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.