently followed by a total paralysis; these
convulsions, with some additional circumstances, as foaming at the mouth
and loss of sense, constitute the epilepsy which is described among the
effects of vegetable poisons.
Dr. _Parsons_ cross-examined by Mr. Newnham.
Q. From the appearances of health in Sir Theodosius Boughton, and from
the medicine not having occasioned any bad symptoms before, you conclude
his death was occasioned by some other medicine substituted instead of
that or in addition to it?
A. Most certainly; especially as the smell of it bespoke its having
received the addition of a very poisonous ingredient.
Q. Have you never known instances of persons being taken suddenly when
engaged in pleasure or business, or at dinner, dying convulsed,
epileptick, or apoplectick?
A. I have; but those who die suddenly of apoplexy are generally persons
of a full habit; and who are neither so thin nor so young as Sir
Theodosius Boughton.
Q. Have you never known instances of persons of a thin habit being
attacked by an apoplexy or an epilepsy?
A. By epilepsy they may.
Q. Have you never heard of a person having the appearance of perfect
health being seized with an epilepsy without any primary cause giving
any warning, have you never heard of people in perfect health being
seized with an epilepsy or apoplexy?
A. Yes; apoplexy proceeding from repletion or the sudden bursting of a
blood-vessel; epilepsy may proceed from a variety of causes partial or
general, in the head or elsewhere; but very seldom I believe proves so
suddenly fatal.
Q. Might not those have happened to Sir Theodosius Boughton?
A. There can be no doubt of the possibility of their attacking him, but
I think there is no reason to go so far for a cause as to _possibility_,
when this medicine as all the world knows will effect it.
Q. That is assuming as a fact that he took two ounces of laurel-water?
A. A much less quantity would be sufficient for the purpose, if we may
credit Dr. Rutty’s account.
Q. You collect that from the similarity of the smell?
A. We have nothing else to judge from but the similarity of the smell.
Q. Is not that the case with a variety of things; will not black
cherry-water have that smell?
A. Black cherry-water is said to have the same smell, but it is now out
of use; I don’t suppose there is an apothecary in the island who has it,
and therefore it could not be substituted by accident for the other
vehicle.
Q. Will not bitter almonds have that smell?
A. Yes; and spirits flavoured with them are said to be poisonous to the
human species.
Q. You ground your opinion upon the description of its smell by Lady
Boughton?
A. Yes; we can ground our opinion upon nothing else but that and the
subsequent effects.
_Mr. John Hunter_ sworn; examined by Mr. Newnham.
Q. Have you heard the evidence that has been given by these gentlemen?
A. I have been present the whole time.
Q. Did you hear Lady Boughton’s evidence?
A. I heard the whole.
Q. Did you attend to the symptoms her ladyship described, as appearing
upon Sir Theodosius Boughton, after the medicine was given him?
A. I did.
Q. Can any certain inference upon physical or chirurgical principles be
drawn from those symptoms, or from the appearances externally or
internally of the body, to enable you, in your judgment to decide, that
the death was occasioned by poison?
A. I was in London then, a gentleman who is in Court waited upon me with
a copy of the examination of Mr. Powell and Lady Boughton, and on
account of the dissection, and the physical gentlemen’s opinion upon
that dissection.
Q. I don’t wish to go into that, I put my question in a general way?
A. The whole appearances upon the dissection, explain nothing but
putrefaction.
Q. You have been long in the habit of dissecting human subjects? I
presume you have dissected more than any man in Europe?
A. I have dissected some thousands during these thirty-three years.
Q. Are those appearances you have heard described, such in your
judgment, as are the result of putrefaction in dead subjects?
A. Entirely.
Q. Are the symptoms that appeared after the medicine was given, such as
necessarily conclude that the person had taken poison?
A. Certainly not.
Q. If an apoplexy had come on, would not the symptoms have been nearly
or somewhat similar?
A. Very much the same.
Q. Have you ever known or heard of a young subject dying of an
apoplectic or epileptic fit?
A. Certainly; but with regard to the apoplexy not so frequent, young
subjects will perhaps die more frequently of epilepsies than old ones;
children are dying every day from teething, which is a species of
epilepsy arising from an irritation.
Q. Did you ever in your practice, know an instance of laurel-water being
given to a human subject?
A. No, never.
Q. Is any certain analogy to be drawn from the effects of any species of
poison upon an animal of the brute creation, to that it may have upon a
human subject?
A. As far as my experience goes, which is not a very confined one,
because I have poisoned some thousands of animals, they are very nearly
the same, opium for instance will poison a dog similar to a man; arsenic
will have very near the same effect upon a dog, as it would have, I take
it for granted, upon a man; I know something of the effects of them, and
I believe their operations will be nearly similar.
Q, Are there not many things which kill animals almost instantaneously,
that will have no detrimental or noxious effect upon a human subject;
spirits, for instance, occur to me?
A. I apprehend a great deal depends upon the mode of experiment; no man
is fit to make one, but those who have made many, and paid considerable
attention to all the circumstances that relate to experiments, it is a
common experiment which I believe seldom fails, and it is in the mouth
of every body, that a little brandy will kill a cat: I have made the
experiment, and have killed several cats, but it is a false experiment;
in all those cases where it kills the cat, it kills the cat by getting
into her lungs, not into her stomach, because, if you convey the same
quantity of brandy, or three times as much into the stomach, in such a
way as the lungs shall not be affected, the cat will not die; now in
those experiments that are made by forcing an animal to drink, there are
two operations going on, one is a refusing the liquor, by the animal,
its kicking and working with its throat, to refuse it, the other is a
forcing the liquor upon the animal, and there are very few operations of
that kind, but some of the liquor gets into the lungs. I have known it
from experience.
Q. If you had been called upon to dissect a body, suspected to have died
of poison, should you or not have thought it necessary to have pursued
your search through the guts?
A. Certainly.
Q. Do you not apprehend that you would have been more likely to receive
information from thence than any other part of the frame?
A. That is the track of the poison, and I should certainly have followed
that track through.
Q. You have heard of the froth issuing from Sir Theodosius’s mouth, a
minute or two before he died, is that peculiar to a man dying of poison,
or is it not very common in many other complaints?
A. I fancy it is a general effect, of people dying in what you may call
health, in an apoplexy, or epilepsy, in all sudden deaths, where the
person was a moment before that in perfect health.
Q. Have you ever had an opportunity of seeing such appearances upon such
subjects?
A. Hundreds of times.
Q. Should you consider yourself bound, by such an appearance, to impute
the death of the subject to poison?
A. No, certainly not; I should rather suspect an apoplexy, and I wish in
this case, the head had been opened to remove all doubts.
Q. If the head had been opened, do you apprehend all doubts would have
been removed?
A. It would have been still farther removed, because, although the body
was putrid, so that one could not tell whether it was a recent
inflammation, yet an apoplexy arises from an extravasation of blood in
the brain, which would have laid in a coagulum. I apprehend although the
body was putrid, that would have been much more visible than the effect
any poison could have had upon the stomach or intestines.
Q. Then in your judgment upon the appearances the gentlemen have
described no inference can be drawn from thence that Sir Theodosius
Boughton died of poison?
A. Certainly not; it does not give the least suspicion.
_Mr. John Hunter_ Cross-examined by _Mr. Howorth_.
Q. Having heard the account to-day that Sir Theodosius Boughton,
apparently in perfect health, had swallowed a draught which had produced
the symptoms described, I ask you whether any reasonable man can
entertain a doubt that that draught whatever it was produced those
appearances?
A. I don’t know well what answer to make to that question.
Q. Having heard the account given of the health of this young gentleman
on that morning, previous to taking the draught, and the symptoms that
were produced immediately upon taking the draught, I ask your opinion as
a man of judgment, whether you don’t think that draught was the occasion
of his death?
A. With regard to his being in health, that explains nothing; we
frequently, and indeed generally see the healthiest people dying
suddenly, therefore I shall lay little stress upon that; as to the
circumstances of the draught, I own they are suspicious, every man is
just as good a judge as I am.
Court. You are to give your opinion upon the symptoms only, not upon any
other evidence given.
_Mr. Howorth._ Upon the symptoms immediately produced, after the
swallowing of that draught, I ask whether, in your judgment and opinion,
that draught did not occasion his death? A. I can only say, that it is a
circumstance in favour of such an opinion.
Court. That the draught was the occasion of his death? A. No; because
the symptoms afterwards are those of a man dying, who was before in
perfect health; a man dying of an epilepsy or apoplexy, the symptoms
would give one those general ideas.
Court. It is the general idea you are asked about now, from the symptoms
which appeared upon Sir Theodosius Boughton immediately after he took
the draught followed by his death so very soon after; whether, upon that
part of the case, you are of opinion that the draught was the occasion
of his death? A. If I knew the draught was poison, I should say, most
probably, that the symptoms arose from that; but when, I don’t know that
that draught was poison, when I consider that a number of other things
might occasion his death, I cannot answer positively to it.
Court. You recollect the circumstance that was mentioned of a violent
heaving in the stomach? A. All that is the effect of the voluntary
action being lost, and nothing going on but the involuntary.
_Mr. Howorth._ Then you decline giving any opinion upon the subject? A.
I don’t form any opinion to myself; I cannot form an opinion because I
can conceive if he had taken a draught of poison it arose from that; I
can conceive it might arise from other causes.
Q. If you are at all acquainted with the effects and operations of
distilled laurel-water, whether the having swallowed a draught of that,
would not have produced the symptom described? A. I should suppose it
would; I can only say this of the experiments I have made of
laurel-water upon animals, it has not been near so quick; I have
injected laurel-water directly into the blood of dogs, and they have not
died; I have thrown laurel-water, with a precaution, into the stomach,
and it never produced so quick an effect with me, as described by those
gentlemen.
Q. But you admit that laurel-water would have produced symptoms such as
have been described? A. I can conceive it might.
_Mr. Newnham._ Would not an apoplexy or an epilepsy, if it had seized
Sir Theodosius Boughton at this time, though he had taken no physic at
all, have produced similar symptoms too? A. Certainly.
Q. Where a father has died of an apoplexy, is not that understood, in
some measure, to be constitutional? A. There is no disease whatever,
that becomes constitutional, but what can be given to a child. There is
no disease which is acquired, that can be given to a child; but whatever
is constitutional in the father, the father has a power of giving that
to the children; by which means it becomes what is called hereditary;
there is no such thing as an hereditary disease; but there is an
hereditary disposition for a disease.
_Mr. Howorth._ Do you call apoplexy constitutional?
A. We see most diseases are constitutional; the small-pox is
constitutional, though it requires an immediate cause to produce the
effects. The venereal disease is hereditary. I conceive apoplexy as much
constitutional as any disease whatever.
Q. Is apoplexy likely to attack a thin young man who had been in a
course of taking cooling medicines before? A. Not so likely, surely, as
another man; but I have, in my account of dissections, two young women
dying of apoplexies.
Q. But in such an habit of body, particularly attended with the
circumstance of having taken cooling medicines, it was very unlikely to
happen? A. I do not know the nature of medicines so well as to know that
it would hinder an apoplexy from taking effect.
Court. Give me your opinion in the best manner you can, one way or the
other, whether upon the whole of the symptoms described, the death
proceeded from that medicine, or any other cause? A. I do not mean to
equivocate, but when I tell the sentiments of my own mind, what I feel
at the time, I can give nothing decisive.
Extracts from the Evidence delivered on the Trial of _Robert Sawle
Donnall_, Surgeon and Apothecary, for the wilful Murder, by Poison, of
his Mother-in-Law, Mrs. _Elizabeth Downing_, Widow, at the Assize at
Launceston, March 31, 1817.
(_Taken in short-hand by Alexander Fraser._)
-------
EVIDENCE FOR THE CROWN.
_Dr. Richard Edwards_ (examined by Mr. Sergt. Lens).
You are a physician, resident at Falmouth?—I am.
How many years have you been in the profession?—About sixteen years.
Do you recollect being called in, as a physician, to attend Mrs.
Elizabeth Downing upon the 3rd of November?—Yes, Sir; I was called in
between four and five o’clock on the Monday morning.
Were you in the habit of attending her?—Once before, at a distant
period.
Several months before?—More than that.
When you came there, and when you were introduced into the room in which
she was, what state did you find her in?—I was let into the house by Mr.
Donnall; I went into the back room and asked him some questions as to
Mrs. Downing’s illness, and he informed me she had an attack of Cholera
Morbus.
Did any thing more pass that was material, before you went into the room
where she was?—He told me she had a similar attack a fortnight before.
Did any further communication take place?—I asked him how long she had
been ill, and he said she was taken ill the evening before.
Did any thing more pass?—Mr. Donnall told me that she had been at church
twice that Sunday.
Did you then proceed into the room, or did any thing more pass?—Nothing
more passed.
When you went into her room, she was in bed?—Yes, Sir, she was; I asked
some questions of her attendants, before I spoke to Mrs. Downing; she
required some rousing before she could answer questions.
Were you able to rouse her?—Yes, Sir.
Do you recollect any thing particular, as to her situation?—I asked her
if she felt any pain, and she said she felt heat in her stomach, and
also cramp in her legs; I then felt her pulse, and found it a frequent
fluttering pulse. I then went down into the parlour again with Mr.
Donnell, and wrote a prescription.
Did you make any further inquiries about the state of her body before
you wrote the prescription?—I asked some questions of Mr. Donnall as to
the state of her stomach and bowels, and he said that she had violent
sickness, and that her bowels were very much relaxed.
After this you wrote the prescription?—Yes, Sir.
Did you at that time form, or could you form, any judgment of her
danger, or that it was likely she would recover?—I found that she was in
very great danger.
You had been apprised that she had symptoms of Cholera Morbus; did you
observe any thing of that kind?—No; at that time she had no sickness.
Was her state such as to shew that she had?—There was nothing particular
to draw my attention to that being her state; there was nothing to shew
the causes of the disease at that time.
How long did you stay on that occasion?—I suppose about twenty minutes;
I am not certain as to the time.
Did you learn from the prisoner whether he himself had given any
medicine?—I understood that he had given an opening medicine and an
emetic, a saline draught in a state of effervescence, and also a pill,
and some opium mixed with the saline draught; I believe he told me ten
drops of laudanum.
(By Mr. Justice Abbott.) Is that a large or a small dose?—It is a small
dose.
(By Mr. Sergt. Lens.) Would that only quiet her?—It was given, he said,
to quiet the irritation of the stomach.
Have you ever had occasion to attend a person who had been ill, and who
died of Cholera Morbus?—I never had a patient who died of that disease.
There is one circumstance I would mention: before I left Mr. Donnall, I
told him that as the quantity of active medicine in the prescription was
small, he had better give every three hours, instead of four hours, as
directed in the prescription; and observed at the same time, that it was
given in order to remove something which I considered to be offensive
either in the stomach or bowels.
In the course of your experience, how soon does Cholera Morbus produce
death?—In general not in less than two or three days; there may be some
instances, but I never met with one that produced death in less than
that time.
The space of time in this instance was fourteen hours?—Yes, Sir.
Can you tell me of any instance that Cholera Morbus would produce death
in so short a time?—I never heard or knew of any instance of its
producing death in so short a time.
In your judgment then, and from what you know since, did this patient
die of Cholera Morbus or not?—Certainly not.
You say you staid about twenty minutes?—About that time.
You then took your leave, having given directions about the
prescription, which you took for granted would be administered
afterwards?—Yes, Sir.
Did you see Mrs. Downing afterwards?—No, Sir.
She died at eight o’clock that same morning?—Yes.
How soon did you go again after you had heard of her decease?—I went on
the Thursday afternoon to examine the body.
When you went there, was it to examine the body as to the cause of the
death?—Yes; I was requested by the Coroner to examine the body.
You had heard of the letter that was sent, on suspicion being
awakened?—Yes.
Whom did you meet there?—Mr. Donnall.
Was there any other person there?—Soon afterwards Mr. John Street, a
surgeon, came there.
There is another person of the name of Street, a surgeon?—Yes, Sir; but
this was Mr. John Street.
Shortly afterwards did you go into the room where the body lay?—Yes,
Sir.
Did any thing pass before?—Nothing particular.
Who went with you?—Mr. John Street and Mr. Donnall; there was no other
medical person present.
What did you do?—We took the body from the shell, and placed it on the
table.
Who proceeded to operate on the body?—When the things were prepared,
such as water, &c. I perceived Mr. Donnall was preparing to operate,
with the instruments in his hands, and turning up the cuffs of his coat.
Did he proceed?—No; I told him that he was to have nothing to do with
the operation, and I turned to Mr. John Street and asked him to do it.
(By Mr. Justice Abbott.) Did you say any thing more to Donnall than that
he was to have nothing to do with the operation?—No, my Lord.
(By Mr. Sergt. Lens.) Did he (Mr. Street) prepare to do it?—He objected
to it, as not having been in the habit of operating for a long time.
And in the end you were under the necessity of doing it yourself?—Yes,
Sir, with Mr. Street’s occasional assistance.
When you opened the body, your particular object was the examination of
the stomach?—Yes, it was the chief object of our examination, and we
proceeded to do so immediately; we opened it, and examined it, and
poured the contents into a basin.
Did you take out all the contents, or only a part?—The whole of the
contents.
What was done with them after they were put into the basin?—We examined
that which was put into the basin with our fingers, in order to
ascertain whether any heavy or gritty substance had subsided to the
bottom.
(By Mr. Justice Abbott.) When you say “we,” whom do you mean besides
yourself?—Mr. John Street, my Lord.
(By Mr. Sergt. Lens.) Donnall did not interfere?—No, Sir.
In a few minutes you examined the bottom?—Yes.
Did you find any deposit?—No deposit of any heavy substance.
When you had done that, what did you do next?—Before we particularly
examined the contents of the stomach, we examined the state of the
stomach, and found it inflamed.
Was it a general or partial inflammation?—It was rather partial; or what
we call stellated, or in stars, in different parts of the stomach.
Were there many? were there several or only one, or were there two or
three?—There were many, in different parts of the stomach.
Was there any thing else you discovered?—On examining the villous, or
internal coat of the stomach, we found it softened, and in some parts
nearly destroyed by the action of some corrosive substance. The
stellated inflammation was on the nervous coat, but was very visible
through the villous coat.
Are we to understand that the villous coat is, in general, not so soft?
what should its natural state be?—It should have been much more firm
than we found it.
In what way did you examine the villous coat?—With the nail of my
finger, and it easily came off.
And in its proper state would it come off easily with the nail of a
finger?—No, Sir. We examined particularly the under part where the fluid
was.
Was it generally in that soft state?—The greatest part of it was so.
(By Mr. Justice Abbott.) The under part is where any thing in the
stomach would rest and would touch?—Yes, my Lord.
(By Mr. Sergt. Lens.) Did you observe any particularity in the
appearance?—The blood-vessels of the stomach were rather in a more
turgid state than they should be naturally. We also examined the liver
and lungs, and both appeared in a sound state.
Did you examine the heart?—I do not recollect; I am not quite certain.
Do you think that any thing affected it?—I did not examine it, that I
recollect.
Did you give any directions as to what was put into the basin?—After
examining the contents of the stomach, which were put into the basin, we
poured them into an earthen jug.
And your attention was particularly drawn to that in the basin?—I placed
the jug upon a chair, on which there was a cushion; and I took
particular care that, as the seat was elastic, it should rest against
the back, so as not to fall; and I said at the time that it must be
taken particular care of, as it was necessary for me to examine it.
Was that said to any one in particular, or was it said
generally?—Particularly to Mr. Donnall; we were very near each other.
Was there any other person present but you three?—Not at that time.
(By Mr. Justice Abbott.) The prisoner, Donnall, was in the room at that
time?—Yes, my Lord.
(By Mr. Sergt. Lens.) What did you proceed to do then?—We proceeded to
examine the intestines, and found them also inflamed in different parts,
particularly that part which was next the stomach, and some others that
were lower down.
Could a patient be sensible of the existence of such an inflammation, or
might it remain for any time, and the patient be perfectly well?—That is
impossible; a patient could not be well with such an inflammation
existing.
Could you judge at all of the length of time in which, in the common
course of nature, such an inflammation could be produced by any natural
cause? could it be produced by any natural cause?—Not in the time.
Such an inflammation could be produced by a natural cause, but not
within the time?—Not within the time.
What sort of substances will produce that sort of inflammation in so
short a time, not being natural causes?—Any active poison.
Could it be produced by any thing short of an active poison in any time,
or within so short a time?—I think not.
Did you proceed then to see whether there was any thing to be discovered
of an active nature?—I then turned to the contents of the stomach which
I had placed in a jug.
(By Mr. Justice Abbott.) Then your back had been to the jug?—It was
behind, or rather on my left side.
(By Mr. Sergt. Lens.) When you had turned round, did you find it in the
same situation?—Yes, I found it in the same situation, but I was
surprised to see it empty.
Did you express that surprise to any body?—I expressed it to Mr.
Donnall, and asked him what had become of it, and he told me he had
thrown it into the chamber utensil; I observed to him that he ought not
to have done so, as I had before said that it must be carefully
preserved; and I observed to him also, that it would give me a great
deal more trouble, as I must evaporate a larger quantity of water than I
should otherwise have had to do, to get at the object of my search.
Can you tell us what the quantity was in the basin, and what the
quantity was afterwards?—It was a little more than half a pint
originally.
And what was the quantity when mixed with the other water?—Nearly two
quarts. The chamber vessel was clean when I came into the room.
What had occasioned any used water in it?—I threw some of the water into
it, in which we had washed some part of the intestines.
What was then done with it?—As soon as we had finished the examination,
I left it to Mr. Street’s charge, who told me he would take care of the
contents of the stomach.
You did not see them again till they were at your own house?—No, not
till they were brought there in two bottles. I recollect putting this
chamber utensil further under the bed, in order that it might not be
disturbed, and desired that no one should touch it or go into the room,
during our absence, Mr. Donnall still remaining. Mr. Donnall had been
out of the room once or twice.
But was he there when that direction was given?——Yes, Sir.
Did you afterwards, and when, proceed to examine the contents of the two
bottles?—It was two days before I had finished that examination.
How soon afterwards did you see it in the two bottles in your house?—On
the same day that we examined the body.
Did you upon examination trace any thing of the sort that you looked
for?—I examined it in different ways by chemical tests, and they all
shewed the presence of arsenic; if necessary I will state the method I
followed.
In consequence of the experiment, you detected it to be arsenic?—Arsenic
in solution but not in substance.
How did you detect it?—I tried it by chemical re-agents that would
produce a certain colour when arsenic was present.
In general, upon that part of the subject, what is your opinion of the
cause of the death of this lady, from your observation on what you took
away and examined afterwards?—From the appearance of the stomach and the
examination of its contents, I have not the least doubt that it was
produced by poison.
Independently of that appearance to be arsenic, what is your opinion of
the general appearance, so as to judge of the cause of the death?—I have
no doubt that the death was produced by the effects of arsenic.
Could you have formed any judgment independently of the analysis, or is
this latter part necessary to your judgment?—I should have believed,
from the examination of the stomach and intestines only, that the death
had been produced by some corrosive substance.
Should you have been of opinion, without any analysis, but from the
general appearance of the stomach, that she had died of poison?—I should
certainly have been of that opinion.
But not arsenic in particular?—No; but some corrosive substance.
Could that corrosive substance have been produced in the body itself, or
must it have been administered from without?—It is not possible that it
should have been produced internally; it must have been introduced from
without.
(Cross-examined by Mr. Sergt. Pell.)
I think you said, that you found this lady’s pulse frequent and
fluttering?—Yes, Sir.
The medicine you prescribed for her was of a purgative nature?—Yes.
How often would she have had to take that medicine, between the time you
gave that prescription and the time when she died?—I gave her the
prescription for every four hours, but I left instructions to give it
every three hours.
Is that the prescription? (_shewing it_)—Yes, Sir.
Be so good as to mention what are the materials—or first, what is the
nature of that complaint, called Cholera Morbus?—It is generally
produced in hot seasons, by bile getting into the stomach, and causing
irritation in the stomach and bowels.
Is not cramp sometimes a symptom of a violent bilious attack?—Cramp
often comes on in violent irritations of the stomach and bowels,
whatever may be the cause of that irritation.
Is not cramp a certain symptom of a violent bilious attack?—It very
often accompanies it.
(By Mr. Justice Abbott.) Cramp of the legs generally arises from those
causes?—Yes, my Lord; most frequently from a violent action of the
stomach.
(By Mr. Sergt. Pell.) Might it not arise from a bilious disorganization
of the stomach?—Yes.
This complaint of Cholera Morbus may proceed to a very painful
degree?—It may kill.
Is it a very painful complaint?—It is a very distressing complaint.
As far as you have had an opportunity of visiting patients, do you know
it to be a painful complaint?—It produces cramp, which is painful, and
it certainly produces pain in the stomach and bowels by its violent
action.
Do you apprehend that a purgative medicine would be a proper medicine
for a person in that situation, supposing it to have been Cholera
Morbus?—There were no symptoms of Cholera Morbus when I saw Mrs.
Downing; but from what I heard of her complaint, I imagined that there
was something offensive either in the stomach or bowels, which ought to
be evacuated.
Were ten drops of laudanum a proper thing to give her?—It is sometimes
given to allay the irritation of those parts.
Might not a powerful administration of laudanum be of use in Cholera
Morbus?—Seldom, I think, in large quantities, but is given in small
doses frequently, if the case be urgent.
I think you have stated, that the result of your chemical experiment was
not the production of any gross arsenic, or arsenic in substance?—Not
arsenic in substance.
And you judged from the application of chemical tests?—Yes, Sir.
Be so good as to state what the chemical tests were which you used?—The
first was with the sulphate of copper, which is the common blue vitriol.
If you put a little carbonate of potash into water containing a solution
of arsenic, and then add the sulphate of copper in solution, a _green_
precipitate will be produced; whereas, if no arsenic be present, a
_blue_ precipitate would be formed: that was the first test which I
used.
What was the second test?—The second test was with the nitrate of
silver, or common lunar caustic, (these are the same in substance, but
the lunar caustic is the more common term). Put a little carbonate of
potash into water containing arsenic in solution, and dip the end of a
cylindrical piece of lunar caustic into the water, a _yellow_
precipitate will be produced; whereas if no arsenic be present, a
_white_ precipitate would be formed. Those were the chief tests which I
used; but in order to ascertain whether any thing which had been taken
into the stomach, or was naturally contained in it, would alter the
appearances produced by the tests, so as to make the result uncertain, I
tried other experiments. I concluded that bile formed part of the
contents of the stomach; I therefore procured some and mixed it with
water, and subjected it to the same tests in the same manner, and I
found that the appearance of the precipitate was not the same as if
arsenic were present; I therefore inferred that bile, in the quantity in
which it may occasionally be found in the stomach, would not alter the
conclusion I had drawn from the result of my first experiments.—I was
informed that Mrs. Downing had eaten onions; I boiled some in water in
the usual way, and after pouring off the water in which they were
boiled, I poured some boiling water on them, and let them stand for some
hours; I then ascertained what effect this water would produce on the
tests, and was satisfied that it would not, when the experiment was
carefully made, produce the appearance of arsenic.—I also understood
that some tartarized antimony had been given; I tried the tests with a
solution of that substance, and the precipitate had not the appearance
which arsenic, if present, would put on.
Do you happen to know who was the first person who discovered these
tests?—I believe Mr. Hume discovered that with nitrate of silver.
Do you know Dr. Marcett?—Yes, I know him from his writings, to be a
clever man.
You don’t happen to know whether he first discovered this mode?—No.
Do you know of any mode of managing any fluid substance, in which
arsenic has been mixed, so as to produce arsenic in substance?—By
evaporating the solution containing arsenic, and by exposing it to heat
in a close vessel, you will produce it in a white solid state; and by
mixing the residuum of a solution of arsenic with an inflammable
substance, arsenic will be sublimed in its metallic state by the same
process.
The result of that experiment would not have deceived any one in the
world?—It would not certainly; but there was such a small quantity left,
after my other experiments, that it was not tried.
It would have produced it, so that any person would know the thing to be
arsenic?—Certainly.
You mix the fluid, in which the arsenic is, with an alkali, when you
seek to re-produce the mineral in substance? you mix the solution with
an alkali, don’t you?—No; there is no occasion for an alkali.
You put it in solution and expose it to heat?—If the arsenic be in
solution, it must be evaporated; and by doing that which I have before
stated with the residuum, it will be produced in its metallic state.
With respect to the other tests, do you consider those as conclusive and
infallible?—Yes, in the way I used them.
This business, of course, must have made a great bustle in Falmouth,
when people first talked about it?—Yes, Sir.
When were you examined before the Coroner?—Upon the same day of the
funeral, and on the Thursday preceding. I begged the inquest might be
put off for two days, till I had examined the contents of the stomach;
and it was put off for two days.
You were examined, I believe, before you made the analyses?—I remember
that I was examined on the Thursday as to the appearances I found on the
stomach.
Can you recollect whether you did or did not state, before the Gentlemen
of the Jury, that the appearances of the stomach were such as proceeded
from a natural cause?—No, certainly not.
You did however desire that it might be postponed two days, that you
might make some experiments on the contents of the stomach?—Yes, Sir.
Are persons, particularly women, of an elderly time of life, more
subject to the attack of Cholera Morbus, than people who are
young?—There is very little difference.
The age of the person does not predispose him or her more to that
complaint, than a youthful person?—No, I don’t think it does; it is
rather the contrary.
You say there was nothing in the chamber vessel but water that had been
poured in, with which you had washed some parts of the stomach?—I poured
the water in myself, at a time when I believe it was empty.
Mr. Sergt. Pell—So that the effect of it would be only to give more
trouble in evaporating a greater quantity of fluid, it having been made
before.
(Re-examined by Mr. Sergt. Lens.)
You have been asked several questions about the nature of Cholera
Morbus; do you change your opinion, in any respect, as to this not being
Cholera Morbus that occasioned the death?—I do not.
You have been asked particularly about a third test that you did not
make use of; I wish to ask you how it happened that you did not resort
to that test as well as to the others?—There was not sufficient left so
as to ascertain it accurately.
So that that last test would not be so proper as the others?—The tests I
used would detect a more minute portion of arsenic, and therefore were
more proper for that occasion, as I found that there could not be much
arsenic in the fluid, from the appearances produced by these tests.
And that was the reason that you resorted to those tests instead of this
last test, which you did not use?—Yes, that was the reason, when I found
by the other tests that the arsenic was not in a large quantity.
Had the quantity been larger, how would you have proceeded?—I should
have resorted also to the last if there had been a larger quantity.
(By Mr. Justice Abbott.) The portion detected was very small?—Yes, my
Lord.
Do I understand you to say that it was so small that you did not think
it fit to try the other test, or that of evaporation?—That was my
reason. I accounted for the smallness of the quantity of poison in this
way—from the frequent throwing up, and the purging, which would carry
off large portions.
Suppose the contents of the stomach had been suffered to remain in the
jug as you had put them, unmixed with any quantity of fluid, would it
have been more easy to perform the experiment, and securing its
effect?—There would be the same result, but a difference in regard to
the length of time that it would take to evaporate.
After having tried and made use of these tests, would it have been
practicable still to have tried the test by evaporation and
sublimation?—I did not do it as the quantity of fluid was so small, and
I did not conceive that a small quantity would do. If I had evaporated
the whole of it in the first place, I might perhaps have detected
arsenic in substance; but I had made use of a great quantity in trying
the other tests, which I threw away.
That would not have been proper to have tried again, that which had been
tried before?—It would not have been so easily done.
The application of the lunar caustic in the one instance, and the
sulphate of copper in the other, would not have prevented the other
operation?—It would not have been so correct.
Do you happen to know that the prisoner, Mr. Donnall, ever desired that
any other test should be applied?—I don’t recollect that he did; but
some one came to my house, and requested me to give him a part of the
contents of the stomach to try it, but I had none.
If any application was made, it was too late?—Yes, my Lord.
Was any person with you when you tried these tests?—Mr. Street, a
brother of the gentleman I have spoken of, was with me.
That is Mr. Samuel Spyvee Street?—Yes, my Lord.
Any other person, at the other time of the experiments?—Mr. John Street
was present at the other.
(_Witness withdrew._)
_Mr. John Street_ (examined by Mr. Gazelee).
You were a surgeon?—Yes, Sir.
How long have you been retired from that profession?—About five years.
Was any application made to you to attend the opening of the body of
Mrs. Downing?—Yes, Sir, there was.
Who applied to you?—Mr. Donnall.
Upon what day did he apply to you?—Upon the Thursday.
To assist him in opening the body?—Yes, Sir.
What time did you go to the house?—Mr. Donnall called upon me about
half-past one o’clock upon the Thursday, and I went to the house about
two o’clock, or half-past two.
Whom did you find there?—Mr. Donnall and Dr. Edwards.
The operation was performed by Dr. Edwards?—Yes, and I assisted him.
Do you remember the circumstance of the contents of the stomach being
taken out and put into a jug?—Yes, I do.
What became of the jug, or was any thing said about it?—Dr. Edwards
poured the contents of the stomach into a jug, and requested it should
be taken particular care of, addressing himself particularly to Mr.
Donnall, who was very near him.
After that, did you proceed to examine the stomach itself?—We did.
Describe the appearances upon the stomach?—After opening the stomach, I
perceived it to be very much inflamed, and remarked it to Dr. Edwards,
and also to Mr. Donnall, who was upon my right hand, that the
inflammation was very extensive, and the blood-vessels very turgid;
there were stars, and the villous coat very highly inflamed; that was
the appearance of the stomach; we then examined the Duodenum, we found
that very much inflamed; the Jejunium and Illium we found but slightly
inflamed; the Cæcum was the next part that we opened, that was inflamed
but slightly.
(By Mr. Justice Abbott.) Those are the parts of the body connected with
the stomach?—Yes; after that we opened the chest to examine the heart,
liver, and lungs, and we found them in a perfect state.
(By Mr. Gazelee.) From those appearances, could you form any judgment as
to what was the occasion of the death of the deceased?—From the
appearances I should attribute the death to some corrosive matter taken
into the stomach.
You found that the contents of the jug had been removed into a chamber
utensil, did you not?—Yes.
That chamber vessel was afterwards removed further in under the
bed?—Yes, Sir, by Dr. Edwards.
Did you and Dr. Edwards go out of the room together?—We did, and Dr.
Edwards remarked that he wished nobody to go into the room when we were
out of the way; he said this to Mr. Donnall, “You’ll observe that nobody
is to go into the room while we are away.”
(By Mr. Justice Abbott.) Did you leave the prisoner in the room!—No, my
Lord; we all went down together.
(By Mr. Gazelee.) Dr. Edwards and you went over to the town-hall
together?—Yes, Sir.
How long did you remain there, till you returned?—About three or four
minutes.
Did the Jury come back with you?—Yes, Sir.
Did you again go to the Town-hall?—Yes.
How long might you be absent the second time?—About ten minutes.
At the expiration of those ten minutes, did you return to the room for
any, and what purpose?—I returned to the room to do what was necessary
to Mrs. Downing, and to put her into the shell.
Did you do any thing then?—I did; after putting Mrs. Downing into the
coffin, I told the servant to get me some bottles, which she procured,
and I then poured the contents of the chamber utensil into a jug, and
then into two bottles; they filled both bottles; they were two quart
bottles.
Did you find any person in the room when you came back?—No person.
What became of the bottles?—I told the servant to deliver them to Dr.
Edwards.
What is her name?—Susan Weeks.
Mr. Gazelee—Her name is now O’Brien, having been since married.
Did you see her go with them?—I saw her within a hundred yards of Dr.
Edwards’s house with the bottles.
Were you present when any of the tests spoken of by Dr. Edwards were
tried by that gentleman?—Yes, I saw him try some of them.
(By Mr. Justice Abbott.) Which of them did you see?—I am not chemist
enough to say; but I saw him try some, and he told me before what would
be the effect.
(Cross-examined by Mr. Gifford.)
When you poured the contents of the chamber vessel into a jug, did you
find the chamber vessel in the same state as when you left?—I think it
was.
(_Witness withdrew._)
_Dr. Edwards_ re-called, (re-examined by Mr. Justice Abbott.)
I wish to ask you this question, whether arsenic may be administered in
a fluid state?—Yes, my Lord, it may.
The usual way is in grains or in powder, but it may be administered in a
fluid state?—Yes, my Lord; it may be dissolved in water and
administered.
May such a solution be made very strong?—If it be dissolved in hot water
it will contain a large portion; but if in cold water it will not hold
more than in the proportion of one-eightieth part of the water.
When you obtain a solution of arsenic, what quantity will be contained
in the hot water, or what quantity of that water would be sufficient to
occasion death?—I cannot say exactly.
Two or three tea-spoonsful?—Very little more than that, I should
suppose.
Two dessert-spoonsful?—I dare say it would.
A table-spoonful?—Yes, my Lord. If an alkali be dissolved in the water
first, it will hold a larger proportion in solution; but if dissolved in
the common way, I should think a table-spoonful would be sufficient to
produce death.
(_Witness withdrew._)
_Dr. Edwards_ again recalled, (re-examined by Mr. Justice Abbott.)
Did the body of the deceased swell at all before it was opened?—No, my
Lord, it did not.
Was there any discharge from the nostrils, or any symptoms of
putrefaction?—None at that time: and as to the discharge from the
nostrils, I did not observe any.
In your judgment, could there be any thing in the appearance of the body
which could lead a medical man to say that it was necessary to procure a
shell immediately?—I should think not.
In case of death by Cholera Morbus, does putrefaction take place
early?—I never observed it.
Mr. Justice Abbott.—Then you don’t know it, either one way or other, to
say how that is.
(_Witness withdrew._)
-------
EVIDENCE FOR THE DEFENCE.
_Dr. Adam Neale_ (examined by Mr. Sergt. Pell).
I believe you are a physician at Exeter?—Yes, Sir.
Have you, in the course of your medical experience, been called upon to
attend cases of Cholera Morbus?—Yes, frequently.
From what cause, in general, does Cholera Morbus arise?—It generally
arises from putrid bile collected in the intestines, which is thrown off
by vomiting, and diarrhœa, or purging.
Is it a disorder which is in its nature fatal?—It is the most acute
disease known in Great Britain.
What do you mean by the term ‘acute’?—I mean by the term acute, a
disease which runs its course in the most rapid manner.
What should be the usual course of attack of Cholera Morbus as to
duration, supposing the patient ultimately died of it?—It very
frequently kills the patient within twenty-four hours, and if neglected
or improperly treated, it kills the patient in a much shorter period.
What should you esteem a reasonable symptom of a person of the age of 64
or 65 having this complaint? what should you expect to find in a person
with this complaint?—Constant vomiting and purging, attended with pain
in the stomach and cramp in the legs.
In that state of the disorder, what should you prescribe?—I should
prescribe that the patient drink plentifully of any warm fluid, such as
mutton-broth or tea, and then I should give a large dose of opium.
Supposing you were called in to attend a woman with the symptoms you
have mentioned, whose pulse was frequent and fluttering, what would you
prescribe?—I should then give her a large dose of opium, and I should
repeat it at intervals, until the retching, vomiting, and diarrhœa
ceased, or till she felt better.
I shall not trouble you, nor my Lord, by going through the particular
circumstances which Dr. Edwards has spoken to, but merely ask you, had
you the pleasure of hearing his evidence?—I had.
Did you hear distinctly the description he gave of the appearance of the
stomach, after it was opened?—I did.
To what cause should you, independently of other circumstances, have
attributed those appearances?—To no cause but the disease.
(By Mr. Justice Abbott.) What disease?—To the disease of Cholera Morbus.
Do you mean to say that they are indications of nothing else?—No, my
Lord.
They are indications of that disease as well as others?—Yes, my Lord.
(By Mr. Sergt. Pell.) Would Cholera Morbus have that appearance?—I think
so.
(By Mr. Justice Abbott.) Did you ever see the body of a person opened,
who had died of Cholera Morbus?—I have not, my Lord.
(By Mr. Sergt. Pell.) Have you had, in the course of your practice,
occasion to make experiments in chemistry?—Yes, Sir.
Did you hear the first experiment, or test, which Dr. Edwards stated he
had made, namely, that by the sulphate of copper?—Yes, Sir.
In your judgment, is that test an infallible test of arsenic being
present in solution?—By no means.
Have you heard of the other test which he tried, namely, that by means
of the nitrate of silver, or the lunar caustic?—I have.
What is your judgment of that species of test as to arsenic?—That it is
equally fallible.
Now as to the test with bile?—No [meaning, that test is not infallible]:
from the presence of phosphoric acid, the same yellow-coloured
precipitate will be thrown down, if some lunar caustic be put into a
solution of phosphate of soda.
What do you esteem to be a complete test of arsenic being held in
solution in any complicated body?—I don’t conceive that there is any
complete test, but the evaporating of the solution, and reproducing the
arsenic in its metallic state.
Have you made any experiment upon any mixture, through the medium of
nitrate of silver, or the lunar caustic, in which onions have been
infused?—Yes, with a decoction of onions.
Be so good as to state particularly what that experiment was which you
made?—I made it within the last five days; I made a decoction of onions,
and added the carbonate of potash together with the lunar caustic, and a
pale yellow cloud was produced; the liquor became opaque, and a cloud,
of a colour between white and yellow, or opal, or precious stone colour,
was produced.
(By Mr. Justice Abbott.) Through the whole body?—Yes, my Lord; I then
varied the experiment and added to it the phosphate of soda.
(By Mr. Sergt. Pell.) After this opaline cloud had been produced, what
other effect had it?—It precipitated gradually; there was a
precipitation.
(By Mr. Justice Abbott.) This dark shade, or yellowish white cloud,
precipitated to the bottom?—Yes, my Lord.
Was that of the nature of what you call precipitation?—Yes, my Lord.
(By Mr. Sergt. Pell.) Well, Sir?—I added some solution of phosphate of
soda, and a solution of lunar caustic, and I then obtained a yellow
precipitate.
(Cross-examined by Mr. Sergt. Lens.)
I understood you to say that you never did, in point of fact, examine
the body of a person that died of Cholera Morbus?—I never did; I only
conclude, as a matter of science, that such would be the appearance; but
I never did, in point of fact, open the body: I only conclude that that
would be the sort of inflammation.
Now, as to this decoction of onions, would one taking rabbits smothered
in onions be said to be taking a decoction?—The juice of the onions
would be conveyed into the stomach: perhaps it would be as well to
explain to the Court what is my motive.
(By Mr. Justice Abbott.) We don’t want that: we only want to know
whether a decoction be the same as that which would be conveyed by
eating boiled onions?—The same fluid would be conveyed into the stomach.
(By Mr. Sergt. Lens.) That is, a decoction of onions?—Yes, Sir.
But the greatest part is drawn off by the preparation?—Some must
infallibly remain. The experiment I made was, by cutting an onion into
various pieces, and putting it into two wine-glassesful of water, and
upon that decoction my experiment proceeded—or by pouring boiling water
over it, or boiling it for two minutes, and then I tried the experiment
both with the liquid and with the boiled onion, and the effects were the
same.
So that the small quantity that remained in the one case, had the same
effect as the extract in the other?—Yes, Sir.
That which is used at table must be considerably weaker than that sort
of preparation?—A considerable part, but not the whole, otherwise the
flavour would be all gone.
(By Mr. Justice Abbott.) In proportion as the strength and flavour is
diminished, so is the strength of the juice diminished?—Yes, my Lord.
(By Mr. Sergt. Lens.) Do you mean to say that that mode [the test by
evaporation] is absolutely an infallible mode of detecting arsenic?—I
speak by the practice of all physicians, both at home and abroad, that
it will be positively detected by that mode to be present; but I don’t
mean to say that Dr. Edwards’s experiment won’t do it also; but the
phosphate of soda will produce the same thing.
Of course, if necessary to inquire as to the fact of its presence,
whether it be pursued by one or the other of these modes, you would
inquire into collateral circumstances?—Certainly; but if you speak
chemically, I should conceive none decisive, without the reproduction of
the metal.
In your judgment, this is the best test that can be resorted to?—I don’t
speak from my own judgment merely, but from acknowledged experiments.
Is there any considerable portion of the phosphate of soda in the
bile?—Phosphoric acid exists in all the fluids of the human body, in the
blood and other fluids; I cannot say to what degree it may exist, but it
certainly does exist in these, and in the bodies of all animals.
Does it exist to such a degree in the human bile, as to produce this
effect?—I have not made the experiment.
You have not made any experiment, either in one way or another?—It is
necessary that I should mention that a French chemist, named Denard, has
published on this subject.
Mr. Justice Abbott.—We cannot take the fact from any publication; we
cannot take the fact as related by any stranger.
(By Mr. Sergt. Pell, through Mr. Justice Abbott.) I wish to know whether
Dr. Neale, in the course of his practice, has opened many bodies, the
stomachs of which were in a state of inflammation?—I have, a great many.
Were those appearances the same as described by Dr. Edwards?—They were;
I have seen many instances where they were the same as described by Dr.
Edwards.
And that in cases in which there was no reason to suppose that there was
poison administered?—No reason whatever, my Lord.
Were you ever present at the opening of the body of a person who was
supposed to have died by poison?—I was many years ago, when I was in
Scotland, and when I was a young man; but the appearances were not such
as to satisfy the medical men that there was arsenic.
Is there any other substance, except this phosphate of soda, that will
throw down this yellow precipitate?—Not that I am aware of.
Sulphate of copper was not an infallible test, you say; explain that?—If
sulphate of copper be contaminated with iron, or be not pure; if it be
mixed with the carbonate of potash in solution, a yellow precipitate
would be produced, and the two colours will produce green. I should also
state that in mixing the solution, if the sulphate of copper should be
added to a decoction or an infusion of onions, with a small quantity of
the carbonate of potash, a green precipitate is also produced; I have
tried it repeatedly.
Supposing a person to have been eating boiled onions for dinner, and in
the course of the night to have been vomiting or purging to a violent
degree, would any particular portion of the juice of the onion be left
in the stomach?—Not in the stomach in a great proportion; but I think
that enough may remain to affect the chemical test.
Notwithstanding the mixture of the onions with other food, there is
sufficient to effect that in some degree?—Yes, my Lord.
(By Mr. Sergt. Lens, through Mr. Justice Abbott.) You have stated that
you have seen many bodies opened, in which the stomach was in a state of
inflammation, and in the state described by Dr. Edwards, and yet no
actual poison present in those cases; what has been the state of the
villous coat of the stomach in such cases; have you attended to
that?—No, I have not.
Then you have only observed as to the inflammation and so on, but not to
the villous coat of the stomach?—Exactly so, my Lord, and not to the
villous coat of the stomach.
_Witness withdrew._
_Dr. Daniel_ (examined by Mr. Gifford)
You have been for many years a physician at Exeter?—Yes, Sir.
And of considerable practice there?—Yes, Sir.
Have you in your course of practice attended many persons attacked with
Cholera Morbus?—I have.
What are the symptoms attendant upon that disorder?—Usually considerable
vomiting, affections of the bowels, purging, pains of the stomach, great
thirst, and cramps or spasms of the legs.
Where you find a patient violently attacked by those symptoms, what
would be the medicines you would administer—I should undoubtedly direct
full doses of opium, to remove the irritation, and to check the
discharge.
If you found a patient with a frequent and fluttering pulse, should you
so administer?—Most undoubtedly.
Have you heard the symptoms which Mrs. Downing is described to have had
the evening before her death?—Yes, Sir.
May I ask you whether those be the symptoms of Cholera Morbus?—They
certainly are the symptoms of Cholera Morbus.
(Cross-examined by Mr. Gazelee).
Are these the symptoms of Cholera Morbus exclusively—No, Sir; they are
symptoms of arsenic, or any poison.
(By Mr. Justice Abbott.) Within what period of time does Cholera Morbus
usually produce death?—Within my experience, I have seen it nearly fatal
within fourteen hours.
Within what time have you known it fatal?—I have never known it fatal: I
have known a patient in imminent danger within fourteen hours, but he
recovered.
In what way does that disease usually shew itself? does it begin all at
once, when the person is in good health, or gradually?—I have known it
rather sudden, after an illness of an hour or two.
Have you ever known an instance of a person in good health, eating a
hearty dinner, and then sitting down to tea, taken instantly with
vomiting and purging in that way described?—I have seen a case very
similar to that.
When you say very similar, will you be good enough to explain that a
little more?—It occurred in my practice eight years ago, to see a
gentleman who was seized with sickness and nausea about five or six
o’clock in the afternoon; the sickness and nausea continued increasing
till one or two in the morning, and I was desired to see him; and from
two to four o’clock I considered him in such danger that I had no hopes.
That does not apply to my difficulty; I want to know what the state of
health of that patient would be—that is, whether he would be troubled
with a languor or illness, which a person does not very well understand;
or whether that person would be, just before his being so seized with
it, in perfect good health?—That gentleman whom I mentioned had been
delicate in his health, but had had no positive complaints.
Cholera Morbus proceeds from bile?—From bile and corrupt humours.
Will they collect all at once?—They will shew themselves collectively
within a very short period of time.
(By Mr. Gifford.) I believe you knew the prisoner at the bar, when
attending the Hospital at Exeter?—Yes, Sir.
Had you an opportunity of seeing him frequently?—Occasionally.
Did you know his character for humanity and tenderness?—He always
appeared to me to have rather an unusual share of humanity and
tenderness; and such was the character which he held in the Institution.
(_Witness withdrew._)
_Mr. John Tucker_ (examined by Mr. Sergt. Pell.)
You are a surgeon living at Exeter.—I am.
And a member of the Royal College of Surgeons?—Yes, I am.
You have heard the symptoms and circumstances first described by Dr.
Edwards and Mr. Street?—Yes.
From the different facts which both those gentlemen have spoken to, as
to the state of the stomach of the deceased when opened, what disorder
should you have supposed that person to have died of?—From some
inflammation in the stomach.
What disorder of the human frame, in your judgment, would be likely to
produce such appearances?—Hernia, Cholera Morbus, and idiopathic
inflammations, or inflammations from unknown causes; that is, when we
find those appearances of the stomach where we can assign no causes.
Now supposing a person to have had violent retchings and purgings,
accompanied with a pain in the stomach, and accompanied with such
appearances as these in the stomach, if the body had been opened to what
causes would you attribute it?—To Cholera Morbus, if I had not detected
Hernia.
(By Mr. Justice Abbott.) You mean to say that if you had found the
stomach in the state described by Dr. Edwards, you would ascribe that to
Cholera Morbus?—Yes, my Lord.
(By Mr. Sergt. Pell.) You have heard it stated in evidence what the plan
was that Mr. Donnall pursued, when he administered medicine to Mrs.
Downing that night?—I have, Sir.
Was that the right or the wrong one?—It was partly right, and partly
wrong.
In what respect was it right?—In the exhibition of opium.
In what respect was it wrong?—In giving any thing that would increase
the irritation that already existed.
Have you seen the prescription which Dr. Edwards wrote that night?—No, I
have not; but I would wish to see it—(_here the prescription alluded to
was shewn to the witness_).
Now supposing a person to have retchings and purgings for several hours,
and that you found these attended with frequent and fluttering pulse, in
that state of the illness what should you have prescribed?—I should have
prescribed diametrically opposite to the prescription of Dr. Edwards; I
should consider that prescribed by Dr. Edwards as adding weight to a
porter’s back.
Mr. Justice Abbott (_to the witness_)—Don’t speak metaphorically; you
are speaking just now of a gentleman of experience and respectability: I
don’t wish you to conceal your opinion, but only to speak it in
different language.
(By Mr. Sergt. Pell.) You should have pursued a method diametrically
opposite you say; now what is the course pursued by that
prescription?—There was irritation already existing in the bowels, and
that prescription, I conceive, would tend to increase that irritation.
Besides tending to increase the irritation, in your judgment what other
effect would be produced by it, in that state of the person?—There was
considerable debility or exhaustion, and I should think _that_ would
increase that debility and exhaustion.
What should you have given?—I should have supported the patient, and
given opium in large doses.
Have you had an opportunity of examining many bodies after death?—A
great many.
I will ask you, did it ever in the course of your practice happen to you
to examine a body that had died of Cholera Morbus?—I attended a patient,
but I can state the reasons why I did not do so.
Don’t state the reasons why you did not. Then you never did open any
body that had died of Cholera Morbus?—Never.
You have opened bodies after death?—Yes, Sir, a great many.
In cases of mere accident, where death has been produced by violent
injury arising from accident, have you ever had occasion to ascertain
the state of such a body as that?—I have.
How long ago?—Eight or nine years ago.
What was the accident that occasioned the death?—A fractured skull.
How long after the death was the body opened?—It was either upon the
second or the third day.
What was the state of the stomach of that person?—Highly vascular, which
would lead any one unaccustomed to the complaint, to mistake it as
arising from inflammation.
Now explain what you mean by the terms ‘highly vascular’?—The congestion
of numerous blood-vessels.
Is there any thing as to the state of the hardness or softness of the
coats of the stomach, upon which any judgment can rest?—I should suspect
that as it is inflamed, the coats of the stomach would be thickened and
soft; for as the inflammation takes place, the parts increase in size.
Have you examined the bodies of soldiers, or of any description of
persons, who have died of that complaint?—Yes, I have.
What would be the state, with respect to inflammatory appearances in the
stomach, of those subjects?—We generally find the coats of the stomach
red and thick; we very often, but not always, find it where there is no
reason whatever to suspect inflammation.
Have you applied yourself to the study of chemistry very much?—Not very
much; but I have attended chemical lectures.
Do you happen to know whether the chemical test through the medium of
nitrate of silver, or lunar caustic, is an infallible one or not, as to
shewing the presence of arsenic in solution?—I conceive it not to be so.
Do you recollect who it was that first proved this test?—I don’t know
who it was that proved it first; but the first time I ever saw it
described was in a medical publication by Dr. Marcet, lecturer in Guy’s
Hospital.
Do you happen to know whether there be any thing else, besides arsenic,
which, if submitted to the lunar caustic, would produce the same result
as it would with arsenic?—I do.
What else?—If there be any alkaline phosphate, it would put on the same
appearance, and throw down the same yellow precipitate.
Do you know whether phosphoric acid and salts be contained, or abound in
the human frame?—I have been led to believe so.
Did you hear Dr. Edwards give his evidence as to the test also of the
sulphate of copper?—I did.
Have you made any experiments as to the sulphate of copper?—I have.
We have been told that the sulphate of copper, when added to any liquid
or fluid containing arsenic, will throw down a green precipitate?—Yes,
it will have that effect; and I have made that experiment.
Have you made any experiment in order to ascertain whether any green
precipitate would be thrown down by sulphate of copper, when applied to
any other solution than that of arsenic?—I have tried it with an
infusion of onions and animal matter.
(By Mr. Justice Abbott.) What was the result?—A green precipitate
resembling that which would have been thrown down, if arsenic had been
present.
(Cross-examined by Mr. Sergt. Lens.)
Did you happen to attend when Dr. Edwards was the chemical lecturer at
St. Bartholomew’s Hospital, in London?—I was a student in the Borough,
at St. Thomas’s and Guy’s.
Then you did not attend yourself, when Dr. Edwards was the chemical
lecturer at St. Bartholomew’s?—No, I did not.
Do we understand that you made those experiments previous, or since this
circumstance happened?—Both previous to, and since this melancholy
circumstance; and particularly that with the nitrate of silver; and I
thought it one of the most delicate at the time I made it.
(By Mr. Justice Abbott.) That is the lunar caustic?—Yes, my Lord. When I
first made the experiment, about three years ago, I found it the most
delicate test of arsenic.
What do you mean by the most delicate test of arsenic?—That is, the
smallest portion would be detected by it.
(By Mr. Sergt. Lens.) You found that at first?—Yes, but I have since
discovered its fallacy; and it was pointed out by the same means which
discovered its delicacy as a test, because it is now ascertained that
something else will produce the same appearances.
You have mentioned what?—Yes, any alkaline phosphates.
(_Witness withdrew._)
_Mr. Joseph Collier Cookworthy_ (examined by Mr. Gifford.)
I believe you are a physician at Plymouth?—I am.
You have been present during the course of this trial, and have heard
the examination of Dr. Edwards?—I have.
You have accordingly heard the tests that he applied to the contents of
the stomach of Mrs. Downing?—I have, Sir.
Now I would ask you whether, in your judgment and experience, those
tests be or be not conclusive?—I am satisfied that they are not.
When I ask you whether or not they be conclusive, I mean as to the
existence of arsenic?—I am certain they are not, and that they do not
unequivocally shew the existence of arsenic.
Do the same results follow from experiments from other compounds?—They
do.
What, in your judgment, is the proper test by which the presence of
arsenic would be discovered?—I am borne out by all philosophical
chemists in this country, in stating that the only test that can bear a
man out in swearing to its presence is, the reproduction of the metal; I
mean the arsenic in its metallic state.
In the other tests is the colour of the precipitate the only thing by
which to judge that arsenic is present?—In what tests?
The sulphate of copper for instance?—Unless it were mixed with some
carbonaceous matter, and submitted to the action of heat: where that has
not been done, it is the colour only that has been relied on.
Have you heard the appearances of the stomach as described by Dr.
Edwards?—I have.
Do those appearances, in your judgment, indicate the presence of arsenic
in the stomach?—Although I should not have drawn the conclusion that
that body had therein received poison, I certainly should have allowed
such a reflection to enter into my mind, and have acted upon it; yet I
by no means think (and I speak from the experience of others), that the
appearances stated to have existed were such as _only_ to denote the
presence of arsenic.
Have you known the prisoner at the bar long?—Yes, Sir.
How long?—I only knew him at school; we were educated together at the
Exeter Free Grammar-school.
At that time, what was his character for humanity?—It would be difficult
to say what attaches one school-boy to another; but I can say
conscientiously——
That is not the question. What was his character as a school-boy?—That
is a question which is difficult to answer—not that I mean to imply that
there was any thing to the contrary of a good character, for I mean to
say that he stood high—he was respected by his school-fellows. We slept
together in the same dormitary; and I remember now with pleasure,
notwithstanding the time that has transpired, the intimacy that then
existed.
(Cross-examined by Mr. Gazelee.)
You said that nothing but the reproduction of the arsenic would satisfy
your mind as to the presence of it?—It would not; and I am borne out in
that belief by the best authorities in the country; nothing short of
that would satisfy my mind in swearing to its presence.
(By Mr. Justice Abbott.) You said that the same results would follow
from other compounds?—Yes, my Lord.
What other compounds would give the same result with the lunar
caustic?—Phosphoric acid.
And what with the sulphate of copper?—Understanding that the deceased
had died after eating a hearty dinner of rabbits and onions, I cut a
large onion into slices, and took a slice of raw meat, and put them into
the same vessel, and poured rather more than a pint of warm water upon
the mixture, with the view of making an infusion; I allowed it to infuse
for some hours; I then took a quantity of the liquid or infusion so
prepared, and I applied to it the same tests:—first, the sub-carbonate
of potash in solution, I then added the sulphate of copper in solution,
the two tests which I understood Dr. Edwards had used.
And what was the effect produced?—A green precipitate was instantly
formed.
Was that experiment then complete?—It was, my Lord.
Any thing else?—Yes, my Lord; with another portion of the liquor I tried
this other experiment;—I put in some sub-carbonate of potash in
solution, I then added the sub-nitrate of silver, or lunar caustic, and
a yellow precipitate was produced.
Is there any thing farther you would wish to say as to those
experiments?—Yes, my Lord; I used the same tests as I understood Dr.
Edwards had used.
(_Witness withdrew._)
_Mr. Samuel Luscombe_ (examined by Mr. Sergt. Pell.)
You are the Surgeon of the Exeter Hospital?—Yes, Sir.
How long have you been in that situation?—For fifteen or sixteen years.
During the course of that time, you have had an opportunity of examining
many bodies?—I have.
Have you heard Dr. Edwards give his evidence to-day?—I have.
From the account which he has given, what would be your judgment as to
the cause of that death, it being added that the person who died had
violent retchings and purgings?—I should consider that those violent
retchings and purgings had exhausted her, and had caused the death.
Putting out of your view those violent affections of the stomach, could
you account for the cause of the inflammation?—I could not, unless from
discovering some poison in the coats of the stomach at the time.
Have you known, in the course of your practice, many instances of
Cholera Morbus?—I have known a great many.
What do you consider to be the immediate cause of Cholera Morbus?—A
redundancy of bile and humours upon the stomach.
If inflammation be found upon the stomach after it is opened, what
appearance would it put on?—The internal coats of the stomach would be
very red in various parts, and the colour very florid; but in the course
of two or three days it would become more dark.
That is, it would have a stellated appearance?—I never opened the body
of a person who had died of Cholera Morbus.
The Defence of _Eugene Aram_, for the murder of _Daniel Clarke_.
As this trial has excited very extraordinary interest, and presents
illustrations of several points connected with Medico-legal
investigations, we shall offer to our readers a brief outline of the
case, and introduce the ingenious defence which the prisoner composed
and read at his trial. In the year 1745, Clarke, a shoemaker, at
Knaresborough, in Yorkshire, was induced by Eugene Aram and Richard
Houseman, to purchase a variety of valuable articles of plate and
jewellery, in consequence of having married a woman who had many rich
relations, and who, by an ostentatious display of this kind, might
conclude that Clarke was rich, and in consequence of such belief make
him their heir. No sooner had Clarke yielded to the persuasion of these
men, and became in consequence possessed of many valuable goods, than
Eugene Aram and Houseman murdered him, in February 1745, and buried his
body in a field near the town, and having shared Clarke’s treasure, they
decamped.—Clarke being at the time very much in debt, was supposed to
have gone abroad, and every inquiry ceased until the year 1758, when a
person, as he was digging for lime-stone near St. Robert’s cave, found
the bones of a human body, upon which a conjecture arose that they were
the remains of Daniel Clarke, who it was presumed might have been
murdered; and as Houseman was seen in the company of Clarke a short time
before his disappearance, he was immediately apprehended on suspicion,
when having lost his self-possession he imprudently exclaimed that
_those_ were not the bones of Clarke, for they were buried in a
different place! and subsequently he stated the exact place where they
were deposited, and which were found accordingly. Soon after Houseman
was committed to the castle of York, it was discovered that Aram resided
in the character of a respectable school-master at Lynn, in Norfolk, on
which he was taken into custody, and conveyed to York castle, where at
the following summer assizes they were tried; after Houseman had given
his evidence, and all such collateral testimony had been received as
could be adduced on such an occasion, Aram delivered the following
ingenious defence.
“_My Lord_,
“I know not whether it is of right, or through some indulgence of your
Lordship, that I am allowed the liberty at this bar, and at this time to
attempt a defence, incapable and uninstructed as I am to speak. Since,
while I see so many eyes upon me, so numerous and awful a concourse,
fixed with attention, and filled with, I know not what expectations, I
labour not with guilt, my Lord, but with perplexity. For having never
seen a court but this, being wholly unacquainted with law, the customs
of the bar, and all judicial proceedings, I fear I shall be so little
capable of speaking with propriety in this place, that it exceeds my
hope if I shall be able to speak at all.
“I have heard, my Lord, the indictment read; wherein I find myself
charged with the highest crime, with an enormity I am altogether
incapable of, a fact, on the commission of which there goes far more
insensibility of heart, more profligacy of morals, than ever fell to my
lot. And nothing possibly could have admitted a presumption of this
nature, but a depravity not inferior to that imputed to me. However, as
I stand indicted at your Lordship’s bar, and have heard what is called
evidence adduced in support of such a charge, I very humbly solicit your
Lordship’s patience, and beg the hearing of this respectable audience,
while I, single and unskilful, destitute of friends, and unassisted by
counsel, say something perhaps like argument in my defence. I shall
consume but little of your Lordship’s time, what I have to say will be
short, and this brevity probably will be the best part of it; however,
it is offered with all possible regard, and the greatest submission to
your Lordship’s consideration, and that of this honourable court. First,
my Lord, the whole tenor of my conduct in life contradicts every
particular of this indictment. Yet had I never said this, did not my
present circumstances extort it from me, and seem to make it necessary.
Permit me here, my Lord, to call upon malignity itself, so long and so
cruelly busied in this prosecution, to charge upon me any immorality, of
which prejudice was not the author. No, my Lord, I concerted no schemes
of fraud; projected no violence; injured no man’s person or property; my
days were honestly laborious; my nights intensely studious. And I humbly
conceive my notice of this, especially at this time, will not be thought
impertinent or unseasonable, but at least deserving some attention,
because, my Lord, that any person, after a temperate use of life, a
sense of thinking and acting regularly, and without one single deviation
from sobriety, should plunge into the very depth of profligacy,
precipitately and at once, is altogether improbable and unprecedented,
and absolutely inconsistent with the course of things. Mankind is never
corrupted at once, villany is always progressive, and declines from
right, step after step, till every regard of probity is lost, and every
sense of moral obligation totally perishes.
“Again, my Lord, a suspicion of this kind, which nothing but malevolence
could entertain, and ignorance propagate, is violently opposed by my
very situation at that time with respect to health: for but a little
space before I had been confined to my bed, and suffered under a very
long and severe disorder, and was not able for half a year together so
much as to walk. The distemper left me indeed, yet slowly and in part,
but so macerated, so enfeebled that I was reduced to crutches; and so
far from being well about the time I am charged with this fact, that I
never to this day perfectly recovered. Could then a person in this
condition take any thing into his head so unlikely, so extravagant? I,
past the vigour of my age, feeble and valetudinary, with no inducement
to engage, no ability to accomplish, no weapon wherewith to perpetrate
such a fact, without interest, without power, without motive, without
means.
“Besides, it must needs occur to every one, that an action of this
atrocious nature is never heard of, but, when its springs are laid open,
it appears that it was to support some indolence, or supply some luxury;
to satisfy some avarice, or oblige some malice; to prevent some real, or
some imaginary want; yet I lay not under the influence of any one of
these. Surely, my Lord, I may consistent with both truth and modesty
affirm thus much; and none who have any veracity and knew me, will ever
question this. In the second place, the disappearance of Clarke is
suggested as an argument of his being dead; but the uncertainty of such
an inference from that, and the fallibility of all conclusions of such a
sort, from such a circumstance, are too obvious and too notorious to
require instances; yet superseding many, permit me to procure a very
recent one, and that afforded by this castle. In June 1757, William
Thompson, for all the vigilance of this place in open daylight and
double ironed, made his escape; and notwithstanding an immediate enquiry
set on foot, the strictest search and all advertisement, was never heard
of since. If then Thompson got off unseen through all these
difficulties, how very easy was it for Clarke, when none of them opposed
him? But what would be thought of a prosecution commenced against any
one seen last with Thompson. Permit me next, my Lord, to observe a
little upon the bones which have been discovered. It is said, which
perhaps is saying very far, that these are the skeleton of a man. It is
possible indeed it may: but is there any certain known criterion, which
incontestably distinguishes the sex in human bones? Let it be
considered, my Lord, whether the ascertaining of this point, ought not
to precede any attempt to identify them. The place of their depositum
too claims much more attention than is commonly bestowed upon it; for,
of all places in the world, none could have mentioned any one, wherein
there was greater certainty of finding human bones than a hermitage,
except he should point out a church-yard; hermitages, in times past,
being not only places of religious retirement, but of burial too. And it
has scarce or never been heard of, but that every cell now known
contains or contained the relicts of humanity, some mutilated and some
entire. I do not inform, but give me leave to remind your Lordship, that
here sat solitary sanctity, and here the hermit or the anchoress, hoped
that repose for their bones, when dead, they here enjoyed when living.
All the while, my Lord, I am sensible this is known to your Lordship,
and many in this court, better than to me. But it seems necessary to my
case that others, who have not at all perhaps adverted to things of this
nature, and may have concern in my trial, should be made acquainted with
it. Suffer me then, my Lord, to produce a few of many evidences, that
these cells were used as repositories of the dead, and to enumerate a
few in which human bones have been found as it happened in this
question; lest to some, that accident might seem extraordinary, and
consequently occasion prejudice.
1st. The bones, as was supposed, of the Saxon St. Dubritius were
discovered buried in his cell at Guy’s Cliff near Warwick, as appears
from the authority of Sir. W. Dugdale.
2d. The bones, thought to be those of the anchoress Rosia, were but
lately discovered in a cell at Royston, entire, fair, and undecayed,
though they must have lain interred for several centuries, as is proved
by Dr. Stukely.
3d. But my own country, nay almost this neighbourhood, supplies another
instance, for in Jan. 1747 were found by Mr. Stovin, accompanied by a
rev. gentleman, the bones, in part, of some recluse, in the cell at
Lindholm near Hatfield. They were believed to be those of William of
Lindholm, a hermit, who had long made this cave his habitation.
4th. In Feb. 1744 part of Hoburn Abbey being pulled down, a large
portion of a corpse appeared, even with the flesh on, which bore cutting
with a knife; though it is certain this had lain above 200 years, and
how much longer is doubtful, for this Abbey was founded in 1145, and
dissolved in 1538 or 9.
“What would have been said, what believed, if this had been an accident
to the bones in question? Farther, my Lord, it is not yet out of living
memory, that a little distance from Knaresborough in a field, part of
the manor of the worthy and patriot baronet, who does that borough the
honor to represent it in Parliament, were found in digging for gravel,
not one human skeleton only, but five or six, deposited side by side,
with each an urn placed at its head, as your Lordship knows was usual in
ancient interments. About the same time, in another field, almost close
to this borough, was discovered also, in searching for gravel, another
human skeleton; but the piety of the same worthy gentleman ordered both
pits to be filled up again, commendably, unwilling to disturb the dead.
Is the invention of these bones forgotten, then, or industriously
concealed, that the discovery of those in question may appear the more
singular and extraordinary? whereas, in fact, there is nothing
extraordinary in it. My Lord, almost every place conceals such remains.
In fields, in hills, in highway sides, in commons, lie frequent and
unsuspected bones. And our present allotments for rest for the departed
is but of some centuries.
“Another particular seems not to claim a little of your Lordship’s
notice, and that of the gentlemen of the jury, which is that perhaps no
example occurs of more than one skeleton being found in one cell; and in
the cell in question was found but one, agreeable in this to the
peculiarity of every other known cell in Britain. Not the invention of
one skeleton, but of two, would have appeared suspicious and uncommon.
But it seems another skeleton has been discovered by some labourer,
which was full as confidently asserted to be Clarke’s as this. My Lord,
must some of the living, if it promotes some interest, be made
answerable for all the bones which earth has concealed and chance
exposed? and might not a place where bones lay, be mentioned by a person
by chance, as well as found by a labourer by chance? or is it more
criminal accidentally to name where bones lie, than accidentally to find
where they lie? Here too is a human skull produced, which is fractured;
but was this the cause, or was it the consequence of death? was it owing
to violence, or was it the effect of natural decay? if it was violence,
was that violence before or after death? My Lord, in May 1732 the
remains of William Lord Archbishop of this province, were taken up by
permission, in this cathedral, and the bones of the skull were broken,
yet certainly he died by no violence offered to him alive, that could
occasion that fracture there. Let it be considered, my Lord, that upon
the dissolution of religious houses, and the commencement of the
reformation, the ravages of those times affected both the living and the
dead. In search after imaginary treasures, coffins were broken up,
graves and vaults dug open, monuments ransacked, and shrines demolished;
and it ceased about the beginning of the reign of Queen Elizabeth. I
entreat your Lordship, suffer not the violence, the depredations, and
the iniquities of those times to be imputed to this. Moreover, what
gentleman here is ignorant that Knaresborough had a castle, which though
now a ruin, was once considerable both for its strength and garrison?
All know it was vigorously besieged by the arms of Parliament, at which
siege in sallies, conflicts, flights, pursuits, many fell in the places
round it, and where they fell were buried, for every place, my Lord, is
burial earth in war; and many questionless of these, rest yet unknown,
whose bones futurity shall discover. I hope, with all imaginable
submission, that what has been said will not be thought impertinent to
this indictment; and that it will be farther from the wisdom, the
learning, and the integrity of this place, to impute to the living, what
fury in its zeal may have done; what nature may have taken off and piety
interred; or what war alone may have destroyed, alone deposited. As to
the circumstances that have been raked together I have nothing to
observe, but that all circumstances whatever are precarious, and have
been but too frequently found lamentably fallible; even the strongest
have failed. They may rise to the utmost degree of probability, yet they
are but probability still. Why need I name to your Lordship the two
Harrisons recorded by Dr. Howel, who both suffered upon circumstances,
because of the sudden disappearance of their lodger, who was in credit,
had contracted debts, borrowed money, and went off unseen, and returned
a great many years after their execution? Why name the intricate affair
of Jaques du Moulin under King Charles 2d, related by a gentleman who
was counsel for the crown? and why the unhappy Coleman who suffered
innocent, though convicted upon positive evidence, and whose children
perished for want, because the world uncharitably believed the father
guilty? Why mention the perjury of Smith, incautiously admitted king’s
evidence, who to screen himself equally accused Faircloth and Loveday of
the murder of Dun, the first of whom in 1749 was executed at Winchester,
and Loveday was about to suffer at Reading, had not Smith been proved
perjured to the satisfaction of the court, by the Surgeon of Gosport
hospital. Now, my Lord, having endeavoured to shew that the whole of
this process is altogether repugnant to every part of my life, that it
is inconsistent with my condition of health about that time, that no
rational inference can be drawn, that a person is dead who suddenly
disappears, that hermitages were the constant repositories of the bones
of the recluse, that the revolutions in religion or the fortune of war,
has mangled or buried the dead; the conclusion remains perhaps no less
reasonably than impatiently wished for. I at last, after a year’s
confinement equal to either fortune, put myself upon the candour, the
justice, and the humanity of your Lordship, and upon yours, my
countrymen, gentlemen of the jury.”
FINIS.
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Footnotes
Footnote 1:
In cases of attempted suicide we shall neither be surprised nor
deceived by any extravagant statements.
Footnote 2:
Dict. des Sciences Med. Art. Folie.
Footnote 3:
See vol. 2. page 155 of the present work, where this subject is very
fully considered.
Footnote 4:
See note at page 269 of vol. 2.
Footnote 5:
_Aretæus_ asserts that immoderate perturbation of mind, consternation,
fear, despondency, sudden and violent joy, immoderate laughter, &c.
have produced apoplexy, (_De Signis et Caus: Diut: Morb: Lib. 1, c.
7_.) _Forestus_ (p. 509) relates the case of a gentleman of plethoric
habit, and hereditarily disposed to the disease, who, on receiving
information of the sudden death of an intimate friend, was instantly
seized with a tremor of the left foot, and soon afterwards with
apoplexy. We beg to refer the reader to _Dr. Cooke’s_ valuable and
learned work on Nervous Disorders, vol. 1, p. 217, where the author
has collected with much industry a variety of cases in illustration of
this subject.
Footnote 6:
A Manual for the Student of Anatomy, containing rules for displaying
the structure of the body, so as to exhibit the elementary views of
anatomy, and their application to pathology and surgery, by _J. Shaw_;
being an outline of the demonstrations delivered by him to the school
of Great Windmill-street. 8vo. p. 342. London, 1821. We have been much
pleased with this useful little work.
Footnote 7:
_Cooke_ on Nervous Disease, vol. 1, p. 176. In some few instances,
however, death takes place immediately in this disease. _Dr. Kirkland_
speaking of apoplexy, in which there is an instantaneous extinction of
the vital principle, relates the case of a mantua-maker, who being at
work, was talking cheerfully with some of her friends about her, when
her hands dropped down upon her lap, and she was perfectly dead.
_Forestus_ relates several similar cases, but hesitates in pronouncing
them apoplexy. We have no doubt but that the greater proportion of
sudden deaths depend upon diseases of the heart.
Footnote 8:
See the trial of _Lawrence Braddon_ and _Hugh Spake_, for a
misdemeanour, in suborning witnesses to prove the Earl of Essex was
murdered by his keepers. Feb. 7, 1683. _Sta. Tri._ vol. iii.
Footnote 9:
See our observations upon this phenomenon at page 13 of the present
volume.
Footnote 10:
_Dr. Badenoch_, in a work on the diseases of India, ascertained by
repeated and accurate experiments, that the heat of those who die
apoplectic from a “_coup de soleil_,” or “_insolation_,” as it is
termed, continues for a considerable time several degrees higher than
the natural standard; in one case, the heart felt to his hand as if it
had been five or six degrees higher than in life and health,
notwithstanding the body had been dead twenty-four hours.
Footnote 11:
Elements of Juridical or Forensic Medicine. Edit. 2, p. 101.
Footnote 12:
See experiments by _Dr. Gibbs_, on Adipocire, in the Philosophical
Transactions for 1794, part ii, and for 1795.
Footnote 13:
See “Genuine Memoirs of the life of _Sir John Dinely Goodere, Bt._”
_&c._ by _Samuel Foote_. Also State Trials.
Footnote 14:
“Genuine trial of _Margery Beddingfield_ and _Richard Ringe_, for
petty treason and murder. London 1762.”
Footnote 15:
See State Trials, vol. ii, p. 756; see also _Burnett’s_ Hist. of his
own times, vol. 1, p. 445.
Footnote 16:
The whole proceedings before the Coroner’s inquest at Oldham, &c. on
the body of _John Lees_, who died of sabre wounds at Manchester; taken
in short hand by _A. Dowling_. London, _Hone_, 1820.
Footnote 17:
Vol. x, _Appendix_, p. 29.
Footnote 18:
In the case of _Patch_, who was left-handed, it was clearly shown by
the relative position of the deceased, and the door from which he was
shot, that the murderer must have exposed his person to the view of
the deceased, unless he fired with the left hand. The guilt of _Patch_
was for some time doubted, but the discovery of the pistol in the
neighbouring dock a few years ago, has supplied the only link which
was wanting to make the evidence against him complete.
Footnote 19:
See “An account of the symptoms and death of the sailors who were
affected in consequence of a fire having been kindled in the hold of
their vessel, and their neglecting to leave the hatches open, by _Dr.
King_.” Edinb. Med. and Surg. Journ. no. 26, April, 1811.
Footnote 20:
If in addition to the presence of water in the stomach any weeds be
found, the presumption is strengthened that the person had been
drowned. This occurred in the case of _Mary Ashford_, the vegetable
matter discovered in the stomach corresponded with that with which the
pool was covered.
Footnote 21:
Teichmeyer Inst. Med. Leg. p. 176.
Footnote 22:
De Morb. Vulg. lib. v, sect. vii, 27.
Footnote 23:
Recherches Anatomico-Pathologiques sur l’Encephale et Ses Dependances,
par _F. Lallemand_. Paris 1820-21.
Footnote 24:
In three cases in which these deposits were found in contact with the
olfactory nerve, the patients had suffered much for a considerable
time, previous to death, from the sensation of unpleasant odours.
Footnote 25:
See cases illustrative of the Pathology of the Brain, by _R. Powell_,
M.D. Med. Trans. vol. 5. _Dr. Martinet_ describes a well marked case
of _Arachnitis_, complicated with fracture of the cranium. Bulletin de
l’Athenée de Med. de Paris.
Footnote 26:
_Baillie’s_ Morbid Anatomy.
Footnote 27:
The reader will also be very much amused by the account of the
dissection of _Charles_ II, and of the appearances which supported the
idea of his having died from poison. _Burnett’s Hist. of his own
times_, vol. ii, p. 230.
Footnote 28:
The case of _John Lees_, which formed the subject of the Oldham
inquest, appears in this respect to have borne some analogy; see also
the case related by _Baron Larey_, p. 15.
Footnote 29:
_Surgical Observat._
Footnote 30:
_Cobbett’s_ State Trials, vol. ii, p. 503.
Footnote 31:
We have already alluded to such a cause of suffocation, (see p. 58 and
438.) The following instructive case has been transmitted to us by
_Mr. Alcock_, whose zeal and acumen in anatomical researches are as
honourable to himself, as they are useful to the profession of which
he is so active a member.
“_Wm. Thompson_, æt. 36, formerly a soldier of the 27th regt. late a
watchman of St. James’s parish, had had three fits, stated to be
epileptic, within the last two years.
“Dec. 9th 1821, he was attacked by another fit, having the usual
character of epilepsy, which terminated fatally. In the morning he
appeared in his usual health, and had remarked to his wife that “he
was as well as ever he had been in his life.” He ate largely of pork,
with sage and onions, for dinner, about one o’clock. About five he was
rather unwell, and a little before six “went off in a fit.” He had
frequent convulsions “as rapidly as he could have them,” (his wife’s
statement) from the time he was taken ill till he died. There was no
sickness—no vomiting. He had lain upon his back for some time; he was
turned upon his side and suddenly expired. He never spoke from the
time of the attack till his death, A week previously he had complained
of head-ache, but not on the day of his illness. He was extremely
subject to flatulence. He did not cough at any time during the attack
which immediately preceded his death. For some years past he had been
unable to lie upon his right side.
“He was largely bled from the arm; cold applications were freely
applied to the head, with some temporary mitigation of the
convulsions. Some medicines were directed, but as the state of
insensibility in which he was, precluded swallowing, it may be doubted
whether they ever reached his stomach. His pulse was full and
frequent, but he was too unsteady to allow it to be counted. The
pupils were contracted to points; but on the recurrence of the
convulsions became widely dilated. After the cold affusion over the
head, and as the convulsions abated, they gradually contracted.
“The examination of the morbid appearances was made, four days after
death, by _Mr. Alcock_, in the presence of _Mr. C. T. Haden_, surgeon,
and others.
“_External appearances_, those of a very athletic, muscular subject.
No external appearance of injury. Slight shew of putrefaction on the
abdominal parietes.
“_The head_ was carefully and minutely examined. The vessels of the
brain were distended with blood, but in no degree sufficient to
explain the cause of death. The brain was firm and natural in every
part. The choroid plexus of the right side was studded with a few
small hydatid-like vesicles. The spinal marrow, as far as could be
seen through the foramen magnum, was free from disease. The ventricles
contained about two fluid drachms of liquid, and about the same
quantity was found in the base of the skull when the brain was
removed.
“_The chest._ The right lung adhered universally, but its structure
was natural; the left lung was somewhat gorged with blood; no
preternatural adhesions. About from four to eight ounces of bloody
fluid in the left cavity of the chest. The heart was loaded with fat,
and had on the outer surface of the right ventricle a patch of lymph
like a thin layer of coagulated albumen. Several smaller spots of the
same kind on the right auricle; but none of them penetrated into the
substance.
“_Abdomen._ The liver adhered in numerous parts, and very extensively
to the peritoneum. The stomach was enormously large and distended with
food and air; the small intestines were also somewhat more distended
than usual, but exhibited no appearance of disease sufficient to
account for the death of the patient. The spleen was small and
unhealthy, having several white patches on its surface.
“Thus far no satisfactory explanation of the cause of death appeared.
And here, according to the usual mode of conducting examinations, the
investigation would have terminated, but I consider it essential in
every case to examine the air-passages. On examining the bronchiæ of
the left side, the principal ramifications and some of the smaller
were filled with a pultaceous substance of a dirty greenish hue and
heterogenous texture, resembling food which had undergone some degree
of digestion: it completely filled the left bronchia. The right
bronchia and its ramifications were quite filled with similar matter,
and the trachea was also completely filled at the lower part, so that
breathing in such a state must have been impossible. That the matter
filling up the air passages consisted of chyme from the stomach became
evident, from its perfect similarity to that which remained in the
stomach.”
Since the receipt of the above interesting communication from _Mr.
Alcock_, we have found upon an inquiry amongst the carcase butchers,
that the presence of food in the pulmonary passages is by no means a
rare occurrence in those animals that have been struck on the head.
Footnote 32:
Morbid Anatomy, p. 37.—Med. Observ. vol. iv, p. 380—Memoirs of Med.
Soc. vol. i, p. 228.
Footnote 33:
Medico-Chirurg. Trans, vol. i; and the present work vol. ii, p. 30.
Footnote 34:
Feb. 1822, vol. xvii.
Footnote 35:
Vol. iii, p. 577.
Footnote 36:
See also “Cases of Ruptured Spleen and Liver from external injury,” by
_Dr. Chisholm_. Edinb. Med. and Surg. Journ. for July, 1811.
Footnote 37:
See the case of _Bartholomew Quain_, vol. ii, p. 123.
In the year 1801 _Richard Starke_ was executed at Newgate for the
wilful murder of _Mary_, his wife, in Clement’s Lane, by dragging her
on the floor by the hair of her head, and inhumanly kicking her. _Mr.
Crowther_ and _Mr. Andre_, surgeons, were of opinion that she died in
consequence of the rupture of the spleen, which appeared to them to
have been occasioned by bruises.
Footnote 38:
_Lieutaud._ T. I, p. 319 and 333.
Footnote 39:
Principles of Midwifery, edit. 4, page 451.
Footnote 40:
See a paper in the Philosophical Transactions, no. 309, p. 2387,
entitled “Balls of hair taken from the uterus and ovaria of several
women, by _Mr. James Yonge_.”
Footnote 41:
See our Physiological History of Conception and Utero-gestation, vol.
i, p. 230.—_Dr. Blundell’s_ Memoir, entitled “Experiments on a few
controverted points respecting the Physiology of Generation.”
_Medico-Chirurg. Trans._ _vol._ x, _p._ 245.
Footnote 42:
In the year 1788, _Blumenbach_ shewed that _corpora lutea_ may exist
in the ovaries of virgins (Comment. Soc. Reg. Scient. Gotting. vol.
ix.) _Cuvier_ has also noticed the appearance of cicatrices in the
ovaria of women who had never known any intercourse with the male.
Footnote 43:
Wilson on the Bones and Joints, p. 110.
Footnote 44:
It was the custom of the ancients to exhibit in the same sculpture in
Bas relief, men of very different dimensions, of making kings and
conquerors gigantic in stature, while their subjects and vassals were
represented as only a fourth or fifth part of their size. This must
have given origin to the fable of Giants and Pigmies; while a belief
in such tales has been supported by the discovery of gigantic bones,
which have through ignorance been received as human remains, but
which, as SIR HANS SLOANE in an interesting paper in the PHILOSOPHICAL
TRANSACTIONS (No. 404, p. 497,) very truly observes, are nothing more
than the bones and teeth of Elephants or Whales: thus, says he, the
fore fin of a whale, stripped of its web and skin, was not long since
publicly shewn for the bones of a giant’s hand. The same explanation
applies to those pretended skeletons of Giants of 12, 20, and 30
cubits high, as mentioned by _Philostratus_. The skeleton of 46 cubits
which, according to Pliny (_Hist. Nat._ _Lib._ vii. _c._ 16,) was
found in the cavity of a mountain in Crete, upon its overthrow by an
earthquake. The skeleton 60 cubits high which _Strabo_ (Lib. 17) says
was found near Tangis (Tangier) in Mauritania, and supposed to be that
of Antæus. To which list maybe added the skeleton of Asterius, son of
Anactes—10 cubits. That of Orestes, dug up by special command of the
Oracle, 7 cubits, &c. &c.
Footnote 45:
In a lecture on “Mathematical Beauty,” delivered by _Professor Camper_
in the Academy of Drawing at Amsterdam, this celebrated physiologist
has shewn that in tracing the figures of the body of the male and
female in two imaginary ellipses of equal dimensions, a portion of the
pelvis of the latter would be out of the ellipse, and her shoulders
within it; whereas in the former, the shoulders would project beyond
the limits of the figure, and his pelvis, on the contrary, would be
entirely enclosed within it.
Footnote 46:
_Sir M. Hale_ (_1 P. C._ 433) says, it cannot be legally known whether
it were killed or not; and adds, “so it is if after such child were
born alive and _baptized_, and after dies of the stroke given to the
mother, this is not homicide.” It is difficult to conceive why the
term _baptized_ was introduced in this dictum: for whether it were the
child of Jew, Turk, or Anabaptist, it is equally entitled to the
protection of the law.
Footnote 47:
The Roman Emperor, at a congress held at Constantinople in 692,
ordained, that it should be punished with the same rigour as homicide;
and severe statutes were enacted against it by _Antonine_, as early as
the 161st year of the christian era.
Footnote 48:
_Exodus_, _c._ xxi. A case illustrative of this law occurred at
Stafford in the year 1811; when a man was executed for the murder of
his wife, whose death he occasioned by inducing abortion, through
extreme violence, as by elbowing her in bed, rolling over her, &c.
Footnote 49:
By the _Stat._ 21 _Jac._ _c._ 27. If a woman delivered of issue, which
being born alive would be a bastard, endeavour by burying, drowning,
&c. by herself or others, so as to conceal its death, that it may not
appear, whether born alive or not, it is _murder_, unless she prove by
one witness at least, that it was born dead. _Ba. Abr. tit. Bastard._
Footnote 50:
We are strongly inclined to believe the assertion, that where the
severity of a statute is excessive, judges, juries, and prosecutors,
enter into a league to defeat its rigor.
Footnote 51:
The law of Scotland was yet more severe; the mere fact of concealing
the pregnancy, whether the death of the child were proved or not, was
a capital felony. See 1 _Hume’s Com._ 287, and 1 _Burnet’s Crim. Law_,
tit. _Child-murder_, and many cases there cited. The child of
_Margaret Dickson_, to whose case we have alluded, _vol._ ii, _p._ 91,
was legitimate.
Footnote 52:
III. “And whereas doubts have been entertained respecting the true
sense and meaning of a certain Act of Parliament made in England, in
the twenty-first year of the reign of his late Majesty King _James_
the first, intituled, _an act to prevent the destroying and murthering
of bastard children_, and also of a certain Act of Parliament, made in
Ireland in the sixth year of the reign of her late Majesty Queen
_Anne_, intituled, _an act to prevent the destroying and murthering of
bastard children_; and the same have been found in sundry cases,
difficult and inconvenient to be put in practice;” for remedy whereof,
be it enacted by the authority aforesaid, that, from and after the
first day of July in the year of our Lord one thousand eight hundred
and three, the said two several acts, and every thing therein
contained, shall be, and the same are hereby repealed; and that, from
and after the said first day of July, in the said year of our Lord one
thousand eight hundred and three, the trials in England and Ireland
respectively of women charged with the murder of any issue of their
bodies, male or female, which being born alive would by law be
bastard, shall proceed and be governed by such and the like rules of
evidence and of presumption as are by law used and allowed to take
place in respect to other trials for murder, and as if the said two
several acts had never been made.
IV. Provided always, and be it enacted, that it shall and may be
lawful for the jury by whose verdict any prisoner charged with such
murder as aforesaid shall be acquitted, to find, in case it shall so
appear in evidence, that the prisoner was delivered of issue of her
body, male or female, which, if born alive, would have been bastard,
and that she did, by secret burying, or otherwise, endeavour to
conceal the birth thereof, and thereupon it shall be lawful for the
court before which such prisoner shall have been tried, to adjudge
that the prisoner shall be committed to the common gaol, or house of
correction, for any time not exceeding two years.
Footnote 53:
The act provides that if any person or persons shall wilfully and
maliciously administer to, or cause to be administered to or taken by
any woman any medicines, drug or other substance or thing whatsoever,
or _shall use or employ or cause or procure to be used or employed,
any instrument or other means whatsoever_ with intent thereby to cause
or procure the miscarriage of any woman not being or not being proved
to be quick with child at the time of administering such things, or
using such means, that then and in every such case, the person or
persons so offending, their counsellors, aiders, and abettors, knowing
of and privy to such offence, shall be and are hereby declared to be
guilty of felony, and shall be liable to be fined, imprisoned, set in
and upon the pillory, publicly or privately whipped, or to suffer one
or more of the said punishments, or to be transported beyond the seas
for any term not exceeding fourteen years, at the discretion of the
court before which such offender shall be tried and convicted.
Footnote 54:
At the Chelmsford Assizes. Aug 1820, _Robin Collins_ was indicted for
administering steel filings and penny-royal water to a woman, with the
intent to procure abortion. _Mr. Baron Wood_ told the jury, in point
of law, that if they were satisfied that the prisoner had administered
the drugs with intent to procure miscarriage, though they were
incapable of producing such effect, and though the young woman had
willingly _consented_ to take them, the case was within the statute,
and they were bound to find the prisoner guilty. The jury immediately
found the prisoner guilty. The learned judge expressed himself
perfectly satisfied with the verdict, and animadverted in strong terms
on the enormity and cruelty of the prisoner’s crime; public example
required the severest visitation of punishment that the law
authorised, in order to warn others against committing a similar
crime, which unhappily was too prevalent. The sentence of the Court
was that the prisoner should be transported for the term of fourteen
years.
Footnote 55:
Whereby it is enacted that “if any person shall wilfully, maliciously
and unlawfully administer to, or cause to be administered to or taken
by any of His Majesty’s subjects, any deadly poison or other noxious
and destructive substance or thing, with intent thereby to cause and
procure the miscarriage of any woman _then being quick with child_,
the offender shall suffer death as in cases of felony without benefit
of clergy.”
Footnote 56:
By the law of most countries this crime is punished with more severity
if committed after the _quickening_ of the child, than before. The
Roman Penal Code made the same distinction. By the decretals of the
canon law (_p._ ii, _causs._ 32, _p._ ii, _c._ 8), “_Non est homicida,
quæ abortum procurat, antequam anima corporis sit infusa_.”
Footnote 57:
On this subject see “Physiological Illustrations of Utero-gestation”,
vol. i, p. 239.
Footnote 58:
_Wm. Pizzy_ and _Mary Codd_ were tried at _Bury St. Edmonds_, Aug. 11,
1808, for feloniously administering a certain noxious and destructive
substance to _Ann Cheney_, with intent to produce a miscarriage. The
trial, taken in short hand by _Wm. Notcutt_, was published at
_Ipswich_ in 1808; but we have not been able to procure a copy; we
must therefore content ourselves with observing, on the authority of
the _Med. Journ._ that the Counsel for the prisoners objected to
receiving that part of the evidence which related to _Pizzy’s_ manual
operations upon _Ann Cheney_, as not relevant to the administration of
the medicines which alone constituted the capital crime; the objection
was over-ruled by the court, and the evidence was admitted for the
purpose of proving the _intention_ with which the medicines were
administered. The examination of _Ann Cheney_ before the magistrates
was as follows:
“Saith that she is about the age of 27 years; that she has lived as
servant with _Mr. Simon Codd_, of Haughley, about 12 years last past;
that she is an unmarried woman, and was so in the month of February
1806. That in the said month of February 1806, she was delivered of a
female bastard child; that she was alone when she was delivered, but
that she called out for assistance, but no one came for some minutes;
the child was born dead; she never saw it move, or heard it make a
noise. That soon after she found herself with child, she acknowledged
it to her mistress, _Codd_, and told her who was the father of the
child. Her mistress said, if she would take that which she would get
for her, she thought she could order it better than letting any body
know it. Soon after that, she saw _Mr. Pizzy_ of Middlesham, the
farrier; she told him what was the matter with her; he then gave her
some more medicines, and told her they were to make her miscarry. They
had not that effect; that she continued to take medicines from him
during her whole remaining time of pregnancy; she sometimes received
them from her mistress, and sometimes from _Pizzy_; that her mistress
knew what they were for, because she (her mistress) had told her what
they were for; that the medicines did not answer the intended purpose;
that about a week or ten days before she was delivered, _Mr. Pizzy_
came, and upon her informing him that his medicines had not answered
the purpose, he said she must go up stairs with him, which she did;
they were alone; he laid her on the floor, on a great coat, upon her
back; she put the coat over her head, so that she could not see; she
then felt him put some instrument up into her body, which was very
cold, like iron; but she did not see it; that, in consequence, she
lost some blood, not very much nor very little—suppose about half a
pint; did not feel much pain. _Pizzy_ told her it was for the purpose
of making her miscarry. Her mistress was at home, and knew for what
purpose they went up stairs, but was not present. _Pizzy_ came again
the day before she was brought to bed. Examinant told him she had not
miscarried; he then said he must try something further; her mistress
was present, and heard this. _Pizzy_ and examinant went up stairs
again, but her mistress was not present. _Pizzy_ laid her down, as he
did before, on her back, and passed his hand three times up into her
body half way of his arm, which was naked, which gave her a great deal
of pain; and this examinant felt herself very wet, and never felt the
child move afterwards. Examinant thinks she had not gone her time by
six or seven weeks. She felt the child move after she was so first
treated by _Pizzy_, and till within a day or two before the second
time. She thinks she did not go her full time, from the treatment she
received from _Pizzy_.”
Footnote 59:
It is said that a surgeon and midwife have been since tried for this
crime before the Supreme Court of Justiciary, and sentenced to
fourteen years transportation. _Ibid._
Footnote 60:
Abortio—Abortus, formed of _ab_ from, and _orior_ to be born. Among
the ancient physicians the term _Abactus_ or _Abigeatus_, was used for
a miscarriage procured by art, or force of medicines, in
contradistinction to _Abortus_, which is natural. But the moderns
acknowledge no such distinction.
Footnote 61:
See our history of the Juniperus Sabina, vol. ii, p. 578.
Footnote 62:
It is a curious circumstance, that, although _Hippocrates_ prohibited
physicians from assisting in procuring abortion, he relates the case
of a young woman whom he had recommended to dance, and use other
violent exercise, for that purpose, in whom it produced the effect,
and without materially injuring the woman.
Footnote 63:
Amor. l. 2, eleg. 14.
Footnote 64:
Tertull. de Anima, apud oper. p. 323, ed _Rigalt_.
Footnote 65:
On the uncertainty of the signs of murder in the case of Bastard
Children. Read before the London Medical Society, and published in the
sixth volume of “Medical Observations and Inquiries.”
Footnote 66:
A dissertation on Infanticide, in its relations to Physiology and
Jurisprudence, by _W. Hutchinson_, M.D. Edit. 2, London 1821.
Footnote 67:
See our chapter on the methods of treating Asphyxia, vol. ii, p. 75.
Footnote 68:
We have no word in the English language so expressive as _viable_.
That adopted by Dr. _Gordon Smith_, _rearable_, is a very clumsy
substitute. The subject has been very fully discussed by _Professor
Capuron_, to whose most excellent work, entitled “La Medecine Legale,
relative a l’Art des Accouchemens,” we must refer the reader.
Footnote 69:
Dr. _Hutchinson_ states that the weight of the fœtus at the full term
of utero-gestation has generally been rated too high; apparently from
this having been stated from conjecture, rather than from the evidence
of the balance.
It appears from the observations of _Dr. Hunter_, made at the British
Lying-in hospital, on the bodies of several thousand new-born and
perfect children, that the weight of the smallest was about _four
pounds_; and of the largest _eleven pounds two ounces_; that of by far
the greater proportion was from _five to eight pounds_. _Dr. Clarke’s_
inquiries furnished nearly similar results; he found that the average
weight of male children was _seven pounds five ounces and seven
drachms_; and that of female, _six pounds eleven ounces and six
drachms_, (Phil. Trans. vol. lxxiv.) _Dr. Clark_, of Dublin, found it
vary from _four_ to _eleven pounds_. _Dr. Merriman_ states, in his
lectures, that he delivered one which weighed _fourteen pounds_, (it
was born dead,) and _Dr. Croft_ delivered one alive weighing _fifteen
pounds_. It is somewhat less in France than in England; of fifteen
hundred and forty-one examined by _Camus_, under circumstances similar
to the foregoing, the greatest weight was _nine pounds_, and of this
there were sixteen instances; the ordinary, from _five_ to _seven_;
and the average _six pounds and about a quarter_; there were
thirty-one instances in which it was as low as _three pounds_,
although _Baudelocque_ states that he saw several instances in which
the weight was about _ten pounds_, a few where it was _twelve_, and
one of _thirteen_. Subsequent observations on twenty thousand children
at the Hospice de la Maternité, at Paris, have shewn a few instances
where it has been _one hundred and sixty-eight ounces_, that is _ten
pounds and a half_, which has been the highest term. In Germany it
appears to be nearly the same as in France; for _Roederer_ states the
average weight to be from _five pounds_ to _six pounds and a
half_.—_Hutchinson, L. C._
Footnote 70:
We have already given a scale of the dimensions of the skeleton of the
fœtus, according to the accurate observations of _M. Beclard_, vol.
iii, p. 75.
Footnote 71:
See _Dr. Merriman_ on difficult parturition, p. 51.
Footnote 72:
_Baglivi._ Op. Omnia, p. 299.
Footnote 73:
_Margaret Dickson_, whose remarkable resuscitation after execution we
have already noticed (vol. ii, p. 91) was convicted on the evidence of
a medical person, who deposed that the lungs of the child _swam in
water_.
Footnote 74:
De. Offic. Med. de Vulner. renunciat.
Footnote 75:
Op. Patholog. Pract. t.i.
Footnote 76:
De Fallaci Pulmon, Infant. Experiment.
Footnote 77:
On the uncertainty of the signs of murder in the case of bastard
children.
Footnote 78:
Memoires de l’Academie Royale des Sciences, Année, 1769.
Footnote 79:
Anatom. Reform. p. 71.
Footnote 80:
It should be understood, adds _Dr. Hutchinson_, that these children
had never been fed before they were placed in the _turning box_ at the
hospital; which, perhaps, with the want of due warmth, &c. may have
prevented their lungs being as much dilated as those of children of
the same age, under ordinary circumstances.
Footnote 81:
Stockholm, Acad. Hand. t. xx, p. 40.
Footnote 82:
Dissert. de Docimas. Pulm. Ploucq.
Footnote 83:
This author relates the results of four hundred examinations of bodies
of children made at the Hospice de la Maternité at Paris, for the
purpose of furnishing some evidence on this subject, and the results
of them are almost as various as it was possible for them to have
been, within a certain range.
Footnote 84:
Principles of forensic medicine, p. 336.
Footnote 85:
The umbilical cord generally separates from the navel on about the
_fifth_ day, and is almost always partially detached on the _fourth_;
the ulcerated surface is commonly healed by the _eighth_ or _ninth_
day.
Footnote 86:
Principles of forensic medicine, p. 311.
Footnote 87:
See _vol._ i, _p._ 219, _tit. Supposititious Children_.
Footnote 88:
At this moment London is infested by numerous bands of infant
depredators, who in desperate hardihood, skill, perseverance, and
combination, emulate the oldest criminals; female infants are
permitted to walk the most public streets at mid-day, whose _apparent_
age might bring their criminal associates within the statute _18
Eliz._ The new vagrant act may give an useful stimulus to the police
on this point, however vexatious and impolitic it may be on others.
Footnote 89:
_Alice de Walborough_, æt. 13, was burnt for murdering her mistress.
Footnote 90:
At _Abingdon_ assizes, Feb. 23, 1629, before _Whitlock_ justice, one
_John Dean_, an infant between eight and nine years, was indicted,
arraigned, and found guilty of burning two barns in the town of
_Windsor_; and it appearing upon examination that he had malice,
revenge, craft, and cunning, he had judgment to be hanged, and was
hanged accordingly. _Note_, _1 H. P. C._ _p._ 25. At _Dorchester_
assizes, March 1794, _Elizabeth Marsh_, aged 15 years, was convicted
of the murder of _John Nevil_, her grandfather, at _Morden_, and was
executed.
Footnote 91:
_Giles East_, a boy under 17 years of age, was convicted at the
Kingston Assizes of carnally knowing a girl of 9 years of age, (stat.
_18 Eliz._) and was executed Jan. 20, 1823.
Footnote 92:
At Bury assizes 1748, _William York_, a boy of ten years of age, was
convicted before Lord Chief Justice _Willes_ for the murder of a girl
of about five years of age, and received sentence of death: but the
Chief-Justice, out of regard to the tender years of the prisoner,
respited execution, till he should have an opportunity of taking the
opinion of the rest of the judges, whether it was proper to execute
him or not, upon the special circumstances of the case, which he
reported to the judges at Serjeant’s-inn in Michaelmas term following.
The boy and girl were parish children, put under the care of a
parishioner, at whose house they were lodged and maintained; on the
day the murder happened, the man of the house and his wife went out to
their work early in the morning, and left the children in bed
together; when they returned from work, the girl was missing; and the
boy being asked what was become of her, answered that he had helped
her up and put on her cloaths, and that she was gone he knew not
whither. Upon this, strict search was made in the ditches and pools of
water near the house, from an apprehension that the child might have
fallen into the water. During this search, the man, under whose care
the children were, observed, that a heap of dung near the house had
been newly turned up; and upon removing the upper part of the heap, he
found the body of the child about a foot’s depth under the surface,
cut and mangled in a most barbarous and horrid manner.
Upon this discovery, the boy, who was the only person capable of
committing the fact that was left at home with the child, was charged
with the fact, which he stiffly denied.
When the coroner’s jury met, the boy was again charged, but persisted
still to deny the fact. At length, being closely interrogated, he fell
to crying, and said he would tell the whole truth. He then said, that
the child had been used to foul herself in bed; that she did so that
morning (which was not true, for the bed was searched and found to be
clean); that thereupon he took her out of the bed, and carried her to
the dung heap; and with a large knife, which he found about the house,
cut her in the manner the body appeared to be mangled, and buried her
in the dung heap; placing the dung and straw that was bloody under the
body, and covering it up with what was clean; and having so done, he
got water and washed himself as clean as he could.
The boy was the next morning carried before a neighbouring justice of
the peace, before whom he repeated his confession, with all the
circumstances he had related to the coroner and his jury. The justice
of the peace very prudently deferred proceeding to a commitment, until
the boy should have an opportunity of recollecting himself.
Accordingly he warned him of the danger he was in if he should be
thought guilty of the fact he stood charged with, and admonished him
not to wrong himself: and then ordered him into a room, where none of
the crowd that attended should have access to him.
When the boy had been some hours in this room, where victuals and
drink were provided for him, he was brought a second time before the
justice, and then he repeated his former confession: upon which he was
committed to gaol.
On the trial evidence was given of the declarations before-mentioned
to have been made before the coroner and his jury, and before the
justice of the peace; and of many declarations to the same purpose
which the boy made to other people after he came to gaol, and even
down to the day of his trial; for he constantly told the same story in
substance, commonly adding that the devil put him upon committing the
fact. Upon this evidence, with some other circumstances tending to
corroborate the confessions, he was convicted.
Upon this report of the Chief-Justice, the judges, having taken time
to consider it, unanimously agreed,
1st, That the declarations stated in the report were evidence proper
to be left to the jury.
2dly, That supposing the boy to have been guilty of this fact, there
are so many circumstances stated in the report, which are undoubtedly
tokens of what my Lord Chief-Justice _Hale_ somewhere calleth a
_mischievous discretion_, that he is certainly a proper subject for
capital punishment, and ought to suffer; for it would be of very
dangerous consequence to have it thought, that children may commit
such atrocious crimes with impunity.
There are many crimes of the most heinous nature, such as in the
present case the murder of young children, poisoning parents or
masters, burning houses, _&c._ which children are very capable of
committing; and which they may in some circumstances be under strong
temptations to commit; and therefore, though the taking away the life
of a boy of ten years old may savour of cruelty, yet as the example of
this boy’s punishment may be a means of deterring other children from
the like offences; and as the sparing this boy, _merely on account of
his age_, will probably have a quite contrary tendency, in justice to
the public, the law ought to take its course; unless there remaineth
any doubt touching his guilt.
In this general principle all the judges concurred: but two or three
of them, out of great tenderness and caution, advised the
Chief-Justice to send another reprieve for the prisoner; suggesting
that it might possibly appear on farther inquiry, that the boy had
taken this matter upon himself at the instigation of some person or
other, who hoped by this artifice to screen the real offender from
justice.
Accordingly the Chief-Justice did grant one or two more reprieves; and
desired the justice of the peace who took the boy’s examination, and
also some other persons in whose prudence he could confide, to make
the strictest inquiry they could into the affair, and report to him.
At length he, receiving no farther light, determined to send no more
reprieves, and to leave the prisoner to the justice of the law at the
expiration of the last: but, before the expiration of that reprieve,
execution was respited till farther order, by warrant from one of the
Secretaries of State: and at the Summer assizes 1757, he had the
benefit of his Majesty’s pardon, upon condition of his entering
immediately into the sea-service.
Footnote 93:
There is a precedent in the register, _fol._ 309, _b_, of a pardon
granted to an infant within the age of seven years, who was indicted
for homicide: in this case the jury found, that he did the fact before
he was seven years old. _1 H. P. C._ _note_, _p._ 27.
Footnote 94:
See preceding _Note_.
Footnote 95:
Vide ante, vol. i, tit. Ideots and Lunatics.
Footnote 96:
If the _fact_ be found, he must be committed under the statutes 48 &
_49 Geo._ 3, for safe custody. See vol. i, p. 306.
Footnote 97:
“By the common law, if it be doubtful whether a criminal, who at his
trial is in appearance a lunatic, be such in truth or not, it shall be
tried by an inquest of office to be returned by the sheriff of the
county wherein the court sits, and if it be found by them that the
party only feigns himself mad, and he still refuse to answer, he shall
be dealt with as one that stands mute.” _1 Hawk. P. C._ _p._ 2, and
authorities there cited; as to standing mute see vol. 2, _p._ 56, and
_12 Geo._ 3, _c._ 20.
Footnote 98:
For the case of _Bellingham_ executed for the murder of _Mr.
Percival_, see Appendix to _Collinson_ on Lunacy.
Footnote 99:
_Lord Ferrers_ committed the murder of his steward _Johnson_ after
drinking porter to excess. See State Trials. _John Dey_ of Dereham, in
Norfolk, after a paroxysm of drunkenness rose in the middle of the
night, and cut the throats of his father and mother, ravished the
servant maid in her sleep, and afterwards murdered her! A somewhat
analogous case was presented to us in the history of _Nicholson_, who
murdered _Mr._ and _Mrs. Bonar_ at Chiselhurst. These men were,
however, condemned and executed.
Footnote 100:
Here again the law of the land is at variance with what we conceive to
be the law of Nature; and it is at variance with itself, for it is a
strange anomaly that by the law of real property, an infant _in ventre
sa mere_ may take an estate from the moment of its conception, and yet
be hanged four months afterwards for the crime of its mother.
Footnote 101:
This is another instance in which the question of superfœtation may
arise, for a woman, according to that doctrine, may be delivered of
one child, and at the same time be pregnant of another.
Footnote 102:
_Sir Mathew Hale_ says this case did occur at Aylesbury.
Footnote 103:
For the Scotch law on this subject see _Burnett_’s Crim. Law, 595.
Footnote 104:
Cases of mistaken identity have occurred more frequently than persons
unacquainted with the subject could suppose. We shall relate a few
instances. At the Old Bailey sessions, for September 1822, before the
Common Serjeant and Middlesex Jury, _Joseph Redman_ was indicted for
assaulting _William Brown_, on the King’s highway, and taking from his
person a gold watch, &c. his property. Prosecutor stated, on
cross-examination, that he knew a man of the name of _Greenwood_, so
much like the prisoner, with his hat on, that he should hardly know
one from the other. _Greenwood_ was in custody, and appeared at the
bar, when the similarity between them struck every body with
astonishment. The prisoner, _Redman_, proved an _alibi_, and the jury
returned a verdict of _not guilty_. We have frequently in the
preceding parts of our work alluded to the case of _Richard Coleman_,
a brewer’s clerk, who was indicted at the assizes held at Kingston, in
Surry, in March 1749, for the rape and murder of _Sarah Green_ on the
23d of July preceding, when he was capitally convicted, and executed
on Kennington Common, on the 12th of April 1749. In this case,
_Coleman_ was positively sworn to by _Sarah Green_, just before her
death, as being one of the assailants. Two years after the execution
of this unfortunate man, it was discovered that _James Welch_, _Thomas
Jones_, and _John Nicholls_, were the persons who had treated _Sarah
Green_ in the inhuman manner which had occasioned her death. _John
Nicholls_ was admitted King’s evidence, and _Welch_ and _Jones_ were
accordingly convicted and executed. Another case in which the identity
of a person was erroneously sworn to, was that of _Mr. James_, a
tailor, who was robbed on the Dulwich road, by the notorious gang of
highwaymen that infested the environs of London, and was headed by a
person named _Cooper_, who, after a life of crime, suffered death for
the murder of _Saxby_, near Dulwich. In this case _Mr. James_ swore
positively to two soldiers in the Guards, who were accordingly tried
for the offence, but, fortunately, acquitted. A short time after this
event the same gang robbed one _Jackson_, a farmer, in a lane near
Croydon, for which robbery two farriers, named _Skelton_ and _Killet_,
were apprehended, and being tried at the ensuing assizes for Surry,
the latter was acquitted, but the former was convicted on the positive
oath of the person robbed, and, although innocent, suffered death.
_Martin Clinch_, bookseller, and _James Mackley_, printer, were tried
at the Old Bailey, in 1797, before _Mr. Justice Grose_, for the wilful
murder of _Syder Fryer, Esq._ at the back of Islington workhouse, and
were convicted and executed. On this occasion the identity of the
prisoners was positively sworn to by _Miss Ann Fryer_, who was in
company with her cousin, the deceased, at the time of the robbery and
murder. Some years afterwards _Burton Wood_, who was executed on
Kennington common, and _Timms_, who suffered a similar fate at
Reading, severally confessed at the gallows the commission of the
deed, for which _Clinch_ and _Mackley_ had innocently suffered. To the
above interesting cases we may add that of _Robert_ and _Daniel
Perreau_ (twin brothers,) who were tried in 1775, and executed for a
forgery upon _Mr. Adair_. These persons so nearly resembled each other
that _Mr. Watson_, a money scrivener, who had drawn eight bonds, by
order of one or other of the brothers, hesitated to fix on either, in
consequence of their great personal resemblance; upon being pressed,
however, to make a positive declaration, he at length fixed upon
_Daniel_. The name of these unfortunate men is familiar to the public,
from the well known exclamation of our late king, upon being asked to
pardon _Dr. Dodd_, “if I _save Dodd_, I shall have _murdered_ the
_Perreaus_.”
Upon the subject of personal identity, a curious question has
presented itself for discussion, which requires some notice on this
occasion—_the degree of light which may be necessary to enable an
observer to distinguish the features, so that the person maybe
hereafter identified_? In a case which occurred in France in 1809, of
a person shot in the night, it was stated that the flash of the pistol
enabled the witness to identify the features of the assassin. The
possibility of the statement was referred to the physical class of the
Institute, who reported against it. Still, however, _M. Foderé_, who
relates the circumstances, is inclined to believe that, if the persons
be at a small distance, and the night be dark, such an event is by no
means impossible. (_Med. Leg._ t. i, p. 28.) The following English
case may be here introduced in illustration of the question. “_John
Haines_ was indicted, _January 12, 1799_, for maliciously and
feloniously shooting at _H. Edwards_, _T. Jones_, and _T. Dowson_,
Bow-street officers, on the highway. _Edwards_ deposed that, in
consequence of several robberies having been committed near Hounslow,
he, together with _Jones_ and _Dowson_, were employed to scour that
neighbourhood; and that they accordingly set off in a post-chaise on
the evening of Saturday, November 10th, when they were attacked near
Bedfont by two persons on horseback, one of whom stationed himself at
the head of the horses, while the other went to the side of the
chaise. The night was dark, but _from the flash of the pistols_ he
could distinctly see that it was a dark-brown horse, between 13 and 14
hands high, of a very remarkable shape, having a square head, and very
thick shoulders; and, altogether such that he could pick him out of
fifty horses; he had seen the horse since at _Mr. Kendall’s_ stables,
in Long Acre. He also perceived, _by the same flash of light_, that
the person at the side-glass had on a rough-shag, brown great coat.”
Writers on forensic medicine have enumerated the various
circumstances, by which the countenance of an individual may be so
changed, as to defeat every attempt to identify him. _Foderé_ mentions
the following, _age; loss, or acquisition of fat; change in the colour
of the eyes or hair; the effects of climate, diet, diseases, and
passions of the mind_. These may also be metamorphosed by art. The
influence of mental anxiety in changing the countenance is universally
acknowledged—
Danger, long travel, want, or woe,
Soon change the form that best we know;
For deadly fear can time outgo,
And blaunch at once the hair;
Hard toil can roughen form and face,
And want can quench the eye’s bright grace,
Nor does old age a wrinkle trace
More deeply than despair.
_Marmion, Canto I._
Footnote 105:
Or _Guillot’s_ daughter, so named from a physician of the name of
Guillot, its inventor; it is singular, that a somewhat similar engine,
which is or was preserved in the Tower of London, was called the
Maiden in Scotland, and in England the Earl of Exeter’s daughter. By
the same figure, the Gunner’s daughter is the carriage to which a
sailor is lashed for punishment.
Footnote 106:
In this opinion we are further confirmed by the debate in the House of
Commons, March 1823, on the case of Colonel _Allen_.
Footnote 107:
We have heard of Martinets of the old school who have reprimanded
their surgeons for such interference; we hope the instances are rare.
Footnote 108:
No person ought to be entrusted with the execution of any sentence,
who has been personally offended by the crime committed; for this
reason the commanding officer of a regiment, who has a direct personal
interest in the preservation of its discipline, and therefore may
entertain angry feelings towards offenders, is not the most proper
person to superintend executions.
Footnote 109:
This species of defence was set up in the case of _M‘Quirk_, who was
pardoned for the murder of _George Clarke_ at a contested election,
for Middlesex, (_see Foote’s_ Remarks.) We have again to report that
precedents ought not to be drawn from times of turbulence or political
dissention.
Footnote 110:
See _Apoth. Comp._ v. _Warburton_, _3 Barn. & Ald._ 46; _Apoth. Comp._
v. _Roby_, K. B. Feb. 28, 1822; _Apoth. Comp._ v. _Barstow_, York
assizes Aug. 1822.
Footnote 111:
Skinner 568. 4 Inst. 251. 2 Brownl. 255, 256, &c. 1 Ld. Raym. 454.
Footnote 112:
2 Brownl. 256, 260.
Footnote 113:
14 & 15 H. 8. cap. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physicians 3. 2
Bulst. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486.
Footnote 114:
1 Mar. c. 9. Rastal’s Physicians 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cr. Jac. 121. 4
Inst. 251. 2 Brownl. 257, 262, 265, 266.
Footnote 115:
2 Brownl. 261, 262.
Footnote 116:
14 & 15 H. 8. cap. 5.
Footnote 117:
11 Co. 59. a. Co. Lit. 36. a. 2 Inst. 81. Hard. 305.
Footnote 118:
Rastal. Physician 1.
Footnote 119:
14 & 15 H. 8. c. 5. 1 Roll. 598. 4 Inst. 251. Rastal Physician 3. 2
Bulstr. 185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1
Jones 261. Cr. Jac. 121, 159, 160. Cr. Car. 256. Palm. 486. Cart. 115.
6 Mod. 125.
Footnote 120:
1 Mar. c. 9. Rastal Physician 7. Lit. Rep. 169, 172, 173, 212, 213,
215, 248, 249, 350, 351. 1 Jones 263. Cr. Car. 257. Cro. Jac. 121. 4
Inst. 251. 2 Brownl. 357, 262, 265, 266. Cart. 115.
Footnote 121:
2 Brownl. 264.
Footnote 122:
2 Brownl. 264.
Footnote 123:
2 Brownl. 264.
Footnote 124:
2 Brownl. 264.
Footnote 125:
2 Brownl. 258.
Footnote 126:
2 Brownl. 264.
Footnote 127:
2 Brownl. 263.
Footnote 128:
2 Brownl. 258.
Footnote 129:
Gobd. 418. 2 Roll. Rep. 356. Wing. Max. 239.
Footnote 130:
2 Co. 55. a. 3 Co. 59. b. Gobd. 324. Co. Lit. 381. 5 Co. 99. a.
Footnote 131:
Wing. Max. 239.
Footnote 132:
Wing. Max. 239.
Footnote 133:
2 Brownl. 264. Cart. 115.
Footnote 134:
2 Brownl. 264.
Footnote 135:
Co. Lit. 141. a. Hob. 87. Bridg. 11. 2 Brownl. 266. Dyer 220. pl. 14.
Footnote 136:
Co. Lit. 141. a.
Footnote 137:
7 Co. 14. a. Calvin’s case. Hob. 87. 2 Brownl. 198, 265. Hard. 140.
Footnote 138:
8 E. 3. 30. b.
Footnote 139:
2 Inst. 401, 402.
Footnote 140:
2 Brownl. 265. 2 Inst. 402. F. N. B. 209. f.
Footnote 141:
2 Brownl. 265. Vet. N. B. 138. b. 2 Inst. 442.
Footnote 142:
2 Inst. 580, 581, 582, &c. Skinner 464.
Footnote 143:
2 Inst. 588. 2 Brownl. 198, 265.
Footnote 144:
2 Brownl. 265. 2 Inst. 587.
Footnote 145:
Dy. 313. pl. 91. 1 Co. 47. a. Dav. 2. a. Co. Lit. 1. b. Cro. Car. 82,
83. 2 Roll. Rep. 246, 247. 1 Jones 234. Lit. Rep. 43.
Footnote 146:
1 And. 45. 3 Leon. 58. 4 Leon, 40, 41.
Footnote 147:
4 Co. 43 a.
Footnote 148:
2 Ventr. 170. 4 Co. 43. a. 5 Co. 61. a. 11 Co. 59. b. 1 Roll. Rep. 95.
Cawly 78. Noy 82. Bridgm. 122. Cro. Jac. 481. Wing. Max. 695.
Footnote 149:
Postea 154. b. Raymond 330. Hawkes’s Max. 21. Styles 391.
Footnote 150:
Cro. El. 208. 2 Leon. 47. Owen 84, 85. 1 And. 245. 6 Co. 64. b. 3
Bulstr. 66, 185. 2 Roll. Rep. 276. Winch. 92. Lane 69. Lit. Rep. 64,
67, 289. Styles 391.
Footnote 151:
Wing. Max. 67. Lit. Rep. 66.
Footnote 152:
Lit. Rep. 66. Wing. Max. 67. Styles 78.
Footnote 153:
Cart. 120, 121.
Footnote 154:
Postea 121. a.
Footnote 155:
2 Inst. 379, 380. W. 2. c. 11. Plowd. 17. b. Rast. Account 2.
Footnote 156:
Postea 120. b. 2 Brownl. 266. 2 Inst. 380. 2 Bulstr. 139. Fitz. Barr.
44. Br. Account 6. Br. Det. 16. Br. Execution 135. Br. Faux
Imprisonment 32.
Footnote 157:
2 Brownl. 266. 15 R. 2. c. 2. 8 H. 6. c. 9. 6 Mod. 125.
Footnote 158:
Antes 60. b. 41. a. 8 Co. 41. 11 Co. 43. b. F. N. B. 73. d.
Footnote 159:
Antes fo. 38. b. 41. a. 60. b. F. N. B. 73. d. 10 Co. 103. a. Rep. Q.
A. 146.
Footnote 160:
2 Brownl. 257, 262, 265, 266. Rast Phys. 7. Lit. Rep. 169, 172, 173,
212, 213, 248, 249, 350, 331. Cr. Jac. 121. Cr. Car. 257. 1 Jones 263.
Car. 115. 4 Inst. 251.
Footnote 161:
14 & 15 H. 8. cap. 5. Roll. 598, 4 Inst. 251. Rast. Phys. 3. 2 Bulstr.
185. Lit. Rep. 168, 169, 172, 212, 215, 246, 247, 248, 249. 1 Jones
261. Cro. Jac. 121, 159, 160. Cro. Car. 256. Palm. 486. Cart. 115. 8
Co. 133. b. 1 Lev. 195.
Footnote 162:
Cro. Jac. 133. Doct. pl. 70, 325. Lit. Rep. 172. Moor 464. 1 Sid. 336.
Dyer 39. pl. 62. Fitzgib. 250.
Footnote 163:
Cr. Jac. 133. Cr. Car. 5. Mo. 464. Postea 133. b. 9 Co. 110. b. Doct.
pl. 70, 325. Palm. 287. Lit. Rep. 172, 252. 2 Bulstr. 94. Antes 93. a.
1 Sid. 336.
Footnote 164:
7 Co. 25. a. Dyer 15. pl. 78. Cr. Car. 209. Co. Lit. 303. b. 6 Mod.
119.
Footnote 165:
Hob. 199. Hard. 38.
Footnote 166:
Styles 354.
Footnote 167:
3 Co. 52. b.
Footnote 168:
3 Co. 52. b. Cro. El. 62. 1 Leon. 242.
Footnote 169:
Antea 119. b. 2 Brownl. 266. 2 Inst. 380. Bar. 44. Br. Account 6. Br.
Det. 16. Br. Exec. 135. Br. Faux Imprisonment 32. 2 Bulstr. 139. 6
Mod. 125.
Footnote 170:
2 Brownl. 266. Hardr. 482.
Footnote 171:
Antea 119. b.
Footnote 172:
13 El. cap. 7. 1 Jac. cap. 15.
Footnote 173:
4 Inst. 277 & 278.
Footnote 174:
15 R. 2. c. 2. 8 H. 6. c. 9.
Footnote 175:
Dr. _Stanger_ had before made an unsuccessful application to this
Court. He had obtained a rule calling on the president and fellows of
the college to shew cause why a mandamus should not issue “commanding
them to admit him to examination for admission into the class or order
of candidates for election into the society or fellowship of the said
college.” But as Dr. _Stanger_ had presented himself to the _comitia
minora_ to be examined, which court is constituted by one of the
bye-laws with power only to examine candidates of a certain
description within which Dr. _Stanger_ did not come, this Court in
_Easter_ term 1796 discharged the rule for the mandamus; saying that
it did not appear that Dr. _Stanger_ had a right to be examined by the
_comitia minora_; but that if he had any title as being one of the
_homines facultatis_ under the charter, he should apply to the body at
large. The Court also intimated at that time a strong opinion that the
bye-laws were reasonable and valid.
Footnote 176:
_V._ 1 _Salk._ 193 S. C.
Footnote 177:
_N. B._ Mr. _Nourse_ was in fact a very good Scholar.
Footnote 178:
2 _Wils._ 359.
Footnote 179:
In the close of the first book of _Paulus Zacchias’s famous Quæstiones
Medicolegales_, there is a full discussion of the point of filiation,
as between two husbands, where a woman soon after the death of her
first husband marries a second. The question is raised in these words.
“_Filius mulieris, quæ illico ab obitu conjugis alteri nupsit, et
novem decemve mensium spatio peperit; cujusdam præsumi debeat._” See
Paul. Zacch. lib. 1. tit. 5 _quæstio ultima_. The same point is
investigated in the learned treatise by Alphonsus a Caranza, De Partu
Naturali et Legitimo. See cap. 26. s. 71. The first book of Paulus
Zacchias, who was a physician at Rome, first came out in 1621. The
tract by Alphonsus a Caranza was first published about five years
afterwards.
Footnote 180:
The book here cited is a collection of adjudications in the supreme
court of Friesland. The author was _Johannes a Sande_, who was himself
a senator of that court. An improved edition of the book came out in
1656. The particular case above cited was adjudged 27th October, 1617.
What increases the latitude of the decision for the legitimacy is,
that the husband was for some time a valetudinarian, and for 14 days
before his death confined to his bed. The book being probably rare
amongst English lawyers, and the arguments in the case comprising very
ancient and curious research in a moderate compass on the _ultimum
tempus pariendi_ for women, the whole of Sande’s report of the case
will be given in a note at the end of the present article.
Footnote 181:
_27. Octobris. Anno 1634._
Footnote 182:
See the case of _Carrascola_, the Neapolitan Admiral.
Footnote 183:
For a curious argument on this case see one of the subsequent
pamphlets in Howell.
Transcriber’s Note
This book uses inconsistent spelling and hyphenation, which were
retained in the ebook version. Many typographical errors in Latin and
French sections were left as printed. Ditto marks and dashes used to
represent repeated text have been replaced with the text that they
represent. Some corrections have been made to the text, including
adapting the spelling in the table of contents and Index to match the
main text, and normalizing punctuation.
Page numbering is restarted in the appendix so to page numbers in the
appendix have been prefixed with a_.
Further corrections are noted below:
p. 17: from having being intoxicated -> from having been intoxicated
Footnote 8: Feb. 7, 16S3 -> Feb. 7, 1683
p. 30: to solve this problemn without -> to solve this problem without
p. 35: our chaprer on rape -> our chapter on rape
p. 50: be too frequently, or too forcible urged -> be too frequently, or
too forcibly urged
p. 84: Alhough a child -> Although a child
Footnote 48: this law occured at Stafford -> this law occurred at
Stafford
Footnote 54: physicians from assissting in procuring -> physicians from
assisting in procuring
p. 96: will be very liable so endanger the life -> will be very liable
to endanger the life
p. 98: evidence of the orensic physician -> evidence of the forensic
physician
p. 156: Cave’e case -> Cave’s case
p. 172: earliest and lastest periods of -> earliest and latest periods
of
p. 172: indentity of, 222 -> identity of, 222
p. a_25: the aid Act expressed -> the said Act expressed
p. a_38: belonging to the said Corporaration -> belonging to the said
Corporation
p. a_59: Mystery or Profession of an Apothcary -> Mystery or Profession
of an Apothecary
p. a_62: ascertaining the skill and abililities -> ascertaining the
skill and abilities
p. a_64: Certificate of such fitness aad qualification -> Certificate of
such fitness and qualification
p. a_69: be deemed a Trespassser -> be deemed a Trespasser
p. a_70: pass against the Plantiff -> pass against the Plaintiff
p. a_74: sive aliquibus Pharmacpœiis -> sive aliquibus Pharmacopœiis
p. a_86: nominand’ & sssignand’ & successores -> nominand’ & assignand’
& successores
p. a_95: onely are to be undetstood -> onely are to be understood
p. a_98: unskilfull or temerarious practice -> unskilful or temerarious
practice
Anchor position of Footnote 111 assumed
Footnote 115 2 Brownl. 201, 202. -> 2 Brownl. 261, 262.
Anchor position of Footnote 148 assumed
p. a_137: one of the two univerties -> one of the two universities
p. a_142: means of constituing a -> means of constituting a
p. a_144: but it sufficient to say -> but it is sufficient to say
p. a_146: _Mary_ instituled _An Act touching the Corporation of
Physicians in_ -> _Mary_ intituled _An Act touching the Corporation
of Physicians in_
p. a_147: was repungant to the Statute Laws -> was repugnant to the
Statute Laws
p. a_148: of their learniug and skill -> of their learning and skill
p. a_177: said secretary shall immediarely acquaint -> said secretary
shall immediately acquaint
p. a_179: To tho Secretary to the Commissioners -> To the Secretary to
the Commissioners
p. a_193: proper to remove plaintiff home -> proper to remove the
plaintiff home
p. a_204: evidence in a canse in London -> evidence in a case in London
p. a_206: Of this the prothonotory had -> Of this the prothonotary had
p. a_207: no additional experiments were necessasy -> no additional
experiments were necessary
p. a_213: on a trial of legitimancy -> on a trial of legitimacy
p. a_213: unless very extroardinary indeed -> unless very extraordinary
indeed
p. a_213: other precedents and authorites -> other precedents and
authorities
p. a_219: decimo Augusti, Anuo 1631 -> decimo Augusti, Anno 1631
p. a_222: moribus ac pndicitiâ minimè -> moribus ac pudicitiâ minimè
p. a_230: Pesident of the said College -> President of the said College
p. a_231: there was no water in the diaphragam -> there was no water in
the diaphragm
p. a_236: Where those fits owing to any -> Were those fits owing to any
p. a_238: slighty dicoloured by a little -> slightly discoloured by a
little
p. a_238: the Apotheeary produced a powder -> the Apothecary produced a
powder
p. a_242: Spirits of Vitrol and Salt -> Spirits of Vitriol and Salt
p. a_248: A. Who did you receive a message from -> Q. Who did you
receive a message from
p. a_248: Were did you meet -> Where did you meet
p. a_248: the tongue potruding beyond the fore teeth -> the tongue
protruding beyond the fore teeth
p. a_256: I connot say I did -> I cannot say I did
p. a_264: if previous to an epilepy -> if previous to an epilepsy
p. a_275: decline giving any opiniou -> decline giving any opinion
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