But it is highly injurious to the usefulness and honour of the

Profession, to suppose the education of a Physician may be confined to

the pursuit of Medicine as an _art_. Sir William Blackstone, in the

Introduction to his “Commentaries on the Laws of England[132],” has

reprobated the custom of placing the juridical student “at the desk of

some skilful attorney, in order to initiate him early in all the depths

of practice, and render him more dexterous in the mechanical part of

business.” This illiberal path to the bar is not to be sanctioned,

he observes, by a few particular instances of persons, who, through

the force of transcendent genius, have been able to overcome every

disadvantage. And he points out, in very forcible terms and with sound

argument, how essential it is to the lawyer to form his sentiments by

the perusal of the purest classical authors; to learn to reason with

precision, by the simple but clear rules of unsophisticated logic; to fix

the attention, and steadily to pursue truth through the most intricate

deductions, by an acquaintance with mathematical demonstration; and to

acquire enlarged conceptions of nature and of art, by a view of the

several branches of experimental philosophy. Now, if this be the _vantage

ground_, (to adopt the language of Lord Bacon,) from which the study of

the Law should commence, it ought to be deemed at least equally necessary

to qualify for the prosecution of Medicine—a science which has man, as

a compound of matter and mind, for its subject, and an infinitude of

substances derived from the animal, vegetable, and mineral kingdoms for

its instruments. This sentiment seems to have been early prevalent in

the celebrated school of Physic, established at Salerno in Italy. For it

was enacted, A.D. 1237, by the heads of colleges there, that the pupils

should be bound to pass three years in the acquisition of philosophy, and

five subsequent years in that of Medicine[133]. The like regulations were

afterwards adopted in other Universities; but in various countries have

fallen into disuse.

On the first revival of learning in Europe, science was held in the

highest estimation; and the three faculties of Law, Physic, and Divinity

assumed particular honours and privileges. Academical degrees were

conferred on their members; and these titles, with the rank annexed

to them, were admitted _ubique gentium_; being, like the order of

knighthood, of universal validity. Doctors indeed contended sometimes

with knights for precedence, and the disputes were not unfrequently

terminated by advancing the former to the dignity of knighthood. It

was even asserted that a doctor had a right to that title without

creation[134].

NOTE VII. Chap. ii. § 15. p. 57.

_Pecuniary acknowledgements._

The following fact is applicable to the professional conduct of

Physicians towards their friends:—“When Addison was in office, [under

the earl of Wharton, as Lord Lieutenant of Ireland,] he made a law to

himself, as Swift has recorded, never to remit his regular fees in

civility to his friends: ‘for,’ said he, ‘I may have a hundred friends;

and, if my fee be two guineas, I shall, by relinquishing my right, lose

two hundred guineas, and no friend gain more than two; there is therefore

no proportion between the good imparted, and the evil suffered[135].’” In

recording Mr. Addison’s _prudential_ conduct, his probity, with respect

to pecuniary acknowledgements, should not be unnoticed. In a letter,

relative to the case of Major Dunbar, he says:—“And now, Sir, believe

me, when I assure you, I never did, nor ever will, on any pretence

whatsoever, take more than the stated or customary fees of my office. I

might keep the contrary practice concealed from the world, were I capable

of it; but I could not from myself; and I hope I shall always fear the

reproaches of my own heart, more than those of all mankind[136].”

At a period when empirics and empiricism seem to have prevailed much in

Rome, the exorbitant demands of Medical practitioners, particularly for

certain secret compositions which they dispensed, induced the Emperor

Valentinian to ordain, that no individual of the Faculty should make an

express charge for his attendance on a patient, nor even avail himself

of any promise of remuneration during the period of sickness; but that

he should rest satisfied with the donative voluntarily offered at the

close of his ministration[137]. By the same law, however, the Emperor

provided that one practitioner, at least, should be appointed for each

of the fourteen sections into which the Roman metropolis was divided,

with special privileges, and a competent salary for his services; thus

indirectly, yet explicitly, acknowledging that a Physician has a full

claim in equity to his professional emoluments. Is it not reasonable,

therefore, to conclude, that what subsisted as a _moral_ right, ought

to have been demandable, under proper regulations, as a _legal_ right?

For it seems to be the office of law to recognise and enforce that which

natural justice recognises and sanctions.

The Roman advocates were subject to the like restrictions, and from a

similar cause; for their rapacity occasioned the revival of the Cincian

Law, “qua cavetur antiquitus, ne quis ob causam orandam pecuniam donumve

accipiat.” But Tacitus relates, that, when the subject was brought into

discussion before Claudius Caesar, amongst other arguments in favour

of receiving fees, it was forcibly urged, “sublatis studiorum pretiis,

etiam studia peritura;” and that, in consequence, the prince “capiendis

pecuniis posuit modum, usque ad dena sestertia, quem egressi repetundarum

tenerentur[138].”

A precise and invariable _modus_, however, would be injurious both to

the barrister and the Physician, because the fees of each ought to be

measured by the value of his time, the eminence of his character, and by

his general rule of practice. This rule, with its antecedents, being well

known, a _tacit compact_ is established, restrictive on the claims of

the practitioner, and binding on the probity of the patient. Law cannot

properly by its ordinances establish the custom, which will and ought

to vary in different situations and under different circumstances. But

a court of judicature, when formally appealed to, seems to be competent

to authorize it if just, and to correct it if unjust. Such decisions

could not wholly change the honorary nature of fees; because they would

continue to be increased at the discretion of the affluent, according to

their liberality and grateful sense of kind attentions; and diminished

at the option of the Physician to those who may from particular

circumstances require his beneficence.

From the Roman code the established usage in different countries of

Europe relative to Medical fees has probably originated. This usage,

which constitutes common law, seems to require considerable modification

to adapt it to the present state of the Profession. For the general

body of the Faculty, especially in the united kingdom of Great Britain

and Ireland, are held in very high estimation on account of their

liberality, learning, and integrity[139]; and it would be difficult to

assign a satisfactory reason why they should be excluded from judicial

protection, when the just remuneration of their services is wrongfully

withheld. Indeed a Medical practitioner (one especially who is settled

in a provincial town, or in the country,) may have accumulated claims

from long-protracted and often expensive attendance; and his pecuniary

acknowledgements may be refused from prejudice, from captiousness, from

parsimony, or from dishonesty. Under such circumstances considerations of

benevolence, humanity, and gratitude, are wholly set aside; because, when

disputes arise, they must be suspended or extinguished, and the question

at issue can alone be decided on the principles of _commutative justice_.

NOTE VIII. Chap. ii. § 30. p. 65.

_Public worship; scepticism and infidelity._

The neglect of social worship, with which Physicians have been too

justly charged, may be traced in many instances to the period of their

academical education, particularly in the Universities, where young

men are permitted to live at large, and are subject to no collegiate

discipline. Sunday, affording a recess from public lectures, is devoted

by those who are ardent in study to a review of the labours of the

past week, to preparations for Medical or scientific discussions

in the societies of which they are members, or to other pursuits,

belonging to their Profession, but unconnected with Religion. The

idle and the gay in such situations are eager to avail themselves of

opportunities so favourable to their taste for recreation, or to their

aversion to business and confinement. In each of these classes, though

actuated by different principles, there is much danger that devotional

impressions will be gradually impaired for want of stated exercise and

renewal; and a foundation will thus be laid for habitual and permanent

indifference in future life to Divine services, whenever Medical

avocations furnish a _salvo_ to the mind, and a plausible excuse to the

world, for non-attendance on them. This coldness of heart, this moral

insensibility, should be sedulously counteracted before it has acquired

an invincible ascendancy. No apology should be admitted for absence

from the stated offices of piety, but that of duties to be performed of

immediate and pressing necessity. When the church is entered with just

views, it will be found that there is a sympathy in religious homage,

which at once inspires and heightens devotion; and that to hold communion

with God in concert with our families, our friends, our neighbours,

and our fellow citizens, is the highest privilege of human nature.

But, with a full conviction of the obligation of public worship, as a

social institution founded on common consent, and enjoined by legal

authority; as a moral duty connecting us by the most endearing ties

with our brethren of mankind, who are joint dependants with ourselves

on the pardon, the protection, and the bounty of GOD; and as a debt of

general homage to our Creator, Benefactor, and Judge; yet there may

subsist in a devout and benevolent mind scruples respecting doctrines

and forms, sufficient to produce an alienation from the sacred offices

of the temple. Such doubts, when they originate from serious enquiry,

and are not the result of fastidiousness or arrogance, have a claim to

tenderness and indulgence; because to act in contradiction to them,

whilst they subsist, would be a violation of sincerity, amounting in some

cases to the guilt of hypocrisy. But in a country where private judgement

is happily under no restraint, and where so great a diversity of sects

prevails, it will be strange if a candid and well-informed man can find

no Christian denomination, with which he might accord in spirit and in

truth. Sir Thomas Brown, in the statement which he has given in his

“Religio Medici[140],” seems to have allowed himself on these points very

extensive latitude:—“We have reformed _from_ them, [viz. the Papists,]

not against them; ... and therefore I am not scrupulous to converse and

live with them, to enter their churches in defect of ours, and either

pray _with_ them or for them. I could never perceive ... that a resolved

conscience may not adore her Creator any where, especially in places

devoted to His service; where, if _their_ devotions offend Him, mine may

please Him; if theirs profane it, mine may hallow it.... I could never

hear the _Ave-Mary_ bell without an elevation, or think it a sufficient

warrant, because _they_ erred in one circumstance, for me to err in

all,—that is, in silence and dumb contempt: whilst therefore _they_

directed their devotions to _her_, I offered mine to GOD, and rectified

the errors of _their_ prayers by rightly ordering my own.”

But authority much more respectable than that of Sir Thomas Brown may be

adduced in favour of the spirit of catholicism in Christian communion.

Mr. Locke, a short time before his death, received the Sacrament

according to the rites of the Church of England, though it is evident

from his writings that he dissented from many of her doctrines. When

the office was finished, he told the minister, “that he was in the

sentiment of perfect charity towards all men, and of a sincere union

with the Church of CHRIST, under whatever name distinguished[141].”—Dr.

David Hartley was originally intended for the clerical profession, but

was prevented from going into holy orders by his scruples concerning

subscription to the Thirty-nine Articles. He continued, however, to the

end of his life, a well-affected member of the Establishment, approving

of its practical doctrines, and conforming to its public worship. He

was a Catholic Christian, says his son and biographer, in the most

extensive and literal sense of the term. On the subject of religious

controversy he has left the following testimony of his sentiments:—“The

great differences of opinion and contentions, which happen on religious

matters, are plainly owing to the violence of men’s passions more than

to any other cause. When Religion has had its due effect in restraining

these, and begetting true candour, we may expect a unity of opinion both

in religious and other matters, as far as is necessary for useful and

practicable purposes.”

These examples of the conduct of wise and conscientious Christians

evince, that, in their estimation, forms, ceremonies, and doctrines,

are of a moment subordinate to the benefits and obligations of social

worship. But they are not adduced to sanction an _indifference_, either

to religious rites, or religious truth. The mind will always be in the

best frame for holy exercises, when the modes by which they are conducted

are consonant to its sentiments of propriety and rectitude; and that

church should be habitually resorted to, if practicable, the public

services of which accord most satisfactorily with the views of the

individual, concerning the attributes of GOD, and the revelation of His

will and promises to man. No personal friendship, no party connection, no

professional interest should be allowed to predominate in the choice. For

genuine piety, which is the joint offspring of reason and of sentiment,

admits of no substitutions. It consists in a full conviction of the

understanding, accompanied with correspondent affections of the heart;

and in its exercises calls forth their united and noblest energies.

It will not be foreign to the subject of this note to investigate

briefly, the imputation of scepticism and infidelity, which has been laid

against the Medical Faculty. The Rev. Dr. Samuel Parr, whose candour is

unquestionable, and whose learning and genius entitle him to the highest

respect, has lately sanctioned it, as will appear by the following

passage from his “Remarks on the Statement of Dr. Charles Combe,”

(p. 82[142]):—“While I allow,” says he, “that peculiar and important

advantages arise from the appropriate studies of the three liberal

professions, I must confess, that in erudition, in science, and in habits

of deep and comprehensive thinking, the pre-eminence in some degree must

be assigned to Physicians. The propensity which some of them have shewn

to scepticism upon religious topics is indeed to be seriously lamented;

and it may be satisfactorily explained, I think, upon metaphysical

principles, which evince the strength rather than the weakness of

the human mind, when contemplating under certain circumstances the

multiplicity and energy of physical causes. But I often console myself

with reflecting on the sounder opinions of Sir Thomas Brown, Sydenham,

Boerhaave, and Hartley, in the days that are past: and of our own times

posterity will remember that they were adorned by the virtues, as well as

the talents, of a Gregory, a Heberden, a Falconer[143], &c.”

Mr. Gisborne, in his “Enquiry into the Duties of Men, in the Higher

and Middle Classes of Society[144],” a work to which I have already

referred, as an admirable system of practical and appropriate ethics,

has very explicitly and forcibly delivered his sentiments on this

interesting subject. “The charge,” he says, “may have been made on

partial and insufficient grounds; but the existence of it should excite

the efforts of every conscientious Physician to rescue himself from

the general stigma. It should stimulate him, not to affect a sense of

Religion which he does not entertain, but openly to avow that which

he actually feels.... If the charge be in some measure true, it is of

importance to the Physician to ascertain the causes from which the fact

has originated, that he may be the more on his guard against their

influence. The following circumstances may not have been without their

weight. They who are accustomed to deep researches into any branch of

philosophical science; and find themselves able to explain to their own

satisfaction almost every phenomenon, and to account (as they apprehend,)

for almost every effect by the operation of such causes as in ordinary

language are termed _natural_, are apt to acquire extravagant ideas of

the sufficiency of human reason on all subjects: and thus learning to

doubt the necessity, become prejudiced against the belief, of Divine

Revelation. In the next place, they who justly disclaim the empire of

authority in Medical theories, may carelessly proceed to regard religious

doctrines as theories, resting on no other foundation, and deserving of

no better fate. Thirdly, it is to be observed, that men may be divided

into two distinct classes, with respect to the sort of testimony on

which they receive truths of any kind. They who are chiefly addicted

to investigations and reasonings founded on analogy, look primarily

and with extreme partiality to that species of evidence; and, if the

thing asserted appears contrary to the common course of nature, more

especially if it militate against any theory of their own, (and such

persons are much disposed to theorize,) they are above measure reluctant

to admit the reality of it, and withhold their assent until such a

number of particular proofs, incapable of being resolved into fraud or

misconception, is produced, as would have been far more than sufficient

to convince an unbiassed understanding: whereas other men, little used

to analogical enquiries, look not around for such testimony either in

support or in refutation of an extraordinary circumstance affirmed to

them; but readily give credit to the fact on its own distinct proofs, or

from confidence in the veracity and discernment of the relator. It is

evident that Physicians are to be ranked in the class first described,

and are consequently liable to its prejudices: and it is equally evident

that those prejudices will render all on whom they fasten, particularly

averse to recognise the truth of miracles; and will probably prevent

them from examining with impartiality the evidence of a religion founded

on miracles, and perhaps from examining it at all. Fourthly, to the

preceding circumstances must be added the neglect of Divine worship too

customary among persons of the Medical profession. This neglect seems

to have contributed not only to excite and to strengthen the opinion of

their scepticism and infidelity, but sometimes to produce scepticism and

infidelity itself; for it is a natural progress, that he who habitually

disregards the public duties of Religion, should soon omit those which

are private, should speedily begin to wish that Christianity may not

be true, should then proceed to doubt its truth, and at length should

disbelieve it.”

The late Dr. [John] Gregory of Edinburgh, anxious to support the honour

of a profession which he loved, and of which he was a distinguished

ornament, very strenuously repels the charge against it of scepticism

and infidelity. Though his excellent Lectures are doubtless in the

hands of most Physicians, yet I am tempted to make a transcript from

them, because I wish the present important subject to be viewed in the

several lights in which it has been presented to the mind by different

writers of acknowledged probity, information, and judgement. “I think

the charge,” he observes[145], “ill founded, and will venture to say,

that the most eminent of our Faculty have been distinguished for real

piety. I shall only mention as examples, Harvey, Sydenham, Arbuthnot,

Boerhaave, Stahl, and Hoffmann.—It is easy, however, to see whence this

calumny has arisen. Men whose minds have been enlarged by knowledge, who

have been accustomed to think, and to reason upon all subjects with a

generous freedom, are not apt to become bigots to any particular sect or

system. They can be steady to their own principles, without thinking ill

of those who differ from them; but they are impatient of the authority

and control of men, who would lord it over their consciences, and

dictate to them what they are to believe. This freedom of spirit, this

moderation and charity for those of different sentiments, have frequently

been ascribed by narrow-minded people to secret infidelity, scepticism,

or, at least, to lukewarmness in Religion; while some who were sincere

Christians, exasperated by such reproaches, have sometimes expressed

themselves unguardedly, and thereby afforded their enemies a handle to

calumniate them. This, I imagine, has been the real source of that charge

of infidelity, so often and so unjustly brought against Physicians....

The study of Medicine[146], of all others, should be the least suspected

of leading to impiety. An intimate acquaintance with the works of Nature

raises the mind to the most sublime conceptions of the Supreme Being;

and at the same time dilates the heart with the most pleasing views of

Providence. The difficulties that necessarily attend all deep enquiries

into a subject so disproportionate to the human faculties, should not

be suspected to surprise a Physician, who, in his practice, is often

involved in perplexity, even in subjects exposed to the examination of

his senses.

“There are, besides, some peculiar circumstances in the profession of a

Physician, which should naturally dispose him to look beyond the present

scene of things, and engage his heart on the side of Religion. He has

many opportunities of seeing people, once the gay and the happy, sunk

in deep distress, sometimes devoted to a painful and lingering death,

and sometimes struggling with the tortures of a distracted mind. Such

afflictive scenes, one would imagine, might soften any heart, not dead

to every feeling of humanity, and make it reverence that Religion, which

alone can support the soul in the most complicated distresses; that

Religion, which teaches to enjoy life with cheerfulness, and to resign it

with dignity.”

The judicious and animated considerations which are here delivered,

could proceed only from a mind actuated by the principles of virtue

and Religion; and I trust the great majority of Physicians have their

feelings in unison with those of the amiable writer I have quoted. But

there may be some who have been hardened to moral apathy by the very

causes which should excite benevolence and piety. It has been well

remarked by divines and metaphysicians, that _passive impressions_

become progressively weaker by frequent recurrence; and that the heart

is liable to grow callous to scenes of horror and distress, and even to

the view of death itself. This law of nature is intended by the wise and

benignant Author of our frame to answer the most salutary purposes, by

co-operating with another of equal, perhaps superior, force: for _active

propensities_ are formed and gradually strengthened by the like renewal

of the circumstances which excite them. The love of goodness is thus

rendered habitual; and rectitude of conduct is steadily and uniformly

pursued without struggle or perturbation.

The human character then attains the highest excellence of which this

probationary state is capable; and perhaps the Medical profession is more

favourable than any other to the formation of a mental constitution, that

unites in it very high degrees of intellectual and moral vigour; because

it calls forth the steady and unremitting exertions of benevolence, under

the direction of cultivated reason; and, by opening a wider and wider

sphere of duty, progressively augments their reciprocal energies. But

the connection between the laws of impression, and of habit, is not so

determinate and necessary as to be wholly independent of the agent who

is under their influence. By a perversion of the understanding and the

will, they may be, and sometimes are, separated. The affections also,

when the temperament is phlegmatic, subsist only in a languid state; and

are too evanescent to produce a permanently correspondent frame of mind.

If with this coldness of heart a sceptical turn of thinking happen to be

associated, either constitutionally or from the casualties of study and

connections, virtuous principles will gradually decay; all the tender

charities of life will soon be extinguished; a future state will be

either disbelieved or regarded with indifference; and practical atheism

will ensue, with the whole train of evils which result from a denial

of the creative agency of GOD, or His Divine administration. Allowing

this to be an extreme and barely possible case, (a concession which I

am solicitous to grant to my countrymen, notwithstanding what has been

fatally experienced in a neighbouring kingdom,) yet different gradations

towards it may subsist, and the first step should be avoided with

sedulous care. The countervailing power of Religion is here essentially

necessary, because nothing besides can furnish motives to rectitude,

of adequate dignity, weight, and authority. To restore the impressions

of piety which have been lost or impaired, without falling into the

fervours of enthusiasm, or the gloom of superstition, may be an arduous

task, a task that will require time and perseverance to accomplish. But

the attainment will amply repay the labour, by the sweet satisfaction

which a Physician cannot fail to derive from the consciousness that he

exercises his profession under the inspection of a Being Who approves and

will reward every effort to acquire His favour by doing good to mankind.

In his offices of humanity, he will feel an interest and elevation,

of which those can have no conception who regard the human race, (and

consequently the sufferers under their care,) not as the offspring of

GOD, or as expectants of immortality, but as the creatures of a day,

formed by the casual concourse or the natural appetencies of atoms, and

born only to perish. Such degrading and unhappy notions often spring

from a love of paradox, a passion for novel hypothesis, ambition to

be victorious in subtle disputation, and a contempt for established

authority, accompanied for the most part with an implicit submission to

empirics in science, who dogmatize most when they assume the mask of

scepticism. To the successful pursuit of truth it is necessary to bring

a well-disciplined mind, modest and sober in its views, and uninfluenced

not only by vulgar, but by philosophical prejudices, which are far more

dangerous, because more plausible and fascinating. When subjects which

relate to theology are investigated, reverence and humility should be

associated with all our reasonings. No practice is more subversive of

devotional sentiment, than that of carrying into religious discussions

the licentiousness of thought and expression, which young Physicians

are too apt to indulge on Medical topics. He who can suffer himself to

treat his Maker with indifference and with levity, whether it be in

utterance or in contemplation, will soon lose the religious impressions

of reverence, gratitude and love; and his mind will then be prepared for

the systems of impiety and atheism, which of late have been so boldly

promulgated under the imposing name of philosophy. Productions of this

class should be shunned, even by those who are thoroughly grounded in

rational faith; because familiarity with them can hardly fail to impair

the moral sensibilities of the heart. They are “evil communications,”

which forcibly tend to “corrupt good manners.”

To the comprehensive view of a well-educated Physician, the Divine

Being will appear, with the fullest manifestation, in all without and

all within him. Through the several kingdoms of nature, with which he

is intimately acquainted, he traces every where design, intelligence,

power, wisdom, and goodness; and in the frame of his own body, as well

as in the constitution of his mental faculties, he finds especial reason

to conclude, that, above all the other works of the creation, “he is

fearfully and wonderfully made[147].” The daily offices of his profession

disclose to him irrefragable proofs of the providence and moral

government of GOD. Health, as consisting in the soundness and vigour

of the bodily organs, and in their complete aptitude for exertion and

enjoyment, is doubtless of inestimable consideration. But the occasional

suspension of this blessing may be necessary to obviate the abuses to

which it is liable, to evince its high value, to remedy the injuries it

may have sustained, and to insure its future more permanent duration. A

strong constitution is too often made subservient to sensuality, ebriety,

and other licentious indulgences, which, if not seasonably interrupted by

the experience of consequential suffering, would prove destructive to the

animal economy, and bring on premature decrepitude or death. Diseases,

under these circumstances, furnish a beneficial restraint, and preserve

the mind from contamination, whilst they are often the remedies which

nature has kindly provided for the restoration of the vital functions.

A good, which has been lost and beneficently restored, will be prized

according to its high desert; and, being cherished with assiduous care,

will be prolonged and applied to its proper uses in the great business of

life. But sickness, it must be acknowledged, is not always remedial in

its tendency; and frequently produces degrees of protracted languishment

and pain, grievous to endure, and obstructive of those active offices,

which, in his present sphere, man is called upon to perform. There are

duties, however, of another class, not less essential to the improvement

and excellence of his moral and religious character; and where is a

school to be found like the chamber of sickness for meekness, patience,

resignation, gratitude, and devout trust in GOD? There pride is humbled,

the angry passions subside, animosities cease, and the vanities of the

world lose their bewitching attractions. False associations are there

corrected, true estimates are formed; and, whilst the passive virtues

are cultivated in the suffering individual, all who minister to him have

their best dispositions exercised and improved. Tenderness, humanity,

sympathy, friendship, and domestic love, on such occasions, find that

sphere which is peculiarly adapted to their exertion; and all the softer

charities derive from these sources their highest refinements[148].

Rational theism leads the mind, by fair and necessary induction, to

extend its views to Revelation. He who has discovered the Divine

wisdom, power, and goodness, through the various works of creation,

will feel a solicitude to make farther advances in sacred knowledge;

and, the more profoundly he venerates the Author of his being, the more

earnest will he be to become acquainted with His will, with the means

of conciliating His favour, with the duration of his own existence, and

with his future destination. Several distinguished characters in the

heathen world have in a very explicit manner testified the truth of this

observation. Suffice it to state only the following remarkable passages

from Plato[149]:—“A divine revelation is necessary to explain the true

worship of GOD—to add authority to moral precepts—to assist our best

endeavours in a virtuous course—to fix the future rewards and punishments

of virtuous and vicious conduct—and to point out some acceptable

expiation for sin.” He introduces Socrates, assuring Alcibiades, “that

in a future time a divine person will appear, who, in pure love to

man, shall remove all darkness from his mind, and instruct him how to

offer his prayers and praises in the most acceptable way to the Divine

Being.” The privileges which this intelligent and amiable philosopher

ardently looked for, we happily enjoy. Christianity has “brought life and

immortality to light[150];” and the Gospel is the sacred charter of our

expected inheritance of felicity. To regard with indifference what is so

momentous, is the grossest folly; to be dissatisfied with its evidence,

argues the want of discernment and of candour; and to reject it, without

deliberate and conscientious investigation, is a high degree of impiety:

the appeal, however, must finally be made to the judgement of every

individual; and we may humbly hope, that He Who knoweth our frame, will

pity intellectual infirmity, and pardon involuntary error.

NOTE IX. Chap. ii. § 31. p. 66.

_Union in consultation of senior and junior Physicians._

“Heat and vivacity in age,” says Bacon[151], “is an excellent composition

for business. Young men are fitter to invent than to judge, fitter for

execution than for counsel, and fitter for new projects than for settled

business; for the experience of age, in things that fall within the

compass of it, directeth them, but in new things abuseth them. The errors

of young men are the ruin of business; but the errors of aged men amount

but to this, that more might have been done or sooner. Young men, in the

conduct and manage of actions, embrace more than they can hold; stir more

than they can quiet; fly to the end without consideration of the means

and degrees; pursue some few principles, which they have chanced upon,

absurdly; care not to innovate, which draws unknown inconveniences; use

extreme remedies at first; and, that which doubleth all errors, will not

acknowledge or retract them; like an unruly horse, that will neither

stop nor turn. Men of age object too much, consult too long, adventure

too little, repent too soon, and seldom drive business home to the full

period, but content themselves with a mediocrity of success. Certainly

it is good to compound employments of both; for that will be good for

the present, because the virtues of either age may correct the defects

of both; and good for succession, that young men may be learners, while

men in age are actors; and lastly, good for extern accidents, because

authority followeth old men, and favour and popularity youth. But for the

moral part, perhaps youth will have the pre-eminence, as age hath for the

politic.”

[NOTE X. Chap. iv. § 2. p. 79.

_On Wills._

In case of intestacy if a man leave a wife and children, the wife takes

one third of the personal estate, and the other two thirds belong to

the child or children. If the deceased leave a wife, but no child, one

half of his personal estate will descend to his wife, and the other half

will be divisible among his nearest of kindred, in the same manner as

the whole would have been divisible if he had left no wife. But under no

circumstances is the wife entitled to more than half of her husband’s

estate, if he die intestate. The father of an intestate without issue

is entitled to one half of his estate if he leave a widow, and to the

whole if he leave none. When the nearest of kindred are the mother and

the brothers and sisters, the personal estate is divisible into equal

portions, one of which will belong to the mother, and one to each of the

brothers and sisters[152]

By Stat. 1 Vict. c. 26, one settled rule is established, which is

applicable to every species of Wills and every description of property;

it being enacted that no Will shall be valid unless it shall be in

writing, and signed at the foot or end thereof by the testator, or by

some other person in his presence and by his direction. Every will must

have at least two witnesses, who must be present at the same time during

the signature of the testator, and must attest and subscribe the Will

in the presence of the testator:—but no particular form of attestation

is necessary.—If a person to whom a legacy is given, be witness to a

Will, he forfeits his legacy; but a creditor may be a witness to a Will

without forfeiting his debt, and also an executor without invalidating

his appointment to the executorship.]

NOTE XI. Chap. iv. § 2. p. 83.

_Partial insanity, with general intelligence. Lucid interval._

Sir Matthew Hale has stated[153], that “There is a _partial_ insanity of

mind; and a _total_ insanity. The former is either in respect to things,

_quoad hoc vel illud insanire_; some persons, that have a competent

use of reason in respect of some subjects, are yet under a particular

_dementia_ in respect of some particular discourses, subjects, or

applications; or else it is particular in respect of degrees; and this is

the condition of very many, especially melancholy persons, who for the

most part discover their defect in excessive fears and griefs, and yet

are not wholly destitute of the use of reason; and this partial insanity

seems not to excuse them in the committing of any offence for its matter

capital; for doubtless most persons that are felons of themselves, and

others, are under a degree of partial insanity, when they commit these

offences.... The person that is absolutely mad for a day, killing a

man in that distemper, is equally not guilty, as if he were mad without

intermission. But such persons as have their lucid intervals (which

ordinarily happens between the full and change of the moon,) in such

intervals have usually at least a competent use of reason, and crimes

committed by them in these intervals are of the same nature, and subject

to the same punishment, as if they had no such deficiency; nay, the

alienations and contracts made by them in such intervals are obliging to

their heirs and executors.”

Partial insanity and general intelligence may subsist in various degrees

and proportions to each other in different persons, and even in the

same person at different times. If Socrates had lived at this period,

and had not only professed himself to be governed by the influences

of a familiar spirit, or demon, but had also uniformly regulated his

conversation and actions by this persuasion, he would have been justly

chargeable with derangement of mind, notwithstanding the profound wisdom

which he displayed in his instructions concerning morals and the conduct

of life. Lord Herbert of Cherbury was highly distinguished both for

talents and erudition: but, having unfortunately adopted prejudices

against Christianity, he wrote an elaborate work entitled, “De Veritate,

prout distinguitur a Revelatione;” and, knowing it would meet with

much opposition, he remained some time in anxious suspense about the

publication of it. Providence, however, as he informs us in his own

biographical memoirs, kindly interposed, and determined his wavering

resolutions. “Being thus doubtful in my chamber, one fair day in the

summer, my casement being opened towards the south, the sun shining

clear, and no wind stirring, I took my book, ‘De Veritate,’ in my hand,

and kneeling on my knees, devoutly said these words:—‘O Thou eternal GOD,

... I am not satisfied enough whether I shall publish this book, “De

Veritate;” if it be for Thy glory, I beseech Thee give me some sign from

heaven; if not, I shall suppress it.’ I had no sooner spoken these words,

but a loud though yet gentle noise came from the heavens, (for it was

like nothing on earth,) which did so comfort and cheer me, that I took my

petition as granted, and that I had the sign I demanded; whereupon also

I resolved to print my book.” This was not a temporary delusion of the

imagination, but continued a permanent object of belief through life. And

the impression was more extraordinary, and more indicative of an unsound

mind, because Lord Herbert’s chief argument against Christianity is,

the improbability that Heaven shall reveal its laws _only to a portion

of the earth_. For how could he, who doubted of a _partial_, confide in

an _individual_, revelation? or is it possible that he could rationally

think his book of sufficient importance to extort a declaration of

the Divine will, when the interest and happiness of a fourth part of

mankind were deemed by him objects inadequate to the like display of

goodness[154].

The history of the Rev. Simon Browne still more remarkably exemplifies

the union of vigour and imbecility, of rectitude and perversion in

the same understanding. The loss of his wife and of his only son so

powerfully affected him, that he desisted from the duties of his clerical

function, and could not be persuaded to join in any act of worship to the

Deity, either public or private. “He imagined that Almighty GOD, by a

singular instance of Divine power, had, in a gradual manner, annihilated

in him the thinking substance, and utterly divested him of consciousness:

that, though he retained the human shape, and the faculty of speaking, in

a manner that appeared to others rational, he had all the while no more

notion of what he said than a parrot. And, very consistently with this,

he looked upon himself as no longer a moral agent, a subject of reward or

punishment.” In this conviction he continued with very little variation,

to the close of life. Yet, whilst under the influence of this strange

phrenzy, his faculties, in all other respects, appeared to be in full

vigour. He applied himself with ardour to his studies; and was so acute

a disputant, that his friends were wont to say, “he could reason as if

possessed of _two_ souls.” Indeed, both his imagination and his judgement

were so improved as to surpass the state in which they subsisted during

his perfect sanity[155].

In J. J. Rousseau, we have a most interesting example of morbid

sensibility and depraved imagination, combined with extensive knowledge

and pre-eminent genius. It is said by Madame de Staël[156] that

“sometimes he would part with you, with all his former affection; but,

if an expression had escaped you, which might bear an unfavourable

construction, he would recollect it, examine it, exaggerate it, perhaps

dwell upon it for a week, and conclude by a total breach with you. Hence

it was, that there was scarce a possibility of undeceiving him; for the

light which broke in upon him at once, was not sufficient to efface the

wrong impressions which had taken place so gradually in his mind. It was

extremely difficult too to continue long on an intimate footing with him:

a word, a gesture, furnished him with matter of profound meditation; he

connected the most trifling circumstances, like so many mathematical

propositions, and conceived his conclusion to be supported by the

evidence of demonstration[157].”

I have hazarded an opinion in the text, contrary to what, I believe, is

usually adopted by lawyers, that there may be cases of partial insanity

with a high degree of general intelligence, in which the individual

ought not to be precluded from the privilege of making a last will

and testament. To deny the testamentary qualification to one, who,

notwithstanding some false predominant conception, has been held capable

of managing his concerns with discretion, and whose bequests discover

no traces of a disturbed imagination, or unsound judgement, seems to be

inconsistent both with wisdom and with natural justice. Such a person,

I presume, is capable of acquiring property by legacy, by bargain, by

transfer, by industry, or by office; and he is not prohibited during life

from giving or expending possessions thus obtained. Why then does the law

deprive him of the right of bequeathing after death, that which he might

have dispensed, when alive, without control? Whatever be the opinion

which a Medical practitioner may have entertained concerning the capacity

or incapacity for making a will of one under these circumstances, it can

hardly be necessary to observe, that his evidence, when called for in a

course of legal enquiry, should be delivered explicitly, and without any

bias from his pre-conceptions. On the point litigated it is the exclusive

province of the judge and jury to decide, after a full investigation of

the case.

To determine the existence of a lucid interval in the delirium of fever,

or in the more permanent alienation of mind which constitutes insanity,

the testimony of a Physician is sometimes required in courts of law. It

will be incumbent on him, therefore, to possess a clear and definite

opinion on the subject, founded both on the nature of the malady, and the

state of the patient. The cessation of febrile delirium is not difficult

to ascertain, because the rational faculties, being unimpaired by a

short suspension, at once manifest their renewal by signs which cannot

be misunderstood; but the complete remission of madness is only to be

decided by reiterated and attentive observation. Every action and even

gesture of the patient should be sedulously watched, and he should be

drawn into conversations at different times that may insensibly lead

him to develope the false impressions under which he labours. He should

also be employed occasionally in business or offices connected with,

and likely to renew, his wrong associations. If these trials produce

no recurrence of insanity, he may, with full assurance, be regarded as

legally _compos mentis_ during such period, even though he should relapse

a short time afterward into his former malady.

[NOTE XII. Chap. iv. § 5. p. 85.

_On the new Lunatic Act._

By Lord Ashley’s new “Act for the Regulation of the Care and Treatment of

Lunatics,” (8 and 9 Vict. c. 100.) many alterations were made in the old

law, of which the following are some of the most important[158].

We have, in the first place, secured by this act a permanent body of six

able and experienced gentlemen to officiate as visiting Commissioners,

three of whom are barristers, and three are physicians, and who are

required to devote their time exclusively to the performance of their

official duties. They are not permitted to hold any other office for

which they derive remuneration, or to be connected either directly or

indirectly with any public or private establishments for the reception

of the insane; neither can they exercise their respective professions

of law and medicine. They receive a salary of £1500 per annum; and the

appointment is for life. They are empowered not only to visit private

lunatic asylums, but gaols, workhouses, and hospitals,—in fact, every

place in which insane persons are confined. They are to institute the

most rigid scrutiny into their condition, with the view of ascertaining

whether they are unjustly confined, or improperly treated; and, if such

should be the case, to report accordingly to the Lord Chancellor, who is

invested with full authority to redress any injury which may have been

inflicted.

With respect to the medical certificates required of those who have

the power of consigning a fellow-creature to an asylum, formerly, the

Physician, Surgeon, or Apothecary, was merely called upon to certify to

the abstract fact of the presence of unsoundness of mind in any given

case; but, according to the present law, it is necessary for the person

signing it to state the facts in connexion with the case upon which he

has founded his opinion. Independently of thus affording an additional

protection to the public, a body of valuable information will be

obtained, which may be turned by the Commissioners to useful account. In

connexion with this branch of the subject may be mentioned the Medical

“Case Book,” which the Act requires every Medical superintendent of

the insane to keep for the inspection of the Commissioners. He is not

merely (as under the old law,) to enter the name, form of the malady,

the place of abode, age, and social condition of each patient intrusted

to his care, but he is, at the same time, to give in writing a correct

description of the medicine and other remedies prescribed for the

treatment of his disorder.

Among the minor, but still important, amendments effected in the law,

the following may be mentioned: the Act enables a proprietor of an

asylum to retake a patient who may have escaped from confinement. Again,

parties guilty of ill-treating a patient may be proceeded against

for misdemeanour. Individuals considering themselves to have been

ill-treated, or wilfully neglected, may, after having regained their

liberty, obtain, upon application to the Secretary of the Commissioners,

a copy of the medical certificates and order with the view to legal

proceedings. In the case of the death of any patient, a statement of the

cause of death, with the name of any person who may have been present,

is to be drawn up and signed by the Medical attendant, a copy of which

is to be sent to the Commissioners. Patients may now be transferred,

with the consent of the party signing the order, from one licensed house

to another, without renewing the medical certificates; while, under

the former Act, the proprietor had to procure fresh certificates for

each patient before such a change of residence could be effected. The

Commissioners have the power of making a night visitation to any house

in which they may have reason to believe that the patients are subjected

to ill-treatment. No patient pronounced by the Medical superintendent

to be “dangerous” can be removed from an establishment, unless for the

purpose of transferring him to another, without the consent of the

Commissioners. The Commissioners also have the power of regulating the

dietary of pauper patients confined in licensed houses and hospitals.

There is to be a weekly meeting of the board for the consideration of,

and adjudication upon, any matters touching the working of this Act,

which will very much facilitate the practical operation of the law, as

the Commissioners have the power to apply an immediate remedy for any

abuse which may be brought under their notice.

Proprietors of asylums are by the new law much more effectually protected

than under the former Act. If a party insane, or alleged to be so, is

received into a licensed house or hospital, with a written order for

his reception, and two medical certificates, the person so admitting

him, having complied with the provisions of the act of parliament,

is protected from any vexatious actions which might be brought

against him by persons representing themselves to have been unjustly

confined and detained. The Act enables the proprietor, superintendent,

servants, and any person engaged in receiving, detaining, retaking, and

confining a person legally certified to be insane, to plead the order

and certificates in bar of all proceedings at law. No action can be

maintained against any individual who has in respect of such persons

kept within the strict letter of the enactment.

Again, the Act allows the superintendent and proprietor fourteen days to

retake a patient who may have made his escape from an asylum, without the

necessity of having to procure a fresh order and medical certificate.

But perhaps the most important provision in the new Act, is that which

relates to single patients in unlicensed houses and cottages. By the

present Act, no one insane, or said to be so, can be sent to, or received

in, any unlicensed place, unless two medical certificates have been

obtained certifying to the patient’s insanity. The person taking charge

of such patient is immediately to make a return of his name to the

Commissioners, and he is subject to their visitation. The friends or

relatives of the patients are compelled by the Act to appoint a Medical

superintendent to visit occasionally persons confined in unlicensed

places, who is required to enter into a “Medical Visitation Book” all the

particulars connected with each case, with an account of the medical and

moral treatment adopted. This book is to be open to the inspection of the

Commissioners.

By this Act, therefore, (irrespectively of many minor improvements,) four

important amendments in the law relating to the regulation of lunatics

and lunatic asylums are introduced. First, by the establishment of a

permanent body of experienced Commissioners, authorized to inspect

every place in which the insane are confined, (excepting those placed

under the care of persons who derive no remuneration for undertaking

their management, or those who have been the subject of a commission of

lunacy, and who are residing with the committee appointed by the Lord

Chancellor,) a more vigilant and searching scrutiny into the condition

of the insane will be enforced. Secondly, the law throws an additional

protection around those who are authorized to keep establishments for

the treatment of insanity. Thirdly, by the alteration required in the

character of the medical certificates, and the statement which the Act

compels every Medical superintendent to keep of the particulars of

the medical treatment adopted by him in each case under his care, a

valuable collection of facts connected with the pathology of insanity

will be recorded, from the study and classification of which important

conclusions may be deduced. Fourthly, the abolition of the cottage

system of treating the insane cannot but be productive of the most

advantageous results. These unhappy persons will now have a fair chance

of being restored to health, and to the enjoyment of their social rights

and privileges. As the objects for which they were formerly confined in

cottages and other unlicensed places—viz. privacy and secrecy—no longer

exist, it is hoped that the insane will now be sent to well conducted

private establishments, where they will have a chance of being restored

to sanity.]

[NOTE XIII. Chap. iv. § 12. p. 102.

_Legal penalties on Duelling._

Simply wounding one’s antagonist in a duel is now a capital offence. To

shoot at a person, though no bodily injury ensue, is a felony punishable

with transportation for life. (Stat. 7 Will. IV. and 1 Vict. c. 85.)

Challenging another to fight a duel, and using opprobrious language with

intent to provoke a person to send a challenge, are misdemeanours at

common law.]

NOTE XIV. Chap. iv. § 13. p. 108.

_Duelling._

In the usages of the ancient Germans, evident traces of duelling may

be discovered. But it was employed by them either as an appeal to the

justice, or to the prescience, of the gods. Velleius Paterculus informs

us that questions, decided amongst the Romans by legal trial, were

terminated amongst the Germans by arms or judicial combat[159]. Tacitus

describes it as a species of divination, by which the future events of

important wars were explored[160]. A captive from the enemy was compelled

to fight with a man selected from their own nation. Each was accoutred

with his proper weapons, and the presage of success was determined by the

issue of the battle. A law is quoted by Stiernhöök[161], which shews

that judicial combat was at first appropriated to points respecting

personal character, and that it was only subsequently extended to

criminal cases and to questions relative to property. The terms of the

law are, “If any man shall say to another these reproachful words, ‘You

are not a man equal to other men,’ or, ‘You have not the heart of a

man,’ and the other shall reply, ‘I am a man as good as you;’ let them

meet on the highway. If he who first gave offence appear, and the person

offended absent himself, let the latter be deemed worse than he was

called; let him not be admitted to give evidence in judgement either for

man or woman, and let him not have the privilege of making a testament.

If the person offended appear, and he who gave the offence be absent,

let him call upon the other thrice with a loud voice, and make a mark

upon the earth, and then let him who absented himself be deemed infamous,

because he uttered words which he durst not support. If both shall appear

properly armed, and the person offended shall fall in the combat, let a

half compensation be paid for his death. But if the person who gave the

offence shall fall, let it be imputed to his own rashness. The petulance

of his tongue hath been fatal to him. Let him lie in the field without

any compensation being demanded for his death.”

Montesquieu, on the authority of Beaumanoir, whom he quotes with great

respect, deduces the rise and formation of the articles relative to

the point of honour from the following particular judicial usages. The

accuser declared in the presence of the judge that such a person had

committed such an action; the accused made answer that he lied; upon

which the judge gave orders for the duel. Thus it became an established

rule, that, whenever the lie was given to a person, it was incumbent

on him to fight. Gentlemen combatted on horseback, completely armed;

villeins fought on foot, and with bâtons. The bâton, therefore, was

regarded as an instrument of affront, because to strike a man with it was

to treat him as a villein. For the like reason, a box on the ear, or blow

on the face, was deemed a contumely, to be expiated with blood; since

villeins alone were liable to receive such disgraceful blows, as it was

peculiar to them to fight with their heads uncovered[162].

Practices like these were so congenial to the proud and martial spirit

of the times, as well as to the superstition which prevailed, that they

became universal throughout Europe. But it is evident that they could not

fail to subvert the regular course of justice, diminish the authority

of government, and violate the sacred ordinances of the Church. For the

clergy uniformly remonstrated against, and even anathematized them, as

adverse to Christianity; and the civil power frequently interposed, to

set bounds to usages, which its authority was too feeble to suppress.

Henry I. of England, in the twelfth century, prohibited trial by combat

in all questions concerning property of small value. Louis VII. of France

issued an edict to the same effect. St. Louis, who was a distinguished

legislator, considering the rude age in which he reigned, attempted a

more perfect jurisprudence by substituting trial by evidence in place of

that by combat. And afterwards it became the policy of every monarch,

who possessed power or talents, to explode these relics of Gothic

barbarism. By degrees the practice became less and less frequent: courts

of judicature acquired an ascendancy; law was studied as a science, and

administered with great regularity; and the ferocious manners of the

inhabitants of Europe yielded to the arts of peace, and to the benefits

of social and civilized life. But an event occurred in the year 1528,

which both revived the practice of single combat, and gave a new form

to it, more absurd and fatal. The political and personal enmity, which

subsisted between the Emperor Charles V. and Francis I., led the former

to commission the French herald, sent to him with a denunciation of war,

to acquaint his sovereign, that he should from that time consider him

not only as a base violator of public faith, but as a stranger to the

honour and probity of a gentleman. Francis instantly sent back the herald

with a cartel of defiance, giving the Emperor the lie, and challenging

him to single combat. Charles accepted the challenge; but, it being

impracticable to settle the preliminaries, this romantic and ridiculous

enterprise of course was never accomplished. The transaction, however,

excited such universal attention, and reflected so much splendour and

dignity on this novel mode of single combat, that every gentleman thought

himself entitled, and even bound in honour, to draw his sword, and to

demand satisfaction of his adversary for affronts trivial and even

imaginary[163]. The best blood in Christendom was shed; personages of the

first distinction were devoted to death; the ease, the familiarity, and

the confidence of private intercourse were interrupted; and war itself

was hardly more destructive to life and to its dearest enjoyments than

this fatal and seductive frenzy[164].

Evils of such magnitude required adequate remedies; and all the terrors

of law were every where exerted to repress them. But they have hitherto

been employed in vain: nor is it likely that sanguinary punishments will

prevail, because the dread of such punishment would be deemed equally

dishonourable with the fear of death in the chances of combat. A heavy

fine, strictly levied, would operate with greater force on some of the

most active principles of the human mind; and if it amounted to half,

or one third, of the convicted person’s fortune, (such portion being

placed in chancery, for the benefit of his heirs or children,) this

privation would not only extend to his comforts and accommodations, but

would be felt as a species of infamy, by depriving him of the means of

maintaining his rank and station in life. Lord Verulam has proposed

the following remedy for duelling; which, if effectual with men of

quality, would soon disgrace the practice amongst those of inferior

degree[165]:—“The fountain of honour is the King and his aspect, and

the access to his person continueth honour in life, and to be banished

from his presence is one of the greatest eclipses of honour that can be;

if his Majesty shall be pleased, that, when this court shall censure

any of these offences in persons of eminent quality, to add this out of

his own power and discipline, that these persons shall be banished and

excluded from his court for certain years, and the courts of his Queen

and Prince, I think there is no man that hath any good blood in him,

will commit an act that shall cast him into that darkness, that he may

not behold his sovereign’s face.” This proposal of Lord Verulam seems to

receive some confirmation from a story related by Lord Shaftesbury in his

“Characteristicks[166].” “A certain gallant of our court, ... being asked

by his friends, why one of his established character for courage and good

sense would answer the challenge of a coxcomb, confessed, ‘that for his

own sex, he could safely trust their judgement; but how should he appear

at night before the maids of honour?’”

Thus the principle on which duelling is founded, is now neither an appeal

to the justice of Heaven, nor an expression of resentment for wrong

sustained; but generally a mere punctilio of honour, which would affix a

stigma on the character for courage of him who omits to offer, and on the

opponent who declines the acceptance of, a challenge. Hence forgiveness

of injury and reparation from the consciousness of having committed it,

those noble sentiments of just and generous minds, are wholly precluded

in the intercourse of fashionable life.

A very able moralist, whom I have often quoted with peculiar

satisfaction, has reduced the question concerning duelling, as now

practised, to this single point: whether a regard for our own reputation

is, or is not, sufficient to justify the taking away the life of

another. “‘A sense of shame,’” says he, “‘is so much torture; and no

relief presents itself otherwise than by an attempt upon the life of our

adversary.’ What then? The distress which men suffer by the want of

money is oftentimes extreme, and no resource can be discovered but that

of removing a life which stands between the distressed person and his

inheritance. The motive in this case is as urgent, and the means much the

same, as in the former; yet this case finds no advocates.

“For the army, where the point of honour is cultivated with exquisite

attention and refinement,” continues the same excellent writer, “I would

establish a _Court of Honour_, with a power of awarding those submissions

and acknowledgements, which it is generally the purpose of a challenge

to obtain; and it might grow into a fashion with persons of rank of all

professions, to refer their quarrels to this tribunal[167].”

An institution, like the one thus forcibly recommended by Dr. Paley,

might probably have prevented the late fatal duel between Colonel

Montgomery and Captain M’Namara. The address of the latter to the

gentlemen of the jury gives just grounds for this opinion, and claims

on that account the attention of the legislature. “Gentlemen,” said he,

“I am a captain in the British Navy. My character you can only hear

from others; but to maintain my character in that station, I must be

respected. When called upon to lead others into honourable danger, I must

not be supposed to be a man who had sought safety by submitting to what

custom has taught others to consider as a disgrace. I am not presuming

to urge any thing against the laws of GOD, or of this land. I know

that, in the eye of religion and reason, obedience to the law, though

against the general feelings of the world, is the first duty, and ought

to be the rule of action: but in putting a construction upon my motives,

so as to ascertain the quality of my actions, you will make allowances

for my situation[168].” In referring to the foregoing disastrous case,

it is proper to notice, that a Surgeon of considerable eminence, who

attended on the field of combat in his _professional capacity_, was on

this account arrested and sent to Newgate by a warrant from the civil

magistrate as a _principal_ in the alleged murder, having been present at

the duel and antecedently privy to it. Nor was he liberated from prison

till the grand jury had rejected the indictment.

It has recently been stated in one of the periodical prints, that a law

to prevent duelling was passed in the general assembly of North Carolina

during their last session, by which it was enacted, “That no person

sending, accepting, or being the bearer of a challenge, for the purpose

of fighting a duel, even though no death should ensue, shall ever after

be eligible to any office of trust, power, or profit in the state, any

pardon or reprieve notwithstanding: and that the said person shall

further be liable to be indicted, and on conviction shall forfeit and

pay the sum of one hundred pounds to the use of the state. And if any

one fight a duel, by which either of the parties shall be killed, then

the survivor, on conviction thereof, shall suffer death without benefit

of clergy; and the seconds shall be considered as accessaries before the

fact, and likewise suffer death[169].”

I shall insert the following communication from my late venerable friend

Dr. Benjamin Franklin, on the subject of duelling, because the deliberate

opinion of a man peculiarly distinguished by perspicacity, soundness

of judgement, and extensive knowledge of the world, cannot fail to be

interesting to the reader. The letter was written in the 79th year of his

age, and evinces the same vein of humour which characterized him through

life. A few passages are omitted, being merely complimentary and personal.

“_Passy, near Paris, July 17, 1784._

“Dear Sir,

“I received, yesterday, by Mr. White, your kind letter of May

11th, with the most agreeable present of your new book. I read

it all before I slept.... It is astonishing that the murderous

practice of duelling, which you so justly condemn, should

continue so long in vogue. Formerly, when duels were used to

determine law-suits from an opinion that Providence would in

every instance favour truth and right with victory, they were

more excusable. At present they decide nothing. A man says

something, which another tells him is a lie. They fight; but,

whichever is killed, the point in dispute remains unsettled.

To this purpose they have a pleasant little story here: A

gentleman in a coffee-house desired another to sit farther from

him. ‘Why so?’ ‘Because, Sir, you smell offensively.’ ‘That is

an affront, and you must fight me.’ ‘I will fight you, if you

insist upon it, but I do not see how that will mend the matter;

for, if you kill me, I shall smell too; and if I kill you, you

will smell, if possible, worse than you do at present.’—How can

such miserable sinners as we are, entertain so much pride as to

conceive that every offence against our imagined honour merits

death? These petty princes, in their own opinion, would call

that sovereign a _tyrant_, who should put one of them to death

for a little uncivil language, though pointed at his sacred

person. Yet every one of them makes himself judge in his own

cause, condemns the offender without a jury, and undertakes

himself to be the executioner.

“Our friend Mr. Vaughan may perhaps communicate to you some

conjectures of mine, relating to the cold of last winter, which

I sent him in return for the observations on cold of Professor

Wilson. If he should, and you think them worthy so much notice,

you may shew them to your Philosophical Society, to which I

wish all imaginable success. Their rules seem to me excellent.

“With sincere and great esteem, I have the honour to be your

most obedient, and most humble servant,

B. FRANKLIN.”

NOTE XV. Chap. iv. § 16. p. 114.

_Punishment of the crime of Rape._

The atrocity of this crime appears to have been variously estimated at

different periods, and in different countries; if we may judge from the

diversity of punishments inflicted on the perpetrators of it. The reader

will find a copious and interesting enumeration of them in a volume

entitled, “A View of Ancient Laws against Immorality and Profaneness,”

by John Disney, M.A. Cambridge, 1729, fol. I would refer him also to the

“Principles of Penal Law,” by Mr. Eden, now Lord Auckland. As both these

valuable works are out of print, a few extracts from each may form an

acceptable addition to the present note.

“The Burgundian laws provided, that, if the young woman carried off,

returned to her parents actually corrupted, the offender should pay six

times her price; [that is, six times her _weregild_, or legal valuation;]

and also a mulct (to the Crown, I suppose,) of twelve shillings. If he

had not wherewithal to pay this, he should be given up to her parents,

or near relations, to take their revenge of him in what way they

pleased[170].”

By the law of Æthelbert, the first Christian king of Kent, it was

enacted, that, if any person take a young woman by force, he shall

pay her parent or guardian fifty shillings; and shall make a farther

composition for her ransom. If she were espoused, he shall compensate

the husband by an additional payment of twenty shillings: but if she

were with child, the augmented fine shall be five and thirty shillings,

and fifteen more to the king[171].

There is an ordinance of King Alfred, for the punishment of rapes

committed upon country wenches who were servants, an offence which may

be supposed to have been prevalent at that time. It is delivered in the

following terms:—“Si quis coloni mancipium ad stuprum comminetur, quinque

solidis colono emendet, et sexaginta solidis mulctae loco. Si servus

servam ad stuprum coëgerit, compenset hoc virga sua virili. Si quis

puellam tenerae aetatis ad illicitum concubitum comminetur, eodem modo

puniatur, quo ille qui adultae servae hoc fecerit[172].”

By the Welsh laws of Prince Höel Dha, if two women were walking together

without other company, and violence was offered to either or both of

them, it was not punishable as a rape; but if they had a third person

with them, they might claim their full legal redress. If the perpetrator

of a rape, being accused, confessed the fact, besides full satisfaction

to the woman, he was to answer for the crime to his sovereign, by the

present of a silver stand as high as the king’s mouth, and as thick as

his middle finger, with a gold cup upon it, so large as to contain what

he could take off at one draught, and as thick as the nail of a country

fellow who had worked at the plough seven years. If the offender was not

able to make such a present, _virilia membra amittat_.

Sir Edward Coke states this offence as a felony at the common law,

which had a punishment, “under such a condition as no other felony had

the like.” The criminal was adjudged “amittere oculos, quibus virginem

concupivit; amittere etiam testiculos, qui calorem stupri induxerunt.”

In the ancient law of England, exclusive of the punishment inflicted on

the criminal, his horse, greyhound, and hawk, were also subjected to

great corporal infamy: but the woman who was the sufferer might prevent

all the penalties, if, before judgement, she demanded the offender for

her husband. The Roman law was in the same spirit:—“Rapta raptoris aut

mortem aut indotatas nuptias optet;” upon which there arose what was

thought a doubtful case: “Una nocte quidam duas rapuit; altera mortem

optat, altera nuptias[173].”

[NOTE XVI. Chap. iv. § 18. p. 120.

_Medical Evidence at Inquests._

By the Act (6 and 7 Will. 4. cap. 89.) a Medical man is liable to a

penalty of £5 for failing to attend when summoned upon an inquest: he is

entitled to a fee of one guinea for his attendance, and to another guinea

in case of a _post mortem_ examination.]

Deo Gloria.

FOOTNOTES:

[103] Hume’s _Inquiry concerning the Principles of Morals_, sect. vi. pt.

1. (or _Essays_, vol. ii. p. 272.)

[104] See Adam Smith’s _Theory of Moral Sentiments_, pt. vi. sect. 3.

vol. ii. p. 158.

[105] [_Essays_, § 12. (_Works_, vol. ii. p. 271.)]

[106] See the Introduction to _Philosophical and Literary Essays_, by Dr.

James Gregory of Edinburgh, p. clxxxvii.

[107] The learned editor, Lipsius, observes in his note on this passage,

“Persarum similis mos, ... et Cretensium, ... et Graecorum omnium

veterum.”

[108] _Duties of Men_, chap. 12. vol. ii. p. 150.

[109] Chap. 12. vol. ii. p. 159.

[110] [Gisborne calls him “an _eminent_ writer.” There is a similar

instance of Percival’s modesty below, p. 155.]

[111] Percival’s _Medical Ethics_, chap. i. § 23.

[112] [Rom. iii. 8.]

[113] Horace, _Sat._ i. 1. 106.

[114] [Alluding perhaps to _De Mendac._ c. 21. § 42. tom. vi. p. 444. ed.

Bened., or to _Cont. Mendac._ c. 20. § 40. tom. vi. p. 472; but if so,

St. Augustine’s meaning is not quite correctly given in the text.]

[115] _De Jure Belli ac Pacis_, lib. iii. cap. 1. sect. 10 [9?] §§

2-4.—See also cap. 1. sect. 14-16.

[116] Spavan’s Puffendorff, vol. ii. chap. 1. p. 6.

[117] _Ibid._ p. 9.

[118] Leechman’s biographical Preface to Hutcheson’s _System of Moral

Philosophy_, p. xxiv.

[119] _System of Moral Philosophy_, bk. ii. ch. 10. § 4. vol. ii. p. 32.

[120] [Rom. iii. 8.]

[121] _System of Moral Philosophy_, bk. ii. ch. 17. § 7. vol. ii. p. 132.

[122] See Boswell’s _Life of Johnson_, June 13, 1784.

[123] [St. Matth. vii. 12.]

[124] Pliny, _Epist._ iii. 16.

[125] Lady Rachel Russell’s _Letters_; Note to Letter 149.

[126] _Essays_, bk. ii. ch. 37. p. 703. [654. ed. 1711.]

[127] _Anecdotes of some Distinguished Persons_, vol. ii. p. 386.

[128] _Life of Sydenham._ (_Works_, vol. xii. p. 182.)

[129] In the Preface to his _Treatise upon the Small-Pox_.

[130] [In the Dedication to his _Observationes Medicae_.]

[131] Johnson’s _Life of Sydenham_, p. 183.

[132] [§ 1. vol. i. p. 32.]

[133] See Bulæi _Hist. Univers. Paris._, tom. iii. p. 158; Henry’s _Hist.

of Great Britain_, bk. iv. ch. 4. § 1. vol. viii. p. 206.

Dr. Freind has given a somewhat different account of the celebrated

School of Salerno:—“Sunt in eo decem Doctores, qui sibi invicem, juxta

creationis ordinem, succedunt. Candidatorum examinatio severissima est,

quae fit aut in Galeni _Therapeuticis_, aut in primo primi _Canonis_

Avicennae, aut in _Aphorismis_. Is qui Doctoratum ambit unum ac viginti

annos habere debet, (verum hic lapsum subesse autumo, cum scribendum

sit _viginti quinque_ vel _septem_,) ac testimonia proferre, quae per

septem annos eum Medicinae studuisse doceant. Quod si inter Chirurgos

recipi cupiat, anatomiam per anni spatium didicisse hunc oportet:

jurandum ei est, fidelem se ac morigerum Societati futurum, praemia a

pauperibus oblata recusaturum, neque Pharmacopolarum lucri participem

fore. Tum liber in ejus manum traditur, annulus digito induitur, caput

laurea redimitur, atque ipse osculo dimittitur. Multa alia statuta sunt

ad praxeos ordinationem pertinentia; Pharmacopolae praesertim, ut juxta

Medici praecepta componant medicamenta, et ut ea certo pretio divendant,

obligantur.” _Hist. Medic._ (in _Oper. Med._ p. 537.)

[134] Consult Seb. Bacmeisteri _Antiq. Rostock._ [in Westphalen’s _Monum.

Ined. Rer. German._, tom. iii.]; Crevier, _Hist. de l’Univers. de

Paris._, tome i. p. 96; and Robertson’s _Hist. of Charles V._, vol. i.

Note 28.

[135] Johnson’s _Life of Addison_. (_Works_, vol. x. p. 85.)

[136] _Ibid._ (?)

[137] See _Cod. Theodos._ xiii. 3. § 8.

[138] _Annal._ xi. 5, 7.

[139] Of this truth it has been my duty and inclination to offer several

proofs, of unquestionable authority, in different parts of the present

work. Two additional ones now occur to my recollection, which I shall

here insert. Mr. Pope, writing to Mr. Allen concerning his obligations

to Dr. Mead and other Physicians, about a month before his death,

says:—“There is no end of my kind treatment from the Faculty. They are

in general the most amiable companions and the best friends, as well as

the most learned men I know.”—The Rev. Dr. Samuel Parr, in a letter, with

which he honoured me in September 1794, thus expresses himself:—“I have

long been in the habit of reading on Medical subjects; and the great

advantage I have derived from this circumstance is, that I have found

opportunities for conversation and friendship with a class of men, whom,

after a long and attentive survey of literary characters, I hold to be

the most enlightened professional persons in the whole circle of human

arts and sciences.”

[140] Pt. i. § 3.

[141] See _Biographia Britannica_.

[142] [Or _Works_, vol. iii. p. 485.]

[143] [Dr. Parr adds, “and a _Percival_.” See above p. 133.]

[144] Chap. 12. vol. ii. p. 191.

[145] Lect. 2. p. 64.

[146] Lect. 2. p. 68.

[147] [Ps. cxxxix. 14.]

[148] See Percival’s _Father’s Instructions_, pt. iii. p. 312. (_Works_,

vol. i. p. 277.)

[149] [Alluding probably to _Alcib. II._ pp. 141 sq., 150 sq.]

[150] [2 Tim. i. 10.]

[151] _Essays_, § 42. (_Works_, vol. ii. p. 343.)

[152] [See Hudson’s _Directions for Making Wills_, where more minute

information on the subject may be found.]

[153] _Hist. Placitor. Coronae_, pt. i. ch. 4. p. 30.

[154] See Walpole’s _Cat. of Royal and Noble Authors_, vol. i. p. 188;

also Percival’s _Moral and Liter. Dissert._, p. 82. (_Works_, vol. ii. p.

52.)

[155] See _Biogr. Britann._ (ed. Kippis,) Art. “Simon Browne.”

[156] _Lettres sur les Ecrits et le Caractère de J. J. Rousseau._

[157] The reader is referred to Dugald Stewart’s _Philosophy of the Human

Mind_, ch. 7. § 5, for some admirable remarks on the evils which result

from an ill-regulated imagination.

[158] For further details the reader may consult Dr. Winslow’s edition

of the Act, (1845, small 8vo.) from which the following observations are

taken, p. 32 &c.

[159] _Hist. Rom._ ii. 118.

[160] _German._ c. 10.

[161] _De Jure Sueonum et Gothorum Vetusto_, i. 7. p. 76; quoted by

Robertson, _Hist. of Charles V._, vol. i. Note 22.

[162] See Montesquieu, _De l’Esprit des Loix_, liv. xxviii. ch. 20.

[163] See Robertson’s _Hist. of Charles V._ bk. v.

[164] The History of Lord Herbert of Cherbury, who lived in the reigns

of Queen Elizabeth and James I., fully exemplifies the folly and danger

of adopting false principles of honour. During the abode of this

romantic nobleman at the Duke of Montmorenci’s, about twenty-four miles

from Paris, it happened one evening that a daughter of the Duchess de

Ventadour, of about ten or eleven years of age, went to walk in the

meadows with his lordship and several other gentlemen and ladies. The

young lady wore a knot of riband on her head, which a French chevalier

snatched away, and fastened to his hatband. He was desired to return it,

but refused. The lady then requested Lord Herbert to recover it for her.

A race ensued; and the chevalier, finding himself likely to be overtaken,

made a sudden turn, and was about to deliver his prize to the young

lady, when Lord Herbert seized his arm, and cried out, “I give it you.”

“Pardon me,” said the lady, “it is he who gives time.” “Madam,” replied

Lord Herbert, “I will not contradict you, but if the chevalier do not

acknowledge that I constrain him to give the riband, I will fight with

him.” And the next day, he sent him a challenge, “being bound thereto,”

says he, “by the oath taken when I was made Knight of the Bath.” See the

Life of Lord Herbert of Cherbury; also Percival’s _Moral and Literary

Dissertations_, p. 299. (_Works_, vol. ii. p. 206.)

[165] _Charge against Duels._ (_Works_, vol. iv. p. 403.)

[166] _Advice to an Author_, vol. i. p. 273.

[167] Paley’s _Moral and Political Philosophy_, bk. iii. pt. ii. ch. 9.

[168] See _Annual Register_, for 1803, p. 14*.

[169] See _Courier_, March 9, 1803.

[170] [Disney, Tit. i. chap. 9. p. 174.]

[171] [See Disney, _ibid._ p. 177 &c.]

[172] [See Wilkins, _Concil. Magn. Britann._, vol. i. p. 193.]

[173] [See Eden, chap. 22. p. 239.]

_Published (uniform in 16mo.) by John Churchill, Princes Street, Soho,

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LIFE OF DR. BATEMAN. _In the Press._

DR. WARE ON THE DUTIES AND QUALIFICATIONS OF PHYSICIANS. 1849.

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of Promoting the Religious Welfare of his Patients. 1845. 6_d._

LIFE OF SIR JAMES STONHOUSE. 1844. 4_s._ 6_d._

ADDRESS TO A MEDICAL STUDENT. _Second Edition. In the Press._

PRAYERS FOR THE USE OF THE MEDICAL PROFESSION. _Second Edition._ 1849.

1_s._ 6_d._

_The profits of these little works, if any, will be given to some Medical

Charity._

ANECDOTA SYDENHAMIANA. _Second Edition._ 16_mo._ 1847. 2_s._

PROSPECTUS.

“_It would certainly form an agreeable task, and might not

be unprofitable, to rescue from oblivion the memorable

instances of Medical men, in whom piety was combined with high

attainments and professional eminence, whose acquirements were

duly appreciated by their contemporaries, and whose learned or

useful writings have transmitted their names with honour to

posterity._” (Pearson’s _Life of Hey_, Preface, § 7.)

1. It is proposed (with GOD’S assistance,) to publish in a series the

lives of those Physicians who have been most eminent for their piety, in

whatever age and country they may have lived.

2. The profits (if any,) arising from these publications will be given

eventually to some Medical Charity.

3. In this undertaking the Editor will be happy to receive literary

assistance from such of his friends as may take an interest in the work.

4. As the whole of the present expense and risk falls upon the Editor

alone, he will gladly accept any donations or subscriptions in aid of the

design from persons who may feel an interest in it.

5. The lives will of course vary much in length, some forming each a

volume of itself, and others constituting a distinct class consisting of

much shorter notices. The volumes will not be published in any particular

order, but they will be strictly uniform in size, type, &c.

6. The number of volumes to be published annually must depend on the

amount of money received either from the sale of the works, or from the

donations of friends.

7. The Editor will be answerable for the general accuracy and fidelity of

the narratives, for the tone and spirit of the whole work, and for the

selection of the lives to be published; and accordingly he will be deeply

pained, if any person of piety and good sense shall consider, either

that he has inserted in his list any name but those of Physicians really

fearing GOD and loving CHRIST, or that he has published any life written

in a low or unchristian spirit: but, as it is proposed to comprehend

Physicians of all ages and countries, and not merely those who have been

members of the Church of England, (still less those who have belonged

to this or that particular party in it,) it is manifest that neither

the Editor nor the Writers are to be considered responsible for the

particular theological opinions which any of these individuals may have

held.

_Oxford, All Saints’ Day, 1844._

The Editor will be much obliged to any one who will furnish him with any

Letters, Papers, or information of any kind, relating to the life and

character of the following individuals.

JOHN ABERCROMBIE, M.D.; born 1781, died 1844.

THOMAS BATEMAN, M.D.; born 1778, died 1820.

SIR RICHARD BLACKMORE, M.D.; born ----, died 1729.

WILLIAM BLAIR; born ----, died 1822.

HERMAN BOERHAAVE, M.D.; born 1668, died 1738.

SIR THOMAS BROWNE, M.D.; born 1605, died 1682.

JOHN CHEYNE, M.D.; born 1777, died 1836.

JOHN FOTHERGILL, M.D.; born 1712, died 1780.

JOHN D. GODMAN, M.D.; born 1794, died 1830.

JOHN MASON GOOD, M.D.; born 1766, died 1827.

ALBERT VON HALLER, M.D.; born 1708, died 1777.

JOHN HAMON, M.D.; born 1618, died 1687.

DAVID HARTLEY, M.D.; born 1705, died 1757.

PHILIP HECQUET, M.D.; born 1661, died 1737.

WILLIAM HEY; born 1736, died 1819.

JAMES HOPE, M.D.; born 1801, died 1841.

CHRIST. WILL. HUFELAND, M.D.; born 1762, died 1836.

JAMES KENNEDY, M.D.; born ----, died 1827.

JAMES MEIKLE; born 1730, died 1799.

PHILIP SYNG PHYSICK, M.D.; born 1768, died 1837.

BENJAMIN RUSH, M.D.; born 1745, died 1813.

JOHN RUTTY, M.D.; born 1698, died 1775.

THOMAS SYDENHAM, M.D.; born 1624, died 1689.

SAM. AUG. AND. DAV. TISSOT, M.D.; born 1728, died 1797.

MICHAEL UNDERWOOD, M.D.; born 1737, died 1820.

THOMAS WILLIS, M.D.; born 1622, died 1675.

_Sept., 1849._