Chapter X: Part I (3)

“Thus by the especial grace and favour of the Kings and Queens of _England_, the College of Physicians have been freed from bearing and providing arms: and though some particular member may of late have been summoned upon that account by the Lieutenancy, yet upon producing his Majesty’s patent and asserting his Sovereign’s natural right in dispensing with a Corporation of men from bearing and providing arms, which was an inherent prerogative in the Crown; and therefore an Act of Parliament was made in 13 _Car._ 2. 6. positively declaring, That the sole and supreme power, government, command and disposition of all the Militia, and of all forces by sea and land, &c. is, and by the laws of _England_ ever was, the undoubted right of his Majesty and his royal predecessors, they were freed from any further trouble. An instance of which we lately had in the case of Dr. _Newell_, then candidate of the College of Physicians; who, anno 1680, was summoned to appear before the Lieutenancy of _London_ for not bearing and providing arms. Upon which summons, attending with the Patent 15 _Car. Secundi Regis nunc_.” The Lieutenancy on debate desired a copy of the exempting part of the patent, that they might consult with their counsel. On the next committee-day they told him they were satisfied that the words of the Patent were sufficient to exempt the members of the College from bearing and providing arms, and desired that a list of them might be given in under the College Seal, which was accordingly done.

Sir _Francis Pemberton_, Sir _Edmund Saunders_, and Mr. _Holt_, lawyers of whose celebrity it is unnecessary to speak, being consulted on the same point, answered.

Sir _F. P._ I conceive his Majesty may, by his Patent, excuse the College from finding arms if he think fit.

Sir _E. S._ The Patent doth discharge the Physicians from bearing or providing of arms, notwithstanding the Militia Act.

Mr. _H._ I conceive by the Patent all the members of the College are exempted from being at any charge towards the Militia.

But in the case of _Sir Hans Sloane_ against Lord _William Pawlett_, Lord Chief Justice _Parker_ was of opinion, that the King by his prerogative could not dispense with an Act of Parliament which was made for the public good of the whole nation; “but admitting that he could exempt them (the Physicians) from personal duties, yet it cannot be inferred from thence, that he might exempt them from being contributory to others to perform those duties which are required by an Act of Parliament, especially where the subject has an interest that such duties should be performed, or a loss if they should not; and the better opinion seemed to be that the King could not exempt in such cases. That in the principal case, the contribution to be made to the finding a man with arms to serve in THE MILITIA, is a charge upon the lands, as well as on the persons of the owners; and if this charter of exemption should be good, it would encrease the charge on all the lands of persons not exempted, which would be a very great damage to such persons, because the physicians who are exempted are a considerable body of men in every county, for which reason it would be very hard if the King had power to lessen the tax imposed upon one man, and charge it on another. Besides the King cannot exempt in any case where the subject has an interest.” (See 8 _Mod._ p. 11.) Therefore when it is intended to exempt Medical practitioners from the burthen of any Militia Act, it is necessary that they should be specifically mentioned.

OF ACTIONS BY MEDICAL PRACTITIONERS.

A Physician cannot maintain an action for his fees, for they are honorary, and not demandable of right; “and it is much more for the credit and rank of that body, (the physicians) and perhaps for their benefit also that they should be so considered; and I much doubt, says Lord _Kenyon_, whether they themselves would not altogether disclaim such a right, as would place them upon a less respectable footing in society, than that which they at present hold.” _Chorley_ against _Bolcot_, 4 T. R. 317, _see Appendix_. It was contended in this case, that there was no authority in the books for placing physicians and barristers fees[137] on the same footing; the regulation with regard to barristers being founded on grounds of public policy, as appears by a passage in Tacitus to which Mr. Justice _Blackstone_ refers; in which passage it is taken for granted that Medici[138] were entitled to a remuneration, because their situation was dissimilar to that of advocates.[139]

But though a physician cannot recover his fees by process of law, yet _pro concilio impenso et impendendo_ is a good and valuable consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And this was formerly a very frequent mode of remuneration for professional services both in law and physic, though at the present day it does not frequently occur.

If a bond, bill, or note were given for medical attendance, the consideration would be good, though the original fees could not have been recovered. A distinction might we think be drawn between the fees of a physician and his travelling expenses, which are frequently considerable; but the case of _Chorley_ and _Bolcot_, before cited, is against it.

If a medical practitioner passes himself off as a physician, (by no means an unfrequent practice in distant parts of the country) although he has no diploma, and no right to assume that character, he cannot maintain an action for his fees. _Lipscombe v. Holmes_, 2 _Camp._ 441. _see Appendix_. Though as a surgeon he might have recovered compensation: and even if he were no regular surgeon, the doctrine in _Gremare v. Le Clerc Bois Valor_, 2 _Camp._ 144. would entitle him to recover in an action of assumpsit. But query the authority of this case.[140]

If there be any promise, a physician may receive on a _quantum meruit, Shepherd v. Edwards_; _Hill_ 11. _Jac._ 2. _Croke_ 370. In this case the plaintiff declared that he being a professor of physic and surgery had cured the defendant of a fistula and he had judgment. All physicians may practise surgery; (32 _Hen._ 8.) though surgeons may not encroach in physic; therefore query whether in this case the plaintiff did not sue as a surgeon; and the disease was one which in this day would clearly be classed as a surgical case. It was not so however in _Dale_ against _Copping_, (_Bulst. part_ 1. _p._ 39) when the promise of an infant to pay a certain sum to the defendant for curing him of the falling sickness was held binding, “for that this shall be taken as a contract, and that to be for a thing in the nature of necessity to be done for him, and the same as necessary as if it had been a promise by him made for his meat, drink, or apparel, and in all such cases his promise is good and shall bind him.”

OF ACTIONS AGAINST MEDICAL PRACTITIONERS.

If a Physician, Surgeon, Apothecary, or other medical practitioner, undertakes the cure of any wound or disease, and by neglect or ignorance the party is not cured, or suffers materially in his health, such medical attendant is liable to damages in an action of trespass on the case: but the person must be a _common Surgeon_[141], or one who makes public profession of such business, as surgeon, apothecary, &c. for otherwise it was the plaintiff’s own folly to trust to an unskilful person, unless such person _expressly_ undertook the cure, and then the action may be maintained against him also. _See Bull. N. P. p._ 73; 2 _Esp. N. P. p._ 601.

“And it seems that any deviation from the established mode of practice, shall be deemed sufficient to charge the Surgeon, &c. in case of any injury arising to the patient.” _See Slater_ v. _Baker and Stapleton_. 2 _Wils._ 359. which was a special action on the case against a Surgeon and an Apothecary, for unskilfully disuniting the callous of the plaintiff’s leg after it was set, (_see Appendix, p._ 189) which it appears was done for the purpose of trying a new instrument. The Plaintiff recovered 500_l._ against the Defendants jointly, and the Chief Justice said he was well satisfied with the verdict. On a motion for a new trial, the judgment was affirmed by the whole Court.

In _Seare_ against _Prentice_, 8 _East. R._ 348. it was determined that this action lies against a Surgeon for gross ignorance and want of skill in his profession, as well as for negligence and carelessness, to the detriment of a patient; though if the evidence be of negligence only, which was properly left to the jury, and negatived by them; the Court will not grant a new trial, because the jury were directed that want of skill alone would not sustain the action. _See Appendix, p._ 194.

In the case of _Neale_ v. _Pettigrew_, a Surgeon was held responsible in damages for the negligence and unskilfulness of his apprentice or servant[142].

Though the cited cases are surgical, there is no doubt that similar actions would be maintainable against Physicians or other medical practitioners; but as internal injuries are less demonstrable than external, there might be some difficulty in obtaining the necessary evidence. We shall treat in another place of the criminal responsibility of persons undertaking cures in cases where death ensues from their mal-practice.

MIDWIFERY.

“In former times the necessity of Baptism to new born infants was so rigorously taught, that for this reason they allowed lay people and even women, to baptize the declining child, where a priest could not be immediately found; so fondly superstitious in this matter, that in hard labours the head of the infant was sometimes baptized before the whole delivery; this office of baptizing in such cases of necessity was commonly performed by the midwife; and tis very probable, this gave first occasion to midwives being licensed by the bishop, because they were to be first examined by the bishop or his delegated officer, whether they could repeat the form of baptism which they were in haste to administer upon such extraordinary occasions. But we thank God our times are reformed in sense and in religion.” (_Watson’s Cler. Law, c._ 31, _p._ 318.) The concluding sentence appears to be somewhat ill placed, for a few lines before the reverend author says, “And _Note_, that a child baptized with water in the name of the Father and of the Son, and of the Holy Ghost, is sufficiently baptized, although not baptized by a lawful priest, as may be collected from the Rubrick; and so it is if the child be baptized by other form, yet the person baptizing not being a lawful priest is punishable, like as a lawful priest baptizing by other form than is set down by the Book of Common Prayer is punishable;” and a few lines after, he says, that a Clergyman “ought not to bury the corps of any person dying unbaptized:” surely if the baptism of a child by a lay person is good, and the body cannot have Christian Burial without it, there is nothing senseless or irreligious, and we will venture to add nothing morally or legally wrong, in the performance of this provisional ceremony. If there were no other object than to satisfy the anxiety of the mother at a moment when the calmness of her feelings is vitally important, it ought not to be omitted whenever the danger of the child and the absence of a priest appear to render it necessary.

_Burn_ says, “By several constitutions, the minister was required frequently to instruct the people, in the form of words to be used in such cases of necessity,” (2 _Burn’s Ecc. Law_, p. 469,) and the oath administered by the bishops to licensed midwives, (_See Appx._ 160,) though, it does not command, implies that baptism may be administered by other than a priest. “You shall not be privy, or consent that any priest or _other_ party shall in your absence or in your company, or of your knowledge or sufferance baptize any child by any mass, latin service or prayers, than such as are appointed by the laws of the Church of England:” here the prohibition is to the form not the person.

Whatever may have been the origin of the bishop’s license, his jurisdiction does not appear to have been sanctioned by the law. “If there be a suit in the Spiritual Court against a woman for exercising the trade of a midwife without license of the Ordinary, against the Canons, a prohibition lieth: for this is not any spiritual function, of which they have cognisance. _Buskin_ and _Cripes_, Tr. 9, Ch. BR and a prohibition was granted accordingly.” (2 _Roll Abr._ 286. 2 _Burn, Ecc. Law, Tit. Midwife_.)

In the reign of Charles the first, a Doctor of Physic attempted a project to procure the sole and absolute power, either to license or approve of all the midwives practising in and about _London_, before their admittance; they presented a petition to the President and College of Physicians, (for which see Goodall’s Pro. 463,) in which it appears that a petition on the same subject having been presented to the King, his Majesty referred the same to the Lord Archbishop of Canterbury and Bishop of London, in whose jurisdictions and by whose authority, it is stated, that they had always been licensed; the object of the petition to the College, was to obtain their certificate of the competent skill of the petitioners, for which purpose they alleged that other practisers in midwifery had been examined upon the like occasion, by command from King James; the physicians by their answer, (_for which see Appendix_) discouraged the scheme of the would-be licencer, and the matter thereupon appears to have been dropped.

We have before noticed, that there is some probability that both the College of Physicians and the College of Surgeons will decline all future interference with this branch; if so, it will be necessary that some new authority should be instituted for the purpose of examining and licensing candidates for practice; the duty to be performed is by far too dangerous and delicate to be left to the hands of any who would assume it; yet such is at present the case, and not without fatal examples of the errors and imperfections of our lego-medical system.

We do not of course include in this censure, the private Institutions for the instruction of midwives, in which the want of a public provision is endeavoured to be compensated; but the operation of such societies must be of necessity very limited and utterly inadequate, not only to the demands of the empire, but to the magnitude of the metropolis.

OF THE PRESERVATION OF PUBLIC HEALTH.

There is not in England, as in most countries of the continent, a separate code or system of laws for the preservation of the public health; actual nuisances, of which we shall treat under a separate head, are provided against by liability to indictment or action at the information or suit of the parties immediately interested; but except in the enforcement of the Quarantine laws for the prevention of foreign infection, the executive government takes little or no part in securing the bodily health of its subjects. The habits of order and cleanliness, for which the inhabitants of our island are celebrated, and the general salubrity of our climate, may have rendered such care less necessary; while our spirit of liberty and independence might have resisted the encroachments on domestic privacy, and the perpetual intrusion of local authorities, to which our neighbours are subjected. Except in extreme cases we are far from wishing any change; but as there are situations and circumstances, in populous towns, among the lowest order of the people, and in times of contagious or epidemic sickness, in which absolute apathy may be attended with danger, we may be allowed to hint that some prospective enactment would be more politic, than to be obliged to legislate for the evil when its mischiefs had been accomplished. This has been already done as respects Ireland by the statute 59th _Geo._ 3. _c._ 41. (_see Appendix_,) by which it is enacted that Officers of Health should be appointed annually, at vestries of the inhabitants in every city and large town, where the Lord Lieutenant or chief Governor shall think fit to direct.[143] Something of this kind might be advantageously extended to the whole of the United Kingdom.

In former times, however, when from the comparatively uncultivated state of the people, contagious diseases were more common, there were several laws and regulations on this head, which have now fallen into disuse. Many cities have still some relics of their Lazar-house, situated at some distance without the walls;[144] and there was also an ancient writ _De Leproso amovendo_, to remove a leper or lazar who thrust himself into the company of his neighbours in any parish, either in the church, or at other public meetings, to their annoyance. _Reg. Orig._ 237. By the 1st _James, c._ 31. (now expired) it was made felony if any one having a Plague sore running upon him goes abroad, 1 _Hale, P. C._ 432.[145] And to this day it is an indictable offence for any person to pass through the streets, or cause others to pass through the streets, even for medical advice, while they have the Smallpox upon them.[146] Previous to the important discovery of Vaccination, this law would have been attended with very considerable hardship; as it precluded the patient from the best remedy for the disorder—exposure to fresh air; yet there can be no doubt that in this as in all other cases, individual interest must yield to general policy. Had the rule been more carefully attended to, many of the pests to which human nature is subject, might have been checked or even extirpated in the commencement of their progress.

There is one disorder, to check the propagation of which has been singularly neglected, under the curious pretence that any regulation would be an encouragement to immorality; we cannot assent to the validity of this objection, and think that we should find little difficulty in refuting it. But the disease is undoubtedly on the decline both as to its frequency and its virulence.[147] The superior mode of medical treatment, by which many cases are arrested in the earliest stage, may have tended greatly to this effect; but we are inclined to attach yet greater importance to a change of habit in the upper and middle classes of society. The mode of life handed down to us by the poets, dramatists, novelists, and essayists from _Charles_ to _George_ the second, unhappily confirmed by the criminal records of the same period, has no existence in modern manners: drunkenness is no longer a fashionable vice; the tavern parties, which even _Addison_ did not blush to describe, no longer disgrace us. From these social improvements, and from increased habits of cleanliness, we may deduce the milder form and more unfrequent occurrence of the disease, which poisons human life at its source. Still we feel some astonishment that the change has not been forwarded by a measure of the police; for though a Parisian system might savour somewhat too much of our own ancient abuses,[148] yet it would neither be difficult or immoral for the magistrates, when they occasionally clear the streets for the night, to order the detention of those whose liberty might, on surgical examination, prove dangerous to the unwary; _obsta principiis_ is as good a maxim in law as in physic. One Surgeon attached to each police office, for this, and other evident purposes, would be materially useful and not considerably expensive.

We have observed in another place[149] on the attention necessary to be directed to prison discipline, as it respects the health of criminal or unfortunate prisoners; but the subject is so much before the public on this and other points, that we do not think it necessary to enlarge upon it here. It is not so, however, in other cases to which legislative attention might be advantageously directed. Sir _Robert Peel’s_ Bill for regulating the working hours of children in the cotton factories, might in some of its enactments be safely extended to many other branches of trade, more especially when contagious diseases are found to exist in large collections of people confined to a very small space. This observation applies also to infectious diseases breaking out in schools; at present the discretion of the master is the only security to the public: in the higher class we have no doubt that this discretion is well exercised; but there are others where, gain being the only object, the speculator will rather risk the lives of the unfortunate children committed to his charge, than the chance of their being permanently removed from his precarious protection.[150]

We are well aware that any adequate remedy for these evils would require the most serious attention of the most experienced ability; but because the task is difficult, we do not think it impracticable; and where human life, in its most interesting and useful forms is at stake, we are assured that labour, however thankless in its outset, will ultimately meet its reward in the approval of society.

Having thus ventured to suggest some measures which seem calculated to secure and promote the public health, we may be allowed to glance at the impolicy of any tax which has a tendency to deprive the lower orders of those articles which are essential to it; the salt duties immediately suggest themselves as a lamentable instance of such impolicy: salt is to the poor an indispensable part of their diet; it is essential to their bodily health, to the preservation or composition of bread, butter, cheese, meat, fish, and almost every article of their food, and its utility is always greater in proportion to the scantiness, and nutritive deficiency of their diet.[151]

The importance of cleanliness in cities, and of purity in the waters by which they are supplied, will more properly fall under consideration in another division of our subject; but we may here generally observe, that no circumstance contributes in a greater degree to the public health than an attention to this branch of medical jurisprudence. The deleterious influence of stagnant waters is too apparent to admit controversy, in which are to be included moats, where the water has no motion, and meadows which are occasionally overflowed; it has accordingly been the policy of every enlightened country to provide adequate resources for its drainage, and those liberal individuals who have encouraged the plans for its accomplishment have ever been distinguished by the gratitude of the people. It has been conjectured, and not without probability, that the patriotism of _Marcus Curtius_ is thus handed down to us in a figurative allusion, and that he probably filled up, at his own cost, some stagnant pools which affected the health of his fellow citizens. _Empedocles_, a disciple of _Pythagoras_, delivered the Salentines from the dangerous exhalations with which they were infested, by conducting two neighbouring rivers through their marshes, by which the stagnant waters were carried off; the air was therefore no longer infected, and the diseases which had flowed from this source immediately subsided. In ancient Rome, the physical evils which have since so materially contributed to deprive it of its former salubrity and splendour, were obviated by magnificent aqueducts.

The slaughtering of cattle is another very important object in relation to the public health of a great city, and we cannot but wish that some police regulations were established that might mitigate the serious evils so often experienced from this circumstance, in most of the large towns of the British empire.

There still remains to be noticed one practice connected with the public health, that requires some animadversion from the medical jurist—THE BURIAL OF THE DEAD IN THE MIDST OF POPULOUS TOWNS AND CITIES.—It is certainly extraordinary that a country which has long abjured the errors of the church of Rome, should still retain one of its most absurd superstitions, yet such is the fact in England, as it respects the Burial of the Dead in churches, and church-yards, and in cemeteries, situated in the very heart of our most populous cities.[152] If the health of the people be a primary object of legislation, there is no point which in the present advanced state of population calls more imperiously for its interference; the cemeteries of the metropolis are so crowded[153] that it becomes more difficult to find room for the dead than the living, and yet free as we boast ourselves to be from the prejudices and superstitions of our ancestors, we question whether there is any point upon which more popular clamour would be raised than that of changing the system of burial. It is difficult, in the first place, to overcome those feelings which originate in a principle amiable and useful in itself, however mistaken it may be in its practical applications. Nature appears to have implanted in all mankind a sentiment of veneration for the mortal remains of those whom living we have loved or respected; every nation, whether civilized or barbarous, has accordingly invented and practised some ceremony,[154] generally of a religious character, in the final disposal of the human corpse; it is however the duty of the state to guard the living from those evils to which an ill applied respect for the dead may be likely to subject them.

Although we are disposed to admit with _Diemerbroeck_[155] and Dr. _Bancroft_,[156] that the effluvia which issue from putrefying human bodies are not capable of generating the specific contagious matter of Plague, Typhus, or any true pestilential fever, yet, but little reflection is necessary to lead any reasoning mind to the conclusion, that in the decomposition of the human body various noxious principles are developed highly injurious to human life. Dr. _Bancroft_, in order to establish his position respecting the non-pestilential nature of these effluvia, relates two instances of extensive exhumations, which he says furnish facts on so large a scale as completely, in his opinion, to decide the question. The first relates to those made in the church-yard of _St. Eloi_, at Dunkirk, in the year 1783; and the other to those made three years afterwards, in the famous cemetrie of the _Saint Innocens_, at Paris. As the operations and results were similar in both instances, it will be sufficient if we describe only the latter. The church-yard of the Saint Innocens, situated in one of the most populous quarters of the city of Paris, had been made the depository of so many bodies, that, although its area enclosed near two acres of ground, yet the soil had been raised by them eight or ten feet higher than the level of the adjoining streets: and upon the most moderate calculation, considerably more than six hundred thousand bodies had been buried in it, during the last six centuries: previous to which date, it was already a very ancient burial ground;[157] numerous complaints having been made concerning the offensive smells which arose from this spot, and had penetrated into the houses, and the deleterious effects which such emanations produced, having been described in a memoir read before the Royal Academy of Sciences[158] in 1783, by _M. Cadet de Vaux_, who held the useful office of _Inspecteur Général des objects de Salubrité_, the Council of State decreed in 1785 that so much of the superstratum should be removed as would reduce the surface to the level of the streets. This work was accordingly undertaken in 1786, under the superintendance of _M. Thouret_, a Physician of eminence in Paris,[159] and in two years he accomplished it. It does not appear that any epidemic evils were experienced from these extensive exhumations, but it must be remembered that the great mass of bodies had been converted into a harmless and inoffensive substance resembling spermaceti, to which the name of _Adipocire_[160] has been given; had this change not occurred, it is more than probable that worse consequences would have been experienced from this horrible accumulation: sufficient instances however occurred to prove the dangerous tendency of the mephitic vapours[161] which were emitted; grave-diggers were thrown down suddenly, and deprived of sense and motion, upon breaking open, by their spades, the abdominal viscera; these vapours also, in a more diffused state, produced nausea, loss of appetite, and in the course of time, paleness of countenance, debility, tremors, &c. If farther evidence be required upon this subject, we have only to direct the reader’s attention to the effects occasioned by opening the graves in St. Dennis, and to which no allusion is made by _Dr. Bancroft_: the National Convention in the year 1793, in the true spirit of revolutionary ferocity, passed a decree upon the motion of _Barrère_, that the monuments of the Kings in this, as well as in all other places throughout France, should be destroyed. In carrying this decree into effect, the bodies of many of the latter Bourbons were found in a state of decomposition, and when the coffins were opened they are said to have emitted a thick black vapour, which, although vinegar and gunpowder were burnt to prevent ill consequences, affected the wretches employed in this inhuman work with fevers and diarrhæas: so again when the ground of the church of St. Benoit was dug up a few years ago, a nauseous vapour was emitted, and several of the neighbours were affected by it.[162]

We are nevertheless far from believing that such cadaverous impurities, however unwholesome, are capable of generating the specific contagions of Typhus, &c.; nor are we even inclined to assent to that general opinion which supposes that putrid emanations from the bodies of persons who have died of a pestilential disorder are capable of re-exciting the disease, and we are fortified in this conclusion by the powerful testimony of _Mr. Howard_.[163] We ought not, however, to omit to state, that instances are on record, where the small-pox has suddenly appeared in a village, after opening the grave of a person who had a few months before fell a sacrifice to that disorder.

From the experiments and observations which have been made with respect to the decomposition of animal bodies that are interred in burying-grounds, it appears that they are, in such situations, subjected to very different laws of decomposition, from those which take place in bodies exposed to the open air. In the former case no danger can attend the operation provided the body be buried at a sufficient depth, and that the grave be not opened before its entire and complete decomposition. The depth of the grave ought to be such that the external air cannot penetrate it; that the juices with which the earth is impregnated may be conveyed to its surface, and that the exhalations, vapours, or gases, which are developed or formed by decomposition, should not be capable of forcing the earthy covering which detains them. The nature of the earth in which the grave is dug, influences all its effects. If the stratum which covers the body be argillaceous, the depth of the grave may be less, as this earth affords with difficulty a passage to any gas or vapour; but, as a general rule it may be admitted, that bodies should be buried at the depth of five feet, to prevent any unpleasant consequences. It is also important to remember that the decomposition of the soft parts, according to _Mr. Petit_, is not terminated until the expiration of three years, in graves of four feet deep; or four years when their depth is six feet. This term, of course, is stated as a medium; it must necessarily vary according to the nature of the soil, and the constitution of the subjects buried in it.

A knowledge of these facts ought to lead to a more rational system of interment. We can scarcely expect to see the fulfilment of the wish expressed by Evelyn in his _Sylva_, the establishment of a _Necropolis_ without the walls; but much may be effected by judicious regulations; and the law will uphold any parochial officer in the conscientious discharge of the requisite duties; in certain cases it invests him with a considerable latitude of discretion; thus when a body is brought to be buried “it seemeth to be discretionary in the minister whether the corpse shall be carried into the church or not, and there may be good reason for this, especially in cases of infection.”[164] A curious controversy has lately taken place upon the introduction of iron coffins, and chemists have differed widely upon the subject of their relative durability, when compared with those of wood. Sir _William Scott_ (now Lord _Stowell_) decided, and we think very justly, that under ordinary circumstances the former appear less perishable, and therefore when admitted into burying-grounds, that the parties are to be held liable to extraordinary fees.

Burial must not be delayed or denied, (_Lindwood_ 278) nor hindered for debt,[165] (_Burn Ec. L._ 238) nor disturbed for purposes of dissection (_King v. Lynn, vide Post._) Formerly by 30 C. 2, st. 1, c. 3, all bodies were directed to be buried in woollen, under the penalty of £10; this enactment, which was made with the idea of encouraging the woollen trade, is now repealed.

In relation to their effects upon the public health, the arrangement and cleansing of privies deserve some notice in this place. It has been long admitted that the effluvia which issue from these receptacles of human ordure are highly deleterious, and have been known to occasion a species of ophthalmia, diarrhæa, and dysentery, while in a more concentrated form these emanations have proved suddenly fatal,[166] by producing an affection named by the French Nosologists[167] the _Plomb_, or the Asphyxia of privies. _M. Dupuytren_ has given us many particulars respecting this affection; sometimes the patients are strongly asphyxied, and death takes place in a very short period; at others, the symptoms are less intense, and if the patients be carried into the open air, after a short interval, they make deep inspirations, and the breathing is gradually restored, although it continues laborious; the motion of the heart becomes perceptible, nevertheless the pulse is weak and small; the digestive and loco-motive apparatus have lost their contractile force; the functions of the brain are suspended; and if the patient finally recovers, he is a long time in re-establishing his strength. An emetic appears to be the remedy upon which the _nightmen_ rely for relief.

The above observations are sufficient to shew the propriety of placing these establishments under police regulations, especially where the deleterious influence of their emanations are more decidedly remarkable, as in hospitals, prisons, and barracks. The governments of different countries have sought to prevent the evil, by various laws, edicts, and ordinances.[168]

In this country, we apprehend their supervision belongs to the very ancient and extensive jurisdiction of the Commissioners of Sewers,[169] who although not engaged like the Œdiles of ancient Rome, in superintending magnificent aqueducts, are occupied in directing the far more stupendous and wonderful works which extend beneath the foundations of our mighty city, and dispense to its inhabitants the essential requisites for comfort, cleanliness, and health.

OF QUARANTINE, LAZARETTOS, AND OTHER ESTABLISHMENTS OF PLAGUE POLICE.

The histories of different ages and countries furnish numerous records of the occasional prevalence of certain diseases, generally of the febrile class, which at one period have occasioned the most destructive mortality, while at others, they have assumed so mild a form as to have affected only few, and to have destroyed scarcely any of the population. Such diseases, when they attack a great number of individuals about the same time, or in rapid succession, are very properly designated by the term EPIDEMIC (from επὶ _upon_ and δημος _the people_) and whenever their course is attended with considerable mortality, they are moreover said to be _Pestilential_. No fact in the history of medicine has been the subject of more general and anxious enquiry, or of more keen controversy, than that of the origin of Epidemic diseases, and of the immediate cause of their propagation and decline; and although the field has been industriously explored by the most able and experienced philosophers and physicians, the subject still remains involved in considerable obscurity; indeed, such different and even opposite views have been entertained upon the question, that writers have not even agreed upon the exact import of the terms employed in their descriptions, but each author appears to have acknowledged a latitude of acceptation according to the particular theory which he has been anxious to support. The term EPIDEMIC ought in strictness to signify a disease which, as we have before stated, attacks numbers at or nearly the same time, without any reference to the cause from which it may have originated, or be diffused; but this construction has been considerably limited by many writers, who have applied it, exclusively, to denote those maladies which derive their origin solely from a noxious state of the atmosphere, and which are incapable of being communicated from one person to another; distinguishing diseases of the latter kind by the epithet _Contagious_.[170]

A similar ambiguity involves the terms CONTAGION and INFECTION, which are regarded by many authors as synonymous and convertible expressions, signifying the matter or medium by which certain diseases are communicated from one individual to another; while others, on the contrary, confine the term _Contagion_, as its etymology would suggest (_con_ and _tango_) to the communication of those diseases, which can only be transferred by actual contact of the sick, or of the palpable matter from their bodies; and apply the term INFECTION to the communication of those other diseases which spread by means of invisible effluvia. Now we would observe in the first place, that according to the most correct rules of philology, the import of words is not necessarily to be deduced from their derivation, but frequently to be either assumed conventionally according to a definition, or to be adhered to in the sense affixed to it by established usage; in the next place, the distinction which the etymologist would thus establish between the terms _Contagion_ and _Infection_ is not accurate, for in every case of infection, there is an actual contact of morbific matter, whether visible or not, and some diseases, as the _Small-pox_, are communicated both by palpable matter and by imperceptible effluvia.[171] Our best writers[172] have therefore agreed to consider the word _Contagion_ as expressing the morbid poison, or the means of transferring a disease, and _Infection_ as denoting the operation of the poison, or the act of communication of the disease. Dr. _Hancock_[173] very justly observes that in almost all the best Latin writers on medicine, _Contagium_, and _Contagio_ are the only words used to denote the effluvia, or emanations arising in disease, which are capable of infecting the sound, whether _mediately_ by the air, or by infected goods called _Fomites_, or _immediately_ by the touch: to limit contagion therefore to the propagation of disease by contact only, would be to disallow the more comprehensive use of the term in our best authors.

Those diseases which occur among the inhabitants of a particular region or place, are said to be ENDEMIC, or ENDEMIAL; thus _Intermittent_, and _Remittent_ fevers, which are occasioned by the miasmata of marshy grounds are _Endemic_ in low countries: the _Goitre_, or bronchocele, connected with that peculiar intellectual imbecility which characterises the CRETIN, is ENDEMIC among the Alps; in these instances, some _local_ cause obviously exists which produces the disease in the respective districts: the disease therefore belongs to the districts, and affects those that reside there, but extends no farther; and hence the distinction between _Endemic_ and _Epidemic_ diseases is obvious and important.

Having thus determined the value and signification of the terms, as used by different authors, and which must necessarily be introduced on the present occasion, we come to the consideration of that momentous question, which has excited so keen an interest in the political, mercantile, and medical circles of the present age, and which has been farther heightened by the late reference of the subject to the Legislature—WHETHER EPIDEMICAL DISEASES BE EVER PROPAGATED BY CONTAGION?——It is impossible to imagine a question of deeper importance; it not only involves the general safety of mankind, but is intimately connected with the commercial welfare of nations; for, as it has been truly observed, if these diseases be not contagious, Quarantine laws are absurd, and commerce needlessly burthened: the establishment of lines of circumvallation, guarded by cordons of troops, and the appointment of armed police to confine the diseased to their habitations, among their yet uninjured friends and relatives, are perverse and barbarous regulations, and the fears thus unnecessarily induced are as dangerous to the community as they are pernicious in their effects to the common feelings of humanity. But, on the other hand, if the doctrine be true to the extent our most accurate observers have deliberately reported, municipal restraints cannot be too rigidly enforced, nor can the conduct of those speculative theorists be too severely reprehended, who, by lulling the ignorant and unwary into false notions of security, not only deprive them of the obvious means of safety, but render them even the intermediate agents of disease and death, to their families and neighbours.

The term PLAGUE has been applied to various epidemical diseases attended with great mortality; and we find in the Hebrew, Arabic, Greek, Latin, and in all the other ancient languages with which we are acquainted, words having a corresponding import, and signifying, generally, an extensive and destroying malady. It appears, however, that these raging epidemics have consisted of different maladies in different instances, having been sometimes the _Remittent Fever_ originating from marsh effluvia, and sometimes the true _Plague_, modified by circumstances and situations: even in our own times some doubt has existed respecting the true nature of the different pestilences which have raged in Europe.[174] The term PLAGUE is now more correctly limited in its acceptation, and it is exclusively understood to denote “_a contagious and malignant fever, which is accompanied by buboes and carbuncles_.”[175] As the nature of maladies of high degree virtually includes that of all minor affections, the Plague, in its relations to the doctrine of Contagion, may on this occasion be considered as the representative of every species of Typhus; while for the same reason the Pestilential Epidemic which is generally known by the name of the YELLOW FEVER may be regarded as including in its history all the subordinate varieties of _Bilious Remittents_.

It is scarcely necessary to observe that it would be as foreign to the object of this work, as incompatible with the plan of its execution, to enter into any historical details upon the subject of Pestilence, or upon the controversies which have been carried on respecting the manner in which Epidemics are propagated; nor is such a review now required to complete the medical literature of the subject; for Dr. _Hancock_[176] has lately supplied the chasm by a very able critical examination of the principal writers which have appeared at different times on the subject of Epidemic and Pestilential diseases, and to this work we beg to direct the reader’s attention, although as medical Jurists we are not disposed to concur in those half measures of _Quarantine_ which the result of his researches might incline some to adopt. We may state in general terms, that the concurrent testimony of different ages and countries sanctions the opinion that Plague arises from specific contagion—is communicated _immediately_ by contact,[177] or _mediately_ by the agency of infected goods[178] (_Fomites_); and that its progress may be arrested by a vigilant system of Police, cutting off every communication between the infected and the healthy. The contagious nature of Plague has however been denied, and many thousand lives have paid the forfeit of the delusion; it was thus during the Plague of Marseilles in 1720, that in consequence of the physicians in Paris having decided against its contagious nature, a plan, in conformity with that opinion was adopted in the treatment of the sick, and _Sixty Thousand_ people fell victims to the disease in the space of seven months. A similar prepossession induced the faculty of Sicily to declare the Plague which ravaged Messina in 1743, _not_ to be contagious, but the loss of _Forty-three Thousand_ lives gave a practical refutation to the hypothesis.

In our own times, a work characterised by singular arrogance and sophistry, has appeared from the pen of Dr. _Charles Maclean_,[179] the object of which is to shew that “a belief in the contagious nature of the Plague constitutes one of the most destructive errors in the whole circle of human opinions;” in the very commencement of this work he betrays an ignorance which is not uncommonly associated with that species of unbecoming confidence, which so strikingly characterises the writings of this author. “It is unequivocally ascertained,” says he, “that the doctrine of contagion, as the cause of epidemic diseases, was unknown to the ancient physicians; by whom these maladies were expressly attributed to the air:” and he then proceeds to state that the prevalent notion of contagion being an inherent quality of pestilential fever, is derived from a Popish plot of the sixteenth century; an assertion which has not even the merit of originality[180]. _Hippocrates_ and _Celsus_ do not certainly take any notice of the subject of contagion; but _Aristotle_, _Thucydides_, _Livy_, _Virgil_, _Lucretius_, _Ovid_, _Galen_, and _Arctæus_ all contain passages which prove most unequivocally their belief in the contagious nature of Epidemics; the limits of this work will not allow us to be prodigal in illustrations, we must therefore refer the reader to a very interesting memoir upon the subject by Dr. _Yeats_. (_Journal of Science and the Arts._) With respect to the work of Dr. _Maclean_ we would further observe, that he has artfully brought together all those facts which are calculated to afford any support to his doctrine, while he has so ingeniously tortured those that make against it, as to disguise their force and true bearings. Mr. _Tully_[181] has lately furnished the public with some striking instances of the total want of candour with which Dr. _Maclean_ pursued his researches, but the fact is that he determined on the Plague being _non_-contagious long before he ever visited those countries where it prevails; and hence all the advantages which he possessed, and the opportunities of investigation which his residence in the Levant afforded, have not contributed one fact to the elucidation of the subject, but have, on the contrary, thrown additional obstacles in the path of the honest inquirer.—What can be the organization of that man’s mind, who goes into the Greek Pest Hospital at Constantinople, and, according to his own statement, is attacked on the fifth day after he entered it, with the Plague, and yet continues to assert that the malady is _non-contagious_?

To Dr. _Maclean_, however, the medical world are certainly greatly indebted, for had not his _Researches_ been published, it is more than probable that the question of Contagion would not have received the many able elucidations which the experience and science of this country has since afforded it:[182] nor would an opportunity have occurred by which the most eminent physicians, and those practically acquainted with the malady, could have delivered a _viva voce_ opinion before a Committee of the House of Commons.[183] It may be thought extraordinary that a work, so unphilosophical as that to which we allude, should have created so strong a public sensation; but when we consider the eagerness with which mankind seize any circumstance, however weak, that points towards the removal of burdens under which they are suffering, we shall cease to feel surprised that a work of such bold, and promising assertions, should have soon found its way, through commercial channels, to the table of the Privy Council; nor is it strange that government, naturally anxious to relieve commerce of unnecessary burdens, should have instituted an inquiry to ascertain whether Quarantine regulations were actually necessary, and how far they might be relaxed with safety to the country. A report was accordingly requested from the College of Physicians; who, in order to meet the wishes of the government, appointed a committee from their own body to undertake the requisite examination; it is almost unnecessary to state the conclusion at which they arrived; their report is virtually included in that of the Committee of the House of Commons (for which _see Appendix, p. 185_.) With respect to the contagious nature of those fevers which have lately committed their ravages in these dominions, especially in Ireland, the proofs appear to be so satisfactory and evident, that we question the stability of that man’s mind who can doubt, and still more who can deny it. But although the question of contagion as relating to certain epidemics appears to be firmly established, we are by no means insensible to the difficulties and anomalies with which the subject is embarrassed; several of which are so important in relation to Police legislation, that we feel it necessary to offer a few observations upon each of the following questions, and which appear to include all the leading points of controversy.

I. _Are all Epidemic Fevers contagious?_

II. _Does the matter of Contagion require the aid of a certain state
of the air (Pestilential constitution) to give effect to its powers,
and propagation; and to what causes is the decline and cessation of a
contagious pestilence to be attributed?_

III. _Can filth and animal putrefaction generate contagion?_

IV. _Can a Fever produced by fatigue, unwholesome food, &c. be
rendered contagious in its career by animal filth, impure air, &c._

I. _Are all Epidemic Fevers contagious?_