In these cases of combustion, oxygen seems to act an important part, and

by combining with the hydrogen of oil to excite a chemical action which

may be considered the immediate cause of the phenomenon. Saw-dust, and

other vegetable matter, has been occasionally excited into flame by the

action of the concentrated mineral acids; we have been lately informed

by _Mr. Parkes_, that a fire took place some years since in his chemical

manufactory, in consequence of the leakage from a carboy of nitric acid.

Several instances are also on record of fires having been occasioned by

the sudden slacking of quicklime; _Theophrastus_ relates an instance of

a ship which was loaded in part with linen, and in part with quicklime,

having been set on fire by water that was accidentally thrown over the

latter, and that the vessel was in consequence entirely consumed. In the

_Journal de la Haute Saone_ there is an account of the burning of a

barn, one of the partitions of which being wood had caught fire from a

quantity of quicklime, intended for the repair of the premises, having

been carelessly thrown against it. In this country a similar accident

happened in the last winter at Edmonton, near London; the flood,

consequent upon a heavy fall of rain, made its way among the quicklime

in a bricklayer’s premises, which took fire and were burnt.

There still remains for notice another source of spontaneous

burning,—the ignition of _Pyrites_, and that of cinders from the

furnaces of glass-works, from exposure to air and moisture; it was in

this manner that the ship _Ajax_ was supposed to have been consumed,

from the spontaneous combustion of coal, abounding in _Pyrites_.

HUMAN COMBUSTION.

BEFORE we quit the consideration of _spontaneous combustion_, it becomes

our duty to offer a few observations upon a subject which appears to be

nearly allied to it, and which certainly belongs to medico-judicial

inquiry,—_the combustion of human beings_; the phenomenon, however, has

been erroneously designated as _spontaneous_, for in every recorded

instance, the approach of some burning body, as that of the flame of a

candle, or an ignited pipe, appears to have been necessary for its

occurrence. “It can no longer be doubted,” says _Dr. Gordon Smith_,

“that persons have retired to their chambers in the usual manner, and in

place of the individual, a few cinders, and perhaps part of his bones,

were found.” Upon this occasion we confess ourselves more sceptical; the

phenomenon is contrary to all our preconceived views, and must therefore

require more than ordinary testimony for its support, although we are

ready to admit, that upon any other less miraculous subject, evidence

even less powerful than that produced on the present occasion, would be

deemed amply sufficient. _Plouquet_, in his _Literatura Medica_,

enumerates twenty-eight cases. _Dr. Trotter_, in his Essay on

Drunkenness, adduces a considerable number of instances of persons

addicted to the immoderate use of spirits, having undergone such

combustion. In Paris, an essay written exclusively on this subject was

published by _Pierre Aimée Lair_, entitled “_Essai sur les combustions

humaines, produites par l’abus des liq. spirit: Paris 1808_;” and the

journals of various nations[607] present us with a great variety of

examples, all of which, with some slight shades of difference, appear to

have been attended with the same phenomena: a fact which we freely admit

affords internal evidence of their authenticity. On the other hand it

deserves notice, that amidst all these cases, _only one_[608] is related

where the person survived for a short time, and gave an account of the

manner in which he was _struck_ with the fire; in none of the others has

it ever been known in what way the fire commenced, or proceeded. The

following are the circumstances in which all the recorded cases so

singularly concur.

1. The persons who have suffered this species of combustion have been

long accustomed to drink spirtuous liquors.

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

3. The body has not burned _spontaneously_, but accidentally, in as much

as it required for its inflammation the contact or approach of some

burning body, or that of electric matter.

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

general escaped.

5. The fire has little injured, and sometimes not at all, those

combustible things that were in contact with the body when it was

burning.[609]

6. The combustion of these bodies has left a residue of greasy and fœtid

ashes and fat, that were unctuous, and extremely offensive and

penetrating.

Various theories have been proposed for the explanation of this singular

phenomenon; and we may here observe, that if the bodies in question were

actually found consumed, in the manner described, it is quite impossible

to suppose that they were burnt by ordinary means; nor, even admitting

that they had been rubbed over with a highly combustible substance, is

the explanation less difficult; at a period when criminals were

condemned to expiate their crimes in the flames, it is well known what a

large quantity of combustible materials was required for burning their

bodies. A baker’s boy, named _Renaud_, being several years ago condemned

to be burnt at Caen, two large cart loads of faggots were required to

consume the body; and at the end of more than ten hours some remains

were still visible. In this country the extreme incombustibility of the

human body was exemplified in the case of Mrs. King, who having been

murdered by a Foreigner, was afterwards burnt by him; but in the

execution of this plan he was engaged for several weeks, and after all

did not succeed in its completion.

2. RAPE.

RAPE is the unlawful and carnal knowledge of a woman by force and

against her will: a ravishment of the body and violent deflowering her,

which is felony by the common and statute law. _Co. Litt._ 190,

124.[610] Formerly it was the law (especially in case of appeals of

rape) in order to prevent malicious accusations, that the woman should

immediately after, “_dum recens fuerit maleficium_,” go to the next

town, and there make discovery to some credible persons of the injury

she had received: and afterwards acquaint the high constable of the

hundred, the coroners and the sheriff with the outrage. _Glanv. l._ 14.

_c._ 6: _Bract. l._ 3. _c._ 28. 1 _Hales P. C._ 632. Afterwards by

statute _Westm._ 1. 3. _Ed._ 1. _c._ 13. the time of limitation was

extended to forty days. At present there is no time of limitation fixed,

for it is punished at the suit of the king, and the maxim of law takes

place, that, _nullum tempus occurrit Regi_. The appeal of Rape (for

there were formerly several appeals beside that of murder) has been long

obsolete; see _Jac. Law Dic. tit. Appeal_, and is now abolished by the

statute 59 _Geo._ 3, _c._ 46:[611]. But though there is no time limited,

a jury will seldom give credit to a stale complaint. In Scotland it is

said the limit was twenty-four hours; the King against Colonel

_Charteris, Maclaurin’s Crim. Cases, p._ 66. 69. And in a medical point

of view it is yet more necessary that examination should be immediate,

many collateral proofs might be observed on an early enquiry, all signs

of which would be obliterated in a few hours.[612] This remark applies

as well to the supposed criminal as to the sufferer; both should in all

possible cases be subjected to immediate surgical examination; the case

related by Sir _Matthew Hale_, (_P.C._) furnishes an instance where an

innocent man might have been saved from a malicious prosecution, to the

hazard of his life, by this precaution. _Foderè_, in his work on Medical

Jurisprudence, vol. 4, p. 363, mentions two cases from _Zacchias_, where

the falsehood of an accusation was determined by a comparative

inspection of both parties. See also the same work, and vol. 4, p. 365.

370.[613]

As this is a crime of which the accusation is peculiarly easy, and the

disproof proportionably difficult, more than ordinary acuteness is

necessary for its investigation; and this can be best exercised while

the event is recent, and before one or other of the parties can have

time, deliberately, to frame the account of their injuries or innocence:

here, as in some cases of murder, to which we shall have occasion to

allude, the medical practitioner is likely to be one of the earliest

witnesses to the conduct of the accuser (if not also, of the accused),

immediately after the alleged transaction; to him therefore the Court

will look, not only for surgical, but also for general observations. The

following are among the first that will occur.

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

general character of the accuser?

2d. The same of the accused.

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

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

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

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

Time, place, and circumstances of the alleged offence.

A female infant, under twelve years of age, is in law deemed incapable

of consenting to any act, much less to her dishonor; the carnal

knowledge of such infant, whether she yield or not, is therefore

virtually a rape; but whether, if the child be above ten years of age,

it be also a felony, has been questioned: Sir _Matthew Hale_, 1 _P. C._

631, was of opinion that such profligate actions, either with or without

consent, amount to rape and felony, as well since as before the statute

of _Queen Elizabeth_; but in his Summary, the learned judge appears to

have altered his opinion. And the present practice is, that if the child

be under ten years of age, then it is felony by the statute; but if she

be above ten and under twelve, then it is no rape if she consented, but

only a misdemeanour; _Stat. West._ 1 _c._ 13, see 1 _East’s P. C._ 435.

The abominable wickedness of carnally knowing and abusing any woman

child under the age of ten years, in which case the _apparent_ consent

or non-consent is immaterial, as by reason of her tender years she is

incapable of judgment and discretion, is felony without benefit of

Clergy, 18 _Eliz. c._ 7. It is lamentable to reflect that this crime

should have been of very constant occurrence, and that it should not

unfrequently have been committed by hypocrites, who had been entrusted

with the education of their victims. In 1758, _John Forbes_, chaplain

and schoolmaster of Dalkeith,[614] was convicted of a variety of

libidinous acts, and also several rapes; and of his having carnal

knowledge of a girl (one of his pupils) under twelve years of age. He

was sentenced to be whipped and banished: the king’s advocate having “in

respect it is known to him, that the evidence of the rape and carnal

copulation will be proven only by girls under age,” restricted the

indictment to an arbitrary punishment. _Maclaurin’s Crim. Ca. p._ 186.

755.

In 1777, the Rev. _Benjamin Russen_, a puritanical schoolmaster, was

convicted and executed for a similar offence, on a girl under ten years

of age. See 1 _East._ 438. _Ann Reg._ Many other instances might be

cited, if it were necessary here to enforce upon the minds of parents,

the expediency of minute enquiry into the habits of those to whom they

entrust the custody of their children; and that they should not be

deceived by professions of extraordinary sanctity.[615] Nature has this

revenge against those who pretend exemption from her frailties, that to

sustain their hypocricies, they fall into greater crimes than those

which they profess to avoid; assuming to be more than man, they degrade

themselves to beasts. See case of _Thomas Weir_ and _Jane_ his sister.

_Maclaurin, C. C. p._ 1[616].

The crime of violating a child, under the age of consent, is the more

scrupulously to be investigated, as one mode of proof is too frequently

excluded; the testimony of the sufferer, if she be of very tender age,

is not evidence; the greater therefore the atrocity of the offence, the

greater is the difficulty of conviction; “If the rape be charged to have

been committed on an infant under twelve years of age, she may still be

a competent witness, if she hath sense and understanding to know the

nature and obligations of an oath, or even to be sensible of the

wickedness of telling a deliberate lie; nay, though she hath not, it is

thought by Sir _Mathew Hale_,” (1 _P.C._ 634) “that she ought to be

heard without oath, to give the Court information; and others have held,

that what the child told her mother or other relations, may be given in

evidence; since the nature of the case admits frequently of no better

proof. But it is now settled, by a solemn determination of the twelve

Judges; that no hearsay evidence can be given of the declarations of a

child, who hath not capacity to be sworn; nor can such child be examined

in Court without oath: and there can be no determinate age at which the

oath of a child ought either to be admitted or rejected;” but their

admissibility depends upon the sense and reason they entertain of the

danger and impiety of falsehood, which is to be collected from their

answers to questions propounded to them by the Court. _Brazier’s case_,

1 _Leach’s Crown Law_, 237. _Powell’s case, ib._ 128. _Rex v. Travers_,

2 _Strange_, 700.[617]

A female may suffer violation at any age beyond absolute infancy; and

the criminal records also furnish examples of brutality towards women of

a very advanced period of life. As to the other sex, it may frequently

be necessary to consider, at what age a boy may be capable, or an old

man incapable, of committing the offence[618]. No determinate line can

be drawn in either case, every instance must therefore rest upon its

peculiar circumstances; this may however be allowed as a general rule,

an attempt at violation is as extraordinary on the part of extreme

youth, as its completion is improbable in advanced old age. Sir _M.

Hale_ says (1 _P.C._ 631), “A male infant under the age of fourteen, is

presumed by law incapable to commit a rape, and therefore it seems

cannot be found guilty of it. For though in other felonies _malitia

supplet ætatem_; yet as to this particular species of felony, the law

supposes an imbecility of body as well as of mind.” (4 _Bl. Com. c._

15). This imbecility however is not universal, as we have previously

shewn when treating of the age of Puberty.

After having determined the age, the most material examination is as to

the relative bodily strength of the parties. It is at all times

difficult to believe that in a mere conflict of strength, any woman of

moderate power of body and mind, could suffer violation, so long at

least as she retained her self possession,[619] All accusation therefore

must be viewed with suspicion, if there be not a great disparity of

strength in favour of the assailant. But this remark must not be

construed to extend to cases, where by long continued violence,

intimidation, or other circumstances, the woman is ultimately overcome;

for her mental suffering may very considerably exhaust her power of

resistance; “and it is no excuse or mitigation of the crime, that the

woman at last yielded to the violence; and consented either after the

fact, or before, if such consent was forced, by fear of death, or

duress,” 1 _Hawk. Pl. c._ 41. _s._ 2. _Co. Lit._ 123. 1 _Hale’s Pl._

629. The mental power of the sufferer is also to be regarded; if it were

considerable, greater power of resistance is to be expected; the

contrary, if the woman were weak and timid; and if she were actually

imbecile, “A poor innocent that could not say him nay;” the crime varies

little or nothing in atrocity from the violation of an infant. We are

not aware that any such case is on record, though the late

investigations into the conduct of some keepers of mad-houses leave

reason to fear that such crimes have been committed.

The external signs of violence ought to be enquired into upon the spot

on which the crime is said to have taken place, and that as soon after

the alleged commission as possible; that the state of surrounding

objects may be determined, as well as the incidental injuries, as

bruises, strains, &c. which either of the parties may have received in

the struggle; the state of their clothes must be examined, and every

circumstance, however minute, carefully noted. The case of _Abraham

Thornton_, Warwick assizes, 1817, and the subsequent proceedings on the

appeal in the King’s Bench, _Easter T._ 1818, 1 _Bar. & Ald._ 405, will

shew how material such examination may prove. Many of the observations

to be made on cases of murder equally apply to those of rape; to them we

must refer.

It is not necessary that the party violated should be proved a

virgin[620] up to the period of the alleged crime; for it may be

committed on the person of a married woman, or of a widow; nay more, the

law extends its protection against violence to those who have been

notoriously unchaste; even a common strumpet is still under the

protection of the law, and may not be forced, (1 _Hawk. Pl._ 108.) and

it is not certain that she had not repented, and determined to reform.

Yet in the case of a person of notoriously bad reputation the strongest

possible evidence would be required to warrant a conviction.

“A very considerable doubt having arisen as to what shall be considered

sufficient evidence of the actual commission of this offence, it is

necessary to enter into an enquiry which would otherwise be offensive to

decency. Considering the nature of the crime, that it is a brutal and

violent attack upon the honor and chastity of the weaker sex, it seems

more natural and consonant to those sentiments of laudable indignation

which induced our ancient lawgivers to rank this offence among felonies,

if all further enquiry were unnecessary after satisfactory proof of the

violence having been perpetrated by the actual penetration of the

unhappy sufferer’s body. The quick sense of honor, the pride of virtue,

which nature, to render the sex amiable, hath implanted in the female

heart, as Mr. Justice _Foster_ has expressed himself, is already

violated past redemption, and the injurious consequences to society are

in every respect complete. Upon what principle, or for what rational

purpose, any further investigation came to be supposed necessary, the

books which record the dicta to that effect, do not furnish a trace.” 1

_East. P. C._ 436.

But on the other hand it must be allowed, that as this is a crime

peculiarly easy in accusation, and difficult in defence; and as

experience has shewn that prosecutions for this offence are very

frequently resorted to from motives of revenge, malignity,

disappointment, or extortion; the law has done well to extend its best

protection to the possibly innocent, while it reserves its severest

punishment for the truly guilty. It has occurred that there has not been

the slightest ground for the accusation, that coition has never taken

place, or been attempted by the party charged; the ordinary details are

easily invented, and very colourable circumstantial evidence is soon

obtained by the designing accuser; it is only in the minuter points of

examination, to which the present practice gives occasion, that she will

trip in her evidence; it is to that only that the accused can look for

safety when a well forged tale, artfully compounded of truth and

falsehood, is prepared for his destruction. Nor is it uncommon that a

woman, who has actually consented to her own dishonor, should, on fear

of discovery, or on disappointment, or from jealousy, prefer an

accusation of rape against her seducer; here the main fact being true,

the coition having taken place, and under the usual circumstances of

secresy, the life of a prisoner depends on the mere question of consent

or violence; the prosecutrix being the principal, or more generally, the

only witness, it is essential that her testimony should be subjected to

the most rigid examination, and that all external circumstances should

be sought which might tend to confirm or destroy it.

The first and most material point to be proved is, that the venereal

congress or coition has actually taken place; but as to the exact legal

definition of this act, much difference of opinion has existed; for

while some learned authorities have held, that penetration alone is

necessary, others have maintained that the crime is not perfected

without _emissio seminis_ also. Lord _Coke_, defining “_carnal

knowledge_,” says, there must be _penetratio_, that is _res in re_; but

the least penetration maketh it carnal knowledge.[621] So in the case of

_Russen_ the schoolmaster, it was proved by two surgeons on behalf of

the prisoner, and corroborated by four others who had examined the girl,

that the Hymen (which _they_ considered an indubitable mark of

virginity[622]) was whole and unbroken, and that the passage was so

narrow that a finger could not be introduced. But it was admitted that

this membrane, the existence or non-existence of which has been strongly

controverted,[623] was in some instances situated an inch or an inch and

a half beyond the Vagina;[624] and Mr. Justice _Ashhurst_, who tried the

prisoner, left it to the jury whether any penetration were proved, for

if there were any, however small, the rape was complete in law. The jury

found him guilty, and he received judgment of death. But before the time

of execution, the matter being much discussed, the learned judge

reported the case to the other judges for their opinions, whether his

direction were proper. And upon a conference, it was unanimously agreed

by all assembled (in the absence of _De Grey_, C. J. and _Eyre_ B.) that

the direction of the judge were perfectly right. They held that in such

cases, the least degree of penetration is sufficient, though it may not

be attended with the deprivation of the marks of virginity. It was

therefore properly left to the jury by the judge; and accordingly the

prisoner was executed. This decision appears to be well warranted by

physiological observation, for as it is evident from the concurrent

testimony of the highest medical authorities, that penetration _in

vaginam_, is not necessary to conception, (_vide ante, p._ 203.) it

would be absurd to contend that more were necessary to constitute Rape

in law, than Generation in nature[625]. The utmost wrong to the one

party, and the malignant intent of the other, have been complete; and

the injury on the one hand, and malice on the other, are truer criteria

for the administration of justice, than the dicta of lawyers, or the

etymologies of schoolmen.

Lord _Coke_, (12 _Rep._ 37.) Sir _M. Hale_ in his Summary,[626] and

_Hawkins P. C._ say that there must be both _penetratio_ and _emissio

seminis_, and this appears to be the law of the present day, as decided

by _Skynner_, C. B. _Gould_, _Willis_, _Ashhurst_, _Nares_, _Eyre_, and

_Hotham_, against Lord _Loughborough_, _Buller_, and _Heath_, Lord

_Mansfield_, though present, having given no opinion of his own; (a

circumstance from which we might infer that he agreed with the

minority). The argument is stated to have turned on the words _carnal

knowledge_, to which the majority contended that _emissio seminis_ was

absolutely necessary; if therefore it be true that certain Eunuchs[627]

have power of erection, and consequently of penetration, they may

morally ravish without incurring the punishment of Rape; for it is

certain that they can have no _emissio seminis_;[628] or a man may have

perpetrated all the more atrocious parts of his crime, and yet being

interrupted in the least voluntary constituent of it, (_Hill’s_

case)[629] escape the well-merited vengeance of the law; while it is

evident on the other hand, that the innocent victim has suffered, in

body, mind, and reputation, as much, as if the crime had been legally

completed.

But admitting the fact of emission to be necessary to the constitution

of this crime, it remains to enquire whether the proof of this fact must

be specifically made out in evidence, or whether it shall be presumed.

In _Matthew Cave’s_ case (Oct. 1747) Chief Justice _Willes_ directed the

prisoner to be acquitted for want of proof; but on the other hand, Mr.

Justice _Foster_, _Clive_, J. (in _Blomfield’s_ case, A.D. 1758)

_Bathurst_, J. and Baron _Smythe_ (in _Sheridan’s_ case, 8 _Geo._ 3) and

_Buller_, J. (in _Harmwood’s_ case, Winchester Spring assizes, A.D.

1787) held the contrary; the latter case is the more worthy of

consideration, as it was subsequent to the decision in _Hill’s_ case,

and tried by one of the judges present at the discussion: “He said, in

giving judgment, that he recollected a case where a man had been

indicted for a Rape, and the woman had sworn that she did not perceive

any thing come from him; but she had had many children, and was never in

her life sensible of emission from a man:[630] and that was ruled not to

invalidate the evidence which she gave of a Rape having been committed

upon her.” 1 _East. P. C._ 440.

A Rape may have been committed on a child too young, or rather too

incompetent, to be sworn; yet all the circumstances except this, may be

proved by other witnesses; the infant alone could prove _emissio in

vaginam_, for no subsequent examination, however immediate, would

demonstrate the fact; or when a woman has fainted from the violence

committed on her, or has been dishonoured in her sleep,[631] and through

the agency of soporific drugs, or has died before the trial,[632] or

been murdered by her ravisher, or has been driven to suicide by mental

distraction; in all these cases of increased atrocity, this mode of

proof becomes impossible.

But emission, it is said, may be presumed from penetration, _Duffin’s_

case, _June_, 1821,[633] but this is not physiologically true in all

cases, and as we have stated, that it may be prevented by accident or

interruption, so also emission is said to be evidence of penetration;

but this is still less reasonable; for it is obvious that it may easily

occur in the mere attempt; yet if reliance can be placed on the

authorities already quoted,[634] emission alone without any material

penetration, but only by injection _inter labia_, will be sufficient to

impregnate, and therefore ought in reason to be considered sufficient to

constitute the crime of Rape.

When it has been clearly proved that coition has actually taken place

between the parties charged[635], the next point to be determined is,

whether the woman consented or not. It is not necessary that we should

here enter into a detail of all the circumstances which may throw light

on this question; but one extraordinary dictum of the more ancient

lawyers is worthy of observation, though there is little fear that the

error will ever be sanctioned by any tribunal; yet as it is one of the

evils of this crime that an unmerited stigma too frequently attaches to

the sufferer by it, we are the more anxious to expose the vulgar idea,

from which some ignorant persons might still infer that a woman had

consented, because she had proved pregnant. “It is said by Mr. _Dalton_,

that if a woman at the time of the supposed Rape do conceive with child

by the ravisher, this is no rape; for (he says) a woman cannot conceive

unless she doth consent. And this he hath from _Stamford_ and _Britton_,

and _Finch. Dalt. c._ 160. see also 2 _Inst._ 190.[636] But Mr.

_Hawkins_ (_P. C. c._ 41. _s._ 2), observes that this opinion seems very

questionable: not only because the previous violence is in no way

extenuated by such a subsequent consent; but also, because if it were

necessary to shew that the woman did not conceive,[637] the offender

could not be tried till such time as it might appear whether she did or

not; and likewise because the philosophy of this notion may be very well

doubted of. 1 _Hawk._ 108. And Lord _Hale_ says this opinion in _Dalton_

seems to be no law. 1 _H.H._ 131. (see also _Mss. Sum._ 334). That so

absurd a notion as that conception evidenced consent, should in modern

times have obtained amongst any whose education and intellect were

superior to those of an old nurse is indeed surprising: at this day,

however, facts and theory concur to prove that the assentation of nature

in this respect, is no ways connected with volition of mind.” _Burn’s

Just. tit._ Rape.

It is not necessary that the quantum of violence be extreme; it is

sufficient that the offence is committed without consent; as where a

woman is violated in her sleep, or during a fit, and query if she have

been intoxicated for that special purpose, so that in truth she should

have no rational power to consent or deny; or if the ravisher imposed

himself in the night, on a married woman as her husband.

If a woman be compelled by violence to marry, and carnal knowledge be

had by force, it is a rape, 1 _Hale_, 629; but as there is another

remedy by _statute_ 3 _Hen._ 7. _c._ 2. for the forcible abduction, it

is not necessary to enquire whether an indictment will lie, until the

marriage be dissolved.

Nor will a subsequent marriage purge the offence: formerly “it was held

for law, that the woman (by consent of the judge and her parents) might

redeem the offender from the execution of his sentence, by accepting him

for her husband, if he also was willing to agree to the exchange, but

not otherwise.” _Glanv. l._ 14. _c._ 6. _Bract. l._ 3. _c._ 28.; and

this was reasonable while the prosecution was at the suit of the party

by appeal, for as the king could not pardon, the power of remission

might be properly left to the person injured; but that outrages might

not be too readily compromised to the injury of public justice, the

statue 6 _Rich._ 2 _st._ 1. _c._ 6. enacts, that the woman consenting,

and the ravisher, be “disabled to challenge all inheritance, dower, or

joint feoffment, after the death of their husbands and ancestors,” and

the husband, or if she have none, the father or next of blood shall have

the appeal[638]. But Rape having been made felony by _Stat. West._ 2.

_c._ 34. and a new appeal given, the option of the woman is now taken

away. It would have been unnecessary to have dwelt on this point if a

vulgar error did not to this day prevail among the lower orders, that

the punishment of Rape might be escaped by the connivance of the nominal

prosecutrix, even after judgement.

The party grieved is so much considered as a witness of necessity in

this, as in other personal injuries, that in Lord _Castlehaven’s_ case,

who assisted[639] another man in ravishing his own wife, she was

admitted as a witness against him. The same testimony was received in

Lord _Audley’s_ case[640], 1 _East. P.C._ 444. 1 _Hall_, 629: 1 _St._

Tri. 387. 1 _Stra._ 633. _Hutt._ 116.[641]

And if the party be dead “_the deposition_ of the girl taken before the

committing magistrate and _signed by him_, may after her death, be

read[642] in evidence at the trial of the prisoner, although it was not

_signed by her_, and she was under twelve years of age; provided she was

sworn, and appeared competent to take _an oath_, and all the facts

necessary to complete the crime may be collected from the testimony so

given in evidence.” _The King against Fleming and Windham_, A.D. 1779.

_Leach’s C.L. p._ 996. But if the declaration be made _in articulo

mortis_, the party knowing herself to be dying, then it is not necessary

that she be sworn, for the solemnity of the occasion is more than

equivalent to the form of an oath, yet it is necessary that the party

should have so much sense and discretion, that, if in sound health, she

might have been sworn; for if she have not, then even the fear of death

and judgment may not have a sufficient impression on her mind. The

melancholy case of _Coleman_ will impress every reader with the

importance of carefully noticing the circumstances of dying

declarations, lest, by receiving as evidence the ravings of delirium, or

at least the imperfect impression of impaired faculties, the innocent

should be sacrificed to the errors of the dying; and this is the more

necessary in those cases where the atrocity of the crime committed

creates an immediate prejudice against every party charged or suspected.

END OF VOL. I.

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William Phillips, Printer.

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Footnotes

Footnote 1:

We have preferred this term, as best calculated to express, in the

most comprehensive manner, the application of Medical Science to the

purposes of the law. Different writers, however, upon this branch of

knowledge, have employed various other terms for the same object, such

as _Legal_, _Judiciary_, or _Juridical Medicine_; _State Medicine_,

_Forensic Medicine_, _Medical Police_. The two latter terms, evidently

cannot with propriety be considered synonimous with the former, for

they are, strictly speaking, subordinate divisions. Some authors have

objected to the term _Medical Jurisprudence_, as implying a knowledge

of the laws relating to medical topics, rather than an acquaintance

with the medical science necessary for the elucidation of legal

subjects. As it is our peculiar object to unite the sciences, and to

shew their mutual relevance, the title becomes most applicable to

this, although it may have been improperly affixed to former works.

Footnote 2:

Chap. xiii. xiv.

Footnote 3:

So important was this act in the climates of Asia and Africa, that the

Mahometan, if unable to obtain water in the Desert, was directed to

cleanse his person by frictions with the sand.

Footnote 4:

See _Mill’s_ History of British India.

Footnote 5:

Collection of Voyages, that contributed to the establishment of the

East India Company. Vol. i. part i. p. 182.

Footnote 6:

Aristotle proposed the same means of checking the increase of

population. _Aristot._ de Republica. lib. vii. c. 16.

Footnote 7:

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

Footnote 8:

Chap. xxii. verse 15.

Footnote 9:

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

Footnote 10:

Vol. i. p. 280.

Footnote 11:

Priests were among the earlier chemists, and it is asserted that they

frequently instructed the accused, either from a conviction of his

innocence, or from less disinterested motives, in some of those means

of resisting the action of fire, by which modern jugglers are still

enabled to amuse and astonish the vulgar.

Footnote 12:

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

Footnote 13:

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

Footnote 14:

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

Footnote 15:

_Kannegeiser._ Inst. Med. Leg.

Footnote 16:

_Alberti, Michael._ Prof. Med. Hall.—Systema Jurisprudentiæ Medicæ

Schneeberg 4to. 1725. tom. vi.

Footnote 17:

_Zittman._ Medicina Forensis, 4to. Francofurti.

Footnote 18:

_Richter._ Decisiones Medico-Forenses.

Footnote 19:

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

Footnote 20:

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

Footnote 21:

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

Footnote 22:

_Ludwig._ Institutiones Medicinæ Forensis.

Footnote 23:

_Fazellius._ Elementa Medicinæ Forensis.

Footnote 24:

_Plenck._ Elementa Medicinæ et Chirurgiæ Forensis.

Footnote 25:

Vorlesungen über die gerichtliche Arneywissenchaft, 3 v. 8.

Footnote 26:

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

Medicine.

Footnote 27:

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

Footnote 28:

_Loder._ Anfangsgründe der Medicinischen Anthropologie und der

Staatsarzneykunde 8. Werm. 1793.

Footnote 29:

_Metzer._ System der gerichtlichen arzneywissenchaft. 8 Koningsb.

1793. Latin by _Keup._ 8 Stend. 1794.

Footnote 30:

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

Footnote 31:

Collectio Opusculorum selectorum ad Medicinam forensem spectanium,

curante. F. C. T. Schlegel, Leipsic 1789-1800.

Footnote 32:

Bibliothèque Medicale.

Footnote 33:

Quæstiones Medico-Legales, in quibus omnes materiæ medicæ quæ ad

legales facultates videntur pertenere, proponuntur, pertractantur,

resolvuntur. Tom. ix. Romæ 1621.

Footnote 34:

Systema Cautel. Medicar. p. 579.

Footnote 35:

“Istituzioni di Medicina Forense di _Giuseppe Tortosa_, Professore

Medico della Commissione Dipartimentale di Sanita del Bacchiglione.”

Vol. ii. Vicenza, 1809.

Footnote 36:

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

Footnote 37:

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

Footnote 38:

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

Footnote 39:

Les Lois eclairées par les Sciences Physiques; ou Traité de Médecine

Légale, et d’Hygiène Publique, tom. iii. 8vo, Paris.

Footnote 40:

Médecine Légale, et Police Médicale, de _P. A. O. Mahon_, Professeur

de Med. Leg. etc. avec quelques notes de _M. Fautrel_.

Footnote 41:

Cours de Médecine Légale, Theoretique et Pratique, de _J. J. Belloc_,

Chirurgien à Agen, 1 vol. in 12mo.

Footnote 42:

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

Footnote 43:

Traité de Médecine Légale et d’Hygiène Publique, ou de Police de

Santé, par _F. E. Foderé_, Docteur en Médecine.

Footnote 44:

Toxocologie Générale considérée, sous les Rapports de la Physiologie,

de la Pathologie, et de la Medicine Légale.

Footnote 45:

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

Paris, 1821.

Footnote 46:

La Médecine Légale, relative a l’Art des Accouchemens, par _J.

Capuron_, Docteur en Médecine, &c. Paris, 1821.

Footnote 47:

“Elements of Medical Jurisprudence, or a succinct and compendious

description of such tokens in the human body as are requisite to

determine the judgment of a Coroner and Courts of Law, in cases of

Divorce, Rape, Murder, &c.; to which are added Directions for

preserving the Public Health; by _Samuel Farre_, M.D.” 12mo. p.p. 139.

Footnote 48:

“Elements of Juridical or Forensic Medicine; for the use of medical

men, coroners, and barristers,” by _George Edward Male_, M.D. Second

edition. London, 1818. The first edition of the above work was

published under the title of “Epitome,” in the earlier part of 1816.

Footnote 49:

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

Footnote 50:

For a striking illustration of this truth we have only to refer the

reader to the facts detailed in the note at page 102, in the first

volume of the present work.

Footnote 51:

_Sir Thomas Browne_ was, upon this occasion, called upon by _Sir

Matthew Hale_ to give his judgment; upon which he declared, that “he

was clearly of opinion that the fits were natural, but heightened by

the devil, co-operating with the malice of the witches, at whose

instance he did the villainies,” and he added, “that in Denmark there

had been lately a great discovery of witches who used the very same

way of afflicting persons by conveying pins into them.” This relation

of _Sir Thomas Browne_, says the historian of the case, made that good

and great man, _Sir Matthew Hale_, doubtful; but he would not so much

as sum up the evidence, but left it to the jury with prayers that the

great God of Heaven would direct their hearts in that weighty matter.

The jury accordingly returned a verdict of guilty; and their execution

was amongst the latest instances of the kind that disgrace the English

annals.

Footnote 52:

Sweden is particularly distinguished for the accuracy of its bills of

mortality. Exact accounts have been taken of the births, marriages,

and burials, and of the numbers of both sexes that died at all ages in

every town and district; and also at the end of every period of five

years, of the numbers living at every age. At Stockholm a society was

established whose business it was to superintend and regulate the

enumeration, and to collect from the different parts of the kingdom

the registers, in order to digest them into tables of observation.

Footnote 53:

See a memoir in the first volume of the Royal Geological Society of

Cornwall, entitled “On the Accidents which occur in the Mines of

Cornwall, in consequence of the premature explosion of gunpowder in

blasting rocks, and on the methods to be adopted for preventing it, by

the introduction of safety bars, by _J. A. Paris_, M.D. &c.”

Footnote 54:

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

92.

Footnote 55:

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

Footnote 56:

Ibid. vol i, p. 53, note.

Footnote 57:

See vol. i, p. 260, _note_.

Footnote 58:

The Introductory Lecture of a Course upon State Medicines London,

1821.

Footnote 59:

Chlorine—Eu-chlorine—Muriatic acid—Sulphurous acid—Nitrous

oxide—Carbonic acid—Sulphuretted hydrogen—Ammonia—Cyanogen.

Footnote 60:

See the plan proposed by the author, in the Journal of Science and the

Arts, no. xxviii, p. 436.

Footnote 61:

The reader must refer to our chapter “on the Physiological Causes of

Sudden Death,” p. 23; and to that “on Syncope,” p. 25.

Footnote 62:

The imposition of Urine-casting owed its origin to monastic practice,

where the inspection of the urine in the monastery obviated the

trouble of a personal communication with the patient.

Footnote 63:

In 1500, _Francis Anthony_ was charged with killing several persons by

a medicine, said to have been compounded of Gold and Mercury, which he

called his _Aurum Potabile_.—_Goodall, Pro_ 349.

Footnote 64:

See however on this subject a pamphlet published at Oxford in 1721,

occasioned by the case of the King _v._ the Bishop of Chester.

Footnote 65:

The exclusion of persons, not being graduates of an English

University, formed the subject of a royal letter, for which see

Appendix, page 92.

Footnote 66:

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

Footnote 67:

_Henry_ himself appears to have added some study of Physic to his

other pursuits; among the _Sloane MSS._ in the British Museum there

are several receipts invented by the king in conjunction with Doctors

_Butt_ and _Chambers_; the familiarity of the former with _Henry_ is

shown by _Shakspeare_, _Hen. 8th_, _Act._ 4. _Scene_ 2.

Footnote 68:

_Chambre_ and _Linacre_ were in holy orders, a circumstance which has

been cited against the present bye-law of the College, that no priest

can be admitted; it must be remembered that it is the policy of the

present day to restrain the clerical encroachments, which constituted

a leading feature of the Papal usurpation; our Inns of Court observe

the same rule.

Footnote 69:

_Jo. Alph. Borellus_, in speaking of the pretensions of _Honoratus

Faber_ to this discovery, concludes _Omnes enim sciunt Harveium Anno

Dom 1628 Fancofurti typis Gual. Fitzeri suam exertationem primum

edidisse_; _scilicet decem annos antequam Fabri sanguinis

circulationem docuisset_. _See Goodall’s Proceedings of the College._

His work de _Generatione Animalium_, although eclipsed by his superior

discovery, must be considered as a valuable acquisition to the science

of Physiology; its luminous reasonings overturned the doctrine of

_Equivocal Generation_, that had been maintained in the schools since

the days of Aristotle, and established the universal principle “OMNIA

EX OVO.”

Footnote 70:

_Henry Marquis_, of Dorchester, who was admitted a Fellow in 1658,

left at his death in 1680, a collection of medical and other books to

the College which were valued at £4000.

Footnote 71:

This power has however been questioned; the words of the Act 25 _Hen._

8. are, “All manner of Licences, Dispensations, Faculties, &c. as

heretofore hath been used and accustomed to be had at the See of

Rome.” The term Degree does not occur in the act, yet in _The King v.

the Bishop of Chester_, a degree of Bachelor of Divinity granted by

the Archbishop was held a good qualification. 8 _Mod._ 364: _Strange_

797. This judgment was ably controverted in a pamphlet published at

Oxford in 1791; we may say with the author, “As to the Archbishop of

Canterbury I have no design to rob his See of any privileges belonging

to it. He may give as many titles, and bestow as many honours as the

POPE himself does, provided they are not admitted into the same rank

with those conferred by the favour of the Crown, and they do not

challenge any place in the construction of Charters and Acts of

Parliament.” See Serj. _Hill’s_ Law Pamphlets in fol vol. 1. in

Lincoln’s Inn, Lib. A recent Act of Parliament, 55th _Geo._ 3.

recognises only Physicians licenced by the College and by the

Universities of Oxford and Cambridge.

Footnote 72:

Such subsequent Charters would not however annul the original Letters

Patent. “A new Charter doth not merge or extinguish any of the ancient

privileges of the old Charter. And if an ancient corporation is

incorporated by a new name, yet their new body shall enjoy all the

privileges that the old corporation had.” _Raym._ 439: 4 _Rep._ 37.

For other points as to renewed or substituted Charters, see _The King

v. Amery and Monk_, by information in the nature of a _quo warranto_,

1 T.R. 575. _Newling against Francis_ (the election of Mayor of

Cambridge) 3 T. R. 189. _The King against Miller_, 6 T. R. 268. And

more particularly _Rex v. the Vice-Chancellor &c. of Cambridge_, 3

_Burr._ 1656. “A Corporation already existing are not obliged to

accept the new Charter in toto, and to receive either all or none of

it. They may act partly under it and partly under their old Charter or

Prescription. Whatever might be the notion in former times, it is now

most certain, that the Corporations of the Universities are

Lay-Corporations; and that the Crown cannot take away from them any

rights that have been formerly subsisting in them under old Charters

or prescriptive usage.”

Footnote 73:

An alien cannot now be a Fellow of the College, and there is good

reason for this, as he may have judicial authority when elected to

serve as Censor, &c.

By 9 _J._ 1. _c._ 5. _s._ 8. no Popish Recusant shall practice Law or

Physic, or exercise any public office, or the trade of an Apothecary;

but this Act is in part repealed by 31 _Geo._ 3. _c._ 32. There is

also a considerable distinction in law between a person who is merely

a Papist and one who is a Recusant.

Footnote 74:

It is true that the College has no means of punishing the disobedient

in the country, because the Statute is not supported by penalties; but

it must be remembered that the acting in defiance of a Statute is in

itself a misdemeanour. According to the opinion of Chief Justice

_Mansfield_, a Doctor’s Diploma does not itself entitle the possessor

to practise in the country parts (provinces) of England. He must be an

Extra-Licentiate of the Royal College of Physicians, or Medical

Graduate of an English University. The provincial physician, unless

thus protected, is placed under very humiliating circumstances; he is

only a doctor by _courtesy_, and therefore cannot claim rank, or

defend himself in courts of law. In a cause tried at Stafford before

Judge _Mansfield_, a physician who had graduated in Scotland, having

been grossly abused in his professional capacity, sued for redress,

but could obtain none, because he had not complied with the act of

_Henry_ the 8th. _Middleton v. Hughes. See Harrison’s Address._ 62.

Footnote 75:

To this Act it has been objected that it wants the Royal confirmation,

and it was suggested that Cardinal Wolsey for a sum of money,

interpolated this among other Acts without the King’s assent. The

story, sufficiently improbable in itself, rests on no evidence, and

the plea founded on it was overuled by C. Justice _Pemberton_, 2

_Show_ 166. _See also College of Physicians against Huybert. Goodall’s

Collect._ 267, where the circumstances are more fully related.

Footnote 76:

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

9. § 5.

Footnote 77:

Such as “Women’s breasts being sore; a Pin and Web in the Eye;

Uncombes of Hands; Burns; Scaldings; sore Mouths; the Stone;

Strangury; Saucelim; and Morphew, and such other like diseases.”

The pin and web in the eye is alluded to by Shakespeare in Lear, Act

iii. Sc. iv. “_he gives the web and the pin_,” and again, “_wishing

all eyes blind with the pin and web_,” Winter’s Tale, Act. i. Sc. ii.

With respect to the precise meaning of this expression some doubts

have arisen. Hanmer says _the pin_ is a horny induration of the

membranes of the eye. Skinner seems likewise to say the same, but Dr.

Johnson thinks that it is an inflammation, which causes a pain like

that of a pointed body piercing the eye: _Web_ in the eye, is defined

by Johnson “a kind of dusky film that hinders the sight.” _Uncombes of

Hands_ is an expression still used in the North for _Whitlows_.

_Morphew_ signifies a cutaneous eruption in the face, _Saucclim_?

Footnote 78:

See _Cro. Car._ 257.

Footnote 79:

Such penalty has been recovered from the warden of the Fleet.

_Goodall’s Pro._ 421.

Footnote 80:

By Statute 10 Geo. 1. c. 20, the College was empowered to examine

drugs within seven miles circuit, as well as within the City of

London, to which the wording, though probably not the intention, of

former acts had confined them; but this Statute, though continued by

13 G. 1. c. 27, has now expired; we shall in another place suggest the

policy of reviving and extending its enactments.

Footnote 81:

The punishment of dissection is now added by Act of Parliament to the

execution for murder only, but this does not exclude the right of the

Crown to the disposal of the bodies of all executed traitors and

felons. The words of the grant of Elizabeth, are “_quod jure publico

hujus regni furti homioidii vel cujuscumque feloniæ condamnatum et

mortuum fuerit_.” Charter 7 Eliz. Goodall’s Collection, p. 35.

Footnote 82:

For the power of Corporations to make reasonable Bye Laws, See _Kyd_

on Corporations; how far they may bind Strangers. ib. 103. _Cowper_,

269; they must not be in diminution of the King’s prerogative, or to

restrain suits in the King’s Courts; 19 _Hen._ 7. c. 7. nor to extend

to imprisonment or forfeiture of goods. Magna Charta. 2 _Inst._ 47,

54. _Kyd_, 156. But see also 5 _Mod._ 320; but they may inflict a

penalty to be recovered by action or distress; 5 _Co._ 64. _Kyd_, 156.

And this power to make Bye Laws, is incident to all Corporations,

though it be not given by any special clause. _Co. Lit._ 264. _Ld.

Hob._ 211. _Carth_ 482. 3 _Leon_ 39. A bye-law, giving a casting vote

to the senior, if the charter requires a majority, is bad. _King v.

Ginever._ 6 T. R. 732. As to the other points, respecting elections,

see _the King against the Mayor of Durham_, in Lord _Kenyon’s

Reports_, by _Hanmer_, _p._ 112. And generally, 1 T R 118: 2 T R 2: 6

T R 732, 736: 7 T R 543: 8 T R 356: 1 _H. Blackstone_ 370: 12 _East_

22: 3 _East._ 186: 3 _Bos and Pull_ 434. A bye law must be reasonable,

if not it is bad, 1 _Salk_ 143: 11 _Co. R._ 53: _Moore_ 412, 576: _Ld.

Kenyon by Hanm._ 500. As to the mode of making bye Laws _Ld. Raym._

496: 2 _P Wms._ 209: _Comb._ 269: 1 _Str._ 385, we have been

particular in citing authorities on this subject, as it is a continual

source of litigation with all Corporations: as respects the College of

Physicians, we shall have occasion in another place to refer more

particularly to the case of _the King_, (at the instance of Dr.

_Stanger_) _against the Coll. of Phys._ T. R. 282, in which this power

was very ably argued and determined.

Footnote 83:

The name of Thomas Bonham also occurs about the same period among the

signatures of several Surgeons. See Goodall.

Footnote 84:

A degree in either of the Universities is a good addition in pleading

within the Statute of Additions. 1 _Hen._ 5. _c._ 5. See 2 _Inst._

668. 1 _Bl. Com._ 405.

Footnote 85:

This forbidding is not absolutely necessary, but _ex abundanti

cautela_ is expedient.

Footnote 86:

This custom of amercing for unlicenced practice appears to have been

very commonly adopted by the College: (see Goodall’s Proceedings,) it

was undoubtedly erroneous, but as it was less expensive to the parties

so fined than a suit for five pounds a month, according to the

Statute, of which the defendant must have paid the costs, it was very

generally acquiesced in till 1622, when the above trial took place.

Footnote 87:

And this has been determined by subsequent authorities, that the

exception of Graduates of the two Universities of Oxford and

Cambridge, in the concluding clause, applies to persons practising in

all England, except the privileged district of the City of London, and

seven miles circuit, which is in the peculiar and exclusive

jurisdiction of the College of Physicians, in which no person

whatsoever may practise under any pretence whatsoever except by their

licence. See _Coll. v. West._ 10 _Mod._ _p._ 353.

Footnote 88:

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

Footnote 89:

The King is _Creditor Penæ_, and therefore all fines for offences

belong to him. _Viner. tit_ action _Qui Tam_ (A) 10. The fines are

however granted to the College by the Charter of _James_. Vide Supra.

Footnote 90:

But contra, see the opinion of Chief Justice _Holt_.

Footnote 91:

This must be strictly laid in the declaration, for in the case of the

College against Bush, 4 Mod. 47, an exception was taken to the

Declaration, “that the defendant practised Physic in Westminster,”

without stating that Westminster is within seven miles, &c. and the

defendant had judgment. See also 12 Mod. 10.

Footnote 92:

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

Footnote 93:

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

Footnote 94:

See also _the King and the President and College of Physicians against

Marchmont Neadham_. _Trin. Ter._ 28 _Car._ 2. B. R. _Goodalls Pro._

273. _Coll. of Phys. v. Bugge_, 15 _Car._ 1. _Scacc. Mag. Rot._ 23,

_Car._ 1; _Goodall_ 259. _Coll. v Bourne_, 24 _Car._ 2: _Coll. v

Harder_: _Coll. v Merry_: _Coll. v Stone_, 35 _Car._ 2: _Goodall_ 275.

_Coll. v Levett_, 1 _Ld. Raym._ 472: _v Salmon, ib._ 680: _v Talbois.

ib._ 153: _v West. ib._ 472: _Coll. v Tenant. Jones_ 262. _Dr. Trigg v

the Coll. Stiles Rep._ 329.

Footnote 95:

Doctor Butler was defendant, though first mentioned in this Report,

the decision being in the King’s Bench, on error of a judgment in the

Common Pleas for the original cause. _Coll. of Phys. v Butler_, See

_Sir W. Jones, Rep._ 261: _Littl. R._ 168, 212, 244, 349.

Footnote 96:

The letter of _John Seale_, which induced the College to bring this

action, was as follows. “_May_ the _5th_, 1704. These are to certify,

that _I, John Seale_, being sick and applying myself to this _Mr.

Rose_ the Apothecary for his directions and medicines, in order for my

cure; had his advice and medicines from him a year together: But was

so far from being the better for them that I was in a worse condition

than when he first undertook me; and after a very expensive bill of

near £50. was forced to apply myself to the Dispensary at the College

of Physicians where I received my cure in about six weeks time, for

under forty shillings charge in medicines.” _See a Pamphlet published

on this case, London 1704, and other works mentioned in Gough’s

Topography._

Footnote 97:

It does not appear to have been made out in evidence that the constant

use and practice had been with the Apothecary, on the contrary, they

did not commence practice (except indeed the occasional sale of some

simple lozenge or electuary which was never objected to) till after

the great fire, when the known residences of the Physicians having

been destroyed, their patients were unable to find them, and

consequently resorted to the Apothecaries, whose open shops were a

sufficient guide to those who needed medical assistance. It is

probable also that some laxity arose during the preceding years in

which the Plague raged in London, for in times of emergency it would

be unreasonable to insist on restrictions which it might be impossible

and inhuman to enforce. (_Merett’s Short view of Frauds & Abuses,

A.D._ 1699).

Footnote 98:

The trial having taken place in the reign of Queen Anne we should have

written Queen’s Bench, but the title of the Court in common use is

perhaps best adapted to general comprehension.

Footnote 99:

It has been solemnly resolved, that _Mala Praxis_ is a great

misdemeanor and offence at common law. 3 _Bl. Com._ 122: 1 Lord

_Raym._ 214.; an act of grace will include _Mala Praxis_; for the

remedy of the injured party by Action on the Case, _vide post_.

Footnote 100:

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

200. 263.

Footnote 101:

But query, as this protecting section has expired, are Patent

Medicines now exempted from the examination of the Censors?

Footnote 102:

Modes of election, unless specially pointed out by Statute or Charter,

must depend on Bye-laws and usage. See _the King and the

Vice-Chancellor of Cambridge_, _ubi supra_, and many other cases of

Corporations. The Power of amotion or expulsion is also incident to

most Corporate Bodies. See _Rex_ v. _the Mayor, Burgesses and Common

Council of Liverpool_, 2 _Burr. R._ 724: _Rex_ v. _Richardson_, 1

_Burr. R._ 517. We do not find that the College has ever been

compelled to execute this painful duty.

Footnote 103:

We adopt the apology of the learned reporter both in words and

substance; for we are well aware that many of our readers must be

heartily tired of this long detail of litigations, which, as we hope,

are not again to be required as precedents; yet we have deemed it

necessary to give this account of the powers and privileges of those

Corporate Bodies, to whom we must at least look for the elucidation of

the medical branches of jurisprudence, and from whom we might expect

the best execution of the laws respecting the public health, should

they ever be in this, as they have been in most other countries,

reduced to a regular system of Medical Police.

Footnote 104:

It is said that the College have determined not to interfere for the

future with the licensing of Midwives; the policy of this resolution

is very questionable, for the examination and licensing of persons in

all branches of medicine is a public duty imposed upon them, which

they are not at liberty to abandon or execute at their pleasure. It

may be urged that this branch is rather Surgery than Physic; but as

the College have once assumed the jurisdiction, it is doubtful whether

they ought to relinquish it. The Surgeons might also disavow their

obstetric brethren, and then the matter must revert, as of old, to the

Bishops, who cannot be supposed to be the most competent judges of the

necessary qualifications. Archbishop _Abbot_, a very conscientious

divine, on a somewhat similar occasion, said “he knew not well how

children were made,” and begged time to inform himself on the subject.

Footnote 105:

A writ of certiorari will also be granted on occasion directed to the

College. 2 _Hawk._ 406.

Footnote 106:

The unprofessional reader will infer from the rank of the Counsel the

importance which was attached to the case; and from their proved

ability, that its merits were fully before the Court.

Footnote 107:

For which, at greater length, as also for the arguments of the other

Judges, see 4 _Burr._ 2195.

Footnote 108:

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

Footnote 109:

Query of the Pope and Archbishop of Canterbury _inter alia_? _Vide

ante._

Footnote 110:

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

Footnote 111:

A limited license had been granted to one _Shepheard_ to practise upon

Madmen, but with a proviso that a physician should also be called.

Being summoned to answer a breach of this limitation, he appeared and

submitted to the College censure. _Goodall_ 466.

Footnote 112:

This prophesy, like many others, was the cause of its own fulfilment,

as will be seen in the sequel. Lord _Kenyon_ in Doctor _Stanger’s_

case took occasion to lament that it had been made.

Footnote 113:

At the conclusion of all these arguments Lord _Mansfield_ was at great

pains to impress upon the College the propriety of enlarging their

rules for admission; some alterations consequently were made; but it

is more than doubtful whether they have yet satisfied the views of

those who would have placed all the colleges of the empire on the same

footing as the universities of Oxford and Cambridge, in respect of

their prior claims to the honours of the College of Physicians.

Footnote 114:

For some controversial observations on this case see Doctor _Wells’_

letter to Lord _Kenyon_ in his published works.

Footnote 115:

This class was very properly introduced to place the bachelors of

Oxford and Cambridge on an equal footing, in certain respects, with

the doctors of foreign universities. At Edinburgh a doctor’s degree

may be attained in three years, while in England the bachelor’s degree

requires five, and the Doctor’s twelve years standing.

We have purposely avoided any discussion on the subject of the

Pharmacopœias which have from time to time been published by the

authority of the College; the propriety of forming one standard for

medical preparations cannot be doubted, and it is equally indisputable

that the College have, both by Charter and acts of Parliament, full

power to enforce their regulations; in order to give greater publicity

to which, His late Majesty in Council was pleased to issue a Royal

Proclamation (for which see Appendix) commanding all persons to

observe and obey the directions contained in the _Pharmacopœia

Londinensis_ of 1819. Technical objections from time to time have been

raised against some of the directions of this work; as it would not

fall within our limits or intention to canvass these questions, we

shall content ourselves for the present with hinting that an extension

rather than a diminution of this power is to be wished, and that the

three kingdoms should be united in one general form of medical

practice.

Footnote 116:

_Vide Post._ p. 72.

Footnote 117:

The Statute of 32nd _Hen._ 8. _c._ 42. continues in force as to the

Barbers, notwithstanding that of 18 _Geo._ 2. _c._ 15. which separates

them from the Surgeons. See _Sharpe qui tam agst. Law_ 4. _Burr._

2133.

Footnote 118:

This prohibition under the Letters Patent could have no force till

confirmed by Act of Parliament.

Footnote 119:

The munificence of Parliament has been displayed towards this

Corporation in the purchase and grant of the Hunterian Collection at

the price of £15,000; and in the vote of £25,000 more towards the

building of the College and Museum in Lincoln’s-inn-fields.

Footnote 120:

The reader will find much curious and learned research upon the origin

and history of Apothecaries, in _Beckmann’s History of Inventions_,

_vol._ 2. p. 127.

The word _Apothecary_ originally signified any proprietor, or keeper

of store, magazine, or warehouse, (απο τίθημι, _to put off_.) See

_Glossarium Manuale_, _vol._ 1. p. 298. From the word _Apotheca_, the

Italians have made _Boteca_, and the French _Boutique_. It would

therefore be a great error to consider the term _Apothecarius_, as it

is met with in the writings of the thirteenth and fourteenth

centuries, as denoting a character similar to the Apothecary of the

present day. As we learn from the writings of Hippocrates,

Theophrastus, Galen, and other authors, that the Greek and Roman

Physicians prepared their own medicines, it is evident that in those

times the office of the Apothecary was quite unnecessary; the

medicinal herbs were purchased of dealers, who after a time very

naturally professed a knowledge of the medical properties of the

articles which they sold, and accordingly began to deal in compound

remedies, and to boast of various nostrums; such were the PIGMENTARII,

SEPLASIARII, PHARMACOPOLÆ, and MEDICAMENTARII, of whom we read in

ancient authors. That the Pigmentarii dealt in medicines is proved by

the law which established a punishment for such as sold poison, to any

person, through mistake, viz. “_Alio Senatus consulto effectum est, ut

PIGMENTARII, si cui temere Cicutam, Salamandram, Aconitum —— —— —— et

id quod lustramenti causa dederint Cantharidas pœna teneantur hujus

legis._” Digest. Lib. xlviii. Tit. 8.33. These Seplasiarii appear to

have latterly assumed the office of Apothecary, for Pliny (Lib. xxxiv.

c. 11.) reproaches the Physicians for not making up their own

medicines instead of trusting to these persons. That the PHARMACOPOLÆ

carried on the same trade appears evident from their name; but no one

seems to have placed any confidence in them; on the contrary, they

were despised for their impudent boasting, and the extravagant praise

which they bestowed upon their commodities. Μειμειταὶ που καὶ

φαρμακοπωλης ἰατρον. “_Pharmacopola imitatur Medicum, Sophista

Philosophum, Sycophanta Oratorem._” (_Maximus Tyrius, Dissert. x._ p.

121.) and again, “_Itaque auditis, non auscultatis, tanquam

Pharmacopolam; nam ejus verba audiuntur, verum ei se nemo committit,

si æger est._” (_Cato in Aulum Gellium_, _Lib._ 1. _c._ 15.) From

these words it appears that the _Pharmacopolæ_, even in those days,

attempted to practise Physic. Dr. Mohsen, quoting from Anderson

(_Geschichte des Handels_ ii. p. 365.) says, that king Edward III. in

the year 1345, gave a pension of Sixpence per diem, to one Coursus de

Gangeland, an Apothecary in London, _for taking care of, and attending

his Majesty, during his illness in Scotland_, and this is the first

mention of an Apothecary in the Fœdera. The first legal establishment,

however, of such a class as Apothecaries, may be dated from the well

known Medicine Edict (see _Lindenbrogii Codex Legum Antiquarum_.

_Francof._ 1613. _Fol._ p. 809.) of the Emperor Frederic II, issued

for the kingdom of Naples, by which it is required that the

CONFECTIONARII should take an oath to keep by them fresh and

sufficient drugs, and to make up medicines according to the

prescriptions of the Physicians.

Footnote 121:

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

have been in the 15th of _James_.

Footnote 122:

As are also 114 persons who were the first members.

Footnote 123:

See _Goodall_, 439. 466.

Footnote 124:

This proviso was not necessary, for the Charter could in no way alter

the authority given by an Act of Parliament.

Certain Apothecaries, and with some reason, object to this power; for

as the Apothecaries Company have erected an extensive establishment

for the sale and preparation of drugs and medicines, the private

Apothecaries deem it unjust, that their competitors in Trade should be

made the judges of the quality of the very articles in which both

deal; the public, on the contrary, derive considerable benefit from

the circumstance, as the lynx-eyed jealousy of rivals is added to

other inducements of the public body to do its duty, and of the

private individuals to expose their errors if they deviate from it:

under such circumstances however the Society of Apothecaries ought not

to have an absolute power of condemnation; an appeal should be allowed

to the Censors of the College of Physicians, or some other authority

competent to the decision of such cases.

Footnote 125:

The words, or party agrieved, might have been properly inserted: as

the act stands the patient has no remedy, if the Physician refuse to

complain.

Footnote 126:

The latitude of the conclusion as to renewal of certificates, in some

degree cures and compensates the otherwise extreme severity of this

clause, yet the jurisdiction might have been better given than to any

Justice of the Peace; how such Magistrate, ignorant of medicine or

chemistry, is to judge of the improper mixing or compounding of

medicines, we do not pretend to anticipate, still less how he is to

determine what shall be taken as a satisfactory reason, excuse, or

justification. The most probable offence, to be committed in the

country against this clause, will be, by substitution of cheap for

expensive drugs; this is a very ordinary mal-practice which ought to

be checked, but if the apothecary have not the expensive drug by some

excusable accident, and then substitute another of equal efficacy, he

would be held excusable in a case of emergency, by any medical

authority competent to judge of the merits of the case; this an

ordinary Justice of the Peace evidently cannot be.

Footnote 127:

Quakers to affirm.

Footnote 128:

Query whether the better policy would not have been, to have subjected

_all_ persons to examination; a lad may be very stupid and dangerously

ignorant even after five years practice in a remote village.

Footnote 129:

These five should also have had the power of searching drugs, &c.

under certain restriction, as calling to their assistance one member

at least of the College of Physicians, or any Licentiate or regular

Graduate being a justice of the peace. It is in the country that the

worst drugs, &c. are most likely to be found.

Footnote 130:

An appeal to the President and Censors of the College of Physicians

might have been a salutary check on this power of rejection.

Footnote 131:

We do not understand the policy of the exemption: it is surely as

necessary to defend the public from unwholesome drugs, &c. whether

sold by wholesale or retail, whether bought of a chemist or an

apothecary. The censors of the college of physicians may search

chemists and druggists wares in London, but as they have no power in

the country, this point requires future consideration; for as

prescriptions are now very generally prepared by persons who are

nominally chemists, though in fact they exercise the ancient business

of apothecaries, the public are as deeply interested in the goodness

of the drugs kept by the one as by the other.

Footnote 132:

“Memoirs historical and illustrative of the botanic garden at Chelsea,

belonging to the Society of Apothecaries of London.”—London, 1820.

This memoir was printed at the expense of the society, for

distribution amongst its members.

Footnote 133:

The most important covenants contained in this conveyance, are the

following, viz.

The release is dated on the 20th of February, 1721, and is made

between the Honorable Sir Hans Sloane Baronet, President of the Royal

College of Physicians, on the one part, and the Master, Wardens and

Society of the art and mystery of Apothecaries of the City of London,

on the other part. It recites the original lease from Lord Cheyne, and

also the great expense which the society had incurred, in furnishing

and carrying on the garden, as a physic garden, ever since that lease

was granted. It states, that the fee and inheritance of the ground and

premises were then vested in Sir Hans Sloane and his heirs. It further

declares, that to the end the said garden may at all times hereafter

be continued as a physic garden, and for the better encouraging and

enabling the said Society to support the charge thereof, for the

manifestation of the power, wisdom, and glory of God in the works of

the creation, and that their apprentices and others may better

distinguish good and useful plants, from those that bear resemblance

to them, yet are hurtful, and other the like good purposes; the said

Sir Hans Sloane, grants, releases and confirms unto the said Master,

Wardens and Society, and their successors, all that piece or parcel of

arable and pasture ground, situate at Chelsea in the County of

Middlesex, at that time in their possession, containing three acres,

one rood, and thirty-five perches, with the green-house, stores,

barge-houses, and other erections thereon, to have and to hold the

same for ever, paying to Sir Hans Sloane, his heirs and assigns, the

yearly rent of £5, and rendering yearly to the President, Council and

Fellows of the Royal Society of London, fifty specimens of distinct

plants, well dried and preserved, which grew in their garden the same

year, with their names or reputed names; and those presented in each

year to be specifically different from every former year, until the

number of two thousand shall have been delivered.[134] It is further

provided, that if these conditions be not fulfilled, or if the society

shall at any time convert the garden into buildings for habitations,

or to any other uses, save such as are necessary for a physic garden,

for the culture, planting and preserving of trees, plants and flowers,

and such like purposes; then it shall be lawful for Sir Hans Sloane,

his heirs and assigns, to enter upon the premises, and to hold the

same for the use and benefit, and in trust for the said President,

Council, and Fellows of the Royal Society, subject to the same rent,

and to the delivery of specimens of plants, as above mentioned to the

President of the College, or Commonalty or Faculty of Physic in

London; and in case the Royal Society shall refuse to comply with

these conditions, then in trust for the President and College of

Physicians of London, subject to the same conditions as the Society of

Apothecaries were originally charged with.

Power is also reserved for the President, or Vice President of the

Royal College of Physicians, once or oftener in every year, to visit

the said garden, and examine if the conditions above specified are

duly observed and complied with.

Footnote 134:

This condition has been long since fulfilled. By an extract from the

minutes of the Royal Society, it would appear that the last

presentation of Plants took place on the 17th of February, 1774, being

the 51st annual presentation, amounting in all to 2550 plants.

Footnote 135:

If however a gentleman of quality, or a physician, officer, &c. be

chosen constable, where there are sufficient persons beside, and no

special custom concerning it; it is said such person may be relieved

in B. R. 2 _Hawk. P. C._ 100. _Jac. L. Dict. tit._ Constable. As to

Surgeons see _The King v. Pond. Comyns R._ 312: 2 _Kebl._ 578. 1

_Syd._ 431: 1 _Mod._ 22.

Footnote 136:

But a Physician in the country, though a Fellow of the College, may be

chosen, 2 _Keb._ 578; 1 _Mod._, 22.; 1 _Keb._ 439; 2 _Hawk._ 100; 1

_Sid._ 431; 2 _Keb._ 578; 2 _Hale_ 100; _Com. Dig. tit._ Physician.

For Surgeons see 18 _Geo._ 2. _c._ 15. §. 10; 2 _Hawk. Pl._ 101; 5

_Hen._ 8. _c._ 6; 1 _Burn._ 387. For Apothecaries 6 _Will._ 3. _c._ 4;

9 _Geo._ 1. _c._ 8. §. 1. See also the Charters. _Comyns_ Rep. 312.

Footnote 137:

In one point counsel have an advantage over physicians in respect of

their fees; the attorney or solicitor who can recover his costs at

law, is an intermediate agent and he is held professionally liable to

the counsel for their payment; and if the attorney have received his

costs from his client (including fees) it would appear that the

counsel might recover in an action for money had and received to his

use. It is to the honor of the profession that we should find no

decided case on the subject.

Footnote 138:

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

Footnote 139:

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

Footnote 140:

See _Law_ v. _Hodgson_, 2 _Camp._ 147. _Johnson and others_ v.

_Hudson_, 11 _East_ 180, and cases cited there. The unprofessional

reader must observe that there is considerable difference between the

authority of cases determined at _Nisi Prius_, which are decided by a

single Judge, and those argued in banco, which are resolved by all the

four Justices of that Court in which the action may have been brought.

Footnote 141:

So also if a Farrier kills a horse or pricks him in shoeing; or if he

refuse to shoe him whereby he is lamed, _Bull. N. P._ 73, and of

trades generally, as, action against a Barber for barbing the

plaintiff, _negligenter et inartificialiter_. 2 _Bulst._ 333; I _Danv.

Ab._ 177; see also 2 _Bl. Com._ 163.

Footnote 142:

This case is recent, but we believe not reported. The plaintiff was a

respectable artisan, and had been employed as engineer and

brass-founder in a large manufactory in the city, and by his industry

was enabled to earn about four guineas per week; the plaintiff’s right

arm was dislocated by a fall from a gig. Mr. _Pettigrew_, the

defendant, was sent for, but being unable to attend from illness, his

assistant undertook the case, but conducted it so unskilfully, that

the plaintiff lost the use of his arm—DAMAGES £800.

Footnote 143:

For other provisions see the act itself. See also two reports from the

Select Committee of the House of Commons, on the state of disease and

condition of the labouring poor in Ireland. May 17 and June 7, 1819.

Footnote 144:

There is among the _Sloane_ manuscripts in the British Museum, a

complaint or remonstrance that the buildings had been appropriated to

other purposes than those intended by their pious and benevolent

founder.

Footnote 145:

For the regulations in the time of the Plague during the reign of

_Elizabeth_, see 2 _Stowe b._ 5. _p._ 450.

Footnote 146:

The case of the _King v. Taunton_, in the King’s Bench, was to this

effect. Mr. _Taunton_ vaccinated his own children, was one of the

first subscribers to the London Vaccine Institution, and has been

constantly on the Board of Managers of that charity. At the same time

he felt it his duty to inoculate such for the Smallpox, who through

prejudice, or otherwise, refused vaccination. Many of the poor who

applied for gratuitous advice, applied also for inoculation for the

Cowpox, and some for the Smallpox.

On the 19th June, Mr. _Taunton_ was arrested on the Lord Chief

Justice’s warrant. He gave bail, and directed his attorneys to defend

the cause, which was to have been tried on Friday, December 8th, in

the Court of King’s Bench, where Mr. _Taunton_ attended with his

witnesses. Sir _William Garrow_, the Attorney General, and counsel for

the plaintiff, stated to the Court, that he should not proceed in the

present case, as he learnt that the defendant had given notice, with

every inoculation, not to expose their children while the disease was

out.

“God forbid,” said he, “that those who have the Smallpox should not be

attended in their own houses by any person they choose; but they must

not be carried about the street to the destruction of others.”

Mr. _Justice Bayley_.—“I hope it is sufficiently notorious, that the

causing persons to pass through the streets, who may have that

disorder upon them, although they are going for medical advice to some

person in whom they may have confidence, is an indictable offence; and

if that person, instead of attending them at their own houses, as he

might do, chooses to direct that they shall, from time to time, be

brought, or come to him, there is no question that he is liable to an

indictment.”

Mr. _Attorney General_.—“The few sentences that your lordship has

pronounced now, are of the last importance to the community.”

Mr. _Justice Bayley_.—“Mr. _Taunton_ should intimate that he is ready

to attend those persons at their own houses.”

Mr. _Pollock_.—“I understand that is part of the notice, that he is

willing to attend such patients at their own houses.”

Footnote 147:

The rise, progress, decline, and cessation, of particular diseases,

forms a curious and useful study to the medical jurist: since the laws

and habits of mankind will thereby be found to possess more

considerable influence on the health and physical strength of a

people, than is generally supposed. See _Observations on the Increase

and Decrease of different Diseases, by W. Heberden, jun. M.D. F.R.S.

London_ 1801. The gradual decline of the Dysentery in this country is

a remarkable proof of the benefits which have ensued from our

improvements with respect to diet, cleanliness, and ventilation.

The long list of chronic diseases with which our nosology abounds is

totally unknown to barbarous nations, and seem to be the natural

consequences of arts and civilization; as these again shoot up into

luxury and intemperance, their effects may well be expected to become

proportionally more conspicuous. Dr. _Rush_ of Philadelphia has

reported, with respect to the uncultivated nations of North America,

that Fevers, Inflammations, and Dysenteries make up the sum of their

complaints, and he remarks, in particular, that after much inquiry, he

had not been able to find a single instance of madness, melancholy, or

fatuity among them. (_Medical Enquiries and Observations by B. M.

Rush, vol. 1. p. 25._) In a subsequent part of his work, the same

author, speaking of the pulmonary consumption, declares it to be

unknown among the Indians of North America (_vol. 1. p. 159_). Mr.

_Park_, in his account of the interior of Africa, says, that

notwithstanding longevity is uncommon among the Negroes, their

diseases appear to be but few; fever and fluxes being the most common,

and the most fatal.

Footnote 148:

The curious reader will not be at a loss to trace the ancient

patronage and jurisdiction of the Bishop of Winchester; suppressed

among other ecclesiastical establishments, by _Henry_ the 8th.

Footnote 149:

_See part 3._ No sufficient provision is yet made for the speedy

removal of prisoners from infected jails; the case hereafter quoted

shows that the Crown has an authority on this subject.

Footnote 150:

During the progress of this work we have seen a fatal instance of a

child sacrificed to the dirty and penurious system of one of the

_very_ cheap schools of the north of England. The author was called in

to his assistance on the child’s arrival in town, but he expired a few

hours afterwards.

Footnote 151:

Case of the Salt Duties with proofs and illustrations, by _Sir Thomas

Bernard_, Bart. London, 1817.

Footnote 152:

In examining the history of Burial in remote ages, we shall find that

both among the Jews and Heathens, _the place of interment was usually

without the city_. Such was the case with the Athenians, the

Smyrnæans, the Sicyonians, the Corinthians, and the Syracusans. The

examples of _Numa_ and _Servius Tullus_ prove, that the Romans

deposited their dead _without_ the city before the introduction of the

twelve tables, which prohibited _burning_ as well as _burial_ within

its precincts. The _Lacedæmonians_ afford an exception to this general

custom; it had been a notion universally prevalent, that the touch of

a dead body conveyed pollution; and _Lycurgus_, the legislator of

Sparta, being anxious to remove the prejudice, introduced the custom

of burial within the city. Among the primitive Christians, burying in

cities and churches was not allowed for several centuries, and

_Theodosius_, after the triumph and establishment of Christianity,

renewed the prohibition upon the old and reasonable ground that graves

_within_ the city were detrimental to the health of the living, and it

was ordered that any person who should disobey this law was to forfeit

the third part of his patrimony; and that the undertaker who directed

a funeral contrary to the prohibition was to be fined forty pounds in

gold. The learned _Bingham_, in his _Antiquities of the Church_, has

traced the gradual introduction the odious custom of burying in

churches. It was from the idea of the protection which would be

afforded by consecrated ground, baptized bells, and relics, that

bodies were first interred in the vicinity of the church: to this

superstition we may ascribe the origin of church-yards, which took

place in the eighth century. The reason alleged by _Gregory_ the Great

for burying in churches, or in places adjoining to them, was that

their relations and friends, remembering those whose sepulchres they

beheld, might thereby be led to offer up prayers for them; and this

reason was afterwards transferred into the body of the canon law. The

practice thus introduced into the Romish church by _Gregory_, was

brought over here by _Cuthbert_, Archbishop of Canterbury, about the

year 750: and the practice of erecting vaults in chancels and under

the altars was begun by _Lanfranc_, Archbishop of Canterbury, when he

had rebuilt the cathedral about 1075. Since this period many

enactments have been made in different countries to abolish so foul a

custom.

Footnote 153:

It is notorious that there are many church-yards in which the soil has

been raised several feet above the level of the adjoining street, by

the accumulated remains of mortality; and there are others, in which

the ground is actually probed with a borer before a grave is opened.

The Commissioners for the improvements in Westminster, reported to

Parliament in 1814, that St. Margaret’s church-yard could not

consistently with the health of the neighbourhood be used much longer

as a burial ground, “_for that it was with the greatest difficulty a

vacant place could at any time be found for strangers; that the family

graves generally would not admit of more than one interment, and that

many of them were then too full for the reception of any member of the

family to which they belonged_.”

Many examples might be adduced of overloaded church-yards and burial

grounds, which have become if not serious nuisances to the health of

their neighbourhood, at least highly offensive to comfort and decency.

There is one instance in our sister kingdom so flagrant, that we

cannot omit noticing it, in the hope that attention may be drawn to

this and similar inconveniencies. There is a burial ground at the back

of Kilmainham hospital (and consequently under the immediate view of

the Commander and Adjutant-General of the Forces), so disproportioned

to the number interred in it, that the older coffins are frequently

broken and the undecomposed limbs constantly thrown on the surface, to

make room for new tenants of this human soil; yet after heavy showers,

the earth being washed away, the lids of coffins may be plainly

discerned, so slight is the covering which can be afforded them.

Immediately below the rising ground on which this cemetery is situated

are the Island Bridge Barracks for the Artillery, the wells of which

must of necessity be filled with the filtrations from the putrid mass

above them. One at least of the principal Tanks at Gibraltar was

similarly situated. The present Lieutenant Governor, Sir George _Don_,

among the numerous improvements in the regulation of cleanliness and

ventilation which he has introduced on the rock, has converted the

burial ground into a public garden; to this, among his other measures,

the garrison may owe some future exemptions from the diseases which

have so often afflicted them.

Footnote 154:

We learn from _Cicero_ (_De Leg._ ii. 22), that of the various modes

of disposing of the dead body, _inhumation_ was the most ancient:

_burning_ and inclosing the remains in urns, were perhaps never found

expedient until national animosities had given rise to inhuman

treatment of the dead. The Egyptians, as they held it unlawful to

expose the bodies of the dead to animals, embalmed them, lest after

interment they might become the prey of worms (_Herod. Thalia_, xvi.);

and their mummies remain to this day a lasting satire upon that folly

which “contends against corruption, and will not allow the grave its

victory.” The custom of _burning_ the dead is of higher antiquity than

we may have at first been led to suppose; _Saul_ was burnt at Jabesh,

and his bones afterwards buried; and _Asa_ was burnt in the bed which

he had made for himself, filled with sweet odours, and divers kinds of

spices: but this custom must of necessity have been limited by the

quantity of fuel required for the purpose. It may be worthy notice,

that according to Mr. _Ward_, the Missionary, who had opportunities of

ascertaining the fact in India, the smallest quantity of wood which is

sufficient to consume a human body is about three hundred weight.

Footnote 155:

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

Footnote 156:

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

Footnote 157:

In less than 30 years, more than 90,000 corpses had been deposited

here by the last grave digger!

Footnote 158:

See _Mémoires de la Société Royale de Médecine, tom_ viii _p._ 242;

also _Annales de Chimie_, tom v p. 158.

Footnote 159:

_Journal de Physique_, 1791 p. 253.

Footnote 160:

See _Annales de Chimie_, vol. iii, p. 120-v, 154-vii, 146-viii, 17;

also _Phil. Trans._ vol. lxxxiv. p. 169.

Footnote 161:

The gases produced by putrefaction, are Carbonic acid, Carburetted

Hydrogen, Sulphuretted and Phosphuretted Hydrogen, and Ammonia; the

most deleterious of which are the compound gases of Hydrogen.

Footnote 162:

_Chaptal’s Elem. of Chem._ vol. iii.

Footnote 163:

_On Lazarettos_, p. 25.

Footnote 164:

See _Burns’s Ecclesiastical Law_. _Tit. Burial. Watson’s Clergyman’s

Law—Gibson—Lindwood._

Footnote 165:

A popular fallacy has long existed upon this point, and it certainly

receives a sanction from the usages of antiquity. At Athens those who

died in debt had no right to human burial, until satisfaction was

made; their bodies belonged to their creditors, whence it is said that

_Cimon_ had no other method to redeem the body of his father

_Miltiades_, but by taking his debts and fetters upon

himself.—_Potter’s Antiq._

Footnote 166:

The peculiar gas to which this destructive quality is owing, is

generally _Sulphuretted Hydrogen_, sometimes existing in combination

with Ammonia (_Hydro-Sulphuret of Ammonia_). _M. Dupuytren_ has also

shewn that the _Plomb_ is sometimes occasioned by _Nitrogen gas_.

_Hallé_ in his work entitled “_Recherches sur le Mephitisme des Fosses

d’Aisances_” has proposed various methods for securing the _nightmen_

from the dreadful effects of this gas, as by _ventilation_ and

_fumigation_. _M. Dupuytren_, however, has satisfactorily proved that

Chlorine, by decomposing it, is its true antidote, by which

_Hydro-Choloric_ acid (_Muriatic_,) is produced, and _Sulphur_

deposited.

In some cases the Sulphuretted Hydrogen has accumulated to such an

extent, that explosions have occurred in privies on the introduction

of a light. We have heard that dreadful ones have happened in the

_Fosses d’Aisances_ in the Rue St. Antoine, and in those of Gross

Caillou, and Petit Bourbon; and very lately in that of the House of

Correction at Clermont-oise, in which many lives were lost. A similar

accident has happened in London; we copy the following paragraph from

the _Morning Advertiser of Friday Feb. 5, 1819_.—“_Singular

Explosion_,—A few evenings ago, at the Two Brewers Tavern,

Redcross-street, Southwark, a person took a candle into the privy, and

laid it upon the seat, the air confined underneath caught fire from

the candle, and immediately exploded, the seat was forced up, and the

person was burned considerably, but not dangerously.”

Footnote 167:

The writings of Portal, Gériel, Laborie, Parmentier, Alibert,

Dupuytren, Cadet de Vaux, and Hallé, contain ample illustrations of

this subject. The reader is also particularly directed to an Essay by

Dr. Gerand, entitled “_Essai sur la suppression des Fosses d’Aisances.

Paris, 1786_.” See also _Dictionnaire de Police_—Art. “_Latrine_.”

Footnote 168:

In the year 1809 a decree was passed in Paris, containing numerous

rules to be observed in the future construction of privies, and which

fixed upon the householder a very heavy expense. In 1819 the French

King issued a Royal Ordinance relative to this subject; it contains

thirty-four clauses or articles, thirty of which revive _in their full

strictness_, all the statutes by which housekeepers are compelled to

undertake most expensive and troublesome building, or repairs of

privies. To relieve them, however, from vexatious costs, the 31st

article was framed upon the recommendation of the Privy Council, and

which liberates those from the obligation, who shall substitute their

old privies by a new apparatus invented by _M. Cazeneuve_, entitled

_Messrs. Fauche-Borel’s Patent Moveable Inodorous Conveniences_, of

whose advantages almost all the learned Societies of Europe have

reported most favourably. We have noticed this decree in order to shew

our reader what a degree of importance the French Government attaches

to the subject. And upon this occasion it is impossible to withhold

the expression of those feelings of national pride and exultation

which the contemplation of this subject must afford us; we have in our

metropolis no less than 200,000 privies, of which 10,000 only are

water closets. In Paris the number does not exceed 70,000, and yet

with all the cumbrous enactments which that government has passed for

their regulation, how far inferior they are in cleanliness, and how

far greater are the effects of their effluvia, when compared with

similar establishments in our city. The truth is, that the most

elaborate system of medical police will never be so effective as the

spirit of cleanliness which is so characteristic of this great and

free people; and in this truth, so forcibly illustrated by the subject

under discussion, we are to seek for the real explanation of that fact

which has been so frequently commented upon by medical writers—THE

APPARENT INDIFFERENCE OF OUR GOVERNMENT TO THE SUBJECT OF PUBLIC

HEALTH.

Footnote 169:

See _Calis on Sewers_.

Footnote 170:

Dr. Ratcliffe being asked the difference between a contagious and

epidemic disease, attempted to explain it by the following

illustration: “_If you and I are exposed to the rain we shall both get

wet, but it does not follow that we shall wet one another._”

Footnote 171:

See _Rees’s_ Cyclopædia, article _Contagion_.

Footnote 172:

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

Footnote 173:

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

Footnote 174:

See _Rees’s Cyclopædia, article Plague_. _Hancock on the Laws of

Pestilence, London, 1821._ _Mercurialis on the Plague of Venice, in

1576._ _Diemerbroeck on the Plague of Nimeguen, in 1636._ _Mertens on

the Plague of Moscow, in 1771._ _Chenot on that of Transylvania, in

1756._ _Riverii Praxis Medica, vol. 2. p. 98._ _Glocenius de Peste,

1611._ _Mead on the Plague of London, 1744._ _Russel on the Plague,

London, 1791._ This learned Physician practised at Aleppo during the

Plague of 1760-1-2, and his work contains a minute account of the

disease with respect to its origin, progress, and decline: it is

considered the best medical account of any individual Plague extant.

_A History of all the most remarkable Plagues upon record, by Noah

Webster, of New York._ _Considerations on the nature of Pestilence,

published as periodical papers, by the Freethinker, 1721._ _The City

Remembrancer, compiled from the best sources, chiefly from the Papers

of Gideon Harvey._ This is the best account of the Plague of London.

_Kephale’s Medela Pestilentiæ, 1665._ _Echar’s History of Plagues._

_Gaetan Sotira, Mem. sur la Peste, observée en Egypt._ _Pappon’s

Epoques memorables de la Peste_, 1801.

Footnote 175:

_Cullen_ defines _Pestis_ to be “Typhus maxime contagiosa, cum summa

debilitate—Incerto morbi die eruptio Bubonum vel Anthracum.” _Nosolog.

Method. Gen._ 30.

Footnote 176:

Op. citat.

Footnote 177:

See _Sir Arthur Brooke Faulkener’s Treasise on the Plague_. The

remarkable fact, mentioned by Dr. _Samoilowitz_, that all the

assistant Surgeons in the hospitals at Moscow took the Plague, while

the Physicians who only walked among the sick, but carefully avoided

contact, generally escaped, affords a strong proof of the greater

facility with which _actual contact_ communicates the infection. This

work of Dr. _Samoilowitz_ (_sur la Peste_) has more than a hundred

pages filled with proofs of its _contagious_ influence; Dr. Granville

also, in his examination before the Committee of the House of Commons,

gave some very interesting instances, in which the poison could only

have been conveyed by _touch_.

Footnote 178:

_Fomites_, or substances imbued with the contagion from the bodies of

the sick, are supposed to retain their infectious quality an

indefinite length of time, and even to communicate the disease more

readily than the persons of the infected.

Footnote 179:

_Results of an investigation respecting Epidemic and Pestilential

Diseases, including Researches in the Levant concerning the Plague. By

Charles Maclean, M.D. London, 1817._

Footnote 180:

It is noticed by writers long before Dr. Maclean: see “_Distinct

notions of the Plague, 1722. Dale Ingram on the Plagues that have

appeared since 1346; and Plague no Contagious Disease._” The following

is the story to which these authors allude.—It appears that Pope Paul

III, about the year 1747, commissioned his legate, Cardinal Montè, to

fabricate some pretext for removing the celebrated Council of Trent,

which was then sitting in debate on the abuses of the ecclesiastical

power, to some town within the Papal territory. An epidemic fever, it

was said, then prevailed at Trent: many of the bishops became alarmed,

and fled; some, if not all, on the Emperor’s side, raised their voices

against the plot; but Fracastorius, Physician of the Council, aided

the imposition with all the zeal of a devoted Catholic, and the

Council was accordingly translated to Bologna. From this time, Dr.

Maclean asserts, it became almost heretical to doubt of the contagious

nature of Plague; and the error, chiefly because it was sanctioned by

the sovereign Pontiff’s authority in the first instance, has been

propagated in christendom, as a point of medical orthodoxy, and

continued down to the present time.—_Maclean, loco citato,—Hancock on

Pestilence_, p. 11.

Footnote 181:

_The history of the Plague, as it has lately appeared in the islands

of Malta, Gozo, Corfu, Cephalonia, &c. detailing important Facts,

illustrative of the Specific contagion of that disease, with

particulars of the means adopted for its eradication_,—By J. D. TULLY,

Esq. Surgeon to the Forces, late Inspector of Quarantine, and

President of the Board of Health of the interior of the Ionian

Islands. 8vo. London, 1821.

Footnote 182:

_A Treatise on the Plague, designed to prove it Contagious, from facts

collected during the Author’s residence in Malta, when visited by that

malady in 1818, with Observations on its prevention, character, and

treatment_,—By Sir ARTHUR BROOKE FAULKNER, M.D. London, 1820. This

work may be considered as one of the richest classical productions on

the subject of the Plague; and we strongly recommend it to the

attention of the medical reader on account of the important facts,

powerful arguments, and correct judgment, which distinguish it.

See also _Narrative of Facts relative to the repeated appearance,

propagation, and extinction of Plague among the British Troops in

Egypt, in the years 1801, 1802, & 1803_,—By JOHN WEBB, _Director

General of the Ordnance Medical Department_; published in the Medical

Transactions of the College of Physicians, vol. vi.

Footnote 183:

In the year 1819, Sir _John Jackson_ moved for a Committee in

Parliament to inquire into the expediency of abrogating or modifying

the restrictions imposed by the Quarantine laws; in which motion he

was supported by the Right Honourable _F. Robinson_, President of the

Board of Trade. The principal objects of inquiry on the subjects in

question were, _first_, Is the Plague capable of being communicated

from person to person, either by immediate contact with those

diseased, or intermediately, by contact with infected goods? or

_secondly_, Is it an Epidemic depending only on a peculiar state of

the atmosphere? The number of medical men examined upon this occasion

was nineteen, only two of whom, Dr. _Maclean_ and Dr. _Mitchell_,

denied the contagious nature of the Plague.

Footnote 184:

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

Footnote 185:

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

Footnote 186:

_Observations on the Diseases which prevail in long voyages to hot

countries. Vol. 1, p. 151._

Footnote 187:

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

Footnote 188:

_Essay on the Diseases incidental to Europeans in hot climates. Edit.

5, p. 27, and 221._

Footnote 189:

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

Footnote 190:

_Typhus cum flavedine Cutis_ of Cullen. _Typhus Icterodes_ of

Sauvages.

Footnote 191:

The chief authorities on the side of its contagious nature are _An

Essay on the Malignant Pestilential Fever introduced into the West

India Islands from Boulam_, by Dr. C. CHISHOLM. London 1795. _Medical

Sketches_, by SIR JAMES MACGREGOR. London 1804. _The Report of the

French Commissioners at Cadiz, in 1804_. And the Works of SIR JAMES

FELLOWS, Dr. CAILLOT, and Dr. AREJULA of Cadiz. Much valuable matter

is also contained in a _Treatise_ by Dr. PYM, Inspector of Hospitals.

London 1818. To which may be added _The Travels of_ DON ANTONIO ULLOA

and DON JORGE JUAN.

Footnote 192:

RUSH _on Yellow Fever_.

Footnote 193:

_An Essay on the Disease called Yellow Fever_, by EDWARD NATHANIEL

BANCROFT, M.D. &c. London 1811.

Footnote 194:

In the year 1817 Dr. _Bancroft_ published a _Sequel_ to his work, in

order to shew that the _Bulam Fever_ has no existence as a distinct or

contagious disease. This malady _Dr. Chisholm_ supposed to be a

peculiar, original, and foreign pestilence, and to have been imported

from Bulam, on the coast of Africa, by the ship _Hankey_, to the

island of Grenada; an opinion which received the support of Dr. _Pym_.

Footnote 195:

_Medical Logic Edit. 2. p. 219._

Footnote 196:

SPORADIC.—An epithet used in opposition to that of _Epidemic_, and is

given to such diseases as have some special or particular cause, and

are dispersed here and there, affecting only particular constitutions,

ages, &c. σποραδικος, from σπορας, _dispersed_, of σπείρω _I strew_.

Footnote 197:

The most remarkable of these Epidemics on record, are, that of 1647 in

Barbadoes; that of 1686 in Martinique; that in the Spanish Main, in

1729, and 1740; and the most general and destructive of all, which

broke out at Grenada in the month of March, in 1793, which spread

rapidly to the whole Carribean Archipelago, and from thence to North

America, and the shores of Europe. The most remarkable, and perhaps

the only instances on record of its existence in North America, are

that of Boston in 1693, on the arrival of a squadron of English ships

of war from the West Indies; that in Carolina, in the years 1732,

1739, 1745, and 1748, all which, by the account of the physicians who

describe it, could be traced to importations from the sugar colonies;

that of Philadelphia, in 1751 and 1762; and that above-mentioned in

1793. It now remains to give the history of it as it appeared in

Europe. It may be chronologically stated as follows: at Lisbon, in

1723; at Cadiz, in 1732, 1733, 1744, 1746, 1764, 1800; at Malaga, in

1741 and 1803; at Gibralter, in 1804. It has since appeared at

different times in these cities, as well as at Carthagena, Alicant,

and Leghorn. _Extracted from Sir Gilbert Blane’s work._